Date: 20101201
Docket: A-329-10
Citation: 2010 FCA
328
Present: NOËL J.A.
BETWEEN:
XL DIGITAL SERVICES INC. doing
business as
DEPENDABLE
HOMETECH
Applicant
and
COMMUNICATIONS, ENERGY AND
PAPERWORKERS
UNION OF CANADA
Respondent
Dealt with in writing without appearance
of parties.
Order delivered
at Ottawa, Ontario, on December 1, 2010.
REASONS
FOR ORDER BY: NOËL
J.A.
Date:
20101201
Docket:
A-329-10
Citation: 2010 FCA 328
Present: NOËL
J.A.
BETWEEN:
XL DIGITAL SERVICES INC. doing business
as
DEPENDABLE
HOMETECH
Applicant
and
COMMUNICATIONS, ENERGY AND
PAPERWORKERS
UNION OF CANADA
Respondent
REASONS FOR ORDER
NOËL J.A.
[1]
This
is a motion by XL Digital Services Inc. (the applicant) for a stay of an
interim order of the Canadian Industrial Relations Board (CIRB) dated August
23, 2010. In the interim order, the CIRB certifies the Communications, Energy
and Paperworkers Union of Canada as the bargaining agent for a unit comprising
all employees of the applicant working in and out of London, Ontario, excluding
managers and those above in rank of manager.
[2]
In
the application for judicial review filed against the interim order, the
applicant maintains that the CIRB did not have the jurisdiction to issue it. It
asks that this order be stayed pending the outcome of this application.
[3]
In
order for a stay to be granted, the applicant must demonstrate that there is a
serious question to be tried, that it will suffer irreparable harm if the stay
is not granted and that the balance of convenience favours the issuance of the
stay (see RJR-MacDonald Inc. v. Canada (Attorney
General,
[1994] 1 S.C.R. 311).
[4]
I
assume for present purposes that the judicial review application raises a
serious issue.
[5]
With
respect to the irreparable harm, the applicant contends that its business
operations will be irreparably harmed because it will be required to disclose
information concerning its business operations, some of which may potentially
be confidential; to prepare and review bargaining committee proposals and
agendas; to enter into negotiations and bargain in good faith with the union;
and to submit to arbitration pursuant to section 36.1 of the Canada Labour
Code, R.S.C. 1985, c. L-2, with regard to employee grievances.
[6]
I
can understand the applicant’s frustration in complying with the order given
its contention that it will be successful in overturning the decision of the
CIRB. That said, a decision of the CIRB is, in principle, enforceable
notwithstanding an application for judicial review. No doubt complying with the
decision will create inconveniences. However, the harm alleged falls
substantially short of establishing irreparable harm.
[7]
The
application for a stay will accordingly be dismissed with costs.
“Marc
Noël”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-329-10
STYLE OF CAUSE: XL
DIGITAL SERVICES INC. doing business as DEPENDABLE HOMETECH v. COMMUNICATIONS,
ENERGY AND PAPERWORKERS UNION OF CANADA
MOTION
DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES
REASONS FOR ORDER BY: Noël J.A.
DATED: December 1, 2010
WRITTEN
REPRESENTATIONS BY:
|
V. Ross Morrison
Natalie
Schernitzki
|
FOR
THE APPLICANT
|
|
J. James Nyman
Jesse
B. Kugler
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
MORRISON BROWN SOSNOVITCH LLP
Toronto,
Ontario
|
FOR
THE APPLICANT
|
|
CaleyWray
Toronto, Ontario
|
FOR
THE RESPONDENT
|
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