Date: 20100415
Docket: A-297-09
Citation: 2010 FCA 103
CORAM: SHARLOW
J.A.
DAWSON J.A.
TRUDEL
J.A.
BETWEEN:
JOSEPH JIN KAI GUAN
Applicant
and
PUROLATOR COURIER LTD.
and
TEAMSTERS LOCAL UNION NO. 31
Respondents
REASONS FOR JUDGMENT
TRUDEL J.A.
Overview
[1]
Mr. Guan
(or the applicant) was employed by Purolator Courier Ltd. (Purolator) and had been
disciplined on a number of occasions for alleged failures to follow company
practices and policies. Following the termination of his employment, the
applicant grieved his termination along with three other disciplinary actions.
The respondent union, Teamsters Local Union 31 (Union), ultimately decided not to
pursue the grievances to arbitration. The applicant then filed a complaint with
the Canada Industrial Relations Board (CIRB or Board) alleging that his union
breached its duty of fair representation under section 37 of the Canada
Labour Code, R.S.C. 1985, c. L-2 (the Code).
[2]
The
applicant’s complaint was dismissed originally (in CIRB Letter Decision No.
2121 of April 29, 2009 [Letter 2121]) and upon reconsideration (in CIRB Letter
Decision No. 2158 of June 23, 2009 [Letter 2158]). Hence the within application
for judicial review of the Board’s reconsideration decision. The Union is the only respondent in front of this
Court. Mr. Guan alleges that he was denied natural justice or procedural
fairness by the CIRB.
[3]
For the
reasons that follow, I am of the view that this application for judicial review
(the application) cannot succeed.
[4]
The
applicant feels that, because his English skills are poor, his allegations of
intimidation, harassment and discriminatory treatment by Purolator management
were neither comprehended by the original Board, nor by the Board. Had his
allegations been understood, he firmly believes that his complaint would have
been successful.
[5]
Except for
some assistance in preparing his request for reconsideration, Mr. Guan was
self-represented until recently. At the hearing in front of this Court, Mr.
Eastwood appeared on behalf of the applicant and was helpful in refocusing the
arguments raised by his client throughout the proceedings. The panel, with the
consent of the Union, accepted Mr. Eastwood’s written submissions prepared
specifically for the hearing of this application (the written submissions).
[6]
The core of
the applicant’s position is that given the relevant allegations made by him and
the lack of probative counter-evidence on the part of the Union, the Board, short of allowing his
complaint, should have found that it had insufficient information to rule on
the matter. Under such circumstances, he opines that the Board was obligated to
either conduct an oral hearing or to specifically resolve the conflicts in the
information provided by the parties (see Submissions of the Applicant, at
paragraph 36).
[7]
As it did
not, the applicant argues that the Board denied him natural justice
a. in failing to grant him an
oral hearing with the assistance of an interpreter in accordance with section
14 of the Canadian Charter of Rights and Freedoms, R.S.C. 1985, Appendix
II, No. 44;
b. in failing to address relevant
information in both the original decision and the reconsideration decision; and
c. in failing to understand and
consider his written submissions on key issues.
[8]
The
applicant is of the view that his allegations constituted a prima facie
case of a breach of section 37 of the Code.
[9]
Section 37
imposes a duty of fair representation to the bargaining agent union or its
representative. They “shall not act in a manner that is arbitrary, discriminatory
or in bad faith in the representation of any of the employees in the
[bargaining] unit with respect to their rights under the collective agreement
that is applicable to them”.
[10]
In McRaeJackson
(Re), [2004] CIRB No. 290, the CIRB enunciated the test it applies to a
section 37 complaint:
37 […] the
Board will normally find that the union has fulfilled its duty of fair
representation responsibility if: a) it investigated the grievance, obtained
full details of the case, including the employee’s side of the story; b) it put
its mind to the merits of the claim; c) it made a reasoned judgment about the
outcome of the grievance, and d) it advised the employee of the reasons for its
decision not to pursue the grievance or refer it to arbitration.
[11]
Of course,
the present application concerns the reconsideration decision of the Board as
the applicant did not seek judicial review of the original decision. In such a
case, section 44 of the Canada Industrial Relations Board Regulations,
2001, SOR/2001-520 provides that the power of reconsideration is founded upon
either the existence of new facts that could not have been brought to the
Board’s attention at the time it made its earlier decision, an error of law or
policy or the failure of the original Board to respect a principle of
natural justice (see also Williams v. Teamsters, Local Union 938,
2005 FCA 302, at paragraph 6 [Williams]) (emphasis added). The third element is
the only one at play in this application.
Standard of Review
[12]
This Court
has consistently held that Board decisions must be accorded the highest curial
deference except in cases where the issue is one or procedural fairness where
it is for the Court to provide the legal answer (Williams, at paragraph
4).
[13]
This Court
has also stated that unless an application for judicial review has been made,
an initial decision will not be reviewed during the judicial review of a
reconsideration decision (Lamoureux v. Canadian Air Line Pilots Assn., [1993]
F.C.J. No. 1128 (FCA), at paragraph 2).
[14]
However,
for the purposes of the present application where the applicant alleges that
his right to procedural fairness was breached, I must determine whether the
Board’s reconsideration decision discloses a reasonable apprehension of the
issues that were put to it, as well as in front of the original Board. To that
extent, the original Board’s decision must be examined.
[15]
Being
understood is an aspect of the right to a fair hearing (MacDonald v.
Montreal (City), [1986] 1 S.C.R. 460). Moreover, “the concept of procedural
fairness is eminently variable and its content is to be decided in the specific
context of each case” (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190,
at paragraph 79 citing Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653 and Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817).
[16]
I shall
therefore be mindful of the nature of the administrative decision under review
and of the fact that the parties had ample opportunity to express their
respective positions in writing.
Issue
[17]
Did the
Board commit a breach of natural justice in how it disposed of the applicant’s
request for reconsideration?
The decision of the Board
[18]
Having
reviewed the file, the Board was satisfied that the original Board had fully
considered Mr. Guan’s submissions. Therefore, the Board dismissed the
application for reconsideration.
[19]
The Board
wrote:
His [the
applicant’s] allegations were considered to be serious ones, and the [original]
Board required the union and Purolator … to respond to them. On the basis of
all of the materials before it at the time, the [original] Board concluded that
the evidence did not support the allegations that the union had acted in an
arbitrary, discriminatory or bad faith manner when it decided not to pursue Mr.
Guan’s discipline and discharge grievances. Mr. Guan has not provided any new
evidence to support his allegations” (Letter 2158, at page 2).
[20]
Turning
its attention to the applicant’s request for an oral hearing, the Board
reiterated its policy stating that “an applicant is expected to submit all of
his evidence when he files the original complaint” because the complaint may be
decided solely on the basis of the written submissions (Letter 2158, at page
2). Then, the Board concluded that nothing in the applicant’s complaint
indicated that there was insufficient information or issues of credibility that
required the original Board to grant an oral hearing. The applicant takes issue
with these findings. I shall come back to them in my analysis.
[21]
Finally,
the Board discussed Mr. Guan’s request for the assistance of a Mandarin
interpreter. I need not say more on that point as the applicant did not press
this argument at the hearing of this application.
The decision of the original Board
[22]
The
original Board first denied the applicant’s request for an oral hearing, being
satisfied “that the documentation before it [was] sufficient to decide this
matter…” (Letter 2121, at page 2).
[23]
As stated above, the parties had ample
opportunities to make their position known to the original Board. After receipt
of the complaint, both respondents filed a response to which the applicant replied.
Subsequently, the original Board invited the Union to provide additional submissions
regarding the processing of the four grievances. Once again, the applicant
responded to the Union’s allegations.
[24]
Against
this background and in light of the McRaeJackson test, the original
Board thoroughly analyzed the applicant’s four grievances and concluded that
Mr. Guan’s allegations were not supported by the evidence. The Board wrote:
… the Union did
investigate the circumstances and allegations relating to each of the various
grievances and obtained and considered the explanation of the complainant in
each instance. … the Union put its mind to each of the grievances and made a
reasoned judgment not to pursue the grievances to arbitration. Once the Union
was convinced that the employer would not relent in its position to deny the
grievances and refused to reinstate the complainant, the Union presented
the matter to the grievance panel. Then, after careful consideration, the union
decided not to proceed to arbitration, because it concluded that the grievance
would not be successful” (Letter 2121, at page 10).
Analysis
[25]
Mr. Guan
questions the probative value afforded by the original Board to the Union’s
evidence because the allegations he raised in his sworn affidavit were either ignored
by the Union or challenged by it through unsworn statements.
[26]
Unsworn
evidence is customary in front of boards and commissions. In this context, the
weight given to a party’s evidentiary record does not depend on whether or not
it was submitted in support of an affidavit.
[27]
It is true
that the Union did not specifically address some of the applicant’s
allegations, namely
those made in
reply to the Union’s last set of submissions to the original Board, and that
the Union did not seek permission to do so. Nonetheless, this argument, by itself, does little to advance the
applicant’s position.
[28]
Firstly,
the mere fact that evidence is contradictory does not automatically warrant an
oral hearing absent other compelling reasons. Otherwise, section 16.1 of the
Code would be devoid of all sense and use. Obviously when parties end up before the CIRB, chances are that
they have taken a different stance on a particular issue.
[29]
Secondly,
Mr. Guan must show that the Board, on reconsideration, erred by failing to
conclude that the original Board had failed to consider the applicant’s
allegations on determinative issues and erred by failing to afford him the
opportunity to present his case in person.
[30]
At
paragraphs 13 and 15 of his written submissions, Mr. Guan repeats some of these
allegations to show, contrary to what the Board found, that there were issues
of credibility and insufficient information to decide without an oral hearing.
[31]
The eight
examples given by Mr. Guan at paragraphs 13 and 15 fall under five general
submissions:
(1) the applicant was laughed
at;
(2) he was invited to seek
employment elsewhere because the Employer would not change its behaviour;
(3) he was ignored by the
Union representative (Mr. Coleman);
(4) he had support from his
colleagues; and
(5) he was denied arbitration
for improper reasons.
[32]
Having
carefully reviewed the record, I note that these considerations were in front
of the original Board. They were all, if not specifically, at least generally
addressed by the Union. For instance, the
evidentiary record contained information from the Union to the effect that Mr.
Coleman neither laughed at the applicant’s command of the English language, nor
ignored him (respondent’s record, at page 97). To the contrary, the Union’s evidence showed that Mr. Coleman had
presented all the relevant information pertaining to the grievances hoping to
have the discipline reduced, as he had successfully done for Mr. Guan in the
past (Ibidem, at pages 124-128). Also, the evidence clearly indicated
why the grievances were not pursued.
[33]
A union
has a considerable discretion in decisions involving the representation of its
members. The applicant was undeniably entitled to the Union’s good faith in
dealing with his grievances, but not to an absolute right to arbitration (Williams,
at paragraph 10 citing Guild v. Guy Gagnon et al., [1984] 1 S.C.R. 509
at 527).
[34]
The
original Board correctly applied section 37 in reaching its conclusion. Its
reasons adequately explain to Mr. Guan why the panel did not find that the Union had breached its duty of fair
representation;
they show that
the original Board had a good grasp of the parties’ submissions.
[35]
Moreover,
a reasonable reading of the Board’s decision satisfies me that the Board did
examine the totality of the arguments and the totality of the evidence. It
cannot be said that the Board failed to reconsider what it was its duty to
reconsider.
[36]
So,
although Mr. Guan feels that he was not heard because he was unsuccessful, his criticisms are unwarranted. No denial of
justice has been demonstrated.
Disposition
[37]
Consequently,
I propose to dismiss this application for judicial review. In its factum, the
respondent has sought costs against the applicant but did not discuss the
matter at the hearing. In view of Mr. Guan’s personal situation, I am not
inclined to order costs without further specific submissions.
[38]
Therefore,
if the respondent intends to pursue its request for costs, it shall serve and
file submissions of no more than one page within 3 days of the Order to issue.
If need be, the applicant shall also have 3 days to serve and file a reply of
no more than one page.
"Johanne
Trudel"
“I
agree
K.
Sharlow J.A.”
“I
agree
Eleanor
R. Dawson J.A.”
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