Date: 20100519
Docket: A‑334‑09
Citation:
2010 FCA 126
CORAM: LÉTOURNEAU J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
CHRISTIAN
BOMONGO
PATRICK
KENABANTU
TARIK
LAASSEL
Applicants
and
COMMUNICATIONS,
ENERGY AND PAPERWORKERS
UNION
OF CANADA
and
BELL CANADA
Respondents
REASONS FOR JUDGMENT
THE COURT
Preliminary
question: Request to reconsider the Direction dated May 13, 2010.
[1]
At the beginning of the hearing, the applicants requested
that the Court review and dispose differently of the Direction dated May 13,
2010, which refused the filing of the motion they wished to file on the morning
of the hearing. The motion was refused for filing because, among other reasons,
it was out of time, irrelevant and sought conclusions that are beyond our
jurisdiction.
[2]
In any event, the applicants wished to establish
that the arbitrator hearing their grievances had not yet ruled on the
admissibility of the evidence he had received, which counsel for the
Communications, Energy and Paperworkers Union of Canada (Union) agreed was the
case.
[3]
Consequently, the questions regarding the review
of the Direction and the filing of the motion became moot.
Issues
[4]
This is an application for judicial review of a
decision by the Canada Industrial Relations Board (Board), dated July 30,
2009, with written reasons in support.
[5]
In that decision, the Board rejected the
applicants’ allegations that their Union was breaching its duty of fair and
equitable representation under section 37 of the Canada Labour Code,
R.S.C. 1985, c. L‑2 (Code).
[6]
Did the Board err in its findings, exceed its
jurisdiction and breach the rules of natural justice, as the applicants allege?
Before addressing those issues, a short summary of the facts and proceedings is
in order.
Facts and
proceedings
[7]
After the applicants were dismissed by their
employer in 2004, the Union
filed grievances on their behalf to contest the employer’s decision.
[8]
When the appointed arbitrator commenced hearing
the grievances, the applicants filed a complaint under section 37 of the
Code. The complaint alleged, in substance, that the Union and its counsel had
breached their duty of fair and equitable representation. More specifically,
the applicants complained that their Union and counsel exhibited a complacent attitude and that their defence
was grossly negligent and deliberately arbitrary, false or misleading: see the
Applicants’ Record at page 26.
[9]
As the complaint makes clear, the applicants’
dissatisfaction results from the preliminary administration and management of
the evidence by counsel for the Union at the beginning of the hearing of their
grievances before the arbitrator. They felt betrayed because, according to
their allegations, counsel had not objected to the employer’s filing of a piece
of evidence even though it had been agreed to take the opposite approach.
[10]
The filing of the complaint resulted in the
hearing before the arbitrator being suspended until the Board ruled on the
complaint. It stands to reason that the suspension is still in effect as a
result of the proceedings before us.
Decision of the Board
[11]
In its decision, the Board explained the limits
of the role it is called upon to play in a section 37 dispute. Its role,
as it said, is not to review the Union’s decisions or determine whether the decisions made are correct.
[12]
In addition, within the strict bounds of
section 37, the Board acknowledges that it does not hear appeals of
arbitrators’ interlocutory decisions. The Board describes its role as
consisting of reviewing the conduct, rather than the competency, of the union
and its representatives or counsel to determine whether they acted in a manner
that was arbitrary, discriminatory or in bad faith.
[13]
After analyzing the allegations by the
applicants and the Union, the Board made the following finding on the merits of
the complaint, at pages 8 and 9 of its decision:
In the case before the Board, the
documents submitted did not satisfy the Board that the union had acted in a
manner that was arbitrary, discriminatory or in bad faith. In fact, the
evidence on file shows that the union has represented and continues to
represent the complainants before the grievance arbitrator through counsel of
record; indeed, several more days of hearing will be needed to examine the
complainants’ dismissal grievances.
It is not the Board’s role to rule on the
conduct or strategy of counsel of record, much less assess the admissibility of
the evidence introduced before the grievance arbitrator. In the Board’s view, a
complaint of a breach of the duty of fair representation is not the “proper
vehicle for complaining” about the conduct of counsel. In any event, the
evidence on file shows that counsel kept the complainants informed of
developments and consulted them on factual matters at issue
The Board understands that the
complainants are going through some rough times as a result of their dismissal
in 2004, but the fact is that the union is still representing them. Without
judging the quality of the union’s representation at arbitration, the Board
cannot find that the union has thus far acted in an arbitrary, discriminatory
or bad faith manner toward the complainants.
Analysis of the Board’s decision and the parties’ submissions
[14]
The applicants are self‑represented. Their
lack of knowledge of our legal system is reflected in both the allegations
submitted and the conclusions sought before the Board and this Court. That is,
no doubt, part of the reason that the Board took great care to reiterate the
parameters of its jurisdiction under section 37 of the Code.
[15]
In this Court, the applicants are alleging that
the Board did not take into account conduct which is, in fact, beyond the scope
of its mandate when analyzing a section 37 complaint. For example, as
previously mentioned, the applicants are once again challenging the conduct of counsel
for the Union by criticizing her for having failed to object to the
admissibility of a piece of evidence before the arbitrator, whereas
section 60 of the Code gives the arbitrator the power to receive and
accept such evidence as the arbitrator in his or her discretion sees fit,
whether admissible in a court of law or not. In any case, the hearing had only
just begun, and the evidence was filed subject to its admissibility and to any
other objection. The applicants misunderstood and misinterpreted the initial
stages of the conduct of proceedings before the arbitrator. It may easily be
understood that the Board must not rashly involve itself with the quality of
representation before the arbitrator or the matter of the competency or strategy
of counsel for the Union.
[16]
The applicants allege that counsel for the Union
and counsel for the employer are conspiring against them so that their
grievances will ultimately fail. As became apparent from the arguments before
us, the applicants are clearly confused as to the notions of allegations,
submissions, inferences and evidence. There is also confusion in their oral
submissions between the merits, or lack thereof, of their dismissal and their Union’s duty of representation. The panel
members tried to shift the focus of the hearing to the real issue in dispute,
but in vain. In the end, no evidence in the record was identified as
establishing a lack of transparency by the Union intended to undermine them.
[17]
In the applicants’ view, the rules of natural
justice were breached because the Board did not hold a hearing. Yet,
section 16.1 of the Code gives the Board the legal authority to proceed as
it did after it considered that the evidence filed and the parties’ written
submissions were sufficient to allow it to decide the matter without an oral
hearing. Therefore, that argument is without merit.
[18]
The applicants are also criticizing the Board
for having devoted more time to explaining the limits of its role under section 37
than to analyzing the applicants’ allegations. However, it should be noted that
the Board scarcely had a choice. As previously mentioned, the applicants’
allegations exceeded the Board’s jurisdiction under section 37. The Board
excluded them by explaining the limits of its mandate. Nothing to that effect
in the Board’s reasons for decision warrants our intervention.
[19]
In short, after carefully reading the Board’s
decision with regard to the parties’ respective allegations, we do not see that
it contains any material error of fact or law that would warrant our
intervention.
Conclusion
[20]
For these reasons, the application for judicial
review will be dismissed with costs.
“Gilles Létourneau”
“M. Nadon”
“J.D. Denis Pelletier”
Certified true
translation
Sarah Burns
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