Date:
20081222
Dockets: A-237-07
A-583-06
Citation:
2008 FCA 415
CORAM: NADON
J.A.
BLAIS
J.A.
PELLETIER
J.A
A-237-07
BETWEEN:
DIMITRIOS PAPADOPOULOS
Applicant
and
COMMUNICATIONS, ENERGY AND PAPERWORKERS
UNION OF CANADA
and
CORUS ENTERTAINMENT INC.
Respondents
A-583-06
BETWEEN:
DIMITRIOS PAPADOPOULOS
Applicant
and
COMMUNICATIONS, ENERGY AND PAPERWORKERS
UNION OF CANADA
and
CORUS ENTERTAINMENT INC.
Respondents
REASONS FOR JUDGMENT
BLAIS J.A.
[1]
The
applicant filed a complaint against the respondent, Communications, Energy and
Paperworkers Union of Canada (the Union), with the Canada Industrial Relations
Board (the Board).
The complaint alleged that the Union infringed on
section 37 of the Canada Labour Code (the Code), which states that a
union shall not act in a manner that is arbitrary, discriminatory or in bad
faith towards any of the employees in the bargaining unit it represents.
[2]
After
having given the parties the opportunity to state their positions in writing
and submit the documentary evidence they deemed relevant, the Board issued a
decision on December 5, 2006.
[3]
On
April 12, 2007, subsequent to the applicant’s filing a reconsideration
application with the Board, the Board issued a new decision dismissing the
applicant’s reconsideration application after it had given the parties the
opportunity to state their respective positions on the issue.
[4]
The
applicant then filed two applications for judicial review of the Board’s two
decisions, which are the subject of the decision at hand.
[5]
The
recent decision by the Supreme Court of Canada in Dunsmuir v. New-Brunswick,
2008 SCC 9, [2008] S.C.J.
No. 9 (QL), teaches us that the applicable standards
of review have now been reduced to the standards of correctness and
reasonableness.
[6]
The
parties have agreed, correctly in my opinion, that the standard of review
applicable in the analysis of this case is reasonableness. However,
in the analysis of the issue of whether a rule of natural justice has been
breached, the Court will apply the standard of correctness.
[7]
The
Court intends to first dispose of the applicant’s allegation that the Board
failed to observe the rules of natural justice in its analysis of the
application. I have reviewed in detail the extensive documentary
evidence before the Board both at the time of its original decision issued in
December 2006 and upon reconsideration of its original decision in its April
2007 decision.
[8]
The
applicant claims that there was a breach of procedural fairness because his
record as on file at the Board’s office in Montréal did not contain all of the
evidence included in his record at the Board’s office in Ottawa. On
that basis, the applicant alleges that the Board decided his case without
having taken all of the evidence on record into account. That allegation
presupposes that the Board issued its two decisions on the basis of the record
as constituted in Montréal. That argument
cannot succeed, because the Board submitted a certified copy of its record to
the Court, that is, the record it considered when issuing its two decisions.
In the absence of evidence that the record is
incomplete, the applicant’s argument must be dismissed.
[9]
The
applicant has failed to persuade me that the Board breached a rule of natural
justice in either its original decision or its reconsideration. In my opinion,
the Board was able to review the entire record before it, and the certified
copy of the record was submitted in its entirety for this Court to review.
[10]
As
for the applicant’s complaint, the record before the Board shows that the
applicant received a memorandum from the employer indicating that the night
shift would be abolished, which had a direct impact on the applicant’s
employment conditions, and that he complained about these changes on December
6, 2004. That same day, the chief steward of the Union that is a
respondent in the case at bar answered the complaint by e-mail and responded to
each of the alleged violations of the Collective Agreement section by section,
explaining the Union’s position.
[11]
The
union representative concluded that there was no basis for the applicant’s
claim in the Collective Agreement, but offered the applicant her subsequent
support.
[12]
Over
two months later, on February 11, 2005, the applicant notified his union that
he intended to file a grievance alleging constructive dismissal.
[13]
The
union representative once again responded in detail to each of the applicant’s
allegations, explaining why the Union believed that it was not advisable to
file a grievance with almost no chance of succeeding.
[14]
The
proposed grievance was not pursued and therefore not filed. The
applicant, who had initiated discussions directly with the employer by letter
on February 11, 2005, reached an agreement directly with his employer less than
three weeks after his discussion with the union representative.
[15]
It
was not possible to know the details of the agreement between the applicant and
the employer on account of the agreement’s confidentiality. It
is therefore impossible to know which aspects of the grievance may not have
been settled.
[16]
Upon
reading both the December 2006 decision and the April 2007 reconsideration
decision, I am satisfied that the Board conducted a meticulous review of the
evidence before it and referred to a large number of materials and arguments
submitted by each party.
[17]
Moreover,
I believe the Board’s decisions are completely reasonable in the circumstances,
considering the evidence that was before it.
[18]
Section
37 of the Code states that a union agent shall not act in a manner that is
arbitrary, discriminatory or in bad faith in representing any of the employees
or the bargaining unit.
[19]
Despite
the serious accusations made by the applicant, it appears that the union
representatives reacted promptly to the applicant’s allegations and clearly and
specifically explained why the Union concluded that there was no basis for most
of the points raised by the applicant.
[20]
The
Board found that the Union took all of the necessary steps to review the
applicant’s claim before deciding against supporting the proposed grievance.
[21]
Recently,
in Télé-Mobile Co. v. Telecommunications Workers Union, 2004 FCA 438,
[2004] F.C.J. No. 2123 (QL), this Court stated the following at paragraphs 46
and 47:
46 Labour boards in
Canada are among the most senior of our administrative tribunals, and are
regarded as possessing a broad mandate and matching expertise in the regulation
of labour relations. The strong preclusive clauses typically found in their enabling
legislation further indicate a legislative intention that in judicial review
proceedings courts should afford labour board decisions a high degree of
deference. These observations apply fully to the Canada Industrial Relations
Board.
47 It is
unnecessary to conduct a full pragmatic and functional analysis each time a
labour board decision comes for judicial review: there is a broad consensus
about the status of labour boards, the scope of their mandate and expertise,
and the general purposes of the Code. In addition, strong privative clauses are
typically included in their enabling legislation. The inquiry can thus focus principally on
the nature of the question in dispute and whether it is within the scope of the
Board’s expertise. Here, too, settled jurisprudence avoids the need for
reviewing courts constantly to reinvent the wheel: labour boards’ decisions
based on an interpretation of their constitutive, and closely related,
legislation are normally reviewable only for patent unreasonableness,
even when the statutory provision in dispute also has a more general legal
meaning . . . .
(Emphasis
added)
[22]
Regarding
the Board’s reconsideration decision, this Court has also delivered a decision
in a case that took the same procedural route: Williams v. Teamsters Local
Union 938, 2005 FCA 302, [2005] F.C.J. No. 1550 (QL). In
that case, Mr. Williams had filed a complaint against his union, also under
section 37 of the Code, which was dismissed. A
reconsideration application was also filed and dismissed. In his decision dismissing the judicial review, Justice
Nadon writes:
4 This Court has
consistently held that Board decisions must be accorded the highest curial
deference. In
this case, all of the factors needed in a pragmatic and functional analysis
lead to the conclusion that the Board’s decision cannot be interfered with
unless it is patently unreasonable (See Dr. Q. v. College of Physicians
and Surgeons of British Columbia, [2003] 1 S.C.R. 226). The one exception
involves questions of procedural fairness where it is for the Court to provide
the legal answer (See Canadian Union of Public Employees (C.U..P.E). v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph
100).
5 The standard of
patent unreasonableness is very strict. A decision is not patently unreasonable
simply because this Court may disagree with it. Rather, in order to be patently
unreasonable, this Court must find that the Board’s Reconsideration decision is
clearly irrational.
(Emphasis
added.)
[23]
Justice
Nadon then adds the following at paragraph 7:
7 I am unable to say
that the Board’s Reconsideration decision was patently unreasonable. A request for reconsideration
is neither an opportunity to obtain a new hearing nor is it an appeal. In
conducting its review of the Initial decision, the reconsideration panel was
not to substitute its own appreciation of the facts for that of the original
panel. In this case, based on the facts before it, the original panel concluded
that the Union was within its right not to pursue the matter further and there
are no new facts or grounds now advanced by the applicant that would alter this
conclusion.
[24]
In
the decision before this Court, the Board states the following at page 4:
[translation]
The
reconsideration panel notes that most of the applicant’s submissions contain
arguments that are identical or similar to those made to the original panel. This attempt to reopen the case for debate does not
constitute grounds for reconsideration.
[25]
In
the absence of evidence of new facts, the Board was correct to deny
reconsideration. As far as I am concerned, the Board’s findings are
completely reasonable in the circumstances.
[26]
I
would dismiss both applications for judicial review, with costs; specifically,
the application for judicial review of the Canada Industrial Relations Board’s
original decision, dated December 5, 2006, and that of its reconsideration
decision, dated April 12, 2007.
[27]
These
reasons will apply to Court files A-237-07 and A-538-06.
“Pierre
Blais”
“I agree.
M.
Nadon J.A.”
“I agree.
J.D.
Denis Pelletier J.A.”
Certified
true translation
Sarah
Burns
Email this Content