Date:
20100610
Docket: A-461-09
Citation: 2010 FCA 154
CORAM: NADON
J.A.
PELLETIER J.A.
TRUDEL
J.A.
BETWEEN:
AMALGAMATED TRANSIT UNION, LOCAL 1624
Applicant
and
SYNDICAT DES TRAVAILLEUSES
ET TRAVAILLEURS DE COACH CANADA - CSN
Respondent
and
3329003 CANADA INC.
Respondent
and
TRENTWAY-WAGAR INC.
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
Pursuant
to an application made under section 24 of the Canada Labour Code,
R.S.C. 1985, c. L-2 (Part I – Industrial Relations) [Code], on 22 June 2009,
the respondent Syndicat des travailleuses et travailleurs de Coach Canada-CSN
[CSN] has been certified as the bargaining agent for a unit comprising:
all employees
of 3329003 Canada Inc., excluding office and ticketing staff, working at
the facilities located at 5550 Monk Boulevard and 1140
Wellington Street in Montreal, Quebec (Certificate of 14
October 2009, dossier du défendeur, volume 2, at pages 356-357).
[2]
The key
issue of the application for judicial review commenced by the applicant
Amalgamated Transit Union, Local 1624 [ATU] is whether
or not the Canada Industrial Relations Board [Board] erred in providing this
certification. Other issues raised by ATU are concerned with natural justice
and procedural fairness.
[3]
By virtue
of a certificate issued in 1987 (the 1987 certificate) by the Canada Labour
Relations Board (as it was then known) ATU is the bargaining agent for:
all employees of
Trentway-Wagar Inc. [Trentway] employed as coach drivers and airport operator
drivers, excluding dispatchers, those above the rank of dispatcher,
office and clerical staff (see the 1987 certificate, applicant’s record, volume
1, tab C, at page 81).
[4]
ATU
submits that by the time CSN filed its application for certification, the
activities of 3329003 Canada Inc. [332] had been merged into Trentway. Hence,
the employees for whom the certification was intended had already become part
of the ATU’s bargaining unit “arguably in 2007 but at least by June 22, 2009”
(applicant’s memorandum at paragraph 2). This hesitation as to the corporate
status of 332 will be addressed later.
[5]
ATU also
argues that the Board erred:
a. in failing to provide it with
adequate notice of the proceedings;
b. in failing to conduct an oral
hearing; and
c. in issuing its decision along
with reasons signed by the Board’s Registrar rather than by a member of the
Board, contrary to subsection 3(b) of the Canada Industrial Relations
Board Regulations, 2001, SOR/2001-520, as amended [Regulations].
[6]
The applicant’s
position is supported by the respondents 332 and Trentway. Since 332 and
Trentway raised no independent issue, these reasons refer only to ATU.
[7]
On the
merits, given the nature of the question at issue, the evidentiary record and
the Board’s expertise in the determination of appropriate bargaining units, the
decision under review is reasonable. It falls within a range of possible,
acceptable outcomes, which are defensible in respect of the facts and the Code
(Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190). On the procedural treatment of the file by
the Board, I have not been persuaded that the Board failed in its duty of
procedural fairness.
[8]
Therefore,
I propose to dismiss this application for the reasons that follow.
[9]
To fully
understand the issue of timeliness raised by the applicant under section 24 of
the Code, I need to describe the corporate structure that includes 332 and
Trentway, but before getting there, I intend to dispose of the procedural
fairness issues.
A. Procedural Fairness
1. Notice of the proceeding
[10]
ATU contends
that both CSN and the Board failed to give it proper notice of the proceeding,
something it was entitled to as “any person who may be affected by the
application” (paragraph 10(b) of the Regulations). It argues that:
… because of
the late and inadequate nature of the notice, the Applicant’s ability to
respond to the certification application was prejudicially affected
(applicant’s memorandum at paragraph 45).
[11]
ATU supports
its position by reference to sections 10 and 11 of the Regulations. On the facts
of this case, I fail to see how these sections advance the applicant’s case.
[12]
Section 10
of the Regulations dictates the mandatory content of an application filed with
the Board. Section 11, in its relevant part, provides that the Board:
… shall, on
receipt of an application and to the extent possible, give notice of the
application in writing to a person whose rights may be directly affected by the
application [Emphasis added].
[13]
This
section 24 application concerned non-unionized employees of 332, while ATU
claims to be an affected party by virtue of its 1987 certificate and a merger
of 332 and Trentway, which took place sometime between 2007 and 22 June 2009.
[14]
It was not
readily apparent that ATU was affected by the CSN application. In any event,
the record shows that on 15 July 2009, as soon as the Board was made aware of
ATU’s intention to intervene with respect to the application, ATU received “all
the documents filed in the matter, including the application for certification
by CSN” (see Maylene Higgins’ affidavit, applicant’s record, volume 1, tab 2 at
paragraphs 7 and 10).
[15]
From then
on, ATU was a party to the proceeding and was afforded the opportunity to file
its written submissions. It did so along with its own application under section
35 of the Code where it sought a declaration of single employer.
[16]
In view of
these facts, I would therefore dismiss this argument.
2. Failure to conduct an oral
hearing
[17]
Section
16.1 of the Code states:
|
Determination
without oral hearing
16.1 The Board may decide any matter before
it without holding an oral hearing.
1998, c. 26, s. 6.
|
Décision sans
audience
16.1 Le Conseil peut trancher toute
affaire ou question dont il est saisi sans tenir d’audience.
1998,
ch. 26, art. 6.
|
[18]
The Board
is the master of its own procedure: this Court will not intervene unless the
Board acts in a way which deprives a party of procedural fairness.
[19]
ATU
submits that the CSN application was exceptional because it dealt with “complex
issues of corporate organization or reorganization” (applicant’s memorandum at
paragraph 49). I disagree.
[20]
Moreover,
ATU submits it had a legitimate expectation to be heard following, it says, the
promise of a Labour Relations Officer. At the hearing of this application,
counsel for ATU conceded that there was nothing on record to support this
statement.
[21]
To the
contrary, I note letters from the Board to CSN and 332, which were communicated
to ATU, reminding them that it was in their “best interests to file complete
and accurate submissions in support of their respective positions and to cooperate
fully in the investigation by the Board’s officer” (applicant’s record, volume
1, tab C, at pages 68 for CSN, and 73 for 332), as the matter could be decided
without an oral hearing.
[22]
I also
note that the investigator’s report accurately reflects the parties’ position
(applicant’s record, volume 1, tab L at pages 189 and following). As a result,
the Board was well aware of ATU’s position.
[23]
Accordingly,
I would dismiss this second argument.
3. Failure to give
reasons or sufficient reasons
[24]
The applicant’s
last argument under the heading “Procedural fairness” is that the Board erred
in failing to provide reasons (applicant’s memorandum at paragraphs 31 and
following).
[25]
The record
shows that reasons relating to the Board’s Certification Order of 14 October 2009
were issued the same day under the signature of the Board’s Executive Director
and Senior Registrar.
[26]
According
to the applicant, this is contrary to sections 2 and 3 of the Regulations,
which read:
|
Orders
2. (1) Only the Chairperson, a Vice-Chairperson, or another member
of the Board may sign an order or a decision of the Board, although a
Registrar is authorized to sign the decisions referred to in section 3.
(2)
Unless it states otherwise, an order of the Board takes effect on the day it
is issued.
Registrar
3. In addition to processing any
matters on behalf of the Board, a Registrar may make binding decisions on
uncontested applications on behalf of the Board in respect of
…
(b) applications for
certification pursuant to section 24 of the Code;
…
|
Ordonnances
2. (1) Seul le président, un vice-président ou un autre membre du
Conseil peut signer les décisions ou les ordonnances de celui-ci, un greffier
pouvant par ailleurs signer les décisions visées à l’article 3.
(2) À
moins d’indication contraire, l’ordonnance du Conseil prend effet à la date à
laquelle elle est rendue.
Greffier
3. En plus de régler toute
question au nom du Conseil, un greffier peut rendre des décisions exécutoires
sur des demandes non contestées concernant :
[…]
b) les demandes d’accréditation sous le
régime de l’article 24 du Code ;
[…]
|
[27]
At paragraph 41 of
its memorandum, ATU summarizes
its position as follows:
41. With
respect to the present case it is submitted that the issues raised by the
certification application were substantial and contested. They included not
only the status of the Applicant’s vested bargaining rights, but also the
common employer issue. It is therefore submitted the Board was obligated to
provide reasons. Moreover, given the intimate connection between making a
decision and expressing a decision, it is submitted that the Board was
obligated to prepare those reasons itself. In refusing to do so the Board
breached its obligations of natural justice and fair procedure, and as such the
certification order should be quashed.
[28]
Once again,
I find that the sections of the Regulations reproduced above do not advance the
applicant’s case: the record shows that the Certification Order is properly
signed by Vice-President Graham J. Clark, Vice-Chairperson of the panel seized
with the CSN application. Conversely, the record does not show that the Board’s
reasons were prepared or drafted by the Registrar.
[29]
All it
shows for certain is that reasons for the Certification Order were issued and
that they were signed by the Registrar and processed along with the
Certification Order.
[30]
Although
it would have been preferable for the Board members to have signed their reasons
personally, I am of the opinion that the procedure followed here does not taint
or invalidate it. I therefore consider the reasons as those of the Board.
[31]
Since this
argument fails as well, I now turn my attention to the Certification Order
itself.
B. The section 24 – Certification
Order and the timeliness issue
[32]
As
mentioned earlier, CSN’s application for certification was made pursuant to
section 24 of the Code. Paragraph 24(2)(a) provides that:
… an
application by a trade union for certification as the bargaining agent for a
unit may be made (a) where no collective agreement applicable to the unit is in
force and no trade union has been certified under this Part as the bargaining
agent for the unit, at any time.
[33]
The Board,
in Ledcor Industries Ltd. (Re), 106 di 122, [1998] 41 C.L.R.B.R. (2d)
145 [Ledcor], aff’d Ledcor Industries Ltd. v. Labourers’ International
Union of North America, Local 92 (Construction & General Workers’ Union),
[1999] 251 N.R. 285 (F.C.A.), explained section 24 as follows:
29 Section
24(1) provides that a “trade union seeking to be certified as the bargaining
agent for a unit that the trade union considers constitutes a unit appropriate
for collective bargaining” may, subject to the time prescriptions, apply to the
Board to be certified. The union is given broad berth, in a section 24 application,
to define the unit it considers appropriate. If there is an existing
certification or collective agreement “applicable to the unit” in force at the
time of the union’s application, which is substantially the same as the one
that the union described in its application pursuant to section 24(1), the
timeliness of the application must be determined pursuant to the provisions of
section 24(2).
30. Before
applying the time limits under section 24(2), the Board is often called upon to
decide whether the unit described by the union in its section 24(1)
application is the same or substantially the same as the unit for which an
existing certification order or collective agreement (voluntary or otherwise)
exists. Ultimately, it is also the Board, by virtue of section 28 that must
decide whether or not the unit that the union described in its section 24(1)
application “constitutes a unit appropriate for collective bargaining.”
[emphasis
added]
[34]
Hence, the
Board could not grant the certification sought by CSN if was satisfied that the
proposed unit was “the same or substantially the same” as the unit contemplated
in the existing certification held by ATU. On the applicant’s allegations, the
Board had to find that “[332] had been merged into a single entity with [Trentway]”
(applicant’s memorandum at paragraph 25) and that as of 22 June 2009, the
Montreal employees identified in the CSN application had a common employer with
those already covered by the 1987 certificate.
[35]
In its
reasons, the Board wrote:
|
The panel is satisfied
that it can proceed at this time to certify the CSN for the requested
bargaining unit. Despite the able arguments of counsel concerning the
changing corporate situation behind the concurrent single employer
application, the delay in waiting for a final decision could significantly
prejudice the rights of existing employees to organize themselves under the Code.
The issue of bargaining units can, of course, be revisited should the Board
later be convinced to make a single employer declaration.
The Board was not
convinced by the parties’ arguments that any Ontario-based bargaining unit
had started to apply to employees in Montreal working
for a different employer. The Board retains its jurisdiction over bargaining
units and has never been requested to re-examine the scope of any of its
outstanding bargaining unit certificates. Similarly, if ever a single
employer declaration is issued, the issue of multiple bargaining units could
again be revisited.
|
Le banc est convaincu
qu’il peut maintenant procéder à l’accréditation de la CSN à l’égard de
l’unité de négociation visée par la demande. Malgré les arguments valables
des procureurs concernant les circonstances changeantes des entreprises qui
sont à l’origine de la demande parallèle de déclaration d’employeur unique,
le fait d’attendre qu’une décision définitive soit rendue pourrait
sérieusement porter atteinte aux droits des employés en poste de se syndiquer
en vertu du Code. La question des unités de négociation peut bien
entendu être réexaminée si le Conseil était convaincue plus tard qu’il devait
formuler une déclaration d’employeur unique.
Le Conseil n’a pas été
convaincu par les arguments des parties que les employés qui travaillent pour
un autre employeur à Montréal sont devenus visés par l’accréditation d’une
unité de négociation en Ontario. Il demeure saisi de la question des unités
de négociation; d’ailleurs, on ne lui a jamais demandé de réexaminer la
portée de tout certificat d’accréditation existant. De même, si une
déclaration d’employeur unique est formulée, la question des unités de
négociation multiples pourrait être réexaminée.
|
[36]
In its
application for judicial review, the applicant alleges three errors in this
passage of the Board’s reasons:
10. The
Board based its decision on an erroneous finding of fact in holding that the
ATU was an “Ontario” union,
rather than recognizing its international and national status as well as its
Canada-wide certification.
13. The
Board erred in law in finding that the issue of bargaining units can be
revisited should the Board later decide to make a single employer declaration,
insofar as the there is already an exclusive bargaining agent which necessarily
precludes an Application for Certification as untimely.
14. The
Board erred in law in suggesting that the ATU ought to have requested that the
Board re-examine the scope of any of its outstanding bargaining unit
certifications given that the ATU already held a geographically unlimited
certificate with respect to all employees of the employer.
[37]
With
respect, the first allegation is not supported by the record. In its reasons,
the Board refers to the “Ontario-based bargaining unit” (“unité de négociation en
Ontario”) before
stating that the Montreal 332 employees are not a part
of that unit. Nowhere does the Board refer to an Ontario-based union. This is
consistent with the Board’s duty under section 24 to put its mind to the
distinct characteristics of a “unit” proposed for certification.
[38]
As far as
the remaining allegations are concerned, I have not been persuaded that the Board
erred. A better understanding of the Board’s decision requires some corporate
background.
[39]
332 is a
sister company of Trentway. Both corporations operate as part of the Stagecoach
Group, one of the world’s largest bus, coach, and rail groups with operations
in the United
Kingdom and
North America (applicant’s record, volume 1, tabs E and M, at pages 153 and
230). The Stagecoach Group of corporations has gone through changes over the
years. Key events from ATU’s perspective occurred in 2007 and 2009 and justify
its timeliness argument.
[40]
332 was
originally created as a holding company. Through corporate changes, it has
operated under the names of Autocar Connaisseur, Coach Canada and Grayline (™)
(record of the [Corporate] respondents, tab 1, affidavit of James J. Devlin at
paragraph 10; see also applicant’s record, volume 1, tab M, at pages 243-245).
[41]
In a
letter of 8 July 2009 to the Board, Counsel for 332 discusses the alleged 2007
key event:
The Board
needs to understand that the Coach Canada Group is comprised of two main
elements which are Trentway-Wagar Inc. and Autocar Connaisseur Inc. The first
doing business in Ontario, Quebec and the USA and the
latter doing business in Quebec, Ontario and the USA. Both
companies operate Coach Buses back and forth across provincial and
international lines, and have the same officers and directors. This common
control and direction result from the 2007 merger between Trentway-Wagar Inc.
and Autocar Connaisseur Inc. At that time, for fiscal reasons, many of the
assets of Autocar Connaisseur Inc. were transferred to 3329003 Canada Inc., its
mother company. Following that merger, Autocar Connaisseur Inc. was continued
under Ontario law and
merged with Trentway-Wagar Inc. (applicant’s record, volume 1, tab C, at page
97)
[42]
The 2009
event is addressed by Mr. Devlin, President of Trentway and 332. In his
affidavit, he declares that Trentway assumed effective control of 332 at the
end of May 2009 when he dismissed 332’s general manager after discovering that
“local management in Montreal had been defrauding [332] of very important sums
of money” (record of the [Corporate] respondents, tab 1, affidavit of James J.
Devlin at paragraph 16).
[43]
These were
the submissions of ATU, Trentway and 332 in response to CSN’s application for
certification under section 24 of the Code. They are also the foundation of the
corporate respondents’ application for a “single employer” declaration under
section 35, which is yet to be heard by the Board.
[44]
On the
other hand, the record also shows that as of 22 June 2009, there was no
previous certificate covering 332’s employees, that 332 was the employer of
record, and that since 2002 no attempt was made by ATU or any other labour
union to act as the bargaining agent for the employees (record of the [Corporate]
respondents, tab 1, affidavit of James J. Devlin at paragraphs 19-23). As a
matter of fact, at the hearing counsel for ATU stated that his client was made
aware of this unit on 7 July 2009.
[45]
On a
standard of reasonableness, not only do I fail to see how these facts could
have led the Board to dismiss CSN’s application under section 24, but I also
find that there was ample support for the Board to conclude as it did and to
issue certification to CSN to act as bargaining agent for the employees.
[46]
As a
result, I would dismiss this application for judicial review and because the
applicant has not asked for costs, none should be awarded.
"Johanne
Trudel"
“I
agree
M.
Nadon J.A.”
"I agree
J.D.
Denis Pelletier J.A."
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