Date: 20060216
Docket: A-228-05
Citation: 2006 FCA 82
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
SEXTON J.A.
BETWEEN:
HALIFAXEMPLOYERS ASSOCIATION INCORPORATED
Applicant
and
THE COUNCIL OF ILA LOCALS FOR THE PORT OF HALIFAX
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Halifax, Nova Scotia, on February 16, 2006)
LÉTOURNEAU J.A.
[1] We are seized with an application to judicially review a decision (reconsideration decision) of a panel of the Canada Industrial Board (Board) sitting in reconsideration of a decision (initial decision) rendered by the Board.
[2] It its initial decision, the Board concluded, on the remaining issue that was before it, that casual employees were within the scope of the existing bargaining unit descriptions since the applicant had failed to meet its evidentiary burden of establishing on a balance of probabilities that these casual employees ought to be excluded from the bargaining unit in the present circumstances: see the initial decision, at page 225 of vol. 2 of the Applicant's Record.
[3] The applicant raised before us a number of grounds of review against the reconsideration decision, but did not seek judicial review of the initial decision. This does not go without difficulties because most, if not all, grounds of complaint against the reconsideration decision involve an indirect attack on the initial decision. This Court reiterated in Lamoureux v. Canadian Air Line Pilots Assn., [1993] F.C.J. No. 1128 that it will not, during judicial review of a reconsideration decision of the Board, review the initial decision: see paragraph 2 of the decision.
[4] In Vidéotron Télécom Ltée v. Communications, Energy and Paperworkers of Canada, [2005] F.C.J. No. 398, 2005 FCA 90, this Court was facing the reverse situation. Only the initial decision had been attacked, leaving standing the reconsideration decision. Our decision illustrates the wisdom and perhaps the necessity of challenging both decisions and seeking later a joinder of the two applications for judicial review.
[5] In the present instance, we did not call upon the respondent to answer the grounds of review raised by the applicant, except the one that alleges an error of law and a breach of the rules of natural justice on the part of the reconsideration panel.
[6] The applicant first submits that the reconsideration panel erred in law when it failed to recognize that the Board failed to respect the principles of natural justice when it relied upon evidence submitted in previous applications. Second, the applicant contends that the reconsideration panel itself also breached the rules of natural justice when it provided no reasons in support of its conclusion that the Board did not breach the principles of natural justice in its initial decision.
[7] The violation of the rules of natural justice by the Board in its initial decision would have resulted from the fact that the Board considered evidence submitted in previous applications regarding the same parties and the same issue. More precisely, the applicant relies upon the following excerpt from the Board's initial decision, especially the underlined part, to sustain its claim that the rules of natural justice were breached by the Board. The excerpt can be found in vol. 2 of the Applicant's Record, at page 224 and reads:
A further review of the current applications and the original applications for certification that granted bargaining rights in 1988 to the three constituent unions that comprise the Council, indicates that non-union membership evidence was presented to the Board in both the present and the original applications. In one 1987 application, for example, information that was confidential at the time disclosed the total number of employees who were dispatched from the union's hiring hall. This information was broken down on the basis of hours worked, as well as on the basis of the employee's casual, non-union or union membership status. What is significant from a review of the information is that the previous panel of the Board had examined the non-union workforce dispatch statistics and failed to specifically mention any exclusion of casuals from the bargaining unit. In the present applications, similar comparable data was conveyed to the Board detailing the number of union and non-union members who were dispatched from the union hall. If the non-union membership evidence was not relevant to the applications, there would be no reason for any such evidence to be presented to the Board. In both instances, it was presented alongside evidence of union membership to demonstrate that a majority of employees working through the union hall supported a specific resolution. How is the Board to reconcile such evidence in light of the limited collective agreement provisions and the waiver form that govern (or severely restrict) the rights of the non-union worker?
(emphasis added)
[8] The reconsideration panel analyzed the initial decision of the Board and saw nothing improper in the fact that the Board looked at and referred to the history of the parties in the previous bargaining units and to the Board's jurisprudence on the inclusion of casual employees in certain bargaining units: see the reconsideration decision at page 5.
[9] In addition, the reconsideration panel saw nothing wrong in the Board saying that a deeper investigation into the historical background of these bargaining units was warranted before declaring whether the casual employees are or are not members of the bargaining unit in view of the industrial stability arguments that frequently arise in cases of longshoring in Canadian ports: ibidem, at page 5.
[10] This undertaking of the Board necessarily involved a review of the previous applications for certification and the material in support of them. What the Board simply did was to acknowledge the existence of evidence relating to casual employees in previous certification applications. A reading of the Board's decision as a whole indicates that this background information was merely of informative value to the Board and not instrumental in making its decision. There is, in our view, nothing legally wrong or unfair in so doing. Indeed, the applicant has been unable to point to any prejudice that it suffered as a result of this process followed by the Board.
[11] The alleged breach of natural justice by the reconsideration panel itself is said to be found in this passage of the reconsideration decision at page 4:
The original panel decided this matter without holding an oral hearing. It was entitled, pursuant to section 16.1 of the Code, to proceed in such a fashion. The reconsideration panel is satisfied that the procedures followed by the original panel in deciding this matter did not breach the principles of natural justice.
(emphasis added)
[12] The applicant contends that this is a conclusion without reasons.
[13] The Board is under no statutory duty to provide reasons for its decisions. However, it is not relieved of its duty not to hinder or impede a party's right to seek judicial review of its decision.
[14] With respect, we believe that the reconsideration panel gave sufficient reasons of its conclusion that the procedures followed by the Board did not breach the principles of natural justice when it reviewed with approval the process followed by the Board that we have previously referred to, i.e. the history of the parties in the previous bargaining units and the historical background of these bargaining units. The impugned excerpt that the applicant refers us to in the initial decision of the Board is part of that process.
[15] Even if we were to find that the reconsideration panel's decision violates the rules of natural justice for failure to provide adequate reasons, we would be willing to apply the conclusion adopted by the Supreme Court of Canada in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at paragraph 53:
In Administrative Law (6th ed. 1988), at p. 535, Professor Wade discusses the notion that fair procedure should come first, and that the demerits of bad cases should not ordinarily lead courts to ignore breaches of natural justice or fairness. But then he also states:
A distinction might perhaps be made according to the nature of the decision. In the case of a tribunal which must decide according to law, it may be justifiable to disregard a breach of natural justice where the demerits of the claim are such that it would in any case be hopeless.
In this appeal, the distinction suggested by Professor Wade is apt.
It is also apt in these judicial review proceedings.
[16] For these reasons, the application for judicial review will be dismissed with costs.
"Gilles Létourneau"
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