Date: 20070515
Docket: A-426-06
Citation: 2007 FCA 191
CORAM: LÉTOURNEAU
J.A.
NOËL
J.A.
PELLETIER
J.A.
BETWEEN:
GÉRARD MÉNARD
Applicant
and
ATTORNEY GENERAL OF CANADA,
CANADIAN UNION OF POSTAL WORKERS
and
CANADA POST
REASONS FOR JUDGMENT
BY THE COURT
[1]
This is an
application for judicial review of a decision dated September 6, 2006, by the
Canada Industrial Relations Board (Board). In that decision, the Board
dismissed the applicant’s complaint against his union, the Canadian Union of
Postal Workers (union). This complaint alleged that the union breached its duty
of fair representation when it refused to apply for judicial review of the
arbitral award issued September 22, 2004, which upheld his dismissal by the
Canada Post Corporation.
[2]
The
applicant represented himself in those proceedings. He also represented himself
at the hearing and made oral submissions. We endeavoured to assist him by
explaining the limits of our jurisdiction with respect to his claims and the
remedies he wanted to obtain from our Court.
[3]
The
applicant seeks the following relief, as set out in his memorandum of fact and
law:
[TRANSLATION]
(a) That this Honourable Court
allow the application for judicial review and cancel and set aside the decision
of the Board dated the 6th of September 06;
(b) That this Honourable Court
grant leave for judicial review of the arbitral award by requiring the union to
provide me with counsel of my choice and to pay his or her fees, costs and
expenses to represent me, or that the Court restore the situation that existed
before my unlawful dismissal by setting aside the dismissal and reinstating me
in my position with full compensation or that the Court make any other order
that it deems appropriate and fair, having regard to the circumstances of this
case; and
(c) That this Honourable Court
order that each party bear their own costs of this application for judicial
review.
[4]
We explained
to the applicant that our Court does not have jurisdiction to grant the relief
sought in paragraph (b) since the application for judicial review deals with
the legality of the Board’s decision with respect to the union’s duty of
representation.
[5]
In his
oral argument, the applicant nonetheless challenged the legality of the
arbitral award thoroughly and at length, as he had done before the Board. Like
the Board (see pages 5 and 6 of the Board’s decision), we told the applicant
that we are not a court of appeal for this arbitral award.
[6]
In the
context of this judicial review, the arbitral award could conceivably be
relevant if it were, on its face, so patently unreasonable, arbitrary and
biased that it could seriously call into question either the correctness of the
union’s decision to not seek judicial review or the representation provided by
the union to the applicant at the hearing before the arbitrator.
[7]
The Board
considered the applicant’s allegations that there was collusion between the
union, the employer and the grievance arbitrator and that the union acted in
bad faith and was negligent in not requesting a second legal opinion as to the
appropriateness of challenging the arbitral award.
[8]
The Board
considered the role of the union and the limits of its duty of representation
to the applicant. After analyzing the documentary evidence and the parties’
submissions, the Board found the applicant’s allegations to be unfounded. At
pages 6 and 7 of its decision, the Board wrote:
. . . [i]t is important
to note that the Board will not substitute its own decision for that of the
union or act as a court of appeal for union decisions (see Fred Blacklock et
al, [2001] CIRB no. 139; Yvonne Misiura, [2000] CIRB no.
63, and CLRBR (2d) 305; and Anthony William Amor (1987), 70 di 98 (CLRB
no. 633)).
…
In this case, the
complainant alleges that there was collusion between the parties and that the
union did not thoroughly examine the arbitral award. However, the documents
submitted do not demonstrate to the Board that the union acted in a manner that
was arbitrary, discriminatory or in bad faith. Rather, the evidence on record
shows that the union seriously examined the arbitral award, without hostility
toward the complainant. The union made its decision only after consulting its
lawyer and assessing the chances of success with such an application. With
regard to the allegations of collusion, the arguments made are merely the
complainant’s suspicions and personal beliefs.
[9]
Beyond the
applicant’s disagreement with the findings of fact and law made by the
arbitrator and the Board, we have not been persuaded that the Board made an
error that would justify our intervention.
[10]
At the
hearing, the applicant asked for leave to submit two appendices (appendices D
and E) that, he says, had been brought to the Board’s attention. Counsel for
the union objected. The Court reserved judgment on the request.
[11]
The two
appendices essentially consist of supplementary arguments and they add nothing
to what is already in the docket. We would admit them as part of the
applicant’s record in which they had already been inserted.
[12]
For these
reasons, the application for judicial review will be dismissed with costs in
favour of the respondents the Canadian Union of Postal Workers and Canada Post.
“Gilles Létourneau”
“Marc Noël”
“J.D. Denis Pelletier”
Certified
true translation
Mary
Jo Egan, LLB
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