Date: 20031107
Docket: A-686-02
Citation: 2003 FCA 418
CORAM: DÉCARY J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
DANIEL RAYMOND
ALAIN COLLERET
JEAN BOUCHARD
JEAN-CLAUDE FORGET
FERNAND MARTEL
FRANÇOIS LABRECQUE
GUY HUPPÉ
ALAIN GUERRA
MARC BARDIAUX
JEAN-JACQUES DEGAGNÉ
ANDRÉ GIROUX
CLAUDE DUFOUR
CHRISTIAN MONDOR
Applicants
and
CANADIAN UNION OF POSTAL WORKERS
Respondent
and
CANADA POST CORPORATION
Respondent
Hearing held at Montréal, Quebec, on November 5, 2003.
Judgment delivered at Montréal, Quebec, on November 7, 2003.
REASONS FOR JUDGMENT OF THE COURT: DÉCARY J.A.
Date: 20031107
Docket: A-686-02
Citation: 2003 FCA 418
CORAM: DÉCARY J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
DANIEL RAYMOND
ALAIN COLLERET
JEAN BOUCHARD
JEAN-CLAUDE FORGET
FERNAND MARTEL
FRANÇOIS LABRECQUE
GUY HUPPÉ
ALAIN GUERRA
MARC BARDIAUX
JEAN-JACQUES DEGAGNÉ
ANDRÉ GIROUX
CLAUDE DUFOUR
CHRISTIAN MONDOR
Applicants
and
CANADIAN UNION OF POSTAL WORKERS
Respondent
and
CANADA POST CORPORATION
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] This is an application for judicial review of a decision by a Vice-Chairperson of the Canada Industrial Relations Board (the Board), dated November 21, 2002, mandated under paragraph 14(3)(c) of the Canada Labour Code (the Code) to make a determination on the complaints made by the applicants against the respondent union for breach of its duty to represent them.
[2] In the impugned decision, the Board decided, first, that it may determine the matter without holding a hearing and, second, that the complaints have no merit.
[3] Of the various grounds alleged by the applicants in their record, it was clear at the hearing that the only one that had to be addressed by the Court was the following: in making its decision refusing the requests for hearing at the same time that it dismissed the complaints, the Board breached the principles of natural justice because the applicants, had they known that their complaints would be dismissed without a hearing, would have been more explicit in their request for a hearing or would have filed additional written representations about the merits of their complaints. In short, to use the words of the applicants' counsel at page 364 of his memorandum: "[Translation] Before making a decision with such serious consequences, the Board should have requested additional information about the nature of the evidence that the applicants intended to adduce."
[4] Section 16.1 of the Code provides that the Board may decide any matter before it without holding a an oral hearing. This section was introduced by Chapter 26 of the Statutes of Canada, 1998, which repealed the former subsection 98(2) that allowed for circumstances in which the Board could refuse to hold a hearing on a complaint based on section 37. Therefore, the Board now has greater discretion in this respect and the Court must henceforth be more respectful of the Board's decisions about holding hearings, which was not the case prior to the statutory amendment of 1998. This is a matter of internal policy that is beyond the scope of judicial review barring exceptional circumstances.
[5] The Canada Industrial Relations Board Regulations, 2001 (SOR/2001-520), further provides as follows, at section 10:
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Applications
10. An application filed with the Board must include the following information:
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Demandes
10. Toute demande auprès du Conseil comporte les renseignements suivants :
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(a) the name, address and telephone and fax numbers of the applicant and of the applicant's counsel or representative, if applicable;
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a) les nom, adresse et numéros de téléphone et de télécopieur du demandeur et de son avocat ou de son représentant, le cas échéant;
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(b) the name, address and telephone and fax numbers of any person who may be affected by the application;
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b) les nom, adresse et numéros de téléphone et de télécopieur de toute personne que la demande peut intéresser;
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(c) reference to the provision of the Code under which the application is being made;
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c) la disposition du Code en vertu de laquelle la demande est faite;
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(d) full particulars of the facts, of relevant dates and of grounds for the application;
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d) un exposé détaillé des faits, des dates pertinentes et des moyens invoqués à l'appui de la demande;
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(e) a copy of supporting documents;
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e) une copie des documents déposés à l'appui de la demande;
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(f) the date and description of any order or decision of the Board relating to the application;
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f) la date et le détail de toute ordonnance ou décision du Conseil qui a trait à la demande;
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(g) whether a hearing is being requested, and if so, the reasons for the request; and
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g) la mention qu'une audience est demandée et, le cas échéant, les motifs en justifiant la tenue;
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(h) a description of the order or decision sought.
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h) le détail de l'ordonnance ou de la décision demandée.
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[6] It is common ground that the applicants had not requested in their complaints that a hearing be held as required by paragraph (g) of section 10. The requests for hearing were, instead, made afterwards in response to the filing of the Board representative's report on June 17, 2002. The union's counsel was, in my opinion, correct not to argue that a request for hearing should necessarily have been made at the time that the complaints were filed. He argues, rather, that once the request for hearing has been made, it must satisfy the requirements of section 10 so that the Board can exercise its discretion judiciously. In this case it is undisputed that the requests for hearing were formulated in a general fashion and did not include, inter alia, "full particulars of the facts, of relevant dates and of grounds" as required by paragraph (d) of section 10. In the opinion of the union's counsel, the principles of natural justice are meant to ensure that a party has the opportunity to present its point of view. This opportunity was present in this case and the applicants failed to avail themselves of it in a timely manner.
[7] There is no doubt that the Board could have at least acknowledged receipt of the requests for hearing as a matter of courtesy even if they were incomplete. There is also no doubt that it could have refused them immediately or suggested that the applicants flesh them out. But there is no doubt, either, that the Board did not have an obligation to make an immediate determination on the requests for hearing, that it did not have an obligation to give the applicants a second chance to explain the grounds of the said requests and that it was free to make a determination on the requests for hearing and on the merits of the complaints at the same time. Contrary to what happened in Bunge du Canada Ltée v. Canadian Union of Public Employees, Local 3711, (1995) 181 N.R. 382 (F.C.A.), in this case the Board never undertook to hold a hearing.
[8] The applicants knew or should have known that they did not have the right to demand that a hearing be held and that the Board could very well make its decision at any time without holding a hearing. It fell to the applicants to satisfy the Board that a hearing was necessary. The applicants' only argument was that they had important and complex evidence to submit. At no time did they inform the Board of the nature of this evidence. Basically, they are asking this Court to require the Board to give a second chance to a party that did not discharge its burden to explain why a hearing should be granted.
[9] The Board certainly did not express itself in the most pleasant manner, but this should not cause us to lose sight of the substance of the case: not giving a second chance to a party to give its point of view when the party did not take advantage of the first opportunity to do so does not amount to a breach of the principles of natural justice.
[10] I would dismiss the application for judicial review with costs.
"Robert Décary"
J.A.
"I concur.
Marc Noël, J.A."
"I concur.
Marc Nadon, J.A."
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-686-02
(JUDICIAL REVIEW OF A DECISION BY THE CANADA INDUSTRIAL RELATIONS BOARD IN A LETTER DATED NOVEMBER 21, 2002, DOCKETS 21022-C TO 22544-C)
STYLE OF CAUSE: DANIEL RAYMOND ET AL.
and
CANADIAN UNION OF POSTAL WORKERS ET AL.
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 5, 2003
REASONS FOR JUDGMENT: DÉCARY J.A.
CONCURRED IN BY: NOËL J.A., NADON J.A.
DATE OF REASONS: November 7, 2003
APPEARANCES:
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Philippe Garceau
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FOR THE APPLICANTS
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Luc Jodoin
Bernard Philion
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FOR THE RESPONDENT
Canada Post Corporation
FOR THE RESPONDENT
Canadian Union of Postal Workers
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SOLICITORS OF RECORD:
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BÉLANGER GARCEAU
Laval, Quebec
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FOR THE APPLICANTS
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JODOIN SANTERRE
Montréal, Quebec
MORENCY PHILION LEBLANC
Montréal, Québec
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FOR THE RESPONDENT
Canada Post Corporation
FOR THE RESPONDENT
Canadian Union of Postal Workers
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