Date: 20030718
Docket: A-273-03
Citation: 2003 FCA 308
Present: ROTHSTEIN J.A.
BETWEEN:
VIA RAIL CANADA INC.
Applicant
(Employer)
and
GEORGE CAIRNS
Respondents
(Employees)
and
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
Respondent
(Union)
and
CANADIAN NATIONAL RAILWAY COMPANY
Respondent
(Intervener)
and
UNITED TRANSPORTATION UNION
Respondent
(Intervener)
Heard at Ottawa, Ontario, on July 18, 2003.
Order delivered from the Bench at Ottawa, Ontario, on July 18, 2003.
REASONS FOR ORDER BY: ROTHSTEIN J.A.
Date: 20030718
Docket: A-273-03
Citation: 2003 FCA 308
Present: ROTHSTEIN J.A.
BETWEEN:
VIA RAIL CANADA INC.
Applicant
(Employer)
and
GEORGE CAIRNS
Respondents
(Employees)
and
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
Respondent
(Union)
and
CANADIAN NATIONAL RAILWAY COMPANY
Respondent
(Intervener)
and
UNITED TRANSPORTATION UNION
Respondent
(Intervener)
REASONS FOR ORDER
ROTHSTEIN J.A.
[1] This is a motion by VIA Rail Canada Inc. for an interim stay of Canada Industrial Relations Board Decision No. 230 dated May 15, 2003, pending a hearing to stay Decision No. 230, pending judicial review of that decision.
[2] The CIRB makes a preliminary objection to the Court's jurisdiction to decide the interim stay application. The Board relies on section 22 of the Canada Labour Code, R.S.C. 1985, c. L-2. Section 22 provides:
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22. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Court Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
(1.1) The Board has standing to appear in proceedings referred to in subsection (1) for the purpose of making submissions regarding the standard of review to be used with respect to decisions of the Board and the Board's jurisdiction, policies and procedures.
(2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall
(a) be questioned, reviewed, prohibited or restrained, or
(b) be made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise,
on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.
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22. (1) Sous réserve des autres dispositions de la présente partie, les ordonnances ou les décisions du Conseil sont définitives et ne sont susceptibles de contestation ou de révision par voie judiciaire que pour les motifs visés aux alinéas 18.1(4)a), b) ou e) de la Loi sur la Cour fédérale et dans le cadre de cette loi.
(1.1) Le Conseil a qualité pour comparaître dans les procédures visées au paragraphe (1) pour présenter ses observations à l'égard de la norme de contrôle judiciaire applicable à ses décisions ou à l'égard de sa compétence, de ses procédures et de ses politiques.
(2) Sauf exception prévue au paragraphe (1), l'action - décision, ordonnance ou procédure - du Conseil, dans la mesure où elle est censée s'exercer dans le cadre de la présente partie, ne peut, pour quelque motif, y compris celui de l'excès de pouvoir ou de l'incompétence à une étape quelconque de la procédure_:
a) être contestée, révisée, empêchée ou limitée;b) faire l'objet d'un recours judiciaire, notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto.
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[3] I agree with the Board that section 22 is a strong privative clause. However, it does not oust the jurisdiction of this Court to decide applications for judicial review if the grounds referred to in paragraphs18.1(4)(a), (b) or (e) of the Federal Court Act, R.S.C. 1985, c. F-7 are applicable.
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18.1(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
...
(e) acted, or failed to act, by reason of fraud or perjured evidence;
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18.1(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_:
a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer;
b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;
...
e) a agi ou omis d'agir en raison d'une fraude ou de faux témoignages;
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If the Court may decide a judicial review based on those grounds, it must follow that it has jurisdiction to grant a stay pending the judicial review or, if necessary, an interim stay.
[4] The Board says Decision No. 230 contains an ongoing process and remedies and this affects the Court's jurisdiction. The Board undoubtedly may retain jurisdiction over an ongoing process before it. But, by providing for an ongoing process, the Board does not deprive the Court of jurisdiction to grant a stay of its decision. The Court's jurisdiction under paragraph 18.1(4)(a) of the Federal Court Act is to consider questions of the Board's jurisdiction to make the decision under review. If the Board is without jurisdiction to have made the decision under review, the fact there may be an ongoing process does not save the decision by precluding the Court from dealing with it.
[5] The Board submits that subsection 22(2) limits the Court to considering only whether the Board acted without jurisdiction and not to whether it acted beyond jurisdiction or refused to exercise its jurisdiction as these terms are used in paragraph 18.1(4)(a) of the Federal Court Act. However, subsection 22(2) of the Code commences with the words "Except as permitted by subsection (1)" and subsection (1) refers to paragraph 18.1(4)(a) without exception. Subsection 22(2) does not limit the Court's consideration of any aspect of paragraph 18.1(4)(a) of the Federal Court Act as it pertains to decisions of the Board.
[6] The Board says that because section 22 of the Code is a privative clause, this indicates that it is in the public interest that the Board not be constrained by interference from the Court in the form of a stay of its decisions. Every public board is assumed to act in the public interest. And privative clauses that require the Court to grant deference to a tribunal also reflect Parliament's view of the public interest. But the words of the privative clauses must be considered. In this case section 22 of the Code does not oust the jurisdiction of this Court to consider a judicial review on the grounds in paragraphs 18.1(4)(a), (b) and (e) of the Federal Court Act. And as earlier stated, if the Court may consider the judicial review, it may also consider a stay pending the judicial review.
[7] The Board says that the serious issue test, which is one of the requirements to be met for the granting of a stay, is insufficient in considering whether to stay a decision of the Board. The Board submits that such a low threshold enables an applicant to do "an end run" around the high patent unreasonability standard of deference generally to be applied on judicial review by the Court.
[8] The Board provides no authority in support of this argument. In my respectful opinion, the Board is conflating the standard of review on the judicial review and the test for the granting of a stay. On the judicial review, the Court must determine the standard of review according to the pragmatic and functional analysis. See Pushpanathan v. Canada (MCI), [1998] 1 S.C.R. 982. However on the stay application, the Court is not deciding the judicial review and does not engage in a pragmatic and functional analysis of the standard of review.
[9] On an application for a stay, an applicant must satisfy the Court that there is a serious issue, that it will suffer irreparable harm if the stay is not granted, and that the balance of convenience favours it, see RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, and Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110. It is true that the serious issue threshold is low. But that does not mean that a stay is easily obtained. An applicant must still satisfy the irreparable harm test and that is a difficult hurdle to overcome. These tests for a stay apply to stays of decisions of the CIRB.
[10] Finally, the Board argued that VIA had an adequate alternative remedy, in that it could return to the Board to obtain a recision or variation of Decision No. 230. Whether a return to the Board is an adequate alternative remedy in this case need not be decided now. All that need be said is that the question of adequate alternative remedy is one for the exercise of discretion by the Court. It does not go to the Court's jurisdiction to decide the stay application.
[11] For all these reasons, I would dismiss the Board's preliminary objection.
[12] I turn to the interim stay application. The applicant has raised issues of the Board's jurisdiction and whether the Board breached its duty of procedural fairness or natural justice in making Decision No. 230. It is not necessary to dwell on this issue. I am satisfied the questions are not frivolous or vexatious. The serious issue test is met.
[13] As to irreparable harm, it is important to note that what is being sought today is an interim stay for a period of less than one month until a stay pending judicial review will be heard. Today, the Court has heard extensive argument as to the effect of Decision No. 230 on seniority rights of different groups of employees, the question of labour strife as a result of Decision No. 230 and unrecoverable costs that may be incurred by VIA.
[14] The Court has also heard argument as to the possible disruption of schedules and, because Canadian National Railway Company is of the view that Decision No. 230 suspends the operation of a Transfer Agreement between CN and VIA involving the opportunity of CN employees to bid for VIA positions, that some VIA employees are working longer hours than they otherwise might.
[15] I do not minimize these concerns. However, I have not been satisfied, in the context of a period of less than one month, that is, the time before which the Court will hear the application for stay pending judicial review on more complete evidence, that they constitute evidence of harm sufficient to justify an interim stay.
[16] As it is necessary for an applicant to satisfy all three tests for a stay and as the irreparable harm test has not been satisfied for purposes of the interim stay, it is unnecessary to deal with the balance of convenience.
[17] I would dismiss the application for interim stay. Costs shall be in the cause.
"Marshall Rothstein"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-273-03
STYLE OF CAUSE: Via Rail Canada Inc. v. George Cairns et al.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: July 18, 2003
REASONS FOR ORDER BY: Rothstein J.A.
RENDERED FROM THE BENCH BY: Rothstein J.A.
APPEARANCES:
Mr. John A. Campion
Mr. Robert Cooper
Mr. Jean Lafleur, Q.C.
Ms. Louise Béchamp FOR THE APPLICANT
Mr. Michael Church FOR THE RESPONDENTS CAIRNS and UTU
Mr. Graham Jones FOR THE RESPONDENT BLE
Mr. John Coleman FOR THE RESPONDENT CANADIAN NATIONAL RAILWAY COMPANY
Ms. Pascale-Sonia Roy
Ms. Susan Nicholas FOR THE CIRB
SOLICITORS OF RECORD:
Fasken Martineau DuMoulin LLP
Toronto, Ontario
Montreal, Quebec FOR THE APPLICANT
Caley Wray
Toronto, Ontario FOR THE RESPONDENTS CAIRNS and UTU
Shields & Hunt
Ottawa, Ontario FOR THE RESPONDENT BLE
Ogilvy Renault S.E.N.C.
Montreal, Quebec FOR THE RESPONDENT CANADIAN NATIONAL RAILWAY COMPANY
Canada Industrial Relations Board
Ottawa, Ontario FOR THE CIRB
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