Bell Canada v. Communications, Energy and Paperworkers Union of Canada, 2004 FCA 429

Date: 20041214

Docket: A-150-03

Citation: 2004 FCA 429

CORAM:        LÉTOURNEAU J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

BELL CANADA

Applicant

and

COMMUNICATIONS, ENERGY AND PAPERWORKERS

UNION OF CANADA

                                                                                                                                        Respondent

                                      Heard at Toronto, Ontario, on December 14^th, 2004.

                 Judgment delivered from the Bench at Toronto, Ontario on December 14^th, 2004.

REASONS FOR JUDGMENT OF THE COURT BY:                                              SHARLOW J.A.

Date: 20041214

Docket: A-150-03

Citation: 2004 FCA 429

CORAM:        LÉTOURNEAU J.A.

SEXTON J.A.

SHARLOW J.A.

BETWEEN:

BELL CANADA

Applicant

and

COMMUNICATIONS, ENERGY AND PAPERWORKERS

UNION OF CANADA

                                                                                                                                        Respondent

                                     REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on December 14, 2004)

SHARLOW J.A.

[1]                Bell Canada seeks judicial review of a decision of the Canada Industrial Relations Board dated January 22, 2003 in Board File No. 22017-C. That decision upheld an unfair labour practice complaint against Bell Canada made by the respondent, the Communications, Energy and Paperworkers Union of Canada (CEP), that Bell Canada's implementation of a voluntary separation program interfered with CEP's representation of employees, in contravention of paragraph 94(1)(a) of the Canada Labour Code, R.S.C. 1985, c. L-2.

[2]                The application for judicial review and the memorandum of fact and law submitted by Bell Canada contained a number of arguments that have since been abandoned. It is now undisputed that the standard of review is patent unreasonableness. Bell Canada has also abandoned its arguments relating to alleged violations of natural justice.

[3]                The principal remaining argument by Bell Canada is that, in light of the history of dealings between Bell Canada and CEP, it was patently unreasonable for the Board to conclude that the proposed voluntary separation program that is the subject of CEP's complaint interferes with CEP's representation rights. The argument is that the Board incorrectly constrained its inquiry by failing to consider past voluntary separation programs offered by Bell Canada, and the failure of CEP to object to those programs.

[4]                We are unable to accept this argument. The Board's reasons establish to our satisfaction that the Board properly considered the past conduct of Bell Canada and CEP with respect to voluntary separation programs (see paragraphs 123 and 124 of the Board's reasons).

[5]                The Board's analysis takes into account, in a logical and coherent fashion, all of the relevant facts, including the lengthy history of the collective bargaining relationship between Bell Canada and CEP, the facts relating to various voluntary separation programs implemented by Bell Canada over many years, the position of CEP with respect to those past programs, the circumstances in which Bell Canada proposed the voluntary separation program in issue in this case, the position of CEP with respect to that voluntary separation program and the reasons for its position, and the aspects of the collective bargaining agreement that were or could be impacted by the proposed voluntary separation program. The Board focussed in particular on article 11 of the collective bargaining agreement, entitled "Force Adjustment", which deals with lay-off procedures involving 50 or more regular employees. There was evidence that Bell Canada was proposing to reduce its workforce at certain locations by 100 to 120 employees. Such a reduction could engage article 11, unless avoided by the implementation of the proposed voluntary separation program.

[6]                For these reasons, this application for judicial review will be dismissed with costs.

"Karen R. Sharlow"    

                                                                                                                                                      J.A.                            

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           A-150-03

STYLE OF CAUSE:               BELL CANADA

Applicant

and

COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA

Respondent

PLACE OF HEARING:                     TORONTO, ONTARIO

DATE OF HEARING:                       DECEMBER 14, 2004

REASONS FOR JUDGMENT

OF THE COURT:                               (LÉTOURNEAU, SEXTON, SHARLOW, J.J.A.)

DELIVERED FROM THE

BENCH BY:                                       SHARLOW J.A.                      

APPEARANCES:

Mr. David Strats

Mr. Douglas Gilbert                               FOR THE APPLICANT                                  

Mr. Douglas J. Wray

Mr. Micheil Russell                                FOR THE RESPONDENT

SOLICITORS OF RECORD:

HEENAN BLAIKIE

Barristers & Solicitors

Toronto, Ontario                                   FOR THE APPLICANT

CALEYWRAY

LABOUR LAWYERS

Toronto, Ontario                                   FOR THE RESPONDENT