Date: 20041021
Docket: A-1-04
Citation: 2004 FCA 357
CORAM: LINDEN J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
NIC PIETRANTONIO
Applicant
and
UNITED TRANSPORTATION UNION and
CANADIAN NATIONAL RAILWAY COMPANY
Respondents
Heard at Toronto, Ontario, on October 21, 2004.
Judgment delivered from the Bench at Toronto, Ontario, on October 21, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: LINDEN J.A.
Date: 20041021
Docket: A-1-04
Citation: 2004 FCA 357
CORAM: LINDEN J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
NIC PIETRANTONIO
Applicant
and
UNITED TRANSPORTATION UNION and
CANADIAN NATIONAL RAILWAY COMPANY
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on October 21, 2004)
LINDEN J.A.
[1] The applicant in this judicial review application complains that his union violated section 37 of the Canada Labour Code in that it failed to properly represent him in the aftermath of his termination from his position at C.N.R.
[2] The application challenges two decisions of the C.I.R.B., one dated August 13, 2004 and a reconsideration of that decision dated December 4, 2003, whereby the s. 37 complaint was dismissed.
[3] There were some problems raised in the facta and in argument about the timeliness in these proceedings but, in light of our view of the merits, there is no need to consider these issues here.
[4] Counsel have agreed that the standard of review in these matters is patent unreasonableness.
[5] In its initial decision, comprising 13 pages, the Board referred to and quoted from the two leading decisions governing s.37 cases (Canadian Merchant Service Guild v. Gagnon (1984), 9 D.L.R.(4th) 641 (S.C.C.) and David Coull (1992), 17 CLRBR (2d) 301. The Board then proceeded to apply those principles to the documentary evidence and concluded that the requirements of s.37 had been met, in that the Union "carefully considered the issue and the consequences [of the] termination".
[6] Although it was contended that the investigation conducted by the Union was cursory and, hence, "arbitrary", we have not been persuaded that the Board's reasoning and its treatment of the material in dismissing the application on this basis was patently unreasonable.
[7] As for the reconsideration decision, dated December 4, 2003, comprising 9 pages, the Board concluded that the Board, in its first decision, "did turn its mind to the substance of the grievance and carefully considered the issue..." Even if the Board in the first decision may not have dealt with every detail in the documentation, its decision cannot be considered as erroneous. The Board thought that the applicant in the reconsideration was merely attempting to reargue the case. We have not been persuaded that the reconsideration decision was patently unreasonable.
[8] Notwithstanding the able and thorough argument of Mr. Conn, we regret that this application must be dismissed with costs to the Union Respondent fixed at $500 inclusive of disbursements.
"A. M. Linden"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-1-04
STYLE OF CAUSE: NIC PIETRANTONIO
Applicant
and
UNITED TRANSPORTATION UNION and
CANADIAN NATIONAL RAILWAY COMPANY
Respondents
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 21 , 2004
REASONS FOR JUDGMENT
OF THE COURT: (LINDEN, SEXTON, SHARLOW JJ.A.)
DELIVERED FROM THE
BENCH BY: LINDEN J.A.
APPEARANCES:
David Conn FOR APPELLANT
Douglas Wray FOR RESPONDENT
United Transportation Union
William McMurray FOR RESPONDENT
Canadian National Railway Company
SOLICITORS OF RECORD:
ROSENBAUM & CONN LLP FOR APPELLANT
Barristers & Solicitors
Toronto Ontario
CALEY WRAY Labour Lawyers FOR RESPONDENT
Barristers & Solicitors United Transportation Union
Toronto, Ontario
Mr. William McMurray FOR RESPONDENT
Barristers & Solicitors
Montreal, Quebec Canadian National Railway Company
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