Date: 20040224
Docket: A-507-02
Citation: 2004 FCA 78
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
EVANS J.A.
BETWEEN:
GLOBAL TELEVISION
(Global Lethbridge, a Division of
CanWest Global Communication Corp.)
Applicant
and
COMMUNICATIONS, ENERGY AND
PAPERWORKERS UNION OF CANADA
Respondent
Heard at Vancouver, British Columbia on February 23 and 24, 2004.
Judgment delivered from the Bench at Vancouver, British Columbia on February 24, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20040224
Docket: A-507-02
Citation: 2004 FCA 78
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
EVANS J.A.
BETWEEN:
GLOBAL TELEVISION
(Global Lethbridge, a Division of
CanWest Global Communication Corp.)
Applicant
and
COMMUNICATIONS, ENERGY AND
PAPERWORKERS UNION OF CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia on February 24, 2004)
EVANS J.A.
A. INTRODUCTION
[1] We have before us three applications for judicial review to set aside orders of the Canadian Industrial Relations Board ("the Board") arising from two complaints by the Communications, Energy and Paperworkers Union of Canada ("CEP") that Global Television (Global Lethbridge, a Division of CanWest Global Communications Corporation) ("CISA-TV"), had breached the duty to bargain in good faith contrary to paragraph 50(a) of the Canada Labour Code, R.S.C. 1985, c. L-2. CEP is a national union which also represents employees who work at other divisions of CanWest Global.
[2] The first complaint alleged that, in its final proposal for a new collective agreement, the employer had insisted that the "no strike" clause in Article 13 of the expired collective agreement be widened to include the following provision in Article 13.1: "The union will not ... engage in any activity which is intended to or does adversely affect the interests of CISA-TV during the term of the agreement." This provision has been referred to in this proceeding as the "no harm" clause.
[3] The second complaint of bad faith bargaining concerned CISA-TV's withdrawal of its final proposal, without notice to the union, when it received the initial order of the Board upholding CEP's first complaint of bad faith bargaining and declaring the above quoted words to be unenforceable.
[4] The Board issued three orders, each of which is the subject of a separate application for judicial review by CISA-TV. First, the Board held that the proposed "no harm" clause was too broad, was contrary to the policy of the Code, and was therefore unenforceable. It was a breach of the duty of good faith for the employer to insist on it to the point of impasse. This is the subject of the application for judicial review in Court file A-744-01.
[5] Second, in order to remedy CISA-TV's bad faith bargaining in breach of the Code, the Board ordered that members of the bargaining unit could ratify the employer's final proposal, even though the Board had found that the disputed words in Article 13.1 were unenforceable. CISA-TV says that it had only ever intended to offer the other terms of the proposal as part of a collective agreement that included a "no harm" clause.
[6] Counsel indicated that the remedy was the motivating factor in CISA-TV's decision to bring these applications for judicial review. CISA-TV regards the Board's remedy as a very serious erosion of the cornerstone principle of the Code, namely that, save in the most exceptional circumstances, the Board should not impose, by way of a remedy for a breach of the Code, terms of a collective agreement different from those to which the party in breach had agreed to be bound. CISA-TV challenges the validity of the remedy in Court file A-745-01.
[7] The Board issued the first order on November 28, 2001, and the remedial order on December 10, 2001. The Board's reasons for both orders were issued on December 10, 2001, as CIRB Letter Decision 563.
[8] Third, at the request of CISA-TV, the Board reconsidered Decision 563. It did not hold an oral hearing and requested that the parties submit copies of other collective agreements to enable it to determine whether, as the Board had found in Decision 563, the "no harm" clause was out of line with prevailing industry norms. In CIRB Decision 187, dated August 12, 2002, a differently constituted panel of the Board reconsidered and confirmed Decision 563. Decision 187 is challenged in Court file A-507-02.
[9] We are not persuaded that the Board committed a reviewable error in any of the three orders under review. The applications for judicial review, which we heard together, will consequently be dismissed. Our reasons for dismissing all three applications are contained in a single set of reasons rendered in connection with Court file A-507-02. A copy of these reasons will be placed in the other two files.
B. ISSUES AND ANALYSIS
Issue 1: What is the standard of review applicable to determining whether the Board exceeded its jurisdiction when it found that CISA-TV had breached its statutory duty to bargain in good faith?
[10] Counsel for CISA-TV argued that whether the facts found by the Board constituted bargaining in bad faith in breach of paragraph 50(a) is a "jurisdictional" question on which the Board had to be correct if its decision is to stand. The finding of bad faith, counsel says, is the "trigger" that enables the Board to exercise its jurisdiction grant a remedy.
[11] We do not agree. Counsel's argument fails to recognize that the language of jurisdiction has been largely superseded in judicial review proceedings. In contemporary administrative law, the key question is always the standard of review applicable to the question on which the Board is alleged to have erred, as determined on the basis of a pragmatic and functional analysis: see Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 247, 2003 SCC 19">2003 SCC 19, at paras. 24-25.
[12] Nonetheless, counsel submitted that, even on a pragmatic and functional analysis, correctness is the applicable standard of review here since section 22 of the Canada Labour Code is not a true privative clause. This is because, he said, subsection 22(1) expressly provides that the privative provisions in section 22 do not preclude this Court from reviewing decisions of the Board for lack or excess of jurisdiction, breach of the duty of fairness, and fraud or perjury, as provided by the grounds of review contained in paragraphs 18.1(4)(a), (b) and (e) of the Federal Courts Act, R.S.C. 1985, c. F-7.
[13] Counsel said that Parliament's express retention of limited grounds of review makes section 22 more akin to a statutory right of appeal than to a privative clause. On the pragmatic and functional approach, counsel argued, the existence of a right of appeal is an indicator of a legislative intent that reviewing courts should exercise closer surveillance over an agency's decisions by applying the correctness standard.
[14] In our opinion, there is no merit in this argument. First, it elevates form over substance. The specified statutory grounds on which decisions of the Board may be reviewed in this Court are much the same as those on which courts in the provinces review decisions of provincial labour relations boards when they are protected by the familiar statutory cluster of strong privative provisions. Nothing turns on the fact that judicial review of the Board in this Court, a statutory court, rests on express statutory language, rather than, as in the case of provincial boards, on the common law of judicial review and the judicial interpretation of preclusive clauses, backed by the constitutional guarantee of a right to the judicial review of the proceedings of administrative agencies for excess or lack of jurisdiction, and breach of the duty of fairness.
[15] Second, the Supreme Court of Canada has always treated section 22 as a privative clause and, hence, as a pragmatic and functional factor militating in favour of a high degree of judicial deference. Indeed, despite their disagreement in Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, on the validity of the remedy issued by the Board in that case, the Court was unanimously of the view that patent unreasonableness was the standard for determining whether the Board had exceeded its jurisdiction in finding that the employer had violated paragraph 50(a) of the Code.
[16] Third, whether an agency's constitutive statute contains a privative clause or a right of appeal is only one indicium of legislative intent on the standard of review. More important factors in the pragmatic and functional approach are the scope of the expertise of the agency, the nature of the question in dispute, and whether the question falls within the expertise of the agency rather than that of the reviewing court. Counsel conceded that the Board is recognized as having a high degree of expertise in labour relations, that the questions in dispute in this case involve the application of the Code to the facts, and that they fall within the area of the Board's expertise. In our view, these considerations are strong indicators that Parliament intended to confine to the minimum the judicial review of Board decisions.
[17] For these reasons, we conclude that the Board's decision that CISA-TV was guilty of a breach of the duty to bargain in good faith is reviewable on a standard of patent unreasonableness.
Issue 2: Was it patently unreasonable for the Board in Decision 187 to find that CISA-TV had failed to bargain in good faith by insisting on the inclusion of the "no harm" clause in the final proposal?
[18] In our view, it was not patently unreasonable for the Board to conclude that, on the facts before it, including the evidence of industry norms provided by other collective agreements, the employer's conduct amounted to bargaining in bad faith. Counsel for CISA-TV acknowledged that the Board had correctly identified the relevant legal tests defining bad faith bargaining in the factual context of this case. He said, however, that the Board's conclusion was patently unreasonable because CEP had refused to discuss the proposed "no harm" clause, which differed only in degree, rather than in kind, from similar clauses found in other collective agreements in the industry.
[19] We do not agree. CEP was never the subject of a bad faith bargaining complaint by CISA-TV and, relying on its previous jurisprudence, the Board held that a party is not bound to discuss a term that is either illegal or, as the Board found here, contrary to public policy contained in the Code.
[20] As for the argument that the Board's conclusion was patently unreasonable on the basis of the evidence before it, we would note that the extent to which the "no harm" clause was out of line with industry norms is largely a question of drawing inferences based on a comparison of the clauses and their likely industrial relations impact, an exercise for which, because of its expertise, the Board is much better equipped than the Court. As counsel conceded in argument, he has a heavy burden to discharge in order to satisfy us that the Board's conclusion in this respect is patently unreasonable.
[21] In our view, the reconsideration Board's conclusion on this issue is far from being patently unreasonable. Thus, the Board stated in its reasons that, while the "no harm" clause might well have been directed at the same concerns as clauses in other collective agreements in the broadcasting industry, CISA-TV's clause was significantly broader in scope. The Board summarized its reasoning as follows (Decision 187, at para. 41):
At some point the inclusion of matters so broad in scope as to go well beyond such terms and conditions of employment and related matters may amount to bargaining in bad faith. While it may be possible to bargain such terms and conditions, it is not possible to bargain them to impasse.
Issue 3: Did the Board breach the duty of fairness in Decision 563, when it based its conclusion that CISA-TV had not bargained in good faith on a finding of fact for which there was no evidence before it?
Issue 4: Did the Board breach the duty of fairness in Decision 563 when it failed both to notify the parties and to invite submissions from them, before basing a finding of bad faith on the policy of the Code, rather than on the ground advanced in CEP's complaint?
[22] In our view, any alleged breach of the duty of fairness committed by the Board in Decision 563 was cured by the Board's reconsideration decision.
. Issue 5: Did the Board commit a breach of the duty of fairness when it refused CISA-TV's request that it hold an oral hearing on the reconsideration of Decision 563?
[23] Section 16.1 of the Code authorizes the Board to decide any matter before it without holding an oral hearing. Nonetheless, Parliament should not be presumed thereby to authorize a breach of the duty of fairness by permitting the Board to dispense with an oral hearing in circumstances where this would deny a party a reasonable opportunity to participate in the decision-making process.
[24] However, the function of the duty of fairness is to provide minimum, not optimal standards of procedural propriety. Hence, it is not sufficient for CISA-TV to argue that an oral hearing would have provided a more effective opportunity for it to make its case to the Board. Like other administrative agencies, the Board has limited resources which it must allocate by deciding when a hearing is warranted. It must also decide whether an oral hearing is so likely to improve the quality of the ultimate decision as to justify the delays typically associated with oral hearings.
[25] In our view, the issues decided by the Board in Decision 187 could be reliably decided on the basis of written evidence and submissions. Credibility, for instance, was not an issue in this case. Nor was the industry norms issue of such absolute centrality, or complexity, that the Board could not be expected to understand and adequately resolve it without oral evidence and argument. Indeed, when requesting the Board to hold an oral hearing, CISA-TV did not advise the Board that an oral hearing was essential if it was to be able to present its case effectively.
Issue 6: After the Board had found a breach of the duty to bargain in good faith, was it patently unreasonable for it to remedy the breach by permitting members of the bargaining unit to ratify the collective agreement without, or despite the unenforceability of, the "no harm" clause, when CISA-TV never intended that clause to be severable from the benefits contained in the rest of the agreement?
[26] Counsel for CISA-TV did not argue that the Board had misinterpreted its remedial powers by, for instance, taking into account legally irrelevant considerations, or exercising the powers for some statutorily impermissible purpose. Rather, he submitted that it was patently unreasonable for the Board in Decision 563 to have extended the date for ratification of the agreement contained in CISA-TV's final proposal, in the knowledge that the Board had found that the impugned words in the "no harm" clause were unenforceable as contrary to the Code. He argued that the Board should have permitted the parties an opportunity to attempt to reach an agreement on a form of words that both satisfied the Board's concern about the over-breadth of the clause and CISA-TV's concern to protect its economic interests which, it maintained, were implicated in the clause.
[27] We should note that, while upholding the Board's remedial order, the reconsideration Board seems to have been of the view that the first Board had ordered that the members of the bargaining unit be permitted to ratify the agreement, with the unenforceable provision excised. As we understand it, however, the first Board ordered the entire proposal to be put to the members for ratification, even though the disputed words in Article 13.1 would be unenforceable
[28] We do not think anything much turns on this apparent discrepancy. From CISA-TV's perspective, the result was the same: the members obtained the benefit of all the provisions of the agreement, including a retroactive pay incentive for early ratification, and the union was not bound by the offending words of the "no harm" clause.
[29] Counsel made three points in support of his client's position. First, the Board had known that CISA-TV had maintained that there was an economic linkage between Article 13.1, including the impugned provisions, and the benefits provided to the employees elsewhere in the agreement. In other words, since CISA-TV did not regard Article 13.1 as severable, the Board was forcing on CISA-TV terms of a collective bargain to which it had not agreed by permitting the employees to ratify the agreement, either without the impugned words or with them but, if the latter, in the knowledge that they were unenforceable.
[30] Second, in Royal Oak Mines, Lamer C.J. had emphasized that free collective bargaining is the dominant principle of labour relations law in Canada and that, while that principle may not be absolute, the Board should infringe it only in the most exceptional circumstances. Counsel for CISA-TV submitted that no such circumstances existed in the present case. Moreover, he argued, the Supreme Court's view that the imposition of terms is an exceptional remedy was not affected by the enactment of paragraph 99(1)(b.1), which Parliament added to the Code after the Board in Royal Oak Mines had found the employer guilty of bargaining in bad faith and, controversially, imposed on the parties terms of a collective agreement.
[31] Third, when making the remedial order in Decision 563, the Board had been aware of CISA-TV's willingness to go back to the bargaining table to renegotiate Article 13.1 by, perhaps, drawing on the more precise wording in the "no harm" clauses found in collective agreements to which other divisions of CanWest Global and CEP had been parties.
[32] We are not persuaded that the Board exercised its broad remedial discretion in a patently unreasonable manner. First, as the Board pointed out, CISA-TV had taken the position that members of the bargaining unit should be allowed to ratify the proposal, recognizing that there was a doubt over its validity, and that the union remained free to challenge the "no harm" clause if and when the employer sought to enforce it. Thus, the only change was that, following the Board's decision, any uncertainty over the enforceability of the clause had been resolved.
[33] Second, in Decision 563 the Board held that CISA-TV had committed a second breach of the duty to bargain in good faith when, on receipt of the Board's order on November 28, 2001, it withdrew its final proposal before the expiry of the early ratification date, November 30, 2001, thus purporting to deny employees of the benefit of retroactive wage increases. The Board said that CISA-TV should have given notice to the union of its intention to withdraw the proposed agreement.
[34] The reconsideration Board did not expressly confirm this second finding of bad faith bargaining, but it did not abrogate it either. In our view, since the Board had already upheld the first complaint against CISA-TV of bad faith bargaining, whether the withdrawal of the offer also constituted bargaining in bad faith is not critical to deciding if the remedy granted was patently unreasonable.
[35] However, the Board could reasonably have regarded the employer's conduct as relevant in determining whether to permit CISA-TV to attempt to renegotiate Article 13.1. It could have viewed the withdrawal as intended to deprive the employees of retroactive pay increases because their union had sought a ruling from the Board on the validity of the "no harm" clause. In these circumstances, it was not unreasonable for the Board to have concluded that it was inappropriate to order further negotiations.
[36] Third, the amendment to the Code adding paragraph 99(1)(b.1) undoubtedly strengthens the remedial position of the Board by affirming its authority to remedy breaches of the duty to bargain in good faith by requiring a party to include in or withdraw from a bargaining position specific terms, "if the Board considers that this order is necessary to remedy the contravention or counteract its effects".
[37] On this point, we start by noting that, if CISA-TV had not withdrawn its offer, the Board would not strictly have needed this power to make its order, because it was merely allowing members of the bargaining unit an opportunity to ratify CISA-TV's final proposal. To the extent that paragraph 99(1)(b.1) does apply, because the offer was withdrawn, we would observe that it is relevant as another point of reference when the Board considers the exercise of its broad "equitable" remedial power under subsection 99(2).
[38] In addition, paragraph 99(1)(b.1) contains its own definition of when the power may be exercised, namely, "if the Board considers that this order is necessary to remedy the contravention or counteract its effects". However, we need not decide for the purpose of this application to what extent the enactment of paragraph 99(1)(b.1) has superseded Royal Oak Mines in defining the circumstances in which it is appropriate to award this kind of remedy.
[39] We say only that, bearing in mind the breadth of the Board's remedial powers, the privative clauses and the importance of its labour relations expertise, we were not persuaded by counsel for the applicant that the Board's order bore no rational relationship to CISA-TV's breach of the Code and its effects, or that, in light of the facts of this case and the Code's protection of employees from unfair labour practices, the order violated the Code's commitment to free collective bargaining.
C. CONCLUSIONS
[40] For these reasons, the applications for judicial review will be dismissed with costs, but with only one set of costs for the hearing.
(Sgd.) "John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-507-02
STYLE OF CAUSE: Global Television v.
Communications, Energy and Paperworkers Union of Canada
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: February 23, 24, 2004
REASONS FOR JUDGMENT OF THE COURT: Décary J.A.
Létourneau J.A.
Evans J.A.
DELIVERED FROM THE BENCH BY: Evans J.A.
APPEARANCES:
|
Mr. Grant Stapon
|
FOR THE APPLICANT
|
|
Ms. Shona Moore,Q.C./Ms.M.Higgins
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
Vancouver, BC
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