Date: 20040723
Docket: A-327-04
Citation: 2004 FCA 268
Present: ROTHSTEIN J.A.
BETWEEN:
TÉLÉ-MOBILE COMPANY / SOCIÉTÉ TÉLÉ-MOBILE, TM MOBILE INC.
and ROSELLA TANJA LIBERATI
Applicants
and
TELECOMMUNICATIONS WORKERS UNION,
SYNDICAT DES AGENTS DE MAÎTRISE DE TELUS, LOCAL 5144 OF CUPE,
SYNDICAT QUÉBÉCOIS DES EMPLOYÉS DE TELUS, LOCAL 5044 OF CUPE
and TELUS COMMUNICATIONS INC.
Respondents
Heard at Vancouver, British Columbia, on July 19, 2004.
Order delivered at Ottawa, Ontario, on July 23, 2004.
REASONS FOR ORDER BY: ROTHSTEIN J.A.
Date: 20040723
Docket: A-327-04
Citation: 2004 FCA 268
Present: ROTHSTEIN J.A.
BETWEEN:
TÉLÉ-MOBILE COMPANY / SOCIÉTÉ TÉLÉ-MOBILE, TM MOBILE INC.
and ROSELLA TANJA LIBERATI
Applicants
and
TELECOMMUNICATIONS WORKERS UNION,
SYNDICAT DES AGENTS DE MAÎTRISE DE TELUS, LOCAL 5144 OF CUPE, SYNDICAT QUÉBÉCOIS DES EMPLOYÉS DE TELUS,
LOCAL 5044 OF CUPE and TELUS COMMUNICATIONS INC.
Respondents
REASONS FOR ORDER
ROTHSTEIN J.A.
[1] Two motions for a stay of Letter Decision No. 1088 and two motions for a stay of Decision No. 278 of the Canada Industrial Relations Board (the "Board"), pending determination of applications for judicial review of those decisions by this Court, were consolidated by Orders of this Court dated July 19, 2004. Letter Decision No. 1088 is a summary of Decision No. 278. Although TELUS Communications Inc. ("TCI") is a respondent in the active file, it will be referred to as an applicant in these reasons.
FACTS LEADING TO BOARD DECISIONS
[2] As a consequence of the 1999 merger of the former regional telephone companies in British Columbia and Alberta, TCI was established. At that time, TCI mainly had operations in British Columbia and Alberta. In the spring of 2000, the employees in those provinces participated in a vote to choose between two unions. The employees selected the Telecommunications Workers Union ("TWU") as the union for TCI.
[3] Also in 2000, a dispute arose concerning the appropriate bargaining unit description for those employees of TCI that were to be represented by the TWU. By Decision 108, dated February 9, 2001, the Board directed that the bargaining unit description for TCI would "not contain any geographic description, but shall, by inference, incorporate potentially all of Telus' Canadian operations." It also directed that as "existing operations expand eastward and are incorporated into the existing corporate structures, they are to be included in the single bargaining unit."
[4] However, the Board noted that "acquisitions, as opposed to business expansions, are a different matter and are to be treated as such". The Board held that it "was not provided with sufficient evidence to make any determination about recent or planned acquisitions" and so "until such time as the Board orders otherwise, such acquisitions are not automatically included in the single bargaining unit description adopted and approved by the Board."
[5] In June 2000, TCI's parent company (TELUS Corporation), acquired seventy percent of QuébecTel Group Inc.. The acquisition of QuébecTel included QuébecTel Mobilité, which provides wireless service. The employees of QuébecTel Mobilité were represented by the Syndicat des employés d'exécution de Québec-Téléphone, CUPE, Local 5044 and the Syndicat des agents de maîtrise de Québec-Téléphone, CUPE, Local 5144 (collectively, the "Québec unions").
[6] In October 2000, TELUS Corporation acquired the national digital wireless company, Clearnet Communications Inc. The employees of Clearnet were not unionized.
[7] Soon afterward, a national wireless communications partnership called TELE-MOBILE COMPANY / SOCIÉTÉ TÉLÉ-MOBILE, carrying on business as TELUS Mobility (hereinafter "TELUS Mobility"), acquired these wireless businesses (QuébecTel Mobilité and Clearnet). It also acquired the wireless business in Alberta and British Columbia. The employees in the Alberta and B.C. wireless business were represented by the TWU.
[8] The successorship provisions of the Canada Labour Code, R.S.C. 1985, c. L-2 as amended (the "Code") applied to this situation. Under those provisions, the former collective bargaining relationships continued in the successor entity, in this case TELUS Mobility. As a result:
(a) those employees of TELUS Mobility who were formerly with the wireless business in British Columbia and who were represented by the TWU were still represented by the TWU;
(b) those employees of TELUS Mobility who were formerly with QuébecTel Mobilité and who were represented by the Québec unions were still represented by them;
(c) those employees of TELUS Mobility who were formerly with Clearnet and who were not represented by a union remained unrepresented.
[9] On March 27, 2001, the TWU applied to the Board seeking an order allowing the TWU not only to represent employees in B.C. and Alberta, but also the employees of TELUS Mobility east of B.C. and Alberta, primarily in Ontario and Québec.
[10] On May 21, 2004, the majority of a panel of the Board released a summary of its decision (Letter Decision No. 1088). One member of the panel dissented but no summary of the dissenting decision was released. On June 24, 2004, the majority released its full reasons in Decision No. 278. The dissenting reasons are expected to be released on or about July 23, 2004.
[11] The applicants say that the majority of the Board, relying heavily on its prior Decision No. 108, substantially granted the TWU's application. The Board declined to order a representation vote of any of the affected employees, both unionized and non-unionized.
[12] The applicants submit that the Board's decisions have four main effects that will cause them to suffer irreparable harm:
(a) The non-unionized employees of TELUS Mobility are now represented by a union - and a particular union, the TWU - whether they like it or not;
(b) Unionized employees represented by the Québec unions will be represented by a particular union not chosen by them;
(c) Because the Board declined to order a representation vote, TELUS Mobility and TCI were never able to speak with the employees about this issue; and
(d) The Board declared TELUS Mobility and TCI to be a single employer. As a result, the TWU believes that TELUS Mobility became subject to particular Board orders that were previously made against TCI , including an order (Decision No. 271) preventing TCI from communicating with its employees concerning labour relations and requiring TCI to offer binding interest arbitration to the TWU rather than negotiate a collective agreement. As a result, TELUS Mobility, for reasons that do not involve it, is not able to communicate or negotiate with its employees on a number of subjects while the TWU is able to communicate with the employees in an unrestricted fashion. The applicants say that this inability to communicate is causing turmoil in the workplace and may affect any representation votes that may be ordered as a result of this judicial review.
ANALYSIS
[13] I will address the three branches of the test for granting a stay in turn:
Serious Issue
[14] The applicants say that the Board failed to take into account relevant considerations in rendering its decision. In particular, it failed to take into account the rights of unionized employees to choose their union and, in the case of non-unionized employees, to decide whether or not to have a union. In forcing employees to associate with a union not of their choice, the Board violated the employees' freedom of association and freedom of expression under paragraphs 2(d) and 2(b) of the Charter of Rights and Freedoms. The applicants say that they have standing to raise these arguments.
[15] The respondents assert there is no Charter right that protects choices of bargaining agents. They also say the applicants lack standing to advance the Charter arguments.
[16] The applicants respond that in its exercise of discretion, the Board must act in a manner consistent with the Charter and that it has failed to do so in this case. They also cite authority to support their standing argument.
[17] In RJR-Macdonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, the Supreme Court of Canada has instructed trial and appellate courts on the assessment of a serious question to be tried. The threshold is low. Once satisfied that the application is neither frivolous nor vexatious, the motions judge should proceed to consider irreparable harm and balance of convenience. A prolonged enquiry into the merits is neither necessary nor desirable (page 337).
[18] I have set out my understanding of some of the arguments of the parties. I make no comment on the strength of either side's position, other than to say that, in my opinion, the applicants' arguments are not frivolous or vexatious. In addition, I would observe that the majority of the Board has taken over one year to render a decision of some 115 pages and that a dissenting opinion is expected to be issued shortly. I am satisfied that the applicants have satisfied the serious issue branch of the test.
Irreparable Harm
[19] The applicants assert a number of irreparable harms which they allege they will suffer should the stay they seek not be granted:
1. Disclosure of Confidential Employee Information
[20] The TWU has requested that the applicants provide the names, addresses, contact numbers, classification and work location of all employees the TWU claims are included in its bargaining unit. The applicants say this information is confidential. Should they be successful in this judicial review, the information will not have to be provided. They argue that once provided, the confidentiality of the information will be lost and that this will constitute irreparable harm.
[21] I agree that once confidential information is disclosed, the loss of confidentiality may constitute irreparable harm. However, I do not think that this is an argument that can be made by the applicants. It is their employees' confidentiality that is at stake and it is the employees who may suffer harm if disclosure is made.
[22] The applicants say that the employees are in a "catch-22" situation. If they come forward as parties in the stay application, as did Ms. Liberati, the information they seek to keep confidential will be disclosed. If they do not participate in the stay application, they cannot assert their irreparable harm argument.
[23] I do not accord significant weight to the "catch-22" argument. There may be ways of maintaining confidentiality but still asserting a position in a judicial review. For example, the courts are familiar with cases in which initials are used to maintain the confidentiality of individuals' personal information.
[24] In any case, the issue here is irreparable harm to the applicants. Unless they can demonstrate that the disclosure of the employees' information will cause them to suffer irreparable harm, I do not see that the argument avails to their benefit.
[25] On that point, the applicants say that the morale of their employees will be affected if this confidential information is disclosed. They say that some employees have quit because of the Board's decisions in this case and that disclosure of information may cause others to quit. They say that the Court may infer that morale will be adversely affected if the information is disclosed. The TWU says that some employees want the TWU to represent them and presumably have no difficulty with disclosure of their confidential information.
[26] I agree that if disclosure of confidential information adversely affects the morale of employees, the applicants will be directly affected. However, the evidence before me is conflicting. Moreover, while I accept that the morale of some employees will be adversely affected, the applicant's evidence deals more with the overall effects of unionization, rather than the impact of disclosing confidential information.
[27] For these reasons, I am unable to find that the disclosure of confidential information that may occur will cause the applicants irreparable harm.
2. Loss of Entrepreneurial Working Environment
[28] The applicants say that they are the first wireless providers to be unionized. They say employees who are attracted by an entrepreneurial non-union environment will quit.
[29] I have no reason to dispute what the applicants say. However, I have insufficient evidence to determine how many employees will leave and how their leaving will impact the applicants. The allegation that is made is too general for me to conclude that in the period prior to a determination of the judicial review in this case, the applicants will suffer irreparable harm from employees quitting because of the advent of the TWU.
3. Implementation Costs
[30] The applicants say that unless a stay is ordered, they will incur costs to implement the collective agreement that will not be recoverable should their judicial review be successful.
[31] However, it appears there is a dispute between the parties as to the precise nature of the collective agreement that is to apply to the Eastern employees. Counsel for both the applicants and respondents indicate that some type of proceeding before the Board will likely be required in order to determine this issue. Before this dispute is settled, it is not yet clear to what extent the applicants will incur significant implementation costs.
[32] Nonetheless, the applicants say that the proceeding required before the Board to determine the nature of the collective agreement that is to apply to the Eastern employees will result in costs being incurred that they cannot recover if the judicial review is successful. While I accept that some costs may be incurred, again, I have no specific information as to the extent of the costs. I acknowledge that irreparable harm is concerned with the nature of the harm rather than its magnitude. However, in the context of the proceedings that have gone on between these parties, I have insufficient information upon which to determine the significance of the unrecoverable costs that the applicants say will be incurred. I am therefore unable to accord this argument substantial weight.
4. Unrecoverable Wages and Benefits
[33] The applicants say that if they provide wages or benefits to employees by reason of the Board's decision, there is no practical way to recover such amounts paid, especially if the recipients are no longer employees of TELUS Mobility.
[34] There is no evidence before me that the affected employees have been paid higher wages or benefits as a result of the Board's order. If the parties are presently disputing the terms of the collective agreement that is applicable to the Eastern employees under the Board's decision, I have serious doubts that the applicants are paying such increased amounts at this time. Therefore any harm on this account is not yet imminent.
5. Disruption of the Workplace
[35] The applicants say that under the Board's order, the TWU can enter onto the applicants' premises and require the applicants to give employees time off work for union purposes. The result, they say, is disruption in the workplace.
[36] Again, I find these allegations somewhat general in nature. The evidence has not convinced me that the disruption caused by the advent of a union has as yet risen to the level of irreparable harm. The allegation is therefore premature.
6. Communications with Employees
[37] The one argument relating to irreparable harm which I find compelling relates to whether the applicants may speak to the affected employees "concerning labour negotiations, the union's strike vote and labour relations issues."
[38] Ordinarily, TELUS Mobility management would be able to speak with its employees to the extent permitted by paragraph 94(2)(c) of the Code. However, in its decision dated April 8, 2004, which arose out of a complaint by the TWU in respect of employees in British Columbia and Alberta that TCI was engaging in communications with bargaining unit employees in violation of paragraph 94(1)(a) of the Code, the Board found in favour of the TWU.
[39] As a result, it ordered TCI to "immediately cease and desist from interfering in the union's representation rights" and "immediately cease communicating with bargaining unit employees on matters of employment and collective interest ... until the conditions of article 89 of the Code have been fulfilled." The parties subsequently agreed that the Board's order should be interpreted to prohibit communications "concerning labour negotiations, the union's strike vote and labour relations issues."
[40] The decision subject to judicial review declares that TCI and TELUS Mobility are a single employer. As a result, it appears that the order requiring TCI to cease and desist from communicating with employees about labour relations issues applies to TELUS Mobility in respect of the Eastern employees.
[41] The result is that, on labour relations issues, the TWU can communicate with the Eastern employees while TELUS Mobility cannot.
[42] The applicants say this causes them irreparable harm because:
(a) their employees believe that the employer is hiding something. As a result, morale is adversely affected; and
(b) if this judicial review is successful, and there is ultimately a representational vote, the TWU will have had an unfair advantage in communicating with the Eastern employees.
[43] The TWU says that it was TCI's actions that gave rise to the cease and desist order. That may be so, but the circumstances did not involve the Eastern employees. I accept that if TELUS Mobility is prevented from speaking to its employees during this time of anticipated substantial change, it will suffer irreparable harm. I do not think that the TWU's response adequately addresses the irreparable harm alleged by the applicants.
[44] I must assume that any communications with employees will not be in violation of the Code. Such a violation would entitle the TWU to complain to the Board. Moreover, a senior officer of TELUS Mobility has represented to this Court under oath that "any company communication will be of a purely informational nature and will comply in all respects with the speech permitted and the restrictions imposed in s. 92(2)(c) [sic] of the Canada Labour Code." As there is no paragraph 92(2)(c), I assume from the context that the officer was referring to the relevant provision, paragraph 94(2)(c) of the Canada Labour Code. Any violation of this representation could constitute contempt.
7. Summary of Irreparable Harm
[45] I conclude that the applicants will suffer irreparable harm if they are unable to communicate with the Eastern employees on labour relations issues pending determination of the judicial review of the Board's decisions.
[46] I accept that the costs incurred in proceedings before the Board to determine the nature of the collective agreement applicable to the Eastern employees will be unrecoverable and therefore will constitute irreparable harm but I accord little weight to this harm.
[47] In all other respects, the applicants have not persuaded me that they will suffer irreparable harm if a stay is not granted at this time. Therefore it is not necessary to consider these points in assessing the balance of convenience.
Balance of Convenience
[48] The applicants say that the balance of convenience favours granting a stay. They say that the TWU's application to the Board was made in March 2001 and that it took the Board over three years to issues its decision. The period during which a stay would apply will be relatively short in comparison. On the other hand, the TWU asserts that the granting of a stay will harm existing bargaining unit members, will cause political damage to the TWU, and will result in loss of representational rights of the Eastern employees.
[49] In respect of the applicant's unrecoverable costs, the balance of convenience favours the TWU. However, none of the TWU's arguments addresses the balance of convenience in respect of the prohibition against the applicants communicating with the Eastern employees. On this issue, I am of the view that the balance of convenience favours the applicants.
CONCLUSION
[50] I would grant the stay application only to the extent that TELUS Mobility shall not be required to comply with the prohibition on communications ordered by CIRB Decision No. 271 of April 8, 2004, in respect of communications with Eastern employees affected by Letter Decision No. 1088 and Board Decision No. 278. Such communications should comply with paragraph 94(2)(c) of the Canada Labour Code. In all other respects, the stay application should be dismissed, without prejudice to the applicants bringing a fresh application for stay, should they consider the circumstances to have changed so as to render irreparable harm imminent, thereby warranting such an application. Costs should be in the cause.
"Marshall Rothstein"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-327-04
STYLE OF CAUSE: TÉLÉ-MOBILE COMPANY/SOCIÉTÉ TÉLÉ-
MOBILE, et al v.
Telecommunications Workers Union et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 19, 2004
REASONS FOR
JUDGMENT : ROTHSTEIN, J.A.
DATED: July 23, 2004
APPEARANCES:
Mr. Roy Filion FOR THE APPLICANT
Télé-Mobile Company
Mr. David Stratas FOR THE RESPONDENT,
Mr. Brian Burkett Telus Communications Inc.
Mr. Brad Elberg
Mr. Morley Shortt FOR THE RESPONDENT,
Ms. Patricia Dumaresq Telecommunications Workers Union
SOLICITORS OF RECORD:
Filion, Wakely, Thorup, Angeletti FOR THE APPLICANT,
Toronto, Ontario Télé-Mobile Company
Heenan Blaikie FOR THE RESPNDENT,
Toronto, Ontario Telus Communications Inc.
Shortt, Moore & Arsenault FOR THE RESPONDENT,
Vancouver, British Columbia Telecommunications Workers Union
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