Chalk River Technicians & Technologists v. Atomic Energy Canada Ltd., 2002 FCA 489

Date: 20021210

Docket: A-406-01

Neutral citation: 2002 FCA 489

CORAM:        LÉTOURNEAU J.A.

ROTHSTEIN J.A.

NADON J.A.

BETWEEN:

                              CHALK RIVER TECHNICIANS AND TECHNOLOGISTS

                                                                                                                                                       Applicant

                                                                                 and

                                          ATOMIC ENERGY OF CANADA LIMITED,

                              PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE

            OF CANADA (CHALK RIVER PROFESSIONAL EMPLOYEES GROUP) and

             CHALK RIVER NUCLEAR OPERATORS (POWER WORKERS' UNION,

                         CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 1000)

                                                                                                                                               Respondents

                                            Heard at Ottawa, Ontario, on October 23, 2002

                                Judgment delivered at Ottawa, Ontario, on December 10, 2002.

REASONS FOR JUDGMENT BY:                                                                                    NADON J.A.            

CONCURRED IN BY:                                                                                               LÉTOURNEAU J.A.

                                                                                                                                         ROTHSTEIN J.A.

Date: 20021210

Docket: A-406-01

Neutral citation: 2002 FCA 489

CORAM:        LÉTOURNEAU J.A.

ROTHSTEIN J.A.

NADON J.A.

BETWEEN:

                              CHALK RIVER TECHNICIANS AND TECHNOLOGISTS

                                                                                                                                                       Applicant

                                                                                 and

                                          ATOMIC ENERGY OF CANADA LIMITED,

                              PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE

            OF CANADA (CHALK RIVER PROFESSIONAL EMPLOYEES GROUP) and

             CHALK RIVER NUCLEAR OPERATORS (POWER WORKERS' UNION,

                         CANADIAN UNION OF PUBLIC EMPLOYEES, LOCAL 1000)

                                                                                                                                               Respondents

                                                        REASONS FOR JUDGMENT

NADON J.A.

[1]                 This is an application for judicial review of a decision of the Canada Industrial Relations Board (the "Board") dated June 22, 2001. Before the Board was an application by Atomic Energy of Canada Ltd. ("AECL") under section 87.4 of the Canada Labour Code (the "Code") with respect to the maintenance of essential services at its Chalk River laboratories in Ontario ("Chalk River") during a strike or lockout. The Board concluded that the interruption of production of medical isotopes at Chalk River by reason of a strike or lockout would pose an immediate and serious danger to the safety or health of the public.

[2]                 At issue before us is whether the Board erred in concluding that a strike or lockout would lead to a serious danger and that the danger would be "immediate" within the meaning of subsection 87.4(6) of the Code.

[3]                 The applicant is one of three bargaining units at Chalk River to have given notice to AECL to bargain for the revision of its collective agreement. The applicant and the two other bargaining units, namely the Professional Institute of the Public Service of Canada (Chalk River Professional Employees Group) ("PIPSC") and the Chalk River Nuclear Operators (Power Workers' Union, Canadian Union of Public Employees, Local 1000) were respondents before the Board on AECL's application under 87.4(4) of the Code.

[4]                 The applicant seeks an order setting aside the Board's decision. In its judicial review application, the applicant sets forth eight grounds of review, which can be boiled down to the following propositions:

(i)         The Board erred in that its decision was based upon evidence which was not before it. As a result, the applicant submits that the Board exceeded its jurisdiction.

(ii)        The Board's interpretation of section 87.4 of the Code is patently unreasonable in that the Board interpreted the Code in a manner which its words cannot bear, in a manner inconsistent with the purposes of the code and in a manner not based on the evidence before it.

(iii)       The Board erred in adopting a broad approach as to what services would be deemed to be essential and engaged in a balancing approach under section 87.4. The applicant again submits that the language of the Code cannot possibly bear this interpretation. The applicant submits that the Board was required to interpret section 87.4 narrowly in order to maximize collective bargaining rights. In that context, the balancing of interests, as well as the Board's concerns regarding the health system, were irrelevant considerations.

(iv)       There was no evidence before the Board which could support its conclusions. Specifically, the applicant says that there was no evidence whatsoever upon which the Board could find that there was a serious and immediate danger.

[5]                 PIPSC appears in these proceedings as a respondent, although it supports in every respect the position taken by the applicant. In its Memorandum of Fact and Law and orally before us, the PIPSC limited its submissions to what it characterized as the Board's patently unreasonable interpretation of the word "immediate" in section 87.4 of the Code, and to the Board's breach of natural justice when it refused to allow its counsel to respond to AECL's submissions concerning the meaning of the word "immediate", and in particular, the meaning of the word "imminent" used in the French version of section 87.4.

[6]                 Before dealing with the applicant's and PIPSC's submissions, a review of the proceedings which led to the Board's decision and of the relevant facts will be helpful in order to properly understand the Board's decision, and in particular, the findings of fact and the conclusions which the applicant and PIPSC now challenge. The facts, on the whole, are not disputed.

PROCEEDINGS BEFORE THE BOARD

[7]                 On March 14, 2000, pursuant to section 48 of the Code, the United Steelworkers of America, local 1568, the former certified bargaining agent for the Chalk River technicians and technologists, gave notice to AECL to commence collective bargaining for the purpose of entering into a collective agreement. On March 29, 2000, pursuant to subsection 87.4(2) of the Code, AECL gave notice to the bargaining agent that approximately 45 employees in the bargaining unit were to be designated in respect of the maintenance of essential services.

[8]                 On July 7, 2000, the applicant, by then the new bargaining agent for the Chalk River technicians and technologists, notified AECL of its intent to bargain for a new collective agreement, which notice AECL acknowledged by letter dated July 14, 2000, and in which it reiterated the notice previously given pursuant to subsection 87.4(2) of the Code. As the parties were unable to agree with respect to essential services, AECL, on July 20, 2000, served a notice of dispute on the applicant.

[9]                 On August 4, 2000, AECL filed an application under subsection 87.4(4) of the Code, requesting the Board to decide the issue of essential services in respect of the production of medical isotopes at Chalk River. AECL submitted that the production of isotopes at Chalk River had to be continued to prevent an immediate and serious danger to the safety and health of thousands of medical patients every day in Canadian hospitals and clinics, as well as in the United States of America, Japan and the rest of the world.

[10]            It was agreed before the Board by all parties that the Board would firstly decide whether the interruption of production of medical isotopes by reason of a strike or lockout would pose "an immediate and serious danger to the safety or health of the public". The parties agreed to defer to a latter date the question pertaining to the designation of the employees required to ensure the uninterrupted production of the medical isotopes.

[11]            On June 22, 2001, the Board concluded that a strike or lockout at Chalk River would pose an immediate and serious danger to the safety or health of the public if AECL's production of medical isotopes was interrupted.

[12]            Before turning to the facts, I will reproduce section 87.4 of the Code, which is at the core of the debate between the parties:

FACTS

[13]            AECL is a Crown corporation and is known internationally, inter alia, for its successful development of the CANDU (Canadian deuterium uranium) nuclear reactor, a heavy-water reactor. The CANDU is designed to produce electricity and is used, among others, by Hydro Quebec and Ontario Hydro. In addition, AECL oversees the construction of nuclear reactors on a world-wide basis.

[14]            In 1957, AECL constructed a research reactor at Chalk River, the National Research Universal reactor (the "NRU"), to support the improvement of designs, materials and fuels, as well as for training purposes. The NRU does not produce electricity, although it provides support for research and development in respect of CANDU reactors, and it also assists research by universities and the National Research Council.

[15]            For the purposes of these proceedings, the relevant aspect of the NRU is that it produces 60% of the world's molybdenum-99 ("moly-99") supply used for the production of medical radioisotopes. Radioisotopes are forms of chemical elements that are radioactive and that are not naturally occurring. The primary use for these products is in nuclear medicine, i.e. radiopharmaceuticals and cancer treatment and in industrial irradiation for microbial control. This case is only concerned with the medical use of the isotopes.

[16]            Only small amounts of radioisotopes or radiopharmaceuticals are required in nuclear medicine in order to diagnose and treat diseases. The isotopes are useful in that they appear in X-rays or similar procedures and they are used to deliver direct radiation therapy to cancerous cells.

[17]            Moly-99 is used to produce technetium-99m, an isotope which forms the raw material of most of the radiopharmaceutical products used in the diagnostic procedures of major organs and bones. In addition to moly-99, the NRU produces a number of other radioisotopes used in nuclear medicine. Xenon-133 is used for lung ventilation studies. Iodine-131 is used for the diagnosis and treatment of thyroid conditions, and iodine-125 is used for radioimmunoassays and for certain cancers.

[18]            In Canada, only AECL produces moly-99, xenon-133, iodine 131 and iodine-125, and it is the largest manufacturer and supplier of these isotopes in the world. Approximately 65,000 people a day are treated by procedures using radiopharmaceuticals derived from moly-99 and    millions of medical tests using xenon-133, iodine-131 and iodine-125 are performed every year.

[19]            AECL has only one customer, MDS Nordion ("Nordion"), also a Crown corporation. AECL's production of moly-99 is geared to meet Nordion's commitments to hospitals and radiopharmacies around the world. Nordion purchases moly-99 and the other radioisotopes from AECL in an unfinished and unpurified form and, after purifying and packaging the isotopes, sells and ships them in a form usable by pharmaceutical companies as radioactive tags or identifiers on their radiopharmaceutical products. The products are then sold by the pharmaceutical companies to central radiopharmacies and hospitals.

[20]            The production process of the isotopes is rather complicated, but the following will suffice for the present purposes. Of the four radioisotopes at issue in these proceedings, moly-99 is by far the most important. I will therefore limit my present discussion to this radioisotope. Isotopes are produced as a result of the interaction of neutrons bombarded inside the reactor. During the irradiation process, there is an exponential buildup of moly-99 inside the reactor. The irradiation process takes between 9 and 11 days to reach equilibrium activity, i.e. the saturation point or plateau inside the reactor. At that point, the rate of production of the isotopes is equal to the rate of disintegration, i.e. the point of decay, the process in which radioactive atoms progressively disappear with time. Immediately upon the termination of the irradiation process, the decay process commences.

[21]            By reason of the decay process, moly-99 has a half-life of 66 hours, which means that its radioactivity is reduced by half within three days. After a further three days, activity is reduced to one quarter, and so on every third day, until there is no radiation left. The other radioisotopes also have a very short shelf life.

[22]            The level of activity of moly-99 is measured in curies. Through AECL's production at Chalk River, Nordion is able to supply and sell to its clients 4600 six-day curies, which represents 60% of the world market. In addition to the Chalk River production, Nordion is able to supply its clients with a backup production of 1100 six-day curies through a sub-contract with a South African producer and through a wholly-owned facility in Belgium. Thus, Nordion's total supply capability is 5700 curies per week. The figure of 4600 curies represents shippable curies after accounting for losses due to processing and decay. The decay factor being approximately 20%, Nordion has to produce 6340 curies in order to ship 4600 curies.

[23]            The lifespan of a shipped curie is approximately six days and that is measured as of noon on the day of shipment. Consequently, the speed of delivery is extremely important to Nordion's customers because of the decay process. For example, Nordion's shipments to Japan require 25% more product than if the product had been shipped to the United States. The excess will compensate for the decay.

[24]            Presently, the world demand for moly-99 in shippable curies is approximately 7320, i.e. 4600 from Nordion and 2720 from all other suppliers. In the event of labour disruption at Chalk River, the maximum backup product which Nordion would be able to obtain from its competitors is 3040 shippable curies. However, during certain periods of the year, that backup production will be reduced to 1240 shippable curies. Consequently, in the event of a strike or lockout, the production at Chalk River could not be entirely compensated by production elsewhere, because of a shortage of world supply.

[25]            Should a strike or lockout occur as a result of which all of the moly-99 has been depleted, ten days of production would be required for Nordion to resume normal shipments to its customers. However, urgent shipments could be effected by Nordion at the end of four days of the resumption of production.

[26]            As soon as the product is received by one of Nordion's clients, say a radiopharmaceutical manufacturer in the United States, the product will be transformed into a federal drug agency regulated finished drug, according to its final use, such as a technetium generator, a dose of xenon-133 in a vial ready for patient use, or a capsule of iodine-131 for therapeutic application. At paragraphs 73 to 79 of its Reasons, the Board explains the importance and use of technetium generators in nuclear medicine:

[73]         Technetium generators are used for medical studies on molybdenum. When a hospital receives a generator, the amount of technetium on the alumina column is in equilibrium with the molybdenum, that is, the amount of decay in the molybdenum is equal to the amount of technetium to be released. As a saline solution is added, it releases the technetium and depletes the molybdenum. The molybdenum then decays to make more technetium. As the week wears on, the hospital pharmacy will need to elute the technetium more and more frequently in order to get the technetium it needs for its studies.

[74]         The use of technetium is managed through a computer program that allows it to does the concentration of technetium in any one saline vial, based on the size of the generator, that is, the number of curies of molybdenum and how long since it was last eluted. As molybdenum decays rapidly, a 66-hour-old generator will only have half the technetium left three days hence. In North America and Europe, hospitals use their generators for only one week. At the end of the week, there is still some molybdenum present in the generator, but it is no longer used because the concentration of technetium in the saline vial becomes too low to be readily usable to make the drugs. Most hospitals return their expended generator to the manufacturer for recovery of expensive components and receive a new generator in its place. A hospital that uses more than one generator during the week may receive them at different times during the week it maximize its ability to do nuclear medicine as the week goes on. Large US hospitals might get a generator daily. That is why the supply of molybdenum is considered a weekly business in terms of world production numbers.

[75]         As a rule, hospitals do not run the capacity of their generator so close to the wire that they are unable to deliver planned diagnoses and treatments. To anticipate delays, there is usually a day or so of flexibility. Extending beyond that time is avoided because the decay and resulting impurities would likely affect its ability to mix with certain agents. The ability to cope would likely depend on the size of the hospital and the size of the generator, but it is unlikely that a generator's use could be extended beyond a third day.

[76]         The decay factor also influences the correct amount of technetium that will go into prepared does. For the radiopharmacist to be able to prepare an appropriate does of technetium for a scan, the physician must know when the patient is going to be tested so as to order a sufficient amount of technetium in the vial for that does.

[77]         The cost of generators is an issue in determining the size of generator that a hospital will use. Small hospitals order smaller generators and large hospitals order larger generators. With the exception of very small hospitals in isolated communities, many hospitals have multiple units at any given time to compensate for a generator breakdown. Some 230 hospitals in Canada use generators.

[78]         Central radiopharmacies have in many instances replaced hospital radiopharmacies. The US uses mostly privately operated central radiopharmacies to meet the needs of a number of hospitals as a cost-cutting measure. In Canada, central radiopharmacies tend to be located within centres of excellence, such as university hospitals, which in turn supply services to smaller local hospitals. Exceptionally, Toronto has a private central radiopharmacy operated by Dupont. Canadian demographics are such that it is not cost-effective to establish a central radiopharmacy infrastructure unless there is sufficient population to support it. In the absence of a central pharmacy, generators go directly to a hospital radiopharmacy under the supervision of a radiopharmacist.

[79]         The company in Canada that manufactures radiopharmaceuticals other than technetium generators is Draximage. Generators made in the United Stares are the source of supply of all 230 Canadian institutions. Chalk River supplies 60 per cent of the US molybdenum used in these generators. Moreover, the nature of the supply agreements in Canada provides that most generators shipped into Canada use molybdenum from Chalk River. Mallinckrodt recently sold its Canadian nuclear business to Dupont. Once current contracts using molybdenum from Mallinckrodt lapse, all generators supplied to Canada will eventually use molybdenum from Chalk River.

[Emphasis added]

[27]            In the event of a shortage of product, Nordion is bound by its contractual arrangements to allocate supply on the basis of purchasing history. How and to whom radiopharmaceutical manufacturers will supply their production to their clients is not within Nordion's control. Since there is no industry backup plan, each radiopharmaceutical manufacturer must decide, on a case by case basis, which hospitals and radiopharmacies will get their supply.

[28]            Evidence was adduced by AECL regarding the day to day use of radioisotopes in Canadian hospitals. In that regard, AECL called Dr. Albert A. Driedger, a practising medical doctor and researcher in nuclear medicine at the London Health Sciences Centre in London, Ontario (the "London Centre") and Dr. Raymond Taillefer, Chief of Nuclear Medicine at the Centre hospitalier de l'Université de Montréal (the "CHUM").

[29]            The London Centre is a teaching hospital associated with the University of Western Ontario. It offers a five-year speciality program in the field of nuclear medicine. Five specialists form the nucleus of the hospital's nuclear medicine practice and they are assisted by twenty technologists, trained to assist the physicians in diagnostic and therapeutic procedures.

[30]            All London-area hospitals serve a population of approximately one million people and perform approximately 40,000 procedures a year. The London Centre, the main trauma centre, performs about 25,000 nuclear medicine procedures annually and a smaller centre, St. Joseph's Health Centre, performs approximately 15,000 procedures annually. Eighty percent of all of the procedures are diagnostic in nature.

[31]            Technetium is used in a number of procedures, both for diagnostic and therapeutic use. Iodine-125 is used exclusively in therapy, for example, in therapy seeds for prostate cancer, a form of radiation oncology. Iodine-131 is used both for diagnostic and therapeutic purposes. For diagnostic purposes, it is administered and measured to make images of the thyroid to discover thyroid cancers. For therapeutic purposes, it serves to treat various forms of thyroid cancer.

[32]            The Nuclear Medicine Department at the London Centre deals with emergencies 24 hours a day. For example, the centre treats 20 to 25 patients a week who present themselves with a sudden onset of shortness of breath and pleuritic chest pains. To ascertain the cause of the symptoms, a lung scan is performed so as to distinguish between patients who require anticoagulants for months (i.e. where the patient is suffering from pulmonary embolism) or another sort of treatment. Other types of emergencies dealt with by the Department are gastrointestinal bleeding and children whose brain shunt has become obstructed. Emergency situations also present themselves with respect to the treatment of thyroid cancer.

[33]            Further, the London Centre does some 50 bone scans per week and the most frequent nuclear medicine procedure pertains to heart examinations. The Centre deals with approximately 60 such cases a week.

[34]            According to Dr. Driedger, nuclear medicine is regarded by the profession as the most effective and most cost-effective method to treat patients. In his view, treatment by ways other than nuclear medicine may compromise patients' health because of a less accurate diagnosis or a more risky diagnostic path for the patient. Although Dr. Driedger gave a number of examples to support his view, I need not go into those details.

[35]            Dr. Driedger testified that the London Centre receives a technetium generator every Monday morning to carry it through the week. Beyond seven days, however, many of the radiopharmaceutical kits cannot be used because the available technetium is not sufficiently active.

[36]            Thus, when there is a shortage of product, scheduling is rearranged and urgent cases are moved ahead and less urgent patients are delayed. Referring physicians will be advised of changes in schedule. In other words, nuclear medicine will shortly come to a halt if moly-99 derived products are not available. Dr. Driedger conceded that some delay is tolerable and that a number of alternatives, where effective, can be used. However, he believes that health care would be compromised, particularly by increasing the backlog of diagnostic and therapeutic procedures.

[37]            In Dr. Driedger's view, nuclear medicine is still growing and will shortly become the leading form of biomedical imaging and in that regard, technetium is the ideal radiopharmaceutical, in that it allows sufficient time for a radiopharmaceutical to be distributed and images taken while decaying very rapidly within the human body. Consequently, the patient is not exposed to long periods of radiation.

[38]            I now turn to the evidence concerning the CHUM, the largest department of nuclear medicine in Canada. The CHUM operates as a single hospital and results from the merger of three Montreal hospitals that continue to operate on three separate campuses. Dr. Taillefer heads the three campuses and is assisted by a Chief Technologist at every campus. Its staff is comprised of ten full-time specialists in nuclear medicine, 46 technologists and a physicist at each campus. Including administrative and para-medical staff, a total of 63 people work in the Department. The CHUM has 23 gamma cameras, three of which are dedicated to research.

[39]            Approximately 175 nuclear medicine procedures are performed at the CHUM every day, 40% of which are in nuclear cardiology for the detection of coronary artery disease. Another 40% involves bone scanning and the remainder of procedures involve various types of diseases such as neurological diseases, kidney diseases, urological diseases, infectious diseases and brain tumours. Many of the procedures are elective studies and the patients are scheduled from one to three months ahead of time. Of the 175 daily procedures, between 15 and 25 involve acute care diagnostic procedures. There are roughly 200 centres in Canada similar to the CHUM, excepting size. The CHUM receives two generators of moly-99 every week, which arrive between 8am and 10am on Sunday mornings.

[40]            Dr. Taillefer testified that without its moly-99 generators, the department would shut down, since 98% of all procedures performed thereat use technetium-based radio tracers. Since there are no substitutes, the CHUM would have to close its nuclear medicine department.

[41]            Questioned about possible alternatives to treatment by way of nuclear medicine, Dr. Taillefer indicated that alternatives were always possible, but that a number of parameters would have to be considered. At paragraphs 163 and 164 of its decision, the Board summarizes this part of Dr. Taillefer's testimony as follows:

[163]       Dr. Taillefer explained that while some 30 years ago, much of the technetium based imaging was scheduled in advance, there has been a shift in the way nuclear medicine is being used in clinical practice and acute care is a large part of clinical practice. There are always alternatives, but several parameters must be considered. The first is morbidity and mortality. Surgery can be done in every case, but current practice calls for minimal or minimally invasive surgery and only after having imaging evidence that there is disease, because of the costs. Surgery involves short-, medium- and long-term complications depending on the patient's condition when surgery is performed. There is also a risk in performing surgery on a normal organ and creating long-term complications along with any side effects related to general anaesthesia. The average patient at the CHUM is close to 70 years old, which presents a further risk in using surgery to investigate the presence of disease. Many surgeons will not operate without clear clinical imaging evidence.

[164]       Secondly, the physician's assessment also involves evaluating the cost-effectiveness of a procedure. The equipment and the radio tracers provide an accurate diagnosis very early in the process and at less human expense. Nuclear medicine is no longer confined to an 8:00 a.m. to 4:00 p.m. schedule as it was 20 years ago. In fact the CHUM is buying more equipment to allow it to stay open during weekends and up to 10:00 p.m. each evening.

[42]            I will complete my review of the facts by stating that in 1997 and 1998, AECL employees went on strike for approximately 6 days on both occasions, with no apparent serious impact on the health of Canadians.

THE BOARD'S CONCLUSIONS

[43]            On the basis of the above evidence, the Board arrived at two important conclusions which the applicant and PIPSC challenge. Firstly, the Board found that the interruption of production of radioisotopes at Chalk River would pose a serious danger to the safety or health of the public. Secondly, the Board found that the serious danger would be "immediate".

[44]            At paragraphs 285 to 287 of its decision, the Board sets forth its rationale for its conclusion as to the existence of a serious danger to the safety or health of the public:

[285]       The facts speak for themselves. The need for medical treatment in the instant case is even more predictable than the emergencies in the ferry service case, as highlighted by some 65,000 nuclear medicine procedures taking place around the world every day. The argument that only 30 per cent are emergencies is not a countervailing argument that nuclear medicine procedures are not in fact necessary in the interest of the safety and health of the public. An emergency is by its very nature impossible or nearly impossible to foresee. The reality of a hospital emergency unit is that cases are dealt with as they arrive. It is not possible to order all emergency cases to arrive at the beginning of a strike or lockout or to count on la lighter case load during a strike. An emergency case load of 30% is a daily average. Presumably on weekends, when there are no planned admissions or scheduled procedures, every case that arrives at the emergency unit is a potential emergency case. Furthermore, as the physicians explained, undiagnosed disease presents a risk, all medical treatments present some form of risk and delayed medical procedures may also give rise to a risk. These circumstances go beyond the mere exercise of caution to protect against potential harm, and illustrate a factual certainty that the public will require the intervention of nuclear medicine during a strike and lockout and will be at risk if nuclear medicine is withdrawn.

[286]       As well, the protection of the health and safety of the public must be considered in its overall context of the product or service. As was thoroughly described in the evidence, the supply of radioisotopes is a multi-stage process, including the transformation stages. It is not because AECL does not control all the stages, that the product is less necessary to ensure the safety and health of the public. A comparison may be made with postal service employees, an example cited by the unions. It is not the absence of postal service that is the threat to the public, but the mail content provided by third parties to the postal service that fuels the economy. In the case of the radio operators, it is not the absence of communication that may cause an emergency, but its content which is used by sailors to chart their course. In the case of the ferries, it is not the absence of ferry service in itself that is the source of risk or emergency, but the inability of an ambulance to reach a victim or patient that needs to be transported to a hospital via the ferry service. Each of these examples demonstrates that there may be a series of intermediate steps that depend on each other before the emergency occurs or that create the emergency. In the case of molybdenum, it is not the molybdenum itself that causes the emergency, but the fact that it is not made available to the radiopharmacies and subsequently the hospitals who will administer the does to the patient.

[287]       This also sets aside the chain of causation argument raised by the Alliance. AECL has demonstrated how each step in the manufacturing process is affected by the absence of produce: from Nordion that is unable to supply the demands of the manufacturers of generators, who then are unable to supply radiopharmacies and hospitals, who in turn experience a shortage of technetium to provide diagnosis and treatment. In the case of xenon gas and iodine, these products require little or no transformation and some are supplied directly from Nordion to the hospitals or radiopharmacies. The combined and uncontradicted evidence of the witnesses was sufficient to establish the link between the various stages of distribution without AECL having to call evidence on all of the intermediate steps that are essential to bring the product to market.

[45]            With respect to its conclusion on the immediacy of the serious danger, the Board's reasoning appears at paragraphs 277, 278, 279 and 288 of its decision:

[277]       The immediacy argument can be compelling in the following sense. A shortage of product at AECL does not affect hospitals and physicians until some 10 days after the beginning of a strike. Why then should the Board interfere in a long-standing bargaining relationship where strikes have been short lived, where Parliament has not had to act in the past, and where the public has yet to be seriously affected by a shortfall of molybdenum product? Accordingly, the unions ask the Board not to project the worst-case scenario and let historical facts be its guide. AECL's driving arguments are future-looking. There has not been a catastrophic situation in the past, but the medical community has had a close call and there are serious concerns this time around. Nuclear medicine has become such an essential part of the practice of medicine today that there is no turning back, and radioisotope treatments must be continued by all means.

[278]       For better or for worse, Parliament passed on to the Board the job of tackling these far-reaching issues. Indeed, what constitutes "the supply of services, operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public" has been left for resolution in each case by a thorough and neutral investigation rather than by an emotional public debate. By removing a dispute on the maintenance of essential services from the public forum, Parliament has sought to avoid political pressure that comes to bear on a matter likely to affect all Canadians.

[279]       It is in this sense that the board will not stumble on the semantics of the wording of the Code, but adopt a purposive view as suggested by the unions. To the extent that the federal act has not blindly copied the wording of other jurisdictions, the Board has before it a fresh canvas on which to brush its own decision. Additionally, the concept of the safety or health of the public cannot be viewed as an exact science and the Board would be remiss if it refused to benefit from the collective wisdom of other labour boards.

[...]

[288]       From a careful reading of the statute, there is no basis for a conclusion that "immediate" lies in an artificial notion of a few hours. As was correctly raised by AECL, the French version of the statute translates the world "immediate" not by the world "immédiat", but rather by the word "imminent". The Petit Robert specifically defines "danger imminent" as a "danger menaçant", a menacing danger. According to the Petit Robert, "menaçant" means "qui constitue une menace, un danger", which brings us full circle to a definition of "immediate as "a situation that presents a danger" as opposed to "a danger that arises at once". The temporal nature of "immediate" is but one meaning of that world. Notably, Roget's Thesaurus (Pan Reference Books, 1952, at paragraph 111 on page 35) provides such wide ranging synonyms for "immediate" as: "in a short time, soon, at once, awhile, anon, by and by, briefly, presently ... straightway, quickly, speedily, promptly, presto, slapdash, directly" and so on. By harmonizing the English and French versions of the statute along with the broad meaning provided by the synonyms, the Board is provided with flexibility to apply the concept of immediate without undue constraint. Consequently, it is entirely reasonable for the Board to conclude that while the danger must not merely be an inconvenience, it need not appear very shortly, or in French "incessamment".

THE APPLICANT'S AND PIPSC'S SUBMISSIONS

[46]            The thrust of the applicant's submissions is that the Board erred in finding that a serious danger would result if a strike interrupted production at Chalk River and that the danger would be immediate. The applicant argues that there was insufficient evidence to support the Board's conclusions and, in the alternative, that the Board's conclusions are patently unreasonable.

[47]            As to PIPSC, it limited its submissions, as I have already indicated, to the Board's interpretation of the word "immediate" and to the Board's breach of natural justice in refusing to allow it, and the other respondents before the Board, an opportunity to respond to AECL's submissions concerning the meaning of the word "immediate" and, more particularly, the meaning of the word "imminent" used in the French version of section 87.4.

[48]            Both the applicant and PIPSC argue that the Board erred in failing to recognize that there was a temporal aspect to the word "immediate". Rather, the Board chose to define the word "immediate" as meaning a situation that presents danger. They say that the Board's interpretation of the meaning of the word "immediate" defies common sense, ignores the ordinary meaning of the word and is, in any event, totally inconsistent with the expressed legislative purpose of the Code, which is to promote free collective bargaining. Hence, they submit that the Board's interpretation is patently unreasonable. In this regard, the applicant and PIPSC say that as it is clear from the evidence that a shortage of product will not affect hospitals until some 10 to 12 days after the commencement of the strike, the serious danger cannot be "immediate". Consequently, they say that the Board's intervention cannot be justified.

ANALYSIS

[49]            Subsection 87.4(6) of the Code provides that where the Board is of the opinion that a strike or lockout could pose an immediate and serious danger to the health or safety of the public, the Board may make orders concerning the maintenance of essential services. For the sake of clarity, I again reproduce subsection 87.4(6):

[50]            The main issue before us is whether the Board erred in its interpretation of the word "immediate" and whether the evidence could support findings concerning the existence of a serious danger and the immediacy of that danger. There is also the issue of natural justice raised by PIPSC.

[51]            I begin my analysis by pointing out that although the English version of subsection 87.4(6) uses the words "could pose" and the French version uses the words "pourrait constituer", the Board used the words "would pose" in formulating its conclusion. At paragraph 302 of its decision, the Board states:

[302] In light of the above analysis, the Board is of the view that in this case, the competing interests under section 87.4 must weigh in favour of the position of the employer. Consequently, the Board grants the employer's applications and declares that a strike or lockout would pose an immediate and serious danger to the safety or health of the public were AECL not to maintain its operations with respect to the uninterrupted and safe production of the medical isotopes as prescribed by AECL's site license.

[52]            The words which appear in the statute, both in the English and French versions, require, in my view, less certainty on the part of the Board in reaching a conclusion concerning the existence of an immediate and serious danger than if the statute had used the words "would pose". In Joe Pereira E. Hijos, S.A. et al v. A.G.C., 2002 FCA 470, November 25, 2002, this Court, albeit in a different context, noted the distinction between the words "would" and "could". Stone J.A., for the Court, at paragraph 14 of his Reasons, indicated that the word "would"seemed to require a showing of "probability", while the word "could" seemed to require a showing of "mere" possibility. As a result, this Court ought to be very careful in assessing the reasonableness of the Board's findings.

[53]            Whether or not circumstances, in a given case, "could pose" a serious danger is a question of fact which falls squarely within the Board's purview. Unless the evidence is incapable of supporting the Board's finding, this Court ought not to intervene.

[54]            For the reasons which it gave at paragraphs 285, 287 and 288 of its decision, the Board was of the view that the interruption of production at Chalk River would create a serious danger.    The applicant argued, inter alia, that since neither Dr. Driedger nor Dr. Taillefer could say that patients would die or that their health would be seriously impaired, in the event of a shortage of product, there was insufficient proof to support the Board's conclusion. The applicant also relied on the 1997-98 strikes to buttress its point that a short strike would not cause a serious danger. At paragraphs 45 and 46 of its memorandum, the applicant makes the following submissions:

[45] In any event, the CRTT submits further that there was no evidence before the Board to support the findings that it made. While much evidence was provided regarding the nature of nuclear radioisotopes and their use in the field of medicine, no person testified as to the actual impact of the interruption in the supply of such isotopes on the health and safety of the public. No expert evidence was offered to provide an opinion as to what might happen, depending, of course, on the length of the disruption. In other words, while it was understood and accepted that there would be an impact, no evidence was provided as to the exact nature of that impact or its effect on public health and safety. Indeed, it is noteworthy that the Board does not point to any evidence supporting its final conclusions.

[46] CRTT emphasizes that both physicians who testified regarding the nature of the practice of nuclear medicine did not give any evidence that previous labour disruptions at AECL caused any serious danger to a single patient even those [sic] disruptions lasted approximately 7 days. The earliest possible time when a serious impact would be felt was at least 10 - 12 days after the commencement of strike activity. In that context, the physicians' concern was not so much the effect of the complete denial of this technology, but the fact that patients, as a rule, should be given access to state of the art technology.

[55]            I have great difficulty understanding how it can be argued that there was no evidence to support the Board's conclusion or that the Board's conclusion was unreasonable. The evidence before the Board is, in my view, sufficient to justify a finding that the interruption of production of medical isotopes would deprive the public of nuclear medicine and that, as a result, the health of a considerable number of patients might be endangered. I do not believe that specific evidence of the type suggested by the applicant was required for the Board to reach the conclusion that it did. Hence, the evidence, in my view, supports a conclusion that serious danger to the health of the public would result. In this regard, the following evidence provides ample support to the Board's conclusion:

(i)         the Chalk River production of isotopes represents approximately 60% of world production of moly-99. Chalk River is the main world producer of the other radioisotopes;

(ii)        following production, the isotopes have a very short useful life by reason of their decreasing radioactivity - hence, there can be no buildup of stock by AECL to forestall interruptions of production;

(iii)       should Chalk River stop producing isotopes, lost production could not be replaced, save in a small way, by product obtained from other producers;

(iv)       within three days after the occurrence of a strike or lockout, AECL and Nordion will, for all intents and purposes, be unable to meet demand for their product;

(v)        the use of the radioisotopes in hospitals is part of the mainstream of the practice of medicine;

(vi )      medical emergencies are an everyday occurrence in Canadian hospitals;

(vii)      with a shortage in sight, patients will be immediately affected, since treatment will be advanced, delayed or postponed, depending on the urgency of the patient's condition;

(viii)      if production is interrupted at Chalk River, patients will have to bear the consequences of a shortage of radioisotopes, i.e. morbidity and increased risk of death;

(ix)       within 10 to 12 days after the commencement of a strike or lockout, many nuclear medicine facilities in Canada and around the world will be shutting down;

(x)        65,000 people every day are treated by way of radio pharmaceuticals derived from moly-9 and millions of medical tests using the other radio isotopes are performed every year;

(xi)       the overall testimony of Doctors Driedger and Taillefer.

[56]            I therefore conclude that there was sufficient evidence to support the Board's conclusion as to the existence of a serious danger and that that conclusion is not unreasonable.

[57]            I now turn to the issue of the immediacy of the serious danger. Before concluding that the serious danger was "immediate", the Board first determined the meaning of the word as it appears in section 87.4. The Board's reasoning is primarily found in paragraph 288 of the decision, which I have already reproduced. I agree with the applicant and PIPSC that the Board appears, at least at first glance, to have eliminated the temporal element which might have been thought to attach to the word "immediate". The Board supported its view of the meaning of the word by having recourse to the French version of the statute, where "immediate" is translated as "imminent". In consulting Le Nouveau petit Robert on the word "imminent", the Board concluded that that dictionary specifically defined "danger imminent" as "danger menaçant", which suggests less temporality. However, as is obvious from a reading of the Le Nouveau petit Robert, the first and foremost definition of the word "imminent" is the following: "qui va se produire dans très peu de temps". Moreover, the antonyms offered by that dictionary are "éloigné" and "lointain". The definition and the antonyms clearly convey a sense that the word "imminent" has a temporal dimension.

[58]            The Board also purported to support its interpretation of the word "immediate" by citing various synonyms provided for that word in Roget's Thesaurus, namely "in a short time, soon, at once, awhile, anon, by and by, briefly, presently ... straightaway, quickly, speedily, promptly, presto, slapdash, directly". These synonyms, in my view, give support to the view that the word "immediate" does have a temporal dimension.

[59]            The word "imminent" used in the French version and the word "immediate" in the English version can be easily reconciled. Both words must mean, in the context of the subsection, that the serious danger must occur soon or within a short time. However, as to what constitutes a short time or soon in a given case must be determined on the facts of that case.

[60]            Paragraph 288 of the decision, in which the Board seems to eliminate the temporal element of the word "immediate", must be read carefully. It begins with the Board's statement that "there is no basis to conclude that "immediate" lies in an artificial notion of a few hours". Obviously, in making that statement, the Board was responding to an argument put forward by the applicant and the other bargaining units. It is clear from paragraph 288 that the Board was of the view that "immediate" did not necessarily mean now or within a few days. With that proposition, I can only agree.

[61]            However, the Board also stated "the danger must not merely be an inconvenience, it need not appear very shortly or, in French "incessamment". As I have already indicated, the words "immediate" and "imminent" can only mean soon or within a short period of time and consequently, the Board's words, if taken literally, would go too far since they would eliminate, for all intents and purposes, the word "immediate" from section 87.4.

[62]            However, I am satisfied that what the Board actually meant when it said "the danger must not merely be an inconvenience, it need not appear very shortly, or in French "incessamment", is that the serious danger need not appear right now or within a few days. I do not read the Board's decision as a statement that the serious danger can occur at any time in the future.

[63]            A fair reading of the Board's decision shows that it concluded that the serious danger would be immediate because of its finding that it would occur in approximately 10 days, bearing in mind that within 3 days after the occurrence of a strike or lockout, AECL and Nordion would likely be unable to meet demand for their product, and that following the end of a strike or lockout, 10 days of production at Chalk River would be required for Nordion to resume regular shipments to its clients. Did the Board err in reaching this conclusion? Put another way, was the evidence sufficient to allow the Board to conclude that the serious danger would occur soon or within a short period of time?

[64]            In my view, the answer to the latter question must be yes. On the evidence, taken as a whole, the Board could conclude that a danger occurring in ten to twelve days after the commencement of a strike or lockout, was a danger which would occur soon or within a short period of time.

[65]            I am, therefore, of the view that the Board's conclusion on the immediacy of the danger cannot be characterized as unreasonable. I come to this view in light of the evidence, and having in mind the words of the statute which require the Board to form an opinion as to whether a strike or lockout could pose an immediate and serious danger.

[66]            I now turn to the issue of natural justice. PIPSC submits that the Board breached natural justice when it denied it the opportunity of replying to AECL's submissions on the meaning of the words "immediate" and "imminent". PIPSC says that this breach amounts to a jurisdictional error requiring that the matter be referred back to the Board to be decided after all parties have had a full opportunity to respond to AECL's submissions.

[67]            PIPSC's argument must fail, in my view, for two reasons. First, the Board's refusal to admit argument by counsel for PIPSC to respond to AECL's reply submission regarding the Le Petit Robert definition of "imminent" is not such that it unavoidably leads to the conclusion that procedural fairness and natural justice have been breached. While it is true that the definition of "immediate" was ultimately significant to the outcome of the case, the Board already had sufficient evidence before it on this point. This included Black's Law Dictionary's definition of "immediate" which had been provided to the Board by PIPSC in its written and oral submissions, not to mention the plain words of the provision it was interpreting. The Board also had before it all of the definitions of the word "imminent" which appear in Le Petit Robert including the definition which I have found to be the correct one.

[68]            In my view, there was no need for additional submissions on the issue but, from a practical point of view, the Board ought to have given counsel for the bargaining units a brief opportunity to respond to AECL's submissions on the meaning of the words "immediate" and "imminent". This would obviously have avoided the present debate. However, the Board's failure to hear further submissions does not, as counsel for PIPSC contends, give rise to an error which would justify our setting the decision aside and referring it back to the Board.

[69]            In any event, before us, all parties had ample opportunity to make complete submissions with respect to the meaning of these words and in particular, by reference to the dictionary meaning thereof including the definitions provided in Le Petit Robert. Consequently, PIPSC's submission on this point cannot succeed.

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

                                                                                                "M. Nadon"

                                                                                                              J.A.

"I agree

Gilles Létourneau J.A."

"I agree

Marshall Rothstein J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                   A-406-01

STYLE OF CAUSE: Chalk River Technicians & Technologists v. Atomic Energy of Canada Limited et al.

PLACE OF HEARING:                                   Ottawa, Ontario

DATE OF HEARING:                                     October 23, 2002

REASONS FOR JUDGMENT:                     NADON J.A.

CONCURRED IN BY:                                    LÉTOURNEAU J.A.   

ROTHSTEIN J.A.

DATED:                      December 10, 2002

APPEARANCES:

Mr. David Yazbeck                                              FOR THE APPLICANT

Mr. Robert Monette                                             FOR THE RESPONDENT (AECL)

Mr. Christopher Rootham                                                 FOR THE RESPONDENT (PIPSC)

SOLICITORS OF RECORD:

Raven, Allen, Cameron & Ballantyne

Ottawa, Ontario                                                   FOR THE APPLICANT

Ogilvy Renault

Montreal, Quebec                                                FOR THE RESPONDENT (AECL)

Nelligan O'Brien Payne LLP

Ottawa, Ontario                                                   FOR THE RESPONDENT (PIPSC)