Dockets: A-263-13
A-384-13
Citation: 2014 FCA 295
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CORAM:
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NADON J.A.
TRUDEL J.A.
BOIVIN J.A.
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BETWEEN:
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CANADIAN UNION OF POSTAL WORKERS
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Applicant
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and
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CANADA POST CORPORATION, PHARMAPRIX INC. / SHOPPERS DRUG MART
INC., LES SERVICES DE SANTÉ CLAUDE GERVAIS INC., GESTIONS LUCAP INC., AND
OTHER RESPONDENTS
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Respondents
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REASONS FOR JUDGMENT OF
THE COURT
(Delivered from the Bench at Montréal,
Quebec, on December 10, 2014.)
TRUDEL J.A.
[1]
Before the Court are two applications for
judicial review filed by the Canadian Union of Postal Workers (the applicant) against
two decisions of the Canada Industrial Relations Board (the Board) dated
July 3, 2013, and October 22, 2013. The two applications were
consolidated by order of this Court dated January 7, 2014.
[2]
In the first decision, the Board ruled that it
did not have constitutional jurisdiction to rule on the applicant’s
certification applications to represent employees working in various postal
outlets in pharmacies based in a given area (Canada Post Corporation,
2013 CIRB 690). In the second, it held that the true employer of the employees
concerned by the certification applications are the pharmacist owners of the
drug stores in which the postal outlets in question are located. It dismissed
the applicant’s applications for a stay of proceedings and found it unnecessary
to review the alternative applications for a single employer declaration (Canada
Post Corporation, 2013 CIRB 697).
[3]
The applicant union invites us to apply the
principles of business dissociation, predictability and consistency to conclude
that the Board erred in its analysis of the constitutional issue and, more
specifically, in its assessment of the essential operational nature of the undertaking.
[4]
The applicant argues that the main work,
undertaking or business here is the Canada Post Corporation. But at
paragraph 56 of its reasons, it appears that the Board, on the basis of
the evidence heard, concluded that it was “the drug stores that are the going concerns at issue” and
that it therefore had to consider the essential operational nature of the drug
stores to adjudicate the dispute. In our opinion, this is a question of mixed
fact and law, and we were not satisfied that the Board made an overriding error
calling for our intervention. The evidence before the Board revealed the integration
of postal services and the other services offered by the various drug stores concerned
by the dispute. On the basis of this evidence, the Board’s conclusion is far
from unreasonable. Nor was it unreasonable for the Board not to adopt the
reasoning of past panels of the Board in similar situations. Each of these
cases had its own facts that can be distinguished.
[5]
In this regard, we note the applicant’s argument
that the Board misread Tessier Ltée v. Quebec (Commission de la santé et de
la sécurité du travail), 2012 SCC 23, [2012] 2 S.C.R. 3 [Tessier], a
case concerning divided constitutional jurisdiction, even though it submits
that we are dealing here with direct jurisdiction. According to the applicant, paragraph 48
of Tessier, which the Board quotes, does not apply in the context of an
integrated, indivisible undertaking.
[6]
The Board was not wrong in referring to Tessier
for the general principles that may be inferred from it, especially as the
Board was of the opinion that the situation before it raised the issue of
derivative jurisdiction, a subject addressed by the Supreme Court in Tessier.
Moreover, it is our opinion that there is no distinction to be made, as the
applicant is inviting us to do, between that case and the principles applying
to the matter at bar.
[7]
We also note the applicant’s submissions on this
Court’s decision in Turnaround Couriers Inc. v. Canada Post Corporation,
2012 FCA 36, [2013] 4 F.C.R. 252. According to the applicant, that decision is
relevant because of the employer’s identity and the Board’s alleged error in
this regard (see paragraph 117 of its memorandum of fact and law). Since
we have already determined that the Board did not err in deciding that the
employer was not the Canada Post Corporation, there is no need to discuss this
any further.
[8]
The applicant relies heavily on Sheldon Manly
Drugs Ltd. (Re), 1 C.L.R.B.R. (2d) 218, 71 di 103, Canada Post
Corporation and Rideau Pharmacy Ltd., 1 C.L.R.B.R. (2d) 239, 77 di 85,
and Canada Post Corporation and Nieman's Pharmacy, 4 C.L.R.B.R. (2d)
161, 77 di 181, to support its argument that the postal outlets can be
separated from the drug stores. Those cases, however, concerned the transfer or
sale of a business, and, given the recent observations of the Supreme Court in Tessier
and in Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters,
2009 SCC 53, [2009] 3 S.C.R. 407, it is our opinion that the cases
referred to by the applicant do not apply in this instance.
[9]
In addition, the applicant is attempting to show
that several pieces of evidence suggested that postal outlets and drugstores
were [translation] “dissociated” businesses and that the postal outlets are
a postal service within the meaning of subsection 91(5) of the Constitution
Act, 1867, 30 & 31 Victoria, c. 3 (U.K.) (see paragraphs 88 et
seq. of the applicant’s memorandum of fact and law). Those facts were all
before the Board, which gave them the weight it deemed appropriate. Among other
things, the Board had before it an agreement entitled
Master Dealership Agreement, which provides unequivocally that the postal
outlet must be integrated into an existing host business, in this case
the drug stores. That was its role, and the mandate of this Court is not to
reweigh the evidence adduced at first instance. Indeed, the applicant is not
challenging the Board’s findings of fact and law, and several pieces of
evidence accepted by the Board were not contradicted. Unless we are satisfied
that the Board ignored evidence that was relevant to the dispute, evidence that
could have changed the outcome of the proceeding, had it been considered, once
again, this Court will not interfere with the Board’s findings of fact or of
mixed fact and law.
[10]
We have not been convinced. The various
definitions found in the Canada Post Corporation Act are not
incompatible with the Board’s decision and, consequently, do not make it
unreasonable.
[11]
Lastly, the applicant argues that the Board did
not treat it with the procedural fairness to which it was entitled. There is no
merit to these arguments regarding the October 22, 2013, decision.
[12]
Consequently, the applications for judicial
review will be dismissed with a single set of costs. It goes without saying
that the respondents are entitled to their disbursements for each docket.
“Johanne Trudel”
Certified true translation
François Brunet,
Revisor
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