Date: 20140310
Dockets: A-447-12
A-118-13
Citation: 2014 FCA
61
CORAM:
GAUTHIER
J.A.
TRUDEL
J.A.
MAINVILLE
J.a.
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BETWEEN:
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BRIAN CADIEUX
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Applicant
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and
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AMALGAMATED TRANSIT UNION,
LOCAL 1415
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Respondent
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and
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GREYHOUND CANADA
TRANSPORTATION CORP.
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Third Party
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REASONS FOR JUDGMENT
MAINVILLE J.A.
[1]
We are seized with two applications for judicial
review. The first one concerns a decision dated September 21, 2012, by the Canada
Industrial Relations Board (Board), bearing neutral citation 2012 CIRB 656 (initial
decision). That decision dismissed the complaint made by the applicant, Brian
Cadieux, that alleged that his bargaining agent, the Amalgamated Transit Union,
Local 1415 (Union), the respondent in this case, breached its duty of
representation, thus infringing section 37 of the Canada Labour
Code, R.S.C. 1985, c. L-2 (Code). The second application for judicial
review concerns the Board’s decision dated February 27, 2013, bearing neutral
citation 2013 CIRB 676 (reconsideration decision), dismissing the application for
reconsideration of the initial decision.
[2]
I would allow the two applications for judicial
review for the reasons below. A copy of the reasons will be placed in the files
for dockets A-447-12 and A-118-13.
Facts and
background
[3]
The applicant was employed by the third party,
Greyhound Canada Transportation Corp. (Greyhound), as a bus driver from
December 3, 2008, until his termination on April 20, 2011.
[4]
During the month of August 2010, he was
suspended for five days on the ground that he did not respect the minimum rest
periods during his assignment as a bus driver with the Royal Canadian Mounted
Police at the G-8 Summit in Toronto (see the Applicant’s Record (AR) at pages
61-62). On September 6, 2010, the Union filed a grievance in relation to that
suspension (see AR at page 65). That grievance was taken to arbitration but
was ultimately settled by the Union prior to the hearing before the arbitrator.
The settlement was reached without the applicant’s consent and after the
applicant’s employment was terminated by Greyhound.
[5]
A few months after that suspension, that is, on
April 20, 2011, Greyhound terminated the applicant’s employment on the ground
that he was still not respecting the minimum rest periods imposed on drivers
and that he was not correctly recording his work hours in his log (see AR at
pages 66 to 68). The Union also filed a grievance in relation to that
termination (see AR at page 70), but then refused to take that grievance to
arbitration. The Union’s bylaws permit its members to accept or refuse to take
a grievance to arbitration after obtaining a recommendation in that respect
from the Union’s executive board.
[6]
Articles 7b and 7c of the Union’s bylaws provide
the following:
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7. GRIEVANCES
. . .
b. At the last step of the grievance
procedure and prior to the membership voting on arbitration, the member will
present his case to the Executive Board, orally or in writing, at their
regular meeting. Should the member not make a presentation to the Executive
Board, the Executive Board will render its recommendation based on the
evidence on file.
c. The membership will vote by secret
ballot at the general meeting as to whether to proceed to arbitration on any
grievance involving the interest of an individual member. A simple majority
will rule. Arbitration votes will be held only in the cities of Toronto,
London and Ottawa for the Greyhound bargaining unit. . . .Only members of the
bargaining unit affected may vote on the arbitration.
(AR at page 221)
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7. GRIEFS
[...]
b. Au dernier palier de la procédure de
règlement des griefs et avant que les membres se prononcent sur l’arbitrage,
le membre doit défendre sa cause devant le comité exécutif, de vive voix ou
par écrit, dans le cadre d’une réunion régulière. Si le membre ne fait pas de
présentation au comité exécutif, ce dernier fonde sa recommandation sur les
éléments de preuve au dossier.
c. Les membres se prononceront dans le cadre
d’un vote secret à l’occasion des assemblées générales à savoir s’il faut
renvoyer à l’arbitrage tout grief touchant les intérêts d’un membre. La
majorité simple l’emportera. Les votes relatifs à l’arbitrage auront lieu
uniquement dans les villes de Toronto, de London et d’Ottawa pour l’unité de
négociation de Greyhound […] Seuls les membres appartenant à l’unité de
négociation concernée peuvent voter relativement à l’arbitrage.
(Board’s translation, at paragraphs 24 and
25 of the initial decision)
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[7]
According to the applicant, he was not informed
in a timely manner of the meeting held by the Union’s executive board during
which his termination grievance was discussed. The applicant also submits that
he could have participated via telephone in the members’ meeting held in Ottawa
on June 15, 2011, but that the Union did not give him the opportunity to
present his case before the members in that manner. According to the Union, the applicant was informed of those meetings in a timely manner, but declined to attend
so as to defend his case. In any event, the Union’s executive board did not
recommend that the termination grievance be taken to arbitration, and the
members accepted that recommendation by a vote of 17 to 14 (see AR at pages 72 and
163).
[8]
The applicant filed a complaint with the Board
on or around September 30, 2011, on the primary ground that the Union [translation] “did not fulfill its duty
of fair and equitable representation in [his] termination case” (AR at page
74).
[9]
On November 2, 2011, the Union president
informed the applicant that the grievance in relation to his five-day
suspension had been settled and that the file was closed (AR at page 165). A
cheque from Greyhound in the amount of $984.64 accompanied that letter (AR at
page 167). The applicant maintains that he never cashed that cheque.
Board’s initial
decision
[10]
The Board decided to issue a decision on the
applicant’s complaint by relying on the documentation on file and without
holding a hearing (see initial decision at paragraph 1). However, given that
the Union and the applicant presented very different versions about the
applicant’s involvement in the executive board meeting and in the Union members’
meeting at which his termination grievance was discussed, the Board appointed
an industrial relations officer to carry out an investigation under paragraph
16(k) of the Code. The Board also gave the applicant and the
Union the opportunity to comment on the officer’s investigation report (see
initial decision at paragraphs 26 and 27).
[11]
Based on that report, the Board found that the
applicant knew that the executive board meeting and the Union members’ meeting
were going to take place and chose to not participate (see initial decision at
paragraphs 56, 57 and 58). Based on that finding, the Board decided to dismiss
the applicant’s complaint. The only ground for dismissal stated in the initial
decision is that the applicant’s refusal to participate in the meetings at
issue precluded the Board from finding that the Union acted in a manner that
was arbitrary, discriminatory or in bad faith. The Board’s reasoning in this
regard is clearly stated in paragraph 63 of the initial decision:
[63] Mr. Cadieux’s
decision not to participate, despite receiving sufficient notice, prevents the
Board from finding that the [union] acted in an arbitrary, discriminatory or
bad faith manner. The Board will never know how the [union]’s process would
have unfolded if Mr. Cadieux had exercised his right to participate and
raised any concerns he had.
[12]
It is on this same ground that the Board also
refused to consider the recordings, submitted by Mr. Cadieux, of various
meetings, in particular, a recording made on June 15, 2011, during the meeting in
Ottawa for Union members to vote on whether to take the termination grievance
to arbitration. The Board also stated the following in that respect at
paragraph 45 of its initial decision:
[45] The Board has
not listened to the surreptitious recordings, nor read what appear to be Mr.
Cadieux’s purported transcripts of those recordings. The Board did not need to
rule on the [union]’s admissibility objection given its conclusion that Mr.
Cadieux had received sufficient notice of the arbitration vote. His decision
not to participate allowed the Board to decide this case.
Board’s reconsideration decision
[13]
The applicant requested that the initial
decision be reconsidered under section 18 of the Code.
[14]
As his first ground of reconsideration, the
applicant maintained that the information in the industrial relations officer’s
report was obtained from unsworn persons and without the presence of the
parties. Relying on the decision of this Court in Grain Services Union (ILWU-Canada)
v. Freisen, 2010 FCA 339, 414 N.R. 171, the applicant therefore
argued that, since the information so obtained was contradictory, the Board could
not rule on the matter without a hearing during which each party could produce
the evidence it deemed relevant.
[15]
The Board rejected the first ground for two main
reasons.
[16]
First, the Board pointed out (at paragraphs 46
and 47 of the reconsideration decision) that contradictory evidence in the
context of a complaint made under section 37 of the Code does not require that
a hearing be held. The Board added that a very large majority of those
complaints are decided without an oral hearing. The Board therefore found (at
paragraph 49 of the reconsideration decision) that the “original panel
considered all of the information and submissions in making its decision; it is
not a reconsideration panel’s role to second-guess the resulting assessment of
the facts.”
[17]
Second, the Board found (at paragraphs 50 and 52
of the reconsideration decision) that, in any case, “[u]nder the union’s
bylaws, a grievor’s participation at such meetings is not obligatory, and the
union was entitled to proceed with its consideration of his grievance whether
he was present or not”, “[h]ence, it was not mandatory for the applicant to
attend the executive board meeting of June 1, 2011.”
[18]
As his second ground of reconsideration, the
applicant contended that the Board did not listen to the recording of the members’
meeting held on June 15, 2011, and was thus deprived of a relevant piece of
evidence. The Board rejected this second ground for the following reasons (at
paragraph 55 of the reconsideration decision):
In the original
proceedings, the union had objected to the introduction of the recording and/or
transcripts of the recording. The Board did not formally rule on the union's
objection, but it also did not listen to the recording. Although the Board has
discretion to accept any evidence it sees fit, there is an inherent concern
regarding recordings that are made without the knowledge or consent of the
other party. The Board has established a protocol for dealing with
surreptitiously recorded evidence (see D.H.L. International Express Ltd.
(1995), 99 di 126; and 28 CLRBR (2d) 297 (CLRB no.1147)). In this case, the applicant
was unable or unwilling to identify the person who made the recording or the
circumstances in which it came into his possession. Consequently, it was not
improper for the Board to refuse to consider the recording.
[19]
The third ground of reconsideration raised by
the applicant was that, in the Board’s initial decision, it did not assess the Union’s conduct but based its decision instead on the applicant’s conduct. The Board did not
directly address that ground in its reconsideration decision.
Issues raised in
the applications for judicial review
[20]
The applicant essentially contends that the
Board failed to exercise its jurisdiction under section 37 of the Code and
rendered an unreasonable decision in the initial decision by failing to assess
the Union’s conduct in its handling of his termination grievance, and by
instead basing its decision exclusively on the issue of the applicant’s absence
from the executive board meeting and the meeting of the Union members.
[21]
The applicant adds that the Board would have
also breached its duty of procedural fairness in the initial decision (i) by
refusing to consider the recordings of the meetings submitted by the applicant,
and (ii) by not holding a hearing to rule on a determinative issue based on
contradictory testimonies and the credibility of witnesses.
[22]
Finally, the applicant maintains that the
Board’s reconsideration decision is unreasonable in that the reconsideration
panel did not intervene to correct those errors.
Analysis
Standard of
review
[23]
It is well established that a decision by the
Board under section 37 of the Code is reviewed on the reasonableness standard:
Télé-mobile Co. v. Telecommunications Workers Union, 2004 FCA 438, [2005] 2
F.C.R. 727 at paragraphs 44 to 47; Grain Services Union (ILWU-Canada) v.
Freisen, above, at paragraph 31; McAuley c. Chalk River
Technicians and Technologists Union, 2011 FCA 156 at paragraph 13.
Reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47.
[24]
However, the standard of correctness applies to a
breach of procedural fairness: Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 43; Guan v. Purolator
Courier Ltd., 2010 FCA 103 at paragraph 12.
First issue: Is
the Board’s initial decision unreasonable?
[25]
In its initial decision, the Board based its
decision on the principle that the applicant’s lack of participation in the
executive board meeting and in the Union members’ meeting was a bar to a
finding that the Union acted in a manner that was arbitrary, discriminatory or
in bad faith under section 37 of the Code. The applicant has convinced me that that
was an unreasonable decision.
[26]
Section 37 of the Code sets out a union’s duty
of fair and equitable representation, and it reads as follows:
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37. A
trade union or representative of a trade union that is the bargaining agent
for a bargaining unit shall not act in a manner that is arbitrary,
discriminatory or in bad faith in the representation of any of the employees
in the unit with respect to their rights under the collective agreement that
is applicable to them.
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37. Il est
interdit au syndicat, ainsi qu’à ses représentants, d’agir de manière
arbitraire ou discriminatoire ou de mauvaise foi à l’égard des employés de
l’unité de négociation dans l’exercice des droits reconnus à ceux-ci par la
convention collective.
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[27]
The law surrounding a union’s duty of fair and
equitable representation regarding a decision on whether to take a grievance to
arbitration is very simple.
[28]
Unless otherwise specified in a collective
agreement, an employee generally does not have the right to take his or her
grievance to arbitration without the union’s consent, even for a termination.
That is the case here. Given the exclusivity granted to a union for the representation
of a bargaining unit, the union cannot therefore act in a manner that is arbitrary,
discriminatory or in bad faith towards any of the employees in the unit who are
exercising their rights under a collective agreement, including their right to
a grievance and to arbitration. In determining whether a grievance should be
filed, or whether a filed grievance should be taken to arbitration, a union’s
conduct is measured by its investigation of the circumstances surrounding the
grievance and its assessment of the likelihood of success at arbitration.
[29]
As a result, a union’s conduct could be deemed
arbitrary if the union only superficially considers the facts and or merits of
the grievance, if it does not investigate to discover the circumstances
surrounding the grievance, or if it fails to make a reasonable assessment of
the likelihood of success of the grievance at arbitration.
[30]
The Board’s decision in Virginia McRaeJackson
et al, [2004] CIRB 290, 115 CLRBR (2d) 161, [2004] C.I.R.B.D. 31 (QL) at
paragraphs 33 and 37 provides a good summary of the applicable principles:
[33] A union can fulfill its duty to fairly represent an employee by
taking a reasonable view of the grievance, considering all of the facts
surrounding the grievance, investigating it, weighing the conflicting interest
of the union and the employee and then making a thoughtful judgment about
whether or not to pursue the grievance. That is called balancing the
circumstances of the case against the decision to be made. For example, it is
legitimate for the union to consider collective agreement language, industry or
workplace practices, or how similar issues have been decided. It is also
legitimate for the union to consider the credibility of a grievor, the
existence of potential witnesses in support of the grievor’s version of the
events, whether the discipline is reasonable, as well as the decisions of
arbitrators in similar circumstances.
[37] Accordingly, the Board will normally find that the union has
fulfilled its duty of fair representation responsibility if: a) it investigated
the grievance, obtained full details of the case, including the employee’s side
of the story; b) it put its mind to the merits of the claim; c) it made a
reasoned judgment about the outcome of the grievance; and d) it advised the
employee of the reasons for its decision not to pursue the grievance or refer
it to arbitration.
[31]
A union’s conduct can also be measured against
the nature and consequences of the grievance in issue. Thus, the duty of fair
representation will be more onerous in a grievance involving an employee’s
termination or serious discipline: Ibid at paragraph 31; George
Cairns et al v. International Brotherhood of Locomotive Engineers, 1999
CIRB 35 at paragraph 112.
[32]
These principles are well known and have been
consistently reiterated in decisions of the Board: Baribeau v. Canadian
Union of Postal Workers et al, 2004 CIRB 302 at paragraphs 16 to18; Lamolinaire
v. Communications, Energy and Paperworkers Union of Canada, 2009 CIRB 463
at paragraphs 30 to 37; Schiller v. National Automobile, Aerospace,
Transportation and General Workers Union of Canada (CAW-Canada), 2009 CIRB
435 at paragraphs 33 to 35.
[33]
Accordingly, when reviewing a complaint under
section 37 of the Code, the Board must, at a minimum, examine the following
issues (Lamolinaire v. Communications, Energy and Paperworkers Union of
Canada, above, at paragraph 36):
(a)
Did the union conduct a perfunctory or cursory
inquiry, or a thorough one?
(b)
Did the union gather sufficient information to
arrive at a sound decision?
(c)
Were there any personality conflicts or other
bad relations that might have affected the soundness of the union’s decision?
[34]
In this case, however, the Board did not address
these issues at all. It was content to find that the applicant had not attended
the executive board meeting and Union members’ meeting at which his termination
grievance was discussed. In so doing, the Board believed that it was dispensed
from having to examine any other issues, including, in particular, whether the
Union’s inquiry into the termination grievance was thorough and whether the
Union had gathered sufficient information to make a sound decision with respect
to the refusal to take the grievance to arbitration.
[35]
Although an employee’s participation in the investigative
and decision-making process of his or her union is a factor that may be taken
into account in the assessment of the union’s conduct in the handling of a
grievance, the mere fact that the employee did not fully participate in the
process cannot, in and of itself, preclude the Board from finding that the
union breached its duty of fair and equitable representation, particularly in a
termination grievance.
[36]
It was in the case of Jacques Lecavalier v.
La Cie Seaforth Fednav Inc. (1983), 54 di 100 that the former Canada Labour
Relations Board first set out the principle of the employee’s duty to provide
assistance to the union throughout the grievance procedure, such as providing
it with all relevant information. However, the mere fact than an employee did
not fully participate in the process does not dispense the union from its duty
of fair and equitable representation, as each case must be examined on its own
merits: Soufiane v. Fraternité internationale des ouvriers en électricité
(1991), 84 di 187. This principle had been reiterated by the Board, in
particular, in Virginia McRaeJackson et al, above at paragraphs 15 and
16.
[37]
We should not lose sight of the fact that what
is at issue in a complaint under section 37 of the Code is the conduct of the
union and not that of the complainant. The conduct of the complainant during
the union’s investigation and assessment can certainly be taken into
consideration when determining whether this process was fair and equitable;
nonetheless, the onus remains on the union to fulfil its duty of
representation.
[38]
The Board’s approach in this case is all the
more peculiar given that in its reconsideration decision it acknowledged that
the applicant was not obliged to attend the Union’s executive board meeting. In
this context, one has difficulty understanding how the Board could conclude
that the applicant’s absence from this meeting dispensed the Union from its
duty of fair and equitable representation. The Board was required to examine
the Union’s conduct in order to determine whether its investigation of the
termination grievance and its decision not to take the grievance to arbitration
was fair and equitable. But it failed to do this.
[39]
In these circumstances, I can only conclude that
both the initial and reconsideration decisions are unreasonable. Indeed, the
Board’s determination that the applicant’s lack of participation in the meetings
at issue, in and of itself, precluded the Board from finding that the Union had infringed section 37 of the Code is not a possible, acceptable outcome which is
defensible in respect of the facts and law.
Second issue:
Did the Board breach its duty of procedural fairness?
(a)
Refusal to listen to the recordings
[40]
It is truly remarkable to note that, in both its
initial and reconsideration decisions, the Board held that the Union had
objected to the production of the recordings and transcripts of the meetings,
including, in particular, the members’ meeting held in Ottawa on June 15, 2011.
But this was not the case at all.
[41]
In his letter to the Board dated December 2,
2011, the Union’s counsel stated, on the contrary, that he did not object to
the production of the recordings, and rather encouraged the Board to listen to
them. Paragraph 39 of this letter (reproduced at page 121 of the AR) is crystal
clear on this point:
39.
The Board has asked for our position on the recordings taken by the Complainant
of various meetings. These recordings were made without the consent of the
participants in these meetings and without their knowledge. The Union believes
that the conduct of the Complainant in this regard was unethical and improper. However,
the Union does not object to the Board reviewing the recordings or the
transcripts of these proceedings. In fact, these recordings demonstrate
that the Union acted in a highly professional manner and in the best interest
of the Complainant.
[Emphasis
added]
[Traduction]
Le
Conseil a demandé notre position sur les enregistrements des diverses
rencontres effectués par le plaignant. Ces enregistrements ont été faits sans
le consentement des participants à ces réunions et hors de leur connaissance.
Le Syndicat croit que la conduite du plaignant à cet égard manquait d’éthique
et était inappropriée. Cependant, le Syndicat ne s’objecte pas à ce que le
Conseil examine ces enregistrements ou les transcriptions de ces
enregistrements. En fait, ces enregistrements démontrent que le Syndicat a
agi de façon hautement professionnelle et dans le meilleur intérêt du
plaignant.
[Je
souligne]
[42]
Questioned on this point by the Court at the
hearing, counsel for the Union once again confirmed that he had never objected
to the production of these recordings or of their transcripts.
[43]
In its initial decision (at paragraph 45), the
Board stated that it did not need to dispose of the “objection” raised by the
Union on the ground that the applicant’s failure to attend the meeting of Union
members held on June 15, 2011 allowed it to decide the matter without
considering the recordings. However, as the applicant rightly submits, the recording
of the meeting sheds considerable light on his participation in the meeting.
[44]
Indeed, the transcript of the recording of this
meeting (the production of which the Union did not object to) appears to show
that the president of the Union and the applicant’s brothers contacted him by
telephone prior to the start of the meeting on June 15, 2011 and that the
applicant’s participation in the meeting could have been arranged by
speaker-phone, which ultimately did not happen (see, in particular, AR at pages
200 to 203). Whatever the probative force of these recordings, it is clear that
they were relevant to the issue the Board considered to be central to its
decision, namely, whether the applicant had attended the meeting in question.
[45]
In its reconsideration decision (at paragraph
55), the Board attempted to enhance this refusal to consider the recording by
citing a process it had established to determine the admissibility of such
recordings. This elicits two comments: (a) first, it is not for the Board to
enhance an initial decision by means of a redetermination; the Board’s initial
decision on the issue of the recordings makes absolutely no mention of any sort
of policy that would have led to the refusal to consider these among the
evidence adduced; (b) second, the Board’s policy on the admissibility of
recordings made without the knowledge of those being recorded, specifically set
out in D.H.L. International Express Ltd. (1995), 99 di 126; 28 CLRBR
(2d) 297 (CCRT No 1147), applies where one of the parties involved objects to
their admissibility. As we have noted, in this case the Union clearly did
not object to the production of the recordings and transcripts.
(b) Refusal to hold an oral hearing
[46]
Section 16.1 of the Code provides that the Board
may dispose of any issue that is before it without holding an oral hearing.
Nevertheless, it should not be inferred from this that Parliament thus
authorized the Board to dispense with an oral hearing if this would result in a
breach of procedural fairness: Global Television v. Communications, Energy
and Paperworkers Union of Canada, 2004 FCA 78, 318 N.R. 275 at paragraph
23.
[47]
The principles governing the application of
section 16.1 of the Code have been set out by our Court on numerous occasions,
and are summarized as follows in Grain Services Union (ILWU-Canada) v.
Freisen, above, at paragraphs 23 to 25:
[23]
The discretion of the Board under section 16.1 of
the Code is very wide, but it is not absolute. Our Court has determined
that this section does not authorize a breach of the duty of procedural
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: Communication, Energy and Paperworkers
Union of Canada v. Global Television (Global Lethbridge, a Division of CanWest
Global Communications Corp.), 2004 FCA 78, 318 N.R. 275 at para. 23; Amalgamated Transit Union, Local 1624 v. Syndicat des
travailleuses et travailleurs de Coach Canada, 2010 FCA 154, 403 N.R. 341
at para. 18.
[24]
Our Court has also found, in the context of a complaint
of unfair representation under section 37 of the Code, that the mere
fact that evidence is contradictory does not automatically warrant an oral
hearing before the Board absent other compelling reasons. Indeed, since many
credibility issues will almost unavoidably arise in a labour relations context,
section 16.1 of the Code would potentially be deprived of effect if it
were otherwise interpreted and applied: Nadeau v. United Steelworkers of
America, 2009 FCA 100, 400 N.R. 246 at para. 6; Guan v. Purolator
Courier Ltd., 2010 FCA 103 at para. 28; see also in a different legislative
context Vancouver Wharves Ltd. v. International Longshoremen’s and
Warehousemen’s Union, Ship and Dock Foremen, Local 514 (F.C.A.) (1985), 60
N.R. 118.
[25]
I am of the view that the same principle applies in
this case concerning a revocation of certification under section 38 of the Code.
In order to successfully challenge the decision of the Board not to hold an
oral hearing in such circumstances, it must be demonstrated not only that
contradictory evidence was before the Board, but that the resolution of this
contradictory evidence was essential to the outcome of the decision and that no
other evidence could reasonably support the decision of the Board.
[Emphasis added.]
[48]
In this case, it is acknowledged that the Board
had contradictory evidence before it regarding the applicant’s attendance at
the Union members’ meeting. In addition, in its initial decision, the Board
itself indicated that the applicant’s absence from the members’ meeting held in
Ottawa on June 15, 2011, was the pivotal factor for its decision. Although
the Board tasked an officer with gathering evidence in this regard, the
testimony taken was not sworn, witnesses were not cross‑examined, and
none of the other evidence (aside from the recordings that the Board had not
heard) was able to resolve the contradictory versions on this point.
[49]
Given these circumstances, and following the
Board’s own reasoning in its decision (which indicated that the applicant’s
attendance at the meeting in question was the determinative issue in the
matter), the Board should have held an oral hearing in the interest of
procedural fairness.
[50]
I am therefore of the view that in the
particular circumstances of this case, the Board breached procedural fairness
by refusing to consider the recordings of the meeting held on
June 15, 2011
submitted by the applicant and by refusing to hold an oral hearing to resolve
the contradictory versions with regard to the applicant’s participation in the
meeting.
Conclusions
[51]
I would therefore allow the two applications for
judicial review with one set of costs for both applications, set aside the
Board’s initial decision and reconsideration decision, and refer the matter
back to the Board for reconsideration of the complaint submitted by the
applicant in light of the reasons of this Court by a panel consisting of
members who did not participate in either of these decisions.
“Robert M. Mainville”
“I agree.
Johanne Gauthier J.A.”
“I agree.
Johanne Trudel J.A.”
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