Docket: A-68-16
Citation:
2017 FCA 62
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CORAM:
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NEAR J.A.
RENNIE J.A.
GLEASON J.A.
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BETWEEN:
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FRANKLIN E.
CHIN QUEE
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Applicant
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and
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TEAMSTERS LOCAL
#938 and
1ST STUDENT
CANADA
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Respondent
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REASONS
FOR JUDGMENT
GLEASON J.A.
[1]
In this application for judicial review, Mr.
Chin Quee seeks to set aside the decision of the Canada Industrial Relations
Board (the CIRB or the Board), dated January 27, 2016, in which the Board
dismissed his application under section 37 of the Canada Labour Code,
R.S.C. 1985, c. L-2. That provision prohibits a trade union from acting in a
manner that is arbitrary, discriminatory or in bad faith in its representation
of a bargaining unit member.
[2]
The deferential reasonableness standard is
applicable to the review of the Board’s decision. Thus, this Court cannot
intervene unless the Board’s decision is unreasonable: Dumont v. Canadian
Union of Postal Workers, 2011 FCA 185 at paras. 33-34, 423 N.R. 143.
[3]
At the outset of the hearing, Mr. Chin Quee
sought to file an additional affidavit, containing several exhibits. We
indicated that we would rule on this request at the end of the case.
[4]
I would determine that Mr. Chin Quee’s
additional materials are inadmissible as they were not before the CIRB when it
made the decision under review in this application and do not fall into any of
the exceptions as to when additional evidence may be adduced in the context of
a judicial review application.
[5]
It is well settled that, in general, a judicial
review application is to be determined based on the record that was before the
administrative decision-maker. The recognized exceptions to this rule are
narrow and generally involve only three types of evidence: general evidence of
a background nature that is of assistance to the Court; evidence that is
relevant to an alleged denial of procedural fairness by the decision-maker that
is not evident in the record before the decision-maker; or evidence that
demonstrates the complete lack of evidence before a decision-maker for an
impugned finding: Association of Universities and Colleges of Canada v.
Canadian Copyright Licencing Agency (Access Copyright), 2012 FCA 22 at
paras. 18-20, 428 N.R. 297; International Relief Fund for the Afflicted and
Needy (Canada) v. Canada (National Revenue), 2013 FCA 178 at para. 10, 2013
D.T.C. 5161. As the evidence sought to be tendered by Mr. Chin Quee does not
fall into any of the foregoing exceptions, it is inadmissible.
[6]
The same applies to Mr. Chin Quee’s original affidavit,
filed in support of this application, to which the respondent union also objects.
It was not before the CIRB when it made the impugned decision and does not fall
into one of the exceptional situations where additional evidence may be filed
in the context of a judicial review application. I accordingly would not have
regard to this affidavit in deciding this application.
[7]
In any event, the content of both affidavits is
irrelevant to the issues before us.
[8]
Turning to the merits of Mr. Chin Quee’s
application, the focus of his submissions before the CIRB turned on his
disagreement with a provision in the collective agreement, which he claimed
violated his entitlements under minimum standards legislation. However, that is
not the issue before us. We are not called on to determine the legality of the
collective agreement provisions in question, nor to rule on whether his
employer possessed just cause to terminate his employment, nor to determine
whether he was dismissed or constructively dismissed, nor to assess the merits
of the grievance that he filed contesting that discharge (that the respondent union
declined to refer to arbitration). Rather, our inquiry concerns only whether
the CIRB’s decision in dismissing Mr. Chin Quee’s unfair representation
complaint was reasonable.
[9]
We see nothing unreasonable in the Board’s
decision in the present case. The CIRB wrote fulsome and well-articulated
reasons, applied its settled case law to the assessment of the respondent
union’s conduct and there was ample basis on the record before it from which it
could reasonably conclude that the respondent had not violated its obligations
under section 37 of the Canada Labour Code. In short, the materials
before the Board provided it with a solid basis from which to conclude that the
union had demonstrated that it fairly, honestly and without discrimination assessed
the merits of Mr. Chin Quee’s grievance and concluded that it had little chance
of success. The union also demonstrated that it had represented Mr. Chin Quee
in the disciplinary process and the grievance procedure. Contrary to what Mr.
Chin Quee asserts, the union did not err in filing a grievance contesting his
dismissal as opposed to challenging an alleged constructive dismissal because the
appropriate grievance in the circumstances was one contesting the dismissal. It
was therefore open to the CIRB to find that the union’s decision not to refer
the grievance to arbitration and the union’s treatment of Mr. Chin Quee did not
violate section 37 of the Canada Labour Code.
[10]
I would therefore dismiss this application for
judicial review, with costs, which I would fix in the all-inclusive amount of $4000.00.
“Mary J.L. Gleason”
“I agree
D.G. Near J.A”
“I agree
Donald J. Rennie
J.A.”
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