Date:
20101216
Docket:
A-394-10
Citation: 2010 FCA 346
MAINVILLE
J.A.
BETWEEN:
LES SERVICES DE SANTÉ CLAUDE
GERVAIS INC., ENTREPRISE DAVID TAN INC., GESTION NOURA A. SHAHID INC., GESTIONS
FORTIER-ALLAN INC., 2321-5510 QUÉBEC INC., 9186-9750 QUÉBEC INC., 9013-5617
QUÉBEC INC., 2970-9177 QUÉBEC INC., 139273 CANADA INC., 9199-8468 QUÉBEC INC. AND ENTREPRISES JAMI
ELATE, 7302622 CANADA INC.
Applicants
and
CANADIAN UNION
OF POSTAL WORKERS
Respondent
and
CANADA POST CORPORATION
PHARMAPRIX INC. AND
SHOPPERS DRUG MART INC.
Respondents
REASONS
FOR ORDER
MAINVILLE
J.A.
[1]
The
applicants submitted a motion to amend their application for judicial review of
a decision of the Canada Industrial Relations Board dated September 22, 2010,
bearing citation 2010 CIRB LD 2426, in order to add the Attorney General of
Canada, Canada Post Corporation, Shoppers Drug Mart Inc., Pharmaprix Inc., Les
Entreprises Kim Luu Inc., Les Gestions Magdi Tebechrani Inc., 9183-0067 Québec Inc.,
Gestion Sylvain Goudreault Inc., 9159-8532 Québec Inc., Gestion Lucap Inc.,
9070-4701 Québec Inc., Carophil Inc., Gestion Lise Hamel-Chartrand Inc.,
Gestion Riteal Inc. and La Corporation de Gestion E.A. Michot, 9186-9750 Québec
Inc., Gestion Christian Duguay Inc., 9195-9965 Québec Inc., 2955-7196 Québec Inc.
Gestions
V. Mauriello Inc., Les Gestions Syl-Von Inc., Pharmacie Majed Bitar,
Entreprises AD Sidera Inc., and Tarek El-Gharib.
[2]
The
respondent, the Canadian Union of Postal Workers, or the companies and
businesses concerned, did not file a reply to this motion.
[3]
For
the reasons that follow, I will only allow part of the motion to add Canada
Post Corporation, Shoppers Drug Mart Inc., and Pharmaprix Inc. to the
proceedings.
[4]
This
order will be without effect on the right of another company or business
concerned by the motion to file, if it deems it appropriate, a notice of motion
for leave to intervene in this proceeding.
Background
[5]
The
background of the motion is drawn from the decisions of the Canada Industrial
Relations Board (the “CIRB”) filed with the affidavit submitted in support of
the motion.
[6]
On
February 26, 2010, the Canadian Union of Postal Workers (the “Union”)
simultaneously filed five applications for certification pursuant to section 24
of the Canada Labour Code, R.S.C. 1985, c. L-2 (the “Code”) and five
applications for a single employer declaration pursuant to section 35 of the Code.
The Union is seeking to be certified to represent employees who work at the
postal counters of various Pharmaprix franchises in a given geographic area.
The applicants are involved in two CIRB files, 27977-C and 27981-C, while the
companies and businesses concerned by the, motion are involved in three other
CIRB files, 27978-C, 27979-C and 27980-C.
[7]
On
March 11, 2010, Canada Post Corporation filed a preliminary objection at the
CIRB seeking to have the Union’s applications denied on the ground that they
did not meet the requirements of the Canada Industrial Relations Board
Regulations, SOR/2001-520. On March 16, 2010, Pharmaprix filed a preliminary
objection on the same basis, specifying that it was impossible for it to
determine the scope of the single employer applications filed by the Union,
since these applications did not specify which employers were contemplated. The
other employers in the five other files at issue subscribed to this preliminary
objection.
[8]
The
preliminary objection in the five files at issue was dismissed by the Board in
a decision dated June 14, 2010, bearing citation 2010 CIRB LD 2369. The Board
therefore returned all five files to proceed with the hearing.
[9]
Several
of the companies and businesses involved applied for a review of this decision
in accordance with section 18 of the Code. The application for review was
dismissed by the CIRB in its decision dated September 22, 2010, bearing
citation 2010 CIRB LD 2426.
[10]
The
applicants are seeking the judicial review of this latest decision in this
proceeding. Neither Canada Post Corporation, nor Pharmaprix Inc., who made the preliminary
objection before the Board in the five files at issue, joined the applicants in
the application for judicial review. The same applies to the employers involved
in the three other files before the CIRB.
[11]
However,
in the applicants’ notice of application for judicial review, they added all
these employers as “Interested Parties” to the proceedings. According to the
affidavit submitted in support of the motion, the Registry staff allegedly
refused to include these other employers in the proceedings [translation] “on the basis that
employers were described as interested parties, rather than respondents, in the
style of cause of the notice of application” (Affidavit of Shawn Connelly at
paragraph 2).
Analysis
[12]
I
note that the Attorney General of Canada did not participate in the proceedings
before the CIRB and that there was no reason submitted by the applicant to
justify why he was added as a respondent. I further note that there is no proof
of service of the motion record on the Attorney General of Canada in the
record. In these circumstances, it is appropriate to dismiss the applicants’
motion with respect to the Attorney General of Canada.
[13]
With
regard to the other companies and businesses contemplated by the motion, they
are not challenging the CIRB’s decision. There is therefore res judicata
in respect to them in files 27978-C, 27979-C, and 27980-C of the CIRB, to which
the applicants are not party. These companies and businesses did not apply for
a judicial review of the CIRB’s decision in the files that concern them, and I
do not see any interest for the proper administration of justice to force them
to participate without their consent in the proceedings brought by the
applicants.
[14]
Moreover,
the applicants did not show why the presence of these companies and businesses would
be necessary to ensure a full trial and the resolution of the issues in this
proceeding. These companies and businesses are not directly affected by the two
CIRB files involving the applicants, 27977-C and 27981-C, and they therefore do
not have to be designated as respondents in the application for judicial review
brought by the applicants.
[15]
If
one of these companies or businesses is of the opinion that it should
nevertheless participate in the proceeding, it should file a notice of motion
in accordance with Rule 109 of the Federal Courts Rules, SOR/98-106 for
leave to intervene. If applicable, it must explain in what manner it wishes to
participate in the proceeding and how that participation will assist the
determination of a factual or legal issue related to the proceeding. The Court,
if it grants such a motion, could then make the leave subject to appropriate
conditions in particular regarding the role of the intervener and the procedure
to follow.
[16]
However,
Canada Post Corporation, Pharmaprix Inc. and Shoppers Drug Mart Inc. are
employers involved in CIRB files 27977-C and 27981-C, which directly concern
the applicants. Considering this fact, even if these companies do not challenge
the CIRB decision at issue, they are nonetheless, within the meaning of Rule
303(1)(a) of the Federal Courts Rules, persons directly affected
by the order sought by the applicants in their application for judicial review.
In fact, the outcome of files 27977-C and 27981-C before the CIRB is in part
connected to this Court’s eventual decision with respect to the application for
judicial review.
[17]
Canada
Post Corporation, Pharmaprix Inc., and Shoppers Drug Mart Inc. will therefore
be named as respondents on the application for judicial review, as required by
Rule 303(1)(a) of those Rules.
[18]
Since
there is a very good chance that the interests of the respondent in this
proceeding, the Canadian Union of Postal Workers, differ from the interests of
these companies, and considering the fact that these companies did not
challenge the CIRB decision at issue before this Court, or otherwise
participate in this motion, it is appropriate to set out some specific
provisions in order to ensure that this hearing is managed in a fair and
equitable manner.
[19]
Rule
3 of the Federal Court Rules requires that these Rules be interpreted
and applied so as to secure the just, most expeditious and least expensive
determination of every proceeding on its merits. Rule 53 allows the Court, in
making an order, to impose such conditions and directions as it considers just,
while Rule 55 allows the Court, in special circumstances, to vary a rule or
dispense with compliance with a rule.
[20]
Accordingly,
the following provisions will apply to manage the participation of Canada Post
Corporation, Pharmaprix Inc., and Shoppers Drug Mart Inc. in this proceeding in
a fair and equitable manner:
a. within 10 days of this
order, each one of the companies must serve and file a notice of appearance if
it intends to participate in the proceeding; given the date of this order, the
Christmas recess not be included in the computation of this 10-day period,
similar to what is provided in subsection (3) of Rule 6;
b. if a company fails to
appear, the company concerned will be deemed to no longer be participating in
the proceeding;
c. these companies will
not file any affidavit or documentary evidence in this proceeding;
d. each of these
companies, in the respondent’s record, will limit the memorandum of fact and
law to a maximum of 10 pages;
e. the other parties will
serve on these companies all the affidavits, documentary evidence, files,
applications, motions, and other procedures within the time and in the manner
provided in the Rules for a respondent.
[21]
The
style and cause of this proceeding will henceforth be the style and cause of
the order following these reasons.
“Robert
M. Mainville”
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