Date: 19991118
Docket: A-367-98
CORAM: STRAYER J.A.
LINDEN J.A.
ROTHSTEIN J.A.
BETWEEN:
CANADIAN AIR TRAFFIC CONTROL ASSOCIATION
Applicant
- and -
NAV CANADA
Respondent
Heard at Ottawa, Ontario, on Thursday, November 18, 1999
Judgment delivered from the Bench at Ottawa, Ontario, on Thursday, November 18, 1999
REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A.
Date: 19991118
Docket: A-367-98
CORAM: STRAYER J.A.
LINDEN J.A.
ROTHSTEIN J.A.
BETWEEN:
CANADIAN AIR TRAFFIC CONTROL ASSOCIATION
Applicant
- and -
NAV CANADA
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario
on Thursday, November 18, 1999)
ROTHSTEIN J.A.
[1] This is an application to set aside a May 17, 1998 order of the Canada Labour Relations Board on the basis that it was made without notice to the applicant and therefore was made in breach of the rules of natural justice and in breach of the Canada Labour Code.
[2] On March 29, 1998, the Board had made an order requiring the members of the applicant union to cease and desist from illegal activity in the nature of a strike and from unlawfully limiting their work availability and output. The May 17, 1998 order of the Board ordered that the March 29, 1998 order be filed in the Federal Court of Canada under subsection 23(1) of the Canada Labour Code. Subsection 23(1) of the Canada Labour Code provides:
| 23. (1) The Board shall, on the request in writing of any person or organization affected by any order or decision of the Board, file a copy of the order or decision, exclusive of the reasons therefor, in the Federal Court, unless in the opinion of the Board, (a) there is no indication of failure or likelihood of failure to comply with the order or decision; or (b) there is other good reason why the filing of the order or decision of the Federal Court would serve no useful purpose. |
23. (1) Sur demande écrite de la personne ou de l'organisation intéressée, le Conseil dépose à la Cour fédérale une copie du dispositif de la décision ou de l'ordonnance sauf si, à son avis: a) ou bien rien ne laisse croire qu'elle n'a pas été exécutée ou ne le sera pas; b) ou bien, pour d'autres motifs valables, le dépôt ne serait d'aucune utilité. |
[3] The May 17, 1998 order was made without the applicant having the opportunity to make submissions to the Board as to whether there was an indication of failure or likelihood of failure to comply with the March 29, 1998 order by the applicant's members or whether there was any other good reason why the filing of that order in the Federal Court would serve no useful purpose. In fact, the applicant did file a submission with the Board on May 18, 1998 but this was after the Board had made its May 17, 1998 order.
[4] On May 19, 1998, after the applicant had become aware of the Board's May 17, 1998 order, the applicant wrote to the Board asking that its order of May 17 be rescinded on the grounds of breach of natural justice and that material facts were not brought to the Board's attention. On May 25, 1998, the Board wrote the applicant with a copy to the respondent, acknowledging receipt of the applicant's May 18 submission and some other correspondence, advised the respondent that it had ten days to reply and advised the applicant that it would have ten days to file a further response.
[5] Counsel advised us that the applicant was concerned that it would lose its right to seek judicial review in a timely manner and filed this application for judicial review on June 8, 1998. Apparently when the Canada Labour Relations Board was advised that an application for judicial review had been filed in the Court, it deferred proceeding with the reconsideration application filed before it by the applicant pending outcome of the judicial review.
[6] Without deciding the issue, we are prepared, for purposes of this case, to accept that the process under subsection 23(1) of the Canada Labour Code requires the Board to formulate an opinion as to whether to file an order it makes in the Federal Court, that such an opinion constitutes a decision and that prior to making such decision, affected parties should be given notice and the opportunity to make submissions to the Board. It seems that the Board may have been of that view as it did agree to give the applicant the opportunity to make submissions and to reconsider its May 17, 1998 order.
[7] Nonetheless, in the circumstances of this case, it would not be appropriate to allow the judicial review. The applicant's remedy was before the Board. The Board agreed to do exactly what the applicant requested, to reconsider its May 17, 1998 order after receiving further submissions. This Court could not grant the applicant any better remedy and indeed, the applicant did not ask for any other remedy.
[8] When a party seeks to remedy a procedural defect before a tribunal and the tribunal agrees to what the applicant seeks, except in unusual circumstances which are not present here, it is inappropriate for the applicant to ignore the tribunal and insist on proceeding to Court. In this case, the reconsideration application by the Board would have proceeded within a month or two, according to the timetable set by the Board. By insisting on proceeding with judicial review, some eighteen months have elapsed. The applicant concedes that the application is now moot. It is plain and obvious that the applicant should have proceeded before the Board.
[9] Court intervention involving proceedings before the Canada Labour Relations Board is limited. The parties agree that in matters within the expertise of the Board, the standard of review is patent unreasonableness. While the standard of review on the issue of natural justice will be correctness, where the Board voluntarily agrees to remedy a defect in its process, the parties should, unless there are good reasons for not doing so, proceed before the Board. That is what the applicant should have done in this case.
[10] The application will be dismissed.
"Marshall Rothstein"
J.A.