Date: 20000620 Docket: A-106-99
CORAM: LINDEN J.A. ROTHSTEIN J.A. MALONE J.A.
BETWEEN:
MARINE ATLANTIC INC.
Applicant
-and
CANADIAN MERCHANT SERVICE GUILD and THE ATTORNEY GENERAL OF CANADA
Respondents
HEARD at Montreal, Quebec, on Tuesday, June 20, 2000
JUDGMENT delivered from the Bench on Tuesday, June 20, 2000
REASONS FOR JUDGMENT OF THE COURT BY: ROTHSTEIN J.A.
Date: 20000620 Docket: A-106-99
CORAM: LINDEN J.A. ROTHSTEIN J.A. MALONE J.A.
BETWEEN:
MARINE ATLANTIC INC.
Applicant
-and
CANADIAN MERCHANT SERVICE GUILD and THE ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT (Delivered from the Bench at Montreal, Quebec, on Tuesday, June 20, 2000)
ROTHSTEIN J.A.
[1] This is a judicial review of a January 19, 1999 order of the Canada Industrial Relations Board certifying the Canadian Merchant Service Guild as the bargaining agent for a unit comprising:
all employees on vessels owned, operated or chartered by Marine Atlantic Inc., classified as senior master, master, senior chief engineer, chief engineer, chief electrical engineer and senior chief electrical engineer.
[2] The employer, Marine Atlantic Inc., challenges the order on a number of grounds.
Page: 2
1. Did the Board breach the principles of natural justice by not issuing reasons accompanying its order?
[3] The applicant relies on Baker v. Minister of Citizenship and Immigration, [1999] 2 S.C.R.
817, which, for the first time, imposed a common law duty on tribunals to provide reasons where
circumstances require. At paragraph 43, L'Heureux-DubéJ. stated:
In my opinion, it is now appropriate to recognize that, in certain circumstances, the duty of procedural fairness will require the provision of a written explanation for a decision. The strong arguments demonstrating the advantages of written reasons suggest that, in cases such as this where the decision has important significance for the individual, when there is a statutory right of appeal, or in other circumstances, some form of reasons should be required. This requirement has been developing in the common law elsewhere. The circumstances of the case at bar, in my opinion, constitute one of the situations where reasons are necessary. The profound importance of an H & C decision to those affected, as with those at issue in Orlowski, Cunningham, and Doody, militates in favour of a requirement that reasons be provided. It would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached.
The applicant says the issue in this certification was one of great significance to the company as it involved the inclusion of management personnel in a bargaining unit. The applicant also says that reasons are required in order for it to be able to meet the patent unreasonableness standard of review that generally applies to decisions of the Board.
[4] Based on the rationale outlined in Baker, while not required in every case, it will generally be a salutary practice for tribunals to provide reasons for their decisions. However, it is not necessary for this Court to determine whether this is a case in which reasons are required. The applicant concedes that it did not ask the Board to provide reasons. In fact, although the applicant sought reconsideration by the Board, the absence of reasons was not one of the grounds for that application.
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[5] In Liang v. The Minister of Citizenship and Immigration (1999) F.C.J. No. 1301, Evans J.
(as he then was) stated at paragraph 31:
However, in my opinion, the duty of fairness normally only requires reasons to be given on the request of the person to whom the duty is owed and, in the absence of such a request, there will be no breach of the duty of fairness.
We agree with Evans J. Before seeking judicial review of a tribunal order on the grounds of failure to provide reasons, there is an obligation on parties to request reasons from the tribunal. If the tribunal refuses or provides inadequate reasons, resort to the Court may be appropriate. However, it would unduly complicate the administration of justice if parties could resort to the Court to seek to quash orders of tribunals on the grounds of failure to provide reasons without first requesting them from the tribunal.
[6] A request to the Board may be met with reasons or alternatively, an explanation why reasons are not, in the view of the Board, required in the circumstances. We see no prejudice to a party before a tribunal having to request reasons before resorting to judicial review in the Court.
[7] We should add that while a request to the tribunal for reasons is the usual requirement, there may be circumstances in which the obligation of the tribunal to provide reasons is so plain and obvious, that upon no reasons being provided, recourse to the Court without a request for reasons from the tribunal may be appropriate. Perhaps there may be circumstances in which a party for some reason cannot request reasons from the Board. Such situations, we think, would be exceedingly unusual.
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[8] In this case, the failure to request reasons is fatal to this aspect of the judicial review application. While the matter may be of significance to the applicant, there is no satisfactory explanation why the applicant could not have requested reasons from the Board. This ground of the applicant's judicial review must be rejected.
2. Did the Board err in law or breach principles of natural justice in not providing the applicant with an opportunity for an oral hearing?
[9] The applicant concedes there is no statutory obligation on the Board to conduct oral hearings. However, the applicant says that the report of the Board's investigating officer of November 16, 1998 raised a number of issues which compelled the Board, in accordance with natural justice principles, to provide for an oral hearing in order to allow the parties to respond and test the evidence gathered by the investigator.
[10] The investigating officer's report was provided to the parties. While they were expressly invited to make submissions if they disagreed with those portions of the report outlining the positions of the parties, nothing precluded them from submitting their views on any other aspect of the report to which they objected. Neither party made any submission to the Board relative to the report.
[11] While natural justice may, in some circumstances call for an oral hearing, this case is clearly not in that category. The applicant did not take the opportunity provided to it to comment
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on the investigator's report. Although now the applicant alleges a variety of inadequacies in the report, there is no reason why such alleged inadequacies could not have been addressed in writing by the applicant to the Board. Nothing in the material before the Court indicates that written submissions would not have been an adequate way in which to address such concerns. There is, therefore, no basis to conclude that there was any breach of the principles of natural justice by the Board not providing for an oral hearing in this case.
3. Did the Board reach a patently unreasonable decision?
[12] The central complaint of the applicant is that the inclusion of masters and other occupations in the bargaining unit involves the inclusion of management personnel. The argument is made that because these occupations have certain disciplinary powers, participation in policy-making and other criteria reflective of management, that these occupations should not be included in the bargaining unit. It is argued that the Board failed to take into consideration these management functions. It is also said that the Board erred in construing the Canada Labour Code R.S.C.,1985, c. L-2, by including persons who perform management functions as employees in the bargaining unit. The applicant, conceding that the standard of review on this issues is patent unreasonableness, asserts these are patently unreasonable errors.
[13] The material before us indicates that these matters were extensively canvassed by the parties in their submissions to the Board. While the applicant focused on the management aspect of the positions, the union rebutted the applicant's assertions. For example, the union argued that
Page: 6
while a master or chief engineer may file a disciplinary report and recommendation with management, they do not make the final disciplinary decision. According to the preamble to its order, the Board had before it what the parties submitted and made its decision based on that information and on its investigating officer's report. Had the Board made a determination that was completely unsupported by the material before it, its decision might well have been patently unreasonable. That is not the case here. The union made submissions in response to the applicant's management arguments. Apparently those submissions persuaded the Board to grant certification. In doing so, the Board was acting squarely within its jurisdiction. We can see no patently unreasonable error in the Board having ordered certification on the material it had before it.
[14] Paragraph 16(p) of the Code confers on the Board the jurisdiction to decide whether a person is an employer or an employee and whether a group of employees is a unit appropriate for collective bargaining. Under subsection 27(5), where an application for certification includes a unit composed of employees whose duties include the supervision of other employees, the Board may determine that the unit is appropriate for collective bargaining. The Board exercised its jurisdiction under these provisions. In doing so, it decided that the personnel in question were employees and constituted a group appropriate for collective bargaining.
[15] We can see no construction of these or any other provisions of the Code that would render the certification ordered by the Board patently unreasonable. Even though there was some
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evidence of functions that may have a management component, the Board could properly decide that the persons seeking certification in this matter were employees under the Code.
[16] The judicial review should be dismissed with costs.
"Marshall Rothstein"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-106-99
STYLE OF CAUSE: Marine Atlantic Inc. v. Canadian Merchant Service Guild et al.
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: Tuesday, June 20, 2000
REASONS FOR JUDGMENT OF THE COURT (LINDEN, ROTHSTEIN, MALONE, JJ.A.)
DELIVERED FROM THE BENCH BY: ROTHSTEIN, J.A.
APPEARANCES:
Mr. Ian Pickard
Ms. Kimberley Turner
FOR THE APPLICANT
FOR THE RESPONDENT CANADIAN MERCHANT SERVICE GUILD
No one appearing FOR THE RESPONDENT AGC
SOLICITORS OF RECORD:
Patterson Palmer Hunt Murphy
Halifax, Nova Scotia FOR THE APPLICANT
Pink Breen Larkin
Halifax, Nova Scotia FOR THE RESPONDENT CANADIAN MERCHANT SERVICE GUILD
Mr. Morris Rosenberg
The Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT AGC