Date: 19990623
Docket: A-247-98
OTTAWA, ONTARIO, WEDNESDAY, JUNE 23, 1999
CORAM: MARCEAU J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
RODNEY MCLEAN
Appellant
- and -
INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION, LOCAL 502
Respondent
JUDGMENT
The application is dismissed with costs.
Louis Marceau
J.A.
Date: 19990623
Docket: A-247-98
CORAM: MARCEAU J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
RODNEY MCLEAN
Appellant
- and -
INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION, LOCAL 502
Respondent
Heard at Vancouver, British Columbia on Friday, June 11, 1999
Judgment delivered at Ottawa, Ontario on Wednesday, June 23, 1999
| REASONS FOR JUDGMENT BY: NOËL J.A. |
| CONCURRED IN BY: MARCEAU J.A. |
SEXTON J.A.
Date: 19990623
Docket: A-247-98
CORAM: MARCEAU J.A.
NOËL J.A.
SEXTON J.A.
BETWEEN:
RODNEY MCLEAN
Appellant
- and -
INTERNATIONAL LONGSHOREMEN'S AND
WAREHOUSEMEN'S UNION, LOCAL 502
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1] This is an application for judicial review brought by Rodney McLean (the "applicant") of the March 25, 1998 decision of the Canada Labour Relations Board ( the "Board"), on the ground that the Board refused to adjudicate upon his claim for economic loss and damages.
[2] On May 5, 1994, the applicant filed a complaint with the Board alleging that the respondent, International Longshoremen's and Warehousemen's Union (the "union"), had breached section 69 of the Canada Labour Code1 (the "Code") by operating its hiring hall in a discriminatory manner. On March 7, 1996, the Board issued its decision on the merits of the complaint and found the union in violation of the Code. Pursuant to section 20 of the Code, the Board retained jurisdiction to order a remedy and directed that the hearing of the matter be reconvened to provide the parties with an opportunity to address the appropriate remedy. The Board held this hearing on April 2, 1996, and on April 26, 1996, ordered the union to alter its seniority list; the Order did not mention the payment of damages to Mr. McLean by the union. A Commissioner was appointed to ensure the implementation of the Order and on August 20, 1997, the Board adopted the recommendations of the Commission in this respect. As a result of the implementation of the Board's Order, in late 1997, the applicant moved up 65 spots on the seniority list.
[3] On March 5, 1998, some six months after the August 20th decision was rendered, the applicant requested that the Board re-convene a hearing to determine his complaint in respect of damages, claiming that the Board had retained jurisdiction to do so. On March 25, 1998, the Board advised the applicant that:
| In its letter decision of August 20, 1997, the Board did not, in fact, reserve jurisdiction with respect to any issues of "economic redress or damages" as referred to by you in your letter. |
| As a matter of fact, the Board advises that the question of economic loss and damages had been discussed in the course of the various presentations before it and the Board determined that no order would be made in that regard. |
| In that respect, therefore, the Board is now functus and will not be convening a hearing as requested by you, the Board's file in this matter is now closed.2 |
[4] The applicant challenges this decision on the basis that the Board erred in declaring itself functus as it had not discharged its statutory duty pursuant to section 98(1) of the Code which requires the Board to "hear and determine the complaint." According to the applicant, in its decision of April 26, 1996, the Board retained jurisdiction to deal with the issue of economic damages; the Board could not calculate the applicant's damages until the seniority list was updated. In failing to deal with this issue, the Board did not decide all that it was required to decide.
[5] I cannot accept the argument that the Board failed to fulfil its duty to "hear and determine the complaint." The Board was under no duty to order any particular type of remedy in respect of the union's breach of section 69 of the Code3 and as such it cannot be said that it failed to deal with an essential requirement of the fashioning of the remedy.
[6] Furthermore, when the matter is placed in context, it seems clear that the Board in its April 26, 1996, decision decided not to award any economic remedy. The Board at this juncture of the proceedings had before it the submissions of the applicant on this point as well as those of the union which argued that:
| Any claim for compensation would have to be the subject of a full evidentiary hearing and ... this would not be an appropriate remedy in this case. This is so since the purpose of the remedy is to deal with the "systemic discrimination" that exists in the dispatch system.4 |
| [7] Having the matter squarely before it, the Board chose not to provide for any economic remedy. It restricted its Order to the revision of the seniority list and having noted that the implementation of the Order would require "a great deal of good faith and responsibility"5 on the part of all those concerned, the Board retained jurisdiction strictly for the purpose of implementing that Order. |
| [8] If the matter remained unclear to the applicant after the April 26, 1996 decision, no doubt could possibly have subsisted after the decision of August 20, 1997, had been rendered, again without provision for economic redress. The issuance of this decision had been preceded by a letter dated August 8, 1997, addressed to all interested parties including the applicant. It concluded: |
| Prior to the Board finalizing this matter, any person affected shall have 7 days from the date hereof to file a final submission with the Board if they so wish. Following the expiration of the said 7 days, the Board shall issue its final decision regarding this matter.6 [my emphasis] |
| [9] The decision of August 20, 1997, specified that the Board retained jurisdiction only: |
| ... with respect to the implementation of the recommendations of the Commissioner to ensure that the casual list and admission of members into the union, as recommended by the Commissioner, are implemented as directed above.7 |
| [10] Against this background, it seems clear that the applicant"s request to reopen the matter, some six months after the decision of August 20th , on the basis that the Board had failed to deal with his economic claim, was no more than a belated attempt to attack the earlier decisions. |
| [11] The application ought to be dismissed with costs. |
| Marc Noël |
| J.A. |
| "I agree. |
| Louis Marceau, J.A." |
| "I agree. |
| J. Edgar Sexton J.A." |
2 Applicant's Record at Tab 5F.
3 See the statement to this effect by this Court in International Longshoremen's and Warehousemen's Union, Local 502 v. McLean, [1996] F.C.J. No. 1269 (C.A.). Compare this to the facts in Association Internationale des Commis de Détail, Local 486 v. Commission des Relations de Travail du Québec, [1971] S.C.R. 1043, where the Board was specifically required to make a decision which it failed to make.
4 Outline of Argument, para. 6, Respondent"s Record, p. 18.
5 Reasons for Decision, Applicant"s Record, Tab 5c, p. 64.
6 Letter dated August 8, 1997 addressed to Rodney McLean, Respondent"s Record, p. 27.