Date: 20040216
Docket: A-698-02
Citation: 2004 FCA 69
CORAM: DÉCARY J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
ADM AGRI-INDUSTRIES LTÉE
Applicant
and
SYNDICAT NATIONAL DES EMPLOYÉS DE
LES MOULINS MAPLE LEAF (DE L'EST) (CSN)
Respondent
Hearing held at Montréal, Quebec, on February 3, 2004.
Judgment rendered at Ottawa, Ontario, on February 16, 2004.
REASONS FOR JUDGMENT: DÉCARY J.A.
NADON J.A.
CONCURRED IN BY: NOËL J.A.
Date: 20040216
Docket: A-698-02
Citation: 2004 FCA 69
CORAM: DÉCARY J.A.
NOËL J.A.
NADON J.A.
BETWEEN:
ADM AGRI-INDUSTRIES LTÉE
Applicant
and
SYNDICAT NATIONAL DES EMPLOYÉS DE
LES MOULINS MAPLE LEAF (DE L'EST) (CSN)
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
NADON J.A.
[1] This is an application for judicial review of a decision by the Canada Industrial Relations Board (the Board) dated December 2, 2002. The Board, sitting in review pursuant to section 18 of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code), amended a decision made by Michele A. Pineau, Vice-Chairperson, sitting alone on November 15, 2001. The Board's conclusion, as appears at paragraph 65 of its decision, reads as follows:
65. For all these reasons, the present reconsideration panel finds that the decision of the original panel must be amended, in light of the principles of stability and the promotion of free collective bargaining that constitute the Board's mandate. The present panel therefore amends the original panel's decision and substitute its declaratory opinion by the following:
The collective agreement between the parties has expired since January 31, 1997. However, because of clause 34.01, the terms and conditions of that collective agreement must continue to apply until one of the parties has exercised its right to strike or lockout. Consequently, as of April 3, 1999, as long as one of these rights had not been exercised, the employer could not be authorized to unilaterally alter the terms and the conditions of employment, without the union's agreement.
[2] The applicant (the employer) is asking the Court to set aside the Board's decision for two reasons: first, because the Board exceeded its jurisdiction, and second, alternatively, because its decision was patently unreasonable.
Facts
[3] The relevant facts are as follows. On February 28, 1997, the employer acquired a business previously operated by Les Moulins Maple Leaf Ltée, whose collective agreement with its employees ended on January 31, 1997. Clause 34.01 of the agreement, which set out the conditions for its bridging extension, provided the following:
34.01 This agreement comes into effect on the date it is signed and will expire on January 31, 1997. After that date, the collective agreement will continue to apply until one of the parties exercises its right to strike or lockout, as applicable. [Emphasis added.]
[4] On June 10, 1997, the employer sent the respondent (the union) a bargaining notice. Following difficult and unproductive negotiations between July 22, 1997 and May 26, 1998, the employer sent the Minister of Labour (the Minister) a dispute notice pursuant to section 71 of the Code, and the Minister at once appointed a conciliator.
[5] On October 14, 1998, following conciliation sessions held between August and October 1998, the employer tabled a final proposal in the form of a new collective agreement.
[6] On March 3, 1999, the union rejected the employer's offer, and on March 26, 1999, the Federal Mediation and Conciliation Service informed the parties of its decision not to appoint a conciliation commissioner and set up a conciliation panel.
[7] On April 3, 1999, as in its opinion the conditions laid down in paragraph 50(b) and subsection 89(1) of the Code had been met, and consequently the statutory freeze of working conditions was ended, the employer informed the union that it intended to unilaterally alter the terms of employment.
[8] As of that date, the union filed about 600 grievances demanding that the terms of the collective agreement be implemented.
[9] On March 30, 2000, following the layoff of 14 employees by the employer, the union filed 14 grievances on the ground that these layoffs had been made contrary to clause 34.01 of the collective agreement. The grievances were referred to arbitration.
[10] Before the arbitrator Pierre Dufresne, assigned by the Minister to hear the grievances, the employer raised a preliminary objection challenging his jurisdiction to hear the grievances. According to the employer, since its right to order a lockout was established pursuant to paragraphs 50(b) and 89(1)(a) to (d) of the Code, it could unilaterally amend the salary rates and other terms of employment.
[11] On June 5, 2001, the arbitrator concluded that he had jurisdiction to hear the grievances, as under clause 34.01 of the collective agreement, the parties had agreed to extend the working conditions laid down in the collective agreement until one or the other exercised its right to strike or lockout.
[12] On July 4, 2001, the employer filed an application for judicial review of the arbitrator's decision in the Superior Court of Quebec, which on October 9, 2001, dismissed this application.
[13] On December 12, 2001, the Quebec Court of Appeal dismissed the employer's motion for leave to appeal the Superior Court judgment.
[14] Concurrently with the proceedings in the Quebec Superior Court, the employer on February 21, 2002, filed an application for a declaratory opinion of the Board pursuant to sections 15.1 and 65 of the Code, regarding the existence of a collective agreement and, if applicable, its right to alter the conditions of employment, as set out in paragraph 50(b) of the Code.
[15] On November 15, 2001, the Board, per Ms. Pineau, Vice-Chairperson, concluded that the effects of the collective agreement applicable to the parties had terminated on April 3, 1999. Consequently, in Ms. Pineau's view, the employer was entitled to amend the working conditions as of that date.
[16] On December 6, 2001, the union asked the Board to review the decision made by Ms. Pineau, and on December 11, 2001, the union filed an application for judicial review in this Court against Ms. Pineau's decision.
[17] On October 28, 2002, the Board informed the parties that it intended to review Ms. Pineau's decision.
[18] On October 29, 2002, the union informed the Board that it wished to discontinue its application for review. On November 8, 2002, the Board informed the parties that it could not accept the discontinuance.
[19] On December 2, 2002, the Board decided that Ms. Pineau had erred in her interpretation of the Code by concluding as she did. Specifically, the Board concluded that the application of clause 34.01 of the collective agreement did not in any way contravene the Code.
[20] The employer then challenged this second decision of the Board by an application for judicial review. Two applications are before this Court and they have been joined for hearing. At the hearing, the union discontinued the one it had filed against Ms. Pineau's decision on November 15, 2001.
Legislation
[21] The following provisions of the Code are relevant:
| 18. The Board may review, rescind, amend, alter or vary any order or decision made by it, and may rehear any application before making an order in respect of the application.
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18. Le Conseil peut réexaminer, annuler ou modifier ses décisions ou ordonnances et réinstruire une demande avant de rendre une ordonnance à son sujet.
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| 50. Where notice to bargain collectively has been given under this Part, |
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| 50. Une fois l'avis de négociation collective donné aux termes de la présente partie, les règles suivantes s'appliquent :(a) the bargaining agent and the employer, without delay, but in any case within twenty days after the notice was given unless the parties otherwise agree, shall |
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a) sans retard et, en tout état de cause, dans les vingt jours qui suivent ou dans le délai éventuellement convenu par les parties, l'agent négociateur et l'employeur doivent : |
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| (i) meet and commence, or cause authorised representatives on their behalf to meet and commence, to bargain collectively in good faith and |
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(i) se rencontrer et entamer des négociations collectives de bonne foi ou charger leurs représentants autorisés de le faire en leur nom; |
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| (ii) make every reasonable effort to enter into a collective agreement; and |
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(ii) faire tout effort raisonnable pour conclure une convention collective; |
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| (b) the employer shall not alter the rates of pay or any other term or conditions of employment or any right or privilege of the employees in the bargaining unit, or any right or privilege of the bargaining agent, until the requirements of paragraphs 89(1)(a) to (d) have been met, unless the bargaining agent consents to the alteration of such a term or condition or such a right or privilege.
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b) tant que les conditions des alinéas 89(1)a) à d) n'ont pas été remplies, l'employeur ne peut modifier ni les taux des salaires ni les autres conditions d'emploi, ni les droits ou avantages des employés de l'unité de négociation ou de l'agent négociateur, sans le consentement de ce dernier.
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| 89. (1) No employer shall declare or cause a lockout and no trade union shall declare or authorize a strike unless |
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89. (1) Il est interdit à l'employeur de déclarer ou de provoquer un lock-out et au syndicat de déclarer ou d'autoriser une grève si les conditions suivantes ne sont pas remplies : |
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| (a) the employer or trade union has given notice to bargain collectively under this Part; (i) have failed to bargain collectively within the period specified in paragraph 50(a), or (ii) have bargained collectively in accordance with section 50 but have failed to enter into or revise a collective agreement; |
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a) l'un ou l'autre a adressé un avis de négociation collective en application de la présente partie; b) les deux : (i) soit n'ont pas négocié collectivement dans le délai spécifié à l'alinéa 50a), (ii) soit ont négocié collectivement conformément à l'article 50, sans parvenir à conclure ou réviser la convention collective; |
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| (c) the Minister has (i) received a notice, given under section 71 by either party to the dispute, informing the Minister of the failure of the parties to enter into or review a collective agreement, or (ii) taken action under subsection 72(2); |
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c) le ministre a : (i) soit reçu l'avis mentionné à l'article 71 et l'informant que les parties n'ont pas réussi à conclure ou à réviser la convention collective, (ii) soit pris l'une des mesures prévues par le paragraphe 72(2); |
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| (d) twenty-one days have elapsed after the date on which the Minister |
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| d) vingt et un jours se sont écoulés depuis la date à laquelle le ministre, selon le cas : (i) notified the parties of the intention not to appoint a conciliation officer or conciliation commissioner, or to establish a conciliation board under subsection 72(1), |
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(i) a notifié aux termes du paragraphe 72(1) son intention de ne pas nommer de conciliateur ou de commissaire-conciliateur, ni de constituer de commission de conciliation, |
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| (ii) notified the parties that a conciliation officer appointed under subsection 72(1) has reported, |
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(ii) a notifié aux parties le fait que le conciliateur nommé aux termes du paragraphe 72(1) lui a fait rapport des résultats de son intervention, |
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| (iii) released a copy of the report to the parties to the dispute pursuant to paragraph 77(a), or |
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(iii) a mis à la disposition des parties, conformément à l'alinéa 77a), une copie du rapport qui lui a été émis, |
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| (iv) is deemed to have been reported to pursuant to subsection 75(2) or to have received the report pursuant to subsection 75(3) . . .
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(iv) est réputé avoir été informé par le conciliateur des résultats de son intervention, en application du paragraphe 75(2), ou avoir reçu le rapport, en application du paragraphe 75(3) . . .
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Issues
[22] The application for judicial review raises two points. The first concerns the Board's jurisdiction to reconsider the decision by Ms. Pineau on November 15, 2001. The second point, raised alternatively, invites the Court to decide whether the Board's decision was patently unreasonable.
Board's jurisdiction
[23] The employer maintains that the Board exceeded its jurisdiction in two ways: by agreeing to hear an application to review, discontinued by the union, and by reviewing a decision in the absence of the circumstances specified by regulation.
A. Review after discontinuance
[24] The employer's argument that the Board reviewed its decision of its own motion is not correct.
[25] The union filed its application for review on December 6, 2001, within the deadline specified by section 45 of the Canada Industrial Relations Board Regulations, 2001, SOR/2001-520 (the Regulations). That document took the form of a lengthy memorandum of some 15 pages (employer's record, vol. 1, p. 34).
[26] The employer filed a four-page reply on December 20, 2001 (ibid., p. 68).
[27] On January 15, 2002, the union filed a lengthy response of some seven pages (ibid., p. 74).
[28] On January 16, 2002, a representative of the Board informed the parties that the case had been referred to the Board for consideration (ibid., p. 82).
[29] On February 28, 2002, the Board informed the parties of the composition of the panel assigned to rule on the review application. At that time it dismissed the request made by the employer to order the arbitrator Dufresne to suspend the arbitration. We note this passage: [TRANSLATION] "While the application for review is under review, the Board notes the application by the employer to stay the arbitration proceedings and . . . wishes to address this particular question at once" (ibid., p. 87).
[30] On March 6, 2002, the arbitrator postponed the hearing of the grievances sine die, [TRANSLATION] "in view of the fact that there is an application for review before the Board and in the Federal Court of Appeal" (ibid., p. 95).
[31] On May 8, 2002, the union asked the Board to suspend its hearing on the application for review until the Federal Court of Appeal had disposed of the application for judicial review (ibid., p. 96). There does not appear to have been any answer to that request.
[32] On October 28, 2002, the Board invited the parties to make any further submission to it by November 12, 2002, at the latest (ibid., p. 99).
[33] On October 29, 2002, the union informed the Board that it was discontinuing its application for review (ibid., p. 121).
[34] On November 8, 2002, the Board refused to give effect to what it described as the [TRANSLATION] "application to discontinue" (ibid., p. 100).
[35] On December 2, 2002, the Board, after reconsideration, reversed its earlier decision.
[36] It appears from this statement of facts that from the outset the Board was validly presented with an application for review and continued to validly have that application before it, since in accordance with its practice it disallowed the discontinuance proposed by the union. It is established that the Board does not automatically give effect to a discontinuance and reserves the discretion to disallow it (see Re Société Radio-Canada, [2002] D.C.I.R.B. No. 32, para. 6). As the decision by which the Board disallowed the discontinuance has not been the subject of an application for judicial review, it follows that one has to assume there was no discontinuance and that the Board still duly had the review application before it.
[37] In any event, the employer's argument is not valid in law either as, even if the Board proceeded to review of its own motion, it would have acted within its jurisdiction.
[38] Section 18 of the Canada Labour Code authorizes the Board to "review, rescind, amend, alter or vary any order or decision made by it". This Court has in fact held that that section gave the Board the power to review a decision of its own motion (see Communications, Energy and Paper Workers Union of Canada v. Canada (Labour Relations Board) (1994), 174 N.R. 57 (F.C.A.).
[39] Counsel for the employer submitted to the Court that these precedents should not be followed because of the adoption of section 44 of the 2001 Regulations, which was not in effect at the time the decisions were rendered. Section 44 reads as follows:
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Part 7 - Applications for Reconsideration
44. The circumstances under which an application shall be made to the Board exercising its power of reconsideration under section 18 of the Code include the following: |
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Partie 7 - Demandes de réexamen
44. Les circonstances dans lesquelles une demande de réexamen peut être présentée au Conseil sur le fondement du pouvoir de réexamen que lui confère l'article 18 du Code comprennent les suivantes : |
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(a) the existence of facts that were not brought to the attention of the Board, that, had they been known before the Board rendered the decision or order under reconsideration, would likely have caused the Board to arrive at a different conclusion; |
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a) la survenance de faits nouveaux qui, s'ils avaient été portés à la connaissance du Conseil avant que celui-ci ne rende la décision ou l'ordonnance faisant l'objet d'un réexamen, l'auraient vraisemblablement amené à une conclusion différente; |
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(b) any error of law or policy that casts serious doubt on the interpretation of the Code by the Board; |
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b) la présence d'erreurs de droit ou de principe qui remettent véritablement en question l'interprétation du Code donnée par le Conseil; |
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(c) a failure of the Board to respect a principle of natural justice; and |
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c) le non-respect par le Conseil d'un principe de justice naturelle; |
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(d) a decision made by a Registrar under section 3. |
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d) toute décision rendue par un greffier aux termes de l'article 3. |
[40] We cannot share this view. We do not feel that the Board could by regulation set aside a discretion conferred by the Code. Additionally, the fact that the Board saw fit to identify by regulation certain circumstances giving rise to an application for reconsideration by one party does not mean that in so doing it limited the circumstances in which it could of its own motion reconsider its decisions itself.
B. Absence of circumstances prescribed by regulations
[41] The exercise of the Board's power to reconsider a decision can only be questioned by this Court in exceptional circumstances. First, it is a discretionary power in the exercise of which the courts hesitate to intervene; second, it is the exercise of a discretionary power by a body protected by one of the privative clauses (section 22 of the Code) which has the widest possible application. Thus, to use the words of Marceau J. in Québec-Téléphone v. Syndicat des agents de maîtrise de Québec-Téléphone (1997), 221 N.R. 312 (F.C.A.),
If there is any area in which the Board's discretion must remain impervious to the intervention of this Court, it is that.
[para. 8]
[42] It should also be noted that the list of circumstances presented in section 44 is not exhaustive: the words "include" and "comprennent" leave no doubt in this regard. The list to some extent codifies the practice generally followed by the Board, but neither the number nor the description of the circumstances is cast in stone. The Board has clearly retained considerable latitude.
[43] The "circumstances" described in section 44 of the 2001 Regulations, on which the Board said it relied in the case at bar, are those described in paragraph (b), namely:
| (b) any error of law or policy that casts serious doubt on the interpretation of the Code by the Board . . . |
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b) la présence d'erreurs de droit ou de principe qui remettent véritablement en question l'interprétation du Code donnée par le Conseil . . . |
[44] An interesting analysis of the Board's practice in this regard, as it stood in 1979, is to be found in the decision by a panel of ten Board members in Telecommunications Workers Union and British Columbia Telephone Company (1979), 38 di 124. This was updated in Société Radio-Canada et Alliance des artistes canadiens du cinéma de la télévision et de la radio (1991), 86 di 92, and then in Société Radio-Canada (Re), [2002] C.I.R.B. No. 43. In the latter decision we note the following passage at page 10:
As for the existence of errors of law or policy, the fact of disagreeing with the Board's interpretation of the law or certain policies does not justify a reconsideration . . . In fact, errors of law or policy that cast serious doubt on the Board's interpretation of the Code must be demonstrated.
[45] It appears to the Court that this test is broad enough to authorize the Board to reconsider any matter, as in the case at bar, which prima facie is a question of law, principle or policy with far-reaching effects. We are not saying that the Board can only reconsider in such cases: we are saying that the nature of the question is such here that there was undoubtedly a basis for review, especially as there was a contradiction to be resolved between a decision by a Board member and a decision by an arbitrator approved by a Quebec Superior Court judge. The Board, which is as it were the controlling agent when interpretation of the Canada Labour Code is in question, clearly cannot be blamed for trying to settle the issue.
Patently unreasonable nature of Board's decision
[46] The employer submitted that the Board's initial decision by Ms. Pineau which, relying on Bradburn v. Wentworth Arms Hotel Ltd. et al., [1979] 1 S.C.R. 846, and CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, judgments of the Supreme Court of Canada, and on Air Canada (national) (1988), 72 di 169, concluded that the effects of the collective agreement could not be extended beyond the statutory period provided in paragraph 50(b) of the Code, is correct. Consequently, in the employer's submission, the Board's decision varying the initial decision is patently unreasonable.
[47] For the reasons that follow, we feel that this argument by the employer is invalid.
[48] The Board had to determine whether the terms and conditions of the collective agreement, which expired on January 31, 1997, applied as of April 3, 1999. In particular, the Board had to decide whether clause 34.01 of the collective agreement, which extended the conditions of employment beyond the statutory period specified in paragraph 50(b) of the Code, contravened the Code's provisions.
[49] Paragraph 50(b) of the Code provides that an employer may not alter its employees' terms and conditions of employment until the requirements of paragraph 89(1)(a) to (d) of the Code have been met, namely that a bargaining notice has been given, the parties have bargained in accordance with section 50 but have failed to enter into or revise their collective agreement, the Minister has received a notice given under section 71 and the Minister has notified the parties of
his intention not to appoint a conciliation officer. If these conditions have been met, the employer may unilaterally alter the conditions of employment forthwith.
[50] In the case at bar, the conditions set out in paragraphs 89(1)(a) to (d) were all met.
[51] Additionally, clause 34.01 of the collective agreement expressly provided that the agreement would continue to apply until either the employer or the union had exercised its right to strike or lockout, as the case might be. In the case at bar, neither the employer or the union had exercised their right to strike or lockout.
[52] Accordingly, the Board had to decide whether, as the employer maintained, clause 34.01 conflicted with the Code. In support of its argument, the employer relied inter alia on clause 33.01 of the collective agreement, which provides as follows;
[TRANSLATION]
33.01 In the event that any clause or paragraph contravenes federal legislation, the language used herein shall be deemed to be altered in accordance with existing legislation.
Notwithstanding prior practice, the language used in this agreement shall apply in determining the real intention of the parties.
[53] As we indicated earlier, Ms. Pineau, sitting alone, concluded in the employer's favour. At paragraph 23 of the reasons for her decision Ms. Pineau set out the question she had to answer as follows:
23. More specifically, the point at issue is how to interpret the clause that the parties intentionally set out in their agreement while at the same time complying with the provisions of the Code.
[54] After a careful review of the precedents, including Bradburn, Paccar and Air Canada, supra, Ms. Pineau concluded that the terms and conditions of the collective agreement that expired on January 31, 1997, had ceased to apply on April 3, 1999, the date on which the conditions set out in paragraph 89(1)(a) to (d) were met. At paragraph 37 of her reasons, Ms. Pineau justified her conclusion as follows:
[37] Thus, with these enlightenments, clause 34.01 should be interpreted in the sense that gives it an effect. Inasmuch as the parties choose to freely renew the agreement, this clause provides an opportunity to implement the established terms and conditions of employment until such time as a new collective agreement is signed. However, if one of the parties should file an notice to bargain designed to amend the collective agreement, this clause becomes obsolete since it cannot be used to extend into perpetuity a collective agreement that terminates on a given date. At best, this clause may reasonably be deemed a bridging clause designed to maintain the status quo during the negotiations pursuant to the conciliation process.
[55] On December 2, 2002, the Board, sitting in review, varied Ms. Pineau's decision. At paragraph 40 of its reasons, the Board stated that clause 34.01 was a bridging clause, the purpose of which was to keep the conditions of employment in effect during the collective bargaining process. In the Board's view, the question to be decided was whether the parties, pursuant to clause 34.01, could extend the conditions of employment beyond the statutory period provided in paragraph 50(b) of the Code.
[56] In answering this question, the Board said that it considered that despite the Code's silence on whether the parties could negotiate bridging clauses for the purpose of extending the effects of their collective agreements, such clauses were valid and had to be interpreted so as to give them the effect desired by the parties, so long as they did not contravene the provisions of the Code. In the Board's view, nothing in the Code prevented the parties from mutually agreeing to extend the minimal protection imposed by the Code, and in particular to prolong the freeze of conditions of employment imposed by the Code, so long as this did not challenge the parties' opportunities to exercise other rights recognized by the Code, such as a strike or lockout (paragraph 44 of the reasons).
[57] The Board also said that in its opinion clause 34.01 of the collective agreement was intended to make a link between the time the right to strike or lockout was acquired by the parties and the time that right was actually exercised. In the Board's view, the clause did not in any way affect the existence of those rights, and so was not contrary to the provisions of paragraph 50(b) of the Code (paragraph 47 of the reasons).
[58] According to the Board, the Supreme Court's judgments in Bradburn and Paccar, supra, relied on by Ms. Pineau in support of her conclusion, in no way supported the employer's position. In its view, Bradburn could easily be distinguished on account of the wording of the bridging clause, which could be interpreted as allowing the perpetual renewal of the collective agreement, thereby eliminating the parties' right to make use of a strike or lockout.
[59] The Board distinguished Paccar as follows, at paragraph 55 of its reasons:
55. The present panel is of the opinion that CAIMAW v. Paccar of Canada Ltd., supra, is different from the instant case, and therefore that it does not apply. Despite the fact that the collective agreement in that matter also included a bridging clause, the focus of that decision is on the employer's power to alter the terms and conditions of employment after the expiry of the collective agreement, after the employer had notified the union that it intended to discontinue negotiations, in accordance with the bridging clause agreed to by the parties. Of importance in that decision was the fact that, at the relevant time, the British Columbia Labour Relations Code did not specifically provide for a freeze period on the terms and conditions of employment after the expiry of a collective agreement. The analysis, therefore, does not include an interpretation of the effects of the bridging clause; it rather addresses what should take place after the freeze period that was held pursuant to the bridging clause itself.
[60] On the decision in Air Canada, supra, the Board considered that certain passages in that judgment supported the conclusion at which it arrived. In the Board's view, the wording of the bridging clause in Air Canada, unlike clause 34.01 of the collective agreement in the case at bar, did not have the effect of extending the period for which the conditions of employment would apply beyond the statutory freeze period set out in the Code.
[61] In the Board's view, the purposes and spirit of the Code should prevail, especially as regards the principles of free bargaining. Consequently, it could not approve the interpretation suggested by the employer and accepted by Ms. Pineau, which it felt would have the effect of limiting inter alia the parties' right to negotiate their conditions of employment, and from time to time to benefit from the minimum protection imposed by the Code.
[62] The Board therefore concluded that clause 34.01 of the collective agreement was valid, since it in no way limited the exercise of the right to strike or lockout.
Standard of review of Board's decision
[63] There can be no doubt that the standard applicable in the case at bar is that of the patently unreasonable decision. The Code provides for no right of appeal from the Board's decisions, review of its decisions is in the form of judicial review in this Court, and in section 22 the Code contains a privative clause, which has been described by the Supreme Court as strong, broad or full (see e.g. Royal Oak Mines Inc. v. Canada, [1996] 1 S.C.R. 369, at para. 35; Canadian Broadcasting Corp. v. Canada, [1995] 1 S.C.R. 157, at para. 31; International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432, at paras. 24 and 42). Recently, in VIA Rail Canada Inc. v. Cairns, [2001] 4 F.C. 139, at para. 29, this Court described the effect of section 22 as follows:
[29] The presence of a "full" privative clause - "one that declares that decisions of the tribunal are final and conclusive from which no appeal lies and all forms of judicial review are excluded" - provides a powerful indication that the Court ought to show deference to a tribunal's decision. Decisions of the Canada Industrial Relations Board are protected by the same "clear and strongly worded" privative clause that protected the decisions of its predecessor. Section 22 is a full privative clause. Its effect is to insulate CIRB decisions from review except upon grounds of fraud, jurisdictional error or violation of the rules of natural justice. [Emphasis added; references omitted.]
[64] Further, in Air Canada Pilots Association v. Airline Pilots Association, 2003 FCA 160, at para. 23, this Court recognized that the Board's expertise was a factor favouring deference toward its decisions. In particular, the question that arose in Air Canada was determining the standard for review of a decision by the Board to reconsider a prior decision. This Court, per Malone J.A., concluded that the applicable standard was that of the patently unreasonable decision. At paragraphs 27 and 28, Malone J.A. said the following:
[27] The CIRB Regulations provide that the Board will review its orders where they indicate a serious error of law or policy in the interpretation of the Code. In this case, the Board was required to determine whether the May 2, 2001 order which confirmed the Mitchnick award casts serious doubt on the interpretation of the Code, as related to the principles applicable to bargaining unit integration and the treatment of existing collective agreement rights. Given the CIRB's expertise in this area, I think these are questions that Parliament intended to be left to the Board rather than the courts.
[28] In my view, all the above factors point to the conclusion that the CIRB's decision should be reviewed on a standard of patent unreasonableness.
[65] It is also important to bear in mind the comments made by La Forest J. in Paccar, supra, at 1003, 1004 and 1005:
Where, as here, an administrative tribunal is protected by a privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error of law in the performance of its function: see Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227. The tribunal has the right to make errors, even serious ones, provided it does not act in a manner "so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the Court upon review" (p. 237). The test for review is a "severe test"; see Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, at p. 493. This restricted scope of review requires the courts to adopt a posture of deference to the decisions of the tribunal. Curial deference is more than just a fiction courts resort to when they are in agreement with the decisions of the tribunal. Mere disagreement with the result arrived at by the tribunal does not make that result "patently unreasonable". The courts must be careful to focus their inquiry on the existence of a rational basis for the decision of the tribunal, and not on their agreement with it. The emphasis should not be so much on what result the tribunal has arrived at, but on how the tribunal arrived at that result. Privative clauses, such as those contained in ss. 31 to 34 of the Code, are permissible exercises of legislative authority and, to the extent that they restrict the scope of curial review within their constitutional jurisdiction, the Court should respect that limitation and defer to the Board. [Emphasis added.]
. . . . .
I do not find it necessary to conclusively determine whether the decision of the Labour Relations Board is "correct" in the sense that it is the decision I would have reached had the proceedings been before this Court on their merits. It is sufficient to say that the result arrived at by the Board is not patently unreasonable. Indeed, I would go so far as to say that the result reached by the Board is as reasonable as the alternative. It is not necessary to go beyond that.
Is the Board's decision patently unreasonable?
[66] The employer submitted that the Board's decision was patently unreasonable, in that it could in no way be reconciled with the provisions of the Code. What are the arguments in support of this contention?
[67] In the employer's submission, the Code expressly provides for what will happen when a collective agreement expires. First, it imposes on the parties a duty to negotiate in good faith. Second, when the parties cannot agree, the Court imposes conciliation on them. Third, if the conciliation is unsuccessful, the Code recognizes that the parties have the rights to strike and lockout.
[68] In the third phase, which the employer described as a state of [TRANSLATION] "economic warfare", the parties are free to use all means at their disposal to bring pressure to bear on the other parties.
[69] To facilitate bargaining and conciliation, the Code imposes a statutory freeze of conditions of employment, a freeze which is to remain in effect until the parties are in the third stage. Once that is the case, an employer may unilaterally alter the conditions of employment. At paragraph 47 of its memorandum, the employer made the following statement:
[TRANSLATION]
47. The federal Parliament has accordingly created an exhaustive bargaining system. The end of the period of the statutory freeze of working conditions is part of that system, as is the employer's right to alter working conditions before the right to strike or lockout is exercised. Requiring that a strike or lockout be declared would be to add a further condition to paragraph (a) to (d) of section 89 (Re Bell Canada Ltd. and Communications Union Canada, p. 125, aff. 97 D.L.R. (3d) 132, 17 L.A.C. (2d) 119) . . .
[70] Accordingly, the employer submitted that a collective agreement therefore cannot contravene the provisions of the Code, including paragraph 50(b), since those provisions are of public order. This led the employer to conclude that the application of clause 34.01 of the collective agreement necessarily contravened a provision of public order, since it had the effect of extending the freeze period beyond the statutory freeze provided for in paragraph 50(b).
[71] Alternatively, the employer argued that because of clause 33.01 of the collective agreement the parties had clearly indicated their intention to comply with the Code, and so to limit themselves to the statutory freeze mentioned in paragraph 50(b). Since clause 34.01 of the collective agreement does not expressly exclude the statutory freeze, it did not have the effect desired by the union.
[72] Finally, the employer submitted that, unlike the Board sitting in review, Ms. Pineau correctly applied Bradburn, Paccar and Air Canada, supra. At paragraph 57 of its memorandum, the employer concluded as follows:
[TRANSLATION]
57. The Board's interpretation in its initial decision in ADM Agri-Industries Ltd., supra, is in accordance with the letter and spirit of the Code. On the other hand, the decision by the Board's review panel reversing that initial decision is patently unreasonable as it can in no way be reconciled with the Code.
[73] In our view, the employer's arguments are wrong. The employer did not put forward any reason capable of persuading the Court that the Board's decision was patently unreasonable.
[74] What the employer actually suggested was an interpretation different from that at which the Board arrived. As La Forest J. noted in Paccar, supra, at 1003, an administrative tribunal has the right to make errors of law, "provided it does not act in a manner 'so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the Court upon review' ".
[75] In our view, there is no doubt in the case at bar that the Board's decision can be rationally supported by the relevant legislation. The Board exercised the expertise it is deemed to have to interpret the Code which is its enabling legislation. It also interpreted the provision of the agreement in a way which unquestionably falls within the purposes of the Code. In so doing, it does not appear to this Court that its actions could be described as patently unreasonable.
[76] In deciding that Bradburn, Paccar and Air Canada, supra, in no way supported the employer's position, the Board distinguished those cases by emphasizing the difference in wording of the clauses that were at issue in Bradburn and Air Canada (see paragraphs 50 and 58) and the difference of the point in dispute in Paccar (see paragraph 55).
[77] In support of our conclusion that the Board's decision is not in any way patently unreasonable, it is worth noting that the arbitrator Pierre Dufresne and Fraiberg J. of the Quebec Superior Court came to the same conclusion as the Board. At paragraphs 19 and 20 of his reasons, in support of his conclusion that the arbitrator Dufresne's decision was not in any way unreasonable, Fraiberg J. said the following (in ADM Agri-Industries Ltée v. Dufresne, 500-050060142-017, October 19, 2001):
[TRANSLATION]
[19] In the view of the undersigned, although another interpretation might be given to the wording of paragraphs 89(1)(a) to (d) of the Canada Labour Code than that given them by the arbitrator, his interpretation, taking into account the purposes sought by this legislation of industrial peace guaranteed by stability of working conditions, unless the right to strike or lockout is exercised, is far from being devoid of all sense.
[20] Additionally, its statement that the parties can add to the basic protection provided by section 50 of the Code is entirely reasonable, in view of the purposes sought. There is no provision in this legislation that it excludes contractual provisions which, instead of being counter to the legislative purposes, confirm and reinforce them.
[78] At paragraph 27, Fraiberg J. concluded as follows:
[TRANSLATION]
[27] So, I find for all these reasons not only that the arbitral award is reasonable but, in my opinion, it would also be correct if it was this latter, less severe, standard of review that was to be applied.
[79] We further note that in Consolidated Bathurst Inc. v. Syndicat national des travailleurs de pâtes et papiers de Port-Alfred, [1997] R.J.Q. 520 (C.A.), at 523, Le Bel J.A. (as he then was), for the Quebec Court of Appeal, clearly indicated that in Bradburn, supra, the Supreme Court had recognized the validity of clauses extending the application of the working conditions of an expired collected agreement, so long as the latter did not impede the exercise of strike and lockout rights. These comments correspond to those made by Estey J. in Bradburn, at 858 and 859:
There are serious consequences for the participants in the field of labour relations were a Court to construe the provisions of The Labour Relations Act and the collective agreement in such circumstances as now before us, in such a way as to cause the establishment of a perpetual collective agreement terminable only on the execution of a new collective agreement by the parties. Where not barred by the statute the parties of course can, by unambiguous language, bring about results which others might consider to be improvident. In such circumstances the courts may not properly interfere. The scheme of labour relations under the Ontario Act is founded upon collective bargaining leading to a collective agreement and thereafter to replacement agreements. Collective bargaining in turn is an activity in which the parties participate in the full realization of their respective economic positions and strengths subject only to the limitations and boundaries imposed on the parties by The Labour Relations Act. Consequently, collective agreements, which are of course creatures of statute finding both their origin and their extent within the Act, reflect these realities. A court therefore should not be quick to place a meaning on a term of a collective agreement which would put that clause in conflict with the general philosophy of labour relations as established under the applicable statute. Such should be the case only where the contract by its clearest intent and provisions dictates otherwise. I do not find such to be the case here. [Emphasis added.]
[80] In the case at bar, clause 34.01 of the collective agreement is not in any way ambiguous. It expressly provides that the collective agreement (or rather its effects, since the agreement ended on January 31, 1997) will apply until the parties have exercised their rights of strike or lockout, as the case may be.
Conclusion
[81] For these reasons, we feel that the application for judicial review should be dismissed with costs.
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"Robert Décary"
J.A. |
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"Marc Nadon"
J.A. |
"I concur.
Marc Noël J.A."
Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-698-02
STYLE OF CAUSE: ADM AGRI-INDUSTRIES LTÉE
Applicant
and
SYNDICAT NATIONAL DES EMPLOYÉS DE LES MOULINS MAPLE LEAF (DE L'EST) (CSN)
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: February 3, 2004
REASONS FOR JUDGMENT: DÉCARY J.A.
NADON J.A.
CONCURRED IN BY: NOËL J.A.
DATE OF REASONS: February 16, 2004
APPEARANCES:
Jacques Audette FOR THE APPLICANT
Benoît Laurin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Fasken, Martineau, DuMoulin s.r.l. FOR THE APPLICANT
Montréal, Quebec
Sauvé et Roy, Attorneys FOR THE RESPONDENT
Montréal, Quebec