Date: 20000117
Docket: A-747-99
PRESENT: SEXTON J.A.
BETWEEN:
INTERNATIONAL BROTHERHOOD OF LOCOMOTIVE ENGINEERS
Applicant
- and -
GEORGE CAIRNS ET AL, VIA RAIL CANADA INC. and UNITED TRANSPORTATION UNION
Respondents
AND BETWEEN: A-749-99
VIA RAIL CANADA INC.,
Applicant
- and -
GEORGE CAIRNS, INTERNATIONAL BROTHERHOOD OF LOCOMOTIVE ENGINEERS and UNITED TRANSPORTATION UNION
Respondents
Heard at Ottawa, Ontario, Friday, January 14, 2000
Reasons for Order delivered at Ottawa, Ontario, Monday, January 17, 2000
REASONS FOR ORDER BY: SEXTON J.A.
Date: 20000117
Docket: A-747-99
OTTAWA, Ontario, Monday, the 17th day of January, 2000.
| PRESENT: SEXTON, J.A. |
BETWEEN:
INTERNATIONAL BROTHERHOOD OF LOCOMOTIVE ENGINEERS
Applicant
- and -
GEORGE CAIRNS ET AL, VIA RAIL CANADA INC. and UNITED TRANSPORTATION UNION
Respondents
AND BETWEEN: A-749-99
VIA RAIL CANADA INC.,
Applicant
- and -
GEORGE CAIRNS, INTERNATIONAL BROTHERHOOD OF LOCOMOTIVE ENGINEERS and UNITED TRANSPORTATION UNION
Respondents
REASONS FOR ORDER
SEXTON J.A.:
| [1] The International Brotherhood of Locomotive Engineers ("BLE") and Via Rail Canada |
Inc. ("VIA") move for an order to stay two orders of the Canada Industrial Relations Board (the "Board"), dated October 22, 1999 and December 9, 1999 (decision no. 35, CIRB file number 19838), pending an application for judicial review of the Board"s October 22, 1999 decision. BLE and VIA have moved pursuant to section 18.2 and subsection 50(1) of the Federal Court Act .
| [2] In its October 22, 1999 decision, the Board considered, inter alia, whether BLE had |
violated subsection 37(1) of the Canada Labour Code (the "Code") in its negotiation of a collective agreement with VIA. Subsection 37(1) of the Code requires a trade union to not "act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit [...]." The Board concluded that BLE had indeed violated subsection 37(1) by reason of the fact that it ignored the interests of the conductors, preferring instead the interests of the locomotive engineers. As a result, many conductors lost their positions, although many of them had the right to resume jobs with CN. While CN was not in agreement with this, nevertheless CN is continuing to pay the conductors pending resolution of this issue. The Board concluded that BLE had indeed violated subsection 37(1), and consequently ordered BLE and VIA to reopen their collective agreement to address the violation.
| [3] The three-part test to determine whether a stay should be granted was established by the |
Supreme Court of Canada in RJR-Macdonald Inc. v. Canada (Attorney General).1 The three parts consist of the following:
| 1. A serious question to be tried must be demonstrated. Whether the test has been satisfied should be determined by a motions judge on the basis of common sense and an extremely limited review of the case on the merits. The threshold is a low one. Unless the case on the merits is frivolous and vexatious, a judge on a motion for relief must, as a general rule, consider the second and third stages of the test. |
| 2. An applicant must convince the court that it will suffer irreparable harm if the relief is not granted. |
| 3. A court must assess the balance of inconvenience. Under this branch of the test, a Court must consider which of the two parties will suffer the greater harm from the grant or refusal of a stay, pending a decision on the merits. |
| [4] The United Transportation Union ("UTU") has cited several cases, including Ellis-Don |
Ltd. v. O.L.R.B.2 and Sobeys Inc. v. U.F.C.W.., Local 1000A3 for the proposition that the "strong prima facie case" standard should be used at the first stage of the test, in light of the fact that the Board is protected by a strong privative clause. In my view, those cases are distinguishable on the basis that they were decided prior to the Supreme Court of Canada"s decision in RJR-MacDonald .
| [5] BLE has raised four broad points in an attempt to demonstrate that there is a serious |
question to be tried:
| ". First, BLE submits that the Board"s October 22, 1999 decision mistakenly addressed the content of negotiations between BLE and VIA in holding that BLE did not discharge its duty of fair representation. |
| ". Second, BLE submits that the Board did not have jurisdiction to order that specific provisions of a collective agreement be renegotiated. |
| ". Third, BLE submits that the Board exceeded its jurisdiction by taking into account irrelevant factors, or by failing to take into account relevant factors, or by deciding in the absence of any evidence. |
| ". Fourth, BLE submits that the Board reached its decision on evidence that it had previously concluded should not be admitted. |
| [6] VIA submits that the Board committed several breaches of the rules of natural |
justice. To that end, VIA submits that even though its intervention in the hearing was circumscribed in that it had not been given full party status in the hearing, the Board concluded that VIA had violated s. 94(1) of the Code. In addition, VIA submits that the Board mistakenly made VIA subject to an order, despite the fact that the only complaint before the Board was a section 37 complaint, one to which only the union could be subject. VIA also submits that the Board mistakenly relied on evidence relating to the negotiations between BLE and VIA, having previously concluded that it would not hear such evidence. VIA also joined with BLE to argue that the Board did not have jurisdiction to order that specific provisions of the collective agreement be renegotiated. Finally, VIA argues that the Board has made inconsistent findings on the issue of whether or not VIA and BLE colluded in relation to eliminating the conductors.
| [7] On the basis of common sense, keeping in mind the low threshold that applies to this |
stage of the test, I have concluded that the applicants have demonstrated sufficiently serious questions to satisfy the first branch of the test. Below, I have summarized several examples of these questions.
| [8] BLE has submitted that the Board is precluded from considering the content |
of negotiations between a union and an employer to determine whether the union has discharged its duty of fair representation to its members under section 37 of the Code. Further to that point, the parties cited conflicting decisions of the predecessor to the Board for the proposition that section 37 of the Code does not permit the Board to deal with a complaint that arises from the open-period negotiations of a collective agreement. Negotiations here did take place during that period. For instance, BLE cites the Board"s decision in Dan Reid et al .4 to illustrate that the Board has held that it "will certainly not second guess bargaining agents about the reasonableness or the correctness of the critical choices they have to make when attaching priority to contract items that are on the bargaining table, nor will the Board tell them what items they should or should not have put there."
| [9] Both BLE and VIA submitted that the Board lacked the jurisdiction to order that specific |
provisions of the collective agreement be re-negotiated. In response, George Cairns and the UTU rely on subsection 99(2) of the Code and the Supreme Court"s decision in Royal Oak Mines Ltd. v. Canada Labour Relations Board et al.5 for the proposition that it is widely recognized that the Board has the ability to fashion very broad remedies. Despite that, however, counsel for George Cairns and UTU were unable to cite any cases to demonstrate that the Board had in fact ever previously made such a decision.
| [10] To support its allegation that the Board made inconsistent findings on the issue |
of collusion, VIA points to an early passage in the Board"s decision where the Board found that it had not been substantiated that BLE and VIA had "colluded to eliminate the position of conductor." It contrasts that finding with the Board"s later conclusion that there was "an improper collaboration between the employer and the respondent union to achieve a desired outcome for both parties at the expense of the rights of the minority and most affected group of employees." The group of employees referred to are the conductors. It is certainly arguable that these are inconsistent findings.
| [11] To demonstrate that VIA was not given fair notice that the Board might find that it had |
contravened subsection 94(1) of the Code, a provision that forbids employment interference in trade unions, VIA refers to the initial complaint made to the Board, which only refers to subsection 37(1) of the Code, and which complains about the conduct of BLE in representing the conductors.6 VIA submits that for the Board to have made such a finding against it is inconsistent with the Federal Court of Appeal"s decision in Syndicat des employées et employés Professionels - les et de bureau, section locale 434 v. La Banque Laurentienne du Canada,7 where the Court concluded that the Board could not make an order that was inconsistent with the terms upon which the hearing was initially convened, without at least giving the parties notice of its intention to make the order it was considering.
| [12] In the same vein, VIA submits that its fundamental rights of natural justice were infringed |
by the Board"s decision, since it concluded that VIA had violated subsection 94(1) of the Code and ordered VIA to re-open its collective agreement with BLE, all while VIA had been confined to a circumscribed role in the hearing due to a preliminary ruling of the Board.8
| [13] Finally, to demonstrate that the Board committed a breach of natural justice, BLE and |
VIA highlight the Board"s initial decision to not hear evidence relating to the negotiation process between BLE and VIA. They submit that despite that decision, the Board nevertheless relied on evidence relating to the negotiation process in its reasons for judgment.
| [14] In my view, in light of the examples offered above, BLE and VIA have satisfied |
the first branch of the test prescribed by the Supreme Court of Canada in RJR-MacDonald.
| [15] I now turn to the second stage of the test to determine whether BLE and VIA have |
demonstrated that they would be subject to irreparable harm if the Board"s order is not stayed pending the application for judicial review. In my view, BLE and VIA have also satisfied this branch of the test. If BLE and VIA"s application for judicial review is ultimately successful, any terms that were renegotiated pursuant to the Board"s order but prior to the judicial review application could result in the displacement, severance or lay-off of employees who are party to the current collective agreement. This harm would effectively be doubled if the application for judicial review was successful, since employees who were re-hired pursuant to the renegotiated terms ordered by the Board possibly could be dismissed or laid-off. Finally, industrial peace and stability at VIA would also be seriously damaged in circumstances where a collective agreement is concluded, where the Board orders that the collective agreement be renegotiated, where terms are renegotiated pursuant to the Board"s order, but where the renegotiated terms are ultimately imperilled as a result of the application to judicial review to the Federal Court of Appeal. Therefore, in my view, BLE and VIA would be subject to irreparable harm if the stay is refused.
| [16] I now turn to the third branch of the test to determine which party will suffer greater harm |
from the grant or refusal of the stay. George Cairns and the employees who still wish to work for VIA have received and will continue to receive their full salary and benefits pending the resolution of the application for judicial review. While the UTU submits that the decision to continue to pay those employees is uncertain because it is in the hands of CN, which is not before the Court, the fact is that the payments have continued up to this point and there is no evidence that CN will not continue to pay those employees. By contrast, if the Board"s decision is not stayed, BLE and VIA will suffer the irreparable harm previously summarized in these reasons.
| [17] Accordingly, I would order a stay of the Board"s decision numbered 35, dated October |
22, 1999. I would also order a stay of its varying order dated December 9, 1999. The stays should be ordered pending a determination of the applications for judicial review of the Board"s October 22, 1999 decision.
| [18] I canvassed counsel as to when they would be able to proceed with the application for |
judicial review itself. Counsel for the applicants informed me that they felt the matter could proceed by the middle of February of this year. Counsel for the respondent George Cairns took the position that it was not feasible to have the hearing prior to May of this year. Counsel for the UTU took no position on this matter. Accordingly, I would order the Judicial Administrator to canvass all counsel with respect to their preference for a specific date in May or earlier, and thereafter to fix the date for hearing of the applicants" applications for judicial review no later than May 31, 2000.
| [19] BLE and VIA shall be entitled to their costs of this application, to be paid jointly by |
George Cairns et al. and UTU.
"J. Edgar Sexton"
J.A.
Date: 20000117
Docket: A-749-99
OTTAWA, ONTARIO, MONDAY, JANUARY 17, 2000
PRESENT: SEXTON J.A.
BETWEEN:
| VIA RAIL CANADA INC. |
Applicant
- and -
| GEORGE CAIRNS, INTERNATIONAL BROTHERHOOD OF LOCOMOTIVE ENGINEERS and UNITED TRANSPORTATION UNION |
Respondents
ORDER
IT IS ORDERED that:
| 1. the decision of the Canada Industrial Relations Board (the "Board") numbered 35 dated October 22, 1999 and the varying order dated December 9, 1999 be stayed. The stays are ordered pending a determination of the application for judicial review of the Board's October 22, 1999 decision; |
| 2. the Judicial Administrator canvass all counsel with respect to their preference for a specific date in May or earlier and to fix the date for hearing of the applicant's application for judicial review no later than May 31, 2000; |
Via Rail Canada Inc. is entitled to its costs of this application, which are to be paid jointly by George Cairns and the United Transportation Union.
"J. Edgar Sexton"
J.A.
Date: 20000117
Docket: A-747-99
OTTAWA, ONTARIO, MONDAY, JANUARY 17, 2000
PRESENT: SEXTON J.A.
BETWEEN:
| INTERNATIONAL BROTHERHOOD OF LOCOMOTIVE ENGINEERS |
Applicant
- and -
| GEORGE CAIRNS ET AL, VIA RAIL CANADA INC. and UNITED TRANSPORTATION UNION |
Respondents
ORDER
IT IS ORDERED that:
| 1. the decision of the Canada Industrial Relations Board (the "Board") numbered 35 dated October 22, 1999 and the varying order dated December 9, 1999 be stayed. The stays are ordered pending a determination of the application for judicial review of the Board's October 22, 1999 decision; |
| 2. the Judicial Administrator canvass all counsel with respect to their preference for a specific date in May or earlier and to fix the date for hearing of the applicant's application for judicial review no later than May 31, 2000; |
The International Brotherhood of Locomotive Engineers is entitled to its costs of this application, which are to be paid jointly by George Cairns et al and the United Transportation Union.
"J. Edgar Sexton"
J.A.
__________________2 (1993), 10 O.R. (3d) 729 (Div. Ct.).
3 (1993), 12 O.R. (3d) 157 (Div. Ct.).
6 Section 37 of the Code prohibits, inter alia, a "trade union" from acting "in a manner that is arbitrary, discriminatory or in bad faith."
8 In the Board"s disposition of an application to stay its October 22, 1999 decision pending its disposition of an application for reconsideration, the Board did conclude that "VIA"s intervention was circumscribed."