Date: 20000307
Docket: A-619-98
CORAM: THE CHIEF JUSTICE,
STRAYER, J.A.,
ROTHSTEIN, J.A.
BETWEEN:
VICEROY MINERALS CORPORATION
Applicant
- and -
TEAMSTERS, LOCAL UNION NO. 31
Respondent
REASONS FOR JUDGMENT
(Delivered orally from the Bench
at Vancouver on March 7, 2000)
RICHARD, C.J.
[1] This is an application for judicial review under section 28 of the Federal Court Act seeking to set aside a decision of the Canada Labour Relations Board dated September 24, 1998 with reasons dated October 16, 1998 granting the union"s authorized representatives access to employees living on the employer"s premises near Dawson City in order to solicit union memberships pursuant to section 109 of the Canada Labour Code.
Section 109 which is titled "Access to Employer"s Premises" reads as follows:
| 109. (1) Where the Board receives from a trade union an application for an order granting an authorized representative of the trade union access to employees living in an isolated location on premises owned or controlled by their employer or by any other person, the Board may make an order granting the authorized representative of the trade union designated in the order access to the employees on the premises of their employer or such other person, as the case may be, that are designated in the order if the Board determines that access to the employees
(2) The Board shall, in every order made under subsection (1), specify the method of access to the employees, the times at which access is permitted and the periods of its duration. 1972, c. 18, s. 1; 1977-78, c. 27, s. 69.1. |
109. (1) Sur demande d'un syndicat, le Conseil peut, par ordonnance, accorder à un représentant autorisé de celui-ci nommément désigné l'accès à des employés vivant dans un lieu isolé, dans des locaux " également précisés " appartenant à leur employeur ou à une autre personne, ou placés sous leur responsabilité, s'il en vient à la conclusion que cet accès_:
(2) L'ordonnance visée au paragraphe (1) doit préciser le mode d'accès, les moments où il sera permis et sa durée. 1972, ch. 18, art. 1; 1977-78, ch. 27, art. 69.1. |
[2] As noted by the Board, section 109 is designed to strike a balance between the employer"s property interest and the employees" right, enshrined in sub section 8(1) of the Code, to join the union of their choice.
[3] The Board must of course direct its mind to the requirements that must be met under section 109. The Board recognized that the section provides not only that the employees must live in an isolated location on premises owned or controlled by their employer, but also that access would otherwise be both impracticable and reasonably required for certain stated purposes, one of which relates to soliciting union memberships. The Board has on a number of occasions found that, while it is possible to solicit union membership by mail or by phone, fact-to-face contact is required in most industries.
[4] The Board found that the employees lived in an isolated location. The Board then identified two distinct groups of employees: (1) those who travel to the mine site by automobile from the are in and around Dawson City; and, (2) those who travel by air to and from Dawson City.
[5] The Board found the union had not demonstrated that access to the employees who travel to and from the mine site by private vehicle was impracticable for the purpose of soliciting union membership. However, the Board found that the union had demonstrated that access to employees who fly in and out of Dawson City and who are driven by employer arranged transportation to and from the airport would be impracticable unless permitted on the employer"s premises.
[6] The Board concluded that an order was required for that 25% complement of employees who fly in and out of Dawson City and also concluded that if an order under section 109 is to issue for any employees, it must issue for all of them. Accordingly, the Board granted the application.
[7] The Board made the following findings of fact:
| a. The mine site is approximately 70 kilometers from the town of Dawson City, and is 20 kilometers off the Dempster Highway. |
| b. The mine operates from April to October each year and during that time it is accessible by vehicular traffic; the employees targeted by the Union for membership live at the mine site and work on a shift basis. |
| c. There are three shifts of approximately 30 employees each. Two teams remain on site and work on a daily basis. They rotate on a two-week-on and two-week-off basis; the shift changes occur every Monday morning. |
| d. When shift changes occur the employees going on shift do not have an opportunity to meet with or speak to those employees coming off their shift. |
| e. Approximately 25% of the employees on each shift fly out of Dawson City immediately after their (two week) shift concludes. |
| f. At arrival and departure, these employees are transported to and from the airport in a taxi hired by the Employer. |
| g. Employees who do not fly in and out of the town of Dawson City live in and "around" the town of Dawson City, or (a small number) travel by car to Whitehorse. Some employees live in "traditional homes" during their week away from the Employer"s site, and others live in "campers or tents". These employees travel to the mine site by motor vehicle, and the highest amount of employee traffic on the road leading to the mine logically occurs on Mondays, when employees are travelling from the mine site to their homes, campers or tents, or travelling to the mine site from their homes, campers or tents. |
[8] The applicant contends that section 109 is a jurisdictional provision and that the proper standard of review is correctness. In the alternative, the applicant submits that the Board interpreted section 109 in a patently unreasonable manner. In particular, the applicant alleges that the Board exceeded its jurisdiction or applied section 109 incorrectly by:
| a) failing to consider the meaning of "isolated location"; |
| b) incorrectly interpreting the requirement that access be "impracticable"; and/or, |
| c) ignoring the requirement that employees "live" on the premises owned or controlled by the employer. |
[9] Parliament intended the question of access by the union to the employer"s premises to be within the jurisdiction of the Board. The Board embarked on the inquiry mandated by the statute.
[10] The Board did address all of the factors enumerated in section 109, which is largely a factual determination.
[11] Since the Board acted within its jurisdiction when determining whether access should be allowed, a high standard of deference is required. Its decision must be upheld unless it is found to be patently unreasonable or, in other words, clearly irrational. This conclusion is clearly confirmed by the broad and strongly worded privative clause set out in section 22 of the Canada Labour Code.1
[12] The Board"s findings of fact are not patently unreasonable and nor is its interpretation or application of section 109. In particular, it was not patently unreasonable for the Board to conclude that the phrase "the employees" may refer to employees collectively and therefore the order should issue for all of the employees and not only to the specific employees in respect of whom the prerequisites were established.
[13] Accordingly, the application is dismissed with costs.
(Sgd.) "J. Richard"
C. J.
March 7, 2000
Vancouver, British Columbia
Date: 20000307
Docket: A-619-98
CORAM: THE CHIEF JUSTICE,
STRAYER, J.A.,
ROTHSTEIN, J.A.
BETWEEN:
VICEROY MINERALS CORPORATION
Applicant
- and -
TEAMSTERS, LOCAL UNION NO. 31
Respondent
Heard at Vancouver, British Columbia on March 7, 2000
REASONS FOR JUDGMENT delivered at Vancouver, British Columbia on March 7, 2000
REASONS FOR JUDGMENT BY: RICHARD, C.J.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: A-619-98
STYLE OF CAUSE: Viceroy Minerals Corporation
v.
Teamsters, Local Union No. 31
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: March 7, 2000
REASONS FOR JUDGMENT OF RICHARD, C.J.
DATED: March 7, 2000
APPEARANCES:
| Colin G. M. Gibson For the Applicant |
| Rebecca Murdock For the Respondent |
SOLICITORS OF RECORD:
Schiller Coutts Weiler & Gibson
Barristers & Solicitors
| Vancouver, BC For the Applicant |
Rebecca Murdock
Barrister & Solicitor
| Delta, BC For the Respondent |
1 See: International Longshoremen"s and Warehousemen"s Union, Ship and Dock Foremen Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432