Date: 20050725
Docket: A-84-04
(A-85-04, A-242-04,
A-473-04, A-65-05, A-99-05,
A-185-05 and A-187-05)
Citation: 2005 FCA 262
CORAM: LINDEN J.A.
SEXTON J.A.
BETWEEN:
TELUS COMMUNICATIONS INC.
Applicant
and
TELECOMMUNICATIONS WORKERS UNION
Respondent
Heard at Toronto, Ontario, on May 31 and June 1, 2005.
Judgment delivered at Ottawa, Ontario, on July 25, 2005.
REASONS FOR JUDGMENT BY: SEXTON J.A.
CONCURRED IN BY: LINDEN J.A.
SHARLOW J.A.
Date: 20050725
Docket: A-84-04
(A-85-04, A-242-04
A-473-04, A-65-05, A-99-05,
A-185-05 and A-187-05)
Citation: 2005 FCA 262
CORAM: LINDEN J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
TELUS COMMUNICATIONS INC.
Applicant
and
TELECOMMUNICATIONS WORKERS UNION
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
[1] This is a consolidated proceeding involving several labour relations issues. These are the latest matters in a long line of labour disputes that have arisen between the Telecommunications Workers Union (TWU) and the employer, TELUS Communications Inc. (Telus) in the parties' attempt to reach a collective agreement. The first issue involves a judicial review application by the TWU to quash an order of the Canadian Industrial Relations Board (Board) dated August 18, 2004, dismissing an allegation of bias against the Chairperson and the Board (Recusal Decision). The second issue involves a judicial review application by the TWU, attempting to reinstate a binding arbitration order the Board had imposed in order to settle the collective agreement issues between the TWU and Telus and then removed upon reconsideration (Reconsideration Decision). The final issue involves a judicial review application by Telus, attempting to quash the final Board order imposing a communications ban for the purpose of preventing Telus from interfering with the TWU's representation of its employees in general (Reimposition of the Communications Ban).
FACTS
A. Background
[2] There is a long and complex history of labour disputes between these parties. It is helpful, in understanding the continuous disputes between the parties, to outline the events that have led up to this matter. (See also Tele-mobile v. Telecommunications Workers Union (2004), 248 D.L.R. (4th) 25, 328 N.R. 336, [2004] F.C.J. No. 2123 (QL), leave to appeal to the Supreme Court of Canada dismissed on June 30, 2005; [2005] S.C.C.A. No. 78 (QL).)
[3] Telus had originally been a landline telephone company in Alberta. Early in 1999, there was a merger between Telus (Alberta) and B.C. Telecom Inc. to form BCT.Telus, a telecommunications company, which eventually became Telus. Following the merger, the labour relations situation was complicated. The employees were covered by four unions, they had formed five bargaining units and were covered by five collective agreements. In British Columbia, the wireless and landline employees were represented by the TWU. In Alberta, the wireless and landline employees were in separate bargaining units and were represented by different bargaining agents. In February 1999, BCT.Telus applied to the Board pursuant to section 18.1 of the Canada Labour Code, R.S. 1985, c. L-2 (Code) for a review and redefinition of the bargaining units within itself and its subsidiaries.
[4] The Board adjourned those proceedings to allow the parties to come to an agreement, which they did. The parties decided that they would have a single bargaining unit to include the wireless and landline employees in both Alberta and British Columbia and an order was issued to that effect by the Board and a vote was ordered to determine which union would represent the employees. The TWU won and was certified by the Board on June 30, 2000, as the sole bargaining agent for the employees of Telus, which BCT.Telus had since become. The Board reserved jurisdiction to reconsider the description of the unit.
[5] Before the Board reconvened in September 2000, Telus had acquired Clearnet Communications Inc. (Clearnet) in Ontario and two wireless and landline subsidiaries of QuébecTel Group Inc. (QuébecTel) in Quebec. The Board released its decision on the description of the bargaining unit in TELUS Advanced Communications et al., [2001] CIRB, no. 108, dated February 9, 2001 (Decision No. 108). It decided that as Telus expanded eastward, it would include all the new employees in the single bargaining unit but its decision was qualified. It determined that acquisitions would be treated differently than business expansions because it might be less appropriate to include acquisitions into a single bargaining unit and it would depend on the extent of integration into the corporate reorganization. The Board also decided that unless it ordered otherwise, the acquisitions by Telus would not be brought into the single bargaining unit. Telus applied to judicially review Decision No. 108 but the application was dismissed: Telus Advanced Communications, a Division of Telus Communications Inc. v. Telecommunications Workers Union (2002), 293 N.R. 364.
[6] In regard to the corporate reorganizations, Telus divided its business into two operations after it acquired Clearnet and QuébecTel, separating its landline business from its wireless business. The wireless business, which included Alberta, British Columbia and the acquired companies, became TELE-MOBILE COMPANY/SOCIÉTÉ TÉLÉ-MOBILE, which carried on business as Telus Mobility. The landline companies in Alberta and British Columbia carried on business as Telus Communications Inc. (TCI). However, regardless of the corporate reorganizations, the employment relationships were not altered. The Alberta and British Columbia employees' collective bargaining relationships remained in place and the TWU continued to represent the same employees. The former QuébecTel employees continued to be represented by CUPE and the former Clearnet employees continued to be non-unionized.
[7] The TWU applied to the Board in March 2001, asking the Board for a declaration that TELUS Mobility and TCI were a single employer and that all the new employees be included in the TWU bargaining unit. The Board disposed of this application in TELUS Communications Inc. et al., [2004] CIRB no. 278, dated June 24, 2004 (Decision No. 278) by deciding that the former Clearnet and QuébecTel employees should be swept into the existing bargaining unit without holding a vote because an amendment to the certification to include the new employees into the bargaining unit was not a radical change to the unit. Telus applied to this Court for a judicial review of Decision No. 278 and the application was dismissed (see paragraph 2 above). Thus, all of the employees in Eastern Canada, numbering approximately 2000, have been included in the bargaining unit with the Western Canada employees, numbering approximately 10,000.
[8] The collective agreement between Telus and the TWU expired in the year 2000. Since that time, there has been ongoing collective bargaining between the parties. In 2001, the Board decided that the TWU and Telus should negotiate a collective agreement for all of the merged bargaining units and that decision was upheld by this Court in September 2002 (see paragraph 5 above). To date, no collective agreement has been concluded between the parties.
[9] There have been ongoing labour disputes since February 1999, the date of the merger, and many issues have arisen, including the matters under review. There is no doubt the expansion of Telus' operations with the attendant increase in work force and affiliation with other bargaining units has exacerbated the situation.
B. Present Disputes
[10] On June 3, 2003, the TWU filed a complaint to the Board, alleging that Telus had breached paragraph 94(1)(a) of the Code by communicating with the TWU employees. The TWU specifically alleged that Telus had communicated directly with the TWU employees at various meetings and through "e-letters" in an attempt to interfere with the TWU's representation of bargaining unit employees during the period of collective bargaining. The Board held a hearing on November 21, 2003 to look into the TWU's complaint and Telus provided an undertaking that it would not communicate with the TWU employees until the Board's decision relating to the June 3, 2003 complaint was issued. On November 24, 2004, the TWU filed a second complaint with the Board, alleging that Telus had violated subsection 94(2.1) of the Code by recruiting replacement workers in anticipation of a strike. On January 12, 2004, the TWU filed a third complaint to the Board, alleging that Telus had breached its undertaking given to the Board and had been communicating with the workers. The basis of the third complaint was a document entitled "TELUS Responds with the Facts!" which was being distributed amongst the members of the TWU at the time the TWU was in the process of conducting a strike vote. These complaints were made during the time the two parties had been engaged in collective bargaining.
[11] On January 17, 2004, the Board issued an interim cease and desist order after finding that the TWU had established a prima facie case that the communication, "TELUS Responds with the Facts!" would likely interfere with the TWU's holding of a strike vote. Telus was ordered to cease and desist from distributing that communication, to remove any electronic or paper posting of it, to refrain from any further written communication or holding any meetings with employees of the bargaining unit concerning "labour negotiations, the union's strike vote and labour relations issues" and finally, that it communicate this order to the employees of the TWU. This order was effective through until January 26, 2004, to allow the TWU to conduct its strike vote. By oral decision of the Board on January 26, 2004, the cease and desist order was extended to January 28, 2004.
[12] On January 28, 2004, the Board issued a decision, TELUS Communications Inc.(CIRB LD 1004) (Binding Arbitration Decision), concluding that Telus had breached paragraph 94(1)(a) of the Code and had irreparably undermined the TWU's efforts to achieve a collective agreement. As a remedy, the Board ordered that Telus offer binding arbitration to settle the terms of the collective bargaining agreement. On January 29, 2004, the TWU announced that the result of the strike vote was 86.3% in favour of a strike. On February 2, 2004, Telus issued a press release indicating that the parties had agreed to the binding arbitration. By this time, the January 17, 2004 cease and desist order had expired and the Board did not impose a new one at that time.
[13] Telus applied for reconsideration of the Binding Arbitration Decision on February 16, 2004 (Reconsideration Application), pursuant to section18 of the Code.
[14] On March 25, 2004, the TWU applied to the Board requesting that it appoint an arbitrator pursuant to the Binding Arbitration Decision. On the same day, the TWU filed an application (Recusal Application), alleging that the Chairperson was biased and there was a reasonable apprehension of bias with regard to all the other members of the Board and requesting that the entire Board be recused from the Reconsideration Application. Alternatively, the TWU requested that the Board provide certain documents and information relating to discussions between certain Board members in regard to the reconsideration motion brought by Telus, to the TWU. In the further alternative, the TWU requested that certain Board members attend at the hearing of the Recusal Application to provide testimony, or an order allowing the TWU to summon those members to the hearing.
[15] As its basis for the Recusal Application, the TWU alleged that a conversation had occurred between Mr. Bruce Bell, the Vice-President of the TWU, and Mr. Tom Hodges, one of the mediators and conciliators appointed pursuant to the Code, wherein Mr. Hodges relayed to Mr. Bell, comments that had allegedly been made by Mr. Warren Edmondson, the Chairperson of the Board. I will refer in detail to these comments later in these reasons.
[16] On April 8, 2004, the Board issued reasons for its Binding Arbitration Decision and imposed another communications ban on Telus (TELUS Communications Inc. (2004), as yet unreported CIRB Decision no. 271).
[17] On August 18, 2004, CIRB Letter Decision No. 1128 (Recusal Decision) was released, dismissing the Recusal Application. This is one of the decisions currently under review in this proceeding.
[18] On February 2, 2005, the Board issued CIRB LD No. 1193 (Reconsideration Decision); reasons followed on April 20, 2005 (TELUS Communications Inc. (2005), CIRB Decision no. 317), allowing the Reconsideration Application in part. Mr. Edmondson was not a member of the panel that heard the Reconsideration Application. This decision, inter alia, set aside the Binding Arbitration Decision, upheld the Board's findings of contraventions of the Code by Telus, removed the communications ban the Board had imposed on April 8, 2004 and reinstated the communications ban that had been imposed by the Board on January 17, 2004. The challenge by TWU of the reversal of the Binding Arbitration Decision is the second decision under consideration in this judicial review application. The challenge by Telus is the third decision (Reimposition of the Communications Ban).
[19] I will deal with each matter separately, beginning with the Recusal Decision.
C. Recusal Decision
[20] The TWU bases its allegations of bias against the Chairperson and the Board on certain comments allegedly made by the Chairperson, which were deposed to in the Bell affidavit, sworn March 23, 2004. This affidavit claims that on February 20, 2004, Mr. Hodges informed Mr. Bell that the Chairperson had said that the Binding Arbitration Decision was wrong and that he wanted Telus to seek reconsideration of it because he would overturn it if it came before him. These comments were alleged to have been made prior to February 20, 2004, the date on which the TWU became aware of them.
[21] Also deposed to was a second conversation that allegedly occurred on March 13, 2004 wherein Mr. Hodges told Mr. Bell that he (Mr. Hodges) had been informed by three other people that the Chairperson had made similar comments while attending at a conference in Vancouver on February 5, 2004. Mr. Panelli, the Western Regional Director of the Board and Mr. Lewis, the other mediator assigned to the dispute, told Mr. Hodges that the Chairperson had told Messrs. Panelli and Lewis that he had a problem with Ms. Pineau, Vice-Chairperson of the Board who issued the Binding Arbitration Decision, that Telus should seek reconsideration of it and that he would overturn it if it got in front of him. Also, Mr. Bedard, the lead negotiator for Telus, told Mr. Hodges that he had been informed of the above discussions by Messrs. Panelli and Lewis and that he (Mr. Bedard) had passed the substance of those discussions to Mr. Entwistle, the President of Telus.
[22] Due to the above, the TWU maintains that the test for bias, or for reasonable apprehension of bias, has been met and that the Chairperson erred by not granting the Recusal Application, thus disqualifying himself and the rest of the Board.
[23] The Recusal Decision was rendered by the Chairperson himself, Mr. Edmondson, sitting alone, without an oral hearing. He arrived at several conclusions:
a. in regard to bias, the impartiality of the Board must be presumed unless there is evidence to the contrary. The test for bias is two-fold: first, the person considering the alleged bias must be reasonable and informed, with knowledge of the relevant circumstances. Second, the apprehension of bias itself, in the circumstances, must be reasonable. The onus of proving bias is on the party making the allegation, with a standard of proof on the balance of probabilities;
b. the TWU relied only on hearsay evidence, including double, triple and quadruple hearsay, to make its case about bias. The evidence was therefore not reliable and the TWU did not discharge its onus;
c. even if the Chairperson was found to have been biased, the Board would not have been precluded from hearing the Reconsideration Application since each member is presumed to be impartial unless otherwise proven, which was not the case here; and
d. finally, if the Board had disclosed facts pursuant to the TWU's request for documentation, it would essentially be a reversal of the alleging party's onus and would result in a multitude of bias allegations. It would also place the decision-making process of the Board in jeopardy since the nature of labour settlements requires confidentiality.
ANALYSIS
A. Recusal Decision
[24] While there may well have been grounds for the TWU's allegation of bias against the Chairperson, the application for judicial review of the Recusal Decision against the Chairperson should be dismissed for mootness. Although the Chairperson refused to recuse himself, he did not end up sitting on the panel that rendered the Reconsideration Decision. It is therefore unnecessary to decide whether there was bias or a reasonable apprehension of bias on his part.
[25] However, having said that, I still find it necessary to comment on the Chairperson's failure to respond to the bias allegations. The Chairperson concluded that the TWU's evidence, being hearsay, was insufficient to discharge the onus placed on it to show the existence of a reasonable apprehension of bias. In my view, although the evidence was hearsay, it was the only evidence available to the TWU and the Chairperson should not have so lightly dismissed it.
[26] Hearsay evidence, offered to prove the truth of its contents, has traditionally been inadmissible unless it falls within one of the enumerated hearsay exceptions. However, the hearsay rules have been altered by the Supreme Court, to allow for the admissibility of hearsay statements for the truth of their contents where they meet the requirements of "necessity" and "reliability". (See R. v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. B. (K.G.), [1993] 1.S.C.R. 740.) Mr. Justice Sopinka confirmed this expansion of the rule in R. v. Hawkins, [1996] 3 S.C.R. 1043, where he said:
¶ 67 Under this reformed framework, a hearsay statement will be admissible for the truth of its contents if it meets the separate requirements of "necessity" and "reliability" (emphasis added). These two requirements serve to minimize the evidentiary dangers normally associated with the evidence of an out-of-court declarant, namely the absence of an oath or affirmation, the inability of the trier of fact to assess the demeanour of the declarant, and the lack of contemporaneous cross-examination.
¶ 68 Consistent with the spirit of this modern approach, the twin requirements of "necessity" and "reliability" must always be applied in a flexible manner. As Lamer C.J. stressed in U. (F.J.), at p. 787:
Khan and Smith establish that hearsay evidence will be substantively admissible when it is necessary and sufficiently reliable. Those cases also state that both necessity and reliability must be interpreted flexibly, taking account of the circumstances of the case and ensuring that our new approach to hearsay does not itself become a rigid pigeon-holing analysis.
If a hearsay statement satisfies these two requirements, the trial judge may put the statement to the trier of fact, subject to appropriate safeguards and to cautions regarding weight. [Emphasis added]
[27] The Supreme Court has also recently commented on the applicability of the expansion of the hearsay rules to the admissibility of double hearsay. In R. v. Mapara, 2005 SCC 23, the Court found that the co-conspirator's exception to the hearsay rule (the Carter rule) should also apply to double hearsay when the evidence meets the necessity and reliability requirements.
[28] It is also worth noting that, regardless of the hearsay rules I have just remarked on, administrative tribunals are not bound by the strict rules of evidence to which courts must adhere. This Court commented on this principle in Canada (Attorney General) v. Mills (F.C.A.), [1984] F.C.J. No. 917 (QL).
Contrary to what was assumed by the Chief Umpire, boards of referees, like other administrative tribunals, are not bound by the strict rules of evidence applicable in criminal or civil courts; they may, therefore, receive and accept hearsay evidence.
[29] Therefore, due to the alteration of the hearsay rules, their applicability to double hearsay and the principles pertaining to administrative tribunals, the Chairperson should not have summarily dismissed the hearsay evidence.
[30] The only person who could have effectively responded to this evidence was the Chairperson himself. In my view, it was incumbent on the Chairperson, if the allegations were untrue, to deny or explain them. He simply failed to respond.
[31] A case specifically on point is Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259, where two Indian bands sought reconsideration of a unanimous Supreme Court judgment written by Binnie J. on the basis that it was tainted by a reasonable apprehension of bias and should be set aside. The claims arose from Binnie J.'s involvement in the matter in his capacity as federal Associate Deputy Minister of Justice over 15 years prior to the hearing of the bands' appeals by the Supreme Court. In addressing the matter, Binnie J. filed a statement as part of the record, indicating that he did not recollect his involvement in the file and recused himself from any further participation in those proceedings. While the statement was not found to be decisive in disposing of the issue, it was nevertheless held to be relevant.
[32] In my view, the appropriate course for the Chairperson to follow was to file a statement, as Binnie J. did in the Wewaykum case. Otherwise it is most difficult to dispel the perception of bias.
[33] It also would have been prudent, if the Chairperson was not going to deny the allegations, to publicly announce that he would delegate his power of choosing the members of the reconsideration panel to someone else. Subsection 12.01(2) of the Code gives him that power.
|
12.01(2) The Chairperson may delegate to a Vice-Chairperson any of the Chairperson's powers, duties and functions under subsection (1). |
12.01(2) Le président peut déléguer à un vice-président tous pouvoirs ou fonctions prévus au paragraphe (1). |
[34] The TWU had requested, in the alternative to a recusal by the Board, that it be provided with documentation referencing discussions between Board members regarding any reconsideration motion to be brought by Telus and an affidavit by the Chairperson. Although such documentation or affidavit evidence was not necessary, in my view, the appropriate action which the Chairperson should have taken was to have filed a statement.
Entire Board
[35] The position of the TWU on the issue of bias has not been a model of consistency. Before the result of the Reconsideration Decision was known, the TWU took the position that the entire Board should be disqualified from sitting due to a reasonable apprehension of bias. However, subsequent to the result being known, the TWU took the position, in oral arguments before this Court, that a reasonable apprehension of bias was shown by reason of the fact that the entire Board had failed to sit on the reconsideration panel. The TWU argued that the entire Board should have heard the Reconsideration Application because there was a reasonable apprehension of bias by the three member reconsideration panel, by reason of their having been chosen by the Chairperson.
[36] It is a well-known principle that each member of a tribunal is subject to a presumption of impartiality (see Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 39). The fairness and impartiality attributed to judges, absent evidence to the contrary, has also been attributed to members of expert tribunals. See R. v. S. (R.D.), [1997] 3 S.C.R. 484 and E.A. Manning Ltd. v. Ontario Securities Commission (1995), 23 O.R. (3d) 257 (C.A.). In Finch v. Assn. of Professional Engineers & Geoscientists (British Columbia), [1996] 5 W.W.R. 690 (B.C.C.A.), the Court, in discussing the Association of Professional Engineers, the body that heard charges concerning the conduct of a professional engineer, held that it must be assumed that "unless and until the contrary is shown, that every member of this committee will carry out his or her duties in an impartial manner".
[37] The test to be met when making an allegation of bias was articulated by Cory J. for the Court in Newfoundland Telephone Co v. Newfoundland (Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623. At paragraph 22, he said:
[...] It is, of course, impossible to determine the precise state of mind of an adjudicator who has made an administrative board decision. As a result, the courts have taken the position that an unbiased appearance is, in itself, an essential component of procedural fairness. To ensure fairness the conduct of members of administrative tribunals has been measured against a standard of reasonable apprehension of bias. The test is whether a reasonably informed bystander could reasonably perceive bias on the part of an adjudicator.
[38] A party seeking to allege bias, real or apprehended, must submit evidence to support its allegation. As the Supreme Court said in Mugesera at paragraph 13, "[t]he burden of proof is on the party alleging a real or apprehended breach of the duty of impartiality, who must establish actual bias or a reasonable apprehension of bias". Also see Adams v. British Columbia (Workers' Compensation Board) (1989), 42 B.C.L.R. (2d) 228 (B.C.C.A.) and Trent Construction Ltd. v. Labourers International Union of Newfoundland, Local 1208 (1995), Nfld. & P.E.I.R. 240 (Nfld. S.C.T.D.). The TWU did not submit any evidence to meet the requisite test of bias on the part of the reconsideration panel and entirely relies on the Chairperson's delegation powers as the basis for its accusation against the three member panel.
[39] In Van Rassel v. Royal Canadian Mounted Police, [1987] 1 F.C. 473, 7 F.T.R. 187 (T.D.), the applicant, a member of the RCMP, was charged under the Criminal Code [R.S.C. 1970, c. C-34] with various offences and under the disciplinary provisions of the Royal Canadian Mounted Police Act, R.S.C. 1970, c. R-9 (RCMP Act), with discreditable conduct. In the case of a charge being brought against an officer for what was known as a service office, the RCMP Act allowed for an investigation by an officer, following which, a report would be made to the Commissioner of the RCMP. If the Commissioner thought the officer ought to be tried for the offence, the Commissioner could direct a written charge to be prepared and served. The Commissioner then would appoint an officer to preside at the trial. The applicant sought to prohibit the service enquiry to proceed, alleging, among other things, that the Commissioner had made several comments about the applicant's actions that led to a reasonable apprehension of bias on his part, and therefore arguing, "the tribunal is appointed by the authority which decides that a charge should be laid, that the links in the chain of command reach from the authority to the tribunal and back again and that the tribunal's mind is set to upholding the authority's policy and is tainted with partiality". The applicant produced a document alleged to be an extract of a tape recording containing statements alleged to be made by the Commissioner. The Federal
Court said:
Assuming for the moment that the document is authentic and that the words were directed to the applicant, it would not on that basis constitute the kind of ground to justify my intervention at this time. The Commissioner of the RCM Police is not the tribunal. It is true that he has appointed the tribunal but once appointed, the tribunal is as independent and as seemingly impartial as any tribunal dealing with a service-related offence. One cannot reasonably conclude that the bias of the Commissioner, if bias there is, is the bias of the tribunal and that as a result the applicant would not get a fair trial [...] [emphasis added].
[40] This matter was also addressed in Zundel v. Citron (C.A.), [2000] 4 F.C. 225 where there was an appeal from the judgment of a Motions Judge, who concluded that by reason of a press release, all members of a Tribunal were tainted, thereby essentially advocating the existence of the doctrine of "corporate taint". The press release had been issued by the Ontario Human Rights Commission's (OHRC) then Chief Commissioner, in which the Commission, among other things, applauded a court ruling that found Ernst Zundel to be guilty of publishing false statements that denied the Holocaust. Four years later, Mr. Zundel was the subject of complaints to the Canadian Human Rights Commission (CHRC). He brought a motion before the CHRC, seeking to dismiss the complaints on the basis that one of the CHRC members was subject to a reasonable apprehension of bias due to the fact that she had been a member of the OHRC at the time the press release had been made. The Tribunal denied the motion since the press release had not been made by the Commission nor by the individual Tribunal member, but the Motions Judge rejected the Tribunal's decision, finding that the press release had spoken on behalf of all the members of the Commission. On appeal, this Court overturned the finding of the Motions Judge and concluded that the doctrine of "corporate taint", which, under certain circumstances, taints all members of a tribunal with bias, had been rejected by courts and that no such doctrine existed. Rather, it adopted the reasoning of the British Columbia Court of Appeal in Bennett v. British Columbia (Securities Commission) (1992), 94 D.L.R. (4th) 339 when it said:
[...] Bias is an attitude of mind unique to an individual. An allegation of bias must be directed against a particular individual alleged, because of the circumstances, to be unable to bring an impartial mind to bear. No individual is identified here. Rather, the effect of the submissions is that all of the members of the Commission appointed pursuant to s. 4 of the Securities Act, regardless of who they may be, are so tainted by staff conduct that none will be able to be an impartial judge. Counsel were unable to refer us to a single reported case where an entire tribunal of unidentified members had been disqualified from carrying out statutory responsibilities by reason of real or apprehended bias. We think that not to be surprising. The very proposition is so unlikely that it does not warrant serious consideration. [Emphasis added]
[41] Neither the doctrine of corporate taint nor the subjection of the entire Board to a reasonable apprehension of bias as a result of the Chairperson's alleged comments, applies here. Painting the entire Board with bias as a result of the one board member's alleged comments undermines the presumption of impartiality and fairness that is attributed to each member and compromises the integrity of the entire Board. In Mugesara, the Supreme Court articulated the possible consequences if this proposition is adopted. At paragraph 15, it said:
[...] If there is a duty on the part of one member of our Court to recuse him or herself, it is an astounding proposition to suggest that the same duty automatically attaches to the rest of the Court or compromises the integrity of the whole Court. To reach that conclusion would be to ascribe a singular fragility to the impartiality that a judge must necessarily show, and to the ability of judges to discharge the duties associated with impartiality in accordance with the traditions of our jurisprudence. [...]
[42] Finally, I find it necessary to comment on the TWU's original attempt to disqualify the entire Board and argue that the Reconsideration Application should not have been heard. The "doctrine of necessity" precludes the Board from rendering itself incapable of reconsidering its own decisions since the reconsideration process is a function of the Board pursuant to the Code. This is consistent with the principle stated by the High Court of Australia in Laws v. Australian Broadcasting Tribunal [1990] 64 A.L.R. 412 at 420, that "the rules of natural justice cannot be invoked to frustrate the intended operation of a statute which sets up a tribunal and requires it to perform the statutory functions entrusted to it". That statement was adopted in Finch (cited above at paragraph 36).
Waiver by the TWU
[43] The Reconsideration Application was submitted by Telus on February 16, 2004 and Mr. Bell learned of the alleged comments by the Chairperson on February 20, 2004. The TWU submitted, to the Board, its response to Telus' Reconsideration Application on February 24, 2004 and its response to Telus' amendment to the Application on May 19, 2004. During that time, the TWU also submitted the Recusal Application to the Board on March 25, 2004.
[44] The TWU maintains that it was unaware, until the Reconsideration Decision was released on February 2, 2005, that the reconsideration panel only consisted of three Board members and that it was under the impression that the Board would be sitting as a plenary panel. Therefore, the fact that it did not take objection to the composition of the Board and that it continued to participate in the proceedings did not constitute waiver. In my view, this argument does not carry any weight. The TWU would have known, as a result of its numerous appearances before the Board since 1999, that the Board no longer sits in plenary session. I will go into further detail on this later. Instead of waiting until the Reconsideration Decision was rendered, the TWU should have been voicing its objections in regard to the Chairperson appointing the reconsideration panel much earlier.
[45] The Recusal Decision was rendered on August 18, 2004 and the Reconsideration Decision, on February 2, 2005. The record, however, shows no objection by the TWU in regard to the appointment of the reconsideration panel even though once the Recusal Decision was rendered, the TWU had approximately six months in which it should have expressed its apprehension to the Board about bias on the part of the Chairperson and consequently, on the part of any panel he picked. In fact, the TWU had the opportunity to voice its concerns in its May 19, 2004 submissions, in which it could have called on the Chairperson to delegate his power to determine the composition of the reconsideration panel. It did no such thing.
[46] Rather, as I previously stated, prior to the Reconsideration Decision being released, the TWU maintained the position that the Board should not sit at all. Once the Reconsideration Decision was rendered and the TWU became aware that only a three member panel had sat, which did not include the Chairperson, the TWU reversed its arguments. It took the position that, due to the appointment of the panel by the Chairperson, who suffered from a reasonable apprehension of bias, the three member panel also suffered from a reasonable apprehension of bias, and the whole Board should have sat in a plenary panel to hear the Reconsideration Application. Between March 25, 2004 and April 2005 the TWU never once argued that any three member panel chosen by the Chairperson would be subject to a reasonable apprehension of bias due to his alleged comments.
[47] The TWU, by failing to make this argument they now advance, that the Chairperson should not have selected the panel but instead, should have delegated this duty to a Vice-Chairperson, should be taken to have waived its right to complain about the composition of the panel. Clearly the TWU was content to await the result of the reconsideration panel and then adjust its bias argument to suit its purpose.
[48] Therefore, I find that the TWU waived its right to make bias allegations against the reconsideration panel.
[49] The TWU maintains that the Chairperson, pursuant to subsection 12.01(2) of the Code, could have delegated his power to appoint the reconsideration panel to a Vice-Chairperson, which would have avoided tainting the rest of the Board, but failed to do so. However, the TWU has not adduced any evidence that the Chairperson did not actually delegate that power. In fact, the TWU itself does not know whether it was the Chairperson who picked the reconsideration panel because it did not even inquire. The onus was on it to inquire and, if it could not obtain the information, to seek to legally compel that information. It, however, took no steps and cannot now assume a fact for which there is no basis.
B. TWU Application: the Reconsideration Decision
[50] In the second part of this proceeding, the TWU is seeking an order quashing the Reconsideration Decision and its reasons, and requesting a reinstatement of the Binding Arbitration Decision.
[51] In the January 28, 2004 Binding Arbitration Decision, the Board found Telus to have breached paragraph 94(1)(a) of the Code and ordered Telus to offer the TWU binding arbitration to resolve all outstanding issues in the bargaining of the collective agreement between the parties. In this Decision, the Board also lifted the cease and desist order, which had imposed a communications ban on Telus. However, in its reasons for the Binding Arbitration Decision, which were issued on April 8, 2004, the Board imposed another communication ban on Telus, ordering it to cease communicating with bargaining unit employees on matters of employment and collective interest.
[52] In the Reconsideration Decision, the Board, composed of a different panel, upheld its findings that Telus had violated paragraph 94(1)(a) of the Code but quashed its earlier order requiring Telus to offer the TWU binding arbitration. It also quashed the communications ban as it was imposed in the April 8, 2004 reasons and reinstated the terms of the January 17, 2004 interim cease and desist order, which included a communications ban. Its specific conclusions, were as follows:
a. the Board's powers of reconsideration and interference with a decision of a panel of the Board should be the exception rather than the rule. However, it was of the view that the allegations presented by Telus in its application were significant, in that they allege errors going to the jurisdiction of the Board and raise interpretation and policy issues;
b. the exercise of one's freedom of expression, pursuant to paragraph 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (Charter), can nevertheless constitute a violation of paragraph 94(1)(a) of the Code and a limitation of this freedom of expression can be justified under section 1 of the Charter. The jurisprudence indicates that employers cannot ignore the application of the Code by claiming they acted under a form of constitutional immunity. Accordingly, the cease and desist order was a reasonable limit on Telus' freedom of expression; and
c. the Board considered Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, the authoritative decision on the Board's jurisdiction to impose remedies like binding arbitration, and determined that the facts were not comparable to the present case. In Royal Oak Mines, there had been an 18 month strike, marked by violence and ill will, that was impacting the surrounding community and there was a finding of bad faith bargaining during negotiations. Even with the exceptional circumstances in Royal Oak Mines, the Supreme Court only upheld the Board's imposition of binding arbitration by a very slight majority (4-3 split). Thus the Board in this matter found no justification for the original panel to have imposed that drastic remedy.
[53] The TWU, in support of its reconsideration application, made several arguments. First, it maintained that the Board erred by not following its established policy, namely that once a review panel has concluded that a decision raises issues of law or policy affecting the Board's interpretation of the Code, as was the case here, that the matter will be referred to the full Board sitting in plenary session. In particular, the TWU submitted that a reconsideration panel of the Board is not supposed to reverse the decision of the original panel. Accordingly, the TWU maintained that the Board breached the rules of natural justice and procedural fairness in not following its own policy and denying the TWU the right to have the Reconsideration Application considered by a plenary panel.
[54] In the alternative, the TWU argued that the reconsideration panel reached a patently unreasonable decision by failing to adhere to its own established policy of ordering binding arbitration in these types of circumstances. In particular, it maintained that a finding of fact cannot be overturned on reconsideration.
[55] Finally, the TWU argued that the Reconsideration Decision should be quashed due to the actual bias of the Chairperson and to a reasonable apprehension of bias of the Board.
Standard of Review
[56] The standard of review is determined by reference to four factors, articulated most recently in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247. These are the presence or absence of a privative clause, the relative expertise of the tribunal and the court, the purpose of the statute and particular provision in issue, and the nature of the problem.
[57] The Code contains a full privative clause at section 22, which is a significant indication of Parliament's intention that a high level of deference ought to be afforded to decisions of the Board. (See Canadian Broadcasting Corporation v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157 at paragraph 31.)
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22. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
(1.1) The Board has standing to appear in proceedings referred to in subsection (1) for the purpose of making submissions regarding the standard of review to be used with respect to decisions of the Board and the Board's jurisdiction, policies and procedures.
(2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall (a) be questioned, reviewed, prohibited or restrained, or (b) be made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction. |
22. (1) Sous réserve des autres dispositions de la présente partie, les ordonnances ou les décisions du Conseil sont définitives et ne sont susceptibles de contestation ou de révision par voie judiciaire que pour les motifs visés aux alinéas 18.1(4)a), b) ou e) de la Loi sur les Cours fédérales et dans le cadre de cette loi.
(1.1) Le Conseil a qualité pour comparaître dans les procédures visées au paragraphe (1) pour présenter ses observations à l'égard de la norme de contrôle judiciaire applicable à ses décisions ou à l'égard de sa compétence, de ses procédures et de ses politiques.
(2) Sauf exception prévue au paragraphe (1), l'action - décision, ordonnance ou procédure - du Conseil, dans la mesure où elle est censée s'exercer dans le cadre de la présente partie, ne peut, pour quelque motif, y compris celui de l'excès de pouvoir ou de l'incompétence à une étape quelconque de la procédure_: a) être contestée, révisée, empêchée ou limitée; b) faire l'objet d'un recours judiciaire, notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto. |
[58] The Board also has considerable expertise in labour relations matters (see Royal Oak Mines) and the purpose of the Code is to maintain a balance between competing labour relations considerations and to facilitate constructive settlement of disputes. Both these factors also indicate a high level of deference.
[59] As far as the nature of the question, there are two questions here. The first goes to the procedure employed by the Board in reconsidering its own decisions and the second, to the ability of the Board to overturn its decisions on reconsideration.
[60] In regard to the first question, the Board is an expert tribunal and dictates its own procedure and the greatest level of deference should be afforded to it on procedural matters, meaning the court should not interfere unless the Board's decision is patently unreasonable. In Quebec-Telephone v. Syndicat des agents de maitrise de Quebec-Telephone, [1997] 221 N.R. 312 (F.C.A.), where the applicant opposed the Board's refusal to contemplate engaging a plenary session on a reconsideration decision, this Court refused to intervene, stating at paragraph 8:
In opposition to the second decision, by which the Board expresses, through the voice of its Registrar, its refusal to contemplate any reconsideration of the decision in plenary session, the applicant argues that the reason given, namely, that the alleged errors of law should have been raised at first instance, is so unacceptable that it can be inferred as an outright refusal to exercise its jurisdiction. In the first place, this is not an imposed jurisdiction but a discretionary authority, for the exercise of which the Board has adopted a firm policy... The points of law relied on in support of the application for review were related, we were told, to a lack of respect for the background, a failure to consult the supervisors, the danger to industrial peace. Those are issues that were clearly before the Board at first instance. The Board members who heard and considered the application for review were fully entitled to think that the requisite conditions for the exercise of this power of review, an exceptional power which, absent any allegation of new facts, ought to be exercised with care and for cause, did not exist. If there is any area in which the Board's discretion must remain impervious to the intervention of this Court, it is that [emphasis added].
[61] On the second question, both sides have conceded that the standard of review on the merits of the Reconsideration Decision, the substantive decision, is also one of patent unreasonableness.
Plenary Panel
[62] First I will deal with the TWU's procedural issue: was the Board legally obligated to have the matter decided by a plenary panel?
[63] There is no provision in the Code requiring the Board to engage a plenary panel in any circumstance. Rather, the only section referring to panel composition is subsection 14(1), which requires a panel of not less than three members, at least one of whom is the Chairperson or Vice-Chairperson, to determine the matter that comes before the Board.
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14. (1) Subject to subsection (3), a panel of not less than three members, at least one of whom is the Chairperson or a Vice-Chairperson, may determine any matter that comes before the Board under this Part. |
14. (1) Sous réserve du paragraphe (3), une formation d'au moins trois membres dont le président ou au moins un vice-président fait obligatoirement partie peut connaître de toute affaire dont est saisi le Conseil dans le cadre de la présente partie. |
[64] Even the influential Sims Report, by A.C.L. Sims, Q.C., et al., Seeking a Balance (Hull, QC: Public Enquiries Centre, 1995) at 194-195, never mentioned the use of plenary panels, but instead said,
At present, almost all of the Board's business is conducted by three person panels, consisting of a Chair or Vice-Chair and two other persons. The only exceptions to this are for uncontested matters under section 14(2) and applications concerning the operation of Part II of the Code.
[65] However, the TWU maintains that it is an established Board policy, when a question raises an issue of law or policy affecting the Board's interpretation of the Code, to engage a plenary panel where all members of the Board, or a majority, hear the matter upon reconsideration.
[66] Referring decisions to plenary panels for matters of policy or Code interpretation was, although not common, certainly utilized prior to 1999 by the Canada Labour Relations Board (CLRB), the predecessor to the Board, to address perceived errors in law or in policy (see Skeena Broadcasters Ltd. (1982), 49 di 27 (CLRB)).
[67] The policy behind the engagement of a plenary panel was to have a forum allowing for the expression of each Board member's opinion when matters of importance arose (see Wardair Canada (1975) Ltd. (1983), 53 di 184 (CLRB)). It was also used to ensure that a decision of a three member panel would not be reversed by another three member panel (see Brewster Transport Company Limited (1986), 66 di 133 (CLRB)).
[68] However, since the 1999 amendments, which, among other things, replaced the former CLRB with the Board, the Board has altered its procedure to refer certain matters to plenary panels. Every decision relied upon by the TWU, in which the Board referred to the plenary panel, was rendered prior to 1999. Prior to the 1999 amendments, the Board was composed of non-representational members, members that represented neither management nor labour. Since the 1999 amendments, the Board has been composed of a Chairperson, Vice-Chairs and members. Each member represents either labour or management. Most importantly, since the 1999 amendments, there have been thirteen reconsideration applications and none have taken place before a plenary panel. Indeed, there has been no sitting of a plenary panel on any matter since 1999.
[69] A decision that is particularly telling of the policy change that took effect with the 1999 Code amendments is Re BCTV, [2000] CIRB No. 71, wherein a matter that was referred to a plenary panel for reconsideration prior to the amendments was not heard until the amendments came into force, only to be heard by a three member panel.
[70] In support of its argument about reference to a plenary panel, the TWU relied on Information Circular No. 2-01, a document that was prepared by the Board's administration staff and updated on November 22, 2004, which restricts the actions of the Board on a reconsideration application. Specifically, it says:
(4) A "reconsideration panel" consisting of the Chairperson and two Vice-Chairpersons, or three Vice-Chairpersons, none of whom would have sat on the original panel, will screen each reconsideration application. Given the workload of the Board, it is obviously not feasible that a full Board plenary review all reconsideration applications that are filed.
(5) The "reconsideration panel" will give preliminary consideration to the application and the submissions from the parties. The panel may then choose one of three options.
...
The panel may decide to refer the case to a full Board plenary. The plenary would include the members of the original panel that had issued the decision that is going to be reconsidered.
The panel may refer the matter back to the original panel...
[71] Although the Board acknowledges the existence of this information circular, it maintains that it is inaccurate and does not reflect the practice of the Board since 1999, an allegation that was not contested by either party. It should also be noted that information circulars are not official policy documents and are not binding on the Board. Indeed, the introductory comments are as follows:
This is one of a series of information circulars prepared by the Board's administration staff. This is not an official document and is not binding on the Board. The circulars are designed to provide general information to employees, trade unions and employers so that they may have a better understanding of the Board's processes.
[72] I therefore conclude that while the Board may have had this procedure in place prior to the 1999 amendments, it no longer has a policy of convening plenary panels. This conclusion should serve as no surprise to the TWU, since it has been before the Board at least 12 times since 1999 and should therefore be familiar with Board procedure. This leads me to believe that the procedure employed by the Board in its rendering of the Reconsideration Decision is that which it now routinely employs, in which case, the formation of the three member panel was not patently unreasonable.
[73] I am also of the opinion that if the Board wishes to overturn its previous decision upon reconsideration, with or without a plenary panel, it is free to do so without intervention, since it is "master of its own procedure" and was acting within its jurisdiction. The Board loses this jurisdiction only if there is "bias, interest, fraud, denial of natural justice or want of qualification" (C.J.A., Local 1388 v. Prince Edward Island (Labour Relations Board), [1990] P.E.I.J. No. 31). In Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, it was found:
¶ 49 It must not be forgotten that every administrative body is the master of its own procedure and need not assume the trappings of a court. The object is not to import into administrative proceedings the rigidity of all the requirements of natural justice that must be observed by a court, but rather to allow administrative bodies to work out a system that is flexible, adapted to their needs and fair. As pointed out by de Smith (Judicial Review of Administrative Action (4th ed. 1980), at p. 240), the aim is not to create "procedural perfection" but to achieve a certain balance between the need for fairness, efficiency and predictability of outcome. [...]
Binding Arbitration Order
[74] I will now turn to the TWU's second issue: whether the Board acted in a patently unreasonable manner by overturning its binding arbitration order upon reconsideration of the Binding Arbitration Decision.
[75] Given the level of deference afforded to the Board when the standard of review is one of patent unreasonableness, a decision would have to be clearly irrational to justify interference by this Court. In Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at 963-964, the Supreme Court discussed the patently unreasonable standard:
It is said that it is difficult to know what "patently unreasonable" means. What is patently unreasonable to one judge may be eminently reasonable to another... Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly". "Unreasonable" is defined as "[n]ot having the faculty of reason; irrational ... . Not acting in accordance with reason or good sense". Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance [page964] with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test.
(See also C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 165; Law Society of New Brunswick v. Ryan at paragraph 52.)
[76] The TWU relied on previous Board decisions that had imposed binding arbitration on the parties to support its position that the reconsideration panel should have upheld the Binding Arbitration Decision. However, although it is obvious that there have been decisions in which the Board has imposed binding arbitration, this does not mean that it ought to have imposed this remedy here as well. Rather, the Board is required to take many factors into account when it is considering the proper remedy. In the Reconsideration Decision, the Board went to great lengths to distinguish the present fact situation from that in Royal Oak Mines, the leading decision in this area, where a binding arbitration order was to be imposed if the parties failed to reach an agreement within a specified time limit. The circumstances of the labour dispute in Royal Oak Mines were extraordinary and were summarized by Dr. Nightingale, a professor at Queen's University. The Supreme Court of Canada referred to his summary in its decision and the Board also quoted the following excerpt:
The complexities of this dispute - including failed conciliation, failed mediation, the rejection of a tentative agreement, a representational dispute within the union, a decertification drive while the strike continues and the continued operation of the mine by replacement workers - are unusual enough. Add to these, the murder of 9 workers, an ongoing RCMP investigation, intimidation and death threats directed toward miners and their families, violence, including beatings which have spilled over into the community and the Mayor of Yellowknife discussing the possible need for martial law and we have a tragedy without precedent in Canadian labour history. The Black Tuesday clash in the Souris, Saskatchewan coal fields in 1931, the 1969 Inco strike, the 1990 Placer Dome strike and the more recent Brunswick Mining and Smelting strike pale in comparison.
[77] Since the Board's decision to impose binding arbitration was upheld on appeal of Royal Oak Mines, the TWU attempted to draw similarities between it and the situation presently before this Court.
[78] Given the extreme circumstances described above, I fail to see the similarities between those and the fact situation in this matter. Further, even with the circumstances in Royal Oak Mines, the Supreme Court upheld the Board's decision to impose binding arbitration by only a 4-3 majority. This leads me into my next point: the extraordinariness of the binding arbitration order and the consequent reluctance to impose it. Binding arbitration is an exception rather than a rule because it runs counter to the inherent policy underlying the Code: free collective bargaining. Cory J. described it as a "corner stone of the Canada Labour Code and of labour relations" (Royal Oak Mines at paragraph 98). Lamer C.J. wrote separately in Royal Oak Mines in order to stress this point.
However, I have chosen to write separately because I wish to stress that such an extraordinary order, while justified in these circumstances, runs against the established grain of federal and provincial labour codes by overriding the cherished principle of "free collective bargaining" which animates our labour laws. While Cory J. is correct in emphasizing that the principle of "free collective bargaining" is not the only policy interest advanced by the Code, it is undoubtedly one of the most important and one of the most sacred. Labour movements in Eastern Europe have fought for decades to resist state-imposed collective agreements, and it would be an ironic and tragic development in our labour law if the principle of free collective bargaining were to be regularly subordinated to the societal goal of the "constructive settlement of disputes". [...]
[79] When the Board forces parties to go to binding arbitration, it negates the principle of free collective bargaining and such a remedy can only be imposed in extraordinary circumstances. The panel that rendered the Binding Arbitration Decision was under the impression that these circumstances warranted such intrusive measures. On reconsideration, the Board could not find a rational connection between the breach of the Code and the remedy imposed by the original panel. It overturned the binding arbitration remedy and devoted a significant part of the Reconsideration Decision distinguishing this case from Royal Oak Mines and to articulating policy concerns associated with binding arbitration.
[80] The TWU also argued that the Board failed to address two recent decisions in which binding arbitration was imposed: D.H.L. International Express Limited, [2001] CIRB No. 129, upheld at [2002] CIRB No. 159 and Via Rail Canada Inc. v. Cairns, 2004 FCA 194, leave to appeal to S.C.C. dismissed at [2004] S.C.C.A. No. 358. In my opinion, both these decisions can be distinguished from the present case.
[81] In Cairns, the Board imposed terms of employment on Via Rail and the union to remedy the union's breach of the duty of fair representation. The Board did not impose binding arbitration but rather, imposed employment terms dealing with three contentious issues instead of letting a consensual mediation-arbitration run its course. On appeal from the Board, this Court determined that the Board's imposition of the terms, which supplanted the provisions of a collective agreement, did not violate the principles of free collective bargaining in the Code since, among other things, the terms imposed represented a relatively small portion of the total collective agreement and the Board had continued to invite the parties to consensually resolve their disagreements. In D.H.L., the circumstances were extraordinary. Due to the employer's practice of contracting out, a bargaining unit that had originally been comprised of eighteen positions had been whittled down to three employees. The union was facing extinction and since the employer had done irreversible damage to it, the Board ordered D.H.L. to offer the union binding arbitration.
[82] The Reconsideration Decision, in overturning the Binding Arbitration Decision, acknowledged the difficulty of the present matter and the complexity of the issues. But it also noted that, in the federal jurisdiction, given the size of the employers and the unions and the matters that arise, it is not unusual for disputes to be this lengthy. At paragraph 220, the Board said:
There is very little similarity between those facts and the facts in the present case. It is true that TELUS and the TWU have been involved in a lengthy dispute and that negotiations have been very difficult. The complexity of the issues that the parties are dealing with can not be underestimated. Some attempts have been made to assist the parties in resolving their dispute. These, however, do not constitute exceptional or compelling circumstances that would justify the imposition of such an invasive remedial order that effectively put an end to "free collective bargaining" between the parties. It is not unusual, in the federal jurisdiction, given the size of the employers and the unions, the competitive and complex nature of the industries within which they operate, and the difficult collective bargaining issues that arise at the negotiating table, for parties to be engaged in lengthy disputes that involve a myriad of very complicated issues.
[83] Given the complexity and length of this matter, the factual findings that have been made by the Board, and the extraordinariness of a binding arbitration order, combined with the deference Parliament intended the Board to have, and the importance of free collective bargaining, I am not prepared to interfere with the quashing of the binding arbitration order. The Board's reasons are logical and involve use of its expertise in labour matters. I do not find the decision to be patently unreasonable.
C. Telus Application: the Communications Ban
Facts
[84] Telus originally sought to quash all communications bans imposed by the Board but on appeal, it conceded that it was only seeking to quash the communications ban ultimately imposed by the reconsideration panel.
[85] It is helpful to briefly restate the facts relevant to this part of the proceeding. On June 3, 2003, November 24, 2003 and January 12, 2004, respectively, the TWU filed three complaints alleging unfair labour practices by Telus in communicating with the bargaining unit employees, recruiting replacement workers in anticipation of a strike and breaching an undertaking given to the Board not to communicate with the bargaining unit employees. The parties had been engaged in collective bargaining during this time. On January 17, 2004, the Board issued an interim "cease and desist" order, in which Telus was ordered to cease and desist from distributing the pamphlet "TELUS Responds with the Facts!", to remove any electronic or paper posting of it, to refrain from any further written communication or holding any meetings, with employees of the bargaining unit concerning "labour negotiations, the union's strike vote and labour relations issues" and finally, that it communicate this order to the employees of the TWU. This order was to remain in effect until January 28, 2004.
[86] In the January 28, 2004 Binding Arbitration Decision, the Board found that Telus had contravened paragraph 94(1)(a) of the Code because Telus' actions had "irreparably undermined the union's efforts in achieving a collective agreement". The Board ordered binding arbitration and decline to renew the cease and desist order. However, in the April 8, 2004 reasons for the Binding Arbitration Decision, the Board reimposed a communications ban, although not the same as that previously imposed.
[87] In the Reconsideration Decision, the Board, composed of a different three member panel, lifted the binding arbitration order and quashed the communications ban as it was imposed in the April 8, 2004 reasons. It also reinstated the terms of the January 17, 2004 interim cease and desist order, as amended to reflect the current situation.
[88] Telus argued that a ban on communication is an infringement of the guarantee of freedom of expression pursuant to paragraph 2(b) of the Charter and that the burden of proof is on those seeking to limit that freedom, which the TWU did not discharge. Specifically, Telus noted that pursuant to paragraph 94(2)(c) of the Code, which allows employers to express personal points of view so long as there is no coercion, intimidation, threats, promises or undue influence used, it has the constitutional right to speak to employees about labour relations issues.
[89] Telus also argued that the Board should not have reimposed the communications ban in the Reconsideration Decision because the situation that had caused the Board to impose the original cease and desist order no longer existed when the order was reimposed. Rather, Telus maintained that the Board failed to address that the perceived imbalance in favour of Telus existing before the imposition of the original ban no longer existed at the time of its reimposition, as evidenced by the strike vote result (86.3% in favour of a strike).
[90] Telus made submissions only about the remedy imposed and did not contest its violation of the Code.
Analysis
[91] I need not repeat my earlier findings on the factors to be considered when determining the standard of review applicable to the Board. The privative clause and expertise of the Board analyses are identical. There are, however, two different questions here. The first is whether the Board contravened the Charter by imposing the communications ban. The standard of review for Charter questions is correctness. (See U.F.C.W., Local 1518 v. KMart Canada Ltd., [1999] 2 S.C.R. 1083; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; and Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157.)
[92] The second is whether the Board should have imposed the communications ban. The dynamics involved in employer/employee communications during periods of collective bargaining are complex and factually based and the Board is equipped to handle issues of this nature. The standard of patent unreasonableness will be applied.
Charter
[93] Telus has argued that the interim cease and desist order, which was reinstated in the Reconsideration Decision, violated its freedom of expression under paragraph 2(b) of the Charter and that such violation is unjustified. Telus quoted paragraph 278 of the Reconsideration Decision and argued that since that was the only paragraph dealing with the imposition of the ban, and because it did not refer to the Charter, that the Board had failed to engage in a sufficient analysis regarding Telus' freedom of expression rights pursuant to paragraph 2(b) of the Charter when it restored the terms of the January 17, 2004 interim cease and desist order in its Reconsideration Decision.
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2. Everyone has the following fundamental freedoms: ... b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;
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2. Chacun a les libertés fondamentales suivantes : ... b) liberté de pensée, de croyance, d'opinion et d'expression, y compris la liberté de la presse et des autres moyens de communication;
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[94] This argument ignores the fact that earlier in the Reconsideration Decision, the Board employed a lengthy analysis as to whether the interim cease and desist order violated Telus' freedom of expression, as it was imposed on January 17, 2004. At paragraphs 87-95 of the Reconsideration Decision, the Board concluded that the Charter was not a bar to the imposition of the communications ban. Specifically, the Board noted its previous determination that the exercise of one's right to freedom of expression can nevertheless constitute a violation of paragraph 94(1)(a) of the Code and that such a limitation can be justified under section 1 of the Charter. The Board declared that a violation of the Code cannot be ignored by employers who claim to be acting under a form of constitutional immunity. The communications ban, as originally imposed, had been seen as necessary to redress the imbalance created by the employer's actions. The communications ban was a reasonable limit to impose on the employer and an appropriate way to protect the union's exclusive authority to bargain collectively on behalf of its employees. Having restored that particular order in the Reconsideration Decision, it was unnecessary for the Board to once more justify the ban as it applied to the Reconsideration Decision by engaging in the same analysis.
[95] Pursuant to paragraph 94(1)(a), an employer is prohibited from participating in or interfering with the formation of a trade union, or the union's representation of its employees. The Board found that Telus had violated paragraph 94(1)(a) and it was therefore within the Board's power to restrict Telus from further contravening the Code.
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94. (1) No employer or person acting on behalf of an employer shall (a) participate in or interfere with the formation or administration of a trade union or the representation of employees by a trade union; |
94. (1) Il est interdit à tout employeur et à quiconque agit pour son compte_: a) de participer à la formation ou à l'administration d'un syndicat ou d'intervenir dans l'une ou l'autre ou dans la représentation des employés par celui-ci; |
[96] Although a communications ban is a limitation on Telus' freedom of expression, Parliament provided the Board with power to limit a party's freedom if it finds that a party is failing to comply with, or contravening, the Code through the exercise of such freedom.
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99. (1) Where, under section 98, the Board determines that a party to a complaint has contravened or failed to comply with subsection 24(4) or 34(6), section 37, 47.3, 50 or 69, subsection 87.5(1) or (2), section 87.6, subsection 87.7(2) or section 94, 95 or 96, the Board may, by order, require the party to comply with or cease contravening that subsection or section and may (a) in respect of a failure to comply with subsection 24(4), section 47.3, paragraph 50(b) or subsection 87.5(1) or (2) or 87.7(2), by order, require an employer to pay to any employee compensation not exceeding such sum as, in the opinion of the Board, is equivalent to the
remuneration that would, but for that failure, have been paid by the employer to the employee;
(a.1) in respect of a contravention of subsection 34(6), by order, require an employer representative to take and carry on on behalf of any employer affected by the contravention, or to assist any such employer to take and carry on, such action or proceeding as the Board considers that the representative ought to have taken and carried on on the employer's behalf or ought to have assisted the employer to take and carry on;
(b) in respect of a contravention of section 37, require a trade union to take and carry on on behalf of any employee affected by the contravention or to assist any such employee to take and carry on such action or proceeding as the Board considers that the union ought to have taken and carried on on the employee's behalf or ought to have assisted the employee to take and carry on;
(b.1) in respect of a contravention of the obligation to bargain collectively in good faith mentioned in paragraph 50(a), by order, require that an employer or a trade union include in or withdraw from a bargaining position specific terms or direct a binding method of resolving those terms, if the Board considers that this order is necessary to remedy the contravention or counteract its effects;
(b.2) in respect of a failure to comply with section 87.6, by order, require an employer to reinstate any employee who the employer has failed to reinstate in accordance with that section and pay to the employee compensation not exceeding the sum that, in the opinion of the Board, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to that employee;
(b.3) in respect of a failure to comply with subsection 94(2.1), by order, require the employer to stop using, for the duration of the dispute, the services of any person who was not an employee in the bargaining unit on the date on which notice to bargain collectively was given and was hired or assigned after that date to perform all or part of the duties of employees in the bargaining unit on strike or locked out;
(c) in respect of a failure to comply with paragraph 94(3)(a), (c) or (f), by order, require an employer to (i) employ, continue to employ or permit to return to the duties of their employment any employee or other person whom the employer or any person acting on behalf of the employer has refused to employ or continue to employ, has suspended,
transferred, laid off or otherwise discriminated against, or discharged for a reason that is prohibited by one of those paragraphs,
(ii) pay to any employee or other person affected by that failure compensation not exceeding such sum as, in the opinion of the Board, is equivalent to the remuneration that would, but for that failure, have been paid by the employer to that employee or other person, and
(iii) rescind any disciplinary action taken in respect of and pay compensation to any employee affected by that failure, not exceeding such sum as, in the opinion of the Board, is equivalent to any financial or other penalty imposed on the employee by the employer;
(c.1) in respect of a contravention of paragraph 94(3)(d.1) or (d.2), by order, require the employer to reinstate any medical, dental, disability, life or other insurance plan, or to pay to any employee any benefits under such a plan to which the employee was entitled
before the requirements of paragraphs 89(1)(a) to (d) were met;
(d) in respect of a failure to comply with paragraph 94(3)(e), by order, require an employer to rescind any action taken in respect of and pay compensation to any employee affected by the failure, not exceeding such sum as, in the opinion of the Board, is equivalent to any financial or other penalty imposed on the employee by the employer;
(e) in respect of a failure to comply with paragraph 95(f) or (h), by order, require a trade union to reinstate or admit an employee as a member of the trade union; and
(f) in respect of a failure to comply with paragraph 95(g), (h) or (i), by order, require a trade union to rescind any disciplinary action taken in respect of and pay compensation to any employee affected by the failure, not exceeding such sum as, in the opinion of the Board, is equivalent to any financial or other penalty imposed on the employee by the trade union. |
99. (1) S'il décide qu'il y a eu violation des paragraphes 24(4) ou 34(6), des articles 37, 47.3, 50 ou 69, des paragraphes 87.5(1) ou (2), de l'article 87.6, du paragraphe 87.7(2) ou des articles 94, 95 ou 96, le Conseil peut, par ordonnance, enjoindre à la partie visée par la plainte de cesser de contrevenir à ces dispositions ou de s'y conformer et en outre_:
a) dans le cas du paragraphe 24(4), de l'article 47.3, de l'alinéa 50b) ou des paragraphes 87.5(1) ou (2) ou 87.7(2), enjoindre par ordonnance à l'employeur de payer à un employé une indemnité équivalant au plus, à son avis, à la rémunération qui aurait été payée par l'employeur à l'employé s'il
n'y avait pas eu violation;
a.1) dans le cas du paragraphe 34(6), enjoindre, par ordonnance, au représentant patronal d'exercer, au nom de l'employeur, les droits et recours que, selon lui, il aurait dû exercer ou d'aider l'employeur à les exercer lui-même dans les cas où il aurait dû le faire;
b) dans le cas de l'article 37, enjoindre au syndicat d'exercer, au nom de l'employé, les droits et recours que, selon lui, il aurait dû exercer ou d'aider l'employé à les exercer lui-même dans les cas où il aurait dû le faire;
b.1) dans le cas de l'alinéa 50a), enjoindre, par ordonnance, à l'employeur ou au syndicat d'inclure ou de retirer des conditions spécifiques de sa position de négociation ou ordonner l'application d'une méthode exécutoire de règlement des points en litige, s'il est d'avis que ces mesures sont nécessaires pour remédier aux effets de la violation;
b.2) dans le cas de l'article 87.6, enjoindre, par ordonnance, à l'employeur de réintégrer l'employé conformément à cet article et de lui payer une indemnité équivalant au plus, à son avis, à la rémunération qui lui aurait été payée par l'employeur s'il n'y avait pas eu violation;
b.3) dans le cas du paragraphe 94(2.1), enjoindre, par ordonnance, à l'employeur de cesser d'utiliser pendant la durée du différend les services de toute personne qui n'était pas un employé de l'unité de négociation à la date à laquelle l'avis de négociation collective a été donné et qui a été par la suite engagée ou désignée pour exécuter la totalité ou une partie des tâches d'un employé de l'unité visée par la grève ou le lock-out;
c) dans le cas des alinéas 94(3)a), c) ou f), enjoindre, par ordonnance, à l'employeur_: (i) d'embaucher, de continuer à employer ou de reprendre à son service l'employé ou toute autre personne, selon le cas, qui a fait l'objet d'une mesure interdite par ces alinéas,
(ii) de payer à toute personne touchée par la violation une indemnité équivalant au plus, à son avis, à la rémunération qui lui aurait été payée par l'employeur s'il n'y avait pas eu violation,
(iii) d'annuler les mesures disciplinaires prises et de payer à l'intéressé une indemnité équivalant au plus, à son avis, à l'éventuelle sanction pécuniaire ou autre imposée à l'employé par l'employeur;
c.1) dans le cas des alinéas 94(3)d.1) et d.2), enjoindre, par ordonnance, à l'employeur de rétablir une police d'assurance invalidité, d'assurance médicale, d'assurance de soins dentaires, d'assurance-vie ou autre régime d'assurance ou de verser à un employé les
avantages prévus par une telle police et auxquels l'employé avait droit avant que les conditions prévues aux alinéas 89(1)a) à d) ne soient remplies;
d) dans le cas de l'alinéa 94(3)e), enjoindre, par ordonnance, à l'employeur d'annuler toute mesure prise et de payer à l'intéressé une indemnité équivalant au plus, à son avis, à l'éventuelle sanction pécuniaire ou autre imposée à l'employé par l'employeur;
e) dans le cas des alinéas 95f) ou h), enjoindre, par ordonnance, au syndicat d'admettre ou de réadmettre l'employé;
f) dans le cas des alinéas 95g), h) ou i), enjoindre, par ordonnance, au syndicat d'annuler toute mesure disciplinaire prise et de payer à l'intéressé une indemnité équivalant au plus, à son avis, à l'éventuelle sanction pécuniaire ou autre imposée à l'employé par le syndicat. |
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[97] In Eastern Provincial Airways Limited v. Canada Labour Relations Board et al., [1984] 1 F.C. 732; (1983), 2 D.L.R. (4th) 597; and 50 N.R. 81, the Federal Court of Appeal overturned a Board decision that had found that direct communications with employees during a strike constituted a violation of paragraph 184(1)(a) (now paragraph 94(1)(a)) of the Code. Although this Court based its decision on procedural grounds, it nonetheless noted:
[...] I see no merit at all in any of the arguments based on the Canadian Charter of Rights and Freedoms... Having regard to section 1 of the Charter, I see no bar in the Charter to an exercise of one's entrenched right to freedom of expression being found, in certain circumstances, an unfair labour practice just as, in other circumstances, it might be found defamation.
[98] Since the Board, in limiting Telus' freedom of expression, was acting pursuant to its statutory authority, I find the limitation to be demonstrably justified.
[99] I find the Board's consideration and application of the Charter to be correct.
Communications Ban
[100] Telus argues that the "total" communications ban currently in effect is overbroad. Although it is broad, it is not a "total" communications ban. Rather, it is more confined than the ban which the Board imposed in its April 8, 2004 reasons. According to the current communications ban, Telus is prohibited from engaging in any communications regarding "labour negotiations, the union's strike vote and labour relations issues". In comparison to the previous ban, which prohibited Telus from any communication regarding "matters of employment and collective interest", this ban is significantly less broad.
[101] Telus also argues that the Board had based its imposition of the January 17, 2004 communications ban on its perception of imbalance between the TWU and Telus, with Telus
having the upper hand. However, Telus maintains that this perceived imbalance is no longer at play, as is evidenced by the 86.3% strike vote announced on January 29, 2004. According to Telus, the Board did not consider this change of circumstance because if it had, it would have seen that a communications ban is no longer necessary.
[102] In my view, the Board did consider exactly this situation at paragraph 278 of the Reconsideration Decision, when it said:
[...] This panel was of the view that the appropriate action was to attempt to restore the balance between the parties as it existed at the time the violations were found to have occurred, while fashioning a remedy that adequately addressed the violations but allowed the parties to continue the process of free collective bargaining. [...]
[103] It cannot be said that the Board did not consider the question of imbalance. It is obvious that the Board felt that by the removal of the prospect of binding arbitration, the parties were returned to the position they had been in just prior to the imposition of the first ban. They had no collective agreement in force, they were in the middle of lengthy and bitter negotiations, Telus had been making communications that were in violation of the Code and there was a real prospect of a strike or lockout. Telus was not allowed to influence the workers then and, with the same circumstances now being reinstated, it should not be allowed to do so now. I see nothing unreasonable in the Board's conclusion on this issue.
[104] Finally, Telus argued that the Board only has jurisdiction to remedy past infractions of the Code by the employer but has no power to look ahead to the future. I disagree. Subsection 99(2) of the Code specifically uses the word "refrain", which, in my view, gives it the power to
look to the future and order an employer from doing acts which contravene the Code. An application of this provision to the present case, where the Board clearly found violations of the Code relating to Telus' communications with the employees, entitles the Board to make an order preventing this practice from occurring in the future. In my view, this is what the Board was averting to in paragraph 278 of its reasons.
[105] The communications bans were imposed by the Board under section 99 of the Code, pursuant to which the Board has broad remedial power to impose any order on a party. This remedial jurisdiction is not intended to be punitive, but rather, to remedy situations. In the Reconsideration Decision, the Board made this clear by quoting Canadian Imperial Bank of Commerce (1985), 60 di 19, where the CLRB had said:
The remedy in each case then must be fashioned keeping in mind the need to reestablish the nature of the balance envisaged by the provisions of the Code, sound labour relations and the need not to punish but to remedy.
[106] This has been a long, difficult and complex process. The parties have been engaging in collective bargaining in an attempt to arrive at a new collective agreement since the year 2000, when the last one expired. There have been many proceedings before the Board, which have led it to make countless findings of facts and decisions while attempting to maintain the delicate balance between the parties in order for them to continue bargaining collectively. The Board is composed of members who are experts in this labour relations field and unless their reasons on these issues are clearly irrational, which they are not, it is my opinion that no intervention is necessary. I cannot find the decision to be patently unreasonable.
[107] Accordingly, Telus' application for judicial review of the Reconsideration Decision is dismissed.
[108] The Board itself made submissions and oral arguments in these applications, a point to which the TWU strenuously objected. Since the parties could not agree on this matter, this Court was compelled to reach a decision in order to allow the hearing to continue. Based on Northwestern Utilities Ltd. v. Edmonton (City), [1979] 1 S.C.R. 684, this Court determined that the Board was precluded from defending the merits of the bias matter, the merits of the Chairperson's decision not to place any factual information on the record and the merits of the Reconsideration Decision. The Board was permitted to address generally the other issues in the case, including its jurisdiction and standard of review.
CONCLUSION
[109] I find no grounds to overturn the Reconsideration Decision. The applications of the TWU and Telus should be dismissed.
[110] In light of the divided success in this matter, no costs will be awarded.
"J. Edgar Sexton"
J.A.
"I agree
A.M. Linden J.A."
"I agree
K. Sharlow J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKETS: A-84-04 (A-85-04, A-242-04, A-473-04, A-65-05,
A-99-05, A-185-05, A-187-05)
STYLE OF CAUSE: TELUS COMMUNICATIONS INC.
Applicant
and
TELECOMMUNICATIONS WORKERS UNION
Respondent
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 31 and June 1, 2005
REASONS FOR JUDGMENT: SEXTON J.A.
CONCURRED IN BY: LINDEN J.A.
SHARLOW J.A.
DATED: July 25, 2005
APPEARANCES:
David Stratas
Brian Burkett
Brad Elberg For Telus Communications Inc.
Morley D. Shortt, Q.C.
D. Barry Kirkham, Q.C.
Patricia Dumaresq For Telecommunications Workers Union
Chris G. Paliare
Andrew K. Lokan For Canada Industrial Relations Board and
Warren Edmondson
SOLICITORS OF RECORD:
HEENAN BLAIKIE
Toronto, ON For Telus Communications Inc.
SHORTT MOORE &
ARSENAULT
Vancouver, B.C. For Telecommunications Workers Union
OWEN - BIRD
Vancouver, B.C. For Telecommunications Workers Union
PALIARE ROLAND
ROSENBERG ROTHSTEIN
Toronto, ON For the Canada Industrial Relations Board and
Warren Edmondson