Federal Court of Appeal Decisions

Date: 20031016

Docket: A-611-02

Citation: 2003 FCA 380

CORAM:        LINDEN J.A.

EVANS J.A.

PELLETIER J.A.

BETWEEN:

                                    THE CANADIAN UNION OF POSTAL WORKERS

                                                                                                                                                       Applicant

                                                                                 and

                               ARTHUR HEALY and CANADA POST CORPORATION

                                                                                                                                               Respondents

                                          Heard at Ottawa, Ontario, on September 23, 2003.

                                 Judgment delivered at Ottawa, Ontario, on October 16, 2003.

REASONS FOR JUDGMENT BY:                                                                                       EVANS J.A.

CONCURRED IN BY:                                                                                                         LINDEN J.A.

                                                                                                                                           PELLETIER J.A.

Date: 20031016

Docket: A-611-02

Citation: 2003 FCA 380

CORAM:        LINDEN J.A.

EVANS J.A.

PELLETIER J.A.

BETWEEN:

                                    THE CANADIAN UNION OF POSTAL WORKERS

                                                                                                                                                       Applicant

                                                                                 and

                               ARTHUR HEALY and CANADA POST CORPORATION

                                                                                                                                               Respondents

                                                        REASONS FOR JUDGMENT

EVANS J.A.

A.        INTRODUCTION

[1]                 In December 1994, Arthur Healy filed a complaint with the Canada Labour Relations Board stating that his union, the Canadian Union of Postal Workers ("CUPW"), had breached its statutory duty to fairly represent him. He alleged that the union had acted arbitrarily by failing to schedule an arbitration hearing for grievances that he had filed in 1990 against his former employer, Canada Post Corporation. The Board dismissed the complaint in a letter decision dated October 26, 1998 ("the first decision").

[2]                 Two days after receiving this decision, Mr. Healy requested a reconsideration and, on October 2, 2002, the Canada Industrial Relations Board ("the Board"), the successor of the Canada Labour Relations Board, reconsidered and reversed the first decision. In its second decision ("the reconsideration decision"), the Board ordered the parties to attempt to resolve Mr. Healy's grievances within a specified time and, if this proved impossible, to schedule a date for a hearing by an arbitrator within 30 days from the date of the Board's decision, the arbitration hearing to be held within 90 days of the Board's decision.

[3]                 This is an application for judicial review by CUPW to set aside the reconsideration decision, which is reported as Healy (Re), [2002] C.I.R.B.D. No. 194. CUPW advances essentially two grounds on which the application should be allowed and the reconsideration decision quashed. First, the Board erred in finding that there were new facts that enabled it to reconsider the first decision. Second, it was patently unreasonable for the Board to conclude that CUPW's handling of Mr. Healy's grievances was arbitrary and, hence, constituted a failure to represent him fairly,

B.        FACTUAL BACKGROUND

[4]                 By late 1991 there was a backlog of between 140,000 and 150,000 union grievances against Canada Post, which may have been indicative of the state of labour relations at Canada Post in the 1980s and the result of the multiplicity of unions then representing postal workers.

[5]                 In an attempt to expedite the resolution of these grievances, Canada Post and CUPW reached an understanding in 1992, which formed part of the collective agreement. The parties agreed that priority would be given to grievances that involved recurring issues, thereby also resolving other grievances that raised the same issues. Non-generic grievances, such as Mr. Healy's, were not put into any category, but were dealt with as openings occurred in the mediation and arbitration processes.

[6]                 The backlog agreement did not include all grievances against Canada Post. For example, it exempted grievances filed after the signing of the memorandum of agreement in 1992, policy grievances and, of relevance to this case,

Dismissal grievances and all grievances in any way related to dismissal, including those grievances dealing with previous or progressive discipline.

[7]                 Grievances exempted from the backlog process were dealt with in the regular grievance process, which meant that they were likely to be heard earlier than many of the backlogged grievances. Mr. Healy contends that his grievances fell within the exemption relating to dismissal and therefore should not have been delayed pending the resolution of grievances raising recurring issues.

[8]                 In its first decision, the Board held that the agreement between CUPW and Canada Post prioritizing the processing of pre-1992 grievances was a reasonable way to deal with the huge backlog problem and that CUPW's failure either to resolve Mr. Healy's grievances, or to schedule an arbitration hearing, did not constitute a breach of its duty of fair representation. The Board was not satisfied on the evidence that either Mr. Healy, or the president of his CUPW local, had pursued with regional or national CUPW representatives the contention that his grievances concerned dismissal and therefore should be dealt with through the regular process, not under the backlog agreement. However, the Board did express concern about CUPW's failure to communicate properly with Mr. Healy, and others no longer in active employment with Canada Post, on the handling of their grievances.

[9]                 As for Mr. Healy himself, he had started work with Canada Post as a letter carrier in 1961, when he was 21 years of age. He had a heart attack in April 1986 and was off work for four months. He had further heart problems in the Fall of that year and returned to work in December. His health deteriorated again in June of 1989 and he was offered lighter duties in late September of that year, which he performed through the Christmas rush period.

[10]            After this temporary assignment ended, he applied in January 1990 to Health and Welfare Canada for a medical pension. His request was refused because his physician considered that he was fit for other gainful employment. In order to qualify, he would have had to provide proof that his health problems rendered him incapable of any kind of work.

[11]            Consequently, Mr. Healy asked Canada Post to accommodate his medical condition by assigning him to lighter duties. He was offered such a position which he rejected, on the ground that it required him to travel too far from his home. Canada Post took the position that no other lighter duties were available. Meanwhile, Mr. Healy remained at home, using up his sickness and annual leave credits. In June 1990, he filed a grievance alleging that Canada Post's offer did not constitute a reasonable accommodation of his medical condition, as required by the collective agreement.

[12]            Two months before Mr. Healy filed this grievance, and just after he had been turned down for a medical pension, Canada Post put to him a draft memorandum of agreement. It provided that he would be released from employment on the ground of ill health, and would reapply for a medical pension. If his application were successful, his release for ill health would be changed to retirement on medical grounds, with all the relevant benefits. In the event that Health and Welfare rejected Mr. Healy's application, and his release for ill health remained unchanged, the draft agreement provided that Canada Post would pay him $30,000 as part of an enhanced severance package in accordance with the collective agreement. In consideration, Mr. Healy would release Canada Post from all liability arising from his employment or its termination. Mr. Healy refused to sign this document and the offer was withdrawn by Canada Post.

[13]            In October 1990, Mr. Healy retired from Canada Post with a medical pension, which was granted on the basis of an assessment by a doctor that his medical condition prevented him from undertaking employment duties of any kind. Mr. Healy had filed a second grievance in September alleging that the collective agreement entitled him to an enhanced severance package. The medical pension payable to Mr. Healy was smaller than the full retirement pension to which he would have been entitled if he had been able to continue in his employment with Canada Post until 1996.

[14]            CUPW referred his first grievance to arbitration in November 1990 and the second in December 1990. However, because of the backlog, and the fact that Mr. Healy's grievances did not fall within a priority category, no date had been fixed for them to be heard by an arbitrator when the Board reconsidered the first decision.

C.        ISSUE AND ANALYSIS

Issue: Did the Board err when it reconsidered the first decision on the ground that new facts existed?

(i) Legislative framework

[15]            Section 18 of he Canada Labour Code, R.S.C. 1985, L-2, ("the Code") provides as follows:

18. The Board may review, rescind, amend, alter or vary any order or decision made by it, and may rehear any application before making an order in respect of the application.

18. Le Conseil peut réexaminer, annuler ou modifier ses décisions ou ordonnances et réinstruire une demande avant de rendre une ordonnance à son sujet.

[16]            This broad discretion must be read in conjunction with section 44 of the Canada Industrial Relations Board Regulations, 2001, SOR/2001-520, which, in effect, codifies the Board's practice and sets out a non-exhaustive list of the circumstances in which an application shall be made to the Board to reconsider a previous decision. For the purpose of this application for judicial review, it is conceded that the relevant provision is paragraph 44(a), which provides as follows:

44. The circumstances under which an application shall be made to the Board exercising its power of reconsideration under section 18 of the Code include the following: (a) the existence of facts that were not brought to the attention of the Board, that, had they been known before the Board rendered the decision or order under reconsideration, would likely have caused the Board to arrive at a different conclusion;

44. Les circonstances dans lesquelles une demande de réexamen peut être présentée au Conseil sur le fondement du pouvoir de réexamen que lui confère l'article 18 du Code comprennent les suivantes : a) la survenance de faits nouveaux qui, s'ils avaient été portés à la connaissance du Conseil avant que celui-ci ne rende la décision ou l'ordonnance faisant l'objet d'un réexamen, l'auraient vraisembla-blement amené à une conclusion différente;

[17]            Section 37 of the Canada Labour Code imposes a duty of fair representation on trades unions, which Mr. Healy alleges CUPW breached by the inordinate delays in resolving his grievances or in fixing a date when they would be heard by an arbitrator.

37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.

37. Il est interdit au syndicat, ainsi qu'à ses représentants, d'agir de manière arbitraire ou discriminatoire ou de mauvaise foi à l'égard des employés de l'unité de négociation dans l'exercice des droits reconnus à ceux-ci par la convention collective.

[18]            Judicial review of decisions of the Canada Industrial Relations Board is limited by the following provision of the Code:

           

(ii) Grounds of review

[19]            CUPW alleges that the Board committed a reviewable error in reconsidering the first decision because each of the findings on which it based its decision to reconsider pursuant to paragraph 44(a) was made without any supporting evidence and flew in the face of the evidence before the Board.

[20]            As a result of the strong preclusive clause in section 22 of the Code, it is agreed that the Court may only review a decision of the Board on the grounds contained in paragraphs 18.1(4)(a), (b) and (e) of the Federal Court Act, R.S.C. 1985, c. F-7, of which only paragraphs (a) and (b) are relevant to this proceeding.

18.1(4) The Trial Division may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

18.1(4) Les mesures prévues au paragraphe (3) sont prises par la Section de première instance si elle est convaincue que l'office fédéral, selon le cas_: a) a agi sans compétence, outrepassé celle-ci ou refusé de l'exercer; b) n'a pas observé un principe de justice naturelle ou d'équité procédurale ou toute autre procédure qu'il était légalement tenu de respecter;

[21]            Thus, in order to succeed on the first issue, CUPW must satisfy the Court that the Board's decision to reconsider was beyond its jurisdiction or in breach of the rules of natural justice. In view of the particular error that CUPW alleges that the Board made in this part of its decision, it is relevant to note that a decision of the Board is not reviewable under the Federal Court Act, paragraph 18.1(4)(d), as a decision based on "an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it".

[22]            Nonetheless, the grounds of review set out in subsection 18.1(4) overlap to a degree. Thus, a decision based on a finding of fact that is supported by no evidence is liable to be set aside on the ground that it was made either without jurisdiction (Re Keeprite Workers' Independent Union et al. v. Keeprite Products Ltd. (1980), 114 D.L.R. (3d) 162 (Ont. CA); Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, 494-95) or, possibly, in breach of the rules of natural justice (R. v. Deputy Industrial Injuries Commissioner, Ex parte Moore, [1965] 1 Q.B. 456, 488 (Eng. CA); Minister for Immigration and Ethnic Affairs v. Pochi (1980), 31 A.L.R. 666, 689 (Aust. Fed. Ct.)).

[23]            On closer examination, most of the allegations made by counsel for CUPW to impugn the Board's reconsideration decision are more accurately characterized as challenging the Board's application of paragraph 44(a) to the facts as it found them. However, since I have concluded that, in this case, essentially the same standard of review applies to both the Board's purely factual findings and its application of paragraph 44(a) to the facts as found, nothing of practical significance turns on which characterization is the more appropriate.

(iii) Standard of review

[24]            Counsel for CUPW submitted that the errors that the Board had made in its reconsideration decision as factual in nature, and that its decision should be set aside on the ground that it was based on a finding of material fact that was supported by no evidence and hence was not within the jurisdiction of the Board.

[25]            To the extent that the errors alleged are purely factual, it does not add anything useful to the analysis to specify the standard by which the tribunal's decision is to be reviewed. It has normally been assumed that, subject to the discretionary bars applicable to a reviewing court's grant of relief, once it has been established that a tribunal's decision was based on a material finding of fact supported by no evidence, the decision will be set aside. Unlike, for instance, review for error of law, review for jurisdictional excess because of no evidence is a ground of review that also contains its own standard of review.

[26]            In my opinion, however, most of the errors alleged by CUPW are better characterized as an attack on the Board's application of paragraph 44(a) of the Regulations to the facts as found, rather than on its purely factual findings. The dispute was, in the main, not over the reconsideration Board's findings of what information was before the Board when it made its first decision, but whether that information constituted "new facts" within the meaning of paragraph 44(a).

[27]            For the following reasons, on a pragmatic and functional analysis the Board's reconsideration decision may only be set aside on the ground that the Board misapplied paragraph 44(a) to the facts if its conclusion was patently unreasonable.

[28]            First, Parliament has enacted a strong privative clause restricting judicial review of the Board's decisions to jurisdictional errors, breach of the rules of natural justice, and fraud and perjury. Second, the Board is recognized as having extensive expertise in the regulation of labour relations. Third, the questions in dispute relate to the Board's findings of fact and drawing of factual inferences and, to the extent that the application of paragraph 44(a) to the facts found by the Board is in dispute, the issues involve questions of mixed law and fact. Moreover, judicial restraint is especially appropriate when, as here, the questions in issue are procedural or adjectival in nature: when may the Board exercise its broad statutory power to review its previous decisions? Fourth, the purpose of the Code is to foster harmonious labour relations and, to this end, to ensure the expeditious and effective disposition of disputes by a specialist Board. Fifth, the questions in dispute fall squarely within the area of the Board's expertise.

[29]      In any event, in Varma v. Canadian Union of Postal Workers, [2000] F.C.J. No. 187, this Court held that a decision of the Board not to reconsider a previous decision because there were no new facts within the meaning of paragraph 44(a) was reviewable for patent unreasonableness.

[30]            While the standards of review applicable to the Board's findings of pure fact and to the application of paragraph 44(a) are expressed in different words, in my view there is no material difference between them. It has already been held in this Court that the standard mandated by paragraph 18.1(4)(d) of the Federal Court Act for the review of findings of fact by federal administrative tribunals is akin to patent unreasonableness: Canadian Pasta Manufacturers' Assn. v. Aurora Importing & Distributing Ltd. (1997), 208 N.R. 329 at para. 6 (F.C.A.). Since the common law ground of review for no evidence is no more demanding than the statutory ground of review ("perverse or capricious or without regard for the material before it"), it is of no practical consequence in this case whether the Board's errors are characterized as involving either the application of paragraph 44(a), and therefore questions of mixed fact and law, or findings of pure fact.

[31]            Finally, I should note that counsel for CUPW suggested, albeit with no great enthusiasm, that section 44 is "jurisdictional" in nature and that the Board's determination of whether the requirements of the section have been satisfied is therefore reviewable on a standard of correctness. In view of the conclusion that I have reached respecting the standard of review, on the basis of both a pragmatic and functional analysis, and the decision in Varma, I do not accept the argument that, since section 44 is "jurisdictional", the Board's decision is reviewable for correctness.

(iv) Analysis

[32]            The Board relied on four facts that appeared to it not to have been brought to the attention of the Canada Labour Relations Board when it made the first decision, and were thus not "new facts" for the purpose of paragraph 44(a). I shall deal with each in turn.

(a) CUPW's knowledge

[33]            First, "and most important in the view of the present panel" (at para. 35), was the fact that, at the time of the first decision, CUPW officials at the national and regional levels seem to have been unaware of Mr. Healy's contention that, since they related to dismissal, his grievances were excluded from the backlog process by the 1992 agreement between CUPW and Canada Post, which was made part of the collective agreement. However, since Mr. Healy first raised this point in October 1998 at the Board's hearing prior to the first decision, national and regional CUPW officials may not have known of it before then, but they had known of it for the four years leading up to the reconsideration proceeding.

[34]            Counsel for CUPW referred to an affidavit from one of its officials, Ken Bird, who stated that, after the Board's first decision, CUPW's counsel discussed the merits of the grievances with the lawyer then representing Mr. Healy. In its reconsideration decision, the Board stated (at para. 13) that Mr. Bird had "indicated that the union had chosen not to treat Mr. Healy's grievances differently from the other backlogged grievances" and noted (at para. 14) that he denied that Mr. Healy's grievances were related to a dismissal grievance.

[35]            In my view, the fact that CUPW officials had known for four years of Mr. Healy's contention that his grievances should be removed from the backlog process cannot be a new fact for the purpose of section 44 because, in itself, the existence of that knowledge could not have affected the result of the initial decision. It has no rational connection with whether the union had failed to represent Mr. Healy fairly.

[36]            CUPW's knowledge would be relevant only if the union had simply ignored Mr. Healy's contention that his grievances were wrongly included in the backlog, or had otherwise failed to take some appropriate responsive action. However, the evidence before the reconsideration Board was that the union had reviewed Mr. Healy's grievances; it had decided not to give them priority, and that they were not related to dismissal. Hence, the fact identified by the Board as "the most important" provides no support at all for its decision to reconsider pursuant to section 44.

(b) further passage of time

[37]            The Board also relied on the fact that a further four years had elapsed since the first decision, without the resolution of Mr. Healy's grievances or the fixing of a date for an arbitration hearing. CUPW responds to this by saying that it was clear to the Board from the evidence before it when it made its first decision that the backlog would not be cleared by 2002.

[38]            In October 1998, the evidence was that 80,000 grievances were still in the backlog and that CUPW was disposing of between 1,200 and 1,500 each month. Thus, clearing the backlog could take from about four and a half to five and a half years. Mr. Healy's grievances might be resolved at any time within that period but, because they had no priority, they would probably be addressed later rather than earlier within this time frame. Hence, when it made its first decision the Board must have contemplated that, even if it took four years to deal with Mr. Healy's grievances, CUPW would not be in breach of section 37. It will be recalled that the Board's reconsideration decision was rendered just under four years after the first decision.   

[39]            I agree with counsel for CUPW that it is a clear inference from the reasons for the first decision that the Board was well aware that Mr. Healy's grievances might not be heard within four years. It acknowledged that it was not possible to say when they would be processed. Accordingly, since the Board realized in 1998 that Mr. Healy's grievances might well not be resolved by 2002, the possibility of a four years' delay had been brought to its attention and had not deterred it from concluding that CUPW was not in breach of section 37. It was thus patently unreasonable for the Board to conclude in its reconsideration decision that the delay since 1998 was a new fact for the purpose of paragraph 44(a).

(c) priority system and twelve years' delay

[40]            The Board stated in its reconsideration decision that, since twelve years had elapsed since Mr. Healy had filed his grievances, CUPW's method of selecting grievances for priority treatment, with unique or individual grievances like Mr. Healy's being deferred, could in itself be considered arbitrary and thus a breach of section 37.

[41]            Again, in view of the evidence before the Board in 1998 about the method of selecting grievances for processing, which had not changed by 2002, and the evidence of the length of time that it was estimated would be required to clear the backlog, there was nothing in the record capable of supporting the Board's conclusion that this was a fact which, if it had been before the Board when it made its first decision, would likely have led to a different result.

(d) impact of the delay on Mr. Healy

[42]            The fourth and final fact on which the Board relied (at para. 38) in its decision to reconsider was that CUPW had not given "sustained attention and consideration" to the resolution of Mr. Healy's grievances, despite his persistent efforts since 1998 and "the seriousness of his situation, his delicate health and the continuing impact of the failure to resolve his concerns about his situation".

[43]            In my view, it was inherent in the arrangements for prioritizing grievances, which were fully described to the Board when it made the first decision, that they were disadvantageous to Mr. Healy and others whose grievances involved individual issues that affected only them. In 1998 the Board was well aware of Mr. Healy's situation and of the fact that it could take as long as five and a half years to resolve his grievances or to schedule them for a hearing. I would note that the evidence before the Board in 2002 indicated that the backlog was likely to be cleared by the spring of 2005, which is consistent with the union's 1998 estimate.

[44]            In any event, the evidence of Mr. Bird before the reconsideration Board was that, following the 1998 decision and Mr. Healy's prompt request for a reconsideration, CUPW officials considered whether Mr. Healy's grievances should be taken out of turn and the union's lawyer had had discussions about the grievances with Mr. Healy's lawyer. The reasons of the reconsideration Board do not refer to evidence indicating that Mr. Healy's health had deteriorated between 1998 and 2002, although the length of time that it was taking to reach his grievances, and the lack of information from CUPW as to when an arbitration hearing was likely to be scheduled, were obviously very frustrating and must have caused him considerable anxiety. In any event, the Board's jurisprudence suggests that conduct does not amount to a breach of the union's duty of fair representation simply because it has serious adverse consequences for a member: Dave Mullin (1991), 84 di 74 (CLRB no. 852).

[45]            In my view, it was patently unreasonable for the Board to conclude that these facts concerning the delay, and its effect on Mr. Healy, were not before the Board when it made its first decision and, if they had been, would likely have caused it to reach a different result.

(v) Conclusion

[46]            A very high degree of judicial deference is due to the Board when making decisions within its area of expertise, particularly on matters that are procedural or factual in nature, or have a substantial factual component. Nonetheless, my examination of the record leads me to conclude that the reconsideration decision that the conditions prescribed in paragraph 44(a) were satisfied was patently unreasonable: the decision was based either on an application of the provision that was patently unreasonable or on findings of fact for which there was no evidence before the Board.

[47]            The Board's reasons suggest to me that, as a result of its very understandable sympathy for Mr. Healy, it collapsed the two questions that it had to decide: first, could it embark on a review under section 18 of the Code, a matter governed by paragraph 44(a) and, second, if it could, was CUPW in breach of section 37? Since I have concluded that the Board should not have reconsidered the first decision, namely, that CUPW was not in breach of section 37, it is inappropriate to review the Board's subsequent conclusion that it was.

D.        CONCLUSIONS

[48]            For these reasons, I would allow the application for judicial review, set aside the Board's reconsideration decision and restore the Board's first decision, namely that CUPW was not in breach of section 37. It is inappropriate in the circumstances of this case to remit the matter to the Board for redetermination.

[49]            The applicant did not seek costs and I would award none.

                 "John M. Evans"                   

                                                                                                              J.A.                        

"I agree

      A.M. Linden J.A."

"I agree

      J.D.Denis Pelletier J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                 A-611-02

STYLE OF CAUSE:              The Canadian Union of Postal Workers v. Arthur Healy et al.

                                                         

PLACE OF HEARING:         Ottawa, Ontario

DATE OF HEARING:           September 23, 2003

REASONS FOR JUDGMENT BY:       Evans J.A.

CONCURRED IN BY:        Linden and Pelletier JJ.A.

DATED:                                    October 16, 2003

APPEARANCES:

Ms. Barbara Nicholls                                    FOR THE APPLICANT

Ms. Susan Nicholas                                      FOR THE CIRB

SOLICITORS OF RECORD:

Perley-Robertson, Hill & McDougall LLP

Ottawa, Ontario                                            FOR THE APPLICANT

Canada Industrial Relations Board             

Ottawa, Ontario                                            FOR THE CIRB