Date: 20000912
Docket: A-369-00
PRESENT: ROTHSTEIN J.A.
BETWEEN:
VIA RAIL CANADA INC.,
Applicant
and
GEORGE CAIRNS,
Respondent
and
INTERNATIONAL BROTHERHOOD OF
LOCOMOTIVE ENGINEERS,
Respondent
and
UNITED TRANSPORTATION UNION,
Respondent
HEARD at Ottawa, Ontario, on Tuesday, September 12, 2000
ORDER given from the Bench at Ottawa, Ontario, on Tuesday, September 12, 2000
Date: 20000912
Docket: A-369-00
PRESENT: ROTHSTEIN J.A.
BETWEEN:
VIA RAIL CANADA INC.,
Applicant
and
GEORGE CAIRNS,
Respondent
and
INTERNATIONAL BROTHERHOOD OF
LOCOMOTIVE ENGINEERS,
Respondent
and
UNITED TRANSPORTATION UNION,
Respondent
REASONS FOR ORDER
(Given from the Bench at Ottawa, Ontario
on Tuesday, September 12, 2000)
[1] This is an application to stay reconsideration proceedings of the Canada Industrial Relations Board to be commenced on September 18, 2000.
[2] It is unnecessary for me to deal with the questions of serious issue and balance of convenience. The applicant has simply failed to satisfy the irreparable harm test.
[3] The applicant's irreparable harm arguments are somewhat obscure. However, the gist seems to be that the panel (review panel) which ordered the September 18, 2000 reconsideration proceedings is subject to a reasonable apprehension of bias, that the reputation of the applicant has been improperly impugned by the findings of the review panel in its decision ordering reconsideration and that by reason of certain of its findings, its order directing reconsideration will improperly constrain the panel conducting the reconsideration, forcing it to make findings that may result in the applicant being unsuccessful and that will exacerbate the damage to the applicant's reputation.
[4] No authority has been put before me to support the granting of a stay of proceedings based on what I can only term "derivative apprehension of bias", or speculation as to what may or may not be contained in a decision resulting from the proceedings sought to be stayed.
[5] To the extent there is merit to the applicant's bias arguments respecting the review panel, they will be the subject of a judicial review which the applicant has commenced in respect of the review panel's decision. However, an argument of irreparable harm based on the possibility of findings by the panel conducting the reconsideration that may result in the applicant being unsuccessful or that may damage the applicant's reputation because of apprehension of bias on the part of the review panel that ordered the reconsideration proceedings must fail, if for no other reasons, for remoteness and speculation.
[6] The applicant relies on Bennett v. British Columbia (Superintendent of Brokers) (1993), 77 B.C.L.R. 1 (2d) 145 (C.A.) and Canada (R.C.M.P.) v. Malmo-Levine (1998), 161 F.T.R. 25 (T.D.). In these cases, individual reputations could be adversely affected by disclosures that might have to be made in proceedings conducted by the very panel whose members were challenged on the grounds of reasonable apprehension of bias. That is far different from the present case where, if there is damage to the applicant's reputation, it has already occurred, i.e. the decision which contains the allegedly biased statements has already been issued. Moreover, the partiality of the reconsideration panel itself is not raised here.
[7] Unlike the circumstances of the January 17, 2000 stay granted by Sexton J.A. related to these proceedings, the applicant here is seeking to prevent further proceedings before the Board from occurring, not the renegotiation of the collective agreement. The dismissal of this stay application does not affect the continuation of the stay ordered by Sexton J.A.
[8] The Brotherhood of Locomotive Engineers supports the applicant but it seems to argue reasonable apprehension of bias on the part of the reconsideration panel itself. The reconsideration panel is the panel that heard the original application. Reasonable apprehension of bias on the part of this panel was never argued by the Brotherhood of Locomotive Engineers in its reconsideration or judicial review submissions with respect to the panel's original proceedings and decision. Such an argument at this late date deserves very little weight.
[9] Finally, I would observe that, although the Board gave notice of the September 18 reconsideration hearings on May 19, 2000, informal notice of the stay application was not given until August 11, 2000 and the formal application was not filed until August 18, 2000. The judicial review which underlies the stay application was filed on May 29, 2000. There has been no application to expedite the judicial review proceedings. When a party seeks to preclude a public tribunal from proceeding with a scheduled hearing pending judicial review of the decision of the tribunal to convene the hearing, I think there is an obligation on the party to move quickly so that if the Court orders a stay, the tribunal can reschedule other proceedings in the allotted time. That is often not possible if a stay is granted only at the last minute. It is also good practice in these circumstances to seek to expedite the judicial review proceedings so that the period of the stay is minimized. The applicant's procrastination weighs against it in this case.
[10] The stay application is dismissed. Costs are in the cause.
"Marshall Rothstein"
J.A.