Date: 20041130
Docket: A-302-03
Citation: 2004 FCA 408
CORAM: NADON J.A.
BETWEEN:
MARINE ATLANTIC INC.
Applicant
and
CANADIAN MARINE OFFICERS' UNION (CMOU)
Respondent
and
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION and
GENERAL WORKERS UNION OF CANADA (CAW - Canada)
Intervener
Heard at Ottawa, Ontario, on November 30, 2004.
Judgment delivered from the Bench at Ottawa, Ontario, on November 30, 2004.
REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A.
Date: 20041130
Docket: A-302-03
Citation: 2004 FCA 408
CORAM: NADON J.A.
BETWEEN:
MARINE ATLANTIC INC.
Applicant
and
CANADIAN MARINE OFFICERS' UNION (CMOU)
Respondent
and
NATIONAL AUTOMOBILE, AEROSPACE, TRANSPORTATION and
GENERAL WORKERS UNION OF CANADA (CAW - Canada)
Intervener
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on November 30, 2004.)
[1] This is an application for judicial review of a decision of the Canada Industrial Relations Board, dated May 26, 2003. The decision concerns a preliminary question of constitutional law arising from a proceeding under subsection 87.4(4) of the Canada Labour Code, R.S.C. 1985, c. L-2, to determine the level of ferry service to be maintained between Sydney, Nova Scotia, and Port aux Basques, Newfoundland and Labrador, in the event of a strike on the ferries operated by Marine Atlantic Inc.
[2] Marine Atlantic says that the Code cannot constitutionally authorize the Board to permit a strike on the ferries on condition that a certain level of service is maintained, if the level of service to be provided is less than "in accordance with the traffic offering". This is the description of the service that Term 32(1) of the Terms of Union, 1949, under which Newfoundland entered Confederation, obliges the Government of Canada to maintain.
[3] In an order dated November 27, 2003, the Board ordered that, in the event of a strike or lockout, there was to be no reduction in the level of Marine Atlantic's ferry service at any time of the year, on the ground that any interruption or lessening of the ferry service would cause hardship to the people of Newfoundland.
[4] It is conceded that the Board's decision of November 23, 2003, renders moot the application for judicial review of its order of May 26, 2003, on the constitutional question.
[5] Nor are we persuaded that, under the criteria established in Bowowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, we should exercise judicial discretion to hear and decide a moot case involving an important question of constitutional law, even though the issue may arise subsequently in other proceedings. In reaching this decision, we have taken into account the absence of a concrete matrix of facts within which to consider the constitutional question, and the fact that the Governments of Newfoundland and Labrador, and Canada, the parties to the Terms of Union, 1949, were not joined as respondents to the application.
[6] For these reasons, the application for judicial review will be dismissed with costs.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-302-03
STYLE OF CAUSE: MARINE ATLANTIC INC. v. CANADIAN MARINE OFFICERS' UNION (CMOU) ET AL.
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: NOVEMBER 30, 2004
REASONS FOR JUDGMENT OF THE COURT (NADON, SEXTON AND EVANS JJ.A)
RENDERED FROM THE BENCH BY: EVANS J.A.
APPEARANCES:
MR. NEIL FINKELSTEIN
MR. MATTHEW HORNER FOR THE APPLICANT
MR. PAUL E. DION FOR THE RESPONDENT
MR. RONALD E. PIZZO FOR THE INTERVENER
SOLICITORS OF RECORD:
BLAKE, CASSELS & GRAYDON LLP FOR THE APPLICANT
Toronto, Ontario
CANADIAN MARINE OFFICERS UNION FOR THE RESPONDENT
Montreal, Quebec
ARNOLD PIZZO McKIGGAN FOR THE INTERVENER
Halifax, Nova Scotia