Date: 20050308
Docket: A-482-03
Citation: 2005 FCA 90
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
VIDÉOTRON TÉLÉCOM LTÉE
Applicant
and
COMMUNICATIONS, ENERGY AND PAPERWORKERS
UNION OF CANADA
Respondent
Hearing held at Montréal, Quebec, on October 20, 2004.
Judgment delivered at Ottawa, Ontario, on March 8, 2005.
REASONS FOR JUDGMENT: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NADON J.A.
Date: 20050308
Docket: A-482-03
Citation: 2005 FCA 90
CORAM: DÉCARY J.A.
LÉTOURNEAU J.A.
NADON J.A.
BETWEEN:
VIDÉOTRON TÉLÉCOM LTÉE
Applicant
and
COMMUNICATIONS, ENERGY AND PAPERWORKERS
UNION OF CANADA
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1] The applicant (the employer) is objecting to a decision by the Canadian Industrial Relations Board dated September 16, 2003, determining the intent behind a certificate of accreditation granted to the respondent on January 31, 1995. According to the applicant, that decision - not unanimous - was patently unreasonable.
[2] A preliminary question as to the theoretical nature of this procedure arose in this case, which the Court itself raised at the hearing.
[3] The impugned decision is the initial decision by three members of the Board on September 16, 2003 (Board record 18882-C, decision No. 909). On October 8, 2003, the employer asked the Board to reconsider its decision dated September 16, 2003, pursuant to section 18 of the Code (applicant's record, p. 119). This application to reconsider was based on the fact that the initial decision [TRANSLATION] "contained errors of law which cast serious doubt on the Board's interpretation of the Code" (ibid., p. 120).
[4] On January 7, 2004 (Board record 23980-C, decision No. 987), three other members of the Board dismissed the application to reconsider on the merits (ibid., p. 124), as follows:
[TRANSLATION]
The review panel finds that the employer's position is limited to not being in agreement with the findings of the majority on the initial panel on the issue of the positions relating to data processing and preferring the minority conclusion, namely that data processing positions were not included in the all-employee bargaining unit because they are not new positions of the same type.
The notion of an all-employee bargaining unit is a well-settled principle in the Board's case law, described by the Board in NorthwestTel Inc., December 13, 1999 (CIRB LD 158):
The nature of the universal bargaining unit description is that it is not frozen as of the date of the certification order being issued. Rather, it is intended to stand the test of time and should include new classifications or positions of a similar nature, unless the facts warrant their exclusion from the bargaining unit. This approach ensures that the existing certification order continues to apply to "all employees" within the meaning of the Code, without necessitating an amendment each time the employer creates a new classification or position.
(Page 4)
[TRANSLATION]
With respect for the contrary view, the phrase new position of a similar nature should be applied with flexibility, that is, to include positions in the same area of activity or industry as opposed to positions in another area or industry. The interpretation that an all-employee bargaining unit must be limited to positions identical or analogous to those existing at the time of the accreditation, or exclude those which are not expressly designated, would adversely affect the development of any new position resulting from the expansion of the employer's business, and would be contrary to the principle that the description of the bargaining unit should endure over time.
It should also be noted that the certificate issued by the Board on May 10, 2000, is categorical:
All employees of Vidéotron Télécom Ltée, except for engineers, salesmen, office employees, coordinating officers, project managers, supervisors and persons at a higher level.
(Emphasis added)
Consequently, positions which are not part of the exclusions must necessarily be included in the bargaining unit. The Board's tendency is to favour larger units. It appears that this principle was applied when the unit description was redefined in 2000 to include all employees of Vidéotron Télécom Ltée. The employer's argument that the merged unit could not be larger in number than the two previously separate units is without foundation. On the contrary, to the extent the description covers all employees it can expand in number over time.
The review panel accordingly considers that the principles of the Code were applied as they should have been, and thus dismisses the application to reconsider.
[applicant's record, pp. 126-127]
[Emphasis in original]
[5] In Lamoureux v. Canadian Airline Pilots Association, [1993] F.C.J. No. 1128, this Court pointed out that a party challenging only the decision to reconsider cannot make use of that challenge to call the initial decision into question (see also Reid v. Grainworkers Union, Local 333, [1994] F.C.J. No. 167; Sim v. R. (1997), 220 N.R. 63). The situation is reversed in the case at bar, as the employer is only challenging the initial decision, with the result that the decision to reconsider, which was also unfavourable to it, is not reviewable by this Court. In this case, the matter is complicated by the fact that the employer's allegations in its application to reconsider are limited, to use the words of the decision to reconsider, [TRANSLATION] "to not being in agreement with the finding of the majority on the initial panel on the issue of the positions relating to data processing", and by the fact that the employer's arguments in this Court are essentially the same as those made in its application to reconsider, which the Board did not accept.
[6] This Court is therefore in a most uncomfortable position. Clearly it cannot intervene in the impugned decision unless it was patently unreasonable, and setting aside the initial decision would not eliminate the decision to reconsider which, unless it has been challenged, can be set up against the employer. At the same time, this Court, in assessing the patent unreasonableness of the impugned decision, cannot ignore the fact that three other members of the Board found the initial decision to be correct and consistent with the policy followed by the Board in applications to clarify "all-employee" accreditations.
[7] Under section 44 of the Canada Industrial Relations Board Regulations, 2001, (SOR/2001-520):
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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; (b) any error of law or policy that casts serious doubt on the interpretation of the Code by the Board; (c) a failure of the Board to respect a principle of natural justice; and (d) a decision made by a Registrar under section 3. |
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 vraisemblablement amené à une conclusion différente; b) la présence d'erreurs de droit ou de principe qui remettent véritablement en question l'interprétation du Code donnée par le Conseil; c) le non-respect par le Conseil d'un principe de justice naturelle; d) toute décision rendue par un greffier aux termes de l'article 3.
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In this case, the application for reconsideration was made pursuant to paragraph 44(b), namely "any error of law or policy that casts serious doubt on the interpretation of the Code by the Board". This is also what was cited by the applicant in its application for reconsideration (applicant's record, page 120).
[8] The nature and effect of a decision involving an application for reconsideration will vary depending on the objective sought by the applicant and the outcome of the reconsideration application.
[9] When the objective sought is to penalize "a failure of the Board to respect a principle of natural justice" under paragraph 44(c) of the Regulations, the reconsideration decision determining that there was a "failure" could leave the initial decision unchanged. A party challenging the merits of the initial decision will then have to challenge it in the Federal Court of Appeal. If the party also wishes to challenge the merits of the reconsideration decision, it will have to challenge this as well. If the party chooses to challenge only one of the decisions, it could use its proceeding to challenge the other decision collaterally.
[10] When the Board dismisses an application for reconsideration because it refuses to hear it on the merits - for example, if it is out of time, if there is misconduct by the applicant or if the Board does not consider it advisable to review the points of law or policy at issue (see Aramark Québec Inc., [2001] CIRB No. 123; Inter-Cité Transport Ltée (1985), 59 di 142) - the initial decision will remain intact and must be directly challenged in the Federal Court of Appeal regardless of what the party chooses to do regarding the reconsideration decision.
[11] When the objective sought is to correct errors of law or policy within the meaning of paragraph 44(b) of the Regulations, when the Board agrees to reconsider the case on the merits or when it reverses or varies the initial decision, the decision generally loses all relevance and, at the very least, the dissatisfied party must challenge the reconsideration decision in the Federal Court of Appeal. In this connection, I agree with these comments by Vice-Chairperson Hélène Lebel (as she then was) in Canadian National (1975), 9 di 21, recently approved by the Board in Aramark Québec Inc., supra, at paragraph 27:
In the third case, however, the Board is being asked to review and change an order or decision issued by it on the basis that the Board's original decision was wrong or otherwise mistaken. If it is granted, the Board's original decision or order may be substantially modified with the result that two different Board's decisions could be rendered on the same original application; of course, the second decision would then supersede and replace the original one.
(See also ADM Agri-industries Ltd., [2002] CIRB No. 206, in which the Board varied the initial decision, after reconsideration.)
[12] However, what about when, as in the case before us, the Board in its reconsideration decision affirms the merits of the initial decision on all points? In my opinion, the same rule as the one formulated in Canadian National must be applied. There are two decisions which were rendered on the same initial application, and even if those decisions are concurrent, they are nonetheless distinct. Even though one does not quash the other since it affirms it, it nevertheless replaces the other for the purposes of judicial review since the latter deals with the same issues of law and policy definitively decided by the review panel. It follows that the reconsideration decision must therefore be challenged directly. If the party is also objecting to errors of law or policy in the initial decision which were not addressed by the Board in the reconsideration decision, or patently unreasonable errors of fact in the initial decision, it must then also challenge the initial decision.
[13] The state and stability of the law would be ill served if two potentially contradictory decisions were allowed to co-exist, one by this Court on judicial review of the initial decision and the other by the Board in reconsideration of that decision.
[14] This finding is consistent with the practice generally followed in this Court. A party asking the Board to reconsider an initial decision files a concurrent application for judicial review of the initial decision, or at least files a motion for an extension of time while awaiting the reconsideration decision. Once the reconsideration decision is rendered, the party chooses whether to challenge one or the other or both, depending on the circumstances. If both decisions are challenged, the parties may ask the Court to join the applications for judicial review for the purposes of preparing the records and the hearing.
[15] I therefore find that this application for judicial review is purely moot in nature and that there is nothing to justify this Court agreeing to hear it nevertheless in exercising its discretion.
[16] That said, since this preliminary question was raised on the Court's own motion, I would add that if the reconsideration decision had been challenged as it should have been, the Court would not have intervened. The threshold of deference with respect to decisions by the Board, especially within this field of expertise - determining the intent of an accreditation - is at its highest level. The reconsideration decision could in no way be described as patently unreasonable.
[17] The application for judicial review should therefore be dismissed with costs.
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"Robert Décary"
J.A. |
I concur.
"Gilles Létourneau J.A."
I concur.
"M. Nadon J.A".
Certified true translation
K. Harvey
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-482-03
STYLE OF CAUSE: VIDÉOTRON TÉLÉCOM LTÉE v. CANADIAN COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 20, 2004
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NADON J.A.
DATE OF REASONS: March 8, 2005
APPEARANCES:
Jean Beauregard FOR THE APPLICANT
Michel Cohen FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lavery, De Billy s.e.n.c. FOR THE APPLICANT
Montréal, Quebec
Melançon, Marceau, Grenier et Sciortino s.e.n.c. FOR THE RESPONDENT
Montréal, Quebec