Date: 20200129
Docket: A‑295‑19
Citation: 2020 FCA 29
[ENGLISH TRANSLATION]
CORAM:
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PELLETIER J.A.
BOIVIN J.A.
GLEASON J.A.
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BETWEEN:
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MARITIME EMPLOYERS ASSOCIATION
SHIPPING FEDERATION OF
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Applicants
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and
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LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION
CHAMBRE DE COMMERCE DE L’EST DE MONTRÉAL
CONSEIL DU PATRONAT DU QUÉBEC
FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC
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Respondents
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Heard at
Judgment delivered at
REASONS FOR JUDGMENT OF THE COURT BY:
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BOIVIN J.A.
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Date: 20200129
Docket: A‑295‑19
Citation: 2020 FCA 29
CORAM:
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PELLETIER J.A.
BOIVIN J.A.
GLEASON J.A.
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BETWEEN:
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MARITIME EMPLOYERS ASSOCIATION
SHIPPING FEDERATION OF
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Applicants
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and
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LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION
CHAMBRE DE COMMERCE DE L’EST DE MONTRÉAL
CONSEIL DU PATRONAT DU QUÉBEC
FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC
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Respondents
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at
BOIVIN J.A.
[1]
This is an application for judicial review of a decision rendered by the Canada Industrial Relations Board (the Board) on August 21, 2019 (2019 CIRB 909).
[2]
By that decision, the Board dismissed the applicants’ application for recusal of a Board member, namely, Gaétan Ménard, who was on the panel dealing with the underlying application respecting the maintenance of essential activities.
[3]
The applicants submit that the Board erred in that [translation] “the cumulative effect”
of member Ménard’s comments, actions and omissions gave rise to a reasonable apprehension of bias.
[4]
We are unanimously of the opinion that the Board did not err in its reasoned decision, as it examined the issued raised and, more specifically, the comments and actions alleged in the case under consideration.
[5]
Firstly, the Board correctly stated that the burden of demonstrating an apprehension of bias on the part of a member of the Board panel is on the party who alleges that apprehension of bias, that is, the applicants, as members of a quasi‑judicial administrative tribunal are presumed to be impartial. Secondly, the Board also properly directed itself in law in applying the test to establish a reasonable apprehension of bias as propounded in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at pages 394–395.
[6]
As the Board stated, although member Ménard’s conduct during the hearing was regrettable, we are also of the opinion that the conduct complained of in this case does not support a finding of reasonable apprehension of bias, for substantially the same reasons. That being said, we must add that member Ménard’s conduct, which included constantly whispering and leaning on his chair while disinterestedly staring out the window, is unacceptable. This conduct in no way sets an example of decorum and professionalism for a Board hearing.
[7]
The application for judicial review will therefore be dismissed, with costs.
“Richard Boivin”
J.A.
Certified true translation
François Brunet, Revisor
FEDERAL COURT OF APPEAL
COUNSEL OF RECORD
DOCKET:
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A‑295‑19
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STYLE OF CAUSE:
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MARITIME EMPLOYERS ASSOCIATION, and MONTREAL PORT AUTHORITY, and SHIPPING FEDERATION OF CANADA v. LONSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN UNION OF PUBLIC EMPLOYEES, and INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, and CHAMBRE DE COMMERCE DE L’EST DE MONTRÉAL, and CONSEIL DU PATRONAT DU QUÉBEC, and FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC
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PLACE OF HEARING:
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DATE OF HEARING:
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January 29, 2020
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REASONS FOR JUDGMENT OF THE COURT BY:
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PELLETIER J.A.
BOIVIN J.A.
GLEASON J.A.
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DELIVERED FROM THE BENCH BY:
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BOIVIN J.A.
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APPEARANCES:
Nicola Di Iorio
Mélanie Sauriol
Geneviève Beaudin
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FOR THE APPLICANT
MARITIME EMPLOYERS ASSOCIATION
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Michel Brisebois
Georges Samoisette Fournier
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FOR THE APPLICANT
MONTREAL PORT AUTHORITY
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Jean‑Denis Boucher
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FOR THE APPLICANT
SHIPPING FEDERATION OF CANADA
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Marie‑Christine Morin
Jacques Lamoureux
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FOR THE RESPONDENT
LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN
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Dominic Caron
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FOR THE RESPONDENT
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION
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COUNSEL OF RECORD:
BCF LLP
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FOR THE APPLICANTS
MARITIME EMPLOYERS ASSOCIATION and
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Robinson Sheppard Shapiro L.L.P
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FOR THE APPLICANT
SHIPPING FEDERATION OF
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Lamoureux Morin avocats inc.
Longueuil, Quebec
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FOR THE RESPONDENT
LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN
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Pink Larkin
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FOR THE RESPONDENT
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION
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