Section 18 of the Canada Labour Code (Part I-Industrial Relations) (the Code) permits the Board to review, rescind, amend, alter or vary any of its decisions or orders. In this case, the complainant filed an application under section 18 of the Code for reconsideration of the Board's decision rejecting his duty of fair representation complaint. The Board dismissed the application, emphasizing the importance of the principle of finality of Board decisions, and the exceptional nature of reconsideration. It then took the opportunity to clearly set out the circumstances under which an application for reconsideration would be entertained by the Board. The Board used this opportunity to set out its policy with respect to the exercise of its reconsideration powers.
Sections 44 and 45 of the Canada Industrial Relations Board Regulations, 2001 (the Regulations) set out the Board's policy with respect to the exercise of its reconsideration powers under section 18 of the Code. The Board stated that section 45 requires that applicants requesting reconsideration expressly identify the grounds they allege merit reconsideration of a decision. A generic criticism of the decision under review does not meet this requirement.
This decision holds that when an applicant alleges that new facts exist, the application should, at a minimum, identify:
(i) what those new facts are;
(ii) why the applicant could not have put them before the original panel; and
(iii) why those facts would have changed the original panel's decision.
The decision goes on to say that if an applicant alleges an error of law or policy, the application should, at a minimum, identify:
(i) the law or policy in issue;
(ii) the precise error the original panel made in applying that law or policy; and
(iii) how that alleged error casts serious doubt on the original panel's interpretation of the Code.
The decision also requires that an applicant who alleges that the original panel failed to respect a principle of natural justice should set out, at a minimum:
(i) the particular principle of natural justice or procedural fairness; and
(ii) a description of how the original panel failed to respect that principle.
The Telecommunications Workers Union (TWU) and TELUS Advanced Communications jointly applied to the Board for a declaratory opinion, pursuant to section 15.1(2) of the Code. The question was formulated by the parties as follows:
Is TELUS under an obligation to provide to the TWU home telephone numbers and home email addresses of bargaining unit employees who are not presently members of the TWU?
The Board determined that the union had an entitlement to the basic personal contact information (i.e., the employee's name, home address and home telephone number) by virtue of its status as the certified bargaining representative for every employee in the bargaining unit. However, the union was restricted in its use of this information: it may only use the information for the purpose for which it was collected, namely matters related to the individual's employment and the fulfilment of the union's statutory obligations in regard to that employment. Furthermore, the employer may be entitled to withhold certain basic personal contact information (for example, an unlisted telephone number) if that information was provided to the employer by the employee based on an express guarantee of confidentiality.
With respect to employees' home email addresses, the Board declined to order the employer to collect such information solely for the purpose of providing it to the union. If the employer does not require the home email address of employees for the purposes of the employment relationship, then the union has no right to require the employer to collect this information solely for the union's benefit.
The Board was seized with an application for certification filed pursuant to section 24 of the Code. The International Union of Operating Engineers, Local 115 (the union), sought to represent a bargaining unit of employees of Parrish & Heimbecker, Limited (P & H) located in Surrey and in Abbotsford, British Columbia. P & H operates a variety of businesses in the agricultural industry, including grain handling and merchandising.
The employer alleged that the Board did not have the constitutional jurisdiction to determine this matter, because it had no elevators or storage facilities at either site affected by the application that would fit the definition of grain elevator under the Canada Grain Act (the Act).
The Board found that the operations carried on at the Surrey and Abbotsford sites fell under federal jurisdiction as activities carried out directly for or in connection with a declared federal work: grain elevators. The Board was satisfied that the product handling system in place at each location met the requirements of an "elevator" for the purposes of the Act.
The Abbotsford site only handled a small amount of grain, and had operations relating to liquid and bagged products, which did not involve the use of the elevator at the site. The Board assessed the level of functional integration between the liquid and bagged products and those of the grain elevator and found that overall the Abbotsford site appeared to be run as a single integrated operation that could not reasonably be segregated for constitutional purposes. The fact that the site handled only a small amount of grain did not detract from the fact that there was a declared federal work operating at the site and that the other functions performed there were sufficiently functionally integrated.
The Board was of the view that combining the employees in the two locations in a single bargaining unit would be appropriate in the circumstances and was satisfied that the union had demonstrated majority employee support as of the date of the filing of the application. The Board therefore issued the certification order.
The Board was seized with two applications for reconsideration of an earlier decision in respect of two applications for a declaration of illegal strike (British Columbia Terminal Elevator Operators' Association, 2007 CIRB 384). The reconsideration panel upheld the original panel's findings. The original panel had found that the employees' refusal to cross picket lines established by another union in relation to legal strike action by that other union constituted a strike within the meaning of the Code. The original panel also found that the definition of "strike" and the Code provisions prohibiting mid-contract strikes did not infringe the Charter rights of freedom of expression and freedom of association.
On the question of freedom of expression, the reconsideration panel agreed with the original panel that neither the purpose nor the effect of the definition of strike is to control expression, and it does not deprive workers of the right to express their message of support and solidarity towards other workers engaged in a legal strike against their employer, or otherwise control or restrict the content of their message. The provision merely regulates the physical consequences of strike activity without adversely impacting on the content of the message.
With respect to freedom of association, the unions argued that the original panel's finding on the definition of strike invalidates a provision of the collective agreement—the negotiated right to refuse to cross a picket line—without consultation, which amounts to a substantial interference with collective bargaining, in violation of their right to freedom of association. The reconsideration panel was of the view that the issue was more properly characterized as relating to the constitutional validity of the statutory prohibition against mid-contract strikes as opposed to a claim based on collective bargaining rights. The reconsideration panel stated that the Code prohibitions against mid-contract work stoppages were not intended to and do not have the effect of undercutting or undermining the ability of the union members to join together to pursue their common goal of negotiating workplace conditions and terms of employment with their own employer. As a result, the reconsideration panel found that the definition of "strike" in the Code, insofar as it may partially nullify the effect of the provision in the collective agreement that permits employees to refuse to cross a picket line, did not violate section 2(d) of the Charter.
Finally, the reconsideration panel was not convinced that the original panel had made an error of law in its justification analysis pursuant to section 1 of the Charter. The reconsideration panel was not persuaded that Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, had created a new standard for justification of interference with the right to freedom of association under section 2(d) of the Charter.
The Board's original decision was upheld on judicial review.
The Board was seized with an application for an interim order filed by many unions, pursuant to section 19.1 of the Code, related to an unfair labour practice complaint. In the main application, the unions alleged, among other things, that TQS Inc., Remstar Corporation and Remstar Diffusion Inc. (the employers) had committed certain unfair labour practices that were calling into question the representative character of the unions within the meaning of section 94(1) of the Code.
TQS Inc. (TQS) was experiencing major financial difficulties, and the Superior Court issued an order naming a trustee to administer TQS' property and granted it protection under the Companies' Creditors Arrangement Act (CCAA) until September 2008. As part of this protection, TQS had laid off 340 of its 435 unionized employees. Also, Remstar Corporation entered into a "management contract" with TQS, whereby Remstar took over the management of TQS' operation.
The employers had taken many steps to negotiate working conditions directly with the employees, without the unions' consent. In many cases, the agreements involved waiving the job protection afforded in the collective agreements, in exchange for receiving a specific status of subcontractor and individual financial benefits for these employees. The employers allegedly also implemented a process that would result in the merging of cross-unit positions, without the approval of the unions representing the units involved. The unions asked the Board, among other things, to order TQS and Remstar to cease and desist from attempting to enter into specific agreements with employees without the consent of the bargaining agents and to order TQS and Remstar to cease and desist from intimidating and threatening employees and to not dismiss or lay off employees without the union's consent.
The Board explained that it was not bound by the criteria usually used in courts with respect to applications for interim orders and injunctions. The criterion set out in section 19.1 of the Code must be applied based on the objectives of the Code. As part of this application, the Board was to determine the extent to which such an order is required to remedy, on an interim basis, the effects of the violations alleged in the main application, that is, that the employers committed certain unfair labour practices that called into question the representative character of the unions.
The Board granted the application for an interim order in part. It found that the employers' actions eroded the representative character of the unions, that the Board should intervene in the interim and that unless it intervened quickly, the union fabric might become even thinner. The Board was of the opinion that the protection granted temporarily to a business under the CCAA cannot be used in the long term to circumvent the union reality and the collective representation mandate granted to the unions when they were certified.
The Federal Court of Appeal dismissed an application for judicial review of a reconsideration decision of the Board, in which the reconsideration panel had partially amended the original panel's decision concerning a bargaining certificate in the longshoring industry.
The Court found that the Board had jurisdiction to reconsider its previous decisions because the reconsideration power granted by section 18 of the Code is not restricted by section 44 of the Regulations. The Court explained that the grounds for reconsideration listed in section 44 of the Regulations are not exhaustive and do not affect the scope of the discretion granted to the Board by section 18 of the Code.
The Court also found that during the reconsideration process, the Board did not exceed its jurisdiction by determining the intended scope of the bargaining certificate. It found that the Board had the necessary jurisdiction to rule on this issue because it is a significant aspect of its role.
As for the Board's power on reconsideration to review, on its own initiative, an issue in the original decision that was not raised by the parties on reconsideration, the Court found that the reconsideration panel had the power to do so. However, in doing so, the Court stated that the Board must give the parties the opportunity to make submissions. Since the parties had already filed their submissions on the issue before the original panel, the Court found that the applicants had not suffered any prejudice in the context of the reconsideration process.
The Federal Court of Appeal quashed the Board's decision in Native Child and Family Services of Toronto, 2007 CIRB LD 1707, in which the Board concluded that it had jurisdiction over the employer's labour relations and certified the union as the bargaining agent for employees at Native Child and Family Services of Toronto. The Court found that the employer's labour relations were subject to provincial jurisdiction, and that the Board acted without constitutional jurisdiction in issuing a certificate to the union.
The employer is a non-profit organization that focuses on providing child protection and family support services to members of Toronto's aboriginal community. The employer was designated by the Ontario Minister of Children and Youth Services as a children's aid society under section 15 of the Child and Family Services Act effective July 5, 2004.
According to the Court, the first step in the constitutional analysis was to determine which level of government had primary legislative authority over the undertaking. In this regard, the Court found that the employer was entirely regulated by the province of Ontario, pursuant to the Child and Family Services Act. The Court then went on to say that in order to establish that the employer's operations are federal, the union must rely on the doctrine of interjurisdictional immunity. The Court stated that the union must establish that the employer's activities, and the provincial legislation enabling them, impair (not only affect) the core of the federal legislative power over Indians and lands reserved for Indians.
Though the Court was not prepared to decide whether aboriginal family relationships fall within the "core of Indianness," the Court did find that aboriginal family relationships were in no way impaired by the Child and Family Services Act, nor were they impaired by the operations of the employer. Also, the Court found that the Board did not make any finding of impairment. Therefore, the Court stated that even if aboriginal family relationships were found to fall within the "core of Indianness," there was no impairment in this matter, and that interjurisdictional immunity did not apply in this case.
Application for leave to appeal to the Supreme Court of Canada has been granted.
The Federal Court of Appeal dismissed the employer's applications for judicial review of the Board's original decision on a preliminary jurisdictional question (Global Helicopter Pilots Association, 2007 CIRB 396) and the Board's reconsideration decision upholding the original decision (CHC Global Operations, a Division of CHC Helicopters International Inc., 2008 CIRB 402).
The original decision of the Board dealt with an application for certification of a unit of approximately 275 helicopter pilots located at various bases throughout the world. The Board determined that CHC Global Operations, which was assumed to be the true employer for the purposes of the preliminary question, was a federal business or undertaking that fell under the Code. The Board determined that most, if not all employees concerned, could potentially fall within the jurisdiction of the Code and of the Board for purposes of the application for certification, if they are found to be employed in connection with a federal business or undertaking. The Board therefore concluded that it was essential to hear the parties on the issue of true employer before a final determination could be made on the issue of the Board's jurisdiction over all of the different pilots concerned.
The Federal Court stated that the jurisprudence of the Court is clear that appeals from interlocutory decisions should not be entertained save in exceptional circumstances. Even if the Court were to accept the employer's submissions that the Board had made a final decision, the policy reasons which underlie the practice of declining to hear appeals from interlocutory decisions do not turn on whether the decision is right or wrong. The Court was of the view that it should not intervene at this time and that the appeals should be dismissed.