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Appeal Court Dicta

Labour (Fed) - Canadian Industrial Relations Board (CIRB)

. Perrin v. Canadian Union of Public Employees

In Perrin v. Canadian Union of Public Employees (Fed CA, 2023) the Federal Court of Appeal considered a JR of a CIRB [Canada Industrial Relations Board] 'duty of fair representation' (s.37 of the Canada Labour Code) decision, here regarding COVID vaccination policy which the union did not grieve:
[2] The applicants alleged in their complaint that the Union breached its duty by refusing to file a policy grievance challenging Air Canada’s mandatory vaccination policy. The applicants are a group of flight attendants, pursers and service directors employed with Air Canada. Ms. Perrin was mandated to bring the complaint on their behalf.

[3] In its decision, the Board found that since the factual considerations and legal arguments raised in the complaint were substantially similar to those reviewed and addressed in its recently issued decision Ingrid Watson v. Canadian Union of Public Employees, 2022 CIRB 1002 [Watson], it could rely on its analysis and rationale. In Watson, it had concluded that the Union had not breached its duty of fair representation when it refused to file a policy grievance with respect to Air Canada’s mandatory vaccination policy. The Board’s decision has since been upheld by this Court in Watson v. Canadian Union of Public Employees, 2023 FCA 48 [Watson FCA].


[10] ... Moreover, contrary to the applicants’ assertion, the Board did examine the Union’s conduct. It found that the Union had communicated regularly with its membership regarding the implementation of the policy, and that it had turned its mind to the issues raised by the members, including those who disapproved of the policy for various reasons. The Board was not required to refer to every document in the record, to respond to every argument or to make an explicit finding on each element leading to its conclusion (Vavilov at paras. 91, 128; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 16). There is no basis for concluding that the Board ignored evidence or that it failed to grapple with any of the issues raised by the applicants.
. Watson v. Canadian Union of Public Employees

In Watson v. Canadian Union of Public Employees (Fed CA, 2023) the Federal Court of Appeal considered a JR of a Canadian Industrial Relations Board (CIRB) duty of fair representation hearing, heard under the substantive law of the Canada Labour Code:
[16] Under subsection 22(1) of the Code, Board decisions may only be reviewed on the grounds referred to in paragraphs 18.1(4)(a), (b), and (e) of the Federal Courts Act, R.S.C. 1985, c. F-7. Nevertheless, these decisions are reviewable under the reasonableness standard (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 at para. 49; Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170 at paras. 23 and 34; Grant v. Unifor, 2022 FCA 6, 340 A.C.W.S. (3d) 227 at paras. 7-8 [Grant]; Paris c. Syndicat des employés de Transports R.M.T. (Unifor-Québec), 2022 CAF 173, [2022] A.C.F. No. 1455 (QL) at paras. 2 and 14 [Paris]).
. Clark v. Air Line Pilots Association

In Clark v. Air Line Pilots Association (Fed CA, 2022) the Federal Court of Appeal considered a judicial review of a Canada Labour Code complaint, before the Canadian Industrial Relations Board, that the Board did not hold an oral hearing into the applicant's unfair labour practices complaint against his union [the Airline Pilots Association, International (ALPA)] (SS: seems to be akin to an OLRB 'duty of fair representation' case).

In these quotes the court addresses the issue that the Board did not hold an oral hearing on this complaint:
[1] David Clark is an airline pilot employed by the respondent Jazz Aviation LP (Jazz). He is also a member of the Airline Pilots Association, International (ALPA), the certified bargaining agent for Jazz pilots. Captain Clark seeks judicial review of a decision of the Canada Industrial Relations Board, dismissing his unfair labour practices complaint against his union and his employer.


[11] As noted earlier, Captain Clark alleges that he was treated unfairly by the Board as it refused to hold an oral hearing with respect to his complaint. The Board stated in its decision that it had considered whether an oral hearing was required in this case, and that it had concluded that the documentation in the record was sufficient for it to decide the issues before it without an oral hearing.

[12] According to Captain Clark’s memorandum of fact and law, the complexity of the issues, the size of the record and the need to resolve questions of credibility all necessitated an oral hearing. He also argued before us that the Board did not properly take his disability into account in declining to order an oral hearing.

[13] Section 16.1 of the Code provides that "“[t]he Board may decide any matter before it without holding an oral hearing”". The full text of this and other statutory provisions referred to in these reasons is attached as an appendix to this decision. Also relevant to this issue is section 10 of the Canada Industrial Relations Board Regulations, 2012 (SOR/2001-520), which provides that an application filed with the Board must include, amongst other things, whether an oral hearing is being requested, and if so, the reasons for the request.

[14] Captain Clark acknowledges that he did not ask for an oral hearing in his application to the Board. He does, however, point to a portion of the "“Final Reply”" that he filed with the Board where he stated "“[i]f it pleases the Board, we welcome the opportunity to explain further with witness accounts the events contained in this Complaint”". He also refers to another portion of the same document where he says "“[g]iven the opportunity for a hearing, Clark will present numerous credible witnesses to bolster the substantial evidence already disclosed to the Board”". Captain Clark concedes, however, that neither statement amounts to an express request for an oral hearing.

[15] ALPA notes that in Raymond v. Canadian Union of Postal Workers, 2003 FCA 418, this Court stated that we must defer to Board decisions with respect to the holding of oral hearings, which are a matter of internal policy that is beyond the scope of judicial review in all but exceptional circumstances: at para. 4. That said, while the Board undoubtedly has considerable discretion in this regard, it is our obligation to ensure that litigants are treated fairly in the Board process.

[16] As the Supreme Court of Canada observed in Baker v. Canada (Citizenship and Immigration), 1999 CanLII 699 (SCC), [1999] 2 S.C.R. 817, an oral hearing is not always necessary to ensure a fair proceeding, and meaningful participation can occur in different ways in different situations: at para. 33. The onus is on the party requesting the oral hearing to satisfy the Board that an oral hearing is necessary: Raymond, above at para. 8.

[17] Moreover, as this Court observed in Global Television v. Communications, Energy and Paperworkers Union of Canada, 2004 FCA 78, "“the function of the duty of fairness is to provide minimum, not optimal standards of procedural propriety”": at para. 24.

[18] Captain Clark can hardly blame the Board for failing to hold an oral hearing with respect to his complaint when he did not expressly ask them to do so. As noted earlier, the Regulations governing the Board required that Captain Clark include such a request in his initial application to the Board. He was, moreover, well aware that his written submissions needed to be fulsome as the Board might decide the matter on the basis of the parties’ written submissions and other materials on file, as a statement to this effect appears in his "“Final Reply”".

[19] Captain Clark had ample opportunity to provide the Board with written submissions and documents in support of his complaint. He took full advantage of this opportunity, providing the Board with over 2,500 pages of material in connection with his complaint, and he has not identified any information or evidence that he was precluded from putting before the Board: Ducharme c. Air Transat A.T. Inc., 2021 CAF 34 at para. 22. Moreover, to the extent that Captain Clark now seems to suggest that an oral hearing was required in order to accommodate his disability, it was incumbent on him to draw this to the attention of the Board: Central Okanagan School District No. 23 v. Renaud, 1992 CanLII 81 (SCC), [1992] 2 S.C.R. 970, at para. 43.

[20] Captain Clark has thus failed to persuade me that the Board treated him unfairly in the complaint process.


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