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Labour (Fed) - Strikes (2). International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association
In International Longshore and Warehouse Union - Canada v. British Columbia Maritime Employers Association (Fed CA, 2024) the Federal Court of Appeal dismissed (as moot) a federal labour JR, here against a ruling of the Canada Industrial Relations Board (CIRB) that held that "ILWU Canada [had] engaged in an unlawful strike".
Here the court dismisses an inadequate notice argument in an urgent strike context:[69] I agree with ILWU Canada that, generally speaking, ensuring parties have adequate notice of and time to prepare for a hearing is relevant to both a party’s ability to adequately present its case and to the rule of law, which depends at least to a certain extent on parties presenting the relevant evidence and authorities to the decision-maker. To those unfamiliar with the context of illegal strike applications, the few hours notice provided by the CIRB in the instant case might seem inadequate. However, labour boards invariably proceed on very short notice in illegal strike applications, given the nature of the issues and the need for effective remedies. This is especially so for the CIRB, which has jurisdiction over undertakings that form the backbone of the Canadian economy, like railways, airlines, air traffic control, airport security screening, and the ports. In such industries, it is not unusual for the CIRB to schedule hearings very rapidly in illegal strike applications.
[70] The Board’s ability to proceed in rapid fashion in illegal strike applications is contemplated by both the Code and the CIRB Regulations. The Board is empowered to abridge all time limits, by virtue of paragraph 16(m) of the Code, and paragraph 14(e) and subsection 15(2) of the CIRB Regulations provide that hearings in illegal strike applications may be held "“forthwith”" following service of the application on the respondent union. In addition, by virtue of section 16.1 of the Code, the CIRB need not hold a hearing at all. This Court has recognized the right of the CIRB, absent a compelling reason otherwise, to decide cases without holding a hearing: Nadeau v. United Steelworkers of America, 2009 FCA 100, 400 N.R. 246 at paras. 3–6; Ducharme v. Air Transat A.T. Inc., 2021 FCA 34 at paras. 19–21; Kiame c. Syndicat des employées et employés nationaux (Alliance de la fonction publique du Canada), 2024 CAF 103 at para. 13.
[71] The foregoing statutory and regulatory provisions authorize the Board to proceed in the manner it did. In Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 [Ocean Port], the Supreme Court of Canada confirmed that, "“… absent a constitutional challenge, a statutory regime prevails over common law principles of natural justice”" (at para. 19). While Ocean Port dealt with the independence of an administrative decision-maker, the foregoing principle applies equally to other aspects of procedural fairness, including the requisite notice of hearing: see Sara Blake, Administrative Law in Canada, 7th ed. (Toronto: LexisNexis, 2022) (QL) at §2.05; Halsbury’s Laws of Canada (online), Administrative Law (2022 Reissue), "“Judicial Review: Requirement of Procedural Fairness: Specific Rights: Right to be Heard”" (V.3.(4).(b)) at HAD-93 "“Nature of right”"; Shephard v. Fortin, 2004 FCA 254, 325 N.R. 158 at para. 27. Given the authority of the Board, in particular, to hold hearings in illegal strike applications "“forthwith”" after service of an application made under section 91 of the Code, the CIRB was entitled to schedule the hearing on very short notice.
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