Date: 20010221
Docket: A-320-00
Neutral Citation: 2001 FCA 30
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
| NAV CANADA |
Applicant
- and -
| INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2228 |
Respondent
Heard at Ottawa, Ontario, on Wednesday, February 21, 2001.
Judgment delivered from the Bench at Ottawa, Ontario, Wednesday, February 21, 2001.
REASONS FOR JUDGMENT BY: SEXTON J.A.
Date: 20010221
Docket: A-320-00
Neutral Citation: 2001 FCA 30
CORAM: ROTHSTEIN J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
| NAV CANADA |
Applicant
- and -
| INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2228 |
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Ottawa, Wednesday, February 21, 2001)
SEXTON J.A.
Introduction
[1] This is an application brought by an employer (NAV Canada) for judicial review of a decision of the Canada Industrial Relations Board ("CIRB" or the "Board"). The decision was rendered without an oral hearing and held that certain contested positions should be included in the bargaining unit. The employer argues that the Board's failure to hold an oral hearing constitutes a breach of natural justice and thus asks this Court to set aside the decision.
Facts
[2] As part of an organizational restructuring, the employer, NAV Canada ("NAV"), created two new positions, Manager of Air Traffic Management ("ATM") and Manager of Communications, Navigational Aids, Surveillance ("CNS"). NAV sought to have these excluded from the bargaining unit on the basis that they are managers and thus not employees as defined by section 3 of the Canada Labour Code (the "Code").
[3] On October 20, 1999, the International Brotherhood of Electrical Workers, Local 2228 (hereinafter called "IBEW") requested the Canada Industrial Relations Board (hereinafter called "CIRB") to determine pursuant to section 18 and section 16 (p)(ii) of the Code that NAV employees holding ATM and CNS positions did not perform managerial functions and were therefore within the scope of the bargaining unit for which the IBEW was the certified bargaining agent. On November 12, 1999, the CIRB sent to NAV a letter relating to the application which had been filed by the IBEW and outlining the rights of NAV to reply to the IBEW application. The letter also contained a paragraph called "Hearings". This paragraph was as follows:
| In accordance with section 19 of the Board's regulations any request for hearing before the Board must give the reasons why a hearing is requested. |
[4] On December 6, 1999, NAV filed its reply. The reply contained four pages of evidence and argument and eight pages of exhibits in support of its position. The Applicant made no request in its reply for the right to submit further evidence or for an oral hearing.
[5] On March 13, 2000, Senior Labour Relations Officer Henry J. Zwirek sent his report to the solicitors for both parties in which he summarized the evidence and listed the documentary evidence which had been filed.
[6] On April 5, 2000, the CIRB released the decision in issue in which it ruled in favour of the IBEW's application and determined that the ATM/CNS managers were to be included in the IBEW bargaining unit.
Relevant Legislation
Canada Labour Code, R.S.C.. 1985, c. L-1:
| 16.1 The Board may decide any matter before it without holding an oral hearing. 1998, c. 26. S. 6. |
Canada Industrial Relations Board Regulations, 1992 (SOR/78-499, 1978 Canada Gazette Part II, p. 2759) (the "Regulations"):
| 11.(1) Except as otherwise provided in these Regulations, any party to an application who makes a reply shall do so in writing and include the following information: (a) the name, address and telephone number of the person making the reply; (b) the Board's file number for the application being replied to; (c) a denial or admission of each allegation made in the application; (d) full particulars of the facts and grounds supporting the reply; (e) the party's position with respect to the order or decision sought by the Applicant; and (f) where the person making the reply wishes to be heard for the purpose of presenting oral arguments or evidence, a request for a hearing (emphasis added). (2) A reply referred to in subsection (1) and all documents relevant to the reply shall be filed with the Board. 19.(1) Any party or intervenor who wants the Board to hold a hearing in respect of a proceeding shall make a request in writing to the Board stating the reasons for the request. (2) Except as otherwise provided in the Act, where the Board receives a request for a hearing, the Board may proceed and dispose of the matter without a hearing notwithstanding the request. |
[7] The Applicant argues that the Board exceeded its jurisdiction and failed to observe the principles of natural justice and procedural fairness by issuing a decision on the merits without providing the Applicant with the opportunity to adduce its evidence. It also argues that what was submitted was not evidence but merely allegations and the Board could not act upon it
[8] In spite of having received a letter advising it of its right to request a hearing, the Applicant, represented by experienced solicitors, did not, in its Reply, request any oral hearing. Nor did it request the opportunity to present further evidence. In his report, the Senior Labour Relations Officer also indicated as follows:
| If, after having reviewed the report, a party feels that its position is not accurately represented, or that there are errors or omissions, it should notify the undersigned by telephone immediately... |
Despite this invitation, the Applicant still did not request an oral hearing, nor did it seek to adduce any further evidence.
[9] The Applicant cannot now, in the face of having ignored Section 11(1)(f) and 19(1) of the Regulations, legitimately complain about the lack of an oral hearing. The Applicant had ample opportunity both to put forward its evidence and arguments as well as to request an oral hearing. No oral hearing was requested and it did not request the opportunity to present further evidence and argument.. The audi alteram partem rule does not require an oral hearing. (Quebec (Labour Relations Board) v. Canadian Ingersoll Rand Co.,[1968] S.C.R. 695).
[10] Further, section 16(1) of the Canada Labour Code and section 19(2) of the Regulations provide that the Board may decide any matter before it without holding an oral hearing. Thus even if the Applicant had requested a hearing the Board was at liberty to decide the matter without granting an oral hearing.
[11] The scheme of the legislation and Regulations indicates that the Board will decide on the basis of the material filed unless it decides to hold an oral hearing or specifically requests additional evidence. No authority was provided to the Court for the proposition that the Board cannot do so, or that in order to treat the material filed as evidence, the Board must give notice to the parties of this intention.
[12] The Applicant has argued that the employees allegedly affected by this decision were denied natural justice also by reason of the lack of a hearing. However, applications involving a determination of the proper scope of a bargaining unit do not require any notice to employees, see Union of Bank Employee (Ontario), Local 2104, Canadian Labour Congress, certified bargaining agent, and CIBC, employer (1986) 65 di 1; CLRB Decision No. 564; Board File #675-18.
[13] In any event, the Applicant has submitted no authority which would give it standing to make claims on behalf of the allegedly affected employees and the employees themselves are not parties to this application.
[14] It appears that the Applicant was content to rely on the submissions which it had made in its reply and it is now too late, having seen the result of the Board's decision to make complaints about the lack of a hearing.
[15] As to the merits, the Applicant says that because the positions involve participation by the employees in collective bargaining on behalf of the employer, that it was patently unreasonable for the Board not to exclude those employees from the bargaining unit. The Board dealt with this matter by distinguishing between recommendations made by the employees for collective bargaining and assistance in response to grievances and dismissals on the one hand, and decisions, which are not made by the employees on the other. These are matters well within the expertise of the Board to assess, and we are not prepared to say that Board's decision was patently unreasonable on this account.
[16] The Applicant also argued that it was unfair for the Board to conclude that the Applicant's material before the Board was unclear without giving the Applicant an opportunity to clarify its evidence. We do not see that there was any such duty on the Board.
[17] The appeal will therefore be dismissed with costs.
"J. Edgar Sexton"
J.A.