Docket: A-574-00
Neutral citation: 2001 FCA 252
Present: RICHARD C.J.
BETWEEN:
MARITIME-ONTARIO FREIGHT LINES LIMITED
Applicant
and
TEAMSTERS LOCAL UNION 938
Respondent
Heard at Ottawa, Ontario, on August 22, 2001.
Order delivered at Ottawa, Ontario, on August 29, 2001.
REASONS FOR ORDER BY: RICHARD C.J.
Docket: A-574-00
Neutral citation: 2001 FCA 252
Present: RICHARD C.J.
BETWEEN:
MARITIME-ONTARIO FREIGHT LINES LIMITED
Applicant
and
TEAMSTERS LOCAL UNION 938
Respondent
REASONS FOR ORDER
RICHARD C.J.
[1] This is a proceeding under Rule 318 of the Federal Court Rules, 1998 to determine if the objection of the Canadian Industrial Relations Board (Tribunal) to a request by the applicant for the transmittal of material in its possession, consisting of evidence of membership in the union, should be maintained.
[2] The applicant Maritime-Ontario Freight Lines Ltd. commenced an application on September 21, 2000 for the judicial review of a Tribunal decision dated August 22, 2000, certifying Teamsters Local Union 938 as the bargaining agent for a unit of dependent contractors.
[3] On October 5, 2000, the Tribunal responded to a request for information from the applicant and provided a list of documents on which the Tribunal relied in making the decision under review. The applicant was invited to request copies of any document not already in its possession, excepting those relating to confidential information concerning the evidence of membership in the union.
[4] On June 5, 2001, pursuant to Rule 317(1), the applicant submitted a further written request to the Tribunal for specified materials in the possession of the Tribunal and not in the possession of the applicant. The request specifies the following material:
(a) any and all evidence that was filed with the Canada Industrial Relations Board (the "Board") in support of the Respondent's application for certification (Board File No. 21105-C) which was relied upon by the Board in reaching its determination that a majority of the employees in the proposed bargaining unit wished to have the Respondent represent them (the "Requisite Majority") in accordance with the Canada Labour Code R.S.C.1985, L-2 (The "Canada Labour Code");
(b) any and all evidence, material or documentation with respect to the steps that were taken by the Board, if any, to confirm the existence of the Requisite Majority before certifying the Respondent as the bargaining unit in accordance with the Canada Labour Code pursuant to Order No.: 7871-U which was issued on August 22, 2000.
[5] The applicant claimed that its request is relevant by reason of the fact that a dependent contractor, who it was alleged had previously falsified freight documents, had assisted the union in its membership drive. The concern, therefore, was that he may also have falsified union membership documents obtained by him.
[6] Essentially, the applicant is seeking disclosure of documentary evidence of membership in the union containing the signature and name of each employee. The result, of course, would be to identify to counsel for the applicant and the applicant's experts those employees who supported the union.
[7] The employee and union denied wrong-doing and asserted that the alleged wrongdoing was known to the employer four months prior to the certification order.
[8] The union claimed that the applicant did not raise any concern with the authenticity of the membership evidence during the certification process.
[9] The Tribunal objected to the applicant's request for material under Rule 318 (2) and gave its reasons for the objection.
[10] The Tribunal relied on section 25 of the Canadian Industrial Relations Board Regulations, 1992, SOR/91-622 (Regulations), which provides as follows:
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25. The Board shall not disclose to anyone evidence that could, in the Board's opinion, reveal membership in a trade union, opposition to the certification of a trade union or the wish of any employee to be represented by or not to be represented by a trade union, unless the Board considers that such disclosure would be in furtherance of the objectives of the Act. |
25. Le Conseil ne peut divulguer à qui que ce soit des éléments de preuve qui, à son avis, pourraient révéler l'adhésion à un syndicat, l'opposition à l'accréditation d'un syndicat ou la volonté de tout employé d'être ou de ne pas être représenté par un syndicat, à moins qu'il n'estime qu'une telle divulgation contribuerait à la réalisation des objectifs de la Loi. |
[11] The Tribunal went on to state that under the Canada Labour Code, R.S.C. 1985, L-2, (Code), and in accordance with well established labour relations principles and policies, it is for the Board alone to use those documents to determine whether, in a given case, the applicant trade union represents a majority of the employees in a bargaining unit that the Board deems to be appropriate for purposes of collective bargaining.
[12] The applicant's request under Rule 317 must be considered against the background of the scope of the Tribunal's privative clause and the public policy concerning the confidentiality of membership information in labour relations matters.
[13] George Adams notes in Canadian Labour Law, 2nd ed. (Aurora: Canada Law Book,1993) at ¶ 5.380,
It has long been recognized that confidentiality of membership evidence is an essential guarantee which labour relations boards must offer if they wish to encourage workers to avail themselves of a board's certification procedures.
[14] In Canada (Labour Relations Board) v. Transair Ltd., [1977] 1 S.C.R. 722 at 741-742, (Transair), the Supreme Court of Canada had the opportunity to consider the disclosure of information protected by a similar provision of the Regulations. Chief Justice Laskin stated that,
The Board was entitled to act on his report without disclosing it in this respect, having regard to s. 29(4) of the Regulations, once it was clear that [the Board's investigator] had made the required investigation. Of that there was no doubt in the present case...
In my opinion, the Federal Court erred in its view as to the obligation of the Board to permit cross-examination as to numbers and, certainly, as to any further inquiries which could only involve identity. Section 29(4) of the Regulations, declaring that evidence submitted to the Board with respect to employee membership in the union was for the confidential use of the Board, is a reinforcement of the policy of the Act with respect to the authority of the Board in the determination of a union's membership position.
While the factual context of the Transair decision differs slightly from the case at hand, it is clear that the confidential information sought in both cases is not to be transmitted to the employer except in very rare circumstances.
[15] In Bunge du Canada Ltée v. Canada Union of Public Employees, Local 3711 (1995), 181 N.R. 382 (Fed. C.A.) (Bunge) at page 392, the Canada Labour Relations Board was noted to have acted in a "cavalier, offhand and arrogant manner." Although the decision of that Board was overturned on other grounds, the Court made clear at page 393 that it was "not influenced by Board's refusal to disclose the numbers and names of the employees in question," and instead, based on the decision of the Supreme Court of Canada in Transair, found that,
There is no legal obligation to disclose ... and it would appear that on the contrary the Board's practice, for reasons having to do mainly with the confidentiality of the choices made by the employees in question, is to disclose the minimum of information needed by employers.
[16] In Tandy Electronics v. United Steelworks of America (1979), 26 O.R. (2d) 68 (Ont. H.C.J. (Div.Ct.)), the Court also refused to order the disclosure of confidential membership information. At pages 74-75, the Court distinguished the Supreme Court of Canada ruling in Toronto Newspaper Guild v. Globe Printing Co., [1953] 2 S.C.R. 18, noting that the Labour Code had been subsequently amended to "provide for the confidentiality of union records. It is easy to appreciate the sensitivity of employees to the disclosure of their interest in union membership."
[17] However, section 25 of the Regulations is not an absolute prohibition since it provides that such information may be disclosed where the Board determines that disclosure would "be in furtherance of the objectives of the Act."
[18] I also note that section 25 is neutral in its application. It would also apply as a bar to disclosure to the union of the identity of members seeking decertification of the union. This was recognized in the Transair case where Laskin C.J. noted at page 741:
Indeed, so far as union membership was concerned the union was as much in the hands of the Board as was the employer Transair once it had supplied the Board with its membership data and once the employer had supplied the Board with its employee lists against which to make a check of the union claim.
[19] Here, the applicant seeks the production of documents in the possession of the Tribunal which would disclose the identity of the members of the union for the purpose of allowing an expert of its choosing to compare the signatures of those employees with their signatures on documents provided by the employer. The stated objective is to have its experts determine whether the signatures on the membership evidence are authentic, and accordingly, whether a majority of employees in the bargaining unit wish to have the trade union represent them as their bargaining agent.
[20] Parliament has made it clear in section 28 of the Code that it is for the expert tribunal to determine whether a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent, and if so, the tribunal shall certify the union.
[21] Section 28 of the Code reads as follows:
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28. Where the Board (a) has received from a trade union an application for certification as the bargaining agent for a unit, (b) has determined the unit that constitutes a unit appropriate for collective bargaining, and (c) is satisfied that, as of the date of the filing of the application or of such other date as the Board considers appropriate, a majority of the employees in the unit wish to have the trade union represent them as their bargaining agent, the Board shall, subject to this Part, certify the trade union making the application as the bargaining agent for the bargaining unit. |
28. Sous réserve des autres dispositions de la présente partie, le Conseil doit accréditer un syndicat lorsque les conditions suivantes sont remplies_: a) il a été saisi par le syndicat d'une demande d'accréditation; b) il a défini l'unité de négociation habile à négocier collectivement; c) il est convaincu qu'à la date du dépôt de la demande, ou à celle qu'il estime indiquée, la majorité des employés de l'unité désiraient que le syndicat les représente à titre d'agent négociateur. |
[22] In Bunge, supra, at page 392, the Court noted that "extensive powers are vested in the Board, and as a consequence of the scope of the privative clause in section 22 of the Code the exercise of those powers more often than not is beyond judicial review."
[23] Subsection 22(1) provides that,
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22. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, expect in accordance with the Federal Court Act on the grounds referred to in paragraph 18.1(4)(a) [acted without jurisdiction], (b) [procedural fairness] or (e) [fraud] of that Act. |
22. (1) Sous réserve des autres dispositions de la présente partie, les ordonnances ou les décisions du Conseil sont définitives et ne sont susceptibles de contestation ou de révision par voie judiciaire que pour les motifs visés aux alinéas 18.1(4)a) [a agi sans compétence], b) [équité procédurale] ou e) [fraude] de la Loi sur la Cour fédérale et dans le cadre de cette loi. |
[24] It does not include the ground referred to in paragraph 18.1(4)(d) [erroneous finding of fact].
[25] In seeking the membership cards and in verifying their authenticity through experts of its choosing, the applicant is seeking to establish new evidence and to transform the process of certification from a determination by an expert tribunal to a process where the Court, on fresh evidence, supplied by the employer, makes the determination.
[26] Sections 22 and 28 of the Code and section 25 of the Regulations clearly provides that this determination should be conducted and made by the Tribunal itself. It would be inconsistent with the legislation and the established practice for this Court to embark on this inquiry and determination.
[27] If the Court, in exercising its supervisory role on judicial review, allows the application on the ground that the Tribunal did not take the proper investigatory steps, then it will be open to the Court to set aside the decision and remit the matter back to the Board with such directions as are appropriate.
[28] The application for judicial review alleges that:
the Canadian Industrial Relations Board acted beyond its jurisdiction and made a jurisdictional error when it certified the respondent as the bargaining agent for the proposed bargaining unit without first taking steps to determine whether a majority of the employees in the proposed unit wished to have the respondent represent them as their bargaining as required by sections 28(c) and 29(1) of the Canada Labour Code.
[29] There is no allegation of fraud in the application for judicial review; the applicant essentially asserts that the Tribunal did not properly conduct its investigation. In my view, this can be asserted before the panel conducting the judicial review without the evidence of membership in the union being disclosed.
[30] The applicant did not seek reconsideration of the Tribunal's decision or make an application under section 40 of the Code which permits the further investigation of allegations of fraud. Section 40 reads as follows:
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40. (1) Where a trade union has been certified as the bargaining agent for a bargaining unit, (a) any employee in the bargaining unit, (b) the employer of the employees in the bargaining unit, or (c) any trade union that appeared before the Board in the certification proceeding, that alleges that the certification was obtained by the fraud of the trade union so certified, may apply to the Board, at any time, for revocation of the certification. |
40. (1) Le Conseil peut être saisi à tout moment d'une demande de révocation d'accréditation d'un syndicat au motif que celle-ci a été obtenue frauduleusement. Ont qualité pour présenter cette demande_: a) tout employé de l'unité de négociation représentée par le syndicat; b) l'employeur des employés de cette unité; c) tout syndicat ayant comparu devant le Conseil au cours de la procédure d'accréditation. |
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(2) On receipt of an application under subsection (1) in respect of a trade union certification as the bargaining agent for a bargaining unit, the Board shall, by order, revoke the certification of the trade union as the bargaining agent for the bargaining unit if the Board is satisfied that the evidence in support of the application (a) was not and could not, by the exercise of reasonable diligence, have been presented to it in the certification proceeding; and (b) is such that the Board would have refused to certify the trade union as the bargaining agent for the bargaining unit if the evidence had been presented to it in the certification proceeding. |
(2) Saisi de la demande visée au paragraphe (1), le Conseil révoque, par ordonnance, l'accréditation du syndicat s'il est convaincu que les éléments de preuve à l'appui_: a) d'une part, n'auraient pu, même avec la diligence normale, lui être présentés au cours de la procédure d'accréditation; b) d'autre part, l'auraient amené à refuser l'accréditation s'ils lui avaient été alors présentés. |
[31] In its written objection, the Tribunal stated that it would consider an application under this section to investigate any allegation of fraud brought forward.
If the Applicant employer is concerned about the integrity of the membership evidence presented by the trade union, it should bring those concerns to the attention of the Board. Section 40 of the Code allows for a person, including an employer, to bring an application at any time, for the revocation of a certification if it believes that the certification was obtained by fraud of that trade union. However, in our respectful submission, an application for judicial review is not the appropriate manner or forum for an employer to first raise such concerns or attempt to obtain membership evidence to which it is not entitled at the certification hearing or otherwise.
[32] In these circumstances, the objection of the Tribunal to disclosure of the requested documents is maintained.
"J. Richard"
Chief Justice