Date: 20030813
Docket: A-273-03
Present: ROTHSTEIN J.A.
BETWEEN:
VIA RAIL CANADA INC.
Applicant
(Employer)
and
GEORGE CAIRNS
Respondents
(Employees)
and
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
Respondent
(Union)
and
CANADIAN NATIONAL RAILWAY COMPANY
Respondent
(Intervenor)
and
UNITED TRANSPORTATION UNION
Respondent
(Intervenor)
Heard at Ottawa, Ontario, on August 13, 2003.
Order delivered from the Bench at Ottawa, Ontario, on August 13, 2003.
REASONS FOR ORDER BY: ROTHSTEIN J.A.
Date: 20030813
Docket: A-273-03
Present: ROTHSTEIN J.A.
BETWEEN:
VIA RAIL CANADA INC.
Applicant
(Employer)
and
GEORGE CAIRNS
Respondents
(Employees)
and
BROTHERHOOD OF LOCOMOTIVE ENGINEERS
Respondent
(Union)
and
CANADIAN NATIONAL RAILWAY COMPANY
Respondent
(Intervenor)
and
UNITED TRANSPORTATION UNION
Respondent
(Intervenor)
REASONS FOR ORDER
[1] This is a motion by VIA Rail Canada Inc. for a stay of Canada Industrial Relations Board Decision No. 230 dated May 15, 2003, pending judicial review of that decision. An application for interim stay was dismissed by Order dated July 18, 2003. However, in the reasons for the July 18, 2003, Order, the Court found there were serious issues to be argued on the judicial review.
[2] On this motion, the only party to have filed evidence on the issues of irreparable harm and balance of convenience is the applicant. The United Transportation Union and George Cairns consent to the stay being sought. The Brotherhood of Locomotive Engineers and Canadian National Railway Company take no position.
[3] However, the Board makes a number of submissions. The Board says the Court should not grant a stay on the basis of a consent alone. It also invokes the privative clause in section 22 of the Canada Labour Code, R.S.C. 1985, c. L-2, and the expertise of the Board to argue that the Court should exercise deference on the question of a stay. Finally, it says there is an adequate alternative remedy for the applicant, in that the applicant could ask the Board itself to stay its order pending the judicial review.
[4] I am not convinced that these are appropriate considerations for the Board to raise before the Court under subsection 22(1.1) of the Code. Nonetheless, I will proceed to deal with them.
[5] As to the Board's first argument, I agree with counsel for VIA that this issue does not arise in this case. VIA does not rely solely on consent in seeking the stay. It has filed evidence going to irreparable harm and the balance of convenience.
[6] Counsel for the Board does not say that the position of the parties is irrelevant or that the consent is not to be taken into account by the Court in exercising its discretion as to whether to grant the stay.
[7] For practical purposes, when the respondents consent or take no position and offer no evidence contrary to that filed by the applicant, the Court will take these circumstances into account in its consideration of the three part test applicable on a stay application. See RJR-MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311, and Manitoba (Attorney General) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110. That is the case here.
[8] VIA has provided some evidence that supports its argument that there would be disruptions to its business operations or administrative practices if the terms of CIRB Decision No. 230 were initially implemented and then subsequently reversed because of a successful application for judicial review. There is also evidence of costs having to be incurred by VIA that would not be recoverable if the application for judicial review is successful.
[9] The Board says that the Court should consider that there is a public interest in permitting Board decisions to be carried out without interference by the Court. I acknowledge that the Board is deemed to act in the public interest. But that consideration alone does not immunize a Board decision from a stay pending judicial review of that decision. When there is evidence of irreparable harm to the applicant and evidence supporting the applicant's balance of convenience arguments, no evidence contrary and consent or no position being taken by the respondents, I am of the respectful opinion that it is fully open to this Court to exercise its discretion to grant a stay of the Board's decision.
[10] The Board's second argument was largely dealt with in my reasons of July 18, 2003, in this case. I do not see how it is practical to consider the privative clause in the Canada Labour Code or the Board's expertise on a stay application. The privative clause and the Board's expertise are factors to be considered in the pragmatic and functional analysis of the standard of deference to be accorded Board decisions by the Court. See Pushpanathan v. Canada (MCI), [1998] 1 S.C.R. 1222. However, on a stay application, the Court does not conduct a pragmatic and functional analysis of the standard of review because the Court is not deciding the judicial review application. Therefore, the deference to be accorded to the Board's decision is not determined, or indeed considered, at the stage of a stay application.
[11] Irrespective of the standard of review to be applied to the Board's decision in this case, there is a natural justice argument being made. It is not suggested that it is frivolous or vexatious. While the content of the duty of fairness is variable, depending upon the circumstances of each case, such questions will normally be determined on a correctness standard. The privative clause in section 22 of the Code or the Board's expertise will not protect breaches of natural justice by the Board. For these reasons, I think the preferable approach is for the stay application to be considered on the basis of evidence and argument pertaining to the traditional three-part test for the granting of a stay.
[12] I must also reject the Board's final argument respecting adequate alternative remedy. If an adequate alternative remedy is to be considered in this case, I think it is preferable to do so at the judicial review itself. While a Court may dismiss an injunction or stay application on the grounds of an adequate alternative remedy, it seems to me that one factor to consider is that once an appeal or judicial review application is filed with the Court, the Court itself may be the appropriate authority to deal with interlocutory matters such as a stay. That is the scheme in appeals from the Federal Court to the Federal Court of Appeal under rule 398(1) of the Federal Court Rules, 1998. In the circumstances of this case, I am satisfied that the Court is the appropriate forum for the stay application.
[13] Having already found there to be serious issues to be argued, having regard to the evidence filed in support of the stay application, that no contrary evidence is filed, and that the respondents either take no position or consent to the stay application, I am satisfied that this is an appropriate case for the granting of the stay application.
[14] CIRB Decision No. 230 dated May 15, 2003, is stayed pending judicial review of that decision. By agreement, costs shall be in the cause.
[15] The judicial review shall be set down for hearing in Toronto, at 2:30 p.m. on Monday, November 3, 2003, to continue for not more than one and one-half days. The applicant's application record shall be served and filed on or before September 12, 2003. Any party supporting the applicant shall also serve and file its application record on or before September 12, 2003. Parties opposing the applicant shall serve and file their application records on or before October 10, 2003.
"Marshall Rothstein"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-273-03
STYLE OF CAUSE: Via Rail Canada Inc. V. George Cairns et al.
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: August 13, 2003
REASONS FOR ORDER BY: Rothstein J.A.
APPEARANCES:
Mr. John A. Campion
Mr. Robert Cooper
Mr. Jean Lafleur, Q.C. FOR THE APPLICANT
Mr. Michael Church FOR THE RESPONDENTS CAIRNS and UTU
Mr. Graham Jones FOR THE RESPONDENT BLE
Mr. André Giroux FOR THE RESPONDENT CANADIAN NATIONAL RAILWAY COMPANY
Ms. Pascale-Sonia Roy
Ms. Susan Nicholas FOR THE CIRB
SOLICITORS OF RECORD:
Fasken Martineau DuMoulin LLP
Toronto, Ontario
Montreal, Quebec FOR THE APPLICANT
Caley Wray
Toronto, Ontario FOR THE RESPONDENTS CAIRNS and UTU
Shields & Hunt
Ottawa, Ontario FOR THE RESPONDENT BLE
Ogilvy Renault S.E.N.C.
Montreal, Quebec FOR THE RESPONDENT CANADIAN NATIONAL RAILWAY COMPANY
Canada Industrial Relations Board
Ottawa, Ontario FOR THE CIRB