Date: 20030729
Docket: A-302-03
Citation: 2003 FCA 311
Present: EVANS J.A.
BETWEEN:
MARINE ATLANTIC INC.
Applicant
and
CANADIAN MARINE OFFICERS' UNION (CMOU)
Respondent
Motion dealt with in writing without appearance of parties.
Order delivered at Ottawa, Ontario, on July 29, 2003.
REASONS FOR ORDER BY: EVANS J.A.
Date: 20030729
Docket: A-302-03
Citation: 2003 FCA 311
Present: EVANS J.A.
BETWEEN:
MARINE ATLANTIC INC.
Applicant
and
CANADIAN MARINE OFFICERS' UNION (CMOU)
Respondent
REASONS FOR ORDER
[1] This is a motion pursuant to rule 369 of the Federal Court Rules, 1998, brought by Marine Atlantic Inc. for a stay of proceedings currently before the Canada Industrial Relations Board. The hearings are being held under section 87.4 of the Canada Labour Code, R.S.C. 1985, c. L-2, to determine the level of service that must be maintained to prevent immediate danger to the health and safety of the public in the event of a labour dispute that disrupts the ferry service operated by Marine Atlantic between Newfoundland and Labrador, and Nova Scotia.
[2] On December 2, 2002, Marine Atlantic raised a preliminary constitutional issue before the Board in connection with the section 87.4 matter to determine if the Board had jurisdiction to make an order under section 87.4 authorizing a strike by the Canadian Marine Officers' Union, which represents Atlantic employees who sail the ferries. The members of the bargaining unit now represented by the Union have not had a collective agreement since December 31, 2000, and negotiations with Marine Atlantic for a new collective agreement have broken down. The Union made its application under section 87.4 in August 2002.
[3] Marine Atlantic argued that the Board had no constitutional authority to make an order under section 87.4 that might result in the suspension or reduction of the ferry service, in breach of Canada's obligation under Term 32(1) of the Terms of Union of Newfoundland with Canada (Schedule A, Newfoundland Act, 1949,12 & 13 Geo. VI, c. 22 (U.K.) to maintain a ferry service between Port aux Basques, Newfoundland and Labrador, and North Sydney, Nova Scotia. Marine Atlantic, a Crown corporation, is the sole operator of this constitutionally mandated passenger and commercial ferry service.
[4] In a decision rendered on May 26, 2003, the Board dismissed Marine Atlantic's preliminary motion on the ground that it had no jurisdiction to apply Term 32(1) to the proceeding under section 87.4 because the parties and the subject-matter of the proceeding were insufficiently directly related to the parties and subject-matter of Term 32(1).
[5] On June 24, 2003, Marine Atlantic filed a notice of application for judicial review in this Court to set aside the Board's decision on the constitutional issue, alleging that the Board had committed a jurisdictional error in concluding that the section 87.4 proceeding did not engage Term 32(1).
[6] Counsel for Marine Atlantic asked the Board to adjourn the hearing of the section 87.4 proceeding pending the disposition by this Court of the application for judicial review of the Board's constitutional ruling. The Board refused. Hence, counsel's motion to this Court for an order staying the Board's hearing until the Court has decided the application for judicial review, and for an order expediting the hearing of the application.
[7] Marine Atlantic filed its motion record on July 8, 2003. The Board's hearing commenced, as scheduled, on July 14 and was adjourned after five days. The hearing is scheduled to resume on August 11; six consecutive days have been set aside for the parties to complete the evidence.
[8] In determining whether to grant a stay of a proceeding before an administrative agency pending the disposition of an application for judicial review directed at the agency, the Court is governed by the tripartite test established in RJR-MacDonald Canada Inc. v. Canada (Attorney General), [1994] 1 S.C.R 311. As usual, the controversy in this case relates to whether the moving party has proved that it will suffer irreparable injury if a stay is not granted, and where the balance of convenience lies. It is conceded that the application for judicial review raises a serious question of law concerning the Board's jurisdiction.
[9] Counsel for Marine Atlantic makes three arguments respecting irreparable harm, which I shall consider in turn. First, he alleges that, if the Board renders its decision and permits the Union to strike, before the Court decides the application for judicial review, Marine Atlantic's application will be rendered moot. In my view, this concern is speculative. The result of the section 87.4 proceeding is presently unknown, and it does not follow that any order that the Board may make will result in a strike or a lockout. Further, Marine Atlantic may apply for judicial review of any adverse decision, and ask for a stay pending its disposition, so that, if the application is successful, any disruption in the ferry service will be temporary. In short, it is not clear that, if denied a stay in this motion, Marine Atlantic will effectively have been deprived of a remedy should the present application for judicial review succeed.
[10] Second, counsel argues that Marine Atlantic should not have to incur the expense of going through a section 87.4 hearing without knowing the legal test that must be applied by the Board. In view of its ruling on the irrelevance of the constitutional issue to the section 87.4 proceeding, the Board has refused to admit evidence pertaining to the constitutional standard, no doubt in the interests of expediting an already complex matter.
[11] A partial answer to this concern of Marine Atlantic, and to its objection based on the wastefulness of a possible rehearing by the Board after the Court has decided the application for judicial review on the constitutional issue, is that the hearing has already gone for five of the twelve days scheduled for it.
[12] Third, counsel stated that a disruption of the ferry services in breach of the Terms of Union would deprive Newfoundlanders and other Canadians of the benefits of their constitutional right to a ferry service uninterrupted by a labour dispute sanctioned by the Board. Again, the stage reached in these proceedings, and the uncertainty as to whether a diminution of the ferry service to below the level that counsel says is constitutionally guaranteed will occur, seem to me to make counsel's prediction of irreparable harm speculative. Nor can it be the law that a party proves that it will suffer irreparable harm merely by alleging that the decision of an agency will infringe constitutional rights if it is not stayed pending the disposition of an application for judicial review.
[13] As to the balance of convenience, I agree with counsel for the Board that, in a case where a party has challenged the constitutional authority of the Board to make a certain kind of order, the Court is required by Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., [1987] 1 S.C.R. 110, to consider the public interest in the due administration of the law that is the subject of the constitutional challenge. The public interest in the resolution of labour relations disputes, and the pivotal role assigned by Parliament to the specialist Board in these matters, are well known. The strong preclusive clauses limiting judicial intervention in the Board's proceedings is a clear legislative indication that the Court should show considerable restraint in the exercise of its discretion to order a stay of proceedings which, in the interests of the parties and the public, the Board has determined should be delayed no further.
[14] My comments on the speculative nature of counsel's reliance on the damage that will follow from a legal strike or lockout are as applicable to a consideration of the balance of convenience as to the issue of irreparable harm.
[15] For these reasons, the motion for a stay will be dismissed with costs in the cause. At this stage of the proceedings, I see no reason to order that the hearing of Marine Atlantic's application for judicial review be expedited. Depending on the outcome and timing of the Board's determination of the section 87.4 proceeding, it may be convenient for the Court to hear the challenge to the Board's ruling on the constitutional issue raised by Marine Atlantic at the same time that it hears any non-constitutional challenge to the Board's decision.
"John M. Evans"
J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-302-03
STYLE OF CAUSE: Marine Atlantic Inc. v. Canadian Marine Officers' Union (CMOU)
MOTION DEALT WITH IN WRITING WITHOUT THE APPEARANCE OF PARTIES
REASONS FOR ORDER BY: EVANS J.A.
DATED: July 29, 2003
WRITTEN REPRESENTATIONS BY:
Mr. Neil Finkelstein
Mr. Matthew Horner FOR THE APPLICANT
Mr. Paul E. Dion FOR THE RESPONDENT
Ms. Susan L. Nicholas CANADIAN INDUSTRIAL RELATIONS BOARD
SOLICITORS OF RECORD:
Blake, Cassels & Graydon LL.P. FOR THE APPLICANT
Toronto, Ontario
Canadian Marine Officers' Union
Montreal, Quebec FOR THE RESPONDENT
Legal Counsel CANADIAN INDUSTRIAL
Ottawa, Ontario RELATIONS BOARD