Reasons for decision

Goran Petrovic,

applicant,

and

Unifor,

respondent,

and

TST Overland Express, a division of TST Solutions L.P.

employer.

The Canada Industrial Relations Board (Board) was composed of Mr. Graham J. Clarke, Ms. Annie G. Berthiaume and Mr. Patric F. Whyte, Vice-Chairpersons.

Parties’ Representatives of Record

Mr. Goran Petrovic, for himself;

Mr. Todd Romanow, for Unifor;

Ms. Kim Glenn, for TST Overland Express, a division of TST Solutions L.P.

These reasons for decision were written by Mr. Graham J. Clarke, Vice-Chairperson.

Section 16.1 of the Canada Labour Code (Part I–Industrial Relations) (Code) provides that the Board may decide any matter before it without holding an oral hearing. Having reviewed all of the material on file, the Board is satisfied that the documentation before it is sufficient for it to determine this application for reconsideration without an oral hearing.

I. Nature of the Application

[1] On April 13, 2015, Mr. Petrovic filed an application for reconsideration which contested the Board’s decision in Petrovic, 2015 CIRB LD 3392 (Petrovic LD 3392).

[2] The Board has decided to dismiss Mr. Petrovic’s reconsideration application since he requests, in essence, that the Board redo his original case. That is not the purpose of the Board’s limited reconsideration process.

[3] These are the reasons for the Board’s decision.

II. Background

[4] In Petrovic LD 3392, the Board reviewed Mr. Petrovic’s duty of fair representation (DFR) complaint against his bargaining agent, Unifor (Unifor). Mr. Petrovic had been an employee in a Unifor-represented bargaining unit at TST Overland Express, a division of TST Solutions L.P. (TST).

[5] The Board in Petrovic LD 3392 summarized the facts, as well as the parties’ positions. The Board then explained, in considerable detail, why Mr. Petrovic had failed to demonstrate that Unifor had violated its DFR under section 37 of the Code.

[6] Mr. Petrovic clearly did not agree with the Board’s analysis and conclusion in Petrovic LD 3392, as demonstrated by the introductory paragraph to his reconsideration application:

With all due respect, upon reading the panel decision I still believe the panel has made a mistake reading only the Union file and making their decision based on that without consulting my evidence in detail. I strongly recommend that the panel read my whole file again in detail which consists of several hundreds of pages and dozens of letters before reconsidering their decision.

[7] In the next paragraph, Mr. Petrovic suggested again that the Board re-examine his case more carefully:

I would like to point out a few documents the panel does not sufficiently address and should pay more attention to:

…

 

[8] Mr. Petrovic then reviewed some of the material which he had filed with his original complaint and alleged, inter alia, that:

i.    TST and Unifor had violated the Canadian Human Rights Act and the collective agreement by discriminating against him;

ii.   Unifor was wrong in suggesting his command of the English language was sufficient;

iii.  his medical evidence supported his position that his injury related to his work;

iv.  TST’s decision to terminate him was wrong; and

v.   TST and Unifor refused to provide him with his Record of Employment.

[9] Over the next several pages of his reconsideration application, Mr. Petrovic continued to reargue his original case. Since the Board’s reconsideration regime is not an appeal process, there is no need to summarize the rest of the reargument of the original complaint. Mr. Petrovic’s full pleading is contained in the Board’s file.

[10] Mr. Petrovic’s allegations also demonstrated, as they did in the original file, that he may not have been fully aware of the Board’s limited role and focus in DFR complaints filed under section 37 of the Code:

37. A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.

III. The Board’s Reconsideration Process

A. The Section 18 Review Power

[11] Section 18 of the Code provides the Board with certain powers to allow it to carry out its labour relations mandate:

18. The Board may review, rescind, amend, alter or vary any order or decision made by it, and may rehear any application before making an order in respect of the application.

[12] The Board has created a limited reconsideration process pursuant to its section 18 powers. Reconsideration of a recent decision is just one example of the powers the Board exercises under section 18: Dilico Anishinabek Family Care, 2012 CIRB 655 (Dilico 655).

 

[13] In Dilico 655, the Board noted various types of cases to which section 18 of the Code might apply:

[30] The reconsideration of recent decisions is only a subset of the Board’s review powers. The Board’s general review power applies to various situations.

[31] For example, unlike some provincial labour tribunals, the Board retains jurisdiction over the intended scope of its bargaining units. If the parties dispute whether a new or modified position falls within the original scope of an existing bargaining certificate, the Board will determine that issue: see, for example, Garda Cash-In-Transit Limited Partnership, 2010 CIRB 503, at paragraphs 28 to 37.

[32] The 21-day time limit to file a reconsideration application has no bearing on whether the Board can examine the ongoing scope of a bargaining unit. These issues, almost by definition, arise as the parties’ collective bargaining relationship evolves over the years.

[33] Similarly, the Board may use its review power to rescind a certification if it has been abandoned by the certified bargaining agent: PCL Constructors Northern Inc., 2006 CIRB 345. The Board may also cancel a certificate for a permanently closed business: National Bank of Canada, Senneterre Branch, Québec v. Retail Clerks’ International Union, Local 508, 87 CLLC 14, 039 (F.C.A.).

[34] Prior to the codification of the practice in section 18.1 of the Code, the Board used section 18 to review, and possibly merge, multiple bargaining units in a workplace.

[35] Section 18 also allows the Board proprio motu to raise the issue of whether it still has jurisdiction following the issuing of a SCC decision, though generally this step is left to the parties’ initiative.

[36] The Board referred to this difference between the reconsideration process and the general review power in Air Canada, 2004 CIRB 305, at paragraphs 16 to 18:

[16] The present application is filed pursuant to section 18 of the Code, which provides that the Board may review, rescind, amend, alter or vary any order or decision made by it, and rehear any application before making an order in respect of the application.

[17] The general powers conferred on the Board pursuant to section 18 of the Code are essentially exercised within two different contexts. The first being a general review power by the Board to amend, rescind, alter or clarify and confirm the intended scope of a previously issued order, at the request of a party or of its own motion. The second being when a party seeks a reconsideration of a Board decision or order. In this context, specific time limits and requirements apply pursuant to sections 44 and 45 of the Canada Industrial Relations Board Regulations, 2001.

[18] In addition, section 22 of the Code is clear that every decision of the Board is final. Thus, the Board’s reconsideration powers are limited and not intended to be a reconsideration of the facts or issues presented to a previous panel or to other tribunals.

(emphasis added)

(emphasis in original)

[14] Subsequent changes to the Canada Industrial Relations Board Regulations, 2012, since Dilico 655 have increased the time limit for filing reconsideration applications from 21 to 30 days.

B. Labour Matters are Decided Once

[15] The Code does not grant parties a right of appeal or the right to a second hearing after the Board decides a case. This statutory reality can differ from that of other administrative tribunals. The lack of a right to appeal makes eminent sense in the labour relations realm, since matters must be disposed of quickly and finally.

[16] The Board’s privative clause in section 22 of the Code illustrates Parliament’s intent that the Board decide labour relations matters once and definitively:

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, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.

…

(2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall

(a) be questioned, reviewed, prohibited or restrained, or

(b) be made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise,

on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.

(emphasis added)

[17] The Board’s privative clause makes explicit reference to three specific grounds for judicial review described in sections 18.1(4)(a), (b) or (e) of the Federal Courts Act, R.S.C., 1985, c. F‑7:

18.1 (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

…

(e) acted, or failed to act, by reason of fraud or perjured evidence.

[18] In International Longshoremen’s and Warehousemen’s Union, Ship and Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 S.C.R. 432, the Supreme Court of Canada described the importance of the Code’s privative clause:

Standard of Review

Since the Board had jurisdiction to determine the appropriate bargaining unit and to make a suggestion as to the composition of that unit, its decision must be upheld unless it is found to be patently unreasonable or, in other words, clearly irrational. This conclusion is clearly confirmed by the broad and strongly worded privative clause set out in s. 22 of the Canada Labour Code. It has been held on numerous occasions that such a clause gives a very clear signal to the courts that decisions of a board or tribunal operating under the protection of such a privative clause must be protected from strict judicial scrutiny. See CUPE, supra; Royal Oak Mines, supra, at p. 394; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p. 959. The position with regard to privative clauses was clearly and concisely set out by Gonthier J., writing for the majority in National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, in these words (at pp. 1369-70):

…courts, in the presence of a privative clause, will only interfere with the findings of a specialized tribunal where it is found that the decision of that tribunal cannot be sustained on any reasonable interpretation of the facts or of the law.

This result is also dictated by the expert knowledge, skill and experience of the members of the labour board which render it the appropriate body for determining the appropriateness of a unit for collective bargaining. As it was stated in CUPE, supra, at pp. 235-36:

The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area.

There simply can be no doubt that courts should exercise restraint and deference in reviewing those decisions which come within the jurisdiction of specialized administrative tribunals, particularly labour boards. The decision of the Board came within its jurisdiction and should not be set aside unless it is patently unreasonable.

(pages 454 and 455; emphasis added)

C. Reconsideration is Not a Statutory Right

[19] The Code does not use the term “reconsideration” for matters under the Board’s jurisdiction, though it does employ the term once for conciliation matters: see section 76 of the Code. The Board itself created a limited reconsideration process, the governing principles of which have remained constant for decades, despite legislative and regulatory changes: Buckmire, 2013 CIRB 700 (Buckmire 700).

[20] The Board’s discretionary reconsideration regime, therefore, differs significantly from the statutory reconsideration and appeal regimes which may exist at other administrative tribunals.

[21] For example, in Prasad v. Canada (Social Development), 2015 FCA 22, a case arising under the Employment Insurance Act, S.C. 1996, c. 23 (EIA), the Federal Court of Appeal (FCA) dismissed an appeal because the appellant had failed to avail himself of the EIA’s statutory reconsideration process:

[8] The jurisprudence of this Court is clear that where Parliament has established an administrative process for the adjudication of disputes, in absence of any special circumstances, it should be followed before resort may be had to the courts by way of judicial review: see Bonamy v. The Attorney General of Canada, 2009 FCA 156, The President of the Canada Border Services Agency and the Attorney General of Canada v. C.B. Powell Limited, 2010 FCA 61 (“C.B. Powell Limited”).

[9] The Act contains a comprehensive legislative scheme which may be used to challenge the imposition of an administrative penalty under paragraph 39(1)(a) of the Act, such as that imposed upon Mr. Prasad. These include the right under section 112 of the Act to a reconsideration of a decision of the Commission and the right under section 113 of the Act to appeal a reconsideration decision to the Social Security Tribunal established under section 44 of the Department of Human Resources and Skills Development Act.

[10] In the circumstances of this appeal, we are of the view that Mr. Prasad’s failure to follow these procedures provides a complete justification for the Judge’s decision. Moreover, Mr. Prasad has not convinced us that there are any circumstances that would meet the high threshold for exceptional circumstances that are necessary in order to permit early recourse to the courts (See C.B. Powell Limited at para 33).

(emphasis added)

[22] Sections 112 and 113 of the EIA describe the statutory right to request reconsideration and the further right to an appeal:

112. (1) A claimant or other person who is the subject of a decision of the Commission, or the employer of the claimant, may make a request to the Commission in the prescribed form and manner for a reconsideration of that decision at any time within

(a) 30 days after the day on which a decision is communicated to them; or

(b) any further time that the Commission may allow.

(2) The Commission must reconsider its decision if a request is made under subsection (1).

…

113. A party who is dissatisfied with a decision of the Commission made under section 112, including a decision in relation to further time to make a request, may appeal the decision to the Social Security Tribunal established under section 44 of the Department of Employment and Social Development Act.

(emphasis added)

[23] The situation at this Board is precisely the opposite. There is no statutory right to reconsideration under the Code or to any other type of appeal or rehearing. Subject to the Board’s limited reconsideration process, and/or judicial review, labour relations cases are meant to be determined only once.

[24] The FCA has repeatedly made it clear to applicants that the Board’s discretionary reconsideration process does not interrupt the 30-day time limit applicable to judicial review applications. Similarly, the FCA will not judicially review an original Board decision if the applicant has filed an application only for the judicial review of a reconsideration decision.

[25] In Remstar Corporation v. Syndicat des employé-es de TQS Inc. (FNC-CSN), 2011 FCA 183, the FCA reiterated its longstanding position on the Board’s reconsideration process and judicial review:

[1] The applicant, Remstar Corporation, is challenging through judicial review a decision by the Canada Industrial Relations Board (Board), rendered on July 9, 2010 (File 27758-C). This decision was pursuant to an application for reconsideration of the decision rendered on September 14, 2009, by the original panel of the Board (File 26864-C).

[2] To avoid potential confusion, I will refer to the decision of September 14, 2009, as the initial decision. I will refer to that of July 9, 2010, as the reconsideration decision.

[3] I note from the outset that the initial decision was not challenged before this Court. It therefore has the authority of res judicata. It is settled law that the initial decision is not to be reviewed by this Court, which will instead limit itself to determining whether the reconsideration decision was reasonable: Guan v. Purolator Courier Ltd., 2010 FCA 103; Lamoureux v. Canadian Air Line Pilots Assn., [1993] F.C.J. No. 1128; Halifax Employers Association Inc. v. The Council of ILA Locals for the Port of Halifax, 2006 FCA 82; Williams v. Teamsters Local Union 938, 2005 FCA 302. It is common ground that the standard of review applicable to the Board’s reconsideration decision is the standard of reasonableness.

(emphasis added)

[26] In short, unlike the situation other administrative tribunals might face if their legislation granted a statutory right to reconsideration and/or to an appeal, parties have no automatic right to reconsideration of this Board’s decisions.

[27] In Ms. Z, 2015 CIRB 752, the Board reiterated that its reconsideration process was neither an appeal nor a rehearing of the original case:

III. Reconsideration

[28] Reconsideration is not an appeal or a means of rearguing the original case. Despite the fact that section 44 of the Canada Industrial Relations Board Regulations, 2001 (the Regulations) was repealed on December 18, 2012, the following excerpt from Kies, 2008 CIRB 413, still applies:

[29] Section 44 of the Regulations is not drafted exhaustively and provides the Board with the flexibility to hear the rare case that does not fit within the enumerated grounds for reconsideration described above (see Hurdman Bros. Ltd. (1982), 51 di 104; and 83 CLLC 16,003 (CLRB no. 394)). The enumerated grounds for reconsideration demonstrate that the reconsideration process is neither an appeal nor an opportunity for a party to reargue its case a second time before a differently constituted panel.

(emphasis added)

[29] In Williams v. Teamsters Local Union 938, 2005 FCA 302, the Federal Court of Appeal noted the difference between an appeal and an application for reconsideration:

[7] I am unable to say that the Board’s Reconsideration decision was patently unreasonable. A request for reconsideration is neither an opportunity to obtain a new hearing nor is it an appeal. In conducting its review of the Initial decision, the reconsideration panel was not to substitute its own appreciation of the facts for that of the original panel. In this case, based on the facts before it, the original panel concluded that the Union was within its right not to pursue the matter further and there are no new facts or grounds now advanced by the applicant that would alter this conclusion.

(emphasis added)

IV. Decision on Mr. Petrovic’s Reconsideration Application

[28] It is with the above principles in mind that the Board has reviewed Mr. Petrovic’s reconsideration application.

[29] Mr. Petrovic’s pleading indicates he believed that he could argue his case a second time by filing an application for reconsideration. He asked the reconsideration panel to review the extensive documentation he had filed with his original complaint, as well as his original arguments, in the hope of obtaining a different conclusion.

[30] As noted, an appeal or hearing de novo has never formed part of the Board’s reconsideration process. Indeed, it would seriously undermine the Board’s effectiveness if it were obliged to decide its cases twice.

[31] In Société Radio-Canada, 2015 CIRB 763, the Board found that one particular argument, out of the many raised, merited a review under the reconsideration process. In contrast, Mr. Petrovic, by asking simply that the Board hear and determine his case a second time, did not plead a single issue which would raise a proper ground for reconsideration: Buckmire 700.

[32] Given that Mr. Petrovic’s application merely seeks a rehearing of his original complaint, the Board dismisses the matter.

[33] This is a unanimous decision of the Board.