Reasons for decision

Maritime Employers Association,

applicant,

and

Syndicat des débardeurs, Local 375 of the Canadian Union of Public Employees,

respondent,

and

Shipping Federation of Canada Incorporated; Chambre de commerce de l’Est de Montréal; Conseil du patronat du Québec; Montreal Port Authority; Fédération des chambres de commerce du Québec; International Longshoremen’s Association, Local 1657,

intervenors.

The panel of the Canada Industrial Relations Board (the Board) was composed of Ms. Louise Fecteau, Vice-Chairperson, and Messrs. André Lecavalier and Gaétan Ménard, Members. Hearings were held from February 4 to 8 and from February 11 to 15, on March 14, 15 and 22, on April 3 and 17, on May 29 and 31, on June 5, 10, 11, 14, 25, 26 and 28, on July 19, on August 28 and on October 7, 10, 11, 16, 17 and 29, 2019.

Appearances

Ms. Mélanie Sauriol and Mr. Nicola Di Iorio, for the Maritime Employers Association;

Mr. Jacques Lamoureux and Ms. Marie-Christine Morin, for the Syndicat des débardeurs, Local 375 of the Canadian Union of Public Employees;

Mr. Jean-Denis Boucher, for the Shipping Federation of Canada Incorporated;

Ms. Christine Fréchette, for the Chambre de commerce de l’Est de Montréal;

Ms. Karolyne Gagnon, for the Conseil du patronat du Québec;

Mr. Michel A. Brisebois, for the Montreal Port Authority;

Mr. Alexandre Gagnon, for the Fédération des chambres de commerce du Québec;

Mr. Ronald A. Pink, Q.C., for the International Longshoremen’s Association, Local 1657.

These reasons for decision were written by Ms. Louise Fecteau, Vice-Chairperson.

I. Nature of the Application and Background

[1] This application was filed on October 23, 2018, by the Maritime Employers Association (MEA or the employer), pursuant to section 87.4 of the Canada Labour Code (Part I–Industrial Relations) (the Code), and relates to the maintenance of essential services in the event of a strike or lockout. The MEA requests that all longshoring activities at the Port of Montréal be maintained in the event of a strike by longshore workers. The longshore workers are represented by the Syndicat des débardeurs, Local 375 of the Canadian Union of Public Employees (CUPE or the union). On September 4, 2018, the union gave notice to bargain pursuant to section 49(1) of the Code.

[2] Following the employer’s application, the following six organizations filed requests to intervene with the Board:

• · The Shipping Federation of Canada Incorporated (SFC);

• · The Chambre de commerce de l’Est de Montréal;

• · The Conseil du patronat du Québec (CPQ);

• · The Montreal Port Authority (MPA);

• · The Fédération des chambres de commerce du Québec;

• · The International Longshoremen’s Association, Local 1657 (ILA).

• · Mr. Daniel Dagenais, Vice-President, Operations, at the Port of Montréal (MPA);

• · Mr. Jean-François Belzile, Captain and Director of Maritime Operations at the Port of Montréal (MPA);

• · Mr. Félixpier Bergeron, Director, Safety and Fire Prevention at the Port of Montréal (MPA);

• · Mr. Serge Auclair, Vice-President, Strategy, Human Resources and Digitalization for the MPA (MPA) (via affidavit);

• · Mr. Salvatore Barbieri, Superintendent, Border Services, at the Port of Montréal (Canada Border Services Agency (CBSA)).

[3] On December 21, 2018, in Maritime Employers Association, 2018 CIRB LD 4081 (LD 4081), the Board granted limited intervenor status to each of the six organizations. The SFC, the Chambre de commerce de l’Est de Montréal, the CPQ and the Fédération des chambres de commerce du Québec were authorized to receive copies of exhibits and documents on the record without having the right to examine and cross-examine witnesses. They would have an opportunity to present arguments after the MEA and CUPE had presented theirs.

[4] As for the MPA and the ILA, in addition to the rights granted to the other intervenors, they were authorized to take part in the examination and cross-examination of witnesses called by the employer and the union and to present their arguments after the MEA and CUPE had presented theirs. However, the ILA decided not to take part in the investigation and reserved its right to present its arguments.

[5] The SFC challenged the decision issued by the Board in LD 4081, seeking the same status as the MPA. After taking its arguments into consideration, the Board amended the SFC’s intervenor status and granted it the same status as the MPA.

[6] Twenty-five days of hearings took place in Montréal just to hear the MEA’s evidence. The hearings began on February 4, 2019, and ended on October 29, 2019. The employer called 22 witnesses and filed 17 affidavits and 9 affidavit additions. It should be noted that CUPE did not present any evidence through witnesses that it had itself called.

[7] On February 6, 2019, the Board conducted a site and infrastructure visit at the Port of Montréal as part of its inquiry. The Board was educated on the loading and unloading of vessels by longshore workers. It witnessed, among other things, a vessel being unloaded and was given a guided visit of the MPA’s facilities with a focus on safety.

[8] According to the employer, no reduction in activities at the Port of Montréal can be contemplated since it is impossible, in the employer’s opinion, to separate the critical, essential, perishable or living goods from other goods because, among other things, longshoring activities are carried out without any specific knowledge of what kinds of goods are in which containers. The employer also argues that the way containers are arranged on vessels does not allow for partial unloading. The MPA and the SFC support the employer's position.

[9] The union sees the situation differently. It is of the opinion that the MEA’s application is clearly exaggerated and would essentially deny the right to strike guaranteed by the Code, which is entrenched in the right of association protected by our charters of human rights and freedoms. The union refers to the Supreme Court of Canada decision in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4; [2015] 1 S.C.R. 245, among others, and notes that the concept of essential services must be interpreted “in the strict sense” as it relates to the interruption of activities that could endanger the life, personal safety or health of the public. The ILA supports the union's position.

II. Interim Decisions

[10] The Board has issued several interim decisions in this file. The first decision, dated May 24, 2019 (see Maritime Employers Association, 2019 CIRB LD 4145), dealt with the list of the employer’s witnesses required under section 27(1)(b) of the Canada Industrial Relations Board Regulations, 2012 (the Regulations). The list had still not been completed. In that decision, the Board asked the employer to finish presenting its evidence no later than June 28, 2019, to complete its witness list and to file affidavits for witnesses that would not be available on the next scheduled hearing days.

[11] Then, on July 17, 2019, and whereas the MEA was supposed to finish presenting its evidence the very next day, the MEA, the MPA and the SFC filed a motion for the disqualification of a panel member. After hearing the parties on the motion for disqualification, the Board dismissed it on August 21, 2019, finding that the presumption of impartiality had not been rebutted (see Maritime Employers Association, 2019 CIRB 909).

[12] The Board issued a decision on August 27, 2019 (see Maritime Employers Association, 2019 CIRB LD 4192), in which it denied the MEA’s request to postpone the hearing scheduled for the following day, which was based on the fact that it had filed an application for a stay of proceedings with the Federal Court of Appeal. The Board indicated in its decision that it did not intend to stay the proceedings in the present file, unless the Federal Court of Appeal were to render a favourable decision with respect to the said application.

[13] On August 28, 2019, the last hearing day that had been set aside for hearing the MEA’s evidence, the Board asked counsel for the employer to complete its evidence, that is, to complete the testimony of Mr. Michel Murray, the union representative that the MEA had called as a witness, and that of Mr. Normand Daoust, Advisor to the MEA President. Further to lengthy exchanges with the Board, counsel for the MEA agreed to have Mr. Daoust testify but refused to complete the testimony of Mr. Murray, claiming that it was “realistically not possible to conduct the cross-examination of the union representative in the circumstances” (translation). Following counsel’s refusal to complete the MEA’s evidence with Mr. Murray's testimony despite the Board’s insistence, the Board declared that the employer's evidence was complete.

[14] On September 5, 2019, the Board issued a further interim decision (see Maritime Employers Association, 2019 CIRB LD 4196). The MPA and the SFC wished to cross-examine certain affiants among the authors of the affidavits filed in evidence by the MEA. The Board indicated in its decision that counsel for the MPA and the SFC had not in any way shown that these parties had interests opposed to those of the MEA, either in the manner in which they asked their questions or through attempts to undermine the credibility of the MEA witnesses. Nevertheless, the Board, in its decision, exceptionally allowed the MPA and the SFC to submit questions in writing to the MEA for the affiants they identified, and it gave the MEA until September 20, 2019, to file additional answers by way of affidavit.

[15] Furthermore, at the employer’s request, the Board issued seven confidentiality and non‑disclosure orders, two confidentiality orders regarding two affidavits from a witness who works for a pharmaceutical company, two non-disclosure orders related to two testimonies of witnesses who also work for a pharmaceutical company, and two confidentiality orders regarding the MEA’s exhibits P-46 and P-47 and CUPE’s exhibits I-18, I-19, I-20, I-24 and I-25.

[16] Exhibit P-46, filed by one of the pharmaceutical companies concerned, is a catalogue of products of various types (suppositories, miscellaneous goods, etc.), which are distributed in hospitals and pharmacies in Canada. Exhibit P-47 is a list of medications provided by one of the three pharmaceutical companies, which are marketed in order to treat many serious illnesses. Neither of these exhibits indicates that the products or medications pass through the Port of Montréal. Exhibits I-18, I-19, I-20, I-24 and I-25 are either summary descriptions of products passing through the Port of Montréal or documents related to security measures in the event of a spill of chemical products, which come from the Port of Montréal.

III. The Evidence

[17] The Board carefully examined all of the testimony presented, including that of affiants. It will not reproduce each witness’s testimony in detail, but will refer to the elements that it considers relevant for the purposes of the decision that it must render.

[18] As stated above, only the MEA presented evidence by witnesses. The MEA filed and produced 127 exhibits, including 25 in support of affidavits. The MPA produced six exhibits through witnesses called by the MEA. The union also filed a number of exhibits through witnesses called by the MEA. The Board has reviewed these exhibits and will refer to some of them in the context of the analysis of the evidence.

A. The Port of Montréal and the Operation of Facilities

[19] The following witnesses described the Port of Montréal’s operations:

[20] The Port of Montréal is the most important port on Canada’s east coast for the provinces of Quebec and Ontario. The MPA is mandated to operate the Port under the Canada Marine Act. Under the Port Authorities Operations Regulation, the MPA is bound to ensure the health and safety of people at the Port. The MPA has over 450 video cameras on the grounds of the Port, not counting the cameras that belong to terminal owners. There are also two checkpoints from which truckers can access the Port, where they have to submit to a biometric check. Truckers that drive inside the Port must also have an access card.

[21] The Port of Montréal also serves the rest of Canada and several American states. The Port of Montréal’s sites of operations cover 26 kilometres of banks and wharves on the Island of Montréal and over four kilometres of banks and wharves at Contrecœur. In 2018, 1.7 million containers passed through the Port of Montréal. Some 2,000 vessels per year dock at the Port of Montréal, and up to 2,500 trucks drive to the Port every day.

[22] In 2018, for the fifth year in a row, the Port of Montréal experienced significant growth; 39 million tons of goods passed through it. The goods that pass through the Port of Montréal include perishable goods and dangerous goods, pharmaceutical products, fire protection and public safety equipment, medicinal plants, pesticides, chemicals, foodstuffs, fertilizers, ores and explosives, to name just a few. Regarding the pharmaceutical products, Mr. Dagenais stated that not all of them are medicinal in nature; some are components used to manufacture other pharmaceutical products.

• [23] Mr. Dagenais stated that, for security reasons, only four of about 250 MPA employees have access to the manifests for all containers that pass through the Port of Montréal. The manifests are provided by the vessels and describe, among other things, the type of goods, their net weight, where the products are coming from and where they are going. Mr. Dagenais explained, regarding containers with dangerous goods, that they remain at the Port for less than 72 hours. If that is not the case, an environmental management plan is put in place.

[24] According to Mr. Auclair, in the event of a strike or lockout at the Port of Montréal, some medications going to Quebec, Ontario and the United States may be delivered late or expire before they are delivered. He maintained that a work stoppage during the winter could put road users, including pedestrians, in danger since the delivery of de-icing salt to municipalities would be disrupted. 

[25] Mr. Auclair added that the Port serves 110 million people and that many residents are supplied with goods essential for their health and safety. He stated that a complete or partial stoppage of longshoring activities at the Port of Montréal would quickly put the health and safety of the public at major risk. 

[26] Mr. Belzile estimated that eight container vessels and three or four oil tankers dock at the Port of Montréal every week. He stated that ship schedules are determined one year in advance and that the MPA is informed that a ship is headed to Montréal seven to nine days before its arrival. The witness stated that, since 2003, the vessels have become longer and wider, up to 44 metres wide and up to 300 metres long. He also maintained that, since 2013, the Port of Montréal allows entry to Post-Panamax vessels (vessels wider than 32 metres). A very large container vessel can carry between 30,000 and 40,000 tons of merchandise. Containers are identified by class, including containers of dangerous goods, such as radioisotopes.

[27] The witness submitted that, in the event of a strike at the Port of Montréal, vessels heading to the Port would create congestion and some of them would be required to drop anchor while others are being unloaded. Vessels in the St. Lawrence River would be turned back and made to wait, thus increasing the risk of an accident. The witness also cited weather issues that could aggravate the situation. In winter, it may be difficult to moor vessels because of strong winds. Vessels at anchor may be carried by ice, and anchors may drag. Indeed, according to Mr. Belzile, in the event of a longshore workers’ strike, the situation would be “a bit like” (translation) an ice jam, with twice the number of vessels in the environment the Port would have to work with.

[28] Regarding the unloading of vessels, Mr. Belzile stated that a vessel can be partially unloaded as long as this is planned and organized. For example, it is possible to organize the loading of a vessel in Montréal knowing that it will be unloaded in four separate European ports, by assessing the stress that will be put on the vessel. 

[29] Counsel for the MEA asked whether it would be possible to find specific containers inside a vessel (“cherry picking”). The witness replied that it is possible to do so, but that a container might be difficult to reach and that such a situation would cause undue stress to the vessel if it is not properly planned. The witness stated that “cherry picking” is not a regular practice at the Port of Montréal, since it is labour-intensive and risky work for longshore workers.

[30] Mr. Bergeron heads up a team of over 30 people. Together with the captain, Mr. Belzile, he ensures that coordinators are watching the images produced by the 450 or so cameras that are on site at the Port of Montréal, and that they are monitoring and listening to the rail and marine operations radio frequencies for any calls requiring intervention. Every day, there are constant patrols around the Port, ensuring that truck operations are running smoothly and that there are no intruders bypassing the Port’s access control checkpoints.   

[31] Mr. Bergeron explained that all emergency calls, of any nature, are routed through the Control Centre and that there is a memorandum of understanding with the 911 emergency services for any incidents concerning the Port that could involve the City of Montréal. More than 22 government organizations are involved in the Port of Montréal, for example, Montréal police, Montréal firefighters, the CBSA, Immigration Canada, the Royal Canadian Mounted Police (RCMP) and the Sûreté du Québec.

[32] Mr. Bergeron commented on a document filed in evidence that lists all of the products received by the Port of Montréal and shows that 48,882 tons of pharmaceutical products pass through the Port of Montréal in any given year. The nature of these products is not specified, but Mr. Bergeron stated that they include gauze, gloves, syringes, etc. According to the witness, they also include components used to manufacture pharmaceutical products, such as chemicals or molecules.   

[33] Mr. Bergeron stated that there are the Environmental Emergency Regulations, 2019 (Environmental Regulations), adopted under the Canadian Environmental Protection Act, 1999, which cover, among other things, dangerous materials and goods found in containers at the Port of Montréal. The Environmental Regulations require the stevedores and the owners of the goods to have an environmental emergency plan for the substances stored in the containers. The list of substances concerned is found in a schedule to the Environmental Regulations.

[34] Mr. Bergeron added that about 80 dangerous products, such as explosives and radioactive materials, also require fire inspectors to be present for container handling. He referred the Board to a document from the Port of Montréal entitled “Segregation Table for Containerized Goods at the Terminals” (translation), which provides for the separation of products stored in each container based on the nature of the product. The witness explained that, for example, between two boxes of explosives, there must be at least one box of a non-explosive product. The witness stated that this applies at the Port terminals, but is also mandatory on vessels.   

[35] Mr. Bergeron also referred the Board to a document from Natural Resources Canada that described additional safety measures that must be complied with when transporting explosives to the Port of Montréal. The document states that, in addition to being separated, some explosive substances identified in containers cannot remain at the Port’s terminals for more than 72 hours. Separation is also maintained when containers are loaded onto trains. Terminal owners must ensure that the standards for separating dangerous goods are controlled and complied with.

[36] The mandate of Mr. Barbieri, Operations Superintendent for the CBSA at the Port of Montréal, includes facilitating the movement of people and goods at the Port of Montréal and ensuring public safety. He stated that over 90 statutes and regulations apply to the Port of Montréal, be it with respect to products and substances passing through it or with respect to people inside the Port. Numerous federal, provincial and municipal government agencies are involved, and Mr. Barbieri must constantly interact with their representatives. He submitted that over 1.7 million containers are handled at the Port of Montréal in the course of a year. He stated that everything inside the Port of Montréal is subject to verification by CBSA customs officials.

[37] Mr. Barbieri explained that all international ports like that in Montréal are equipped with portal monitors that can detect radioactive substances (X-ray scanners). He added that all containers that enter the Port of Montréal are scanned. The witness maintained that, in this way, when containers are unloaded off a vessel, they are immediately scanned with a radioactive substance detector. According to Mr. Barbieri, every passenger whose first stop in Canada is the Port of Montréal is also assessed.

B. Longshoring Activities and the MEA

[38] The following witnesses described longshoring activities at the Port of Montréal:

• · Mr. Guillaume Couture, Director, Labour Force and Dispatch (MEA);

• · Mr. Normand Daoust, Advisor to the MEA President.

[39] The Port of Montréal facilities for which the MEA supplies labour in connection with the union’s certification include the following:

(a) Five (5) container terminals (Société Terminaux Montréal Gateway (“STMG”) section 77, STMG section 62, Termont section 67, Termont section 52 and Empire – Services Océanex);

(b) Two (2) dry bulk terminals (Logistec Montréal and Logistec Contrecœur);

(c) Three (3) non-containerized goods terminals (Logistec Montréal, Logistec Contrecœur and Empire – Services Océanex);

(d) One (1) grain terminal (Viterra);

(e) Three (3) cruise terminals (Grand Quai (T-1 and T-2), section 34 (T-3) and Empire).

(translation)

[40] Mr. Couture described the operations of stevedoring companies that are members of the MEA. These Stevedoring companies specialize in shipping non-containerized goods, also known as conventional shipping, that is, anything that cannot be placed in a container (liquid bulk, dry bulk), or in containerized shipping or in both forms of shipping. The MEA is in charge of deploying longshoring employees to the stevedoring companies on a daily basis. Every vessel unloaded at the Port of Montréal is then reloaded.

[41] Mr. Couture explained that, at the Port of Montréal, about 100 permanent employees carry out longshoring duties. They work at the same terminals every day. He also stated that over 700 longshore workers are deployed there every day based on the needs of companies that are members of the MEA. Therefore, 800 longshore workers are needed every day to meet the labour requirements at the Port of Montréal. Mr. Couture added that the Port of Montréal operates 24 hours a day, 7 days a week, and that the days are split into three 8-hour shifts. The Port is closed seven days per year, that is, five days over the Christmas holidays, on June 24 and on Labour Day. 

[42] Mr. Couture described the work of longshore workers assigned to the mooring of vessels. They are linesmen and are responsible for securing vessels upon arrival and casting off the mooring lines upon departure. Checkers (also longshore workers) are responsible for moving or placing containers for rail or marine transportation. Mr. Couture stated that there are about 60 different classifications at the Port of Montréal for the purposes of workforce deployment and that all workers are part of the supply chain for the loading and unloading of a vessel.

[43] With respect to transporting dangerous goods, Mr. Couture stated that all longshore workers receive training on this. A vessel may contain up to 2,500 containers. According to the witness, the vessel must be unloaded safely and efficiently. He submitted that a crane may pick up a container from the bottom of a ship. However, this may cause instability in the vessel, and it is not a safe way to unload both for the people who work on the ship or for the ship itself. 

[44] Mr. Couture stated that any delay in loading or unloading vessels can quickly create congestion at the Port, given the limited storage capacity. The witness explained that the more congested the Port becomes, the higher the risk of an accident.

[45] Mr. Couture stated that longshore workers, checkers and the MEA do not know what is in the containers when they are loaded onto or unloaded from the vessel. Vessel owners and stevedores receive a very brief description of the contents, according to the witness. Mr. Couture submitted that only shippers and the CBSA customs department know what is in the containers. 

[46] As for bulk, the Port of Montréal, including Contrecœur, receives road salt, sugar, metal alloys and fertilizer. One vessel can carry 50,000 tons of salt. The load is unloaded, then reloaded onto private company trucks by longshore workers. Salt is usually delivered to the Port of Montréal from June to the end of autumn. With respect to conventional shipping, Mr. Couture gave the example of the Champlain Bridge construction, for which major parts were delivered to the Port of Montréal. He also gave the example of water-supply piping transported by ship for the City of Montréal or transformers for Hydro-Québec. He added that longshore workers are trained to move these important parts safely.

[47] With respect to passenger vessels, Mr. Couture stated that it is longshore workers who usually load and unload passenger bags. With regard to security, the witness explained that it works the same way as in airports; the baggage is checked. Longshore workers are also responsible for provisioning cruise ships. 

[48] In cross-examination, Mr. Couture stated that during a recent ice jam, vessels were kept at anchor while they waited to be unloaded. This incident lasted three days. Mr. Couture added that there was a grain vessel and maybe a container vessel anchored in the St. Lawrence River around Pointe-aux-Trembles during the summer because of congestion at the Port.

[49] Mr. Daoust has worked for the MEA for 40 years. He has held various positions at the MEA and started his career there after finishing school. According to the witness, at the start of his career with the MEA, there were few container vessels: ships were conventional and transported general goods. According to Mr. Daoust, conventional shipping made up 80% of the Port of Montréal’s activities, whereas now, container vessels make up 90% of the Port’s operations. Mr. Daoust stated that bulk goods, such as grain, gypsum, sugar and salt, also pass through the Port. The witness added that cruise ships also dock at the Port of Montréal, and he estimated the number of cruise passengers to be around 127,000 per year.

[50] Mr. Daoust stated that, after the 2008-2009 recession, there was a significant change in how supply chains are established. He added that the Port of Montréal is a unique port, located 1,600 kilometres inland, where vessels are completely unloaded and reloaded and where all of the rail and truck delivery operations are optimized for Quebec and Ontario industries and for the American Midwest. Mr. Daoust maintained that because of the supply chain that exists at the Port of Montréal, companies keep very little inventory in storage at their own premises. According to the witness, warehouses are now located on the St. Lawrence River, at sea, in trucks, on trains or on the wharves of the Port.   

[51] Mr. Daoust stated that he has had the chance to visit other ports around the world and that the Port of Montréal is unique because vessels are completely unloaded and reloaded there.

[52] Mr. Daoust maintained that, in the event of a strike at the Port of Montréal, the Port of Halifax would not be an option. He explained that in 2010, the MEA engaged in a lockout and the Port of Halifax was used by one of the stevedoring companies; however, it did not work. He stated that the container volume at the Port of Halifax and at other ports is limited and that these ports will allow their clients to go first if there is strike action at the Port of Montréal. Mr. Daoust added that the lockout sparked an outcry from all stakeholders—including businesses, clients, assembly line operators and members of legislatures. According to the witness, the lockout endangered public health, but he did not explain how. 

[53] Mr. Daoust stated that, if the Port of Montréal becomes congested, the number of containers will increase considerably, which will make moving those containers more difficult. According to the witness, if containers remain at the Port for more than 48 hours, it creates congestion. He explained that, over the holidays, when the Port is closed—namely, on December 24, 25 and 31 and January 1 and 2—ships continue to be moored, and teams of linesmen are paid to stay on standby during the holidays because a ship cannot remain on the River for two or three days. The same is true for salt deliveries, for the purposes of ensuring road safety. 

[54] Mr. Daoust also spoke about the ice jam that occurred in 1993 and lasted a month. The ice jam was on Lake Saint-Pierre. The Port’s activities were reduced and icebreakers accompanied vessels to the Port. The witness added that small ice jams occur every year. There were three in the winter of 2019, and ships were held back below Trois-Rivières. Mr. Daoust explained that this did not affect the Port’s operations since there were enough vessels to continue normal operations.

C. Supply Chains

[55] Mr. Brian Slack, professor emeritus of geography, planning and environment at Concordia University and an expert in marine transportation logistics and port facilities, and Ms. Magali Amiel, Director, Strategy and Projects at CargoM, described supply chains.   

[56] According to the MEA, supply chains depend on the Port of Montréal. Mr. Slack testified that supply chains are the lifeblood of today’s economy, industry and modern transport system.   

[57] According to Mr. Slack, the supply chains of which the Port of Montréal is a part of are made up of the following stakeholders: longshoring companies who are members of the MEA, shipping lines, logistics companies, manufacturers, distributors, banks, insurance companies, railway systems, trucking companies and recipients. Mr. Slack stated that supply chains are designed to be “just on time” (translation), meaning that products are delivered at the time when they are needed since retailers and manufacturers now tend to have fewer warehouses and depend on products arriving at specific times. Mr. Slack added that ports, such as the one in Montréal, play a key role, because they are the interface between two modal systems, land and sea. 

[58] In Mr. Slack’s view, a disruption to the Port of Montréal’s operations would cause a significant break in the supply chain and would have serious consequences for people who rely on the Port. It would be impossible to reroute ships that have already left and to reorganize the supply chain in 72 hours, which is the length of a strike notice. According to Mr. Slack, reworking a supply chain can take weeks or even months.

[59] Mr. Slack added that, two years ago, he had access to the Port of Montréal inventory and calculated that 425,000 tons of dangerous goods had passed through the Port in one year. In the event of a work stoppage, according to Mr. Slack, vessels would not be able to unload their dangerous goods at the Port; they would have to leave them on board and take them away. The witness stated that the same is true for goods exported via the Port, which are stored in warehouses. Radioactive materials are mostly exported, while explosives are mostly imported. Therefore, according to the witness, in the event of a work stoppage, the goods would be stuck somewhere along the supply chain, possibly in a warehouse.   

[60] Ms. Amiel holds a doctorate in transportation logistics from the Université de Montréal. She is also Vice-President (Quebec) for the Chartered Institute of Logistics and Transport in North America and an advisory member of the international committee on workforce training in logistics and transport. She has worked on several projects, including a project related to marine shipping and supply chain integration.  

[61] CargoM is the Logistics and Transportation Metropolitan Cluster of Montréal. It is an ecosystem that brings together all of the partners in a sector: in this case, the logistics and transportation sector. CargoM members include the Port of Montréal, the terminals, including Termont and Logistec, the Montréal Airport, the Canadian National Railway Company (CN) and Canadian Pacific (CP), motor carriers, the MEA and shipping lines.

[62] Ms. Amiel described a supply chain as follows: it is the set of components and segments that enables goods to be moved from their point of origin to their destination. She added that supply chains are becoming increasingly integrated and complex. In other words, all of the segments have to be integrated: road, rail, marine, rail/road and air segments. She also added that supply chains have evolved rapidly over the last five years.   

[63] Ms. Amiel stated that, in Montréal, the Port of Montréal is the heart, lungs and backbone of our supply chain. She added that the Port of Montréal can rely on important partners such as CN and CP, the trucking sector, freight forwarders, clients and air services. 

[64] Ms. Amiel estimated that 98% of air cargo arrives by passenger plane and 2% by cargo plane. She added that companies like FedEx and United Parcel Service transport mail and small packages by cargo plane. She stated that, in Montréal, there are no “cargo-only” (translation) companies that fly into Mirabel Airport, since the niche market is not profitable enough for a cargo-only company. Ms. Amiel estimated that a large passenger carrier can transport 20 tons of cargo, or the equivalent of a container.   

[65] Ms. Amiel described “just in time” supply as follows: it is the manner in which all types of transport of goods are planned in order to deliver them at the specific time when businesses or customers need them. Ms. Amiel added that the concept of “just in time” has developed and resulted in what is known as “just on time” supply chains, which is to say that the distribution of a product is planned with very little leeway for its final destination, hence the new concept of “predictive procurement” (translations). Ms. Amiel explained that, with the advent of new technologies and artificial intelligence software and based on historical consumption trends, it is possible to predict when a specific commodity will be needed. For example, Canadian Tire is able to know when to set barbecues out on display and when customers will be needing air conditioners. Therefore, according to Ms. Amiel, businesses can plan and set up their supply chains a year in advance. 

[66] Ms. Amiel added that the related concepts of “just in time” and predictive procurement have led to a significant reduction in the need for storage and warehouse space. Indeed, according to Ms. Amiel, containers are the new warehouses.

[67] Ms. Amiel was of the opinion that the Port of Halifax presents disadvantages in that it does not provide the same intermodality as the Port of Montréal. For example, according to Ms. Amiel, Montréal has access to the CN and CP rail lines, whereas Halifax is served only by CN. Furthermore, capacity at the Port of Halifax is less than that at the Port of Montréal.

[68] Ms. Amiel submitted that if operations at the Port of Montréal were slowed down or halted, it would cause a break in the supply chain, with all the consequences that flow from such a situation. A ship arriving from Europe would have to be redirected to a different port capable of taking over responsibility for delivery. The supply chain cycle would be broken, according to the witness. If a ship were close to Montréal, it would not have the option of being rerouted: the goods would be stuck on the River. In the witness’s words, “just in time” would become “every person for themselves” (translation). She added that it is very complicated to reorganize a supply chain in a short time, especially given the scale of operations at the Port of Montréal.

[69] On cross-examination, Ms. Amiel stated that air freight in Canada was lagging behind the rest of the world until the middle of the 2000s or early 2010s. She believes that Canada’s air cargo sector has been growing.

[70] Ms. Amiel stated that Air Canada Cargo’s priority is first to use up and maximize the available space on passenger aircrafts. She pointed out that Air Canada has regular connections to European capitals. Ms. Amiel stated that while there is cargo aboard planes, it is limited due to the fact that the aircrafts involved are passenger planes.   

[71] Ms. Amiel specified that, for pharmaceuticals, aircrafts are used to transport the final product (ready for use), as well as in emergency situations or to deliver products to specific places. Raw materials used for drug manufacturing are transported by marine cargo and redirected to processing centres. 

D. Terminal Operators at the Port of Montréal

[72] The following stevedore members of the MEA also described their activities and their role in the supply chain for the transportation of goods:

• · Mr. Julien Dubreuil, General Manager, Termont Montréal Inc. (Termont) (member of the MEA);

• · Mr. Jean-Nicolas Lavoie, Logistics Director, Montréal Gateway Terminals Partnership (MGTP);

• · Mr. Maxime Fauteux, Operations Director, Logistec Stevedoring in Montréal;

• · Mr. Norman Desjardins, General Manager, Logistec, Montréal, Contrecœur, Ontario and the Far North.

• · Compass Minerals supplies the Canadian market with the winter salt used on highways, roads and sidewalks. The Port of Montréal is the largest salt depository in Canada. The salt is sold first to municipalities and governments. The longshore workers at the Port of Montréal are responsible for unloading the salt from the vessels. It is piled on the docks at the Port for delivery to clients over the course of the winter.

• · Compass Minerals’ clients purchase the salt in advance for the upcoming winter season. If activities at the Port of Montréal were to be interrupted, salt delivery to the municipalities and governments, among other clients, would also be interrupted. They would quickly run out of stock, and no other salt company would be able to make up the difference.

• · Lantic supplies approximately 40% of the sugar consumed in Canada. It supplies Quebec, the Maritimes and Eastern Ontario. Sugar is found in most everyday foods. Lantic’s raw material, raw sugar, is transported by ship and arrives at the Port of Montréal. Lantic’s facilities allow it to store a quantity of raw sugar equivalent to, at most, four weeks of production.

• · Lantic’s facilities are adjacent to those of the Port of Montreal. It would be unthinkable to move all the raw sugar through the Port of Montréal to a factory outside the Port of Montréal.

• · Among the food processing plants depending on Lantic are Agropur, Canada Bread, Villagio, Pom, Saputo and Leclerc. A stoppage in production could cause the processing plants to be shut down completely and put tremendous stress on plant managers and workers.

• · He was among those who tried to have the vessel OOCL-Montreal (OOCL) unloaded at the Port of Halifax. He stated that his experience confirmed that the Port of Halifax was not adequately equipped to receive the vessels destined for Montréal.

• · When the vessel OOCL arrived at the Port of Halifax, the majority of the containers were transferred to the docks. It quickly became apparent, he added, that the intermodal liaisons (trains and trucks) in Halifax were insufficient to deliver the goods to their final destinations.

• · He stated that if the 2010 situation at the Port of Montréal had lasted longer, congestion at the Port of Halifax would have intensified. He is convinced that a strike by longshore workers at the Port of Montréal would result in total chaos. He suggested that the goods and products that transit through the Port of Montréal today depend on a reliable chain of delivery that has been developed over the past decade. According to Mr. Allen, there is no other solution.

• · The pharmaceutical company distributes its products in over 60 countries. It manufactures and distributes so-called generic products, injectable products and over-the-counter pharmaceutical products. In Canada alone, the company’s products are prescribed more than 45 million times per year. The pharmaceutical company’s clients are mainly hospitals and pharmacies, as well as large retailers such as Costco and Wal-Mart.

• · The company imports finished products and bulk products. They come primarily from Europe, India and the United States. Because they are fragile, most of these products are transported by ship, in refrigerated containers, and are distributed across Canada and around the world.

• · Air transport poses risks related to the refrigeration system, even if the products are transported by an air transport network specializing in pharmaceutical products. Moreover, air transport has limited capacity and can quickly become congested if demand increases. Air transport would not be an alternative if operations at the Port of Montréal were interrupted or halted.

• · The company does not use the Port of Halifax because it is congested and unpredictable and because it lacks adequate truck transport. As well, the number of transportation services between the Port of Halifax and the company’s ports of origin is limited.

• · There would be an immediate and serious threat to public health if operations at the Port of Montréal were reduced or halted. There would also be an immediate shortage of products and ingredients, and patient health would inevitably be affected.

• · Cardinal Health is the main supplier of medical equipment for Canada’s health care institutions, including the CHUM and the MUHC. It also provides medical supplies to clinics and to paramedics and first responders.

• · Products include surgical gloves, syringes, diapers, dressings, gauze pads, enteral feeding pumps, nutritional products and numerous other medical supplies needed for a hospital to function properly.

• · Cardinal Health supplies Canada’s hospitals with more than $1 billion a year in medical supplies, and it would not be able to fulfill those needs if the Port of Montréal were to shut down because a large amount of medical equipment is imported through the Port of Montréal. Cardinal Health’s warehouse inventory is based on “just-in-time” procurement, which is calculated in days for most of its products.

• · If supply through the Port of Montréal were reduced or interrupted, Cardinal Health would face a shortage of critical medical equipment essential to the delivery of health care, which would have immediate repercussions on the health and safety of Canadians.

• · Moreover, the threat of a shutdown at the Port of Montréal would create a crisis, in that everyone would try to stockpile large amounts of medical equipment at the same time. The crisis would inevitably contribute to creating or aggravating a shortage of essential medical equipment.

• · Mr. Marc Cadieux, CEO, Association du camionnage du Québec, stated that an average of 1,900 trucks travel to the Port of Montréal every day—approximately 4,270 containers, representing an average of 34,000 tonnes of various goods, enter or leave Montréal by truck.

• · Given the current labour shortage, it is simply inconceivable that Canadian truckers would be able to meet the increased trucking needs associated with container rerouting to the Port of Montréal.

• · A significant number of trucks, truckers and work hours would be required, given the travel time to other ports, for example Saint John to Montréal (925 km), Halifax to Montréal (1240 km) and New York to Montréal (620 km).

• · Mr. André Hébert, Chartered Professional Accountant, stated the following. He must take a number of medications (anti-rejection and anti-infective). His life depends on receiving the medications on time and in the proper dosage. He obtains all his drugs at the pharmacy, and refills are for 30 days at most. A shortage of one or more medications causes him immense stress that impairs his life.

• · Ms. Sophie Perreault, CEO, Quebec Produce Marketing Association (QPMA), explained that the QPMA is a non-profit organization that represents stakeholders in the area of produce marketing in Quebec. Its members include institutions that provide meals as part of their services, for example, hospitals, schools and early childhood centres (CPEs). She states that the Port of Montréal plays a central role in the procurement of fruits and vegetables, not only in Quebec but also in Ontario and elsewhere in Canada.

• · Mr. Benjamin Laplatte, Vice-President, Communications and Public Affairs, CPQ, stated that CPQ members felt the effect of the 2010 lockout at the Port of Montréal. There was a significant negative impact on businesses across North America, some of which had to wait for containers containing medical equipment and pharmaceutical products destined for Quebec. A number of CPQ members conduct business that depends directly on continuous supply from the Port of Montréal. If longshoring activities were interrupted, mobile containers that are meant to be handled as quickly as possible would instead be held indefinitely at the Port, on ships or in overflowing warehouses, putting the contents of the containers at risk.

• · Mr. Maximilien Roy, CEO, Regroupement des jeunes chambres de commerce du Québec (RJCCQ), states the following. The RJCCQ represents small entrepreneurs, who are more vulnerable to the ups and downs of the market and who do not have the resources to survive major interruptions in the supply of raw materials.

• · These businesses keep the smallest inventories possible to reduce storage costs and therefore rely on a stable supply. A number of entrepreneurs who belong to the RJCCQ depend on the Port of Montréal. The mere threat of a disruption in their supply chain is a significant source of worry, anxiety and stress.

• · Ms. Sylvie Rochette, Executive Director, Regroupement Partage, stated the following. Regroupement Partage provides assistance to Montréal’s most disadvantaged residents. There are primarily two times during the year when it gets involved: the back-to-school period and the holiday season. Magasins partage (sharing stores) are pop‑up stores selling food and school supplies for which customers pay only 10% of the total price.

• · Distribution capacity depends on the ability of food distributors and other suppliers to provide supplies at low prices. In the event of strike action or if activities at the Port of Montréal were reduced or halted, and if Quebec’s food supply were reduced, low-income individuals and families would be the hardest hit.

• · Ms. Denise Ouellette, Executive Director, Société de Saint-Vincent de Paul (SSVP) in Montréal, states that the SSVP is a non-profit organization whose mission is to coordinate community action to support vulnerable people by providing food aid and access to basic necessities and by implementing stay-in-school and social integration programs.

• · The SSVP has 69 help centres and approximately 30 employees and 1,400 volunteers. The help centres distribute food and supermarket vouchers on an ad hoc basis. People who turn to the SSVP do so because they are unable to meet their basic needs on their own. For any given product, costs rise as supply goes down. A shortage of food, medicines or hygiene products would affect costs.

• · Ms. Linda Gauthier, Board Chair, Regroupement des activités pour l’inclusion Québec (RAPLIQ), stated that the RAPLIQ is an organization dedicated to defending and promoting the rights of people with disabilities and to eliminating discrimination.

• · People with disabilities experience a great deal of stress when faced with a possible disruption in the supply of the medications and goods they need to function well. The mere announcement of a possible interruption in the supply of required medications or goods is a source of stress for people with disabilities.

• · Mr. Richard D. Daneau, Executive Director, Moisson Montréal, stated that Moisson Montréal’s mission is to ensure an optimal food supply for community organizations that provide services to people in need on the Island of Montréal by helping to develop sustainable solutions to promote food security. Moisson Montréal collects food and provides it free of charge to 257 organizations, specifically food banks, anti-poverty agencies that run soup kitchens and shelters for homeless people.

• · Moisson Montréal depends entirely on donations—65% of donations come from the 10 largest suppliers, namely Bonduelle, Food Banks Canada, Food Banks of Quebec, Canadawide, Kraft/Heinz, Stericycle, Metro, Maxi, Provigo, Global and Transport Robert.

• · An interruption in supply at the Port of Montréal is highly likely to have a serious impact on the 257 organizations that receive foodstuffs from Moisson Montréal.

[73] Mr. Dubreuil explained that Termont is a container terminal operator that loads and unloads container vessels at the Port of Montréal. When a vessel is unloaded, the goods are delivered by train and by truck, and when Termont receives merchandise by train or by truck, it loads it onto the vessels.

[74] Mr. Dubreuil emphasized that Termont does not own the land on which it operates. The MPA is the owner, and Termont leases two terminals (Maisonneuve and Viau). Mr. Dubreuil explained that, as lessee, Termont has safety obligations that are determined by the Port of Montréal. Transport Canada also requires a security plan to control who can enter the site, and the CBSA requires that all containers unloaded from the vessels go through a radioactivity detector. Termont has two detectors at the Maisonneuve terminal and one at the Viau terminal. The witness stated that the CBSA can also require that certain containers be opened.

[75] Mr. Dubreuil added that with regard to security, Termont has approximately 250 security cameras on site. During daily operations, surveillance is done by security officers, who are employees of Termont. Mr. Dubreuil indicated that all truck drivers who come to Termont must have an MPA-issued access card. When they arrive at the Port, they must submit to biometric screening at the entrance, meaning the driver’s fingerprints are verified. Once at the terminal, the driver is checked once more and the access card is revalidated.

[76] Termont’s clients are shipping lines, and the majority of the cargo Termont processes is from the Mediterranean Shipping Company (Canada) Inc. (MSC). MSC is a ship operator, or ship owner. Mr. Dubreuil explained that four service lines go to the Termont terminals. One line is from the North Atlantic and serves the European ports, two other lines serve the Spanish ports and Italy and a fourth line serves the Caribbean. Each service line has four or five vessels, and each can hold from 1,500 to 2,000 20-foot or 40-foot containers. Some containers are refrigerated. Mr. Dubreuil indicated that longshore workers operate the container-handling equipment.

[77] Mr. Dubreuil added that no employee is authorized to open containers. Only CBSA staff can open them, and Termont has limited knowledge of the content of the containers. For example, the manifest might say “electronic components” (translation). The manifests do not provide any details about the cargo. The detailed statement is sent to the CBSA. It is therefore the CBSA that is aware of the contents.

[78] Dangerous goods containers are identified in accordance with Transport Canada standards, and Termont must observe certain handling requirements with respect to these containers, for example, segregation.

[79] Mr. Dubreuil explained that for the loading of a vessel, a loading plan is established by planners employed by Termont. Mr. Dubreuil indicated that it is possible to unload certain designated containers in advance, but certain other containers must be unloaded first. Mr. Dubreuil described the sequence for unloading a vessel. A crane takes the container and places it on one of Termont’s trucks, and then the container is scanned with the radioactivity detector before it is placed in a pile, in a given area. A checker indicates where the container or containers are to be placed. The containers are then either delivered by city trucks (external trucks) or loaded onto railcars to Toronto, Chicago, Detroit, etc. The witness stated that 45% of the merchandise at Termont is transported by train and 55% by truck. Some 1,000 to 1,200 trucks drive to Termont sites every day, according to the witness.

[80] For rail transportation, CP and CN bring their convoys. The railcars are unloaded in a manner similar to that of loading vessels. Once the unloading is complete, the convoys are reloaded.

[81] Mr. Dubreuil indicated that if the loading or unloading of the vessel is delayed, it creates congestion as the containers accumulate on the terminal. More effort and handling is then required in order to access the containers, and the risk of accidents increases. A 20-foot container weighs approximately 24 to 30 tons, and a 40-foot container about 35 tons.

[82] Mr. Dubreuil added that every delay has a ripple effect. Subsequent vessels will be processed later, and the normal flow is thereby slowed down. In addition, the witness explained, goods will accumulate at the terminal to the point that it will become paralyzed because its storage capacity will be reached. According to the witness, the terminal will be paralyzed after two or three weeks of delays and cessation of container delivery. As for containers with dangerous goods, when there is congestion, it becomes more complex to segregate these containers, and the risk of mixing up the classes of the containers increases.

[83] Mr. Dubreuil spoke about the lockout in 2010. According to the witness, this lockout lasted six days. Vessels that were en route were slowed down to delay their arrival in Montréal; then MSC decided to send them to the Port of Halifax. Three vessels that Termont could have processed were redirected to Halifax. Of these, only one was unloaded and then reloaded with new containers, while the two others, which had also been unloaded, ended up being reloaded with the same containers and then redirected to Montréal. The MSC considered that this method was more efficient than waiting for the containers from these two vessels to be delivered by rail. According to the witness, other shipping lines also redirected their vessels to Halifax. The Port of Halifax was congested within a few days.

[84] Mr. Dubreuil asserted that even when the terminal is congested, no vessel has ever been turned away on that basis. Changing the port of arrival causes constraints, as a manifest of all the goods must be established for customs.

[85] Mr. Dubreuil stated that Termont is currently operating at 85% of its storage capacity in the yard. In his view, at this time, the company is operating in a state of congestion, and segregation has to be performed in a non-standard manner.

[86] Mr. Dubreuil added that if Termont were unable to operate with 100% of its workforce, there would be limited storage capacity on the terminal, resulting in some vessels having no place to dock. For Termont, this means it will need to find storage space at these sites and modify its operational plans—and that will increases the risk of accidents. Regarding the dangerous goods containers, Mr. Dubreuil added that if they are allowed to accumulate and remain on site longer, the risk factor is necessarily going to increase.

[87] Mr. Lavoie noted that MGTP is a stevedoring company that offers container handling services to six shipping lines, meaning MGTP oversees the loading and unloading of the vessels and the handling of the containers, which will eventually be reloaded onto trucks or trains. In fact, MGTP provides the same services as Termont at the Port of Montréal. MGTP has two terminals. Like Mr. Dubreuil, Mr. Lavoie described the steps involved in loading and unloading vessels, in particular the handling of the containers on trucks and trains in order to send them to their final destinations.

[88] Like Mr. Dubreuil, Mr. Lavoie stated that if there were a reduced workforce at the Port of Montréal, MGTP would experience congestion.

[89] Mr. Fauteux explained that Logistec, like MGTP and Termont, is a stevedoring company that is a member of the MEA and offers vessel loading and unloading and cargo storage services. This is what is called general cargo, or bulk. Logistec also handles containers, like MGTP and Termont, and provides baggage handling services for cruise ships at the Alexandria pier.

[90] According to Mr. Fauteux, 235 vessels travelled through Logistec’s facilities last year. In terms of the storage services, the goods and products involved were, for example, copper concentrates, various alloys, fertilizers and shredded steel, to name just a few of the goods that are stored in the hangars. Logistec also receives gypsum, raw material and construction materials, which are delivered directly to the client. As for bulk, Mr. Fauteux stated that they also receive raw sugar, which is unloaded and sent to underground conveyors for the company Lantic.

[91] Logistec also receives bulk shipments of road salt for de-icing. The salt is from the Goderich (Sifto) mine in Ontario. There is no salt delivery from the end of December to April as the St. Lawrence Seaway is closed in the winter and, therefore, there is no access to the Great Lakes. Nonetheless, the witness said that last year, Sifto and Cargill chartered vessels from Chile and Egypt because of a strike at the Goderich mine. Those who purchase de-icing salt are municipalities, businesses like Rona and members of the public.

[92] The salt is placed on Logistec’s terminal during the winter and is delivered by truck in parts of Quebec, for example in Sherbrooke or Lebel-sur-Quévillon and the Trois-Rivières and Drummondville regions. All the longshoring services at Logistec are performed by longshore workers. Longshore workers also unload the salt, unless the vessels are equipped with self-unloaders. Mr. Fauteux stated that the Port of Montréal is not the only one in Quebec that receives salt. Other ports along the St. Lawrence River also receive road salt, such as the Port of Québec.

[93] Mr. Fauteux stated that other competitors also provide salt, including Canadian Salt, Sifto and Cargill. He added that other ports along the St. Lawrence River receive salt, such as Québec and Valleyfield. Sifto and Cargill also provide salt in different regions in Quebec.

[94] Mr. Fauteux described the work done by longshore workers providing services to cruise passengers. They take care of loading the luggage onto the vessels and unloading it. They are also responsible for bringing the luggage to the secure area where the suitcases are scanned and reloaded onto the vessel.

[95] Mr. Desjardins is the General Manager of Operations for Logistec, in Montréal, Contrecœur, Ontario and the Far North. His offices are at the Viau and Contrecœur terminals. Mr. Fauteux reports to Mr. Desjardins. In Contrecœur, 80% of the volume handled is iron ore and 10% is fertilizer. It is therefore dry bulk. Mr. Desjardins explained that Contrecœur does not receive containerized bulk, whereas Montréal may receive containers with bulk from Europe which are then unloaded at the Logistec facilities in Montréal. The longshore workers are responsible for loading and unloading the vessels and for loading the road transports.

[96] Mr. Desjardins testified regarding an ice jam that occurred on the St. Lawrence River shortly before his testimony. ArcelorMittal Canada (ArcelorMittal), among others, had a vessel transporting iron ore that was stuck in the ice. The ice jam lasted three or four days, according to the witness. ArcelorMittal is Logistec’s client. According to the witness, this slowdown due to the jam caused a delay in delivery, which in turn resulted in a near complete disruption in supply and production for ArcelorMittal.

E. Businesses and the Port of Montréal

[97] In the MEA’s opinion, there is no alternative if activities at the Port of Montréal are stopped or reduced. The MEA called many witnesses to testify, including representatives of businesses who rely on the Port of Montréal for the import or export of many kinds of merchandise.

[98] Mr. François Théorêt is Vice-President of Procurement at ArcelorMittal for the Long Products unit. This company transforms scrap metal and iron ore to produce steel. Ultimately, their products can be found in the construction and automobile sectors and in many products with steel components. ArcelorMittal Long Products has 1,200 employees in Contrecœur. The iron ore plant in Fermont performs iron ore extraction operations. The ore is transported by train to Port-Cartier, then by ship to the Port of Montréal (in Contrecœur). One ship can hold 40,000 tons of iron ore. The loading and unloading operations are performed by Logistec longshore workers. Some of the ships are self-unloading.

[99] The scrap metal comes from all over Quebec. It is recycled for steel, then most of it is sold to companies in Quebec and also exported by ship.

[100] Mr. Théorêt suggested that if there were a strike at the Port of Montréal, the scrap metal would no longer be exportable by ship, and he noted that the current infrastructure would be insufficient to export all the scrap metal by train. According to Mr. Théorêt, following the duration of the strike, it is possible that there would be not be enough space to store the scrap metal.

[101] Mr. Théorêt added that his clients keep minimal stock and that when the supply chain is disrupted, the stakeholders involved feel the impact directly. According to Mr. Théorêt, in the event of a strike, it would not be possible to transport the ore from Port-Cartier to the Port of Sorel, because it would mean more than 1,200 trucks travelling through downtown Sorel. He added that when the Port is closed during the Christmas holidays, ArcelorMittal is required to slow down its operations because the workforce needed is not available.

[102] Mr. Chris Fournier is Executive Vice-President of MSC. MSC is part of MSC Global, based in Geneva. His duties consist of providing his clients with maritime container transportation services for Canada, including transportation by truck and train as well as storage and export of containers. He added that MSC’s mandate is to provide its clients with logistical services that allow them to transport their products all over the world. Accordingly, the witness submits, the MSC owns ships and is in constant liaison or contact with port, railway and trucking operators, including government representatives and customs officials, in order to ensure a smooth flow of products entering or leaving any given country.

[103] Mr. Fournier explained that the Port of Montréal is unique in the sense that ships are completely unloaded and then immediately reloaded to return to Europe, South America and Asia. The witness also said that the Port of Montréal is unique because of its proximity to Toronto and the American Midwest. MSC has offices in Montréal as well as in Toronto and Vancouver. Mr. Fournier estimated that about 8,000 containers are brought to the Port of Montréal by MSC every week.

[104] Mr. Fournier explained that MSC transports all types of products, such as finished or unfinished products for the manufacturing sector, ingredients or drugs for the pharmaceutical industry, water, fruits, cars, etc.

[105] At the Port of Montréal, MSC deals with the Viau and Maisonneuve terminals, which are operated by Termont. It is Termont, therefore, that loads and unloads MSC’s ships.

[106] Not all of MSC’s ships can dock in Montréal, due to certain restrictions on the St. Lawrence River. MSC’s ships that come to the Port of Montréal can hold from 4,000 to 5,000 containers. There are four of them, and they sail on four different lines, from Northern Europe, the Mediterranean, South America or Latin America. One vessel per week docks at the Port of Montréal. The routes are determined by the Geneva office, which has a global overview of the options for transporting the products safely to their destination.

[107] Mr. Fournier explained that MSC also uses the Port of Saint John, New Brunswick, but mostly for exporting—very infrequently for importing products. He stated that MSC does not use the train service in Saint John. According to Mr. Fournier, the Port of Saint John would be unable to handle the volume of products that MSC brings to the Port of Montréal, in light of its low productivity capacity and logistical limitations. The Port of Saint John does not have access to a rail network, unlike the Port of Montréal. Mr. Fournier stated that he does not do business with any port in Canada other than the ports of Montréal and Saint John.

[108] Mr. Fournier explained that he had talks with officials at the Port of Saint John around the possibility of a stoppage in longshoring activities at the Port of Montréal. The Port of Saint John could provide services to MSC for approximately 1,000 containers per week, in contrast to 8,000 at the Port of Montréal. Mr. Fournier indicated that this would put MSC in a difficult situation. He suggested that it would be difficult to determine which containers could be unloaded from the vessel, as numerous factors need to be considered. The witness stated that the containers that would be unloaded would also pose a problem—a discussion with the CN operators, who already have their own clients, would be required.

[109] Mr. Lucio Odorico is Senior Manager at Logistics Canada, for the company Compass Minerals. His affidavit can be summarized as follows:

[110] Mr. Gary Nagribianko is Senior Director, Commodity Trading, for Lantic Inc. (Lantic). In his affidavit, he stated the following:

[111] Mr. Michael Broad is the Director of the SFC. The SFC is a national industry association that represents the interests of ship owners and operators and the shipping lines that export and import products between Canadian and foreign ports. The SFC’s services are designed to provide them with information and help them in their daily operations to ensure safe and environmentally efficient transportation. There are many SFC members (Fednav, Canfornav, Mersk, Robert Reifard, etc.).

[112] Mr. Broad stated that SFC members all use Canadian ports, including those on the west coast, the Great Lakes, the St. Lawrence River, the Atlantic Ocean and even the Arctic Ocean.

[113] The SFC’s main responsibilities are to ensure that members comply with Canadian laws and regulations and that they carry out their activities safely in Canadian waters.

[114] Mr. Broad suggested that the Port of Montréal is unique. He gave the example of a shipment from Europe including certain containers to be delivered to a client in Toronto. The shipping line responsible for delivering the goods for the client would get the contents at a warehouse in Hamburg, Germany, and then could deliver it directly to the client in Toronto. According to the witness, this “door to door” service is made possible thanks to the Port of Montréal’s increasingly sophisticated supply chain with two rail lines and the availability of truck transport.

[115] According to Mr. Broad, no other port in the world offers services comparable to those at the Port of Montréal. Mr. Broad explained that the St. Lawrence River is very narrow for cargo ships to navigate. He added that because of this narrowness, vessels must rely on expert pilots to navigate from Les Escoumins, Quebec, to Montréal, and vice versa. Mr. Broad added that in the wintertime, the situation is even more critical because of ice and strong winds.

[116] According to Mr. Broad, if there were a stoppage in longshoring activities at the Port of Montréal due to a strike action by longshore workers, the ships would have to anchor “in the area of Pointe‑aux‑Trembles–Lanoraie” (translation) and wait. This would increase the risk of accidents, in Mr. Broad’s opinion, as there would be several anchored vessels in a narrow canal, which could result in not only damage to the vessels, but also injury to the crew members.

[117] In cross-examination, Mr. Broad stated that with 72 hours’ notice, should there be a strike at the Port of Montréal, the vessels would still be at sea, outside Canada. Mr. Broad admitted that during the 2010 lockout, vessels were redirected to the Port of Halifax, but he indicated that not all of the containers could be unloaded; in the end, those that were unloaded were subsequently reloaded, as the lockout lasted only a few days. Mr. Broad stated that the situation created disorder.

[118] Mr. Chad Allen is the Director of Maritime Operations for the SFC. In his testimony by affidavit, Mr. Allen stated the following, among other things, regarding the 2010 lockout at the Port of Montréal:

F. Alternative Solutions, According to Mr. Slack

[119] With respect to alternatives to the Port of Montréal in the event of a stoppage of longshoring activities, Mr. Slack submitted that the Port of Halifax would be unable to handle Montréal’s maritime traffic. Nonetheless, he admitted that the Port of Halifax is not operating at maximum capacity and that it could certainly absorb a few hundred containers in the short term.

[120] Meanwhile, Mr. Slack specified that many customers might reroute their ships to the Port of New York in the event of a labour dispute at the Port of Montréal, which would result in logistical challenges. Mr. Slack stated that the Port of New York is experiencing increasing congestion problems, especially as a result of increases in the size of vessels. If the Port of New York were used as an alternative to the Port of Montréal, containers would have to be transported to Montréal by rail or truck. The railway between New York and Montréal is not equipped to carry heavy containers at a reasonable speed. Mr. Slack submitted that trucks would therefore have to be used, resulting in an enormous increase in transportation costs as well as problems at the border for some types of products, such as food and pharmaceutical products and hazardous goods.

[121] Mr. Slack also stated that the Port of Baltimore has a major container port, but ships lose a full day making the round trip to that port, which is why companies seldom use it. He further stated that Charleston and Savannah are also container ports, but that Canada is not at all their market. Furthermore, it would take three or four days to truck goods from Florida to Quebec or Ontario.

[122] Mr. Slack indicated that the Port of Vancouver is Canada’s largest container port. Ships passing through Vancouver also call at Seattle, Tacoma, Los Angeles and Long Beach. In Mr. Slack’s opinion, it is unlikely that the Port of Vancouver would be able to receive goods from Europe and then send them on to Quebec and Ontario.

[123] Mr. Slack indicated that the Port of Saint John is the second largest port on Canada’s east coast, after Halifax. It handles approximately 8,000 containers per week, while the Port of Montréal handles 32,000 containers per week.

G. Pharmaceutical Industry Stakeholders

1. Pharmaceutical Companies

[124] Three pharmaceutical industry representatives testified. One testimony was done by affidavit. These testimonies are subject to a non-disclosure order with respect to the names of the witnesses, the names of their pharmaceutical companies and the pharmaceutical products that the companies provide to Canada’s health care sector.

[125] The pharmaceutical company for which Ms. H. works has a number of divisions, including a generic drugs division and an innovative (patented) drugs division. The innovative drugs division also makes comfort care products. The company supplies wholesalers, pharmacies and hospitals.

[126] In short, Ms. H. stated that the company owns manufacturing plants and facilities in India, Europe, the United States and Canada (Quebec and Ontario). It also owns warehouses in Ontario and supplies drugs to wholesalers with distribution centres in urban centres such as Calgary, Montréal, Vancouver and Moncton, etc. In Canada, products are trucked in room-temperature trailers from production facilities to distribution centres.

[127] Ms. H. argued that some drugs have no substitute. For some other types of drugs, such as anti-rejection drugs, a patient undergoing therapy must continue to take the same drug. Therefore, if there were a shortage of the drug, the patient would die. For drugs where there are substitutes, the loss of a supplier places great pressure on the competitor, which must provide drugs to more patients.

[128] Ms. H. indicated that 80% of the products imported by her pharmaceutical company transit through the Port of Montréal. The stock is either in bulk (to be packaged in Canada) or in finished dosage forms. She stated that at least one container of drugs arrives each day at the Port of Montréal. As for the generic drugs division, the stock passing through the Port of Montréal represents the equivalent of 48 million prescriptions per year. Products imported into Canada also arrive by truck from the United States, and a small amount arrives by air from Europe and India.

[129] Ms. H. stated that the company used to import its products by air. However, she submitted that air transport is less reliable in that it is more difficult to track products en route and ensure quality, since air carriers cannot guarantee that products will be kept at the correct temperature, even if they are properly packaged. She stated that, as a result, the company decided in 2013/2014 to switch to maritime transport, in order to ensure that product quality was preserved and to provide patients with a more secure supply chain. According to Ms. H., products shipped in containers are kept in enclosed, temperature-controlled spaces, regardless of the transit time. They are shipped anonymously, and access to the products is safer than with air transport.

[130] Ms. H. explained that the company spent a year transitioning from air transport to maritime transport. She testified that she examined the various ports of entry to Canada before the company went ahead and made the change. The Port of Montréal was selected for its location, availability, ability to provide timely container shipping information, and ability to understand the importance of the products being shipped. Other Canadian and American ports were evaluated but not selected. She noted that the Port of Halifax has congestion problems, and containers would have to be transported by rail. Ms. H. claimed that the company tested rail transport but was not convinced. As well, truck transport was not suitable. Ms. H stated that the Port of New York in the United States is highly congested and that containers headed for Canada are held up too long by the Food and Drug Administration.

[131] Ms. H. explained that “just-in-time” delivery is one advantage of transporting products through the Port of Montréal. The structure of the supply chain takes into account production lead times and maritime transport time frames. Products are transported to distribution centres in the best possible conditions and in a timely manner.

[132] According to Ms. H., product shelf life ranges from 12 to 48 months, and stocks must be replenished as soon as they are used. To replenish stocks, the company must be able to rely on a properly functioning supply chain. As well, the company must follow Health Canada’s Guidelines for Temperature Control of Drug Products during Storage and Transportation (GUI-0069), which specify how a product should be handled and stored. The guidelines also include rules for transporting products in Canada.

[133] Ms. H. explained that the company has vaults for storing narcotics and all substances regulated by Health Canada. Storage space for this type of product is limited. It is therefore crucial and important, in her opinion, to be able to rely on a stable supply chain for replenishing stocks.

[134] Ms. H. submitted that when pharmaceutical companies run out of stock or when panic sets in because a company has run out of stock, customers tend to buy up as much product as they can. This situation can easily break a supply chain. Ms. H. further submitted that the rerouting of ships creates a logistical nightmare, and each delay puts the products at risk.

[135] Ms. H. stated that some drugs are produced in very small quantities because they are used by a small number of patients. Often, this kind of drug is produced only twice a year; therefore, if something happens to the product, there is a six-month wait before more is produced, resulting in a weakened supply chain.

[136] Ms. H. argued that sometimes air transport must be used if the Port of Montréal is very congested. She noted, however, that air transport capacity is not as great, and airlines tend to overbook for cargo.

[137] Ms. H. submitted that the supply chain planning time for these products ranges from a few days to several weeks. For example, actions required as a result of the annual closure of the Port of Montréal for the Christmas holidays must be planned in July of the same year. She argued that an immediate shutdown at the Port of Montréal could therefore not be planned. In Ms. H.’s opinion, if activities at the Port of Montréal were halted, containers would no longer be available by ship, and the company would have to use air transport, which its competitors would also be using. She argued that this situation would definitely impact patients, who would not receive their medications.

[138] Ms. H. indicated that the pharmaceutical company deals with a shipping line (freight forwarder), to which it gives instructions on how to transport its products and regarding the port of arrival. The freight forwarder is responsible for transporting the company’s products by plane, ship or truck. Ms. H. acknowledged that freight forwarders like Kuehne & Nagel and DHL offer air transport services for pharmaceutical products.

[139] Ms. P. also works for a pharmaceutical company. She is in charge of the supply and distribution network for this company, which has more than 1,500 employees in Quebec. Her affidavit can be summarized as follows:

[140] Mr. B. also works in the pharmaceutical industry. He is Vice-President, Government Relations, at a multinational pharmaceutical company, and his team interacts with hospitals and buying groups and prepares invitations to tender. His testimony can be summarized as follows.

[141] The pharmaceutical company owns a number of production facilities, including one on the outskirts of Toronto, Ontario. Ninety-nine percent of Canadian production is destined for the Canadian market. There are basically two business lines: hospital products and technical equipment. The main client categories are hospitals, ambulance services and pharmacies, in particular for injectable drugs.

[142] Mr. B. explained that the manufacturing centre makes products using ingredients, parts and components from Puerto Rico, Japan, and Liverpool, United Kingdom. All the materials pass through the Port of Montréal; they are placed in containers in no particular order and come from a number of different locations.

[143] Mr. B. stated that production materials, for example plastic pouches used for solutes, also arrive at the Port of Montréal. Each year, 12 million of these pouches are used and prepared at the manufacturing facility to be filled with sodium chloride, saline or antibiotic solution. Tubing, commonly referred to in French as “quincaillerie” (hardware), is included with this product, and it also arrives in Canada at the Port of Montréal. The pharmaceutical company holds 92% of the solute market in Canada.

[144] Mr. B. stated that the active ingredients used to manufacture medications arrive through the Port of Montréal. The ingredients are delivered as powders and are used for injectable drugs in particular. The powder is mixed with liquids at the manufacturing facility to make, for example, an antibiotic, which is then sent to hospitals.

[145] Mr. B. estimated that more than 150 products supplied by his company are used in Canadian hospitals. The products are ubiquitous throughout Canada’s health care system. He argued that, if the products were to become unavailable, the situation would be serious enough that people would die. According to him, more than five million intravenous products are delivered each month in Canada’s health care system, to 800 hospitals.

[146] With regard to kidney disease and dialysis treatments alone, 50,000 people receive dialysis at home or at the hospital. Approximately 20% of these people receive dialysis at home. Mr. B.’s pharmaceutical company holds 90% of the at-home market. Mr. B. also gave the example of a type of cylinder, a filter for a product for children who need continuous dialysis. The “kit” must be connected to a dialysis machine at the hospital. He stated that the kit must be changed regularly. Blood flows through the cylinder, and a filter traps toxins so that cleansed blood is returned to the body. Multiple kits are required each day for each child. He estimated that 10,000 people need the kits to survive. A shortage would result in children dying. He added that this technology is essential and that there are no competitors or other medical solutions.

[147] Mr. B. stated that his company also supplies a number of other products found in hospital rooms, such as volumetric pumps, drug infusion systems, and filters. He stated that these products are essential to the health of Canadians and are delivered to the Port of Montréal.

[148] Mr. B. further stated that, as a result of production capacity limits and strong market demand, the company has an estimated two to three weeks of reserves. In his opinion, if a product were to run out, the public would panic and there would be a crisis, for both the company and the hospitals.

[149] Mr. B. recalled events in the wake of the hurricane in Puerto Rico a few years ago. The company owns four production facilities there. After the hurricane, stock was quickly replenished; however, he submitted that that type of situation is impossible to predict. He argued that an interruption in the delivery of products through the Port of Montréal cannot be foreseen because it is “outside our internal system” (translation).

[150] Mr. B. stated that his company examined alternatives to the Port of Montréal for product supply. He submitted that the Port of Halifax is constantly congested. His opinion is allegedly based on the experiences of some industry colleagues. In his view, the Port of Halifax is not a solution. As for the ports on the eastern seaboard of the United States, he submitted that there are distance and customs issues that would result in additional production delays. He added that no products go through the Port of Vancouver.

[151] Mr. B. further stated that most of the active ingredients for drug manufacturing come from outside Canada. In his experience, they are often produced in small batches, and orders must sometimes be made six to eight months before the desired delivery date. Delivery delays would definitely affect production of the final product.

[152] Indeed, Mr. B. recalled an incident from January 2019 where products arrived at the Port of Montréal but were in containers and could not be loaded onto trains for delivery to Ontario by the scheduled date. He stated that this situation resulted in additional delays for which the company never received an explanation.

[153] Mr. B. stated that the company has a contingency plan in case it has to procure a product during a disaster or in an emergency. However, there is no guarantee that it will be possible because usually, during a crisis, each country tends to protect its production to protect its market. In Mr. B.’s opinion, the contingency plan is good in theory, but virtually impossible to carry out.

[154] On cross-examination, Mr. B. acknowledged that the company was able to meet the short‑term demand following Hurricane Maria in Puerto Rico. He could not confirm whether a standard exists that requires pharmaceutical manufacturers to keep an 8- to 12-week supply of products.

[155] Mr. B. stated that he knew the roles and responsibilities of health care workers in the event of a drug shortage. He further stated that, in 2017, legislation was passed that required companies like his to disclose any possible shortages so that the market could adjust.

[156] Mr. B. stated that he did not know the terms of the contract between his company and Sigma Santé (a group purchasing organisation) that require his company to provide for at least a three-month supply of products in the invitation to tender.

[157] Mr. B. submitted that a crisis would occur if activities at the Port of Montréal were to cease. In his opinion, air transport is not an option. American ports would not be an alternative, either, given the additional delays that would result. The Port of Vancouver would not be an ideal solution, logistically speaking. The only possibility would be the Port of Halifax, which is already overloaded; however, Mr. B. acknowledged that he was basing his opinion on what he had heard from his colleagues and competitors.

[158] With respect to transportation by air, Mr. B. argued that, unlike a ship, an aircraft cannot accommodate a large number of containers at once. Furthermore, he submitted that the handling of active ingredients when they are being transported by air leaves much to be desired. He shared a personal story: a drum of active ingredients had been damaged and left sitting on the tarmac for hours. Thus, for the transportation of mini-bags for example, his company prefers maritime transport for logistical and predictability reasons.

[159] Mr. B. acknowledged that the company owns a number of plants in the United States, including a manufacturing facility in North Carolina. He did not know whether North Carolina had ever supplied products to Canada.

[160] Mr. B. stated that he did not know that activities at the Port of Montréal were stopped in 2010 as a result of a lockout. However, if product deliveries were delayed, each hospital would want to keep its supplies and would be reluctant to share. He stated that it is difficult to prepare for this type of situation because of “just-in-time” production and factors external to the system that cannot be controlled.

[161] Mr. B. submitted that pharmaceutical companies would have to respond quickly if there were a strike or lockout at the Port of Montréal. There would be additional delays that would disrupt the health care system because of just-in-time production. Patient health would definitely be affected.

2. A Supplier of Health Care Products in Canada: Cardinal Health

[162] Mr. Gilles Thériault, Vice-President, Operations, at Cardinal Health, filed an affidavit. He stated the following:

3. A Group Purchasing Organisation for Hospitals in Quebec: Sigma Santé

[163] Mr. Yves Charbonneau is the Director of Operations at Sigma Santé and is in charge of invitations to tender. Sigma Santé is a non-profit organization established under Quebec’s Act respecting health services and social services whose main role is to manage hospital purchases by tender, primarily in Montréal and Laval. Health care institutions entrust it with their procurement requirements through three- to five-year contracts. In particular, Sigma Santé does business with Cardinal Health.

[164] Mr. Charbonneau stated that there used to be three warehouses in Quebec, whereas now there is only one. He submitted that this has created tension in the supply chain. He also stated that a company such as Cardinal Health, the largest supplier of medical equipment, owns warehouses in Saint-Laurent, Toronto and Vancouver. He further stated that, as in every organization, Cardinal Health has reduced its inventory for “just-in-time” delivery, to avoid inventory loss, among other things.

[165] In Sigma Santé’s supply contracts, a “fill rate” clause states that suppliers must meet their obligations 99% of the time; however, drugs are sometimes out of stock, and it becomes very complicated to manage a product that is running out. Mr. Charbonneau further stated that manufacturers and distributors as well as hospitals are tending to reduce inventory because it is very costly to “store” (translation) and because expiry dates must be taken into account.

[166] Mr. Charbonneau also gave an example of a product (a molecule) whose manufacture was put on hold. Even though there was an alternate source, he stated that the manufacturer was unable to fully meet the demand. The product ran out of stock, and people suffered as a result.

[167] Mr. Charbonneau indicated that Sigma Santé has no contingency plan for responding to a major supply disruption and that its past contracts with pharmaceutical companies have not provided for any such plan either. In his opinion, a shutdown at the Port of Montréal would have an enormous impact. For example, Baxter is the supplier for 90% of the hemodialysis market in Canada and 80% of the market in Quebec. The company’s products pass through the Port of Montréal. Mr. Charbonneau further stated that a number of other suppliers transport their products through the Port of Montréal. Maritime transport is preferred because of better transportation conditions and lower costs.

[168] Mr. Charbonneau defined a shortage as a situation where product delivery dates are unknown. He submitted that, when a need is identified, delivery is expected on the next day, within three days or, at the latest, in one week. If a manufacturer is unable to fulfill an order, it is now obligated by law to disclose the shortage.

[169] In soliciting calls for tender, Mr. Charbonneau requires that manufacturers or distributors be able to provide 12 weeks’ worth of safety stock. This requirement is an industry best practice.

[170] Mr. Charbonneau indicated that he was not able to testify to the level of medicinal or pharmaceutical stock hospitals have on hand. However, he recognized that when there is a shortage of a medication, manufacturers are obligated to note this on the “Drugshortage” website, which is recognized by the Government of Canada.

4. The Hospitals – the CHUM and the MUHC

[171] Witnesses Mr. Serge Migneault, Assistant Director of Procurement, Centre hospitalier de l’Université de Montréal (CHUM), and Mr. Carlo Rossi, Director of Logistics and Procurement, McGill University Health Centre (MUHC), explained what hospital storage spaces are like today.

[172] In 2013, Mr. Migneault’s work consisted of implementing all the logistical arrangements to consolidate three Montréal hospitals into one, namely, the St-Luc, Notre Dame and Hôtel Dieu hospitals.

[173] Prior to 2017, these three hospitals each had larger storage spaces than the current ones at the CHUM. Mr. Migneault indicated that the current CHUM has only 400 square metres for material in transit. This space is used for coding, transferring supplies on compatible platforms and redirecting material to the floors of the CHUM.

[174] The material includes medical supplies such as gloves, compresses, needles, tubing and other material required to provide care. Mr. Migneault stated that 95% of the medical supplies have an expiry date.

[175] This material is not stored. However, Mr. Migneault indicated that some of the products have to be stocked at the CHUM even if the supplier has some in a warehouse. This is the case for Prismasol, for example, which is used in intensive care and has to be administered daily to certain patients because, without it, they would die.

[176] Mr. Migneault added that the CHUM receives four deliveries a day from the distribution centre. Cardinal Health Canada is their main supplier of health products, and it owns warehouses like other suppliers in the health sector. According to the witness, there are the equivalent of 90 trucks per day delivering medical supplies. Those supplies are redirected by robots that transport them from point A to point B. The stock is placed in the care units, which have a capacity of close to 350 different products.

[177] Mr. Rossi testified by affidavit. The MUHC includes the Royal Victoria Hospital, Montréal Children’s Hospital, Montreal Chest Institute, Cedars Cancer Centre, Research Institute of the MUHC, Montreal General Hospital, Lachine Hospital, and the Montreal Neurological Institute and Hospital. Mr. Rossi is responsible for the procurement of medical supplies for all these sites.

[178] The medical supplies include syringes, dressings, gauze, nutrition products, pumps and several other products and equipment needed for the hospitals to function. The MUHC does not have a warehouse. Mr. Rossi added that a stoppage in the supply chain would lead very quickly to a shortage of several critical medical supplies at the MUHC. He added that any delay in deliveries to the MUHC would carry the risk of seriously impacting the health of patients.

[179] As at the CHUM, drugs and medical supplies are delivered daily by truck to the MUHC. Mr. Rossi stated that, because of the continuous supply, shortages are rare—the MUHC has never faced a generalized shortage.

[180] Mr. Rossi indicated that most of the suppliers of drugs and medical equipment are based overseas, in Europe and India. The model that has developed over the years has resulted in a handful of large suppliers becoming the distributors for the entire world, meaning that there are fewer and fewer suppliers.

[181] According to Mr. Rossi, if the MUHC were to be in a shortage situation, it would cause panic in the care units and among staff, patients and the general public; it would significantly disrupt operations and paralyze the MUHC, with all of the potential adverse impacts this would have on patients’ health, safety and lives.

5. An Apprehended Shortage: Expert Evidence

[182] Two expert witnesses testified about the effects that a disruption in the supply of goods and services passing through the Port of Montréal would have on the public. Both witnesses discussed public reaction in instances of perceived or actual shortages.

[183] Dr. Gilles Chamberland is a psychiatrist at the Institut Philippe-Pinel in Montréal. He stated that a lack of medication endangers lives, and a change in medication also puts public health in jeopardy. As well, he stated that not providing hemodialysis to patients who need it could result in their deaths.

[184] Dr. Chamberland submitted that the consequences of a cessation of the supply of goods and services that arrive at the Port of Montréal are twofold: there may be a direct lack of a specific product, and there may be stress or anxiety among vulnerable people who need special medication or care. If there were a shortage of essential goods related to safety and security, and if individuals are already vulnerable and require these goods daily in order to function better, there could be a large impact.

[185] Dr. Chamberland argued that if there were a shortage of essential goods related to the safety and protection of certain people, and if those people are already vulnerable and the goods are part of their daily lives, there would be a big impact. Fear of a disruption in stocks can create shortages. A shortage of required products will affect people directly. Dr. Chamberland stated that, in general, the greater the stressor, the greater the risk of developing a psychiatric or physical problem will be. An increase in risk factors increases the risk of anxiety disorders, depression and suicide.

[186] Dr. Chamberland also stated that the stress level of a person experiencing fear will tend to increase and that, the more critical the subject of the fear is, the greater the stress will be and the more vulnerable the person will become.

[187] Regarding food insecurity in the wake of a shutdown at the Port of Montréal, Dr. Chamberland submitted that rumours would spread and people would do whatever it took to obtain necessary supplies in the event of real, serious shortages. In his opinion, a lack of medications or goods needed for safety, such as condoms or coffee at the Institut Pinel, could also create problems.

[188] Dr. Chamberland recalled the situation in 2009 when the production of a radioisotope manufactured in Chalk River and used in nuclear medicine was compromised. He stated that supplies in hospitals had to be rationed. He added that the Collège des médecins and the Ordre des pharmaciens produced a document containing various recommendations for avoiding drug shortages. He stated that a pharmaceutical company that decides to stop producing a drug must register and post a notice on a website which, in his opinion, makes it possible to control the information and reassure the public. He further stated that this requirement is linked to supply chains and inventories.

[189] Dr. Ghassan El-Baalbaki is a clinical psychologist, full professor and director of graduate studies in the Department of Psychology at the Université du Québec à Montréal (UQAM). He stated that, in terms of health, a disruption in supply that affects the goods or services required for psychological, emotional or mental balance could lead to deterioration in the health and well-being of the people affected. He further stated that a supply disruption creates a direct stressor on the individual, which may result in significant consequences for the individual and for society. He added that a direct stressor on an individual may cause physical or mental illness.

[190] Dr. El-Baalbaki explained that the impact of stress on the health and safety of affected populations will vary from person to person, depending on other factors specific to each person. He argued that consideration must therefore be given to the importance placed by a specific person on a good or service affected by the disruption, and to the person’s latent vulnerability and existing vulnerability.

[191] Dr. El-Baalbaki also stated that each shortage produces a ripple effect. The greater the shortage, the more the stress levels of individuals will increase in relation to the perceived shortage and, if everyone is tense, reactions between individuals will also increase.

[192] Dr. El-Baalbaki added that people who need special care are more vulnerable and more likely to be affected by stress. He also stated that an increase in stressors, for example in people with major depression, leads to a risk of suicide. He further stated that, depending on a person’s level of stress and vulnerability, such stress may push them beyond the breaking point, and they may fall into distress. Dr. El-Baalbaki also testified that, even if an actual shortage does not exist, the mere belief that an essential good or service will be unavailable may result in adverse effects on the person’s health and safety, as if there were an actual shortage.

[193] Dr. El-Baalbaki added that if the supply disruption can be guaranteed not to result in any adverse changes or effects, then there will be no repercussions. However, if stability cannot be ensured and if there is uncertainty about the duration of the disruption and its potential impact, then there will be repercussions on public health and safety. For example, it has been shown that embargoes and economic hardship are linked to an increase in the suicide rate.

6. Evidence by Affidavit

[194] Affidavits other than those mentioned above were filed in evidence by the employer. All the authors of these other affidavits submit that a shutdown or slowdown in operations at the Port of Montréal would cause a shortage of the goods or products on which they depend and would pose a serious danger to public health and safety. In addition, they stated the following:

IV. Positions of the Parties

A. The MEA

[195] According to the employer, the Board must intervene because there would clearly be an immediate and serious danger to the safety or health of the public in the event of a stoppage in longshoring activities at the Port of Montréal. In particular, according to the employer, a strike would lead to:

1. a disruption in logistical supply chains and shortages of essential goods, with all of the consequences that flow from such a situation;

2. psychological and physical illness; and

3. risks related to maritime, port and public security.

4. a. a break in the supply chain for pharmaceutical products, particularly critical medications, which would be delivered late or arrive at their destination already expired;

5. b. a break in the supply chain for de-icing salt, which would result in roads, sidewalks and other paths not being able to be de-iced as efficiently;

6. c. a break in the supply chain for construction materials, in that important and urgent projects would not be able to be completed;

7. d. a break in the supply chain for food; and

8. e. a shortage of fertilizers, which would create significant losses and delays with respect to harvest planning.

[196] The employer argues that these consequences constitute a serious danger to the public and that there are no possible alternatives.

[197] More specifically, the employer argues that the Board must intervene because there would clearly be other immediate and serious dangers to the safety and health of the public in the event of a stoppage or reduction in longshoring activities at the Port of Montréal, including:

[198] According to the employer, no alternative measures could mitigate the stoppage or reduction in the Port of Montréal’s operations, because it would cause a major disruption to the public and generate stress, tension, anxiety, etc. In the employer’s view, other ports, roads, railways and airports would be overloaded and congested.

[199] The employer submitted that only the Port of Montréal has the infrastructure necessary to receive certain goods and the equipment to accommodate large container vessels. According to the employer, any reduction in the MEA’s activities would have an adverse impact on the economy and the psychological welfare of the public.

[200] In his oral arguments, counsel for the MEA submitted that the public interest is the only concern that should guide the Board. He argued that it is clear that the interests of society as a whole and its identifiable groups, including vulnerable persons, must take precedence over particular interests that the Code has expressly provided for. The Board must protect the public, including identifiable groups thereof, from any serious danger to their health and safety.

[201] Counsel for the MEA also cited section 7 of the Canadian Charter of Rights and Freedoms (the Charter) to assert that the protection of the right to life and security of the person is guaranteed to everyone. Counsel for the MEA cautioned the Board with respect to the application of section 87.4 of Code regarding essential services, referring in particular to another Supreme Court of Canada decision, Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44; [2011] 3 S.C.R. 134, which states that “[w]here the law creates a risk not just to the health but also to the lives of the claimants, the deprivation is even clearer.”

[202] Regarding the right to strike, counsel for the MEA pointed to the inherent limits of that right. Referring to the Board’s decision in City of Ottawa, 2009 CIRB 447, and Saskatchewan Federation of Labour v. Saskatchewan, supra, he submitted that the right to strike can be limited in order to maintain services that are essential to public health and safety.

[203] According to counsel for the MEA, the right to strike is exercised as a last resort. He added that arbitration of disputes pursuant to section 87.4 of the Code can be a mechanism for resolving an impasse in collective bargaining, reiterating that the right to strike can only be used once all other possible options have been exhausted in the bargaining context.

[204] Regarding the fact that the union did not present any evidence and simply cross-examined the employer’s witnesses, counsel for the MEA submitted that this shows that the union was unable to contradict the employer’s evidence. The MEA argued that this constitutes an admission by the union that the present application is well founded. According to counsel, it is clear from the Board’s case law that the parties are required to adduce convincing evidence supporting their respective positions.

[205] Counsel for the MEA argued that three highly qualified experts testified and that their testimony should be admitted by the union, which did not adduce any evidence. Counsel for the MEA submitted that in Marine Atlantic Inc., 2004 CIRB 275, the Board considered uncontradicted evidence from a psychiatric expert and came to the conclusion that the decline in Marine Atlantic Inc.’s operations alone would expose the public to serious danger. Counsel argued that the situation is the same in this case, since the Board had the benefit of uncontradicted evidence presented by psychiatric experts.

[206] Counsel for the MEA argued that the Board already established, in Atomic Energy of Canada Limited, 2001 CIRB 122 (Atomic Energy of Canada Limited (122)), that the purposive approach should be used when interpreting section 87.4 of the Code. According to counsel, therefore, section 87.4 must be applied in a way that fulfills its ends and purposes.

[207] Regarding the concept of danger “prevention,” counsel submitted that the Federal Court of Appeal, which upheld the Board’s decision, explained in Chalk River Technicians & Technologists v. Atomic Energy Canada Ltd., 2002 FCA 489; [2003] 3 F.C. 313 (Chalk River), that the wording in section 87.4 of the Code requires only a mere possibility of danger, not a probability. He added that the Federal Court of Appeal, in the same decision, pointed out that the relevant issue is to determine what could pose an immediate and serious danger.

[208] Counsel submitted that, according to the Board’s decision in NAV CANADA, 2002 CIRB 168, it is the danger that must be prevented. He added that the words “immediate and serious” in section 87.4 relate to the danger, not its actual occurrence. In Atomic Energy of Canada Limited (122), supra, the Board applied to the facts the concept of serious danger to public health and determined that a shortage of product necessary for medical purposes would pose a serious danger. Counsel added that, in that decision, the Board also took into account the ban on stockpiling certain hazardous materials; in that regard, he pointed out that, in the case before us, the evidence shows that the stockpile of drugs is very limited and that the above-mentioned principles are therefore entirely applicable here as well.

[209] The word “immediate” in section 87.4 of the Code is synonymous with “soon” (translation), according to counsel, and its meaning must be assessed case by case, as the Federal Court of Appeal stated in Chalk River, supra.

[210] In terms of assessing whether alternatives exist, counsel argued that Board case law shows that it is not sufficient for alternatives to be theoretically available. A true alternative solution must be one that clearly prevents all danger; it must also be readily and quickly available. Counsel referred the Board to its decisions in NAV CANADA; Marine Atlantic Inc.; Atomic Energy of Canada Limited (122); and City of Ottawa, supra.

[211] Counsel concluded his submissions by arguing that the physical dimensions, the international scope of the operations, the scale of the physical equipment, the complexity of the operations, the dangers inherent to the nature of the goods and to the nature of the operations, the phenomenal quantity of goods handled, the multitude of legislative and regulatory instruments involved, the multiplicity of government authorities involved and the interconnectedness of all these variables give the federal work its unique and also extraordinary features. He cited the decision rendered by the Supreme Court of Canada in British Columbia (Attorney General) v. Lafarge Canada Inc., 2007 SCC 23; [2007] 2 S.C.R. 86, which states that “[t]he transportation needs of the country cannot be allowed to be hobbled by local interests... Effective regulation of harbour facilities [is] as essential to shipping as airports to aeronautics.”

[212] Counsel for the MEA asked the Board to grant the employer’s application for the maintenance of essential activities and to determine that all of the activities carried out by the employees who are members of the union constitute essential activities within the meaning of section 87.4 of the Code, in the event of a strike or lockout.

B. The MPA

[213] Counsel for the MPA argued that the MPA was intervening because it was directly concerned in this matter, and he pointed to all of the people working at the MPA, namely, office employees, blue collar workers, security personnel, executives, customs officials, RCMP staff and even Carcajou staff. Counsel reiterated the MPA’s safety obligations under the Canada Marine Act.

[214] Counsel specified that the MPA has an obligation to ensure that ships can dock safely and to ensure the safe unloading and loading of ships, although it is the MEA that is responsible for the deployment of workers. Counsel added that when customs officials want to inspect containers on ships, they require the services of longshore workers, who are also the ones who inform customs authorities when they observe irregularities. For all practical purposes, counsel argued, the relationship between the MPA and the MEA is akin to subcontracting. Indeed, counsel submitted, one cannot talk about the MEA without referencing the MPA. He added that what is in fact happening is that the employees of the MEA’s subcontractor are threatening a shutdown of the Port of Montréal.

[215] Counsel referred the Board to the Supreme Court of Canada’s decision in Services ménagers Roy ltée c. Syndicat national des employés de la C.S.R de l’Outaouais (C.S.N.), 1982 CanLII 3460 (QC TT), which held that a subcontractor’s employees cannot have more power than their employer. He argued that such a situation exists in this case.

[216] Meanwhile, counsel submitted, in the case before us, the union is trying to exploit the public by attempting to trigger a strike for the purpose of increasing its members’ salaries—a strike that will lead to shortages that will necessarily impact the public.

[217] Counsel also referred the Board to NAV CANADA, supra, in which it was held that air transportation of medicinal drugs justified maintaining the services in question to ensure public safety. He added that the evidence in this case also shows medicine being transported aboard vessels and that, based on that fact alone, it is justified to maintain longshoring services at the Port of Montréal.

[218] Counsel added that the union knows that the ship containers contain dangerous goods. He pointed out that the collective agreement between the longshore workers and the MEA makes abundant mention of health and safety issues and contains language concerning the handling of dangerous goods containers by longshore workers.

[219] Counsel added that North American and global industries ship goods through the Port of Montréal. Goods such as steel, lumber, food, pharmaceutical products, weapons and explosives are shipped through the Port of Montréal, and it is impossible to assert that those goods do not pose any risk to public health and safety. Furthermore, counsel argued, the evidence revealed that the goods stored in the containers are not subdivided.

[220] Counsel concluded by arguing that the union did not adduce evidence and that, accordingly, the employer’s evidence is not contested. He asked the Board to declare that all longshoring activities at the Port of Montréal are essential services which must be maintained in the event of strike action at the Port of Montréal.

C. The SFC

[221] Counsel for the SFC stated at the outset that he agreed with the MEA’s arguments concerning the absence of evidence adduced by the union. According to the SFC, a waiver of this kind constitutes an admission as to the merits of the MEA’s application.

[222] Counsel explained that the SFC represents ship owners involved in international maritime trade. Its members are regular customers of the Port of Montréal. They travel there via the St. Lawrence River, which is very narrow and shallow at certain points. That is why the vessels are piloted by members of the Corporation des pilotes du St-Laurent, who are very familiar with the River and its hazards. According to counsel, some 2,000 vessels are piloted to the Port of Montréal in this way every year.

[223] Counsel added that the narrowness and shallowness of the River and the limited number of mooring sites are major risk factors for ships. Added to this are the winter conditions—ice and high winds—that can lead to what is known as anchor drag. When this occurs, the ship’s anchors are no longer able to hold it in place.

[224] According to counsel, a work stoppage at the Port of Montréal would force many ships to anchor in the River, resulting in significant hazards for the vessels and their crews. The large number of anchored ships would significantly reduce the navigable space and might cause collisions and serious consequences, such as spills.

[225] Counsel argued that a shutdown of the Port of Montréal would be comparable to closing the Champlain Bridge, the Turcot Interchange and the Jacques Cartier Bridge all at the same time; in other words, tremendous chaos would result.

[226] Counsel submitted that the ports of Halifax or New York cannot serve as alternatives for SFC members. He explained that during the 2010 lockout, OOCL attempted to divert one of its vessels to Halifax, and once the vessel was unloaded, the company quickly realized that the containers could not be handled on site. As a result, OOCL decided to reload the containers onto the vessel. According to counsel, rail capacity at the Port of Halifax is too limited; accordingly, it cannot serve as an alternative.

D. The Union

[227] Counsel for the union argued that, although no service is necessary under section 87.4 of the Code, the union has committed, as Mr. Murray testified, to maintaining services for Oceanex, Connaigra and Avalon vessels, heading to or coming from Newfoundland and Labrador.

[228] Yet the MEA’s position, according to union counsel, is that all longshoring activities must be maintained in the event of a strike at the Port of Montréal. That means, she argued, that there is little room for negotiating an agreement. She added that since the right to strike is guaranteed by the Charter, maintenance of activities during a strike must necessarily constitute an exception.

[229] According to counsel, the employer’s position in this matter would lead one to conclude that our society is logistically organized so as to preclude any recourse to strike action. She argued that such a position is clearly unreasonable.

[230] Union counsel submitted that the employer had the burden of demonstrating that longshoring services at the Port of Montréal are necessary in order to prevent a serious and immediate danger to public health or safety, and that the employer had failed to meet that burden because it presented nothing other than inconveniences and economic interests.

[231] Counsel argued that the right to strike is set out in the Code and was recognized by the Supreme Court of Canada in Saskatchewan Federation of Labour v. Saskatchewan, supra, and that it is essential to ensure a certain balance of power at the bargaining table. Furthermore, she pointed out that, contrary to the employer’s allegation, the application before the Board is not constitutional in nature and that the union is not in any way challenging the laws in force.

[232] Counsel reminded the Board that the various international labour law conventions ratified by Canada provide for the right of workers to strike, in full respect of the laws of each country. She also referred to the Sims report entitled Seeking a Balance: Canada Labour Code, Part I, Review (Ottawa: Human Resources Development Canada, 1995) (the Sims Report), which mentions that no suggestion was made to the Commission to abolish the right to strike or lockout on the premise that this right constituted a danger to public health and safety. At the time, the Sims Commission added that no circumstance provided for in the Code justified a total ban on the right to strike or lockout.

[233] Counsel then went on to state that the Board’s jurisprudence is consistent with international law and the teachings of the Supreme Court of Canada regarding the right to strike. She submitted that the Board’s mandate is limited to ensuring, in the event of a strike or lockout, that the necessary activities are maintained to prevent serious and immediate danger to the health and safety of the public. Thus, the Board does not take economic considerations into account. According to counsel, the onus was on the employer to show by concrete evidence that the danger exists and that it is serious and immediate. The employer must demonstrate a causal nexus between the strike and the serious and immediate danger to public health and safety, and not simply raise hypotheses. She referred the Board to its decision in Aliant Telecom Inc., 2003 CIRB LD 947.

[234] According to counsel, the employer did not demonstrate a direct nexus between the strike and the serious and immediate danger to public health and safety, but merely pointed to hypothetical scenarios unrelated to Port of Montréal activities. Indeed, such hypothetical speculation characterized the entire testimony offered by Dr. El-Baalbaki, who was called as an expert witness. She added that the Board must find that no evidence has been adduced of the existence of essential goods that necessarily have to transit through the Port of Montréal. Counsel submitted that the employer cannot discharge its burden by simply citing an adverse collateral impact on its clients or the public.

[235] Concerning immediate risk, counsel argued that it means a risk that is likely to materialize soon or within a short period of time—not just at any point in the future. In that regard, she cited the Board’s decision in Aliant Telecom Inc., supra. Evidence of likelihood must be adduced by the applicant; that was not done, according to counsel. She argued that the impact of the strike or lockout on public health and safety needs to be foreseeable in time.

[236] Counsel submitted that the employer adduced hypothetical evidence of shortages, but never pinpointed which essential goods would be affected by a strike and never identified who would suffer from it. She added that none of the employer’s witnesses testified in that regard; instead, the employer dwelt on hypothetical shortages, in a very general way.

[237] In fact, counsel casted doubt on the potential for such shortages, arguing that Canada shares one of the longest borders in the world with the world’s greatest economic power, the United States.

[238] With respect to serious danger, counsel referred the Board to Canadian National Railway Company, 2005 CIRB 314. She argued that, while a temporary stoppage of longshoring activities at the Port of Montréal would certainly cause inconveniences with respect to the transportation of goods and complicate the logistics of supply chains, these assertions are not sufficient or even relevant, in her opinion, for the application of section 87.4 of the Code.

[239] Counsel added that, in Atomic Energy of Canada Limited, 2015 CIRB 774, the Board noted that the burden of proof is borne by the party seeking to limit the exercise of the right to strike or lockout and that the Board must make its decisions based on evidence and reasonable likelihoods, rather than hypothetical “black swan” events, that is, unforeseeable worst-case scenarios. Counsel submitted that the employer’s evidence dealt almost exclusively with descriptions of hypothetical impacts on Port of Montréal clients and inconveniences for users.

[240] Counsel stated that the affidavits filed by the employer do not help it in any way to discharge its heavy burden, as almost all of the allegations in the affidavits prepared by the MEA have no direct connection to longshoring activities at the Port of Montréal. Moreover, she submitted, the lockout of 2010 demonstrated that supply alternatives do in fact exist, and she noted that, at the time, neither the union nor the employer felt that longshoring activities constituted an essential service. She added that there was no activity for six days at the Port of Montréal, either inbound or outbound.

[241] For counsel, the employer’s evidence demonstrates that its primary goal is not to ensure public health and safety, but to impede the right to strike so that the Port of Montréal can continue to play its role as the city’s economic engine.

[242] Counsel submitted that, contrary to the employer’s assertions, there are other supply solutions. She referred the panel to the testimony of Messrs. Daoust and Dagenais, who stated that there was competition with other ports—those on the east coast as well as the west coast. Mr. Slack testified that, in his view, the truckers’ strike at the Port of Vancouver enhanced Montréal’s status as an alternative to Vancouver. The competition between ports is considerable, counsel submitted, and it shows that, in terms of supplying the public in the event of a strike, there is more than one port to choose from.

[243] The employer’s argument that the situation has changed and that transportation supply chains have evolved towards the “just-in-time” model are merely economic arguments not within the ambit of the Board on the issue related to section 87.4 of the Code.

[244] Counsel argued that, according to the employer’s allegations, the stoppage or reduction of longshoring activities at the Port of Montréal would result in the following: a shortage of critical and essential goods; the presence of perishable or living goods; increased delays in all urgent situations that depend to varying degrees on marine transportation services; stock shortages and depletion and the consequences on supply for the public; and supply chain disruption and the disastrous consequences thereof. Yet the employer, she asserted, has not adduced any convincing evidence whatsoever of imminent shortages, depletion of inventory or serious and immediate dangers caused by a work stoppage. Nor has the employer presented any convincing evidence regarding essential and indispensable goods.

[245] With respect to safety and security at the Port of Montréal, counsel added that the MEA showed that several major players are ensuring the security of the Port and the public, including the RCMP, the Sûreté du Québec, the CBSA and Transport Canada. She argued that these agencies can intervene at any moment, even during a potential future labour conflict.

[246] Counsel for the union pointed to the testimony of Mr. Belzile regarding the risks of congestion along the St. Lawrence River in the event of a strike. Mr. Belzile testified that the vessels can be anchored in fair or foul weather at the Port of Montréal. He indicated that in inclement weather, if ships need to remain anchored, the Port of Montréal requests that a pilot be on board even when the ship is stopped so that the pilot can resume control of the vessel if it starts to drag on its anchor.

[247] Regarding a disruption in the supply chain of pharmaceutical products, counsel argued that no witness had testified that there would definitely be a shortage of any vital medications as a result of a labour conflict at the Port of Montréal.

[248] She submitted that, in fact, no pharmacist had testified or filed an affidavit, whereas the evidence indicates that these are the professionals who have expertise in the management of drugs and shortages in Canada. In that regard, she referred to the testimony of Mr. Charbonneau from Sigma Santé.

[249] According to counsel, the employer’s evidence did not show, with respect to the supply of medicine, that the pharmaceutical industry depends on the Port of Montréal. She added that it was demonstrated that the preferred means for transporting pharmaceuticals was by air and that this mode of transportation was also prioritized for all products likely to experience shortages. She referred the Board to exhibits I-32 and I-33 and to the testimony of Ms. Amiel, who indicated that there has been a trend towards more air freight over the past 10 years. She referred the Board to the report by Transport Canada and a KPMG study showing that air freight is generally preferred by the pharmaceutical industry. She added that the evidence revealed that Air Canada offers a special service adapted to the specific needs of various industries, referring to Ms. Amiel’s doctoral thesis and to exhibit I-33.

[250] Counsel argued that other marine shipping options exist if there is a strike at the Port of Montréal. She submitted that several Canadian ports, notably Vancouver, Halifax and Saint John, have the facilities required to mitigate the impact of a labour conflict at the Port of Montréal. She referred the panel to the testimony of Messrs. Dubreuil and Slack and Ms. Amiel. She added that the ports of the United States’ eastern seaboard could also be used. Thus, counsel submitted, should there be a shortage of any essential products, there are other means of procuring them, including through other ports on the North American continent. Counsel added that Mr. Slack had testified that the Port of Halifax has been operating at 50% of its capacity since the Port of New York has been able to accommodate larger vessels.

[251] As for the employer’s argument that it is impossible to locate specific merchandise in a container, counsel submitted that the testimony of Mr. Belzile shows that it is possible to remove a container while taking care to follow safety procedures, specifically in order to avoid any stress on the vessel. Indeed, that is reportedly the method used by longshore workers when loss prevention officers ask them to remove a specific container aboard the vessel. Mr. Couture admitted in testimony that it was not “ideal” (translation), but possible nonetheless. According to counsel, the real fear for the MEA, the MPA and the SFC is that their business partners will transfer their activities to their competitors.

[252] Counsel submitted that the application of section 87.4 of the Code is an exceptional measure. She argued that the MEA’s evidence focused on the importance of activities at the Port of Montréal, but that the MEA never addressed the question of maintaining necessary activities to prevent immediate and serious danger to public health and safety.

[253] Counsel added that, beyond the availability of alternatives in the event of strike action, the union still does not know which “critical or essential” (translation) products would run out, nor as of when or how such a shortage is imminent and entails a serious risk to public health and safety.

[254] Counsel concluded by emphasizing the radical nature of the employer’s demand that all longshoring activities be maintained in the event of strike action. She argued that the calling of numerous witnesses to testify, the affidavits produced by the employer and the employer’s motion for the disqualification of a Board panel member are merely dilatory tactics designed to frustrate the union’s legitimate right to exert pressure as required to establish a fair balance of power at the bargaining table.

E. The ILA

[255] Counsel for the ILA began by stating that he had heard no substantive evidence from the MEA. He added that this situation is an example of the worst that can be seen in the labour relations arena. In his view, it had been a parade of witnesses trotting out assumptions and suppositions with no concrete evidence.

[256] Counsel referred the Board to its decisions in NAV CANADA and Marine Atlantic Inc., supra, and La Coopérative de transport maritime et aérien, 2015 CIRB 767. In those cases, direct and very explicit evidence was established that linked strike action to impacts on public health and safety. Counsel argued that the case at hand mainly concerns a transaction of financial interests.

[257] Counsel submitted that halting a shipping line’s operations is not a matter of public health and safety. He noted that, in the past 20 years, there have been no strikes at Canadian ports, whereas there have been two lockouts, one in Montréal in 2010 and one in Vancouver in 2019. Neither of those lockouts necessitated resorting to section 87.4 of the Code.

[258] Regarding the employer’s allegations with respect to the supply chain, counsel submitted that this case is the first of its kind in the longshoring sector. He raised questions about the impacts of a possible strike in the rail or trucking industries, which are also part of the supply chain invoked by the employer.

[259] Section 87.4 of the Code specifies the measures necessary to prevent an immediate and serious risk to the health and safety of the public. Such a situation must be genuine, real and foreseeable. Counsel referred to the Board’s decisions in Atomic Energy of Canada Limited (122); and NAV CANADA, supra.

[260] Counsel added that, clearly, not all products entering the Port of Montréal, such as toasters, clothing and automobile parts, are necessary for the health and safety of the public. He raised the question of the number of containers of pharmaceuticals that come through the Port of Montréal every week. He added that if these containers are so necessary, the ships should transport them through other ports. The Port of Halifax does not have to unload the thousands of products destined for superstores and other large retailers. Those products can remain on the ships in the event of strike action.

[261] Counsel also raised the question of the need to unload the entire vessel in the event of labour strife when thousands of products are not essential to public health and safety. He argued that, contrary to the employer’s assertions, 110 million people are not going to suffer the impact; the number would not even reach 35 million. The dispute, argued counsel, is local in nature.

[262] The only evidence that may have weight in this case is the evidence relating to the pharmaceutical industry. However, the employer’s evidence in that regard does not meet the requirements of section 87.4 of the Code.

[263] Counsel submitted that the supply chain alleged by the employer is the one put in place by retail and manufacturing companies. He added that shippers no longer want to keep goods in storage and that this supply chain is very fragile. As an example, he pointed to ingredients for pharmaceuticals sourced from India: but who can ensure that the products will be loaded into trucks in India, then delivered to the Port of Mumbai, then transferred from one ship to the other in a different country, like Italy? In other words, counsel submitted, the supply chain is fragile and can be broken in so many places that it would be impossible to attribute a break in the supply chain solely to the longshore workers at the Port of Montréal.

[264] Beyond supply chain concerns, counsel argued that other circumstances, including natural phenomena, may also delay shipping, such as storms at sea, mechanical problems, an earthquake in Italy, ice in the sea lanes or problems with truck transport or with the cranes. Ice jams lasting five days have been experienced in the past, natural interruptions and disruptions occur—yet nothing was said in that regard. Counsel also cited the hurricane in Puerto Rico as an example. There are in fact numerous hazards, both man-made and natural, that can also cause delays.

[265] Counsel raised the potential for a catastrophe such as a fire or work stoppage at the pharmaceutical plant. How can longshore workers be held solely responsible for a break in the supply chain when every link in that chain is involved as well and should have alternative or contingency solutions?

[266] As for the transportation of products by air as an alternative in the event of a strike, counsel submitted that pallets of products are transported in this way by the thousands. In case of emergencies, he submitted, pharmaceuticals can be transported by air. Transport on vessels takes from 45 to 80 days, counsel argued: how immediate and serious can the danger be if it is possible to wait so long?

[267] According to counsel, any port in Canada can unload the containers of a vessel in the event of a strike at the Port of Montréal. Contrary to the employer’s assertions, it is possible to segregate the containers on a ship; every port does it.

[268] Regarding the MEA’s argument that the situation at the Port of Montréal has changed since 2010, it has no bearing on the present situation. Counsel asked the Board to consider the fact that the employer triggered a lockout in 2010.

[269] Counsel submitted that the Preamble to the Code is very clear: it advocates for the need to promote the well-being of employees and employers through the encouragement of free collective bargaining and the constructive settlement of disputes.

[270] Regarding containers with hazardous materials, counsel noted that the 72-hour strike notice will make it possible to empty the Port of such containers. As for the safety argument and the fact that there will be excessive traffic in the River if there is a strike, counsel submitted that the Coast Guard has the obligation to protect the public on the St. Lawrence and that it is not the MEA’s responsibility.

[271] Counsel argued that the employer has not discharged the burden of proof and that, in this situation, the union does not have to adduce evidence. He added that the employer tried to show that there would be generalized panic if operations at the Port of Montréal were to stop, yet all of the examples it gave merely diverted attention towards hypothetical dangers. Contrary to the situation in NAV CANADA; and Atomic Energy of Canada Limited (122), supra, counsel argued, there is no factual evidence.

[272] Counsel submitted that the problem of stock and inventory raised by the pharmaceutical industry witnesses is strictly a business decision and that it is not up to the longshore workers to resolve that situation.

[273] In fact, counsel argued, all of the employer’s evidence is based on a supply chain that is only as strong as its weakest link. According to counsel, that chain has dozens of weak links, and the blame for it all cannot be laid at the feet of the longshore workers. Canada and the rest of the world are engaged in that supply chain. Counsel asked that the employer’s application be dismissed outright.

V. Analysis and Decision

[274] The MEA is seeking an order from the Board that all longshoring activities be maintained in the event of a strike at the Port of Montréal, in the name of protecting the public interest. The MEA is of the opinion that this concept must be placed ahead of individual interests, in this case, ahead of the union’s economic interests. The argument, in other words, is that, in the public interest, the right to strike cannot be exercised.

[275] The MEA also cites section 7 of the Charter to affirm that everyone has the right to life and security of the person. Section 7 of the Charter reads as follows:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[276] The union, for its part, submits that the right to strike is set out in the Code, that it is protected by the Charter, and that the Supreme Court of Canada confirmed in 2015, in Saskatchewan Federation of Labour v. Saskatchewan, supra, that this right is constitutionally protected.

[277] The Board does not intend to comment on all of the examples of likely disruptions as a result of a strike at the Port of Montréal cited by counsel for the MEA. For example, a potential break in the supply chain for building materials, fertilizers or sugar could certainly have consequences for businesses, including layoffs, and could certainly undermine supply chain logistics in the event of a protracted strike. Section 87.4 of the Code does not authorize the Board to consider the potential economic impact of a labour dispute on an industry. None of the direct evidence allows the Board to find that those inconveniences would cause an immediate and serious danger to the safety or health of the public within the meaning of section 87.4 of the Code. The same is true for food, fruits and vegetables imported through the Port of Montréal. No evidence demonstrates that a shortage of these imported commodities would endanger public health.

[278] For the purposes of its analysis, the Board will examine the following four components of the evidence:

• 1) Drugs and pharmaceutical products;

• 2) De-icing salt;

• 3) Risks of congestion and safety measures at the Port;

• 4) Alternative solutions in the event of a strike or lockout.

A. Applicable Law

[279] The right to strike is protected by the Code, as is the employer’s right to lockout. Unless there is clear and convincing evidence, and there is none in this case, maintaining all longshoring services at the Port of Montréal in the event of a strike, as the employer is asking, would render the right to strike ineffective.

[280] Both the union and the employer referred to the principles arising from the Board’s case law on essential services. Indeed, since 1999, the Board has issued several decisions regarding the interpretation of section 87.4 of the Code. A number of those principles bear repeating here.

[281] The so-called essential services regime, including the Board’s power to determine the circumstances in which some activities must be maintained during a strike or lockout, is established in section 87.4 of the Code, which reads as follows:

87.4 (1) During a strike or lockout not prohibited by this Part, the employer, the trade union and the employees in the bargaining unit must continue the supply of services, operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public.

(2) An employer or a trade union may, no later than fifteen days after notice to bargain collectively has been given, give notice to the other party specifying the supply of services, operation of facilities or production of goods that, in its opinion, must be continued in the event of a strike or a lockout in order to comply with subsection (1) and the approximate number of employees in the bargaining unit that, in its opinion, would be required for that purpose.

(3) Where, after the notice referred to in subsection (2) has been given, the trade union and the employer enter into an agreement with respect to compliance with subsection (1), either party may file a copy of the agreement with the Board. When the agreement is filed, it has the same effect as an order of the Board.

(4) Where, after the notice referred to in subsection (2) has been given, the trade union and the employer do not enter into an agreement, the Board shall, on application made by either party no later than fifteen days after notice of dispute has been given, determine any question with respect to the application of subsection (1).

(5) At any time after notice of dispute has been given, the Minister may refer to the Board any question with respect to the application of subsection (1) or any question with respect to whether an agreement entered into by the parties is sufficient to ensure that subsection (1) is complied with.

(6) Where the Board, on application pursuant to subsection (4) or referral pursuant to subsection (5), is of the opinion that a strike or lockout could pose an immediate and serious danger to the safety or health of the public, the Board, after providing the parties an opportunity to agree, may, by order,

(a) designate the supply of those services, the operation of those facilities and the production of those goods that it considers necessary to continue in order to prevent an immediate and serious danger to the safety or health of the public;

(b) specify the manner and extent to which the employer, the trade union and the employees in the bargaining unit must continue that supply, operation and production; and

(c) impose any measure that it considers appropriate for carrying out the requirements of this section.

(7) On application by the employer or the trade union, or on referral by the Minister, during a strike or lockout not prohibited by this Part, the Board may, where in the Board’s opinion the circumstances warrant, review and confirm, amend or cancel an agreement entered into, or a determination or order made, under this section and make any orders that it considers appropriate in the circumstances.

(8) Where the Board is satisfied that the level of activity to be continued in compliance with subsection (1) renders ineffective the exercise of the right to strike or lockout, the Board may, on application by the employer or the trade union, direct a binding method of resolving the issues in dispute between the parties for the purpose of ensuring settlement of a dispute.

[282] In Aéroports de Montréal, 1999 CIRB 23, the first Board decision in which it interpreted the provisions of the regime that came into effect on January 1, 1999, the Board clearly described its role and set out the parameters taken into consideration for identifying the nature of the services deemed essential to be maintained in the event of a strike or lockout. It stated as follows:

[16] As a whole, the provisions of section 87.4 establish a scheme that ensures that services deemed essential to public safety or health will continue during a work stoppage. The Code does not set out a framework for essential services but leaves it up to the Board to rule on this issue, inter alia, by issuing an order. The Board only intervenes if the parties cannot come to an agreement or if their agreement proves unsatisfactory. Thus, even though the right to strike goes with collective bargaining, Parliament has provided that the protection of public safety and health cannot be ignored.

...

[21] ... The Board is therefore responsible for determining, based on the specific circumstances of each case, which services are essential to the safety and health of the public in the event of a work stoppage. The essential test is as follows: “to the extent necessary to prevent an immediate and serious danger to the safety or health of the public” (emphasis added).

(emphasis added)

[283] The express intent of section 87.4 of the Code is to prevent immediate and serious dangers to public health or safety, which in some ways echoes the employer’s public interest arguments and the emphasis to be placed on protecting the Charter rights to life and security of the person. In City of Ottawa, supra, among other decisions, the Board has held that section 87.4 of the Code is a “public interest” provision:

[5] Section 87.4 of the Code is a “public interest” provision, added to the statute in 1999. While the Preamble to Part I of the Code expresses Parliament’s commitment to free collective bargaining, Parliament has also seen fit to impose certain limitations on the ability of employers and unions to use economic sanctions to enforce their demands. Included in these limitations are measures to protect the public from immediate and serious danger to their safety or health during a labour dispute. Section 87.4 was enacted to take into account the fact that labour disputes regulated by the Code normally take place between two private parties, who cannot always be relied upon to keep the public’s interest foremost during a dispute (see Andrew C.L. Sims, Seeking a Balance: Canada Labour Code, Part I, Review (Ottawa: Human Resources Development Canada, 1995) (“the Sims Report”) at Chapter 10). When there is a question as to the services and activities that must be continued during a labour dispute in order to prevent an immediate and serious danger to public health or safety, the Board is mandated as the appropriate authority to make this determination.

(emphasis added)

[284] Thus, the Board carries out dual responsibilities when it is seized of a question concerning the maintenance of certain activities pursuant to section 87.4 of the Code. It must consider the public’s right to protection against a danger to its safety or health while bearing in mind the Preamble to the Code, which describes the Parliament of Canada’s commitment to the practice of free collective bargaining.

[285] In that sense, the union argued, the right to strike is constitutionally protected. This issue was also raised in Société de transport de l’Outaouais, 2017 CIRB 849. In that matter, the union argued that the Board needed to prioritize collective bargaining, in light of the constitutional recognition of the right to strike in Saskatchewan Federation of Labour v. Saskatchewan, supra. The Board noted the following:

[161] The union argues that the Board should reassess this determination of balance and jurisprudence by prioritizing collective bargaining, in light of the constitutional recognition of the right to strike in Saskatchewan Federation of Labour v. Saskatchewan, supra.

[162] The Board is of the view that it is not necessary to question this analysis because the legislative intent and the purpose of the regime for maintaining services under the Code specifically reflect the importance and necessity of protecting the right to strike. In NAV CANADA, 2002 CIRB 168, the Board stated the following in that regard:

[227] ... Any restrictions on the right to strike, even though imposed in the interests of health or safety, must appropriately respect the importance of the right in the context of the Code. Free collective bargaining is seriously compromised if the right to strike may not be exercised by employees to counteract the employer’s economic power. ...

[228] Accordingly, it is the Board’s view that any abridgement of the right to strike must be to the minimum level required to cautiously protect the health or safety of the public. Accordingly, if the Board is assured that the risk or danger is not “immediate” or “serious,” or if the operation of facilities, production of goods or supply of services in question can be limited or will not reasonably be necessary to protect public health or safety or to prevent an immediate and serious danger, the Board should determine such services not to be required.

(emphasis added)

[163] Similarly, in Fredericton International Airport Authority Inc., 2012 CIRB 641, the Board recognized the importance that must be given to collective bargaining. In that matter, the Board was to determine whether it would exercise its discretion to order a binding method of resolution pursuant to section 87.4(8) of the Code:

[11] The Preamble to the Code sets out the philosophy and values that underlie all of the statute’s provisions. In particular, the Preamble reflects Parliament’s support for collective bargaining as the preferred method of dispute resolution. When seized with an application under section 87.4, the Board’s duty is to interpret and apply this provision in a way that promotes the statutory objectives of the Code (Canadian National Railway Company, 2005 CIRB 314).

[12] Section 87.4(8) of the Code creates an exception, in certain circumstances, to this commitment to free collective bargaining (see City of Ottawa, 2009 CIRB 447). In the Board’s view, provisions such as this, which deprive the parties of their statutory rights, should be carefully and narrowly construed.

[13] Superficially, one might find it reasonable to conclude that a work stoppage that presently involves only five out of seventeen active employees in the bargaining unit could have little impact on the employer’s operations. However, in this case, the union vehemently denies that the strike by the members of its bargaining unit at the Fredericton airport has been ineffective, and affirms its belief that the labour dispute can still be resolved through meaningful negotiations. Whether the union’s belief is well-founded or not, under these circumstances it would be contrary to the purpose and objectives of the Code for the Board to prevent or interfere with the prospect of a negotiated settlement. In balancing the various rights and obligations contained in the Code, the Board must, to the greatest extent possible, give effect to the statutory right of employees and their employers to engage in free collective bargaining and make use of such economic sanctions as are available to them to enforce their respective demands. Accordingly, the presumption in favour of collective bargaining is a strong one and significant evidence is required to persuade the Board to remove that right.

(emphasis added)

[164] In light of the decisions cited above, any restriction of the right to strike must be limited to what is strictly necessary and solely to ensure the health and safety of the public. Moreover, the burden of proof is on the party seeking to have certain activities maintained despite a strike or lock-out, that is, the employer in the present matter.

(emphasis added)

[286] In light of the decisions cited above, it is important to note that section 87.4 of the Code does not authorize the Board to make a determination on other public interest questions on which a strike or lockout, in this case in the longshoring sector, might have an impact. This excludes, for example, a disruption of the Canadian economy (see Canadian National Railway Company, supra).

[287] Indeed, it is interesting that, before adopting legislation instituting the essential services regime, Parliament studied the issue of maintaining longshoring services and noted the numerous strikes taking place in that industry. In Hudson Bay Port Company, 2004 CIRB 296, the Board referred to Parliament’s approach, which ultimately decided to protect the grain industry when it introduced the essential services regime:

[24] Prior to the adoption of this section, Parliament had become increasingly concerned about the impact that the frequent number of strikes and lockouts in the West Coast Ports, particularly in the longshoring industry, was having on the grain industry. The issue as to how to protect the distribution of grain in this country from work stoppages in the longshoring industry was studied by the Task Force of labour relations experts, chaired by Andrew Sims, that had been mandated by the Minister of Labour to conduct a comprehensive and independent review of the Code. Work stoppages in the longshoring industry, on the West Coast, were crippling the movement of grain flowing through the ports. In many instances, Parliament had little choice, given the importance of the grain industry to the national economy and the impact the strikes and lockouts were having on grain farmers, but to end these disputes by passing back-to-work legislation.

[25] Following the release of Seeking a Balance: Canada Labour Code, Part I, Review (Ottawa: Human Resources Development Canada, 1995) (the Sims Report), section 87.7 was added to Part I of the Code.

[26] Section 87.7 sets out the longshoring services that must be provided to the grain industry in the event of a strike or lockout not prohibited by Part I of the Code. As the Board stated in British Columbia Terminal Elevator Operators’ Association, supra:

[13] It appears that section 87.7 of the Code was the measure eventually enacted by Parliament most specifically aimed at addressing the dual problem identified by the Sims Report, that is, the need to reduce disruptions in grain handling due to work stoppages in other port industries and thus maintain our national reputation for reliable grain deliveries, and the desire to eliminate the recurring resort to back-to-work legislation, which in the past had arisen because of the impact of strikes and lockouts on grain farmers...

(pages 10–11; and 75)

[27] Section 87.7 appears to have addressed the dual problem. Firstly, while a work stoppage in the longshoring industry might end up crippling the distribution of all other commodities flowing through the ports, it will have little or no impact on the export of grain. During the work stoppage, employers in the longshoring industry, their employees and the bargaining agents must continue to provide, to the grain industry, the services set out in section 87.7(1). Secondly, the reliance on back-to-work legislation to end a work stoppage in the longshoring industry will be reduced. It will no longer be necessary to legislate longshoremen and longshore foremen back to work in order to protect the distribution of grain. In fact, since the coming into force of section 87.7 of the Code, Parliament has not been called upon to pass back-to-work legislation to end a work stoppage in the longshoring industry. Lastly, the right to strike or lockout in both industries is maintained. Section 87.7 does not prevent a work stoppage in the longshoring industry. It merely sets out the longshoring services that must continue to be provided, solely in relation to grain, by employers, employees and bargaining agents, in the longshoring industry. Similarly, section 87.7 does not take away, or limit in any fashion, the right to strike or lockout in the grain industry. For example, even if the Board were to find that section 87.7 applies in this case, that section would not prevent a legal work stoppage vis-à-vis the grain handling activities related to the operation of the grain terminal and transfer elevator. It would only oblige HBPC, its employees and the bargaining agent to continue the provision of the specified section 87.7(1) longshoring services, in the event of a work stoppage at HBPC, assuming that the distribution of grain through the grain terminal and transfer elevator had not already been brought to a standstill by the strike or lockout.

(emphasis added)

[288] As for the phraseology used by Parliament in section 87.4 of the Code, such as “prevent [a]... danger” and “immediate... danger,” the Board has also had the opportunity, since 1999, to look at these concepts and interpret them.

[289] In NAV CANADA, supra, the Board determined that it was not necessary for the danger to be immediate or for an actual occurrence, accident or tragedy to be apprehended, explaining that it is sufficient for the services or facilities in question to be necessary to prevent an immediate and serious danger:

[229] Some consideration of the level of necessary abridgement of the “right to strike” intended by the Code is therefore important. First of all, if section 87.4 is considered in its entirety, it is evident that both the employer and the trade union must continue the supply of services and operation of facilities. The obligation is incumbent on both. The word “prevent” must also be considered. The danger need not arise immediately. It is enough that the services or operation of facilities are necessary to “prevent” the immediate and serious danger. It is not required that an actual occurrence, accident or tragedy be apprehended. If a danger is immediate and serious it must be prevented. It is the danger that must be prevented and not the actual occurrence.

[230] The only services that must be continued are those necessary to prevent an immediate and serious danger to the safety or health of the public. Conversely, if the withdrawal of services would result in a situation where an immediate and serious danger is not prevented, the services must be provided. A partial withdrawal of services, because of the notion of “... the extent necessary...” is possible if the partial provision of services is sufficient to prevent the danger. Such considerations are relevant to certain notions applicable to similar provisions in past circumstances. The idea that an employer should not be permitted to carry on “business as usual” has been frequently expressed. What this notion encompasses is that the right to strike would be rendered meaningless if the notion of danger to the public is so restrictively interpreted that in effect the employer could carry on its business in its ordinary manner. What section 87.4 suggests is that the carrying on of business as usual should only be possible to the extent that such carrying on of business is necessary to protect the safety or health of the public from immediate and serious danger.

(emphasis added)

[290] Regarding the word “immediate,” the Board’s decision in Atomic Energy of Canada Limited (122), supra, which is a leading case in the area of essential services, clarified that the danger must arise “soon” or “within a short time.” This decision was upheld by the Federal Court of Appeal in Chalk River, supra, in which the Court stated, at paragraph 60, that “the Board was of the view that ‘immediate’ did not necessarily mean now or within a few days” (emphasis added). The Federal Court of Appeal added: “With that proposition, I can only agree.”

[291] The Board will also consider the availability of alternatives when determining whether an interruption in an activity or service could cause an immediate and serious danger to the health or safety of the public. In City of Ottawa, supra, the Board stated the following in this regard:

[41] In Atomic Energy of Canada Limited, [2001] CIRB no. 122; and 82 CLRBR (2d) 1, the Board referred to Re New Brunswick Government, [1996] N.B.L.E.B.D. No. 8, which stated that mere inconvenience should not cause the Board to designate services as necessary. The Board will also consider the availability of alternative services when determining whether a withdrawal of services would cause an immediate and serious danger to the health or safety of the public. In Nav Canada, [2002] CIRB no. 168; and 79 CLRBR (2d) 161, the Board held that alternative approaches that allow services to be obtained elsewhere can be considered, but must be demonstrably sufficient and effective in removing any danger to the health or safety of the public, if the otherwise necessary services are not to be provided. In Nav Canada [2007] CIRB 375; and 142 CLRBR (2d) 77, the Board held that if the services in question can be readily accomplished by others, then performance by members of the bargaining unit cannot reasonably be said to be necessary. However, the Board in the latter case added the caveat that, in making this assessment, consideration must be given to whether others experienced and competent in the provision of such services are reasonably available.

[292] In light of the foregoing and the principles that emerge from the Board’s decisions since 1999 on the subject of essential services, the Board will consider the evidence and analyze the context and facts presented to it when determining, in the case now before it, whether a strike at the Port of Montréal could constitute an immediate and serious danger to the health or safety of the public.

B. The Burden of Proof

[293] The MEA submits that the union was required to adduce evidence and could not rely solely on cross-examining MEA witnesses. It argues that by not presenting any evidence, the union contravened section 87.4 of the Code, adding that the testimony of the MEA’s three experts must therefore be considered as admitted, since there is no evidence to contradict it.

[294] The union is of the opinion that the employer did not meet its burden of proof and instead simply raised hypotheses. It submits that the employer needed to show a causal nexus between a strike and an immediate and serious danger to the health or safety of the public. The ILA adds that the employer was required to provide direct and very explicit evidence of that nexus.

[295] The burden of proof issue was raised in Atomic Energy of Canada Limited (122), supra. In that case, the respondent unions had been unable to secure the testimony of any witness willing to rebut the employer’s evidence. The unions therefore led their cases on the basis of the cross-examinations of the employer’s witnesses, but were unable to adduce any evidence supporting their position in the face of the employer’s convincing evidence justifying the designation of essential services employees during a strike or lockout.

[296] Furthermore, in Aliant Telecom Inc., supra, upheld by a reconsideration panel in Aliant Telecom Inc., 2004 CIRB LD 1026, the union relied on the cross-examinations of the employer’s witnesses without calling its own witnesses. In that matter, the Board found that the employer’s evidence was not sufficient to establish immediacy or the causal link between a strike or lockout and a possible interruption in the relevant services, nor was it sufficient to support a finding by the Board that a strike or lockout could result in an immediate and serious danger to the safety or health of the public.

[297] It should be noted that limiting the right to strike or lockout is an exceptional measure. In this context, the burden is on the party seeking the limitation to present convincing evidence to justify maintaining essential services. These principles were reiterated more recently in Société de transport de l’Outaouais, supra.

[298] That being said, the Board has also noted, in Canadian National Railway Company, supra, that both parties have the obligation to provide convincing evidence in support of their respective positions. That does not necessarily mean that such evidence must be presented through a party’s own witnesses.

[299] In this case, the union chose not to present evidence through its own witnesses, and it is entitled to proceed in that way. It nevertheless cross-examined some of the employer’s witnesses, made some written submissions, filed several exhibits during the cross-examination of the MEA’s witnesses, presented arguments and submitted a binder of case law, legislation and doctrine.

[300] It is now up to the Board to determine whether the employer’s evidence is sufficient to justify maintaining longshoring activities in the event of a longshore workers’ strike at the Port of Montréal.

C. The MEA’s Evidence

[301] The MEA is of the opinion that in the event of a stoppage of longshoring activities at the Port of Montréal, there would be consequences for the health and safety of the public, as such a situation would cause:

• · a shortage of goods that are critical and essential for the health and safety of the public;

• stock shortages and service disruption leading to a range of public reactions, including physical and mental issues;

• · economic repercussions causing psychological distress to the public.

[302] The MEA did not specifically identify which products it considers critical and essential to the health and safety of the public among the 39 million tons of goods that are imported and exported through the Port of Montréal every year. The MEA certainly enumerated several categories of products to show that huge quantities of food and pharmaceutical products, de‑icing salt, fertilizers, construction materials and hazardous materials move through the Port every year. In the MEA’s view, this should be enough to demonstrate that if longshoring activities at the Port of Montréal were to stop in the event of a strike, it would cause stock shortages and depletion and, consequently, repercussions for the physical and mental health of the population.

[303] The Board is of the opinion that no direct evidence allows it to conclude that a strike or lockout at the Port of Montréal will deplete stocks or cause shortages to the point of creating an immediate and serious danger to the health or safety of the public.

[304] Indeed, it should be recalled that the employer engaged in a lockout at the Port of Montréal in 2010, and no application came before the Board at that time pursuant to section 87.4(4) of the Code, nor any referral pursuant to section 87.4(5), for the determination of essential services to be maintained. Although Mr. Daoust indicated in his testimony that there was a backlash against the lockout from all the stakeholders, including businesses, clients, assembly line operators and members of Parliament, he did not specify how or why the health and safety of the public had been endangered.

1. The Expert Testimonies of Drs. Chamberland and El-Baalbaki

[305] The MEA called on the testimony of two experts, one in psychiatry and one in psychology, to support its evidence. They testified regarding the effects on the population of a disruption in the supply of goods moving through the Port of Montréal.

[306] These two experts testified in general terms, without making reference to any specific critical goods or services, about public reactions to actual and apprehended shortages. Rumours of a shortage can lead to reactions that are difficult to predict, said Dr. Chamberland. He stated that the consequences of a break in the supply of essential goods arriving at the Port of Montréal are twofold. It can create stress or anxiety for vulnerable people who need special medication or care, and the more essential the thing is, the greater the stress will be and the more vulnerable the person will become. He testified that the addition of stress factors can cause a more widespread impact on a population, although he admitted that the impact is difficult to measure as it depends on individuals.

[307] To illustrate his testimony, Dr. Chamberland pointed to the situation that was observed when the production of medical radioisotopes was compromised at Chalk River a few years ago. He explained that it was necessary to ration supplies in hospitals and that the Collège des médecins and the Ordre des pharmaciens produced a document containing various recommendations for avoiding drug shortages.

[308] As for Dr. El-Baalbaki, he stated that, in terms of health, a disruption in supply that affects goods or services required for psychological, emotional or mental balance could lead to deterioration in the health and well-being of those affected.

[309] Without calling into question the testimony of these two experts, according to which there may be, among a certain vulnerable population, an increase in stress as well as potential psychological disturbance if certain goods or services could not be supplied to them in the event of a shortage, the Board is not convinced that these assertions on their own are sufficient to lead to a conclusion that if longshoring activities at the Port of Montréal were to stop in the event of a strike, it would cause an immediate and serious danger to the health or safety of the public, within the meaning of section 87.4 of the Code and the relevant case law.

[310] The testimony of these two experts is based on the premise that there will be a shortage of goods in the event of a strike at the Port of Montréal. That case has not been made, however. Furthermore, the experts did not specify, among the numerous goods that pass through the Port, which of them would be likely to cause psychological reactions that could escalate to the point of causing a serious danger to the health of those people. As well, surprisingly, when testifying about a patient’s reaction in the event of a shortage of their medication, Dr. Chamberland, a psychiatrist at the Institut Philippe-Pinel in Montréal, did not consider Health Canada’s guidelines for addressing potential shortages of particular drugs or pharmaceutical products.

[311] To illustrate the impact that stress can have on a given population if they anticipate a shortage, Dr. Chamberland, as was just mentioned, pointed to the Chalk River situation, in which the production of medical radioisotopes was interrupted when the reactor at Chalk River was shut down for repairs in 2009.

[312] Moreover, the effects of interrupting production of medical radioisotopes during a potential strike by employees was the subject of a major Board decision in Atomic Energy of Canada Limited (122), supra. Contrary to the situation in the present case, and we will come back to it, the Board had clear evidence before it that a shortage of medical radioisotopes was imminent, that is, that it would occur in the days following the strike and that this situation would rapidly deprive the public of access to nuclear medicine. No evidence of a shortage or of an apprehended shortage was adduced in this case. The Board finds that the testimony of the two experts is not determinative in terms of concluding that a strike at the Port of Montréal could constitute an immediate and serious danger to the health or safety of the public.

2. Drugs and Pharmaceutical Products

[313] For the reasons set out below, the Board does not believe that sufficient evidence was adduced to show that a stoppage of longshoring activities at the Port of Montréal in the event of a strike would cause a drug shortage and that the health and safety of the public would be endangered as a result.

[314] The MEA called several pharmaceutical industry witnesses to establish, first of all, that numerous drugs and pharmaceutical products move through the Port of Montréal every year, and second, that the only port used by the pharmaceutical companies is Montréal. The MEA witnesses also asserted that there is no alternative, that stock levels are critical and that the trend is towards less stock—both for the manufacturers as well as for the distributors and the hospitals. In short, the MEA witnesses testified that the healthcare network would be vulnerable to the point of endangering the health and safety of the public if longshoring activities at the Port of Montréal were halted.

[315] The MEA filed, on a confidential basis, various lists of products manufactured and distributed by pharmaceutical companies that supply hospitals and pharmacies across Canada. None of the lists identify what drugs or products supplied by these companies come through the Port of Montréal. Mr. Dagenais in fact stated that medicinal products are not the only products moving through the Port of Montréal; some of them are actually components used to manufacture other pharmaceutical products. Mr. Bergeron testified that among the pharmaceutical products are gauze, gloves and syringes, as well as molecules used to manufacture drugs, but did not specifically indicate the nature of these products.

[316] The MEA called on the testimony of three pharmaceutical industry representatives to show that, for the transport of most of its products from throughout the world, the industry used only the Port of Montréal. It is definitely the case that, according to their testimony, the industry does make significant use of the Port of Montréal, notably because of reliability, costs and the fact that it can count on a reliable supply chain to transport its products by train or truck, or export them abroad, after they arrive at the Port. The three representatives submitted that shipping their products through the Port of Montréal is advantageous because they are delivered “just in time.” None of the representatives denied that their company would be able to switch to air transportation if an emergency situation were to arise or if supply were to be disrupted.

[317] All of these pharmaceutical companies have manufacturing plants and facilities throughout the world—in Europe, the United States, Canada and Asia. They also have production and distribution centres in Canada. Little evidence, if any, was adduced regarding these companies’ warehousing capacity.

[318] For example, let us take the testimony of Mr. B., who is Vice-President, Government Relations, for a multinational pharmaceutical company that supplies hospitals, ambulances and pharmacies, particularly with injectable drugs. Through the Port of Montréal, the company receives mini-bags (solute pouches), tubing, dialysis equipment, etc., that is, parts and components necessary for producing finished products in Canada. This pharmaceutical company holds 92% of the solute market in Canada.

[319] Mr. B. stated that, given production capacity limitations and strong market demand, the company’s reserves are estimated at two to three weeks. The witness was unable to say whether there is a standard requiring manufacturers of pharmaceutical products to keep an 8- to 12-week supply in stock. Mr. B. recalled events in the wake of the hurricane in Puerto Rico a few years ago. The company owns four production facilities there. The witness testified that, after the hurricane, stock was quickly replenished and the company was soon back in a position to meet demand. Mr. B. admitted that legislation had been adopted in 2017 forcing companies like his to disclose any potential shortages, thereby allowing the market to adjust. Mr. B. believes that if any of his products were to run out, it would create panic among the public and an emergency situation, both for his company and for the hospitals. The witness nevertheless indicated that the company has a contingency plan in case it has to procure a product during a disaster or in an extreme emergency. Mr. B. acknowledged that the company also has several plants in the United States, including a manufacturing facility in North Carolina.

[320] Ms. H. stated that it is sometimes necessary to use air transport when the Port of Montréal is very congested. She also testified that, until 2013-2014, her company would import its products exclusively by air. For Ms. P., air transport would not be an option if operations at the Port of Montréal were to be interrupted or halted, in light of the risks associated with the refrigeration system and the limited capacity of air transportation.

[321] That being said, a Transport Canada report from 2016 that was filed in evidence by the union confirms that Canadian and foreign air carriers loaded and unloaded approximately 1.2 million tons of freight in Canadian airports and that pharmaceutical products are among the high value merchandise transported by air.

[322] Another document filed by the union, this one issued by Health Canada, shows that the industry would not be left to fend for itself if there were a drug shortage in Canada. The report indicates that all stakeholders—namely manufacturers, group purchasing organizations, distributors/wholesalers and importers, provinces and territories, regional health authorities, hospital pharmacists and health professionals—have an important role to play with respect to drug shortages. For example, the document states as follows:

Health Canada

Health Canada is playing its part as the federal regulator, responsible for reviewing the safety, quality, and efficacy of drugs and for authorizing their sale in Canada. Health Canada has a number of tools and strategies available to assist companies and manufacturers in identifying or accessing alternatives in the event of a drug shortage.

Mandatory drug shortage and discontinuation reporting enables Health Canada to provide timely, reliable and accurate information to the public as well as to provide healthcare professionals, patients, drug supply stakeholders, and Provincial/Territorial governments with the information they require to mitigate and manage effects of drug shortages.

In addition, as part of its regulatory responsibilities, Health Canada is responsible for compliance and enforcement activities in order to verify that regulatory requirements are being applied appropriately.

During a drug shortage, Health Canada works with stakeholders across the drug supply chain to determine the details and status of the drug shortage, coordinate information sharing, and identify collaborative mitigation strategies.

On a case-by-case basis, Health Canada may work with manufacturers to review alternate suppliers, changes in manufacturing processes, or changes in manufacturing locations, when necessary. Health Canada may also:

·  work with international counterparts to identify additional sources of supply and to share needed safety and quality information;

·  provide the health system with priority access to alternatives on an emergency basis. For example, while not intended to address drug shortages, in exceptional circumstances, the Special Access Programme (SAP) can be used to provide access to non-marketed, medically necessary drugs when the approved supply is at zero or alternatives are not available; and

·  Health Canada can employ an expedited review process to expedite the review of a drug.

[323] The document indicates that, since 2017, manufacturers are required to publicly disclose any shortages on the Canadian Drug Shortage website. It also states that the group purchasing organizations negotiate with manufacturers on behalf of buyers, conduct ongoing market research and support collaboration among stakeholders during a shortage. These organizations must also support ongoing engagement among key stakeholders in preventing and managing drug shortages. The Health Canada document in question further indicates that distributors, wholesalers and importers help monitor and communicate drug stock levels and manage equitable distribution of drugs to pharmacies through the proportional allocation of remaining stocks.

[324] In the same vein as the above-mentioned Health Canada document, a tender document from Sigma Santé filed in evidence by the union contains very clear provisions concerning potential drug supply chain disruptions and includes alternative solutions.

[325] Regarding air freight, Ms. Amiel stated that, for transporting pharmaceuticals, aircraft are used for the final product and in emergency situations, whereas raw materials used for the purpose of drug manufacturing are transported by marine cargo and redirected to processing centres. Ms. Amiel, who holds a doctorate from the Université de Montréal, wrote in her 2008 thesis on the Canadian air cargo industry that Air Canada was already at that time transporting a range of products, including drugs, meat, semiconductors, fish, seafood, plants, fruits and vegetables, animals and hazardous materials such as explosives, gases, flammable materials and toxic and infectious substances. Ms. Amiel also testified that the trend over the past ten years has been towards increased air freight.

[326] This leads the Board to conclude, first, that a drug shortage situation could occur at any time, regardless of whether there is a strike at the Port of Montréal or not. To deal with such a shortage—and the MEA has failed to make the case that one would arise in the event of a strike at the Port of Montréal—Health Canada has a certain number of tools and strategies designed to help businesses and manufacturers establish or implement alternatives. Health Canada has put in place a highly integrated and interdependent drug supply chain, and all of the stakeholders have an important role to play in the event of a drug shortage.

[327] Moreover, the Board is of the opinion—as demonstrated by the 2016 annual report on the transportation situation in Canada, and consistent with Ms. Amiel’s testimony and her thesis published in 2008—that air transport undeniably constitutes an option for manufacturers of pharmaceutical products or for any stakeholder in that industry, in the event that there is a shortage of a particular drug or other pharmaceutical product for one reason or another. Accordingly, in light of the evidence, the Board finds that there are alternatives and that the mechanisms put in place by Health Canada are such that the industry is able to react promptly in the event of a drug shortage.

• [328] The MEA also refers the Board to Atomic Energy of Canada Limited (122), supra, a leading Board decision on the interpretation of section 87.4 of the Code, to demonstrate that a drug shortage constitutes a serious danger to public health. In that case, the Board concluded that interrupting the production of medical radioisotopes at Chalk River by reason of a strike or lockout would pose an immediate and serious danger to the health or safety of the public.

[329] Contrary to what can be observed in this case, the Board had before it clear and conclusive evidence that a shortage would be immediate if the production of medical radioisotopes were interrupted. In a few days, the interruption would quickly deprive the public of access to nuclear medicine and the health of a very large number of patients would be placed in serious danger as a result.

[330] In fact, the employer’s evidence demonstrated that the shortage of medical radioisotopes would become critical after five days, that there was no other reactor in Canada, indeed the entire world, that would be able to take over producing these medical radioisotopes, that the use of radioisotopes in hospitals formed an integral part of the medical practice, that the reactor was responsible for 60% of the world production of molybdenum-99 and for 100% of all other radioisotopes, that some 65,000 persons were treated on a daily basis with radiopharmaceuticals derived from molybdenum-99, and that millions of medical tests making use of other radioisotopes were performed every year. Simply stated, the evidence in that case demonstrated that a shortage would have occurred in a short period of time if the production of medical radioisotopes were interrupted, that there were no alternative solutions compared to the treatment methods provided by nuclear medicine, and that it was therefore necessary to prevent an immediate and serious danger to the health and safety of the public.

[331] In light of the foregoing, the Board is not prepared to draw any such conclusion in the present case and finds that there is not sufficient evidence of an apprehended shortage. The Board also finds that there is no absence of alternatives or mechanisms that would justify maintaining longshoring services with respect to pharmaceutical products.

3. De-icing Salt

[332] Regarding de-icing salt, the evidence shows that, generally, it is delivered between April and December and comes from the Goderich mine in Ontario (Sifto salt). Goderich cannot deliver salt in winter due to the closure of the Great Lakes Seaway. Nevertheless, last year, because of a strike at the Goderich mine, the Sifto and Cargill companies chartered ships from Chile and Egypt and delivered salt even during the winter. Therefore, the evidence shows that de-icing salt can also be supplied in winter by vessels from overseas.

[333] Logistec provides de-icing salt to several regions of Quebec, notably in the North, from Lebel-sur-Quévillon to Rivière-Rouge, and towards the Rive-Sud, in around Trois-Rivières and Sherbrooke. Among their customers are municipalities, as well as businesses like Rona and individuals. Mr. Fauteux was unable to specify how much salt is stored, for example, for the municipalities. Mr. Fauteux did indicate, however, that the salt was sold in advance and that it was difficult for companies to procure it elsewhere once supplies were depleted.

[334] Mr. Fauteux also explained in his testimony that other terminals at the Port of Montréal, not just Logistec’s, receive de-icing salt. According to the witness, the salt delivered to the Canadian Salt terminal is not stored; it is sent elsewhere. Mr. Fauteux explained that the Port of Montréal is not the only port in Quebec that receives salt. Other ports situated along the St. Lawrence River also receive road salt, including Québec and Valleyfield. Sifto and Cargill also have salt warehouses.

[335] In light of the evidence, the Board is not convinced that a strike at the Port of Montréal would cause a shortage of salt, considering the fact that several ports receive road salt in Quebec, not to mention the fact that the Port of Montréal is able to receive salt from overseas even in the winter. It was also demonstrated that other companies receive de-icing salt in addition to Logistec, among them Cargill and Canadian Salt. The employer was unable to show, apart from the quantity of salt actually received by Logistec, what volume of salt the municipalities would need to keep in storage in order to meet the demand in wintertime. Furthermore, the employer’s evidence also failed to demonstrate that a shortage of de-icing salt would lead to an immediate or serious danger to the health or safety of the public.

4. Risks of Congestion and Safety Measures

[336] Concerning the risks of congestion in the terminals or on the St. Lawrence River in the event of a strike at the Port of Montréal, the Board does not believe that it has sufficient evidence before it that would allow a conclusion that such congestion would result in an immediate and serious danger to the health and safety of the public such as to justify maintaining essential longshoring services.

[337] The MEA pointed to the risks associated with a longshore workers’ strike at the Port of Montréal, arguing that ships could no longer be unloaded and would be immobilized, since longshoring activities would be interrupted. It presented evidence regarding the increased difficulties for marine traffic along the St. Lawrence River, owing to its narrowness and the size of the vessels operating there. According to the MEA, there would be a high risk of accidents because vessels would be forced to anchor there while waiting to be unloaded, which could cause not only damage to vessels but also injury to crew members. According to Mr. Belzile of the MPA, the risks are greater in winter due to strong winds, among other things.

[338] The MEA also referred in its evidence to the danger of congestion at the Port’s terminals if a strike were to occur, as containers would accumulate there. Mr. Dubreuil, from the company Termont, testified that the goods in the containers will accumulate in the event of a strike to the point where the terminal will reach the limit of its storage capacity, and segregation of containers with dangerous goods will become very complex.

[339] The MEA also indicated in its evidence that it was risky, if not impossible, to unload only certain containers from a vessel in the event of a strike. While a crane might be able to retrieve a container of dangerous goods or medication from the bottom of a vessel, Mr. Couture of the MEA contended that this procedure could cause instability on the vessel and is not a safe way to proceed, either for the people working on it or for the vessel itself. Mr. Belzile stated that partial unloading of a vessel can be done as long as it is planned and organized.

[340] Based on the evidence, eight container ships and three or four oil tankers dock at the Port of Montréal each week. Container ships hold up to 2,500 containers, which translates into approximately 20,000 containers per week. A heavy container ship can hold between 30,000 and 40,000 tons of all manner of goods, including hazardous materials. The schedule of vessels is set one year in advance, and the MPA is informed that a vessel is on its way to Montréal seven to nine days before its arrival. Mr. Broad stated that with 72 hours’ notice, the ships are still at sea and outside of Canada.

[341] It should be remembered that, before triggering a work stoppage, the union must give 72 hours’ notice to the employer and to the Minister of Labour, in accordance with the provisions of section 87.2 of the Code. Now, the evidence shows that, once unloaded, the containers remain for a short time at the Port of Montréal terminals because the supply chain ensures that they are quickly reloaded onto trains or trucks by longshore workers. It is difficult to assess when and how the union intends to exercise its rights, but one thing is certain: given 72 hours’ notice of a strike, the employer and the MPA would be perfectly able to inform the captains of ships at sea that a strike is likely to occur and ask them to head for another port. The same is true for cruise ships, which could decide at that point not to go to Montréal and take whatever action they deem appropriate in the circumstances.

[342] It should also be mentioned that all ships of a certain size that sail up or down the St. Lawrence River between Les Escoumins and Montréal are subject to compulsory pilotage, meaning that these vessels must be handled by a pilot of the Corporation des pilotes du Saint‑Laurent to ensure their safe navigation. These highly experienced pilots are familiar with the River, currents, winds, ice and tides.

[343] In the event of a strike or a slowdown in longshoring activities, some of the ships already in the St. Lawrence River, that is, between Les Escoumins and Montréal, could be unloaded during the 72-hour notice period, while the others would either have to be diverted to other ports or drop anchor and wait.

[344] Mr. Belzile of the MPA noted that, if there were a longshore workers’ strike at the Port of Montréal, the situation would be “a bit like” an ice jam, except there would be twice the number of vessels in the environment the Port would have to work with. The plain fact is that there are ice jams every winter. The evidence showed that there were three ice jams during the winter of 2019, and the ships were detained at that time below Trois-Rivières. Mr. Daoust explained that this did not affect the Port’s operations.

[345] Mr. Desjardins of Logistec referred to an ice jam in the St. Lawrence River that had occurred prior to his testimony before the Board. An ArcelorMittal ship carrying iron ore was trapped in the ice for three or four days. The witness testified that there was a delay in delivery, but did not indicate that there was any risk to the vessel.

[346] Mr. Daoust also spoke about an ice jam that occurred in 1993 and lasted a month. The ice jam was on Lake Saint-Pierre. A document from the Canadian Coast Guard filed in evidence by the MEA shows that, following this critical situation on the St. Lawrence River in 1993, changes were made to the ice management strategy to allow for ice-breaking, to allow the industry to continue its port operations, to promote safe commercial navigation by means of vessel escort and to free vessels trapped in the ice. These changes also allow for constant monitoring to ensure the safety of ice-bound vessels and their crew and for environmental protection during the passage of tankers and deep-draft vessels.

[347] With respect to containers with dangerous goods that are at the Port’s terminals for import or export, Mr. Bergeron stated that some explosives identified in the containers may not remain at the Port’s terminals for more than 72 hours, in addition to being segregated, and that terminal owners must ensure control and compliance with standards related to the segregation of dangerous goods. It was also explained that vessels are subject to segregation standards as well.

[348] Mr. Dagenais from the MPA stated that dangerous goods containers remain at the Port for less than 72 hours. If not, an environmental management plan is put in place in accordance with regulations made under the Canadian Environmental Protection Act, 1999. It should be noted that, under the Canada Marine Act and the Port Authorities Operations Regulation, the MPA is required to ensure the health and safety of people at the Port of Montréal.

[349] Mr. Bergeron explained that the Environmental Regulations require stevedores and owners of dangerous goods or materials in containers at the Port of Montréal to have an environmental emergency plan for the substances stored in the containers. He referred the Board to a document from Natural Resources Canada, which describes additional safety measures that must be complied with for the transport of explosives to the Port of Montréal. Segregation must also be maintained when containers are loaded onto trains. According to the witness, 80 dangerous products, such as explosives and radioactive materials, require fire inspectors to be present for container handling. In addition, the MPA has an intervention plan describing procedures to be applied in case of an unforeseen spill of dangerous substances, such as chemicals, toxic products, explosives or radioactive materials.

[350] Based on the evidence, once the 72-hour strike notice is given by the union, dangerous goods containers located at the Port should be leaving the Port’s terminals within that timeframe. If they do not, an environmental management plan will be implemented. As for the dangerous goods containers unloaded from vessels, trains or trucks over the 72-hour period, the Board is of the view that a number of safety measures, such as those described above, are in place to allow for intervention if an accident were to occur or if containers need to be moved within the terminals for any reason. Obviously, in the event of a strike, all the safety measures described by the MPA witnesses will continue to apply on a daily basis; the MPA Control Centre will continue to operate, and all of the government organizations at the Port of Montréal, including the CBSA, Immigration Canada, the RCMP and the Sûreté du Québec, will continue to play their roles as they do every day at the Port of Montréal to ensure public safety.

[351] With respect to other containers of goods that will remain at the Port’s terminals in the event of a strike, the risk of congestion is low given that there will be no more loading or unloading of vessels, trains or trucks.

[352] The MEA referred the Board to the decisions it issued in NAV CANADA and Aéroports de Montréal, supra, arguing that the principles established in those decisions can be applied to this situation since they take into account the statutes and regulations that apply to public safety in the given sectors.

[353] In NAV CANADA, supra, the Board had to determine whether the withdrawal of air traffic control services would create a situation where there would be a danger to the health and safety of the public. Based on the testimony heard, the Board determined that the health or safety of the public would be threatened if air traffic control services were withdrawn or even reduced. It stated the following:

[232] In the present situation, it is also a consideration that the services in question are services primarily directed at the safety of the public. There is really no doubt that their withdrawal or their non-existence would quickly and seriously threaten the safety of the public. The evidence previously discussed herein also makes it clear that the withdrawal of the air traffic control services described above would result in a situation where the health of the public would suffer. This would occur because the air transport of medical supplies including cancer and other drugs and treatments, of organs for transplant, of blood products, of products and human tissue necessary for medical testing, of samples and products necessary to test for and prevent communicable disease, of medical personnel and indeed of patients themselves, would rapidly be impaired. There would be an immediate and serious adverse effect upon the health of a large segment of the public.

...

[240] Certain reductions in service, however, do not appear possible. The “city pairs” contingency model might be feasible and safe were it possible or contemplated by the Code that Canadians should exist without modern health services. An additional concern about this plan is the impact of a sudden and drastic alteration of air navigation services without detailed and careful prior preparations, even with qualified controllers. This will be discussed further below. It is, however, clear that the modern health networks of Canada, which are significantly reliant upon a modern, aircraft-based, transport system, will only continue to be effective if a significant proportion of the commercial air network continues in operation.

...

[248] The diversion of US flights through Canadian airspace to avoid the Cleveland congestion and the SWAP (Severe Weather Avoidance Plan) use of Canadian airspace is open to objection as well. The primary concern is that while there was speculation from CATCA witnesses that the elimination of such diversions could safely be accomplished by diverting the relevant traffic, there was no solid evidence based upon detailed analysis and planning to this effect. There was no primary and convincing evidence from those involved in the system that this could be so easily accomplished. The safety standards and approaches of the industry do not allow ready conclusions. The evidence did not disclose that the Cleveland diversion and the SWAP diversions that occur were based upon economics. Rather the diversions, whether to avoid the Cleveland congestion or dangerous storms, were for safety reasons. In such circumstances, it appears to the Board, that the withdrawal of services to these flights without a more detailed consideration of the impact of such changes, would involve the withdrawal of services necessary to prevent an immediate and serious danger to the health or safety of the public.

(emphasis added)

[354] In that matter, the Board also referred to the safety standards for the civil air navigation system (Canadian Aviation Regulations (CARs)), which describe how the aviation industry and air navigation services deal with issues of safety and risk. It concluded that the standards leave room for very little risk tolerance, given the seriousness of the risk.

[355] However, contrary to the situation in the above-mentioned case, a longshore workers’ strike at the Port of Montréal will not jeopardize the application of marine transportation standards or the application of the regulations on the operations of port authorities, including the MPA. All rules related to safety and to the transportation of goods will continue to apply in case of a total or partial stoppage of longshoring activities. In NAV CANADA, supra, it was argued that a reduction in the availability and supply of air traffic control services could increase the risks associated with a variety of aviation emergencies due to an interruption in the coordination normally affected by controllers between search and rescue crews, airport authorities, ambulances, fire departments, police, customs, immigration services and medical personnel when such situations take place. However, this is not the case here or, at least, there is no evidence to show that it is.

[356] The same is true in Aéroports de Montréal, supra. In that matter, the employer and the union each proposed a different staffing plan in the event of a firefighters’ strike at the Aéroports de Montréal. All international airports in Canada are governed by Transport Canada with respect to safety and must comply with the CARs. The CARs establish, for example, the minimum number of firefighting vehicles permanently required based on the category assigned to an airport. In Aéroports de Montréal, supra, the Board accepted neither the employer’s nor the union’s proposal. Instead, it determined that 100% of services normally provided had to be maintained in order to be able to respond to emergency situations as provided by the CARs:

[22] This means that the Board must take into account public safety or health at all times, and not only in the context of emergencies, rescues or other humanitarian acts. In the current circumstances, air travel is essential to thousands of people every day, and not merely for recreational purposes. The Board therefore feels that the continuation of essential services cannot paralyse aviation services for passengers by forcing them to remain where they are or overburdening other services or airports regardless of the consequences. The fact that the continuation of passenger services has a commercial impact does not mean it must be concluded that an airport must be closed down.

[23] Nor is this generalization based on the business as usual theory. Rather, it is based on the fact that public safety and health come first and that it should be anticipated that emergencies are by nature unpredictable in terms of when and where they occur. Emergencies may occur in respect of humanitarian flights, rescues, essential supplies, air evacuation or normal flights, since the airport exists for all of those services. The fact that we are dealing with emergency services does not mean that the services will be more or less intensive or necessary or that the level of involvement will be different. The evidence on file clearly shows that the entire fire-fighting team goes to the scene of an emergency, whatever its nature, and not some of the members or some of the equipment.

...

[25] For the purposes of this case, the determining conditions for aircraft fire fighting at airports are set out in the above-mentioned Regulations. In other words, the Department of Transport, on behalf of the Canadian public, ensures that maximum safety conditions exist for the travelling public. Its Regulations establish guidelines to ensure public safety and health, and the Board sees no reason to challenge them.

(emphasis added)

[357] A strike at the Port of Montréal will not affect the implementation of emergency plans related to the health and safety of the public, which are the responsibility of the MPA along with several other government stakeholders. The same is true for the Canadian Coast Guard, which must also deploy its resources at all times to ensure traffic flows safely on the St. Lawrence Seaway.

5. Alternative Solutions in the Event of a Strike or Lockout

[358] Several witnesses testified that, in the event of a disruption at the Port of Montréal, alternative solutions for vessels would be complex or difficult. Some of the witnesses spoke about their experiences during the 2010 lockout triggered by the employer, which lasted about six days. Mr. Allen stated that the Port of Halifax was not equipped to receive vessels from the Port of Montréal and that intermodal connections in Halifax were insufficient to deliver goods to their final destinations.

[359] Mr. Dubreuil from Termont stated that, during the 2010 lockout, MSC vessels en route to Montréal were slowed down so that they would arrive later and that MSC then decided to reroute its three vessels to the Port of Halifax. The evidence does not specify where the vessels were located when the decision to reroute them was made. Mr. Dubreuil stated that, after the vessels were unloaded in Halifax, only one vessel was reloaded with new containers, while the same containers were reloaded onto the other two vessels rather than waiting for these containers to be delivered by rail.

[360] Mr. Fournier from MSC stated that his company uses the Port of Saint John in New Brunswick, especially for exports. He underscored that that port would not be able to handle the volume of goods brought to the Port of Montréal by MSC, among other things, because the Port of Saint John has no rail access.

[361] Mr. Slack, an expert witness in ports and marine transportation, had a more nuanced opinion on the subject. He stated that the Port of Halifax would be unable to take in the volume of marine traffic handled by Montréal, but that it could certainly absorb a few hundred containers in the short term. He also admitted that that port is not operating at maximum capacity. Ms. Amiel’s testimony was in line with Mr. Slack’s, as she maintained that the capacity of the Port of Halifax is lower than that of the Port of Montréal and that the Port of Halifax presents disadvantages in that it does not provide the same intermodality as the Port of Montréal.

[362] Transport Canada’s report entitled Transportation in Canada: Canada’s Trade and Transportation Corridors, published in 2016, states the following regarding the Atlantic Corridor:

The Atlantic Corridor is strategically located to access global markets. The Port of Halifax, one of the few ports on the North American east coast that can handle fully laden post-Panamax container vessels, is also North America’s closest point of ice-free and minimal tide access to Europe and Asia (via the Suez Canal) from the east coast.

...

Containers account for an important part of the traffic, mostly transiting through the Port of Halifax. Containers handled at the Port of Halifax mainly serve the rest of Canada and the U.S. Midwest. Petroleum products also represent a large portion of traffic in this corridor, as offshore crude oil is often shuttled from the Hibernia and Terra Nova fields to the transshipment terminal at Whiffen Head, Placentia Bay. From there, the crude oil moves by conventional tankers, often heading to ports on the North American east coast and the Gulf of Mexico.

In the Atlantic Region, Via Rail operates the Ocean train, a long-haul passenger route that operates between Montréal and Halifax. The Ocean had 78 thousand passengers in 2016, down 2.7% from 2015.

(page 11)

[363] Mr. Slack also stated that, in the event of a strike at the Port of Montréal, many clients may divert their vessels to New York. He specified that this in itself would create logistical challenges and that containers would then have to be transported by train or truck to Montréal, while the railway between New York and Montréal is not equipped to transport heavy containers at a reasonable speed. He added that transporting the containers by truck would raise transportation costs, not to mention causing problems at the border, especially for dangerous goods, food products and pharmaceuticals. Mr. Slack also stated that the Port of Baltimore is an important container port, but that a vessel would lose a day sailing there and back and that marine companies use it infrequently for that reason.

[364] The MEA submitted that, based on the Board’s jurisprudence, it is insufficient for an alternative solution to be theoretically possible; such a solution, if it exists, must be clearly able to prevent all danger, in addition to being quickly and easily available. Counsel for the MEA referred the Board to NAV CANADA, supra, specifically, to the Board’s statements in that decision about Atomic Energy of Canada Limited (122), supra.

[365] In Atomic Energy of Canada Limited (122), supra, one of the Board’s leading decision regarding the maintenance of essential services, the evidence showed that no alternative solutions were possible because there were no other nuclear reactors in Canada or even in the world that could have assumed the production of medical radioisotopes and that there were no alternative solutions that could have been substitutes to the treatment methods provided by nuclear medicine. In NAV CANADA, supra, the evidence showed that the withdrawal or even a reduction in air traffic control services could quickly impair the air transport of medical supplies, including drugs, cancer treatments, organs for transplant and blood products, and would have similar consequences for the transport not only of medical personnel, but even patients.

[366] In Marine Atlantic Inc., supra, also a decision cited by the MEA, the Board considered alternative solutions in the event of an interruption or reduction of ferry services provided year-round by Marine Atlantic between North Sydney and Port aux Basques. It was shown that practically all, if not all, sectors of activity in Newfoundland and Labrador were directly impacted by the ferry service, including the heath care sector, patients reliant on care or requiring treatment outside Newfoundland and Labrador and workers in long-term care facilities in Nova Scotia. The ferry service was the only means of accessing services in continental Canada at a reasonable price. No alternatives were possible since Oceanex did not carry passengers, but mostly containers. The Board noted the following:

[42] The ferry service is the sole actually accessible link available to a significant majority of the general travelling public, the trucking industry and its customers, as well as to the general public of Newfoundland and Labrador, for whom there is no realistic alternative means of access.

[43] Interruption or even a lessening of Marine Atlantic ferry service would immediately cause hardship to the many relying on the regularity of Marine Atlantic ferry operations. The suffering and behavioral disorders thus caused would be an immediate consequence, as demonstrated by the psychiatric evidence heard. Members of the general public and all others reliant on the regularity of Marine Atlantic ferry service would also suffer hardship, economically, emotionally or otherwise, once again with consequences on the mental and even physical well-being of those concerned. Furthermore, the transportation of medical supplies or medically-related items would be seriously impacted.

[44] Clear, uncontradicted, expert evidence was given to demonstrate that health disorders would result from the interruption or lessening of Marine Atlantic ferry service. The Board cannot set aside or disregard this compelling evidence.

[45] The Board is of the opinion, clearly, that the levels of ferry service to be continued, as proposed by the CMOU and the CAW, do not meet the test set out in section 87.4(6)(a).

[367] In this case, immediate and serious danger to the health and safety of the public related to the rerouting of vessels in the event of an interruption of longshoring activities at the Port of Montréal was not demonstrated. Mr. Slack alluded to several scenarios, which were clearly not perfect and could mitigate an interruption of activities at the Port of Montréal only in the short term, including the rerouting of vessels to the Ports of Halifax, New York or even Baltimore. The 2010 lockout showed that, although not ideal, this was possible at the Port of Halifax.

[368] In addition, the evidence showed that transportation by cargo plane would certainly be an alternative solution should there be a shortage of products deemed “essential” (translation) by the employer, such as drugs and pharmaceutical products.

[369] The Board disagrees with the employer that an alternative solution, if one exists, must necessarily be quickly and easily available. As explained above, there is no convincing evidence before the Board that a strike triggered at the Port of Montréal requires that all longshoring activities be maintained at the Port to protect the health and safety of the public from immediate and serious danger, as sought by the employer.

[370] What section 87.4 of the Code suggests is that the carrying on of an activity as usual should only be possible to the extent that carrying on the activity for which a declaration of essential services is sought is necessary to protect the safety or health of the public from immediate and serious danger, which is not the case in the present matter. Alternative solutions exist and were mentioned by some witnesses who alluded to the measures taken during the 2010 lockout.

[371] Undeniably, a longshore workers’ strike at the Port of Montréal, even a mere slowdown of activities, would have definite consequences for all stakeholders along the supply chain that the Port of Montréal is engaged in. Shipping lines, logistics companies, manufacturers, distributors, railway systems, trucking companies and recipients will be affected to varying degrees. Increases in transportation costs, and possibly customs dues, will also be felt.

[372] That said, it has been stated many times by the Board in its past decisions on essential services that the right to strike, like the right to lockout, is protected by the Code. These rights are exercised by one party in a labour dispute in order to place economic pressure on the opposing party and encourage the settlement of a collective agreement.

[373] The fact of maintaining full longshoring services in the event of a strike, as the employer is seeking, without direct and compelling evidence that this level of service is consistent with the requirements of section 87.4 of the Code, would render the exercise of the right to strike ineffective in the present matter. Free collective bargaining is seriously compromised if the right to strike may not be exercised by employees to counteract the employer’s economic power (see Reference Re Public Service Employee Relations Act, [1987] 1 S.C.R. 313 (Alta.)).

VI. Conclusion

[374] Accordingly, the Board is of the view that the evidence is insufficient for it to allow the employer’s application for the maintenance of all longshoring services in the event of a strike at the Port of Montréal. In light of the evidence presented, the Board is not satisfied that it would be necessary to maintain all longshoring activities, as requested by the employer, to prevent an immediate and serious danger to the health and safety of the public.

[375] The Board takes note of the union’s commitment that, in the event of a strike at the Port of Montréal, all of the longshoring activities related to supplying Newfoundland and Labrador would be maintained, pursuant to section 87.4 of the Code.

[376] The Board reminds the parties that at any time and where warranted by the circumstances, the Minister, the employer or the union may apply again to the Board, pursuant to section 87.4(7) of the Code, to have it review and confirm, amend or cancel a decision.

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

 

	____________________ Louise Fecteau Vice-Chairperson
____________________ André Lecavalier Member		____________________ Gaétan Ménard Member