Date : 20040318
Dockets : T-1167-02; T-1165-02 and T-1280-02
Citation : 2004 FC 406
BETWEEN :
BRENDA BONNER
MARGARET TEMPLE
BRIAN NORTON
Applicants
AND :
VIA RAIL CANADA INC.
Respondent
AND:
COMMISSIONER OF OFFICIAL LANGUAGES OF CANADA
Intervener
ROULEAU J.
[1] This is an appeal from the order of Prothonotary Morneau, dated November 13, 2002, wherein he granted the respondent VIA Rail Canada's motion to strike the applicants' Originating Notice of Motion filed in this Court on July 23, 2002.
[2] The facts underlying this appeal are straightforward. The three applicants, who are employees of VIA Rail, filed complaints with the intervener Commissioner of Official Languages for Canada, pursuant to section 58 of the Official Languages Act, concerning VIA's linguistic policy. The Commissioner conducted an investigation of the policy and released a Final Investigation Report dated May 2002, which contained eight recommendations.
[3] The applicants subsequently filed applications in this Court seeking an order to require VIA Rail to comply with Recommendations number 1, 3 and 4 of the Commissioner's report. The respondent then filed a Notice of Motion seeking an order to strike out the apllications. By decision dated November 13, 2002, the Prothonotary granted the Respondent's application and struck out the applicants' originating notices of motion, stating his reasons, in part, as follows:
In his prayer for relief, the Applicant is seeking an order enjoining VIA Rail Canada Inc. (VIA) to comply with the Commissioner's recommendations number 1, 3 and 4. The Applicant is seeking a remedy of the nature of an injunction or a mandamus.
An order of mandamus or an injunction can only be granted against a respondent if that respondent is bout to accomplish a specific legal duty.
Recommendations made by the Commissioner do not create any legal duty or obligation on VIA and are thus not enforceable.
Hence, VIA is under no legal duty to comply with the Commissioner's recommendations.
In addition, this Court must decline jurisdiction on the Application as the Applicant's claims are in fact grievances which must be settled according to the terms of the Collective Agreement, such terms excluding the jurisdiction of the Federal Court.
[4] The applicants are now appealing the Prothonotary's decision on the grounds, inter alia, that:
1. VIA Rail Canada is a federal institution that is governed by the Treasury Board, which includes the Office of the Official Languages Commissioner;
2. VIA Rail has a legal duty to comply with the Official Languages Act and the Charter of Rights;
3. Subsection 77(1) of the Official Languages Act expressly confirms that jurisdiction for any remedy arising from a complaint made to the Commissioner will be heard in the Federal Court.
[5] I am dismissing the appeal for the following reasons.
[6] Sections 63, 64 and 65 of the Official Languages Act give the Commissioner the authority to make recommendations after conducting an investigation. Those sections provide as follows:
63. (1) If, after carrying out an investigation under this Act, the Commissioner is of the opinion that
(a) the act or omission that was the subject of the investigation should be referred to any federal institution concerned for consideration and action if necessary.
(b) any Act or regulations thereunder, or any directive of the Governor in Council or the Treasury Board, should be reconsidered or any practice that leads or is likely to lead to a contravention of this Act should be altered or discontinued, or
(c) any other action should be taken,
the Commissioner shall report that opinion and the reasons therefor to the President of the Treasury Board and the deputy head or other administrative head of any federal institution concerned.
(2) In making a report under subsection (1) that relates to any federal institution, the Commissioner shall have regard to any policies that apply to that institution that are set out in any Act of Parliament or regulation thereunder or in any directive of the Governor in Council or the Treasury Board.
(3) The Commissioner may
(a) in a report under subsection (1) make such recommendations as he thinks fit; and
(b) request the deputy or other administrative head of the federal institution concerned to notify the Commissioner within a specified time of the action, if any, that the institution proposes to take to give effect to those recommendations.
64.(1) Where the Commissioner carries out an investigation pursuant to a complaint, the Commissioner shall inform the complainant, and any individual or the deputy head of any federal institution by which or on behalf of which an answer relating to the complaint has been made pursuant to subsection 60(2), in such manner and at such time as the Commissioner thinks proper, of the results of the investigation.
(2) Where recommendations have been made by the Commissioner under subsection 63(3) but adequate and appropriate action has not, in the opinion of the Commissioner, been taken thereon within a reasonable time after the recommendations are made, the Commissioner may inform the complainant of those recommendations and make such comments thereon as he thinks proper, and shall provide a copy of the recommendations and comments to any individual, deputy head or administrative head whom the Commissioner is required under subsection (1) to inform of the results of the investigation.
65. (1) If, within a reasonable time after a report containing recommendations under subsection 63(3) is made, adequate and appropriate action has not, in the opinion of the Commissioner, been taken thereon, the Commissioner, in his discretion and after considering any reply made by or on behalf of any federal institution concerned, may transmit a copy of the report and recommendations to the Governor in Council.
(2) The Governor in Council may take such action as the Govern in Council considers appropriate in relation to any report transmitted under subsection (1) and the recommendations therein.
(3) If, within a reasonable time after a copy of a report is transmitted to the Governor in Council under subsection (10), adequate and appropriate action has not, in the opinion of the Commissioner, been taken thereon, the Commissioner may make such report thereon to Parliament as he considers appropriate.
(4) The Commissioner shall attach to every report made under subsection (3) a copy of any reply made by or on behalf of any federal institution concerned.
[7] In Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, the issue before the Supreme Court of Canada was whether a deputy minister was bound to follow the recommendations of the Security Intelligence Review Committee in relation to the granting of security clearances. The majority held that the word "recommendation" was to be given its ordinary meaning, which is advisory in nature, and not a binding decision. The Court made the following comments in this regard:
The contention of the respondent should not, in my view, be accepted. The simple term "recommendations" should be given its ordinary meaning. "Recommendation" ordinarily means the offering of advice and should not be taken to mean a binding decision. I agree with the conclusion of Dube J. of the Trial Division who noted, at p. 92, that:
The grammatical, natural and ordinary meaning of the word "recommendation" is not synonymous with "decision". The verb "to recommend" is defined in the Oxford English Dictionary as "to communicate or report, to inform". In Webster's Third New International Dictionary it is defined as "to mention or introduce as being worthy of acceptance, use, or trial; to make a recommendatory statement; to prevent with approval; to advise, counsel".
There is nothing in either the section or the Act as a whole which indicates that the word 'recommendations' should have anything other than its usual meaning. The Committee's recommendation constitutes a report put forward as something worthy of acceptance. It serves to ensure the accuracy of the information on which the Deputy Minister makes the decision, and it gives the Deputy Minister a second opinion to consider. It is no more than that. The wording of this section would be strained by giving the statute any wider scope.
[8] I cannot see any reason why those principles of law are not equally applicable to the case at bar. There is simply nothing in the Officials Languages Act which would lead me to conclude that the word "recommendations" should be given anything but its ordinary meaning; that is advisory in nature and not a binding decision. Accordingly, there is no legal right or duty created by the recommendations, and therefore no cause of action can arise from VIA's failure to implement the recommendations in question. It is for these reasons, as held by the Prothonotary, that an order of mandamus or injunctive relief cannot be granted.
[9] The intervener maintains that the Court should not exercise its discretion to strike out an originating application pursuant to its inherent jurisdiction, save and except in very exceptional circumstances. The test, as set out by the Federal Court of Appeal in David Bull Laboratories (Canada) inc. v. Pharmacia Inc., [1995] 1 F.C. 588, is that applications should only be summarily dismissed where it "is so clearly improper as to be bereft of any possibility of success". I am satisfied that this test has been met in the present case given that the applicants have no chance of success in obtaining the relief which they seek in their originating notice of motion. In my view, the Prothonotary did not improperly exercise his discretion in striking out the application.
[10] The Commissioner of Official Languages further argues that the Prothonotary erred in determining that this Court did not have jurisdiction over the matter because the applicants' grievances must be settled according to the terms of their Collective Agreement.
[11] I do not agree with this submission. The jurisprudence is well established that any dispute which arises from a collective agreement must be settled following a mandatory arbitration process. The Supreme Court of Canada recently confirmed this principle of law in Goudie v. City of Ottawa, 2003 S.C.C. 14, wherein it stated as follows:
It is well established that a dispute between an employer and an employee that arises in its essential character from the interpretation, application, administration or violation of a collective agreement is to be determined not in the courts but according to the arbitration provisions in the collective agreement.
. . .
The principle that disputes arising under a collective agreement should be resolved by labour arbitrators, not courts, is based on legislative intent. In St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, Estey J. laid down the general principle at pp. 718-19:
The more modern approach is to consider that labour relations legislation provides a code of governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks.
Subsequent cases have confirmed that if the dispute between the parties in its "essential character" arises from the interpretation, application, administration or violation of the collective agreement, it is to be determined by an arbitrator in accordance with the collective agreement, and not by the courts. See Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at paras. 41 and 52, and Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14, at paras. 23 and 25.
[12] In the present case, the dispute between the applicants and the respondent originates in an alleged denial of the applicants' career advancement at VIA Rail as a result of the company's linguistic policy. The applicants are members of the bargaining unit that is governed by a collective agreement which establishes the promotion and nomination process. The requirements for certain positions such as bilingualism, and working conditions such as training are, in accordance with Article 16 and Appendix 6 of the Collective Agreement, to be determined in accordance with the procedure set out in the Agreement. In particular Appendix 6 of the Collective Agreement provides as follows
If the Union disagrees with the designation of any specific position to satisfy the needs of the travelling public or to comply with the Official Languages Act, a grievance may be commenced at Step 3 of the Grievance Procedure within 60 days of receiving the Corporation's decision to designate said position. If the grievance is not regulated at Step 3, the matter may be referred to arbitration in an expedited manner.
[13] In light of all of this, I am unable to conclude that the Prothonotary erred in his conclusion that the applicants' claims are in fact grievances which must be settled according to the terms of the Collective Agreement.
[14] For all of these reasons, the appeal is dismissed.
JUDGE
OTTAWA, Ontario
March 18, 2004
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKETS : T-1167-02; T-1165-02; T-1280-02
STYLE OF CAUSE : Brenda Bonner, Margaret Temple, Brian Norton v. Via Rail Canada Inc. and the Commissioner of Official Languages of Canada
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: January 12, 2004
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: March 18, 2004
APPEARANCES:
Brian Norton
Margaret Temple
Brenda Bonner FOR THE APPLICANTS
Mr. G.R. Tremblay and
Mr. M.A. Landry FOR THE RESPONDENT
Ms. P. Giguère and
Ms. S. Tremblay FOR THE INTERVENER
SOLICITORS OF RECORD:
Unrepresented FOR THE APPLICANTS
McCarthy Tetrault
1170 Peel Street
Montreal, Quebec FOR THE RESPONDENT
Office of the Commissioner
of Official Languages
Legal Services
344 Slater Street, 3rd Floor
Ottawa, Ontario FOR THE INTERVENER