Transport Besner Atlantic ltée v. Syndicat des travailleuses et travailleurs de Transport Besner (CSN)

Transport Besner Atlantic ltée v. Syndicat des travailleuses et travailleurs de Transport Besner (CSN)
Court (s) Database
Federal Court of Appeal Decisions
Date
2006-04-24
Neutral citation
2006 FCA 146
File numbers
A-475-04
Notes
Digest
Decision Content
Date: 20060424
Dockets: A-475-04
A-11-05
A-107-05
A-392-05
Citation: 2006 FCA 146
CORAM: DESJARDINS J.A.
DÉCARY J.A.
NADON J.A.
A-475-04
A-107-05
BETWEEN:
TRANSPORT BESNER ATLANTIC LTÉE,
TRANSPORT BESNER CENTRAL LTÉE,
TRANSPORT BESNER INC.,
GESTION RÉSEAU BESNER LTÉE,
Applicants
and
SYNDICAT DES TRAVAILLEUSES ET
TRAVAILLEURS DE TRANSPORT BESNER (CSN),
UNION DES CHAUFFEURS DE CAMIONS,
HOMMES D’ENTREPÔTS ET AUTRES OUVRIERS,
TEAMSTERS QUÉBEC, SECTION LOCALE 106 (FTQ)
Respondents
A-11-05
A-392-05
UNION DES CHAUFFEURS DE CAMIONS,
HOMMES D’ENTREPÔTS ET AUTRES OUVRIERS,
TEAMSTERS QUÉBEC, SECTION LOCALE 106 (FTQ)
Applicants
and
SYNDICAT DES TRAVAILLEUSES ET
TRAVAILLEURS DE TRANSPORT BESNER (CSN)
and
TRANSPORT BESNER ATLANTIC LTÉE,
TRANSPORT BESNER CENTRAL LTÉE,
TRANSPORT BESNER INC.,
GESTION RÉSEAU BESNER LTÉE,
TRANSPORT TF 13
Respondents
Hearing held at Montréal, Quebec, on March 28, 29 and 30, 2006.
Judgment rendered at Ottawa, Ontario, on April 24, 2006.
REASONS FOR JUDGMENT: DESJARDINS J.A.
CONCURRED IN BY: DÉCARY J.A.
NADON J.A.
Date: 20060424
Dockets: A-475-04
A-11-05
A-107-05
A-392-05
Citation: 2006 FCA 146
CORAM: DESJARDINS J.A.
DÉCARY J.A.
NADON J.A.
A-475-04
A-107-05
BETWEEN:
TRANSPORT BESNER ATLANTIC LTÉE,
TRANSPORT BESNER CENTRAL LTÉE,
TRANSPORT BESNER INC.,
GESTION RÉSEAU BESNER LTÉE,
Applicants
and
SYNDICAT DES TRAVAILLEUSES ET
TRAVAILLEURS DE TRANSPORT BESNER (CSN),
UNION DES CHAUFFEURS DE CAMIONS,
HOMMES D’ENTREPÔTS ET AUTRES OUVRIERS,
TEAMSTERS QUÉBEC, SECTION LOCALE 106 (FTQ)
Respondents
A-11-05
A-392-05
UNION DES CHAUFFEURS DE CAMIONS,
HOMMES D’ENTREPÔTS ET AUTRES OUVRIERS,
TEAMSTERS QUÉBEC, SECTION LOCALE 106 (FTQ)
Applicants
and
SYNDICAT DES TRAVAILLEUSES ET
TRAVAILLEURS DE TRANSPORT BESNER (CSN)
and
TRANSPORT BESNER ATLANTIC LTÉE,
TRANSPORT BESNER CENTRAL LTÉE,
TRANSPORT BESNER INC.,
GESTION RÉSEAU BESNER LTÉE,
TRANSPORT TF 13
Respondents
REASONS FOR JUDGMENT
DESJARDINS J.A.
[1] The Court has before it four applications for judicial review.
[2] The first (A‑475‑04) is by the applicants Transport Besner Atlantic Ltée, Transport Besner Central Ltée, Transport Besner Inc. and Gestion Réseau Besner Ltée (the employer). It asked the Court to quash a decision by the Canada Industrial Relations Board (the Board), decision No. 285 dated April 17, 2004 ([2004] C.I.R.B.D. No. 26 (QL)). That decision allowed two applications made by the Syndicat des travailleuses et travailleurs de Transport Besner (the Syndicat or CSN), one concerning a sale of business declaration pursuant to section 44 of the Canada Labour Code, R.S.C. 1985, c. L‑2 (the Code), and the other a single employer declaration pursuant to section 35 of the Code.
[3] The second and third applications for judicial review were filed by the Union des chauffeurs de camions, hommes d’entrepôt et autres ouvriers (Teamsters) Québec, section locale 106 (FTQ) (the Teamsters) (A‑11‑05) and by the employer (A‑107‑05). They related to a second Board decision, No. 303 dated December 23, 2004 ([2004] C.I.R.B.D. No. 44 (QL)). The Board determined the appropriate bargaining unit and ordered that, pursuant to subsection 29(1) of the Code, a representation vote be held for all drivers in the appropriate bargaining unit to decide whether the unit drivers wished to be represented by the Syndicat or by the Teamsters.
[4] The fourth application for judicial review was filed by the Teamsters (A‑392‑05). It concerned a third Board decision, No. 329 dated August 16, 2005 ([2005] C.I.R.B.D. No. 24 (QL)), which dismissed two applications to reconsider the Board’s first two decisions, one by the employer and the other by the Teamsters.
Facts
[5] It appeared from decision No. 285 by the Board that, on September 20, 2002, a corporation known as Transport Besner Inc. (Transport Besner), whose line of business is the transportation of complete units, was doing business in Canada and the northeastern U.S. from its place of business located at Saint‑Nicolas. The business was created in 1976 and held majority interests in two companies named Transport Besner Atlantic (Besner Atlantic) and Besner Central Ltée (Besner Central). It was itself held by La Financière Besway Inc.
[6] Before October 2002, Besner Atlantic only had a place of business in Moncton and a facility in Lachine. Besner Central had only a place of business located in Mississauga and a facility in Lachine. Besner Atlantic had about 25 drivers who were all working in Moncton, and Besner Central used the services of some 25 drivers in Mississauga through placement agencies. These companies had no drivers in Saint‑Nicolas (at paragraphs 11-13).
[7] Gestion Réseau Besner Ltée (Gestion Réseau Besner) was created in 1998. It described itself as a transportation logistics undertaking whose principal line of business, in addition to administration, consisted in obtaining customers and then allocating contracts to transportation businesses, primarily Transport Besner, Besner Atlantic and Besner Central. Its head office was located at the same address as Transport Besner in Saint‑Nicolas. A significant part of its administrative and managerial staff had formerly worked for Transport Besner. Before the creation of Gestion Réseau Besner, Transport Besner itself took care of all of its administrative activities (recruiting, training and human resource management in general).
[8] On July 18, 2002, the Teamsters filed a certification application for Besner Central, and on July 24, 2002, they filed a certification application for Besner Atlantic. Those two applications did not relate to the Saint‑Nicolas facility. Indeed, Besner Atlantic and Besner Central had no facility at Saint‑Nicolas before the end of summer 2002. On October 29, 2002, the Board allowed the Teamsters’ application to discontinue these two cases.
[9] On August 27, 2002, two identical collective agreements were concluded between the
Teamsters and Besner Central and between the Teamsters and Besner Atlantic for the drivers in those businesses. The Teamsters were voluntarily recognized by Besner Central and Besner Atlantic. On November 1, 2002, they filed two applications for certification with the Board relating to all the facilities of those two businesses respectively, including that at Saint‑Nicolas. The Syndicat had previously filed two applications for certification with the Board regarding these same two businesses, but only for their Saint‑Nicolas facility. The Syndicat had represented the Transport Besner drivers since February 27, 1998. The collective agreement applicable to them expired on May 31, 2002. A transitional clause governed the drivers’ working conditions. That clause, 32.05, read as follows:
[translation]
This agreement shall remain in effect until renewed.
[10] In summer and fall 2002, significant changes were observed in Transport Besner’s activities. In May 2002, the business had over 280 drivers. As of December 23, 2002, it only had 98. In fall 2002, no more drivers were recruited for Transport Besner, but an increase in the number of drivers recruited for Besner Atlantic and Besner Central could be noted (see paragraph 22 of the reasons).
[11] As early as September 2002, several drivers left Transport Besner and concluded contracts of employment with Besner Central, Besner Atlantic or other transportation businesses. Two or three drivers for each of those businesses were posted in Saint‑Nicolas in September 2002. In December 2002, there were some 30 drivers posted in Saint-Nicolas for each of the businesses.
[12] Between May and December 2002, the Syndicat and Transport Besner undertook negotiations to arrive at a new collective agreement. The first of these meetings were held on May 24, July 5, August 29-30 and September 5 and 6. According to the testimony heard, the stumbling block in the negotiations concerned the booking system.
[13] On October 1, 2002, the Fonds de revenu TransForce purchased the shares of Transport Besner, Besner Atlantic, Besner Central and Gestion Réseau Besner.
[14] Negotiations between the Syndicat and Transport Besner broke down on December 23, 2002. On the same date, Transport Besner closed its doors. The last 98 drivers with the business were dismissed the same day. On January 10, 2003, the Syndicat filed grievances with Transport Besner on behalf of the 98 dismissed drivers.
Board’s decisions
[15] Decision No. 285 stated that, at the start of the hearing, the employer filed a motion to dismiss the application for a single employer declaration made by the Syndicat. The reason given was that the application was moot as the employer had closed down.
[16] The Board dismissed this application on the ground that the proceeding before it had concrete consequences for the rights of the parties. In the Board’s view, an application for a single employer declaration or a sale or transfer of business declaration could not become moot simply because one of the businesses in question had closed down. The Board felt that such a ruling would go against the purpose of the provisions of the Code on the sale or transfer of a business (see paragraph 79 of the decision).
[17] The employer further contended that the Board could not make a single employer declaration because all the businesses in issue did not fall under federal jurisdiction. In the employer’s submission, Gestion Réseau Besner had ceased the activities which made it federal since the end of December 2002 and had come under provincial jurisdiction. The Board dismissed these arguments on the ground that Gestion Réseau Besner was a vital and integral part of Besner Central and Besner Atlantic, which were federal businesses. Accordingly, Gestion Réseau Besner also had to be governed by the provisions of the Code (paragraph 197 of the Board’s reasons). The Board made a single employer declaration, adding that [translation] “in the event that Transport Besner were to be reactivated as part of this group of companies, it could also be covered by the single employer declaration insofar as its activities were carried out in the same way as before its closure on December 23, 2002” (paragraph 225 of Board’s reasons).
[18] As to the application for a sale of business declaration, the Board considered that the definition of a “sale” contained in section 44 of the Code should be broadly interpreted. In its view, Transport Besner was the subject not of a sale in the commercial sense of the word but of a partial transfer (paragraph 175 of the Board’s reasons). The Board observed that a significant part of the activities of Transport Besner had been maintained in Saint‑Nicolas by Besner Atlantic and Besner Central and that Transport Besner’s activities had not ceased, but had been largely taken over in Saint‑Nicolas by two affiliated companies, Besner Central and Besner Atlantic. The means specific to this business, such as the equipment, customers’ usual trips and a large proportion of the drivers, had been transferred to Besner Atlantic and Besner Central (paragraph 177 of the Board’s reasons). Accordingly, Transport Besner’s know‑how in Saint‑Nicolas, much of its staff, the customers it served and its facilities had survived the closure of December 23, 2002 (paragraph 179 of the Board’s reasons).
[19] The Board ordered the parties herein, namely the Syndicat, the group of businesses Besner Central, Besner Atlantic, Gestion Besner and Gestion Réseau Besner and the Teamsters, to undertake negotiations to arrive at an agreement on the number of appropriate bargaining units and the bargaining agent for each unit. In the absence of an agreement, they were to discuss among themselves any question relating to a possible vote, including eligibility criteria.
[20] The parties were not able to come to terms. They submitted their comments to the Board, which had to make a ruling.
[21] In its decision No. 303 of December 23, 2004, the Board considered that a single unit combining all the locations of the employer’s companies was the appropriate bargaining unit (paragraph 24 of the Board’s reasons). It ordered the holding of a secret representation to decide on the bargaining agent.
[22] The right to vote was given to all drivers working for Gestion Réseau Besner, Besner Atlantic and Besner Central on April 17, 2004, who were still employed by those businesses on the date of the vote. The right to vote was also available to the 98 drivers dismissed on December 23, 2002 at Transport Besner and to Martin Alain, the CSN union representative who was dismissed on or about December 16, 2002.
[23] Finally, it appeared that in reconsideration decision No. 329 of April 16, 2005, the Board rejected as follows the arguments by the employer and the Teamsters that the initial panel had made an error of law when it held that the 98 dismissed drivers still had rights of recall:
37 In the case before us, the evidence presented indicates that, at the time the transfer of the business pursuant to section 44 of the Code was finalized, that is, on December 23, 2002, the working conditions of the 98 Transport Besner drivers were governed by a bridging clause of the expired CSN collective agreement. This bridging clause was agreed to by the CSN and Transport Besner and stipulated that the terms and conditions of that collective agreement (including the arbitration procedure) would apply until these parties entered into a new collective agreement. The collective agreement contained clauses relating to the recall rights of employees.
38 For that reason, the original panel concluded that the bargaining and representation rights of the union of the Transport Besner employees, including the 98 laid-off drivers, had been transferred pursuant to section 44 of the Code to Besner Central and Besner Atlantic (and subsequently included in the single employer declaration).
39 In the original panel’s view, since the lay-offs took place prior to the closing of Transport Besner on December 23, 2002, the dispute to which the lay-offs gave rise was also transferred pursuant to section 44 of the Code. The original panel found that the union had filed the grievances relating to these lay-offs within the time period provided for in its collective agreement. Since section 44(2)(d) of the Code states that the purchaser becomes a party to any proceeding taken under Part I of the Code that affects the vendor’s employees, the purchaser inherits pending grievances.
40 The reconsideration panel has given due consideration to the employer’s argument that the union did not file its grievances against the lay-offs of December 23, 2002 until January 10, 2003, after the transfer pursuant to section 44 of the Code. According to the employer and the Teamsters, these grievances therefore could not bind the purchaser. However, this reconsideration panel is of the opinion that, since the union filed its grievances as soon as possible after the closure, it was appropriate, in this very specific and exceptional case, to consider the grievance process to have been initiated on the date of the sale of business. Since the proceeding had already begun, the filing of the grievances on January 10, 2003 should not be an obstacle to the application of section 44 of the Code.
. . .
46 It is not the role of the Board to assess the legitimacy or admissibility of the union’s grievances. Under section 46 of the Code, however, the Board must determine any question that arises under section 44 of the Code. A Board panel hearing a dispute enjoys considerable discretion. In keeping with the provisions of section 35 and 18.1(4)(a) of the Code, the original panel in this case decided to order a representation vote to determine the bargaining agent.
[24] At the start of the hearing before this Court, the Teamsters confirmed to the Court that a representation vote had been held in which the 98 dismissed drivers could participate (not all exercised their right to vote) and that the Teamsters had won the vote and been certified. However, the point raised in the case still remained relevant, in the submission of the Teamsters, as [translation] “the Board’s decision had the effect of transferring to the Teamsters grievances which, if interpreted according to the wishes of the Syndicat and of the Board, and if allowed, would have the effect of giving the ‘98’ the right to work for the buyer, which would involve the displacement and lay-off of an equal number of drivers and put in doubt the seniority list (when drivers were hired by Besner Atlantic and Besner Central a new rank was given to them regardless of where they had worked before)” (see applicant’s record, vol. II, at page 267, in case A‑392‑05 of the Court).
Legislative provisions [25] The Code’s provisions pertaining to these decisions are sections 22, 35, 44, 45 and 46, the relevant portions of which read as follows:
Review and Enforcement of Orders
Révision et exécution des ordonnances
Orders not to be reviewed by court
22. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act.
Impossibilité de révision par un tribunal
22. (1) Sous réserve des autres dispositions de la présente partie, les ordonnances ou les décisions du Conseil sont définitives et ne sont susceptibles de contestation ou de révision par voie judiciaire que pour les motifs visés aux alinéas 18.1(4)a), b) ou e) de la Loi sur les Cours fédérales et dans le cadre de cette loi.
. . .
[…]
Board may declare single employer
35. (1) Where, on application by an affected trade union or employer, associated or related federal works, undertakings or businesses are, in the opinion of the Board, operated by two or more employers having common control or direction, the Board may, by order, declare that for all purposes of this Part the employers and the federal works, undertakings and businesses operated by them that are specified in the order are, respectively, a single employer and a single federal work, undertaking or business. Before making such a declaration, the Board must give the affected employers and trade unions the opportunity to make representations.
Déclaration d’employeur unique par le Conseil
35. (1) Sur demande d’un syndicat ou d’un employeur concernés, le Conseil peut, par ordonnance, déclarer que, pour l’application de la présente partie, les entreprises fédérales associées ou connexes qui, selon lui, sont exploitées par plusieurs employeurs en assurant en commun le contrôle ou la direction constituent une entreprise unique et que ces employeurs constituent eux-mêmes un employeur unique. Il est tenu, avant de rendre l’ordonnance, de donner aux employeurs et aux syndicats concernés la possibilité de présenter des arguments
Review of bargaining units
(2) The Board may, in making a declaration under subsection (1), determine whether the employees affected constitute one or more units appropriate for collective bargaining.
Révision d’unités
(2) Lorsqu’il rend une ordonnance en vertu du paragraphe (1), le Conseil peut décider si les employés en cause constituent une ou plusieurs unités habiles à négocier collectivement.
Definitions
44. (1) In this section and sections 45 to 47.1,
Définitions
44. (1) Les définitions qui suivent s’appliquent au présent article et aux articles 45 à 47.1.
“business”
« entreprise »
« entreprise »
“ business ”
“business” means any federal work, undertaking or business and any part thereof;
« entreprise » Entreprise fédérale, y compris toute partie de celle-ci.
“provincial business”
« entreprise provinciale »
« entreprise provinciale »
“ provincial business ”
“provincial business” means a work, undertaking or business, or any part of a work, undertaking or business, the labour relations of which are subject to the laws of a province;
« entreprise provinciale » Installations, ouvrages, entreprises — ou parties d’installations, d’ouvrages ou d’entreprises — dont les relations de travail sont régies par les lois d’une province.
“sell”
« vente »
« vente »
“ sell ”
“sell”, in relation to a business, includes the transfer or other disposition of the business and, for the purposes of this definition, leasing a business is deemed to be selling it.
« vente » S’entend notamment, relativement à une entreprise, du transfert et de toute autre forme de disposition de celle-ci, la location étant, pour l’application de la présente définition, assimilée à une vente.
Sale of business
(2) Where an employer sells a business,
Vente de l’entreprise
(2) Les dispositions suivantes s’appliquent dans les cas où l’employeur vend son entreprise :
(a) a trade union that is the bargaining agent for the employees employed in the business continues to be their bargaining agent;
a) l’agent négociateur des employés travaillant dans l’entreprise reste le même;
(b) a trade union that made application for certification in respect of any employees employed in the business before the date on which the business is sold may, subject to this Part, be certified by the Board as their bargaining agent;
b) le syndicat qui, avant la date de la vente, avait présenté une demande d’accréditation pour des employés travaillant dans l’entreprise peut, sous réserve des autres dispositions de la présente partie, être accrédité par le Conseil à titre d’agent négociateur de ceux-ci;
(c) the person to whom the business is sold is bound by any collective agreement that is, on the date on which the business is sold, applicable to the employees employed in the business; and
c) toute convention collective applicable, à la date de la vente, aux employés travaillant dans l’entreprise lie l’acquéreur;
(d) the person to whom the business is sold becomes a party to any proceeding taken under this Part that is pending on the date on which the business was sold and that affects the employees employed in the business or their bargaining agent.
d) l’acquéreur devient partie à toute procédure engagée dans le cadre de la présente partie et en cours à la date de la vente, et touchant les employés travaillant dans l’entreprise ou leur agent négociateur.
Change of activity or sale of a provincial business
(3) Where, as a result of a change of activity, a provincial business becomes subject to this Part, or such a business is sold to an employer who is subject to this Part,
Changements opérationnels ou vente d’une entreprise provinciale
(3) Si, en raison de changements opérationnels, une entreprise provinciale devient régie par la présente partie ou si elle est vendue à un employeur qui est régi par la présente partie :
(a) the trade union that, pursuant to the laws of the province, is the bargaining agent for the employees employed in the provincial business continues to be their bargaining agent for the purposes of this Part;
a) le syndicat qui, en vertu des lois de la province, est l’agent négociateur des employés de l’entreprise provinciale en cause demeure l’agent négociateur pour l’application de la présente partie;
(b) a collective agreement that applied to employees employed in the provincial business at the time of the change or sale continues to apply to them and is binding on the employer or on the person to whom the business is sold;
b) une convention collective applicable à des employés de l’entreprise provinciale à la date des changements opérationnels ou de la vente continue d’avoir effet ou lie l’acquéreur;
(c) any proceeding that at the time of the change or sale was before the labour relations board or other person or authority that, under the laws of the province, is competent to decide the matter, continues as a proceeding under this Part, with such modifications as the circumstances require and, where applicable, with the person to whom the provincial business is sold as a party; and
c) les procédures engagées dans le cadre des lois de la province en cause et qui, à la date des changements opérationnels ou de la vente, étaient en instance devant une commission provinciale des relations de travail ou tout autre organisme ou personne compétents deviennent des procédures engagées sous le régime de la présente partie, avec les adaptations nécessaires, l’acquéreur devenant partie aux procédures s’il y a lieu;
(d) any grievance that at the time of the change or sale was before an arbitrator or arbitration board continues to be processed under this Part, with such modifications as the circumstances require and, where applicable, with the person to whom the provincial business is sold as a party.
d) les griefs qui étaient en instance devant un arbitre ou un conseil d’arbitrage à la date des changements opérationnels ou de la vente sont tranchés sous le régime de la présente partie, avec les adaptations nécessaires, l’acquéreur devenant partie aux procédures s’il y a lieu.
Review of bargaining units
45. In the case of a sale or change of activity referred to in section 44, the Board may, on application by the employer or any trade union affected, determine whether the employees affected constitute one or more units appropriate for collective bargaining.
Révision d’unités
45. Dans les cas de vente ou de changements opérationnels visés à l’article 44, le Conseil peut, sur demande de l’employeur ou de tout syndicat touché décider si les employés en cause constituent une ou plusieurs unités habiles à négocier collectivement.
Board to determine questions
46. The Board shall determine any question that arises under section 44, including a question as to whether or not a business has been sold or there has been a change of activity of a business, or as to the identity of the purchaser of a business.
Questions à trancher par le Conseil
46. Il appartient au Conseil de trancher, pour l’application de l’article 44, toute question qui se pose, notamment quant à la survenance d’une vente d’entreprise, à l’existence des changements opérationnels et à l’identité de l’acquéreur.
Applicable standard of review [26] There was no dispute between the parties as to the standard of review applicable in the case at bar. The Board’s decisions are protected by a full privative clause (section 22 of the Code), the issues fall under the exclusive jurisdiction of the Board under section 46 of the Code and the case law is well settled (Canadian Broadcasting Corporation v. Canada, [1995] 1 S.C.R. 157; Ivanhoe v. United Food and Commercial Workers, Local 500, [2001] 2 S.C.R. 565, at paragraphs 24 to 34 [Ivanhoe]; Pushpanathan v. Canada (Department of Citizenship and Immigration), [1998] 1 S.C.R. 982). The findings of fact made by the Board and the rulings on points of law which are within the Board’s jurisdiction can only be reviewed if they are patently unreasonable (Dayco (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), [1993] 2 S.C.R. 230, at page 307). However, want or excess of jurisdiction by the Board or its refusal to exercise its jurisdiction are reviewable according to the correctness standard. In addition, any act or omission amounting to a violation of an applicable rule of natural justice would warrant the Court’s intervention.
The Doctrine of Mootness and Borowski v. Canada
[27] The Board dismissed the employer’s motion to dismiss because, in its view, there was a concrete dispute between the parties. The Board explained that the possible application of sections 35 and 44 of the Code following the closing of Transport Besner would have an impact on the parties’ rights; therefore, it was essential that the Board exercise its jurisdiction and resolve the dispute between the parties (paragraphs 80 to 87 of the reasons). Accordingly, in the Board’s view, the point was far from moot.
[28] The employer was unable to show the Court that, based on Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342, this decision by the Board was patently unreasonable.
Unreasonable findings of fact Violation of natural justice
[29] The employer contended that the Board ignored the evidence adduced by the employer as to the causes of the problems that arose at Transport Besner Inc. in fall 2002. It argued that the Board ignored evidence showing that several drivers had voluntarily decided to resign from Transport Besner Inc. to go and seek employment with Besner Atlantic or Besner Central because they disagreed with the arguments advanced by the Syndicat to slow down the employer’s activities (paragraph 16 of employer’s memorandum – plaintiffs in case A‑475‑04).
[30] The employer further submitted that the Board had prevented the employer from offering all of its evidence relating to the drivers no longer working for Transport Besner Inc. The employer added that it intended to show that they had no intention whatever of returning to work for that company (paragraph 26 of employer’s memorandum – applicants in A‑475‑04).
[31] In view of the absence of an official transcript of the testimony heard by the Board and the exchanges during the hearing and as there are no opposing affidavits, the employer was unable to discharge the heavy burden of proof upon it of establishing that the findings of fact made by the Board were patently unreasonable.
[32] Further, in my view, in this case, there has been violation of the rules of natural justice by the Board. The case law is clear: “the concept of procedural fairness is eminently variable and its content is to be decided in the specific context of each case” (Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at page 682, cited in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 21 [Baker]).
[33] Further, in International Woodworkers of America, Local 2‑69 v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.R.C. 282, at paragraph 69, Mr. Justice Gonthier said:
69 I agree with the respondent union that the rules of natural justice must take into account the institutional constraints faced by an administrative tribunal. These tribunals are created to increase the efficiency of the administration of justice and are often called upon to handle heavy caseloads. It is unrealistic to expect an administrative tribunal such as the Board to abide strictly by the rules applicable to courts of law. In fact, it has long been recognized that the rules of natural justice do not have a fixed content irrespective of the nature of the tribunal and the institutional constraints it faces.
[34] Finally, in Baker, the Supreme Court of Canada gave a non-exhaustive list of five criteria applicable in defining the procedural rights required by the duty of fairness in given situations: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the agency itself (Baker, supra, at paragraphs 23‑28; see also Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at paragraphs 114-120).
[35] In this case, in view of those criteria, it cannot be said that there was a violation of the rules of natural justice in the circumstances, as alleged by the employer. In particular, the administrative nature of the decision, the specialized function of the Board in the legislative scheme and the choices of procedure made by the Board within its expertise in industrial relations indicate that the procedural rights applicable in this case are not as strict as those applicable to courts of law. Since the Board’s decision is final and bears on the rights of individuals, however, the duty of fairness is not minimal: as this Court explained in Bunge of Canada Ltd. v. Canadian Union of Public Employees, Local 3711 (1995), 181 N.R. 382 (F.C.A.), at paragraph 25, “[u]ltimately the Court must ensure in each specific case that the way in which the tribunal acted was not or could not reasonably have been seen as depriving the individual of an opportunity to present his views before the decision‑makers in an open and cordial atmosphere”.
[36] However, the Board has full control over its own procedure. Further, it has the discretion to decide whether a particular question requires that a hearing be held as this requirement does not apply in the context pursuant to the audi alteram partem rule (section 16.1 of the Code; see also NAV Canada v. International Brotherhood of Electrical Workers, Local 2228 (2001), 267 N.R. 125 (F.C.A.), at paragraphs 9‑10; Raymond v. Canadian Union of Postal Workers (2003), 318 N.R. 319 (F.C.A.), at paragraph 4). When there is a hearing, the Board may refuse to hear part of the oral evidence offered by a party when such additional evidence relates to facts that have already been established. In this case, the employer questioned five drivers, but wanted to question each of the other 93 dismissed drivers in relation to the same facts. In these circumstances, the Board’s refusal does not amount to a violation of the rules of natural justice.
Single employer declaration
[37] The employer submitted that the Board made a serious error of fact and law and exceeded its jurisdiction by illegally assuming jurisdiction over Gestion Réseau Besner, a business which, in the employer’s submission, was clearly within the scope of provincial jurisdiction under the Constitution. Gestion Réseau Besner, it said, was a logistics company which was not involved in any transportation activity, hired no drivers, had no transport licences, operated no trucks and owned no trailers. It operated as a business broker that purchased and allocated trips. Further, in order to exist and survive, Gestion Réseau Besner had no need of Besner Atlantic nor Besner Central, since it used and has always used a range of additional carriers.
[38] Based on this argument, the employer challenged on constitutional grounds the argument that the Code to Gestion Réseau Besner was inapplicable.
[39] The Board explained in detail, at paragraphs 191 to 197 of its reasons, the factors favouring the application of the Code to Gestion Réseau Besner. It wrote:
191 Concerning Besner Network, the Board cannot accept the respondents’ argument that this company is under provincial jurisdiction because it has no trucks, does not hire drivers and does not carry out any transport movements. The evidence submitted shows that Besner Network was established in 1998 and defines itself as a transportation logistics company. It is an entity in which were consolidated the operational and administrative services previously provided by Transport Besner. Further, the testimony heard by the Board revealed that although the senior management of Besner Network, such as the Vice-President and General Manager, Equipment Co-ordinator, Vice-President, Operations, Sales Director and Training Director, perform their work at Besner Network, their responsibilities also encompass Besner Central and Besner Atlantic. All these managers, except for the Vice-President, Operations, used to work for Transport Besner and they all work at Transport Besner’s original address, that is, 354 du Pont, Saint‑Nicolas.
192 The Board has considered the respondents’ argument that Besner Network is basically a logistics company, which offers transport movements to its customers and allocates the contracts it thus obtains to different transportation companies. Moreover, the Board has noted that Besner Network sometimes assigns customers’ transport movements to companies other than Besner Central and Besner Atlantic to ensure that delivery dates are met; however, the great majority of trips (between 75% and 95% in the last few years) are assigned to these two companies. The respondents’ testimony shows that the transport movements of these two companies are centralized and administered by Besner Network. According to some of the testimony heard, including that of the Head Dispatcher for Besner Atlantic in Moncton, Besner Network is viewed as the “head office” by the other Besner companies.
193 Further, it has been shown that the transport movements carried out by Besner Central and Besner Atlantic were assigned to these companies by Besner Network. The Besner Network Equipment Co-ordinator clearly explained that this company centralized customers’ transport requests. He also clearly explained that he had to assign transport movements to Besner Central and Besner Atlantic (and Transport Besner until December 23, 2002) in accordance with the location and availability of equipment, the type of equipment required and the customer’s delivery date. Thus, the Besner Network Sales Department provides centralized services from which Besner Central and Besner Atlantic (and Transport Besner until December 23, 2002) benefit. These companies themselves do not have Sales Departments, which would enable them to have customers and allocate transport requests directly.
194 There are, essentially, two ways for a company to be considered as coming under federal jurisdiction: first, if in itself it constitutes a single federal work, undertaking or business because its activities come under the exclusive jurisdiction of Parliament under section 92 of the Constitution Act, 1867; or second, if it is part of an existing federal work, undertaking or business. (See United Transportation Union v. Central Western Railway Corp., [1990] 3 S.C.R. 1112.) In Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322, the Supreme Court of Canada asserted that an undertaking can be a single federal work or undertaking in one of two ways. It can be recognized as a federal work, undertaking or business: (a) on its own account, or (b) because it is operated as a single enterprise in common with one or more federal undertakings, which together come under federal jurisdiction. (See also Day & Ross Nfld. Limited, [1999] CIRB no. 4; and 53 CLRBR (2d) 50; and City‑TV, CHUM City Productions Limited, Much Music Network and Bravo!, Division of CHUM Limited, [1999] CIRB no. 22; and 53 CLRBR (2d) 161.)
195 In this matter, Besner Network is not a work or undertaking that comes under federal jurisdiction directly or on its own account, as are Besner Central and Besner Atlantic. However, the Board is satisfied that Besner Network forms an integral part of the federal undertakings Besner Central and Besner Atlantic (and Transport Besner until December 23, 2002) and carries out its common activities with them, and that all these companies are jointly operated.
196 The Board also considered the jurisprudence submitted by the union, particularly Rivtow Marine Ltd. and Tiger Tugz Inc., supra. In that case, the Board stipulated that a company that may at first sight appear to be under provincial jurisdiction can nevertheless be a federal undertaking if it constitutes a vital or integral part of federal works or undertakings. The Board set out the following principles:
[19] An undertaking which prima facie falls within provincial jurisdiction because its works and operations are confined to a single province may nevertheless come under federal jurisdiction, if it can be shown to be part of a broader federal undertaking. This may occur if the disputed operation, notwithstanding its structure as a distinct undertaking performing essentially local activities, can be shown to be operated in common with a federal undertaking as a single enterprise . . . For a local undertaking to be found to be a single enterprise for constitutional purposes, there must be substantial inte