Communications, Energy & Paperworkers' Union of Canada v. Global Television

Communications, Energy & Paperworkers' Union of Canada v. Global Television
Court (s) Database
Federal Court Decisions
Date
2010-10-05
Neutral citation
2010 FC 988
File numbers
T-418-10
Notes
Digest
Decision Content
Federal Court
Cour fédérale
Date: 20101005
Docket: T-418-10
Citation: 2010 FC 988
Ottawa, Ontario, October 5, 2010
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
COMMUNICATIONS, ENERGY & PAPERWORKERS’ UNION OF CANADA
Applicant
and
GLOBAL TELEVISION,
a DIVISION OF
CANWEST TELEVISION
LIMITED PARTNERSHIP
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application pursuant to section 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7 for judicial review of the decision of a delegate of the Minister of Labour (Minister), dated February 19, 2010 (Decision), which granted the Respondent’s request for appointment of a conciliation officer pursuant to section 72 of the Canada Labour Code, R.S.C. 1985, c. L-2, (Code).
BACKGROUND
[2] The Applicant, the Communications, Energy & Paperworkers’ Union of Canada (Union or Applicant) is the certified bargaining agent for certain unionized employees of the Respondent employer, Global Television (Global or Respondent).
[3] These parties have been before the Canadian Industrial Relations Board (CIRB) on numerous occasions. During proceedings before the CIRB, the CIRB established three regional bargaining units for the Respondent: British Columbia; Alberta; and Eastern Canada. The parties have a number of proceedings before the CIRB that are ongoing.
[4] On January 14, 2008, Global served notice to the Union of its desire to enter into collective bargaining with respect to the Eastern Canada Bargaining Unit. It re-served on January 11, 2010. The Union contends that the notice to bargain was premature and improper and, for this reason, refused to bargain collectively with Global.
[5] In June 2008, Global filed a complaint with the CIRB alleging that the Union had refused to bargain. The Union filed a cross-complaint in which it alleged that no legal duty to bargain existed in this instance. Both of these complaints are outstanding before the CIRB.
[6] In October 2009, Global filed for protection under the Companies’ Creditors Arrangement Act, R.S.C. 1985, c. C-36 (CCAA). As a result of this filing, the Ontario Superior Court issued an order (Stay Order) staying proceedings against or in respect of Global until November 5, 2009. The period of stay was subsequently extended until March 31, 2010, and then June 15, 2010 (Stay Extension Order.) At the time of the hearing the stay had been extended to September 8, 2010.
[7] On February 4, 2010, Global wrote to the Minister seeking the appointment of a conciliation officer, pursuant to section 72 of the Code. The Union wrote to the Minister, opposing the appointment of a conciliation officer. The conciliation officer was appointed on February 19, 2010.
DECISION UNDER REVIEW
[8] The Minister granted Global’s request to appoint a conciliation officer to address the dispute between Global and the Union after having reportedly received “a notice of six disputes pursuant to Section 71 of the Canada Labour Code.”
[9] The Minister noted that, pursuant to paragraph 73(2)(b) of the Code, the conciliation officer’s mandate is subject to extension by the Minister up to 60 days from the date of the appointment, and by mutual consent of the parties thereafter.
ISSUES
[10] The issues on this application can be summarized as follows:
Whether the Decision to appoint a conciliation officer is prohibited by the Stat Extension Order made by the Ontario Superior Court of Justice; In the alternative, whether the Decision is invalid because it was made in relation to “multiple disputes” that did not exist; In the further alternative, whether the Decision to appoint a conciliation officer was improper because it was:
an unreasonable exercise of the Minister’s discretion; or conditional on the existence of a duty to bargain and the service of a proper notice to bargain neither of which existed.
STATUTORY PROVISIONS
[11] The following provisions of the Code are applicable in these proceedings:
48. Where the Board has certified a bargaining agent for a bargaining unit and no collective agreement binding on the employees in the bargaining unit is in force, the bargaining agent may, by notice, require the employer of those employees, or the employer may, by notice, require the bargaining agent to commence collective bargaining for the purpose of entering into a collective agreement.
49. (1) Either party to a collective agreement may, within the period of four months immediately preceding the date of expiration of the term of the collective agreement, or within the longer period that may be provided for in the collective agreement, by notice, require the other party to the collective agreement to commence collective bargaining for the purpose of renewing or revising the collective agreement or entering into a new collective agreement.
(2) Where a collective agreement provides that any provision of the collective agreement may be revised during the term of the collective agreement, a party entitled to do so by the collective agreement may, by notice, require the other party to commence collective bargaining for the purpose of revising the provision.
50. Where notice to bargain collectively has been given under this Part,
(a) the bargaining agent and the employer, without delay, but in any case within twenty days after the notice was given unless the parties otherwise agree, shall
(i) meet and commence, or cause authorized representatives on their behalf to meet and commence, to bargain collectively in good faith, and
(ii) make every reasonable effort to enter into a collective agreement; and
(b) the employer shall not alter the rates of pay or any other term or condition of employment or any right or privilege of the employees in the bargaining unit, or any right or privilege of the bargaining agent, until the requirements of paragraphs 89(1)(a) to (d) have been met, unless the bargaining agent consents to the alteration of such a term or condition, or such a right or privilege.
…
71. (1) Where a notice to commence collective bargaining has been given under this Part, either party may inform the Minister, by sending a notice of dispute, of their failure to enter into, renew or revise a collective agreement where
(a) collective bargaining has not commenced within the time fixed by this Part; or
(b) the parties have bargained collectively for the purpose of entering into or revising a collective agreement but have been unable to reach agreement.
(2) The party who sends a notice of dispute under subsection (1) must immediately send a copy of it to the other party.
72. (1) The Minister shall, not later than fifteen days after receiving a notice in writing under section 71,
(a) appoint a conciliation officer;
(b) appoint a conciliation commissioner;
(c) establish a conciliation board in accordance with section 82; or
(d) notify the parties, in writing, of the Minister’s intention not to appoint a conciliation officer or conciliation commissioner or establish a conciliation board.
(2) Where the Minister has not received a notice under section 71 but considers it advisable to take any action set out in paragraph (1)(a), (b) or (c) for the purpose of assisting the parties in entering into or revising a collective agreement, the Minister may take such action.
(3) The Minister may only take one action referred to in this section with respect to any particular dispute involving a bargaining unit.
48. Une fois accrédité pour une unité de négociation et en l’absence de convention collective applicable aux employés de cette unité, l’agent négociateur de celle-ci — ou l’employeur — peut transmettre à l’autre partie un avis de négociation collective en vue de la conclusion d’une convention collective.
49. (1) Toute partie à une convention collective peut, au cours des quatre mois précédant sa date d’expiration, ou au cours de la période plus longue fixée par la convention, transmettre à l’autre partie un avis de négociation collective en vue du renouvellement ou de la révision de la convention ou de la conclusion d’une nouvelle convention.
(2) Si la convention collective prévoit la possibilité de révision d’une de ses dispositions avant l’échéance, toute partie qui y est habilitée à ce faire peut transmettre à l’autre partie un avis de négociation collective en vue de la révision en cause.
50. Une fois l’avis de négociation collective donné aux termes de la présente partie, les règles suivantes s’appliquent :
a) sans retard et, en tout état de cause, dans les vingt jours qui suivent ou dans le délai éventuellement convenu par les parties, l’agent négociateur et l’employeur doivent :
(i) se rencontrer et entamer des négociations collectives de bonne foi ou charger leurs représentants autorisés de le faire en leur nom;
(ii) faire tout effort raisonnable pour conclure une convention collective;
b) tant que les conditions des alinéas 89(1)a) à d) n’ont pas été remplies, l’employeur ne peut modifier ni les taux des salaires ni les autres conditions d’emploi, ni les droits ou avantages des employés de l’unité de négociation ou de l’agent négociateur, sans le consentement de ce dernier.
…
71. (1) Une fois donné l’avis de négociation collective, l’une des parties peut faire savoir au ministre, en lui faisant parvenir un avis de différend, qu’elles n’ont pas réussi à conclure, renouveler ou réviser une convention collective dans l’un ou l’autre des cas suivants :
a) les négociations collectives n’ont pas commencé dans le délai fixé par la présente partie;
b) les parties ont négocié collectivement mais n’ont pu parvenir à un accord.
(2) La partie qui envoie l’avis de différend en fait parvenir sans délai une copie à l’autre partie.
72. (1) Dans les quinze jours suivant la réception de l’avis qui lui a été donné aux termes de l’article 71, le ministre prend l’une ou l’autre des mesures suivantes :
a) nomination d’un conciliateur;
b) nomination d’un
commissaire-conciliateur;
c) constitution d’une commission de conciliation en application de l’article 82;
d) notification aux parties, par écrit, de son intention de ne procéder à aucune des mesures visées aux alinéas a), b) et c).
(2) Même sans avoir reçu l’avis prévu à l’article 71, le ministre peut prendre toute mesure visée aux alinéas (1)a), b) ou c) s’il l’estime opportun pour aider les parties à conclure ou à réviser une convention collective.
(3) Le ministre ne peut prendre qu’une des mesures que prévoit le présent article à l’égard d’un différend visant une unité de négociation collective.
[12] The following provisions of the CCAA are also applicable in these proceedings:
Stays, etc. — initial application
11.02 (1) A court may, on an initial application in respect of a debtor company, make an order on any terms that it may impose, effective for the period that the court considers necessary, which period may not be more than 30 days,
(a) staying, until otherwise ordered by the court, all proceedings taken or that might be taken in respect of the company under the Bankruptcy and Insolvency Act or the Winding-up and Restructuring Act;
(b) restraining, until otherwise ordered by the court, further proceedings in any action, suit or proceeding against the company; and
(c) prohibiting, until otherwise ordered by the court, the commencement of any action, suit or proceeding against the company.
Stays, etc. — other than initial application
(2) A court may, on an application in respect of a debtor company other than an initial application, make an order, on any terms that it may impose,
(a) staying, until otherwise ordered by the court, for any period that the court considers necessary, all proceedings taken or that might be taken in respect of the company under an Act referred to in paragraph (1)(a);
(b) restraining, until otherwise ordered by the court, further proceedings in any action, suit or proceeding against the company; and
(c) prohibiting, until otherwise ordered by the court, the commencement of any action, suit or proceeding against the company.
Burden of proof on application
(3) The court shall not make the order unless
(a) the applicant satisfies the court that circumstances exist that make the order appropriate; and
(b) in the case of an order under subsection (2), the applicant also satisfies the court that the applicant has acted, and is acting, in good faith and with due diligence.
Restriction
(4) Orders doing anything referred to in subsection (1) or (2) may only be made under this section.
Suspension : demande initiale
11.02 (1) Dans le cas d’une demande initiale visant une compagnie débitrice, le tribunal peut, par ordonnance, aux conditions qu’il peut imposer et pour la période maximale de trente jours qu’il estime nécessaire :
a) suspendre, jusqu’à nouvel ordre, toute procédure qui est ou pourrait être intentée contre la compagnie sous le régime de la Loi sur la faillite et l’insolvabilité ou de la Loi sur les liquidations et les restructurations;
b) surseoir, jusqu’à nouvel ordre, à la continuation de toute action, poursuite ou autre procédure contre la compagnie;
c) interdire, jusqu’à nouvel ordre, l’introduction de toute action, poursuite ou autre procédure contre la compagnie.
Suspension : demandes autres qu’initiales
(2) Dans le cas d’une demande, autre qu’une demande initiale, visant une compagnie débitrice, le tribunal peut, par ordonnance, aux conditions qu’il peut imposer et pour la période qu’il estime nécessaire :
a) suspendre, jusqu’à nouvel ordre, toute procédure qui est ou pourrait être intentée contre la compagnie sous le régime des lois mentionnées à l’alinéa (1)a);
b) surseoir, jusqu’à nouvel ordre, à la continuation de toute action, poursuite ou autre procédure contre la compagnie;
c) interdire, jusqu’à nouvel ordre, l’introduction de toute action, poursuite ou autre procédure contre la compagnie.
Preuve
(3) Le tribunal ne rend l’ordonnance que si :
a) le demandeur le convainc que la mesure est opportune;
b) dans le cas de l’ordonnance visée au paragraphe (2), le demandeur le convainc en outre qu’il a agi et continue d’agir de bonne foi et avec la diligence voulue.
Restriction
(4) L’ordonnance qui prévoit l’une des mesures visées aux paragraphes (1) ou (2) ne peut être rendue qu’en vertu du présent article.
STANDARD OF REVIEW
[13] There is considerable disagreement between the parties regarding the standard of review that is applicable to the issues raised in this application. Global is of the view that all of the issues raised should be reviewed using the reasonableness standard. The Applicant, on the other hand, feels that, at least with regard to the jurisdictional issue, the standard should be correctness.
[14] The Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 (Dunsmuir) held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to the particular question before the court is well-settled by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis.
[15] In my view, the issue of whether the Stay Order prohibited the appointment of a conciliation officer is not a true jurisdictional issue. The Applicant concedes that there is nothing in the CCAA that prevents the appointment of a conciliator, and there is no issue concerning the Minister’s power to appoint a conciliator under the Code. This looks to me like a simple question of whether the terms of the Order forbid the appointment of a conciliation officer. In other words, it is a matter of construction interpreting the Order and, as such, it attracts a standard of reasonableness.
[16] In Kissoon v. Canada (Minister of Human Development Resources), 2004 FC 24, 245 F.T.R. 152, aff’d at 329 N.R. 232 (F.C.A.), Justice Snider stated, at paragraphs 4 and 5 that the appropriate standard for a review of the exercise of discretion by a minister is patent unreasonableness:
4 The decision of the Minister under section 66(4) of the CPP is discretionary. Although the Minister "shall" take remedial action that it considers appropriate, this duty arises only once the Minister is satisfied that erroneous advice has been given or that an administrative error has occurred. The requirement to take remedial action is conditional and, therefore, does not fetter the Minister's discretion to first satisfy herself that an error has been made (Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2). Given the discretionary nature of the Minister's decision, the standard of review is patent unreasonableness (Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3 at 24). This means that the Minister's decision should only be set aside if it is "made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors" (Maple Lodge Farms, supra).
5. A finding of erroneous advice or administrative error is one of fact, which also signals to a court that deference should be accorded to the Minister. Evidence should not be reweighed nor findings tampered with merely because this Court would have come to a different conclusion. (Suresh, supra at 24-25).
This was cited favourably by Justice Mandamin in Manning v. Canada (Human resource Development), 2009 FC 523, [2009] F.C.J. No. 646.
[17] In Eli Lilly and Co. v. Apotex Inc., 2007 FC 929, [2007] F.C.J. No. 1223, Justice Harrington considered the standard of review to be applied when a prothonotary was interpreting her own orders. Justice Harrington stated:
7. The three orders under appeal are discretionary in nature. No matter what her [Prothonotary Aronovitch’s] decisions might have been, they were not vital to the outcome of the cases. Therefore, her discretion should not be disturbed, and I should not exercise discretion de novo, unless the orders are clearly wrong in the sense that the exercise of discretion was based upon a wrong principle or upon a misapprehension of the facts (Merck & Co. v. Apotex Inc., [2004] 2 F.C.R. 459, 30 C.P.R. (4th) 40 (F.C.A.)). Eli Lilly submits that the Prothonotary misconstrued her earlier orders and thereby rendered her decisions based upon a wrong principle.
[…]
15. Whether two orders are to be read together, or if one supersedes the other is a matter of construction. As stated by the Manitoba Court of Appeal in Allen v. Manitoba (Judicial Council), [1993] 3 W.W.R. 749, 83 Man. R. (2d) 136, "...a court order should ordinarily be construed in the context of the application for it." There is nothing in the record to indicate that the Prothonotary got it wrong.
16. Although I am basing myself on a standard of correctness, that is to say that I can show her no deference on a question of law, it may well be that the interpretation of scheduling orders should not be disturbed unless unreasonable. In Voice Construction Ltd. v. Construction & General Workers' Union Local 92, [2004] 1 S.C.R. 609, the Supreme Court held that the standard of judicial review in assessing an arbitrator's interpretation of a collective agreement was reasonableness simpliciter. Although an appeal to this Court from an order of a Prothonotary is of a different legal order, the fact remains that it is the case manager who knows what is going on in a case, and why. If lengthy reasons had to be given for each and every order, the process would grind to a halt.
[…]
21. I am not prepared to say she erred in law in interpreting her two orders. Indeed, I do not think a strict literal textual approach can be taken in an analysis of scheduling orders. The June 2005 order was her 56th order or direction, her March 2006 order her 72nd, and her order under appeal her 103rd, to be found on the 245th page of the Summary of Recorded Entries.
22. I think the question to be asked is whether her interpretation was reasonable and in the interest of justice. I do not think that this is such a strict matter of law that the Prothonotary's order must be reviewed on a standard of correctness. See Voice Construction, above.
[18] Whether the Decision and appointment are invalid because they were made based on erroneous findings of fact is reviewable, in my view, on a standard of reasonableness. See Dunsmuir, above, at paragraph 53. The Decision may be overturned if it is found to be based on an erroneous finding of fact made in a perverse or capricious manner.
[19] Similarly, reasonableness is, in my view, the appropriate standard with which to review whether the Decision and appointment are invalid due to the lack of a duty to bargain and the provision of proper notice, the existence of which are issues of fact. See Dunsmuir, above.
[20] The judicial review of the Minister’s exercise of discretion deserves deference. See Dunsmuir, above, at paragraph 53. As such, reasonableness is the appropriate standard.
[21] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process and [also] with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir at paragraph 47. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
ARGUMENTS
The Applicant
Decision and appointment contrary to the Order
[22] The Union submits that the initial Order made by the Ontario Superior Court of Justice included a stay of proceedings, which stayed “all rights and remedies of any … governmental body or agency, or any other entities … ” The period of stay was extended to March 31, 2010 by the Stay Extension Order. Consequently, the February 19th Decision and appointment of the conciliation officer occurred during the stay period and were contrary to the Order and the Stay Extension Order. Similar circumstances existed in Guelph Products Collins & Aikman, [2009] O.L.R.D. No. 850, [2009] OLRB Rep. March/April 243 (Guelph), in which the Ontario Labour Relations Board determined that the order prohibited the appointment of a conciliation officer.
[23] The Union submits that the language of the order in Guelph is substantially the same as the Order in the present case. The Minister’s Decision and subsequent appointment of the conciliation officer pursuant to section 72 of the Code constitute the exercise of a “right” or “remedy.” Furthermore, it is a right or remedy that pertains to the employer. The initial Order and the Stay Extension Order prohibit the appointment of a conciliation officer during the stay period. Clearly, the language of the Order and the similarity with Guelph, above, demonstrate that the Minister erred in making her Decision and subsequent appointment.
[24] The Union submits that, if there is any room for interpretation within the language of the Order, the Court ought to take a broad and liberal approach to interpretation. According to Guelph, above, at paragraph 18, a “broad interpretation is consistent with the way in which courts have interpreted their own CCAA Orders.” Moreover, the cautious approach taken in Guelph is appropriate because of the public policy purpose served by the CCAA. It is also worth noting that the CIRB itself has determined that its proceedings can be stayed by a CCAA order. See, for example, Re Air Canada, [2003] CIRB No. 225, [2003] C.I.R.B.D. No. 17.
[25] The Union further submits that the Minister’s Decision and subsequent appointment of the conciliation officer were stayed by virtue of the initial Order, which cannot be “cured” by subsequent consent of the employer. Rather, the appointment of the conciliation officer on February 19, 2010 is either valid or invalid as of that date. Furthermore, the Minister’s conduct cannot be cured by the conciliator’s decision to proceed with conciliation after receiving consent of the parties.
[26] The Minister’s Decision was made without jurisdiction. When it was made, the Minister had no jurisdiction to appoint a conciliator because of the stay provisions in the initial Order. Consequently, the Decision is void ab initio. It cannot be cured since it is a legal nullity. As such, the conciliation officer could not re-start a process that was a legal nullity from the outset. Not even the consent of the parties can resuscitate a process that was never lawfully started.
[27] The Minister should have recognized that pursuant to paragraph 16 of the initial Order, she was prevented from appointing a conciliation officer under section 72 of the Code. Because she did not recognize that such an appointment was stayed by the Order, the Decision and appointment are invalid.
Decision and appointment made in relation to “disputes” that did not exist
[28] In the alternative, the Union submits that the Decision and appointment were invalid because they were made in relation to disputes that did not exist.
[29] Global had applied to the Minister for the appointment of a conciliation officer in respect of the Eastern Canada Bargaining Unit. This is the bargaining unit that Global contends it has served with notice to bargain.
[30] At the time of Global’s application for appointment of a conciliation officer, six bargaining units had been collapsed to create a single Eastern Canada Bargaining Unit. Regardless, the Minister appointed a conciliator to address the “six disputes.” The reference to six bargaining units was inaccurate.
[31] Due to this inaccuracy, the Minister’s consideration of whether to appoint a conciliator was flawed because she had in mind six alleged disputes as opposed to the one actual dispute. There cannot be six disputes when only one bargaining unit exists. As a result, the appointment was improper. While there was a dispute in existence, it was different from the disputes for which the conciliation officer was appointed. Consequently, the appointment was contrary to the Code.
Unreasonable exercise of discretion
[32] The conciliation process started by an appointment under sections 71 and 72 of the Code must be completed prior to the Union being lawfully permitted to strike or the employer being in a lawful position to lockout. The Union submits that, due to the existence of the Stay Order and its subsequent extensions, the appointment made by the Minister may result in a situation where Global may lockout its employees but the Union cannot strike.
[33] A situation where one party to the collective bargaining relationship may initiate a labour dispute while the other is prohibited by a court order from so doing is contrary to the fundamental scheme of the Code. According to the Union, “[t]he Code contemplates that the spectre of the initiation of a labour dispute by either party is the motivation that forces the parties to engage in meaningful collective bargaining, or conciliation, toward the goal of a constructive settlement of their dispute.” Jurisprudence supports this argument. See, for example, Re CFRN-TV (A Division of BBS Inc.), [1999] CIRB No. 7, [1999] C.I.R.B.D. No. 7, at paragraph 71.
[34] The Union submits that where one party alone has the power to initiate a labour dispute, there is no incentive for that party to engage in meaningful collective bargaining or conciliation. This is especially so where the party is the employer, who may unilaterally alter the terms and conditions of employment of members of the bargaining unit if it satisfies the relevant provisions of the Code. The Court should prohibit the Minister from exercising her discretion to appoint a conciliation officer because it could lead to this untenable situation.
No duty or proper notice to bargain
[35] The Union argues that not just any notice to bargain triggers the duty to bargain in good faith pursuant to section 50(a) of the Code. Rather, the only proper notice to bargain is a notice authorized under the Code. While notice to bargain could be given under sections 48, 49 and 18.1(4)(f) of the Code, none of these provisions are applicable to the facts in this case.
[36] Moreover, under section 71 of the Code, a party may send a notice of dispute to the Minister requesting the appointment of a conciliator only where “notice … has been given under this Part” (emphasis added). The Union submits that this is a jurisdictional prerequisite to the exercise of the Minister’s discretion and that it was not met in this instance. As such, the appointment of the conciliation officer pursuant to section 72 of the Code was improper
[37] The Union has no legal obligation at this point to bargain in relation to the Eastern Bargaining Unit. In the words of the Union, “[i]n the absence of a legal obligation to bargain, there can be no valid notice to bargain, no valid application pursuant to Section 71, and thus no valid Appointment pursuant to Section 72.”
[38] The conciliation process is a prerequisite to any lawful lockout or strike. The unlawful and invalid appointment of the conciliator has unlawfully moved the parties closer to a labour dispute. The Union submits that the Court must now intervene to ensure that all of the statutory prerequisites are met before such a dispute begins.
Remedy
[39] The Decision and appointment were improper and an unreasonable exercise of the Minister’s discretion under these circumstances. The Decision to appoint a conciliator has affected the rights of the Union and moved Global closer to a position where it can claim to lawfully lockout the employees. As a result, the Court should issue a writ of certiorari quashing both the Decision and the appointment. The Union also seeks a declaration that the Decision and appointment are invalid, as well as costs of this application.
The Respondent
The Stay
[40] Global submits that when a company seeks protection under the CCAA and a stay order is issued, that company is shielded from actions commenced before and after the order is issued. However, neither the CCAA nor a stay order nor the stay extension order prohibits the protected company from taking action itself. Consequently, in the instant case, neither the Stay Order nor the Stay Extension Order prohibit Global from taking action.
[41] A similar situation occurred in Re Canwest Global Communications Corp., [2009] O.J. No. 5379 in which the court examined sections 11.02(1) and (2) of the CCAA and determined that the legislation prevented only those actions that were against the company seeking protection. As stated by the Respondent, “[w]ith respect to that part of the order dealing with ‘proceedings taken or that might be taken in respect of the company’, that part relates only to proceedings under the Bankruptcy and Insolvency Act or the Winding-up and Restructuring Act, neither of which applies in the present case.” The result is that the CCAA and the Stay Order and Stay Extension Order will stay, restrain or prohibit action against Global but do not prevent Global from taking action itself.
[42] While the Union relies on Guelph, above, and Re Air Canada, above, those cases are distinguishable from the case at hand. In those cases, it was the Union that was seeking to appoint a conciliation officer. Neither of these cases considered whether the appointment of a conciliation officer should be stayed where that right or remedy inheres in the protected company, as is the case at hand.
[43] Global contends that it would be absurd to interpret the Stay Order and the Stay Extension Order (or, indeed, any stay under the CCAA) as prohibiting actions taken by the protected company, since such actions may be necessary or beneficial to the company as reorganizes or restructures under the protection of the CCAA. Moreover, such an interpretation would be contrary to the language used by Parliament in drafting section 11 of the CCAA, which considers staying and prohibiting actions against protected companies.
[44] Therefore, Global submits that the Stay Order and the Stay Extension Order do not render the Minister’s Decision and appointment void. Regardless, however, there has been agreement between the parties to lift the stay as it pertains to the conciliation process.
Multiple disputes
[45] This alleged “defect” in the appointment does not render the appointment void, as suggested by the Union. It was simply an inadvertent slip on the part of the Minister with regard to the material before her. There is no doubt that the appointment pertained to the Eastern Canada Bargaining Unit and the collective bargaining negotiations that Global was attempting to perform with the Union.
[46] Furthermore, the parties have started the conciliation process, and the Minister’s reference to “six disputes” does not change or impact the conciliation process. Global contends that any alleged defect in the notice to appoint should not render the entire process void.
Notice of Dispute
[47] The Minister is required to appoint a conciliation officer once a party has complied with section 71 of the Code. See Guelph, above. Global submits that the notice of dispute met the requirements of section 71 of the Code. As a result, the subsequent appointment of a conciliation officer pursuant to section 72 was appropriate, since the parties had neither met nor started collective bargaining within the time limits required under section 50 of the Code.
[48] Notice to begin collective bargaining was provided to the Union on two occasions: first on January 14, 2008; and again on January 11, 2010. Collective bargaining failed to begin after each notice to bargain was served. Consequently, the notice of dispute provided by Global satisfied section 71(1)(a) of the Code.
[49] The notice to bargain was in the prescribed form and was served properly on the Union. Because notice to commence collective bargaining was given, and collective bargaining was not commenced within the timeframe stipulated by the Code, the appointment was appropriate. Indeed, the prerequisites to serving the notice of dispute were met in this instance. It was the Minister’s prerogative to appoint a conciliator once she was satisfied that these prerequisites had been met.
[50] If the Minister was required to confirm that the notice to bargain was appropriate, Global submits that the Minister was satisfied that the notice to bargain had been properly served on the Union. The same arguments that the Union has placed before the Court were placed before the Minister: that the appropriate notice to bargain had not been served; that no bargaining should proceed until the Union knew the constituency for whom it was bargaining; and that the application should not proceed while Global was in CCAA proceedings.
[51] In response to the Union’s arguments, Global argued that the notice to bargain was neither premature nor improper, that the Eastern Bargaining Unit was mostly set and that the pending matters before the Board did not act as a stay or freeze the collective bargaining relationship.
[52] Despite the arguments of the Union, the Minister made the appointment requested by Global. The Minister’s Decision and the subsequent appointment were reasonable based on the facts and arguments before her.
Potential for a Lockout
[53] The Union has argued that the Minister’s appointment was unreasonable because it could result in Global being able to lockout following the conciliation process but does not allow the Union to strike without violating the Stay Order and the Stay Extension Order. However, Global contends that the Stay Order and the Stay Extension Order are intended to benefit the company that is seeking to restructure. Global argues that, “[w]hile perhaps draconian, such measures are necessary for a company facing bankruptcy. Moreover, they are specifically contemplated by the CCAA.” For instance, Re Air Canada, above, recognized that lay-offs that would normally be inconsistent with the relevant collective bargaining agreement may be necessary where a company is facing bankruptcy.
[54] The Union’s argument that it is contrary to the fundamental scheme of the Code to permit a lockout but not a strike is flawed for several reasons. First, this argument ignores the reality that employers are provided with additional protections when stays are granted under the CCAA. Second, the argument ignores the fact that a labour disruption occurs as the result of an impasse in collective bargaining and that the current absence of any progress in negotiations is due to the Union’s refusal to bargain. According to Global, “[i]t is the Union avoiding negotiations, not Global.” Indeed, Global says that it has provided numerous requests to begin collective bargaining and has sought the assistance of a conciliation officer. Finally, Global notes that the Union may apply to the Ontario Superior Court to lift the stay in accordance with the CCAA in order to allow the Union to exercise its rights pursuant to the Code.
Preconditions Met
[55] Global says that notice to commence collective bargaining was provided to the Union on two separate occasions: first, on January 14, 2008, and second, on January 11, 2010 and that collective bargaining failed to commence on both occasions. The notice to bargain was in prescribed form and was properly served on the Union. This means that the preconditions to serving the notice of dispute under section 71(1) of the Code were met in this case.
ANALYSIS
[56] The Union has advanced four grounds for reviewable error in this case.
Contrary to Stay Extension Order
[57] The Union concedes that there is nothing in the CCAA itself that prevents the Minister from appointing a conciliation officer on the facts of this case. The complaint is that the Minister’s Decision is contrary to the Stay Order and the Stay Extension Order made under the CCAA.
[58] The Union’s focus is upon paragraphs 15 and 16 of the Stay Order and, in particular, the words in paragraph 16 that suspend rights and remedies during the stay period “in respect of the CMI Entities, the Monitor and/or the CMI CRA … .”
[59] The Union further concedes that the Minister’s Decision to appoint a conciliator is not made “against” Global, so that it can be caught by the prohibition in the Stay Order only if it can be characterized as being made “in respect of” Global.
[60] The Union agrees that these words are not specific to Global and that the Order made in this case is standard and fairly typical of stay orders made under CCAA. This includes the term “in respect of.”
[61] The purpose and scope of this kind of stay order were extensively reviewed by Justice Pepall of the Ontario Superior Court of Justice in Re Canwest Global, above. I find the following portions of Justice Pepall’s reasons helpful in this case:
27 The stay provisions in the CCAA are discretionary and are extraordinarily broad. Section 11.02 (1) and (2) states:
11.02 (1) A court may, on an initial application in respect of a debtor company, make an order on any terms that it may impose, effective for the period that the court considers necessary, which period may not be more than 30 days,
(a) staying, until otherwise ordered by the court, all proceedings taken or that might be taken in respect of the company under the Bankruptcy and Insolvency Act or the Winding-up and Restructuring Act;
(b) restraining, until otherwise ordered by the court, further proceedings in any action, suit or proceeding against the company; and
(c) prohibiting, until otherwise ordered by the court, the commencement of any action, suit or proceeding against the company.
(2) A court may, on an application in respect of a debtor company