Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375)

Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375)
Court (s) Database
Federal Court of Appeal Decisions
Date
2023-05-05
Neutral citation
2023 FCA 93
File numbers
A-162-20
Decision Content
Date: 20230505
Docket: A-162-20
Citation: 2023 FCA 93
CORAM:
BOIVIN J.A.
GLEASON J.A.
LEBLANC J.A.
BETWEEN:
MARITIME EMPLOYERS ASSOCIATION,
MONTREAL PORT AUTHORITY
and
SHIPPING FEDERATION OF CANADA
Applicants
and
SYNDICAT DES DÉBARDEURS, LOCAL 375 OF THE CANADIAN UNION OF PUBLIC EMPLOYEES,
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,
LA CHAMBRE DE COMMERCE DE L'EST DE MONTRÉAL,
LE CONSEIL DU PATRONAT DU QUÉBEC
and
LA FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC
Respondents
Heard at Montréal, Quebec, on September 12 and 13, 2022.
Judgment delivered at Ottawa, Ontario, on May 5, 2023.
REASONS FOR JUDGMENT BY:
GLEASON J.A.
CONCURRED IN BY:
BOIVIN J.A.
LEBLANC J.A.
Date: 20230505
Docket: A-162-20
Citation: 2023 FCA 93
CORAM:
BOIVIN J.A.
GLEASON J.A.
LEBLANC J.A.
BETWEEN:
MARITIME EMPLOYERS ASSOCIATION,
MONTREAL PORT AUTHORITY
and
SHIPPING FEDERATION OF CANADA
Applicants
and
SYNDICAT DES DÉBARDEURS, LOCAL 375 OF THE CANADIAN UNION OF PUBLIC EMPLOYEES,
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION,
LA CHAMBRE DE COMMERCE DE L'EST DE MONTRÉAL,
LE CONSEIL DU PATRONAT DU QUÉBEC
and
LA FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC
Respondents
REASONS FOR JUDGMENT
GLEASON J.A.
[1] This application for judicial review concerns the decision of the Canada Industrial Relations Board (the CIRB or the Board) in Maritime Employers Association v. Syndicat des débardeurs, Local 375 of the Canadian Union of Public Employees, 2020 CIRB 927, 71 C.L.R.B.R. (3d) 1. The decision was rendered following an application to the Board made by the applicant, Maritime Employers Association (the MEA), under subsection 87.4(4) Canada Labour Code, R.S.C. 1985, c. L-2 (the Code). The MEA sought in its application to the Board to have the CIRB declare that all the work performed by all members of the respondent Syndicat des débardeurs, Local 375 of the Canadian Union of Public Employees (the Union) in the Port of Montreal must be maintained during a legal strike or lockout.
[2] The Union represents longshoring employees who are engaged in various tasks associated with loading and unloading vessels in the Port of Montreal. The MEA is their employer for purposes of Part I of the Code, having previously been designated by the CIRB as the employer under section 34 of the Code. Thus, the Union and the MEA are parties to the collective agreement applicable to the bargaining unit employees to whom the MEA’s section 87.4 application pertained.
[3] In the decision that is the subject of this application for judicial review, the CIRB disagreed with the MEA’s position and concluded that section 87.4 of the Code did not require that any of the work performed by bargaining unit members be maintained during a legal strike or lockout.
[4] In its judicial review application to this Court, the MEA and the other applicants seek to have the Court set aside the Board’s decision and declare that all the work performed by bargaining unit members in the Port of Montreal must be maintained during a legal strike or lockout in accordance with section 87.4 of the Code.
[5] Subsequent to the hearing before this Court, at the request of the panel, the parties submitted written representations on the issue of whether this application had become moot in light of the adoption by Parliament of back-to-work legislation in May 2021 in Port of Montreal Operations Act, 2021, S.C. 2021, c. 6 (the PMOA). The PMOA ended a strike that was occurring in the Port of Montreal and required all bargaining unit members to return to work. The PMOA also provided for settlement, via a mediation-arbitration process, of the collective agreement between the Union and the MEA applicable to the Port of Montreal bargaining unit.
[6] Having reviewed the parties’ representations on the mootness issue, I have concluded that this application for judicial review has not been rendered moot due to a challenge to the PMOA that the Union brought and that is currently pending before the Superior Court of Quebec in Syndicat des débardeurs, SCFP, section locale 375 c. Procureur général du Canada, file number: 500-17-116886-212.
[7] In this challenge, the Union seeks to have the PMOA declared inoperative as an unjustifiable infringement on the freedom of association guaranteed to its members by subsection 2(d) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter). Should such a declaration be made, it is possible that the Union might again find itself in a legal strike position for the Port of Montreal bargaining unit. This possibility means that the issues raised in this application for judicial review are still live ones and accordingly must be decided by this Court.
[8] As is apparent from the reasons that follow, the applicants have raised a multitude of issues before us. Many of them invite this Court to reweigh the evidence that was before the CIRB. However, that is not our role on judicial review. We cannot second-guess the CIRB’s findings. Rather, we may intervene only if the CIRB failed to accord the applicants procedural fairness or rendered an unreasonable decision.
[9] For the reasons that follow, I have concluded that there is no basis to interfere with the decision of the CIRB and that this application for judicial review should be dismissed.
I. Section 87.4 of the Code
[10] It is useful to commence by reviewing section 87.4 of the Code and some of the principles regarding its application that the CIRB has set out in the more significant decisions interpreting the provision. The complete text of section 87.4 of the Code is attached in the Appendix to these Reasons. The salient features of the section may be summarized as follows.
[11] Added to the Code in 1999, section 87.4 is designed to protect the public interest. The section requires the maintenance during a legal strike or lock out of “… the supply of services, operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public” (subsection 87.4 (1)).
[12] The provision operates by casting primary responsibility for the maintenance of such activities on the parties to the collective agreement and bargaining unit employees, who are required to ensure the maintenance of all activities necessary to prevent an immediate and serious danger to the safety or health of the public.
[13] Subsections 87.4(2) and (3) provide parties to the collective agreement with the ability to settle the terms of a maintenance of activities agreement, governing the activities to be maintained during a legal strike or lockout, and the basis upon which such activities are to be performed. If a maintenance of activities agreement is reached, it must be filed with the CIRB.
[14] Where no agreement is reached but notice to negotiate one was given, subsection 87.4(4) of the Code provides a mechanism for a party to apply to the CIRB to settle what supply of services, operation of facilities, or production of goods must be maintained during a legal strike or lockout.
[15] By virtue of subsection 87.4(5) of the Code, the federal Minister of Labour is also afforded the ability to refer such issues to the CIRB when a strike or lockout is imminent or occurring.
[16] Where an application is made under either subsection 87.4(4) or (5) of the Code, the Board is authorized to issue a maintenance of activities order under subsection 87.4(6) where it “… is of the opinion that a strike or lockout could pose an immediate and serious danger to the safety or health of the public”.
[17] Where a referral is made to the CIRB within the time periods contemplated in the Code (or within such longer time period as the Board might authorize pursuant to subsection 16(m.1) of the Code), by virtue of paragraph 89(1)(e) of the Code, the parties cannot engage in a strike or lockout until the CIRB decides the maintenance of activities application. Therefore, the making of an application like the one made by the MEA to the CIRB in the present case has the effect of suspending acquisition of the right to strike or lockout.
[18] If, following an application made to it, the CIRB concludes that there are some services, facilities or production that must be maintained during a strike or lockout because their cessation could result in an immediate and serious danger to the safety or health of the public, the Board possesses broad remedial authority. Pursuant to paragraphs 87.4(6)(a) and (b) of the Code, the CIRB may settle which services, facilities or production must be maintained, which employees are prevented from striking or being locked out, and on what terms they will perform the activities that are to be maintained. By virtue of paragraph 87.4(6)(c) of the Code, the CIRB may in addition “impose any measure that it considers appropriate for carrying out the requirements of [section 87.4].”
[19] Further, where the CIRB is of the opinion that the number of employees prevented from striking or being locked out would render a strike or lockout ineffective, subsection 87.4(8) of the Code provides the Board remedial authority to order the settlement of the collective agreement via a binding process, such as third-party interest arbitration.
[20] Subsection 87.4(7) of the Code affords the Board authority to review, confirm, amend or cancel a maintenance of activities agreement or previous Board order made under section 87.4 of the Code, following an application made by one of the parties to the collective agreement or the Minister of Labour after a legal strike or lockout has commenced if the Board is of the opinion that “the circumstances warrant”.
[21] In assessing what services must be maintained, the CIRB has indicated that section 87.4 of the Code is a public interest provision that requires the Board to “… balanc[e] the principles of free collective bargaining with the protection of the safety and health of the public” (City of Ottawa, 2009 CIRB 447, [2009] C.I.R.B.D. No. 12 at para. 34 [City of Ottawa]). To somewhat similar effect, in Canadian National Railway Company, 2005 CIRB 314, [2005] C.I.R.B.D. No. 9 at para. 27 [CN], the Board noted that, “[w]hen seized with a section 87.4 application, the Board’s duty is to interpret and apply the Code in a way that promotes the statutory objectives of encouraging harmonious labour relations.”
[22] The Board further held in Nav Canada, 2002 CIRB 168, [2002] C.I.R.B. No. 168 at para. 227 [Nav Canada], that:
… Any restrictions on the right to strike, even though imposed in the interests of health or safety, must appropriately respect the importance of the right in the context of the Code. Free collective bargaining is seriously compromised if the right to strike may not be exercised by employees to counteract the employer’s economic power. ...
[23] Likewise, in Société de transport de l’Outaouais, 2017 CIRB 849, [2017] C.I.R.B.D. No. 5 [Société de transport], the CIRB noted at paragraph 164 that “… any restriction of the right to strike must be limited to what is strictly necessary and solely to ensure the health and safety of the public.”
[24] That said, the Board has also stated that, where an employer establishes that there are activities carried out by bargaining unit members which must be maintained to prevent an immediate and serious danger to the health or safety of the public, “… the protection of the risk to the health of the public must be determinative” (Atomic Energy of Canada Limited, 2001 CIRB 122, [2001] C.I.R.B.D. No. 19 at para. 295 [AECL CIRB], aff’d in Chalk River Technicians and Technologists v. Atomic Energy of Canada Ltd., 2002 FCA 489, [2003] 3 F.C. 313 [AECL FCA]).
[25] The CIRB has dealt with the onus of proof in cases arising under section 87.4 in somewhat different fashions, depending on the circumstances in the case before it.
[26] In AECL CIRB, Nav Canada and CN, the Board held that the initial onus rests on the party seeking the limitation on the right to strike or lockout to establish that there are activities that are required to be maintained in accordance with section 87.4 of the Code. However, the CIRB went on to hold that the opposite party also has an obligation to ensure the relevant facts are placed before the Board. The Board expressed these requirements at paragraph 31 of CN as follows:
When the activities to be maintained are in dispute, the onus rests primarily with the employer to prove that certain services, operations or facilities must continue despite a strike or a lockout. That being said, both parties have the obligation to provide the Board with convincing evidence supporting their respective positions (Atomic Energy of Canada Limited, supra). It is imperative that the parties assist the Board by providing evidence that will enable it to determine whether or not the services are essential in order to protect the health or safety of the public and whether or not a strike or lockout will cause a danger (Nav Canada, [2002] CIRB no.168, at paragraph 168).
[27] The Board held in Aliant Telecom Inc., [2003] C.I.R.B. L.D. No. 947 [Aliant Telecom] that a respondent union may discharge its obligation to provide relevant evidence via cross-examination of the witnesses called by the employer.
[28] In Atomic Energy of Canada Limited, 2015 CIRB 774, [2015] C.I.R.B.D. No. 20 [AECL 2015], where the CIRB had previously held that certain activities were to be maintained during a previous round of bargaining and the employer sought to argue that circumstances had changed such that employees should have the right to strike and the employer the right to lock out, the Board held that the employer bore the burden of proof. The employer was accordingly required to establish that there were no activities that were required to be maintained during a legal strike or lockout to prevent a serious and immediate danger to the health or safety of the public.
[29] The CIRB has further held that the evidence required to establish that activities should be maintained during a legal strike or lockout must be “significant” (Fredericton International Airport Authority Inc., 2012 CIRB 641, 2012 CarswellNat 4350 (WL) at para. 13; see also to similar effect Société de transport at paras. 164, 173, 177, 182, 191).
[30] The Board has reasoned that because a maintenance of activities order limits the right to strike, which has now received a degree of protection in certain circumstances under subsection 2(d) of the Canadian Charter of Rights and Freedoms in the wake of the decision of the Supreme Court of Canada in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, 380 D.L.R. (4th) 577, maintenance of activities orders should be issued only where it is shown that they are required. In Société de transport, the CIRB wrote as follows:
[160] The Board is mindful that it carries out dual responsibilities when it is seized of a question concerning the maintenance of certain activities pursuant to section 87.4 of the Code. It must consider the public’s right to protection against a danger to its safety or health while bearing in mind the preamble to the Code, which describes the Parliament of Canada’s commitment to the practice of free collective bargaining.
[161] The union argues that the Board should reassess this determination of balance and jurisprudence by prioritizing collective bargaining, in light of the constitutional recognition of the right to strike in Saskatchewan Federation of Labour v. Saskatchewan, supra.
[162] The Board is of the view that it is not necessary to question this analysis because the legislative intent and the purpose of the regime for maintaining services under the Code specifically reflect the importance and necessity of protecting the right to strike. In NAV CANADA, 2002 CIRB 168, the Board stated the following in that regard:
[227] ... Any restrictions on the right to strike, even though imposed in the interests of health or safety, must appropriately respect the importance of the right in the context of the Code. Free collective bargaining is seriously compromised if the right to strike may not be exercised by employees to counteract the employer’s economic power. ...
[228] Accordingly, it is the Board’s view that any abridgement of the right to strike must be to the minimum level required to cautiously protect the health or safety of the public. Accordingly, if the Board is assured that the risk or danger is not “immediate” or “serious,” or if the operation of facilities, production of goods or supply of services in question can be limited or will not reasonably be necessary to protect public health or safety or to prevent an immediate and serious danger, the Board should determine such services not to be required.
[emphasis in the original]
[163] Similarly, in Fredericton International Airport Authority Inc., 2012 CIRB 641, the Board recognized the importance that must be given to collective bargaining. In that matter, the Board was to determine whether it would exercise its discretion to order a binding method of resolution pursuant to section 87.4(8) of the Code:
[11] The Preamble to the Code sets out the philosophy and values that underlie all of the statute’s provisions. In particular, the Preamble reflects Parliament’s support for collective bargaining as the preferred method of dispute resolution. When seized with an application under section 87.4, the Board’s duty is to interpret and apply this provision in a way that promotes the statutory objectives of the Code (Canadian National Railway Company, 2005 CIRB 314).
[12] Section 87.4(8) of the Code creates an exception, in certain circumstances, to this commitment to free collective bargaining (see City of Ottawa, 2009 CIRB 447). In the Board’s view, provisions such as this, which deprive the parties of their statutory rights, should be carefully and narrowly construed.
[13] Superficially, one might find it reasonable to conclude that a work stoppage that presently involves only five out of seventeen active employees in the bargaining unit could have little impact on the employer’s operations. However, in this case, the union vehemently denies that the strike by the members of its bargaining unit at the Fredericton airport has been ineffective, and affirms its belief that the labour dispute can still be resolved through meaningful negotiations. Whether the union’s belief is well-founded or not, under these circumstances it would be contrary to the purpose and objectives of the Code for the Board to prevent or interfere with the prospect of a negotiated settlement. In balancing the various rights and obligations contained in the Code, the Board must, to the greatest extent possible, give effect to the statutory right of employees and their employers to engage in free collective bargaining and make use of such economic sanctions as are available to them to enforce their respective demands. Accordingly, the presumption in favour of collective bargaining is a strong one and significant evidence is required to persuade the Board to remove that right.
[emphasis in the original]
[164] In light of the decisions cited above, any restriction of the right to strike must be limited to what is strictly necessary and solely to ensure the health and safety of the public. Moreover, the burden of proof is on the party seeking to have certain activities maintained despite a strike or lock-out, that is, the employer in the present matter.
[31] Turning to the meaning to be ascribed to the words “the extent necessary to prevent an immediate and serious danger to the safety or health of the public” in subsection 87.4 (1) of the Code, the Board has held that “the public”, within the meaning of section 87.4, means “the community in general, or members of the community” (Aéroports de Montréal, 1999 CIRB 23, [1999] C.I.R.B. No. 23 at para. 19, citing from the Concise Oxford Dictionary).
[32] In terms of the immediacy of the requisite risk to justify the issuance of a maintenance of activities order, the CIRB held in AECL CIRB that “… while the danger must not merely be an inconvenience, it need not appear very shortly, or in French ‘incessament’” (paragraph 288). This interpretation was upheld by this Court in AECL FCA, where Nadon, J.A., writing for the Court stated at paragraphs 62 to 65:
… I am satisfied that what the Board actually meant when it said “the danger must not merely be an inconvenience, it need not appear very shortly, or in French [‘]incessamment[’]”, is that the serious danger need not appear right now or within a few days. I do not read the Board’s decision as a statement that the serious danger can occur at any time in the future.
A fair reading of the Board’s decision shows that it concluded that the serious danger would be immediate because of its finding that it would occur in approximately 10 days, bearing in mind that within 3 days after the occurrence of a strike or lockout, AECL and Nordion would likely be unable to meet demand for their product, and that following the end of a strike or lockout, 10 days of production at Chalk River would be required for Nordion to resume regular shipments to its clients. Did the Board err in reaching this conclusion? Put another way, was the evidence sufficient to allow the Board to conclude that the serious danger would occur soon or within a short period of time?
In my view, the answer to the latter question must be yes. On the evidence, taken as a whole, the Board could conclude that a danger occurring in ten to twelve days after the commencement of a strike or lockout, was a danger which would occur soon or within a short period of time.
I am, therefore, of the view that the Board’s conclusion on the immediacy of the danger cannot be characterized as unreasonable. I come to this view in light of the evidence, and having in mind the words of the statute which require the Board to form an opinion as to whether a strike or lockout could pose an immediate and serious danger.
[Emphasis in the original.]
[33] The CIRB has adopted a case-by-case analysis of what types of activities if curtailed meet the statutory threshold of a serious danger to the safety or health, the question being largely a factual one.
[34] The CIRB has, for example, determined that the activities undertaken by all firefighters at an airport must be maintained in Aéroports de Montréal; that many activities performed by air traffic controllers must be maintained in Nav Canada; and that the production of radioisotopes used in cancer diagnosis, when the employer was the sole source of those isotopes, needed to be maintained in AECL CIRB, but not years later, when there were alternate sources for those isotopes in AECL 2015.
[35] Closer to the fact pattern in this case, the CIRB held in Marine Atlantic Inc., 2004 CIRB 275, [2004] C.I.R.B.D. No. 16 [Marine Atlantic], that all ferry services between the mainland and Newfoundland were required to be maintained during a legal strike or lockout. The evidence before the Board in that case demonstrated that “…90% of all fresh, perishable or time-sensitive goods as well as 60% of commercial traffic generally coming into Newfoundland and Labrador [were] carried on Marine Atlantic [ferries], which also [carried] back to North Sydney, fish, lobster, livestock and other products destined to Newfoundland’s outside markets” (paragraph 18). In addition, the ferry service was found to be very important to health care, shipping many materials used in health care, passengers needing treatment off the island, and health care workers, employed in long-term care homes in Nova Scotia, who worked 15 days on, 15 days off. Further, there was expert evidence that the cessation of the ferry service would cause psychological stress to many Newfoundlanders. The Board noted at paragraph 21 of its decision that it:
… heard expert general and forensic psychiatric evidence as to the immediate negative health consequences that would result from an interruption or lessening of Marine Atlantic ferry service, such consequences flowing from its economic impact, from its impact on health care, from the immediate sense of helplessness and isolation, and the behavioral disorders resulting therefrom.
[36] Importantly, for purposes of the case at bar, the evidence in Marine Atlantic established that the other shipping company that shipped goods to Newfoundland could not compensate for any interruption in the Atlantic Marine ferry service.
[37] Based on these facts, the CIRB determined that full ferry service needed to be maintained during a legal strike or lockout, stating as follows at paragraphs 41 to 45 of its decision:
As stated earlier, the Board’s mandate in the present matter is to designate the level of Marine Atlantic ferry service that it considers necessary to continue in order to prevent an immediate and serious danger to the safety or health of the public. Is it possible to set an acceptable level of ferry service at less than the present level? The Board is satisfied that any reduction in the ferry level service would result in an immediate and serious danger to the safety or health of the public.
The ferry service is the sole actually accessible link available to a significant majority of the general travelling public, the trucking industry and its customers, as well as to the general public of Newfoundland and Labrador, for whom there is no realistic alternative means of access.
Interruption or even a lessening of Marine Atlantic ferry service would immediately cause hardship to the many relying on the regularity of Marine Atlantic ferry operations. The suffering and behavioral disorders thus caused would be an immediate consequence, as demonstrated by the psychiatric evidence heard. Members of the general public and all others reliant on the regularity of Marine Atlantic ferry service would also suffer hardship, economically, emotionally or otherwise, once again with consequences on the mental and even physical well-being of those concerned. Furthermore, the transportation of medical supplies or medically-related items would be seriously impacted.
Clear, uncontradicted, expert evidence was given to demonstrate that health disorders would result from the interruption or lessening of Marine Atlantic ferry service. The Board cannot set aside or disregard this compelling evidence.
The Board is of the opinion, clearly, that the levels of ferry service to be continued, as proposed by the CMOU and the CAW, do not meet the test set out in section 87.4(6)(a).
[38] In application of these principles regarding the need to maintain transport of goods to Newfoundland, in a short order issued on September 1, 2010, the CIRB determined that stevedoring services provided by Union members to vessels bound to or from Newfoundland needed to be maintained in the event of a legal strike or lockout in the Port of Montreal. The order was made following an application by the Minister of Labour to the Board under subsection 87.4(5) of the Code in the context of either a pending or ongoing employer lockout. (As is more fully discussed below, in 2010, the MEA locked out bargaining unit members in the port of Montreal for ten days, with the exception of those covered by the Board’s September 1, 2010 order.) The salient portions of the order provided, on page 2:
[translation]
… AND WHEREAS the Board considered the serious repercussions that a lack of or delay in goods deliveries to the people of Newfoundland and Labrador would have on the supply of essential products, such as products related to the treatment of drinking water, medical equipment, drugs and other pharmaceutical products;
AND WHEREAS the Board also took in account the difficulty in identifying the critical goods that are intended for the people of Newfoundland and Labrador within one, several, or all of the containers headed to Newfoundland and Labrador.
THEREFORE, after reviewing the written submissions of the parties and the evidence that was adduced at the hearing, the Board is of the opinion that a strike or a lockout that is triggered by either the union or the employer and that would result in the suspension of the transportation of essential products to the province of Newfoundland and Labrador could pose an immediate and serious danger to the safety or health of the public of Newfoundland and Labrador. …
[39] Conversely, in several other cases involving transportation undertakings, the CIRB has declined to issue maintenance of activities orders. It did not do so in CN. Indeed, in the railway industry, Parliament has resorted to back-to-work legislation like the PMOA following the adoption of section 87.4 of the Code (see, for example, Railway Continuation Act, 2007, S.C. 2007, c. 8, and Restoring Rail Service Act, S.C. 2012, c. 8). It has also adopted similar legislation in respect of Canada Post (see, for example, Postal Services Continuation Act, 1997, S.C. 1997, c. 34, and Postal Services Resumption and Continuation Act, S.C. 2018, c. 25).
[40] In a somewhat similar fashion to the approach in the instant case, in Société de transport, the CIRB refused to issue a maintenance of activities order in respect of the bus service provided by the Société de transport de l’Outaouais and, in City of Ottawa, the Board refused to issue a maintenance of activities order in respect of the bus and train service provided by OC Transpo.
[41] In City of Ottawa, there was evidence that health care workers and patients, seeking treatment, utilized the services at issue. However, the evidence also showed that there were alternate means of transport available to these individuals, including Para Transpo services for patients. Para Transpo had expanded its services during the Amalgamated Transit Union, Local 279 strike, and the union had voluntarily agreed to have members of the striking bargaining unit provide maintenance services to the Para Transpo equipment. These alternative options led the Board to dismiss the application. In terms of the relevance of alternative services, the CIRB noted at paragraph 41 of its decision that:
… The Board will also consider the availability of alternative services when determining whether a withdrawal of services would cause an immediate and serious danger to the health or safety of the public. In Nav Canada, [2002] CIRB no. 168; and 79 CLRBR (2d) 161, the Board held that alternative approaches that allow services to be obtained elsewhere can be considered, but must be demonstrably sufficient and effective in removing any danger to the health or safety of the public, if the otherwise necessary services are not to be provided. In Nav Canada [2007] CIRB 375; and 142 CLRBR (2d) 77, the Board held that if the services in question can be readily accomplished by others, then performance by members of the bargaining unit cannot reasonably be said to be necessary. However, the Board in the latter case added the caveat that, in making this assessment, consideration must be given to whether others experienced and competent in the provision of such services are reasonably available.
II. The Decision of the CIRB
[42] With this general background in mind, I move next to review the decision of the Board in the instant case.
[43] The CIRB held 30 days of hearing in the MEA’s section 87.4 application. The Board allowed a transcript of the hearings to be prepared, which is not the norm in many labour cases but sometime is done in important CIRB cases.
[44] A review of the transcript indicates that the matter was originally scheduled for ten days, and that at the outset of the hearing the Board indicated that it had reviewed the materials filed by the parties. The chairperson of the CIRB panel also encouraged the parties to focus their evidence squarely on the relevant issues. She stated, among other things, that the Board was in particular interested in details regarding the supply of which specific products were claimed to be necessary to prevent an immediate and serious danger to the health and safety of the public because they would no longer be available in the event of a work stoppage.
[45] The dates initially scheduled by the Board proved insufficient, so the Board scheduled more dates on more than one occasion as the matter progressed. The Board eventually directed that the MEA file the evidence in chief of certain of its witnesses via affidavit, with a view to expediting the hearing.
[46] Part way through the hearings, the Union provided an undertaking to continue to maintain in the event of a strike all services for vessels bound to or from Newfoundland, similar to what had been found essential by the Board in 2010.
[47] In July of 2019, one day before the MEA was scheduled to complete its case, the MEA made a motion to the Board to have one of the panel members recuse himself, due to an alleged apprehension of bias that the MEA claimed had arisen. The Board dismissed the recusal motion on August 21, 2019, in Maritime Employers Association, 2019 CIRB 909, [2019] C.I.R.B.D. No. 2. The MEA then asked the Board to stay its hearings, in light of an application to this Court to judicially review the CIRB’s August 21, 2019 decision. The Board refused to do so.
[48] This Court dismissed the MEA’s judicial review application to set aside the Board’s August 21, 2019 decision from the bench on January 29, 2020 in Maritime Employers Association v. Lonshoremen’s Union, Local 375 (Canadian Union of Public Employees), 2020 FCA 29, 315 A.C.W.S. (3d) 428.
[49] On August 28, 2019, the last day of hearing that was scheduled by the Board for the MEA’s evidence, counsel for the MEA refused to complete his examination of Mr. Murray, the Union president, whom the MEA had called as a witness. Counsel argued that he ought not be required to complete the examination while the MEA’s application for judicial review was pending. Counsel for the MEA eventually agreed to move on to call the MEA’s last witness, whose testimony was completed. After a lengthy exchange with the panel during which counsel for the MEA maintained that he ought not be required to complete his examination of Mr. Murray, the Board declared the MEA’s case closed. The Union elected to call no evidence, and the remaining hearing dates were devoted to closing arguments.
[50] In the decision under review, the Board recounted the foregoing procedural history as well as several other interim decisions that it had issued. It then provided a lengthy summary of the MEA’s evidence, focussing in many instances on the evidence in chief provided by the witnesses the MEA called. It is not necessary to review the CIRB’s summary of the evidence in any great detail other than to note the points below.
[51] In this regard, the Board summarized the evidence of several employer witnesses who indicated that it was not possible to safely unload only some of containers on a vessel moored at the Port of Montreal or to even ascertain which containers might contain products required for the health and safety of members of the public (see, for example, paragraphs 23, 28, 29, 43 to 45 and 59 of the Board’s reasons).
[52] The Board further noted that expert witnesses called by the MEA expressed the view that there was not a feasible alternative to the Port of Montreal that could receive or send all the goods shipped to or from Montreal (see, for example, paragraphs 52, 67, 83, 97, 101, 115, 116 and 118 of the Board’s reasons).The Board also noted, however, that these experts identified other ports that could handle at least some of the goods shipped through the Port of Montreal, albeit with delay or increased costs (see, for example, paragraphs 108, 117 and 119 to 123 of the Board’s reasons). One of these expert witnesses also testified that finished pharmaceutical and other medical products could be transported by air (see paragraph 71 of the Board’s reasons). The CIRB also summarized the evidence of many witnesses regarding the complex nature of supply chains, the role the Port of Montreal plays in those supply chains, and the “just in time” nature of supply chains that had become prevalent (see, for example, paragraphs 20 to 26, 50, 56 to 59, 61 to 66, 68 and 82 of the Board’s reasons).
[53] In terms of pharmaceutical and medical products, the CIRB noted that representatives of three pharmaceutical companies offered the view that a work stoppage in the Port of Montreal would cause an immediate and serious danger to the health and safety of the public by disrupting supply chains for medicines and medical products (see, for example, paragraphs 137, 139 and 142 to 148 of the Board’s reasons). However, none of them provided specifics as to which drugs or products would be impacted. One witness testified as to alternate arrangements that were made to replace products destined for the Canadian market when one of its factories in Puerto Rico was shuttered by a hurricane (paragraph 154 of the Board’s reasons). The Board also noted that one of the pharmaceutical companies had previously shipped its products to Canada by air, that air was still sometimes used to ship its products, and that another of the companies had factories in the United States (paragraphs 129, 136 and 159 of the Board’s reasons). The Board further noted the existence of contingency plans that one company had in place to address shortages (paragraph 153 of the Board’s reasons).
[54] The Board also detailed evidence regarding impacts of shortages in foodstuffs, in road salt and in construction and other materials that the MEA alleged would occur if there were a work stoppage of bargaining unit members (see, for example, paragraphs 24, 46, 53, 109, 110, 187 and 194 of the Board’s reasons). The Board noted that road salt was shipped to other ports in Quebec, in addition to the Port of Montreal (paragraph 92 of the Board’s reasons).
[55] The Board further recounted the evidence of a psychiatrist and a psychologist who testified as to the stress that a strike in the Port of Montreal would likely cause certain members of the public, and the likely tendency of some to hoard goods or medicines, which would exacerbate shortages (see, for example, paragraphs 183 to 186 and 189 to 192 of the Board’s reasons).
[56] The Board next reviewed the parties’ arguments and then moved on to its analysis. Given the nature and number of arguments made by the applicants, it is necessary to review the analysis section of the CIRB’s reasons in some detail.
[57] The Board commenced its analysis by noting that the MEA was seeking an order for maintenance of all activities in the Port of Montreal carried on by Union members, noting that the MEA was claiming that “… in the public interest, the right to strike cannot be exercised” (paragraph 274).
[58] The CIRB then stated that it did not intend to comment on all of the likely examples of disruptions in the supply chain that a strike might cause because section 87.4 of the Code does not allow it to consider economic impacts. It noted that “[n]o evidence demonstrate[d] that a shortage of these imported commodities [like building materials, fertilizers or sugar] would endanger public health” (paragraph 277 of the Board’s decision). The Board accordingly confined its analysis to the impact of a work stoppage in the Port of Montreal to four issues, namely: (1) drugs and pharmaceutical products; (2) de-icing salt; (3) risks of congestion and safety measure in the Port; and (4) alternative solutions in the event of a strike.
[59] The CIRB then set out much of the case law set out above and moved to discuss the issue of the burden of proof. The Board dismissed the MEA’s argument that the