Maritime Employers Association v. Lonshoremen’s Union, Local 375 (Canadian Union of Public Employees)

Maritime Employers Association v. Lonshoremen’s Union, Local 375 (Canadian Union of Public Employees)
Court (s) Database
Federal Court of Appeal Decisions
Date
2020-01-29
Neutral citation
2020 FCA 29
File numbers
A-295-19
Decision Content
Date: 20200129
Docket: A‑295‑19
Citation: 2020 FCA 29
[ENGLISH TRANSLATION]
CORAM:
PELLETIER J.A.
BOIVIN J.A.
GLEASON J.A.
BETWEEN:
MARITIME EMPLOYERS ASSOCIATION
MONTREAL
PORT AUTHORITY
SHIPPING FEDERATION OF
CANADA
Applicants
and
LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN
UNION OF PUBLIC EMPLOYEES
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION
CHAMBRE DE COMMERCE DE L’EST DE MONTRÉAL
CONSEIL DU PATRONAT DU QUÉBEC
FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC
Respondents
Heard at
Ottawa ,
Ontario
, on January 29, 2020.
Judgment delivered at
Ottawa ,
Ontario
, on January 29, 2020.
REASONS FOR JUDGMENT OF THE COURT BY:
BOIVIN J.A.
Date: 20200129
Docket: A‑295‑19
Citation: 2020 FCA 29
CORAM:
PELLETIER J.A.
BOIVIN J.A.
GLEASON J.A.
BETWEEN:
MARITIME EMPLOYERS ASSOCIATION
MONTREAL
PORT AUTHORITY
SHIPPING FEDERATION OF
CANADA
Applicants
and
LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN
UNION OF PUBLIC EMPLOYEES
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION
CHAMBRE DE COMMERCE DE L’EST DE MONTRÉAL
CONSEIL DU PATRONAT DU QUÉBEC
FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC
Respondents
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at
Ottawa ,
Ontario
, on January 29, 2020.)
BOIVIN J.A.
[1] This is an application for judicial review of a decision rendered by the Canada Industrial Relations Board (the Board) on August 21, 2019 (2019 CIRB 909).
[2] By that decision, the Board dismissed the applicants’ application for recusal of a Board member, namely, Gaétan Ménard, who was on the panel dealing with the underlying application respecting the maintenance of essential activities.
[3] The applicants submit that the Board erred in that [translation] “the cumulative effect” of member Ménard’s comments, actions and omissions gave rise to a reasonable apprehension of bias.
[4] We are unanimously of the opinion that the Board did not err in its reasoned decision, as it examined the issued raised and, more specifically, the comments and actions alleged in the case under consideration.
[5] Firstly, the Board correctly stated that the burden of demonstrating an apprehension of bias on the part of a member of the Board panel is on the party who alleges that apprehension of bias, that is, the applicants, as members of a quasi‑judicial administrative tribunal are presumed to be impartial. Secondly, the Board also properly directed itself in law in applying the test to establish a reasonable apprehension of bias as propounded in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at pages 394–395.
[6] As the Board stated, although member Ménard’s conduct during the hearing was regrettable, we are also of the opinion that the conduct complained of in this case does not support a finding of reasonable apprehension of bias, for substantially the same reasons. That being said, we must add that member Ménard’s conduct, which included constantly whispering and leaning on his chair while disinterestedly staring out the window, is unacceptable. This conduct in no way sets an example of decorum and professionalism for a Board hearing.
[7] The application for judicial review will therefore be dismissed, with costs.
“Richard Boivin”
J.A.
Certified true translation
François Brunet, Revisor
FEDERAL COURT OF APPEAL
COUNSEL OF RECORD
DOCKET:
A‑295‑19
STYLE OF CAUSE:
MARITIME EMPLOYERS ASSOCIATION, and MONTREAL PORT AUTHORITY, and SHIPPING FEDERATION OF CANADA v. LONSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN UNION OF PUBLIC EMPLOYEES, and INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, and CHAMBRE DE COMMERCE DE L’EST DE MONTRÉAL, and CONSEIL DU PATRONAT DU QUÉBEC, and FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC
PLACE OF HEARING:
Ottawa ,
Ontario
DATE OF HEARING:
January 29, 2020
REASONS FOR JUDGMENT OF THE COURT BY:
PELLETIER J.A.
BOIVIN J.A.
GLEASON J.A.
DELIVERED FROM THE BENCH BY:
BOIVIN J.A.
APPEARANCES:
Nicola Di Iorio
Mélanie Sauriol
Geneviève Beaudin
FOR THE APPLICANT
MARITIME EMPLOYERS ASSOCIATION
Michel Brisebois
Georges Samoisette Fournier
FOR THE APPLICANT
MONTREAL PORT AUTHORITY
Jean‑Denis Boucher
FOR THE APPLICANT
SHIPPING FEDERATION OF CANADA
Marie‑Christine Morin
Jacques Lamoureux
FOR THE RESPONDENT
LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN
UNION OF PUBLIC EMPLOYEES
Dominic Caron
FOR THE RESPONDENT
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION
COUNSEL OF RECORD:
BCF LLP
Montreal ,
Quebec
FOR THE APPLICANTS
MARITIME EMPLOYERS ASSOCIATION and
MONTREAL
PORT AUTHORITY
Robinson Sheppard Shapiro L.L.P
Montreal ,
Quebec
FOR THE APPLICANT
SHIPPING FEDERATION OF
CANADA
Lamoureux Morin avocats inc.
Longueuil, Quebec
FOR THE RESPONDENT
LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN
UNION OF PUBLIC EMPLOYEES
Pink Larkin
Montreal ,
Quebec
FOR THE RESPONDENT
INTERNATIONAL LONGSHOREMEN’S ASSOCIATION