LABOUR RELATIONS |
Global Television v. Communications, Energy and Paperworkers Union of Canada
A-507-02
2004 FCA 78, Evans J.A.
24/2/04
15 pp.
Judicial review of three orders of Canada Industrial Relations Board arising from complaints by respondent (union) that applicant (employer) breached duty to bargain in good faith contrary to Canada Labour Code, s. 50(a)--First order holding clause insisted upon by employer, requiring union not engage in any activity adversely affecting employer's interests ("no harm" clause), too broad, contrary to Code, unenforceable, breach of duty of good faith to insist on it to point of impasse--Second order permitting ratification of employer's final proposal even though "no harm" clause unenforceable--Third order affirming first two orders upon reconsideration to determine whether "no harm" clause out of line with prevailing industry norms--Applying pragmatic, functional analysis, Board's decision employer guilty of breach of duty to bargain in good faith reviewable on standard of patent unreasonableness--Not patently unreasonable to conclude employer's conduct amounted to bargaining in bad faith--Employer said union refused to discuss proposed "no harm" clause--But union never subject of bad faith bargaining complaint by employer--Board relying on previous cases to hold party not bound to discuss term if illegal or contrary to public policy--Extent to which "no harm" clause out of line with industry norms largely question of drawing inferences based on comparison of clauses in other collective agreements and their likely industrial relations impact--Because of its expertise Board better equipped than Court to draw such inferences--Any alleged breach of duty of fairness either because Board based conclusion on finding of fact for which no evidence before it or because of failure to notify parties, invite submissions before basing finding on policy of Code rather than on ground advanced in complaint, cured by reconsideration decision--Code, s. 16.1 authorizing Board to decide any matter without oral hearing--Parliament not authorizing breach of duty of fairness by permitting Board to dispense with oral hearing where would deny party reasonable opportunity to participate in decision-making process-- Function of duty of fairness to provide minimum, not optimal standards of procedural propriety--Board must decide whether oral hearing so likely to improve quality of ultimate decision as to justify delays typically associated with oral hearings--Issues decided could be reliably decided on basis of written evidence, submissions--Board not exercising broad remedial discretion in patently unreasonable manner--Bearing in mind breadth of Board's remedial powers in Code, s. 99(1)(b.1), (2) privative clauses, importance of labour relations expertise, Court not persuaded Board's order bore no rational relationship to employer's breach of Code and its effects, or that, in light of facts herein and Code's protection of employees from unfair labour practices, order violated Code's commitment to free collective bargaining-- Application dismissed--Canada Labour Code, R.S.C., 1985, c. L-2, ss. 16.1 (as enacted by S.C. 1998, c. 26, s. 6), 50(a), 99(1)(b.1) (as am. by S.C. 1991, c. 39, s. 3; 1998; c. 26, s. 45), (2).