LABOUR RELATIONS
Three issues: application for judicial review by Telecommunications Workers Union (TWU) to quash Canada Industrial Relations Board (Board) order, dismissing allegation of bias against Board, Chairperson; application for judicial review by TWU, attempting to reinstate binding arbitration order Board had imposed in order to settle collective agreement issues between TWU, TELUS Communications Inc. (Telus), then removed upon reconsideration; application for judicial review by Telus, attempting to quash final Board order imposing communication ban for purposes of preventing Telus from interfering with TWU’s representation of its employees in general—Applications dismissed—Long, complex history of labour disputes between parties complicated by mergers, acquisitions, determination of sole bargaining agent, division of business into two operations—Collective agreement between Telus, TWU expired in 2000, no new collective agreement concluded since then—Following complaint by TWU, Board issued interim cease and desist order on January 17, 2004 after finding TWU had established prima facie case Telus had breached Canada Labour Code, s. 94 by communicating with TWU employees—In further decision dated January 28, 2004 (CIRB LD 1004) (Binding Arbitration Decision), Board ordered Telus to offer binding arbitration to settle terms of collective bargaining agreement—In February 2004, Telus applied for reconsideration of Binding Arbitration Decision—In March 2004, TWU filed application (Recusal Application), alleging Chairperson biased, reasonable appre-hension of bias with regard to all other Board members— Recusal Application dismissed in August 2004—Reconsidera-tion decision allowed in February 2005, setting aside Binding Arbitration Decision, reinstating, with modifications, commu-nications ban imposed January 17, 2004—Recusal decision— Application for judicial review of Recusal Decision against Chairperson dismissed for mootness as Chairperson did not sit on panel rendering Reconsideration Decision—However, Chairperson should not have summarily dismissed hearsay evidence: Wewaykum Indian Band v. Canada, [2003] 2 S.C.R. 259—Chairperson should have filed statement—Would also have been prudent to announce would delegate power of choosing members of reconsideration panel to someone else—With respect to other panel members, TWU did not submit any evidence to meet requisite test of bias on part of reconsideration panel, entirely relying on Chairperson’s delegation powers as basis for accusation against three-member panel—Painting entire Board with bias as result of one Board member’s alleged comments undermining presumption of impartiality, fairness attributed to each member, compromising integrity of entire Board—Finally, “doctrine of necessity” precluding Board from rendering itself incapable of reconsidering its own decisions since reconsideration process function of Board pursuant to Code— Furthermore, by waiting (approximately six months), without complaining, until Reconsideration Decision rendered, TWU waived right to make bias allegations against reconsideration panel—Reconsideration decision—As to procedure employed by Board in reconsidering own decision, ability of Board to overturn own decisions on reconsideration, standard of review patent unreasonableness—Contrary to TWU’s argument, no provision in Code requiring Board to engage plenary panel in any circumstance—No sitting of plenary panel on any matter since 1999, when Code amended—Normal procedure employed by Board, formation of three-member panel, not patently unreasonable—Furthermore, Board master of its own procedure—Binding arbitration order—Board not acting in patently unreasonable manner by overturning its binding arbitration order—Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, authoritative decision on Board’s jurisdiction to impose remedies like binding arbitration, distinguished—Binding arbitration exception rather than rule, as running counter to inherent policy of free collective bargaining underlying Code—Given complexity, length of matter, factual findings made by Board, extraordinariness of binding arbitration order, combined with deference Parliament intended Board to have, and importance of free collective bargaining, not appropriate to interfere with quashing of binding arbitration order—Board’s reasons logical, involving use of its expertise in labour matters— Decision not patently unreasonable—Communications ban— For question whether Board contravened Charter by imposing communications ban, standard of review correctness; for question whether Board should have imposed communications ban, standard of review patent unreasonableness—Although communications ban violating Telus’ freedom of expression guaranteed under Charter, s. 2(b), justified under Charter, s. 1 as violating Code, s. 94(1)(a) (prohibiting employer from participating in or interfering with formation of trade union, or union’s representation of its employees)—Communications ban reasonable limit to impose on employer, appropriate way to protect union’s exclusive authority to bargain collectively on behalf of employees—Ban not overly broad—Board duly considered question of imbalance; nothing unreasonable in Board’s conclusion on issue—Board entitled to make order preventing practice from occurring in future— Communications ban decision not patently unreasonable— Board precluded from defending merits of bias matter, merits of decision not to place any factual information on record, merits of reconsideration decision—Board permitted to address generally other issues in case, including jurisdiction, standard of review—Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 1, 2(b)—Canada Labour Code, R.S.C., 1985, c. L-2, s. 94.
TELUS Communications Inc. v. Telecommunications Workers Union (A-84-04, A-85-04, A-242-04, A-65-05, A-99-05, A-185-05, A-187-05), 2005 FCA 262, Sexton J.A., judgment dated 25/7/05, 49 pp.)