International Longshoremen's and Warehousemen's Union, Local 502 v. McLean
A-285-96
Hugessen J.A.
26/9/96
7 pp.
Application for judicial review of CLRB's decision allowing respondent's complaint under Labour Code, s. 69 and directing matter be continued before it for further hearing on question of appropriate remedies-Applicant trade union with collective agreement to provide stevedoring services-Dispatches "casual" workers to longshoring jobs as required-Complaint before Board made by respondent longshoreman alleging breach of s. 69 by discriminatory policy giving favourable treatment to casual longshoremen close relatives of Union members and by non-posting of applicable policy-Applicant alleging 90-day limitation period for filing complaint under Code, s. 97(2) not met as respondent made complaint to Human Rights Commission in 1991 alleging discrimination-Therefore, complaint to Board in May 1994 filed long after 90 days and period during which respondent "knew or ought to have known" of circumstances giving rise to complaint-Board found movement of casuals up seniority ladder done on ad hoc basis prior to 1994 and that formal policy not posted until 1994-Complaint before HRC not dealing with Union's policy as policy not promulgated or posted prior to 1994-Applicant also alleging breach of rules of natural justice as Board failed to give separate notices to all persons obtaining seniority prior to date of decision under attack and who risked having positions varied to their detriment-Argument premature-Board dealing solely with complaint against Union-Board finding breach of s. 69 not obliging Union to adopt any particular remedy but adjourning to later date to receive representations on appropriate disposition-Remedial action ordered at later hearing and decision not attacked by Union-Further, decisions relied on by Union all cases where union in question adopted position essentially adverse to some affected employees not given notice-In present case, union's position identical to that of employees benefitting from discriminatory policy-Union having right and duty to represent such employees-Canada Labour Code, R.S.C., 1985, c. L-2, ss. 69, 97(2).