Bunge du Canada Ltée v. Canadian Union of Public Employees, Local 3711
A-12-94 / A-393-94
Décary J.A.
13/2/95
17 pp.
Application for judicial review of Canada Labour Relations Board decision on application for certification made by respondent union -- Latter asked to be certified as bargaining agent for about ten foremen and assistant foremen working in operations and in mechanical and electrical maintenance with applicant -- Issue between parties as to number and status of foremen employed by applicant -- Board had to decide whether three of them (Jacques Langlois, Fernand Roy and Serge Hackett), on date application for certification filed, September 9, 1993, members of proposed unit and ensure that on that date, majority of said members wished respondent union to represent them as bargaining agent -- Board allowed application for certification on November 26, 1993 -- Disposed of Langlois case and deferred decision on Roy case to later date, but said nothing about Hackett-Disregard essentially issue -- Applicant asked Board to review its decision of November 26, 1993 pursuant to Canada Labour Code, s. 18 contending respondent union did not have endorsement of majority of members of proposed unit -- Board informed parties application for review would be subject of hearing of May 20, 1994 and certification file (555-3639) in which question of Fernand Roy's status still to be decided, as well as application to revoke for fraud (file 570-10)-Without informing parties, Board decided not to hold oral hearing promised since March 9, 1994 and adjourned on July 8, 1994-Without giving applicant opportunity to file written submissions, Board disposed of question of validity of evidence of Fernand Roy's membership and of question regarding inclusion of Serge Hackett before dismissing application for review and adjourning consideration of file 570-10 sine die -- Board acted in cavalier, offhand and arrogant manner -- Extensive powers vested in Board and as consequence of privative clause in Code, s. 22 exercise of those powers more often than not beyond judicial review -- Court does not have to intervene every time tribunal remiss in conduct-Certain types of misconduct affect reputation of tribunal more than its decisions -- In case at bar Board exceeded tolerable standards -- No legal obligation to disclose number and names of employees in question -- Board in control of its own procedure and may change mind if sees fit to do so -- If it changes mind, it has duty to inform parties and give them opportunity to be heard in writing-Applicant had every reason to think that entire case, including matter of Mr. Roy's membership, would exceptionally be dealt with at promised hearing -- While possible justice was done, did not appear to have been done -- Two points at issue significant and crucial to outcome and significant -- Board infringed most elementary rules of natural justice by deciding on inclusion of Serge Hackett and union membership of Fernand Roy without holding promised hearing and without informing applicant would not hold hearing and inviting it to make submissions in writing -- Argument regarding Fernand Roy's status as foreman dismissed -- No basis for allowing application for judicial review in respect of November 26, 1993 decision, certification order -- Application for judicial review in respect of July 29, 1994 decision allowed, but only to extent decision disposed of application for review (530-2258)-Canada Labour Code, R.S.C., 1985, c. L-2, ss. 18, 22.