Judgments

[1995] 1 F.C. 459

A-1584-92

Quebec Ports Terminals Inc. (Applicant)

v.

Canada Labour Relations Board (Respondent)

and

Maritime Employers’ Association, Compagnie d’amarrage Trois-Rivières Ltée, Compagnie d’arrimage Trois-Rivières Ltée, J. C. Malone et Compagnie Ltée, Les Élévateurs de Trois-Rivières, Somavrac Inc., Syndicat des débardeurs de Trois-Rivières, Local 1375 (CUPE), Société du parc industriel et portuaire de Bécancour (Mis en cause)

A-513-93

Quebec Ports Terminals Inc. (Applicant)

v.

Maritime Employers’ Association and Syndicat des débardeurs de Trois-Rivières, Local 1375 (CUPE) (Respondents)

and

Claude H. Foisy in his capacity as arbitrator and Canada Labour Relations Board (Mis en cause)

Indexed as: Quebec Ports Terminals Inc. v. Canada (Labour Relations Board) (C.A.)

Court of Appeal, Desjardins and Décary, JJ.A. and Chevalier D.J.A.—Montréal, September 29 and 30; Ottawa, October 28, 1994.

Labour relations — Applications for judicial review of CLRB order appointing employer representative pursuant to Canada Labour Code, s. 34(4), and decision collective agreement subsequently entered into binding on all employees, employers — In light of privative clause in Code, s. 22, standard of judicial review whether Board’s order, decision patently unreasonable, or clearly irrational — Use of “employer representative” in present s. 34 instead of “agent” (used in predecessor) indicating system changed — S. 34(4) imposing legal duty on Board to select “employer representative,” who “shall be deemed” to be employer (s. 34(5)) — By virtue of appointment under s. 34, invested with necessary powers to discharge all duties, responsibilities of employer under Code, Part I “on behalf of those employers” — Lengthy explanation of choice of candidates, analysis of general collective, multi-employer, industry-wide bargaining systems indicating Board’s interpretation not unreasonable though not applying criteria of objectivity, impartiality favoured by applicant — Once collective bargaining notice given, parties having duty to meet, attempt to conclude collective agreement — Collective agreement so concluded binding on all employees, employers.

Barristers and Solicitors — Application for judicial review of CLRB’s appointment of employer representative under Canada Labour Code, s. 34(4) when employers failing to agree thereon — Applicant alleging appearance of bias as successful candidate represented by same law firm as CLRB in unrelated case before S.C.C. — Standard for determination of whether appearance of bias that of “informed person,” having no interest in ongoing case, aware of Board’s limited role before Court in judicial review proceedings — As no connection between two cases, no fear of transmission of confidential information — No benefit to be gained by CLRB in favouring candidate represented by law firm also representing Board in another case.

Judicial review — CLRB appointing employer representative under Canada Labour Code, s. 34(4) — Applicant alleging appearance of bias as successful candidate represented by same law firm as Board in unrelated proceedings — Reference to standard for determination of whether appearance of bias — As no connection between cases, no possibility of transmission of confidential information, allegation unfounded.

These were applications for judicial review of the Canada Labour Relations Board’s (CLRB) order appointing the Maritime Employers’ Association (MEA) as the employer representative for all employers covered by the certification of the Syndicat des débardeurs de Trois-Rivières, Local 1375, of CUPE, and the Board’s decision that the collective agreement subsequently entered into between the employer representative and the union was binding on all employees and employers in the bargaining unit, including the applicant. Upon certification of the union, the Board directed employers to select a representative. When no agreement was reached, the Board summoned the employers to a hearing. The criteria used for selecting an “employer representative” included the wishes expressed by the employers, relevant experience in the long-shoring or a comparable industry, material resources to serve effectively and expeditiously a plurality of employers, the ability to assume existing employer obligations, the presence of mechanisms through which individual employers can express their concerns and if necessary resolve disputes between them, and the ability of the representative to discharge its obligations under the Code, in particular the obligation to bargain in good faith. It then appointed MEA as the “employer representative.”

Under Canada Labour Code, subsection 34(3), as amended in 1991, where the Board has certified a trade union as the bargaining agent for employees of two or more employers in the long-shoring industry, it shall require the employers to jointly choose a representative and shall appoint the representative so chosen. Under subsection 34(4), if the employers fail to choose a representative, the Board shall appoint an employer representative of its own choosing. Previously, subsection 34(3) provided for the appointment of an agent to act on behalf of the employers.

Before deciding that the collective agreement was binding, the Board analyzed the general collective bargaining system as compared to the multi-employer bargaining system contemplated by section 33 and the industry-wide bargaining system contemplated by section 34. It held that under subsection 34(5) the employer representative was explicitly invested by the Code, and not by the employers it represents, with the power to bind all employers in the unit.

The applicant argued that the powers vested in the employer representative were only those of a legal agent, which could not commit an employer in negotiations unless it had obtained the necessary instructions from that employer. If there were several employers, the legal agent must obtain instructions from each. Secondly, the applicant submitted that the Board acted unreasonably in not applying the criteria of objectivity and impartiality, when it selected MEA as “employer representative” instead of the firm proposed by the applicant. Finally, the applicant argued that there was an appearance of bias when the Board found in favour of the MEA, which was represented by Ogilvy Renault, the same law firm which had represented the Board in an application for leave to appeal in an unrelated case. It maintained that once an appearance of bias was raised, the Board had a duty to explain the circumstances in which counsel had obtained his instructions. Failure to do so meant that the Board had not discharged its burden of proof.

Held, the applications should be dismissed.

In light of the privative clause in Canada Labour Code, section 22 the judicial review test applicable was that of whether the Board’s order and decision were patently unreasonable or were clearly irrational.

It was reasonable for the Board to conclude that the employer representative, deemed to be the employer, possessed a power similar to that of the bargaining agent, namely that of negotiating the collective agreement. Use of “employer representative” in the 1991 legislation instead of “agent” to designate the spokesperson for the employers at the bargaining table, indicated that the system had been changed. If the employers cannot agree, the Board has a legal duty under subsection 34(4) of the Code to select the “employer representative”. Subsection 34(5) provides that the employer representative “shall be deemed to be an employer” and “by virtue of having been appointed under this section” it was invested with the necessary powers to “discharge all the duties and responsibilities of an employer” under Part I of the Code “on behalf of all the employers of the employees in the bargaining unit, including” that of entering into a collective agreement “on behalf of those employers.” By comparison, old section 34 gave the Board power only to order employers to appoint an agent and authorize him to discharge the duties and responsibilities of an employer.

The Board demonstrated no irrationality in its choice of sufficiently reliable criteria for selecting the “employer representative” for determining which candidate was more suitable to fill the position of “employer representative.” Although it did not use the criteria of objectivity and impartiality which the applicant favoured, it explained its position at length and considered that the new subsection 34(6), prohibiting an employer representative from acting arbitrarily, discriminatorily or in bad faith in the representation of any of the employers, gave the applicant sufficient protection. In view of the lengthy analysis of the various bargaining systems, the Board’s interpretation was not unreasonable.

A reasonable person would quickly realize that the allegation of bias was groundless. Counsel who represented the Board in the Supreme Court of Canada never represented the MEA before the Board. In judicial review proceedings, the Board’s role is limited to providing the Court with information on the practices and procedures developed to administer the Code so that its fundamental objectives are achieved, on the administrative process used in disposing of applications before it and on certain special factors pertaining to labour relations. Private law firms who are retained by the Board must be able to fully master the Code, procedure and practices used before the Board and those used in the Federal Court. Firms from which the Board can choose are generally limited to those regularly appearing before it.

The “informed” person who must decide whether there is an appearance of bias is a person, not interested in the ongoing case, and who is not unaware that the Board has a limited part to play when it appears in the courts. The conflict of interest alleged herein was not that of a lawyer who changes sides. There was no connection between the two cases. The applicant was not concerned about the transmission of confidential information from one case to another, but about the possibility that the Board wished to favour one organization because its law firm was representing the Board in the Supreme Court of Canada. There was no benefit to be gained by the Board by favouring an organization represented by Ogilvy Renault since it was the Supreme Court of Canada, not the law firm, which had to decide its application for leave to appeal.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

An Act to amend the Canada Labour Code (geographic certification), S.C. 1991, c. 39, s. 1.

Canada Labour Code, R.S.C., 1985, c. L-2, ss. 3, 16, 22 (as am. by S.C. 1990, c. 8, s. 56), 24, 25, 26, 28, 32, 33, 34(1),(2),(3) (as am. by S.C. 1991, c. 39, s. 1), (4) (as am. idem), (5) (as am. idem), (6) (as am. idem), (7) (as am. idem), 35, 36, 37, 50(a)(i), 56, 65, 97 (as am. idem, s. 2).

Federal Court Rules, C.R.C., c. 663, R. 1611 (as enacted by SOR/92-43, s. 19).

CASES JUDICIALLY CONSIDERED

DISTINGUISHED:

Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235; (1990), 77 D.L.R. (4th) 249; [1991] 1 W.W.R. 705; 70 Man. R. (2d) 241; 48 C.P.C. (2d) 113; 121 N.R. 1.

REFERRED TO:

Quebec Ports Terminals Inc. et al. (1992), 89 di 153; 93 CLLC 16,035 (C.L.R.B.); Terminaux portuaires du Québec Inc. v. Association des employeurs maritimes et al. (1988), 89 N.R. 278 (F.C.A.); Terminaux portuaires du Québec Inc. v. Association des employeurs maritimes et al. (No. 2) (1992), 142 N.R. 44 (F.C.A.); Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; (1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d) 417; 51 A.P.R. 237; 79 CLLC 14,209; 26 N.R. 341; Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; (1989), 62 D.L.R. (4th) 437; [1989] 6 W.W.R. 673; 40 B.C.L.R. (2d) 1; 40 Admin. L.R. 181; 89 CLLC 14,050; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; (1990), 74 D.L.R. (4th) 449; 45 Admin. L.R. 161; 114 N.R. 81; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; (1993), 101 D.L.R. (4th) 673; 150 N.R. 161; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; (1988), 35 Admin. L.R. 153; 95 N.R. 161; Almecon Industries Ltd. v. Nutron Manufacturing Ltd. (1994), 172 N.R. 140 (F.C.A.); R. v. D. (W.R.), [1994] 1 W.W.R. 689 (Man. Q.B.); Shaw v. Law Society of Prince Edward Island (1992), 101 Nfld. & P.E.I.R. 340; 97 D.L.R. (4th) 504; 321 A.P.R. 340 (P.E.I.S.C.); Ashburton Oil Ltd. v. Sharp (1992), 67 B.C.L.R. (2d) 64 (S.C.); Bell v. Nash, [1992] 4 W.W.R. 512; (1992), 66 B.C.L.R. (2d) 361 (B.C.S.C.); Everingham v. Ontario (1992), 8 O.R. (3d) 123; 88 D.L.R. (4th) 755; 5 C.P.C. (3d) 118; 54 O.A.C. 224 (Div. Ct.); R. v. B. (B.P.) (1992), 71 C.C.C. (3d) 392 (B.C.S.C.); Asian Video Movies Wholesaler Inc. v. Mathardoo (1991), 36 C.P.R. (3d) 29; 46 F.T.R. 19 (F.C.T.D.); Calgas Investments Ltd. v. 784688 Ontario Ltd. (1991), 4 O.R. (3d) 459; 81 D.L.R. (4th) 518; 1 C.P.C. (3d) 64 (Gen. Div.); Everingham v. Ontario (1991), 84 D.L.R. (4th) 354; 3 C.P.C. (3d) 87 (Ont. Gen. Div.); Pac. Coast Super 8 Motels Inc. v. Nanaimo Shipyard (1985) Ltd. (1991), 53 B.C.L.R. (2d) 281 (S.C.); Trilea Centres Inc. v. Cumming Cockburn Ltd. (1991), 5 O.R. (3d) 598 (Gen. Div.); J-Star Industries, Inc. v. Berg Equipment Co. (Canada) Ltd. (1992), 43 C.P.R. (3d) 132 (T.M. Opp. Bd.); Creamer v. Hergt (1991), 55 B.C.L.R. (2d) 141 (S.C.); Turner-Lienaux v. Civil Service Commission (N.S.) et al. (1992), 111 N.S.R. (2d) 351; 303 A.P.R. 351 (S.C.); Chin v. Wong (1991), 53 B.C.L.R. (2d) 288 (S.C.); Markinova, Re, [1991] 6 W.W.R. 47; (1991), 57 B.C.L.R. (2d) 73 (S.C.); R.G. Tours and Promotions Ltd. v. Greater Moncton Home Builders Associations et al. (1992), 126 N.B.R. (2d) 200; 317 A.P.R. 200 (Q.B.); Essa (Township) v. Guergis; Membery v. Hill (1993), 15 O.R. (3d) 573 (Div. Ct.); Lasch v. Annapolis (County) (1992), 118 N.S.R. (2d) 418; 327 A.P.R. 418 (Co. Ct.); Feherguard Products Ltd. v. Rocky’s of B.C. Leisure Ltd., [1993] 3 F.C. 619 (C.A.); R. c. Morales, [1993] R.J.Q. 2940 (C.Q.); Commission des droits de la personne du Québec c. Hudon & Daudelin Ltée, [1994] R.J.Q. 264 (H.R.T. Qué.); Canada Labour Relations Board v. Attorney General of Canada, [1993] 1 S.C.R. vi (leave to appeal refused); Canada (Attorney General) v. Gaboriault, [1992] 3 F.C. 566 (C.A.); Richard Gaboriault et al. and Tecksol Inc. and Transport Canada (1988), 75 di 130 (C.L.R.B.); Canada (Attorney General) v. Young, [1989] 3 F.C. 647; (1989), 27 C.C.E.L. 161; 89 CLLC 14,046; 100 N.R. 333 (C.A.); Plantation Indoor Plants Ltd. v. Attorney General of Alberta, [1985] 1 S.C.R. 366; (1985), 60 A.R. 343, 18 D.L.R. (4th) 319; [1985] 3 W.W.R. 539; 37 Alta. L.R. (2d) 151; 18 C.C.C. (3d) 438; 58 N.R. 228; Newfoundland Telephone Co. v. Newfoundland (Board of Public Utilities), [1992] 1 S.C.R. 623; (1992), 95 Nfld. & P.E.I.R. 271; 4 Admin. L.R. (2d) 121; 134 N.R. 241; Quebec Ports Terminals Inc. v. Canada (Labour Relations Board) (1993), 17 Admin. L.R. (2d) 16 (F.C.A.); Northwestern Utilities Ltd. et al. v. City of Edmonton, [1979] 1 S.C.R. 684; (1978), 12 A.R. 449; 89 D.L.R. (3d) 161; 7 Alta. L.R. (2d) 370; 23 N.R. 565; Terminaux portuaires du Québec c. Association des employeurs maritimes, C.S. Montréal, 500-05-009311-885, 1990-02-01, D.T.E. 90T-307; Terminaux portuaires du Québec Inc. c. Association des employeurs maritimes, C.S. 400-05-00375-924, 1992-08-05; Terminaux portuaires du Québec Inc. c. Association des employeurs maritimes, C.S. Montréal, 500-05-009311-885, 1988-11-09, D.T.E. 88T-1035; 2747-3174 Québec Inc. c. Québec (Régie des permis d’alcool), [1994] A.Q. No. 734 (C.A.) (QL).

AUTHORS CITED

Canadian Bar Association. Code of Professional Conduct. Ottawa: Canadian Bar Association, 1974.

APPLICATIONS for judicial review of Canada Labour Relations Board’s order appointing an employer representative under Canada Labour Code, subsection 34(4) (Quebec Ports Terminals Inc. et al. (1992), 89 di 194; 93 CLLC 16,036 (C.L.R.B.)) and decision that the collective agreement subsequently entered into between the employer representative and the bargaining agent was binding on all employers and employees (Maritime Employers’ Association (1993), 92 di 135; 94 CLLC 16,027 (C.L.R.B.)). Applications dismissed.

COUNSEL:

Luc Huppé and Raynold Langlois for applicant.

Manon Savard and Gérard Rochon for Maritime Employers’ Association (respondent in A-513-93, mise en cause in A-1584-92).

Yves Morin and Normand Léonard for Syndicat des débardeurs de Trois-Rivières (respondent in A-513-93, mis en cause in A-1584-92).

Georges Marceau and Johane Tremblay for Canada Labour Relations Board (mis en cause in A-513-94, respondent in A-1584-92).

SOLICITORS:

Langlois, Robert, Montréal, for applicant.

Ogilvy Renault, Montréal, for Maritime Employers’ Association (respondent in A-513-93, mis en cause in A-1584-92).

Lamoureux, Morin, Lamoureux, Longueuil, Quebec, for Syndicat des débardeurs de Trois-Rivières (respondent in A-513-93, mis en cause in A-1584-92).

Melancon, Marceau, Grenier et Sciortino, Montréal, and Canada Labour Relations Board Legal Services, Ottawa, for Canada Labour Relations Board (mis en cause in A-513-94, respondent in A-1584-92).

The following is the English version of the reasons for judgment rendered by

Desjardins J.A.: This Court has before it by way of judicial review an order [Quebec Ports Terminals Inc. et al. (1992), 89 di 194] and a decision [Maritime Employers’ Association (1993), 92 di 135] by the Canada Labour Relations Board (the Board) which deal with the long-shoring situation as it exists at present in the ports of Trois-Rivières and Bécancour.[1]

The purpose of the Board’s order, dated October 30, 1992, was to set up an “employer counterpart who is able to negotiate and enter into a collective agreement without delay”[2] with the union side. The disputed order was made pursuant to subsection 34(4) of the Canada Labour Code (the Code).[3] In it the Board appointed the Maritime Employers’ Association (the MEA) as the “employer representative” for all employers covered by the certification of the Syndicat des débardeurs de Trois-Rivières, Local 1375, of the Canadian Union of Public Employees (CUPE), given on June 12, 1992.

In accordance with this appointment order made on October 30, 1992, the MEA and CUPE concluded a collective agreement on December 8, 1992. During the months that followed CUPE filed several grievances alleging various breaches of the collective agreement by Quebec Ports Terminals (QPT). The MEA then asked QPT to give it its comments on the validity of these grievances. QPT considered that the grievances concerned clauses which it had not authorized the MEA to ratify. QPT accordingly argued that the MEA should be solely responsible for the consequences that might result from the alleged breaches. The MEA rejected this position and, as QPT provided no further information on the grievances as such, it sent a number of them on to arbitration. It then informed the arbitrator of its intention to file an application for referral to the Board pursuant to subsection 34(7) [as am. idem] of the Code, to determine whether it had the necessary authority to conclude a collective agreement on behalf of QPT containing provisions not previously authorized by the latter. If so, the MEA indicated that it would ask the Board to take all the necessary action to ensure that QPT accepted once and for all the provisions of the Code regarding geographic certification and the resulting duties. The MEA asked the arbitrator to stay the hearing of the grievances until the Board’s decision became known.

In its decision No. 1027 on August 16, 1993 [Maritime Employers[cad39] Association (1993), 92 di 135], which is the subject of the second application for review, the Board found that the collective agreement was binding on all employees and employers in the bargaining unit, including QPT, regardless of the latter’s objections. The Board referred the matter back to arbitration.

As these two applications for review were joined for hearing,[4] the reasons by which I intend to dispose of the order and decision of the Board are contained in the same document. It must be noted that case A-1584-92 of this Court deals with the appointment order or order No. 968 of the Board [(1992), 89 di 194], while the second case in this Court, A-513-93, deals with decision No. 1027 of the Board [(1993), 92 di 135].

All parties in this Court were agreed in saying that, in light of the privative clause in section 22 [as am. by S.C. 1990, c. 8, s. 56] of the Canada Labour Code,[5] the judicial review test applicable in both cases is that of whether the Board’s order and decision are patently unreasonable[6] or are “clearly irrational.”[7]

The Board’s order and decision are concerned with interpreting section 34 of the Code as it read following the adoption by the federal Parliament on November 29, 1991 of Bill C-44, which as of December 5, 1991 repealed subsection 34(3) of the Code and replaced it by new wording.[8] Section 34 of Part I of the Code now reads as follows:

34. (1) Where employees are employed in

(a) the long-shoring industry, or

(b) such other industry in such geographic area as may be designated by regulation of the Governor in Council on the recommendation of the Board,

the Board may determine that the employees of two or more employers in such an industry in such a geographic area constitute a unit appropriate for collective bargaining and may, subject to this Part, certify a trade union as the bargaining agent for the unit.

(2) No recommendation under paragraph (1)(b) shall be made by the Board unless, on inquiry, it is satisfied that the employers engaged in an industry in a particular geographic area obtain their employees from a group of employees the members of which are employed from time to time by some or all of those employers.

(3) Where the Board, pursuant to subsection (1), certifies a trade union as the bargaining agent for a bargaining unit, the Board shall, by order,

(a) require the employers of the employees in the bargaining unit

(i) to jointly choose a representative, and

(ii) to inform the Board of their choice within the time period specified by the Board; and

(b) appoint the representative so chosen as the employer representative for those employers.

(4) Where the employers fail to comply with an order made under paragraph (3)(a), the Board shall, after affording to the employers a reasonable opportunity to make representations, by order, appoint an employer representative of its own choosing.

(5) An employer representative shall be deemed to be an employer for the purposes of this Part and, by virtue of having been appointed under this section, has the power to, and shall, discharge all the duties and responsibilities of an employer under this Part on behalf of all the employers of the employees in the bargaining unit, including the power to enter into a collective agreement on behalf of those employers.

(6) In the discharge of the duties and responsibilities of an employer under this Part, an employer representative, or a person acting for such a representative, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employers on whose behalf the representative acts.

(7) The Board shall determine any question that arises under this section, including any question relating to the choice of appointment of the employer representative.

The applicant made five arguments against the appointment order. The third and fourth arguments were dismissed at the hearing as they related exclusively to the field of evidence and it was clear that this Court could not allow them. The respondent and the mis en cause were invited to reply to the first, second and fifth arguments made by QPT.

As its first argument QPT maintained that the Board had improperly exercised its jurisdiction in interpreting and applying the new provisions of section 34 of the Code. In particular, QPT objected to the part of the decision in which the Board dismissed its argument that, by its 1991 amendment, Parliament intended to create a system in which the employer representative was merely the agent of the various employers operating in the longshoring industry in a given geographic area.

QPT contended that section 34 of the Code is a departure from the general rules applicable to certification. Whereas the latter is usually issued to an employer or a business, or sometimes even to a group of employers or businesses as provided for by sections 33 and 35 of the Code, the industry-wide and geographic certification of section 34 constitutes a compulsory grouping as compared with the voluntary grouping in section 33. In its submission, therefore, such a system must be given a limiting interpretation. Even if Parliament substituted the words “employer representative” for the word “agent” in the old version, the new system, though it treats the employer representative like an employer, makes no provision whatever that it will itself become the employer since it continues to perform “on behalf of [the employer]” the obligations imposed on the employer and may enter into a collective agreement “on behalf of [the employer].” The powers vested in it by subsection 34(5) of the Code, QPT concluded, are only those of a legal agent of all the employers covered by the certification.

QPT argued that, unlike sections 24, 25, 28 and 36 of the Code in which certification is expressly mentioned, the new section 34 does not use this terminology to describe the employer representative. The new version also does not use the phrase “employer bargaining agent” as sections 24, 26 and 32 of the Code do in respect of the union or a group of unions, which they refer to as “bargaining agents.” The new section 34 has not followed the language of section 33 of the Code with respect to the appointment of an “employers’ organization,” which the Board characterizes as an employer and which has the power to bind all employers when the collective agreement is entered into. In QPT’s submission, a legal agent cannot commit an employer in negotiations unless it has obtained the necessary instructions from that employer. In the event that there are several employers, the legal agent must obtain instructions from each one. Otherwise, it cannot commit an employer who has not given such instructions.

QPT dwelt at length on the special situation in which it happens to be as the only employer included in this unit which operates in Bécancour: all the others operate in Trois-Rivières. It and the other employers are competitors in business and their interests differ. Such a combination within one bargaining unit, it submitted, cannot take the same form as that of the employees, who have common interests. Only the employer knows what freedom of manoeuvre it can approve in negotiations dealing with working conditions. Accordingly, QPT further submitted, the collective agreement concluded by the MEA has the effect of imposing on QPT a 55% cost increase for all the wage clauses and administrative expenses. Furthermore, depending on the situation, it produces 10% to 20% cost increases in addition to the aforementioned 55% increase. The Trois-Rivières employers, all members of the MEA, on the other hand, are only affected by a clear cost increase of 10% to 15%. In the submission of QPT, there would have to be clearer language than that contained in section 34 to support the Board’s position, which amounts to placing employers in the longshoring industry at the mercy of, and making them economically dependent on, the employer representative.

The Board’s response was as follows.

Once the union certification was granted, it directed employers by order, pursuant to subsection 34(3) of the Code, to select a representative and inform the Board by June 25, 1992 at the latest. As nothing was done, it summoned them to a hearing to give them an opportunity to present arguments. In accordance with subsection 34(4), it then itself proceeded to appoint an “employer representative”, the function and powers of which it described as follows:[9]

The Board must, in the final analysis, appoint as “employer representative” the party it deems qualified to act in this capacity. First, the representative must be able to fulfil all obligations that Part I of the Code imposes on an employer, including its obligations under section 34(5) as “employer representative.” One of these obligations, bargaining in good faith with the bargaining agent with a view to entering into collective agreements in an orderly fashion, is fundamental to the achievement of industrial and social peace. It was, moreover, in the interest of maintaining this industrial and social peace that Parliament established this special system of industry-wide bargaining in 1973 and clarified it on December 5, 1991.

In developing objective criteria for determining the appropriate “employer representative,” the Board, with respect, sees no value in relying at all on the traditional notions of “mandate” in civil law and “agency” in common law. The amendments of December 5, 1991 to the special system of industry-wide bargaining eliminated the ambiguities arising from the use of the word “agent” in the old text. The Superior Court, relying specifically on the rules governing “mandate,” issued, before these amendments came into force, an interlocutory injunction and a permanent injunction, the effect of which was to give QPT a right of veto over the signing of any collective agreement between the ILA and the MEA (Terminaux portuaires du Québec Inc. c. Association des employeurs maritimes, no. 500-05-009311-885, November 9, 1988 (Que. S.C.) [sic]).

Our analysis of the legislation enacted following these injunctions reveals that the replacement of the word “agent” with the words “employer representative,” and the clarifications made to the powers of this representative, reflect Parliament’s intention to create a special system in keeping with the autonomy that characterizes collective labour relations legislation. Thus, under section 34(5), the “employer representative” appointed is explicitly invested by the Code, and not by the employers it represents, with the power to bind all employers in the unit, including necessarily those that had not proposed it as representative. Its appointment alone empowers it to negotiate and sign a collective agreement on behalf of the employers it represents. This is the very essence of industry-wide or geographic bargaining. The representative, however, cannot act arbitrarily.

In my opinion this reasoning of the Board was far from being unreasonable in view of the new legislation which it had to interpret.

In substituting the words “employer representative” for the word “agent” in the old version to designate the spokesperson for the employers at the bargaining table, Parliament was indicating that the system had been changed. Why would it have used a new term if it wished to preserve the same legal institution? Contrary to the arguments made by QPT, Parliament could not have chosen the phrase “employer bargaining agent” without creating confusion in the language since under section 3 of the Code the phrase “bargaining agent” already means the union. The word chosen was not the word “representative,” which standing alone might suggest that it was used as a synonym of the word “agent,” but instead the phrase “employer representative.”

If the employers cannot agree, the Board has a legal duty under subsection 34(4) of the Code to select the “employer representative.” The latter “shall be deemed to be an employer.”[10] “By virtue of having been appointed under this section,” it is then invested with the necessary powers to discharge all the duties and responsibilities of an employer under Part I of the Code on behalf of all the employers of the employees in the bargaining unit, including that of entering into a collective agreement “on behalf of those employers,” that is, in place of them and on their account. By comparison, the old section 34 only gave the Board the power to order employers to appoint an agent and authorize him to discharge the duties and responsibilities of an employer. The new version therefore marks a radical change. Although it is true, as QPT argued, that the Canada Labour Code does not preclude application of the provisions of the Civil Code [Civil Code of Lower Canada],[11] it does not follow from this that the special characteristics of labour law should be ignored when they are found therein. If Parliament had not intended to create a special statutory system, why would it have imposed on the “employer representative” in subsection 34(6) [as am. idem] a duty to fairly represent all those affected by its bargaining, when the Civil Code contains its own means of redress against an agent who goes beyond his instructions? Why would it have thus codified the Civil Code in the Canada Labour Code? One cannot help being struck by the parallel that exists between subsection 34(6), dealing with the employer, and section 37, dealing with the union.[12] In the case at bar it was entirely reasonable for the Board to conclude that the employer representative, deemed to be the employer, possessed a power similar to that of the bargaining agent, namely that of negotiating the collective agreement.[13]

As its second argument, QPT maintained that the Board acted unreasonably in not applying the criteria of objectivity and impartiality, which in its opinion were essential, when it preferred the candidacy of the MEA as “employer representative” to that of the Bédard firm proposed by QPT.

Following its rational analysis of the function and powers of the “employer representative,” the Board demonstrated no irrationality in accepting as the criteria for selection of the “employer representative” those which it considered reliable enough[14] to decide which of the two proposed candidates was more suitable to fill the position of “employer representative.” While it is true that the Board did not use the two criteria of objectivity and impartiality which QPT would have liked to use, it explained its position at length and considered that the new subsection 34(6) gave QPT all the necessary protection. It was not unreasonable for the Board to act in this way. In view of all this it is not surprising to find that in rendering decision No. 1027 the Board concluded that:[15]

Based on our parallel analysis of the general collective bargaining system and the exceptional industry-wide bargaining system, we conclude that an industry-wide collective agreement entered into by the union bargaining agent and the employer representative duly appointed under the Code binds all employees in the bargaining unit and all their employers, regardless of the wishes of those on whose behalf they act. With all due respect, we believe that this interpretation is the only one that will allow the attainment of the objective of section 34, having regard to the principles governing the general collective bargaining system in Canada.

In the instant case, this means that the collective agreement entered into by CUPE and the MEA on December 8, 1992 meets the requirements of section 3 of the Code and binds its signatories and all employees in the bargaining unit governed by the agreement and their employers. QPT is therefore bound, as an employer, by all provisions of the collective agreement and is subject to them.

This interpretation is far from unreasonable in view of the lengthy analysis made by the Board of the general collective bargaining system as compared to the multi-employer bargaining system contemplated by section 33 and the industry-wide bargaining system contemplated by section 34 of the Code.[16] Accordingly, even in this exceptional compulsory system, once the collective agreement bargaining notice is given, the “parties”[17] have a duty to meet and attempt to conclude a collective agreement.[18] Once concluded, the collective agreement is binding on the bargaining agent, the employees and the employer.[19]

None of the arguments made by the applicant in its second application for review persuaded me that the reasoning used by the Board in explaining its decision No. 1027 was unreasonable.

It also was not unreasonable for the Board in decision No. 1027 to rule on the validity of the collective agreement binding on QPT when the appointment of the MEA was at issue in this Court, since the exercise of its power to adjourn[20] is discretionary and no application to stay this decision of October 30, 1992 or proceedings resulting from that decision was made in this Court by QPT.[21]

It also was not unreasonable for it to proceed despite the injunction and contempt of court proceedings in the Quebec Superior Court and Court of Appeal,[22] in view of the fact that these ongoing proceedings concerned the old section 34 of the Code and the Board could reasonably believe[23] that the federal Parliament intended in 1991 to alter the legal provisions applicable under section 34 of the Code.

The applicant made a fifth argument relating to the appointment order, but one which if correct could have ramifications for decision No. 1027, as if the first was quashed for the reasons alleged by QPT, the second would be as well.

QPT argued that the Board had placed itself in a position which suggested an appearance of bias when it found in favour of the MEA, represented by the firm Ogilvy Renault, in the appointment order made on October 30, 1992, when since October 13, 1992 it had itself been represented by the same firm Ogilvy Renault in an application for leave to appeal to the Supreme Court of Canada in Canada Labour Relations Board v. Attorney General of Canada.[24] That case has to do with a separate order, namely order No. 713 of the Board [Richard Gaboriault et al. and Tecksol Inc. and Transport Canada (1988), 75 di 130] , which was in fact the subject of a judgment by this Court,[25] except that the member of the Board who wrote the reasons for order No. 713, Serge Brault, also wrote them in the appointment order.

It should be noted that John Coleman of the firm Ogilvy Renault, which represented the Board in the Supreme Court of Canada on October 13, 1992, never represented the MEA in the case at bar before the Board. Only Gérard Rochon and Manon Savard represented the MEA in this case before the Board.

The mis en cause Board was authorized to participate in the argument.[26] It explained to the Court the policies followed on the awarding of briefs to law firms in connection with applications for judicial review.

The Board stated that the part played by it in judicial review proceedings is limited, depending on the circumstances, to providing the Court with information on the special context in which it carries out its duties, on the practices and procedures developed in order to administer the Code in a way which will make it possible to achieve its fundamental objectives, on the administrative process used in disposing of applications before it and on certain special factors pertaining to labour relations. The specialized nature of this information is such that private law firms who are retained by the Board must be able to fully master the Code, procedure and practices used before the Board and those used in the Federal Court. This special expertise required by the Board means that the firms from which it can choose are generally limited to those firms regularly appearing before it. In its selection the Board stated that it also takes into account the area where the application for judicial review originated and the interests being defended.

However, QPT argued that the explanations given by the Board were inadequate and that once an appearance of bias was raised the Board had a duty to explain the circumstances in which John Coleman received his instructions. Did he meet only with the Board’s legal counsel, or did he also meet with Serge Brault? Was there a Chinese wall or a cone of silence inside the Board?[27] QPT maintained that it could not get any answer to these questions as there was no affidavit by the Board and solicitor-client relations were protected by professional privilege. Accordingly, QPT concluded that the Board had not discharged its burden of proof in the case at bar.

It should be noted that what QPT complains of is an appearance of bias, not an actual situation of bias. An appearance of institutional bias is also not at issue.[28]

A person who must decide on whether there is an appearance of bias is, according to the language of the dissenting opinion of de Grandpré J. in Committee for Justice and Liberty et al. v. National Energy Board et al.:[29]

… an informed person, viewing the matter realistically and practically—and having thought the matter through …

This “informed” person is a person not interested in the ongoing case and who is not unaware that the Board has a limited part to play when it appears in the courts.[30]

Further, as de Grandpré J. himself said:[31]

The grounds for this apprehension must … be substantial and I entirely agree with the Federal Court of Appeal which refused to accept the suggestion that the test be related to the “very sensitive or scrupulous conscience”.

The ideas of “Chinese walls” and “cones of silence” referred to by QPT in its oral argument take their origin from MacDonald Estate v. Martin.[32] That case turned essentially on the standard that should govern the conduct of lawyers in conflict of interest situations when they move from one law firm, representing one party, to another firm which represents the opposing party.[33] As the use of confidential information is generally impossible to prove Sopinka J. of the Supreme Court of Canada, speaking for the majority, considered that the test to be used in such circumstances must be such that the public, represented by the reasonably informed person, would be satisfied that no use of confidential information would occur when a lawyer changes sides in this way. He made a distinction between the use of confidential information by a lawyer at the time of earlier relations with a client and the use he may make of it later to the detriment of his first client.

On the first point, Sopinka J. rejected the notion that there could be an irrebuttable presumption that the lawyer obtained confidential information while working for his first client. He found this rule too strict and tempered it as follows:[34]

… once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer from which it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies the court that no information was imparted which could be relevant. This will be a difficult burden to discharge. Not only must the court’s degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication. Nonetheless, I am of the opinion that the door should not be shut completely on a solicitor who wishes to discharge this heavy burden.

On the second point, Sopinka J. considered that a lawyer who had thus obtained relevant confidential information was automatically disqualified from acting against his former client. However, he made a distinction for partners. In his view, the concept of imputed knowledge is unrealistic in a time of mega-firms. He considered that institutional mechanisms such as Chinese walls and cones of silence could mitigate the strictness of the rule. However, it was the function of professional bodies to develop standards in this regard, provided that a reasonable member of the public who is in possession of the facts would conclude that no unauthorized disclosure of confidential information had occurred or would occur.[35]

In the case at bar the conflict of interest presented is not that of a lawyer who changes sides. So far as the evidence is concerned no one, like the plaintiff in MacDonald Estate v. Martin, sought to show the existence of a prior connection between the two situations complained of by QPT. On the contrary, it is clear that there is no connection between these two cases. The fear expressed by QPT had to do not with the transmission of confidential information from one case to another but the possibility that the Board wished to favour the firm Ogilvy Renault by ruling in its favour since that firm was representing it in the Supreme Court of Canada. At the same time, what benefit would there have been for the Board in favouring this law firm since ultimately it is not Ogilvy Renault but the Supreme Court of Canada which would be deciding on its application for leave to appeal?

Committee for Justice and Liberty et al. v. National Energy Board et al.,[36] on which the applicant also relied, is different since in the case at bar the member of the Board who wrote the reasons for the appointment order and order No. 713 [(1988), 75 di 130] had no previous connection with either of the two cases. He only sat in the two cases. The one is not connected to the other. What is more, no personal connection was shown between this member of the Board and the firm Ogilvy Renault.

In the case at bar a reasonable person would refrain from any comment as he would quickly realize that this allegation of bias is groundless.

I would dismiss the two applications for judicial review.

Décary J.A.: I concur.

Chevalier D.J.A.: I concur.

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