Maritime Employers Association v. Lonshoremen’s Union, Local 375 (Canadian Union of Public Employees)

Maritime Employers Association v. Lonshoremen’s Union, Local 375 (Canadian Union of Public Employees) Court (s) Database Federal Court of Appeal Decisions Date 2020-01-29 Neutral citation 2020 FCA 29 File numbers A-295-19 Decision Content Date: 20200129 Docket: A‑295‑19 Citation: 2020 FCA 29 [ENGLISH TRANSLATION] CORAM: PELLETIER J.A. BOIVIN J.A. GLEASON J.A. BETWEEN: MARITIME EMPLOYERS ASSOCIATION MONTREAL PORT AUTHORITY SHIPPING FEDERATION OF CANADA Applicants and LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN UNION OF PUBLIC EMPLOYEES INTERNATIONAL LONGSHOREMEN’S ASSOCIATION CHAMBRE DE COMMERCE DE L’EST DE MONTRÉAL CONSEIL DU PATRONAT DU QUÉBEC FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC Respondents Heard at Ottawa , Ontario , on January 29, 2020. Judgment delivered at Ottawa , Ontario , on January 29, 2020. REASONS FOR JUDGMENT OF THE COURT BY: BOIVIN J.A. Date: 20200129 Docket: A‑295‑19 Citation: 2020 FCA 29 CORAM: PELLETIER J.A. BOIVIN J.A. GLEASON J.A. BETWEEN: MARITIME EMPLOYERS ASSOCIATION MONTREAL PORT AUTHORITY SHIPPING FEDERATION OF CANADA Applicants and LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN UNION OF PUBLIC EMPLOYEES INTERNATIONAL LONGSHOREMEN’S ASSOCIATION CHAMBRE DE COMMERCE DE L’EST DE MONTRÉAL CONSEIL DU PATRONAT DU QUÉBEC FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC Respondents REASONS FOR JUDGMENT OF THE COURT (Delivered from the Bench at Ottawa , Ontario , on January 29, 2020.) BOIVIN J.A. [1] This is an application for judicial review of a decision rendered by the Canada Industrial Relations Board (the Board) on August 21, 2019 (2019 CIRB 909). [2] By that decision, the Board dismissed the applicants’ application for recusal of a Board member, namely, Gaétan Ménard, who was on the panel dealing with the underlying application respecting the maintenance of essential activities. [3] The applicants submit that the Board erred in that [translation] “the cumulative effect” of member Ménard’s comments, actions and omissions gave rise to a reasonable apprehension of bias. [4] We are unanimously of the opinion that the Board did not err in its reasoned decision, as it examined the issued raised and, more specifically, the comments and actions alleged in the case under consideration. [5] Firstly, the Board correctly stated that the burden of demonstrating an apprehension of bias on the part of a member of the Board panel is on the party who alleges that apprehension of bias, that is, the applicants, as members of a quasi‑judicial administrative tribunal are presumed to be impartial. Secondly, the Board also properly directed itself in law in applying the test to establish a reasonable apprehension of bias as propounded in Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at pages 394–395. [6] As the Board stated, although member Ménard’s conduct during the hearing was regrettable, we are also of the opinion that the conduct complained of in this case does not support a finding of reasonable apprehension of bias, for substantially the same reasons. That being said, we must add that member Ménard’s conduct, which included constantly whispering and leaning on his chair while disinterestedly staring out the window, is unacceptable. This conduct in no way sets an example of decorum and professionalism for a Board hearing. [7] The application for judicial review will therefore be dismissed, with costs. “Richard Boivin” J.A. Certified true translation François Brunet, Revisor FEDERAL COURT OF APPEAL COUNSEL OF RECORD DOCKET: A‑295‑19 STYLE OF CAUSE: MARITIME EMPLOYERS ASSOCIATION, and MONTREAL PORT AUTHORITY, and SHIPPING FEDERATION OF CANADA v. LONSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN UNION OF PUBLIC EMPLOYEES, and INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, and CHAMBRE DE COMMERCE DE L’EST DE MONTRÉAL, and CONSEIL DU PATRONAT DU QUÉBEC, and FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC PLACE OF HEARING: Ottawa , Ontario DATE OF HEARING: January 29, 2020 REASONS FOR JUDGMENT OF THE COURT BY: PELLETIER J.A. BOIVIN J.A. GLEASON J.A. DELIVERED FROM THE BENCH BY: BOIVIN J.A. APPEARANCES: Nicola Di Iorio Mélanie Sauriol Geneviève Beaudin FOR THE APPLICANT MARITIME EMPLOYERS ASSOCIATION Michel Brisebois Georges Samoisette Fournier FOR THE APPLICANT MONTREAL PORT AUTHORITY Jean‑Denis Boucher FOR THE APPLICANT SHIPPING FEDERATION OF CANADA Marie‑Christine Morin Jacques Lamoureux FOR THE RESPONDENT LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN UNION OF PUBLIC EMPLOYEES Dominic Caron FOR THE RESPONDENT INTERNATIONAL LONGSHOREMEN’S ASSOCIATION COUNSEL OF RECORD: BCF LLP Montreal , Quebec FOR THE APPLICANTS MARITIME EMPLOYERS ASSOCIATION and MONTREAL PORT AUTHORITY Robinson Sheppard Shapiro L.L.P Montreal , Quebec FOR THE APPLICANT SHIPPING FEDERATION OF CANADA Lamoureux Morin avocats inc. Longueuil, Quebec FOR THE RESPONDENT LONGSHOREMEN’S UNION, LOCAL 375 OF THE CANADIAN UNION OF PUBLIC EMPLOYEES Pink Larkin Montreal , Quebec FOR THE RESPONDENT INTERNATIONAL LONGSHOREMEN’S ASSOCIATION