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COLLECTIVE BARGAINING - Certification - Appropriate bargaining unit - Representation vote

Friday, August 04, 2017 @ 8:33 AM  

Application by Rogers Communications Canada Inc. (Rogers) for judicial review of a decision of the Canadian Industrial Relations Board (Board) which allowed the respondent Union’s application for review of a bargaining unit pursuant to s. 18 of the Canada Labour Code (Code). The Union was certified as bargaining agent for the technical employers of Rogers’ predecessor, Metro Cable T.V. Limited, at its Etobicoke location. Since 2001, the Union had brought 13 successful applications to broaden the membership of the bargaining unit to include employees located within the Greater Toronto and Mississauga areas. In 2013, after Rogers acquired another corporation, situated in Hamilton, the Union requested the addition of 20 individuals who had technical classification profiles akin to those found in the description of the bargaining unit. The Board allowed the Union’s application, noting that it had authority to review an existing bargaining unit and to add new employees or previously excluded employees. The Board also found that the Union had majority support of the employees. Rogers sought judicial review of the Board’s decision on the grounds that the Board did not consider amendments made to Division III of the Code, which included a new requirement for a secret ballot representation vote for applications for certification, in exercising its discretionary review functions. Rogers also argued that the Board unreasonably concluded that the Union had majority support.

HELD: Application allowed. The Court agreed with Rogers’ submission that any failure to seek reconsideration could not be a bar to an application for judicial review and could only be, at best, a factor for the Court to take into consideration when determining whether to grant an administrative law remedy. The requirements of both sections 18 and 24 of the Code were at play before the Board and that it was incumbent upon it to deal with those submissions in its reasons. It was clear that Rogers objected to the application before the Board on the grounds that the employees were deprived of the right to a representation vote conducted by secret ballot. While the Board discussed at length why it thought that the resulting unit would be at least as appropriate as the existing bargaining unit, thereby justifying its decision to reject Rogers' submission that the Union was required to use the certification procedures under section 24 of the Code, it never explained why the secret ballot requirement introduced in Division III of the Code should not be read into section 18. The Board’s decision was silent on that critical issue. Accordingly, it was impossible to determine whether the Board turned its mind to Rogers’ argument, and if so on what basis it came to its (implicit) conclusion that the secret ballot requirements introduced by Parliament in 2014 in the context of a certification process were not to be imported into a section 18 application. The Board’s decision was set aside and the Union’s application was remitted to the Board for redetermination in accordance with the Court’s reasons.

Rogers Communications Canada v. Metro Cable T.V. Maintenance and Service Employees' Assn., [2017] F.C.J. No. 635, Federal Court of Appeal, Y. de Montigny, E.R. Dawson and J.M. Woods JJ.A., June 15, 2017. TLD-July312017010