Canadian Air Traffic Control Association v. NAV Canada
A-367-98
Rothstein J.A.
18/11/99
4 pp.
Application to set aside May 17, 1998 CLRB order on basis made without notice to applicant, in breach of rules of natural justice, Canada Labour Code-On March 29, 1998 Board made order requiring members of applicant union to cease, desist from illegal activity in nature of strike, and from unlawfully limiting work availability, output-May 17 order ordering that order be filed in Federal Court under Code, s. 23(1)-May 17 order made without giving applicant opportunity to make submissions as to whether indication of failure or likelihood of failure to comply or whether any other good reason why filing would serve no useful purpose under s. 23-After Board made order, applicant filing submission-Upon subsequent request to Board to rescind order, Board advised respondent had 10 days to reply to applicant's submissions, and advised applicant would have 10 days to file further response-Applicant applied for judicial review and Board deferred proceeding with reconsideration application-Without deciding issue, Court accepting for purposes of this case, to accept process under s. 23(1) requiring Board to formulate opinion as to whether to file order in Federal Court, that such opinion constituting decision, and that prior to making such decision, affected parties should be given notice, opportunity to make submissions to Board-But in circumstances herein, inappropriate to allow judicial review-Applicant's remedy before Board-Board agreed to do what applicant requested: to reconsider May 17, 1998 order after receiving further submissions-Court could not grant applicant any better remedy; applicant not asking for any other remedy-When party seeks to remedy procedural defect before tribunal, tribunal agrees to what applicant seeks, except in unusual circumstances not present here, inappropriate for applicant to ignore tribunal, insist on proceeding to Court-Reconsideration application by Board would have proceeded within month or two, according to timetable set by Board-By insisting on proceeding with judicial review, 18 months elapsed-Applicant conceding application now moot-Plain, obvious applicant should have proceeded before Board-While standard of review on issue of natural justice correctness, where Board voluntarily agreeing to remedy defect in process, parties should, unless good reasons for not doing so, proceed before Board-Canada Labour Code, R.S.C., c. L-2, s. 23(1).