Judgments

Decision Information

Decision Content

A-909-80
Via Rail Canada Inc. (Applicant) v.
Kenneth Cameron and Canadian Brotherhood of Railway, Transport and General Workers (Re- spondents)
and
Canada Labour Relations Board (Tribunal)
Court of Appeal, Pratte and Ryan JJ. and Lalande D.J.—Montreal, June 18 and 19, 1981.
Judicial review — Labour relations — Application to review and set aside Canada Labour Relations Board's decision ordering the union to submit the employee's grievance to arbitration and enlarging to that effect the time limit provided for in the collective agreement — Whether Board can modify collective agreements and enlarge time limits therein provided — Whether Board can direct that the employee be represented by counsel of his choice at the arbitration proceedings -- Canada Labour Code, R.S.C. 1970, c. L-1, as amended, s. 189(a) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Teamsters Union Local 938 v. Massicotte [1982] 1 F.C. 216, applied.
APPLICATION for judicial review. COUNSEL:
Robert Monette and Anne Leydet for applicant.
Janet Cleveland for respondent Kenneth Cameron.
Maurice W. Wright, Q.C. for respondent Canadian Brotherhood of Railway, Transport and General Workers.
Joseph Nuss, Q.C. for Tribunal.
SOLICITORS:
Ogilvy, Renault, Montreal, for applicant.
Jasmin, Rivest, Castiglio, Castiglio & LeBel, Montreal, for respondent Kenneth Cameron. Soloway, Wright, Houston, Greenberg, O'Grady, Morin, Ottawa, for respondent Canadian Brotherhood of Railway, Transport and General Workers.
Ahern, Nuss & Drymer, Montreal, for Tribunal.
The following are the reasons for judgment delivered orally in English by
PRATTE J.: This section 28 application is direct ed against a decision of the Canada Labour Rela-
tions Board made following a complaint that a trade union, which was the bargaining agent for a bargaining unit, had failed to represent fairly all employees in the unit by refusing to submit an employee's grievance to arbitration. By its deci sion, the Board ordered the union to submit the employee's grievance to arbitration and purported to enlarge the time limit provided for in the collec tive agreement so as to allow the grievance to be submitted to arbitration; it also ordered that the employee be represented in the arbitration pro ceedings by a counsel retained by him at the expense of the union.
The first attack made on that order is that the Board does not possess the power to modify collective agreements and to enlarge time limits provided for in collective agreements. After much hesitation, I have reached the conclusion that this argument must be dismissed. In my opinion, the power to enlarge time limits provided for in collec tive agreements for the filing of grievances or the submission of grievances to arbitration is a power incidental or ancillary to the power granted to the Board by paragraph 189(a) of the Canada Labour Code, R.S.C. 1970, c. L-1, as amended, and which the Board must possess in order to be able to effectively exercise the power expressly granted to it by that paragraph.
The second attack made against the order was that the Board could not direct that the employee be represented by counsel of his choice at the arbitration proceedings since, under the statute, arbitration proceedings involve only two parties before the arbitrator, namely, the employer and the union. That attack must also be rejected since this Court has already decided in the Massicotte case' that the Board has the power to make such a direction.
For these reasons, I would dismiss the application.
* * *
RYAN J. concurred.
* * *
LALANDE D.J. concurred.
I Teamsters Union Local 938 v. Massicotte [supra page 216].
 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.