XL DIGITAL SERVICES INC. doing business as DEPENDABLE HOMETECH Applicant v. COMMUNICATIONS, ENERGY AND, 2010 FCA 328

Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20101201 Docket: A-329-10 Citation: 2010 FCA 328 Present: NOËL J.A. BETWEEN: XL DIGITAL SERVICES INC. doing business as DEPENDABLE HOMETECH Applicant and COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA Respondent Dealt with in writing without appearance of parties. Order delivered at Ottawa , Ontario, on December 1, 2010. REASONS FOR ORDER BY: NOËL J.A. Date: 20101201 Docket: A-329-10 Citation: 2010 FCA 328 Present: NOËL J.A. BETWEEN: XL DIGITAL SERVICES INC. doing business as DEPENDABLE HOMETECH Applicant and COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA

Respondent REASONS FOR ORDER NOËL J.A. [ 1 ] This is a motion by XL Digital Services Inc. (the applicant) for a stay of an interim order of the Canadian Industrial Relations Board (CIRB) dated August 23, 2010.

In the interim order, the CIRB certifies the Communications, Energy and Paperworkers Union of Canada as the bargaining agent for a unit comprising all employees of the applicant working in and out of London, Ontario , excluding managers and those above in rank of manager. [ 2 ] In the application for judicial review filed against the interim order, the applicant maintains that the CIRB did not have the jurisdiction to issue it.

It asks that this order be stayed pending the outcome of this application. [ 3 ] In order for a stay to be granted, the applicant must demonstrate that there is a serious question to be tried, that it will suffer irreparable harm if the stay is not granted and that the balance of convenience favours the issuance of the stay (see RJR-MacDonald Inc. v.

Canada (Attorney General , 1994 CanLII 117 (SCC) , [1994] 1 S.C.R. 311 ). [ 4 ] I assume for present purposes that the judicial review application raises a serious issue. [ 5 ] With respect to the irreparable harm, the applicant contends that its business operations will be irreparably harmed because it will be required to disclose information concerning its business operations, some of which may potentially be confidential; to prepare and review bargaining committee proposals and agendas; to enter into negotiations and bargain in good faith with the union; and to submit to arbitration pursuant to

section 36.1 of the Canada Labour Code , R.S.C. 1985, c. L-2, with regard to employee grievances. [ 6 ] I can understand the applicant’s frustration in complying with the order given its contention that it will be successful in overturning the decision of the CIRB. That said, a decision of the CIRB is, in principle, enforceable notwithstanding an application for judicial review. No doubt complying with the decision will create inconveniences.

However, the harm alleged falls substantially short of establishing irreparable harm. [ 7 ] The application for a stay will accordingly be dismissed with costs. “Marc Noël” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-329-10 STYLE OF CAUSE: XL DIGITAL SERVICES INC. doing business as DEPENDABLE HOMETECH v. COMMUNICATIONS, ENERGY AND PAPERWORKERS UNION OF CANADA

MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: Noël J.A. DATED: December 1, 2010 WRITTEN REPRESENTATIONS BY : V. Ross Morrison Natalie Schernitzki FOR THE APPLICANT J. James Nyman Jesse B. Kugler FOR THE RESPONDENT SOLICITORS OF RECORD : MORRISON BROWN SOSNOVITCH LLP Toronto, Ontario FOR THE APPLICANT CaleyWray Toronto , Ontario FOR THE RESPONDENT