L’ASSOCIATION DES EMPLOYEURS MARITIMES L’ADMINISTRATION PORTUAIRE DE MONTRÉAL LA FÉDÉRATION MARITIME DU CANADA Applicants v. LE SYNDICAT DES DÉBARDEURS, SECTION LOCALE 375 DU SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE, 2019 FCA 271

Date: 20191030 Docket: A-295-19 Citation: 2019 FCA 271 Present: GLEASON J.A. BETWEEN: L’ASSOCIATION DES EMPLOYEURS MARITIMES L’ADMINISTRATION PORTUAIRE DE MONTRÉAL LA FÉDÉRATION MARITIME DU CANADA Applicants and LE SYNDICAT DES DÉBARDEURS,

SECTION LOCALE 375 DU SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE L’ASSOCIATION INTERNATIONALE DES DÉBARDEURS LA CHAMBRE DE COMMERCE DE L’EST DE MONTRÉAL LE CONSEIL DU PATRONAT DU QUÉBEC LA FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC Respondents Dealt with in writing without appearance of parties. Order delivered at Ottawa, Ontario, on October 30, 2019. REASONS FOR ORDER BY: GLEASON J.A. Date: 20191030 Docket: A-295-19 Citation: 2019 FCA 271 Present: GLEASON J.A. BETWEEN: L’ASSOCIATION DES EMPLOYEURS MARITIMES L’ADMINISTRATION PORTUAIRE DE MONTRÉAL LA FÉDÉRATION MARITIME DU CANADA Applicants and LE SYNDICAT DES DÉBARDEURS,

SECTION LOCALE 375 DU SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE L’ASSOCIATION INTERNATIONALE DES DÉBARDEURS LA CHAMBRE DE COMMERCE DE L’EST DE MONTRÉAL LE CONSEIL DU PATRONAT DU QUÉBEC LA FÉDÉRATION DES CHAMBRES DE COMMERCE DU QUÉBEC Respondents REASONS FOR ORDER GLEASON J.A. [ 1 ] The applicants seek an order staying proceedings before the Canada Industrial Relations Board (the CIRB or the Board) in the context of ongoing Board hearings into the applicants’ maintenance of activities application under

section 87.4 of the Canada Labour Code , R.S.C. 1985, c. L-2 (the Code ). In that application, the applicants seek to have the work done in the Port of Montreal by the members of the respondent, Local 375 of the C.U.P.E. Longshoremen’s Union (Local 375), declared to be necessary to prevent an

immediate and serious danger to the safety or health of the public. Such a declaration would have the effect of preventing members ofLocal 375 from engaging in a legal strike under

Part I of the Code. Were such a declaration made, the Board would typically directanother means of settling the collective agreement between Local 375 and the applicant Maritime Employers’ Association, such asproviding for interest arbitration to settle the terms of the collective agreement. [2] The applicants seek a stay of the Board’s proceedings in their

section 87.4 application until this Court decides their application forjudicial review of the August 21, 2019 decision of the CIRB. In that decision, the Board dismissed the applicants’ request that one of themembers of the Board panel hearing the maintenance of activities application recuse himself due to an alleged reasonable apprehensionof bias flowing from certain comments, actions and gestures made, in particular, during two of the several days of hearing before theBoard. [3] The Board has held over twenty days of hearings in the

section 87.4 application and is currently in the process of hearing closingarguments in the application. [4] In the context of this stay application, the parties filed materials in accordance with the

schedule set out in my August 27, 2019Direction, which set out time limits for the filing of responding materials by the respondents and of reply materials by the applicants.Pursuant to the September 23, 2019 Direction of my colleague, Justice de Montigny, the applicants were permitted to include anadditional affidavit in their reply materials. [5] By Direction dated October 22, 2019, I determined that the applicants’ stay motion would be decided based on the parties’ writtenmaterials as scheduling a hearing date within the appropriate timeframe proved impossible given prior commitments of certain counsel. [6] By letter dated October 23, 2019, Local 375 advised that it intended to refer to certain affidavits and exhibits contained in threevolumes of materials enclosed with the letter.

These three volumes have been filed by Local 375 in the context of the underlyingapplication for judicial review of the CIRB’s August 21, 2019 decision.

Counsel for the applicants wrote to the Court the same day toobject to the admissibility of these additional materials on this motion, taking the position that their filing violates the timeframes set outin my August 27, 2019 Direction as well as the time limits for filing motion materials contained in the Federal Courts Rules, SOR/98-106. [7] I agree with the applicants that these additional materials are not admissible as they were not filed within the timeframes that wereset out in my August 27, 2019 Direction.

Thus, I will not consider these additional volumes. [8] Turning to the merits of the stay application, to be entitled to a stay, the applicants must satisfy the tripartite test set out in RJR-MacDonald Inc. v.

Canada (Attorney General), (SCC), [1994] 1 S.C.R. 311 which requires they establish that theirunderlying application for judicial review raises a serious issue, that they would suffer irreparable harm if their stay were refused and thatthe balance of convenience favours granting the stay. [9] The applicants may well have satisfied the first part of this test, given the relatively low bar for establishing a serious issue andcertain of the comments made by one of the Board members during the CIRB hearing on June 28, 2019. [10] However, the applicants have not established that they will suffer irreparable harm if the requested stay is not issued at this point.As this Court noted in SGT 2000 Inc. v.

Union des chauffeurs de camions, hommes d’entrepôts et autres ouvriers, (Fed. C.A.) [SGT], it is highly unusual for a Court to stay labour board proceedings so as to prevent a board from rendering a decision. [11] The irreparable harm the applicants allege is tied to the harm they assert they and third parties would suffer if they were subject toan adverse decision made by a panel of the Board, which may be reasonably apprehended as being biased.

At this point, it is uncertainwhether this harm may come to pass as it is conceivable that the applicants might be successful in their application before the Board.Thus, this stay motion is premature. In somewhat similar circumstances in SGT and in Canadian Human Rights Commission v. Malo,2003 FCA 466, this Court has denied similar stay motions. [12] To counter this concern, the applicants assert that there will be insufficient time between the date of an eventual Board decision onits

section 87.4 application and the commencement of a legal strike to obtain a stay of the Board’s decision as Local 375 would be in alegal strike position if the Board were to deny the maintenance of activities application. At such point, Local 375 could issue a 72-hournotice under

section 87.2 of the Code and a legal strike could, and according to the applicants likely would, commence in the Port ofMontreal following the expiry of such notice. [13] I am not convinced that it would be impossible for this Court to entertain a renewed stay application during such 72-hour period. Toensure the timely disposition of a possible further stay application, I will instead adjourn this motion as opposed to dismissing it. Withinfive days of the date of my order, the applicants may serve and file any additional materials they wish to file in support of their staymotion.

The respondents shall have five days from receipt of any additional materials served by the applicants to file any additionalresponding materials they may wish to file. [14] If the Board issues a decision unfavorable to the applicants, and if they wish to maintain their request for a stay, they may make therequest for a stay of the Board’s decision by way of letter, enclosing a copy of the Board’s decision, and shall serve and file such letterwithin 24 hours of receipt of the Board’s decision.

Conversely, if the applicants are successful before the Board, they shall simply file acopy of the Board’s decision within 24 hours of receipt. The applicants shall also notify the Judicial Administrator via telephone as soonas possible after release of the Board’s decision.

If these deadlines occur on a weekend, the applicants shall contact the duty officer of theCourt to arrange for the transmission of the required materials via email. [15] The motion will immediately be returned to me for determination after the foregoing materials are filed or, if I am unavailable, toanother judge of this Court named by the Chief Justice. [16] In the circumstances, it is appropriate that the hearing of the applicants’ underlying application for judicial review in respect of theBoard’s August 21, 2019 application be expedited.

Within five days of the date of my Order, the parties shall submit an agreed-upon

schedule, or failing agreement, their respective positions for completing the remaining steps in this application, with a view to its being set down for hearing during January 2020 in either Ottawa or Montreal. [ 17 ] Costs incurred to date in this motion shall be settled when the motion is finally determined. “Mary J.L. Gleason” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-295-19 STYLE OF CAUSE: L’ASSOCIATION DES EMPLOYEURS MARITIMES et al. v. LE SYNDICAT DES DÉBARDEURS,

SECTION LOCALE 375 DU SYNDICAT CANADIEN DE LA FONCTION PUBLIQUE et al. MOTION DEALT WITH IN WRITING WITHOUT APPEARANCE OF PARTIES REASONS FOR ORDER BY: GLEASON J.A. DATED: October 30, 2019 WRITTEN REPRESENTATIONS BY : Nicola Di lorio Mélanie Sauriol For The Applicants (L’Association des employeurs maritimes) Michel Brisebois FOR THE APPLICANTS (L’Administration portuaire de Montréal) Jean-Denis Boucher FOR THE APPLICANTS (La Fédération maritime du Canada) Jacques Lamoureux Marie-Christine Morin FOR THE RESPONDENTS (Le Syndicat des débardeurs,

section locale 375 du Syndicat canadien de la fonction publique) Ronald A Pink FOR THE RESPONDENTS (L’Association internationale des débardeurs) SOLICITORS OF RECORD : BCF Montréal, Québec For The Applicants (L’Association des employeurs maritimes et L’Administration portuaire de Montréal)

Robinson Sheppard Shapiro Montréal, Québec FOR THE APPLICANTS (La Fédération maritime du Canada) Lamoureux Morin Avocats Inc. Longueuil, Québec FOR THE RESPONDENTS (Le Syndicat des débardeurs,

section locale 375 du Syndicat canadien de la fonction publique) Pink Larkin Halifax, Nova Scotia FOR THE RESPONDENTS (L’Association internationale des débardeurs)