Newlab v. NLAPPE, (2004) 239 Nfld. & P.E.I.R. 215 (NFCA)

• Judge: Cameron, Welsh and Mercer, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: May 20, 2004
• Jurisdiction: Newfoundland and Labrador
• Citations: (2004), 239 Nfld. & P.E.I.R. 215 (NFCA);2004 NLCA 45

Newlab v. NLAPPE (2004), 239 Nfld. & P.E.I.R. 215 (NFCA);

    709 A.P.R. 215

MLB headnote and full text

Temp. Cite: [2004] Nfld. & P.E.I.R. TBEd. AU.001

Newfoundland and Labrador Association of Public and Private Employees (intended appellant) v. Newlab Clinical Research Inc. (intended first respondent) and the Labour Relations Board (intended second respondent)

(03/123; 2004 NLCA 45)

Indexed As: Newlab Clinical Research Inc. v. Newfoundland and Labrador Association of Public and Private Employees et al.

Newfoundland and Labrador Supreme Court

Court of Appeal

Cameron, Welsh and Mercer, JJ.A.

July 29, 2004.

Summary:

The Labour Relations Board for New­foundland and Labrador certified the New­foundland and Labrador Association of Public and Private Employees (NAPE) as the bargaining agent of Newlab Clinical Research Inc.'s employees. Newlab applied for judicial review of the order and sought a stay of proceedings pending the hearing. Newlab also sought an order for an expedited hearing of the judicial review application.

The Newfoundland and Labrador Supreme Court, Trial Division, in a decision reported at 232 Nfld. & P.E.I.R. 332; 690 A.P.R. 332, allowed the application for a stay but did not find it necessary to order an expedited hearing. The union applied for leave to appeal the granting of the stay.

The Newfoundland and Labrador Supreme Court, Trial Division, in a decision reported at 236 Nfld. & P.E.I.R. 68; 700 A.P.R. 68 allowed the review application and set aside the certification order. At issue was whether the application for leave to appeal the stay should still be heard, notwithstanding that it was now moot.

The Newfoundland and Labrador Court of Appeal dismissed the application for leave to appeal the stay decision.

Administrative Law - Topic 3285

Judicial review - General - Stay of pro­ceedings pending before tribunal - What applicant must establish - A trial judge held that on an application for a stay of a union certification order pending judicial review, the applicant had to establish a serious issue to be tried and not the more stringent burden of a prima facie case - The union applied for leave to appeal the decision - Before the leave application was heard, the judicial review application was allowed and the certificate was set aside - The union submitted that the leave applica­tion should still be heard, notwithstanding that it was now moot, because there were conflicting decisions in the jurisdiction on the issue - The Newfoundland and Labrador Court of Appeal found no uncer­tainty on the issue and refused leave to appeal.

Administrative Law - Topic 3291

Judicial review - General - Stay of pro­ceedings pending before tribunal - Con­siderations - Irreparable harm - The New­foundland and Labrador Supreme Court, Trial Division, held that on an application for a stay of a union certification order pending judicial review, the applicant employer did not have to establish irrepar­able harm where its application for judicial review was based on an alleged breach of a statute - Alternatively, the applicant would suffer irreparable harm where it would suffer damages that would not be recoverable from the union - The union applied for leave to appeal the decision - Before the leave application was heard, the judicial review application was allowed and the certificate was set aside - The union submitted that the leave application should still be heard, notwithstanding that it was now moot, because there were con­flicting decisions in the jurisdiction on the issue - The Newfoundland and Labrador Court of Appeal, found no uncertainty on the issue and refused leave to appeal.

Courts - Topic 2286

Jurisdiction - Bars - Academic matters or moot issues - An employer sought judicial review of a certification order - A stay was granted pending the application - The union applied for leave to appeal the stay - Before the leave application was heard, the employer's judicial review application was allowed and the certification order set aside - The Newfoundland and Labrador Court of Appeal declined to hear the now moot appeal respecting the stay order - The court rejected the union's submissions that there were conflicting decisions in the jurisdiction on the issues of whether the serious issue test, as opposed to the prima facie test, applied on an application for a stay of proceedings and on the application of the irreparable harm requirement - The court also rejected the submission that the issues would likely be evasive of judicial review unless heard in a moot appeal.

Labour Law - Topic 4606

Unions - Certification or decertification - Judicial review - Stay of certification pending review - [See Administrative Law - Topic 3285 and Administrative Law - Topic 3291 ].

Cases Noticed:

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1994] 1 S.C.R. 311; 164 N.R. 1; 60 Q.A.C. 241, refd to. [para. 11].

St. John's Transportation Commission v. Amalgamated Transit Union, Local 1462 (1989), 76 Nfld. & P.E.I.R. 148; 235 A.P.R. 148 (Nfld. T.D.), refd to. [para. 14].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 16].

R. v. Smith (B.J.), [2004] 1 S.C.R. 385; 317 N.R. 168; 235 Nfld. & P.E.I.R. 236; 699 A.P.R. 236, refd to. [para. 16].

Vic Restaurant Inc. v. Montreal (City), [1959] S.C.R. 58, refd to. [para. 17].

International Brotherhood of Electrical Workers, Local 2085 v. Winnipeg Build­ers' Exchange, [1967] S.C.R. 628, refd to. [para. 19].

Queen's University v. Canadian Union of Public Employees, Local 229 et al. (1994), 76 O.A.C. 356; 120 D.L.R.(4th) 717 (C.A.), refd to. [para. 19].

Great Atlantic & Pacific Co. of Canada Ltd. v. United Food and Commercial Workers International Union, Locals 175 and 533 et al. (1995), 83 O.A.C. 148; 24 O.R.(3d) 809; 126 D.L.R.(4th) 742 (Div. Ct.), refd to. [para. 19].

Canadian Pacific Ltd. v. Weatherbee (1979), 26 O.R.(2d) 784; 103 D.L.R.(3d) 747 (C.A.), refd to. [para. 22].

British Columbia Transit v. Council of Human Rights (B.C.) and McCabe (1991), 1 B.C.A.C. 20; 1 W.A.C. 20; 56 B.C.L.R.(2d) 261 (C.A.), refd to. [para. 24].

United Food and Commercial Workers, Local 1252 v. Fishermen, Food and Allied Workers Union and Carling O'Keefe Breweries of Canada Ltd. (1988), 75 Nfld. & P.E.I.R. 137; 234 A.P.R. 137 (Nfld. T.D.), refd to. [para. 25].

Smith v. Labour Relations Board (Nfld.) et al. (1989), 78 Nfld. & P.E.I.R. 256; 244 A.P.R. 256 (Nfld. T.D.), refd to. [para. 25].

Eastern Road Builders Ltd. v. Construction General Labourers, Rock and Tunnel Workers, Local 1208 et al. (1990), 225 Nfld. & P.E.I.R. 107; 672 A.P.R. 107 (Nfld. T.D.), refd to. [para. 25].

Canadian Paperworkers Union, Local 58 v. Corner Brook Pulp and Paper Ltd. (1987), 65 Nfld. & P.E.I.R. 261; 199 A.P.R. 261 (Nfld. T.D.), refd to. [para. 26].

Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.), [1987] 1 S.C.R. 110; 73 N.R. 341; 46 Man.R.(2d) 241, refd to. [para. 26].

Manitoba (Attorney General) v. Metropoli­tan Stores (MTS) Ltd. - see Metropolitan Stores (MTS) Ltd. v. Manitoba Food and Commercial Workers, Local 832 and Labour Board (Man.).

Counsel:

Sheila Greene, for the intended appellant;

A. Lilly, Q.C., for the intended first respondent.

This application was heard on May 20, 2004, by Cameron, Welsh and Mercer, JJ.A., of the Newfoundland and Labrador Court of Appeal. Mercer, J.A., delivered the following decision for the court on July 29, 2004.