Transport Besner Atlantic ltée et al. v. Syndicat des travailleuses et travailleurs de Transport Besner (CSN) et al., (2006) 360 N.R. 256 (FCA)

• Judge: Desjardins, Décary and Nadon, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: April 24, 2006
• Jurisdiction: Canada (Federal)
• Citations: (2006), 360 N.R. 256 (FCA);2006 FCA 146

Transport Besner Atlantic ltée v. CSN (2006), 360 N.R. 256 (FCA)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2006] N.R. TBEd. MY.010

Transport Besner Atlantic Ltée, Transport Besner Central Ltée, Transport Besner Inc., Gestion Réseau Besner Ltée (demanderesses) v. Syndicat des travailleuses et travailleurs de Transport Besner (CSN), Union des chauffeurs de camions, hommes d'entrepôts et autres ouvriers, Teamsters Québec, section locale 106 (FTQ) (défenderesses)

Union des chauffeurs de camions, hommes d'entrepôts et autres ouvriers, Teamsters Québec, section locale 106 (FTQ) (demanderesses) v. Syndicat des travailleuses et travailleurs de Transport Besner (CSN) et Transport Besner Atlantic Ltée, Transport Besner Central Ltée, Transport Besner Inc., Gestion Réseau Besner Ltée, Transport TF 13 (défendeurs)

(A-475-04; A-11-05; A-107-05; A-392-05; 2006 FCA 146; 2006 CAF 146)

Indexed As: Transport Besner Atlantic ltée et al. v. Syndicat des travailleuses et travailleurs de Transport Besner (CSN) et al.

Federal Court of Appeal

Desjardins, Décary and Nadon, JJ.A.

April 24, 2006.

Summary:

Transport Besner, Besner Atlantic, Besner Central and Gestion Besner (collectively, the employer) were four related companies that operated a trucking business. Transport Besner, Besner Atlantic and Besner Central conducted the actual trucking operations. Gestion Besner conducted the administration, including getting work and despatching it to the three operations companies. It appeared that Gestion Besner also hired some truck drivers. The Teamsters union represented the truck drivers at Besner Atlantic and Besner Central. The CSN represented the drivers at Transport Besner. During 2002, some of Transport Besner's drivers went to work for Besner Atlantic and Besner Central. By December 2002, Transport Besner closed its doors and laid off its remaining 98 drivers. Two weeks earlier, it had fired the union representative. The CSN grieved the 98 lay offs. The ownership of the four companies changed during 2002. Upon application by the CSN, the Canada Industrial Relations Board (the Board) issued two decisions ordering the following: (1) there was a sale of a business within the meaning of s. 44 of the Canada Labour Code; (2) Besner Atlantic, Besner Central and Gestion Besner formed a single employer pursuant to s. 35; (3) there was one appropriate bargaining unit; (4) there would be a representation vote to decide whether the truck drivers would be represented by the Teamsters or by the CSN; and (5) the drivers at Besner Atlantic, Besner Central and Gestion Besner, the laid off drivers from Transport Besner and the fired union representative were entitled to vote. The Teamsters and the employer sought a reconsideration.

The Canada Industrial Relations Board dismissed the application for reconsideration. The Teamsters and the employer filed respective judicial review applications that together covered all decisions rendered by the Board.

The Federal Court of Appeal dismissed the applications.

Constitutional Law - Topic 6642

Federal jurisdiction (s. 91) - Interprovincial works and undertakings - Transportation (incl. railways) - [See Labour Law - Topic 435 ].

Labour Law - Topic 435

Labour relations boards and judicial review - Boards - Jurisdiction - Canada Industrial Relations Board - Transport Besner, Besner Atlantic, Besner Central and Gestion Besner (collectively, the employer) were four related companies that operated a trucking business - Transport Besner, Besner Atlantic and Besner Central conducted the actual trucking operations - Gestion Besner conducted the administration, including getting work and despatching it to the three operations companies - Gestion Besner also used the services of other trucking companies - Transport Besner closed its doors - The Canada Industrial Relations Board ruled that Gestion Besner was a vital and integral part of the federal undertakings Besner Atlantic and Besner Central and was subject to the provisions of the Canada Labour Code - The employer challenged that ruling, arguing that Gestion Besner was a provincial undertaking over which the Board had no jurisdiction, since Gestion Besner was a logistics company and business broker who did no trucking itself - The Federal Court of Appeal upheld the Board's ruling - See paragraphs 37 to 40.

Labour Law - Topic 656

Labour relations boards and judicial review - Natural justice - Denial of - Evidence - Denial of right to adduce - During 2002, some of the drivers of one of four related trucking companies went to work for two of the other ones - By December 2002, that company closed its doors and laid off its remaining 98 drivers - Also, the ownership of the four companies changed - The Canada Industrial Relations Board conducted a hearing as to whether there had been a sale of a business, pursuant to s. 44 of the Canada Labour Code, whether there was a single employer, pursuant to s. 35, what constituted the appropriate bargaining unit and who could vote in a representation vote to choose which of two unions would represent the drivers - The employer questioned five laid off drivers but wanted to question the remaining 93 in relation to the same facts - The Board allowed questioning for only five drivers - The Federal Court of Appeal ruled that the Board did not violate the rules of natural justice - See paragraphs 29 to 36.

Labour Law - Topic 4908

Unions - Successor rights and obligations - Sale, lease, transfer or disposition of business - Transport Besner, Besner Atlantic, Besner Central and Gestion Besner were four related companies that operated a trucking business - Head office was in Saint-Nicolas, Quebec - Transport Besner, Besner Atlantic and Besner Central conducted the actual trucking operations - Gestion Besner conducted the administration, including getting work and despatching it to the three operations companies - During 2002, some of Transport Besner's drivers went to work for Besner Atlantic and Besner Central - By December 2002, there were some 30 drivers posted in Saint-Nicolas for each of the businesses and the ownership of the four companies had changed - In December 2002, Transport Besner closed its doors and laid off its 98 drivers - The Canada Industrial Relations Board ruled that there had been a sale of the business within the meaning of s. 44 of the Canada Labour Code - The Board noted that the rationalizing and restructuring of the operations of Transport Besner within the Gestion Besner group gave rise to a transfer of the operations of Transport Besner to Besner Central and Besner Atlantic - It found that there was "continuity in Saint-Nicolas of a significant portion of Transport Besner's activities by Besner Central and Besner Atlantic" - The Federal Court of Appeal upheld the decision - See paragraphs 41 to 57.

Labour Law - Topic 4908

Unions - Successor rights and obligations - Sale, lease, transfer or disposition of business - Transport Besner, Besner Atlantic, Besner Central and Gestion Besner were four related companies that operated a trucking business - Transport Besner, Besner Atlantic and Besner Central conducted the actual trucking operations - The CSN represented Transport Besner's drivers - The Teamsters represented the drivers at Besner Atlantic and Besner Central - Gestion Besner conducted the administration, including getting work and despatching it to the three operations companies - During 2002, some of Transport Besner's drivers went to work for Besner Atlantic and Besner Central - By December 2002, there were some 30 drivers for each of the businesses and the ownership of the four companies had changed - Also, the ownership of the four companies changed - On December 23, 2002, Transport Besner closed its doors and laid off its 98 drivers - On January 10, 2003, the CSN filed grievances with Transport Besner - The Canada Industrial Relations Board ruled that the bargaining and representation rights of the 98 laid off drivers of Transport Besner were transferred to Besner Atlantic and Besner Central - The Board found that the CSN had filed the grievances within the 21-day deadline provided by the collective agreement and that, under s. 44 of the Canada Labour Code, Besner Atlantic and Besner Central, or the purchaser inherited the pending grievances - The Federal Court of Appeal upheld the decision - See paragraphs 58 to 67.

Cases Noticed:

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [para. 26].

Ivanhoe Inc. et al. v. United Food and Commercial Workers, Local 500 et al., [2001] 2 S.C.R. 565; 272 N.R. 201, refd to. [para. 26].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, addendum [1998] 1 S.C.R. 1222, refd to. [para. 26].

Dayco (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), [1993] 2 S.C.R. 230; 152 N.R. 1; 63 O.A.C. 1, refd to. [para. 26].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 28].

Knight v. Board of Education of Indian Head School Division No. 19, [1990] 1 S.C.R. 653; 106 N.R. 17; 83 Sask.R. 81, refd to. [para. 32].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22, refd to. [para. 32].

Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69 and Labour Relations Board (Ont.), [1990] 1 S.C.R. 282; 105 N.R. 161; 38 O.A.C. 321, consd. [para. 33].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 34].

Bunge du Canada ltée v. Syndicat canadien de la fonction publique, section locale 3711 et al. (1995), 181 N.R. 382 (F.C.A.), consd. [para. 35].

NAV Canada v. International Brotherhood of Electrical Workers, Local 2228 (2001), 267 N.R. 125 (F.C.A.), refd to. [para. 36].

Raymond et al. v. Syndicat des travailleurs et travailleuses des postes (2003), 318 N.R. 319 (F.C.A.), refd to. [para. 36].

Northern Telecom Ltd. v. Communications Workers of Canada and Canada Labour Relations Board, [1980] 1 S.C.R. 115; 28 N.R. 107, dist. [para. 40].

Offshore Logistics Inc. v. International Longshoremen's Association, Local 269 (2000), 257 N.R. 338 (F.C.A.), dist. [para. 40].

Halifax Longshoremen's Association, Local 269 v. Offshore Logistics Inc. - see Offshore Logistics Inc. v. International Longshoremen's Association, Local 269.

Sports Interaction v. Jacobs (2006), 348 N.R. 292; 2006 FCA 116, dist. [para. 40].

Ardoch Algonquin First Nation et al. v. Canada (Attorney General), [2004] 2 F.C.R. 108; 315 N.R. 76 (F.C.A.), refd to. [para. 40].

Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage) et al., [2004] 3 F.C.R. 436; 317 N.R. 258 (F.C.A.), refd to. [para. 40].

Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ), [1988] 2 S.C.R. 1048; 95 N.R. 161; 24 Q.A.C. 244, dist. [para. 43].

Union des employés de service, local 298 v. Bibeault - see Syndicat national des employés de la Commission scolaire régionale de l'Outaouais (CSN) v. Union des employés de service, local 298 (FTQ).

Ajax (Town) v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Local 222 et al., [2000] 1 S.C.R. 538; 253 N.R. 223; 133 O.A.C. 43, affing. (1998), 113 O.A.C. 188; 41 O.R.(3d) 426 (C.A.), consd. [paras. 48, 49].

National Bank of Canada v. Retail Clerks' International Union and Canada Labour Relations Board, [1984] 1 S.C.R. 269; 53 N.R. 203, refd to. [para. 50].

Logistec Corp. et al., Re (1986), 67 di 120; 15 C.L.R.B.R.(N.S.) 338; 87 C.L.L.C. 16,008, refd to. [para. 54].

International Longshoremen's Association, Local 1843 v. Halifax Grain Elevator Ltd. (1991), 85 di 42; 15 C.L.R.B.R.(2d) 191; 91 C.L.L.C. 16,033, refd to. [para. 54].

International Longshoremen's Association, Local 1845 v. Terminus Maritime Inc. (1983), 50 di 178; 83 C.L.L.C. 16,029 (Can. L.R.B.), refd to. [para. 54].

Statutes Noticed:

Canada Labour Code - see Labour Code.

Labour Code, R.S.C. 1985, c. L-2, sect. 22, sect. 35, sect. 44, sect. 45, sect. 46 [para. 25].

Counsel:

Daniel Rochefort, for the applicant;

Dany Milliard, for the respondent, Syndicat des travailleuses et travailleurs de Transport Besner (CSN);

Stéphane Lacoste, for the respondent, Union des chauffeurs de camions, hommes d'entrepôts   et   autres  ouvriers,  Teamsters

Québec, section locale 106 (FTQ);

Marie-Claude Grignon, for the Canada Industrial Relations Board.

Solicitors of Record :

Rochefort & Associés, Montreal, Quebec, for the applicant;

Proulx, Ménard, Milliard, Caux, s.e.n.c., Quebec, Quebec, for the respondent, Syndicat des travailleuses et travailleurs de Transport Besner (CSN);

Stéphane Lacoste, Laval, Quebec, for the respondent, Union des chauffeurs de camions, hommes d'entrepôts et autres ouvriers, Teamsters Québec, section locale 106 (FTQ);

Canada Industrial Relations Board, Montreal, Quebec, for the Canada Industrial Relations Board.

These applications were heard at Montreal, Quebec, on March 28, 29 and 30, 2006, by Desjardins, Décary and Nadon, JJ.A., of the Federal Court of Appeal. The decision of the Court of Appeal was delivered by Desjardins, J.A., at Ottawa, Ontario, on April 24, 2006.