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].
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