COURT FILE NO.: 298/04

DATE: 20050119

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

CUNNINGHAM A.C.J.S.C., SPEYER AND JARVIS JJ.

B E T W E E N:

ALISTAIR MCEACHRAN

Applicant

• and -

THE ONTARIO LABOUR RELATIONS BOARD, THE SOCIETY OF ENERGY PROFESSIONALS and ONTARIO POWER GENERATION INC.

Respondents

Alistair McEachran, In Person

Voy T. Stelmaszynski, for the Ontario Labour Relations Board

James K. A. Hayes, for the Society of Energy Professionals

Helen Daniel, for the Ontario Power Generation Inc.

HEARD: January 19, 2005

SPEYER J.: (Orally)

1The applicant complained The Society of Energy Professionals violated its duty of fair representation under s. 74 of the Labour Relations Act by failing to pursue the applicant’s grievance.

2The grievance related to the union’s failure to refer the applicant’s complaint to binding arbitration. A hearing was held before the Ontario Labour Relations Board. The Board rendered its decision on May 4, 2004, in which it dismissed the application. Mr. McEachran now makes application for judicial review of the Board’s decision.

3The Labour Relations Act provides in s.114(1) and 116, strong privative clauses. The Board has exclusive jurisdiction to determine both questions of fact and law. The Board is a specialized tribunal that administers labour relations in this province. It is entitled to strong curial deference. The standard of review in this case is patent unreasonableness. A patently unreasonable decision is one that the jurisprudence establishes is “clearly irrational” and “evidently not in accordance with reason.”

4Section 74 of the Act imposes on unions, the duty not to act in a manner that is arbitrary, discriminatory or in bad faith in representation of employees. It is not a guarantor against every adversity suffered by an employee.

5In the present case, the applicant disagrees with the finding of the Board and he argues that the Board’s decision is unreasonable and unsupported by the record before us. In argument, this morning Mr. McEachran asserts that the weight of evidence establishes bad faith and arbitrariness. He further argued that the reasons of the Board fail to adequately address these issues.

6We disagree. In our view, the reasons of the Board indicate a careful analysis of the issue that it was required to adjudicate. That decision is supported by the record. Specifically the Board found that the union acted in a reasonable and thoughtful manner with respect to the applicant’s interests. The Board stated at paragraph 25 of its decision:

The union permitted the applicant every opportunity to make his case, but in the end it simply did not see the issue from the applicant’s perspective. In arriving at its decision not to pursue the applicant’s grievance further, the union was not motivated by bad faith and did nothing arbitrary or discriminatory in its representation of Mr. McEachran.

7In the same vein, relating to the legal opinion that Mr. McEachran had, the Board stated:

The fact that it (the Society) did not warm to the applicant’s lawyer’s innovative suggestions as to how to term an appeal to OPG’s sense of fairness and equity into a formal and probably expensive and time consuming legal challenge under the Collective Agreement, is not a reason to find the union in breach of the Act.

8Clearly, in our view, the Board was aware and alert to this legal opinion. We are of the view that the reasons given by the Board are entirely sufficient to deal with the issue before it. It is clear to us that the Union always considered Mr. McEachran’s case to be weak. Nevertheless, it attempted to pursue his interests in order to obtain, if possible, a good result.

9As I indicated during the course of argument this morning, on the record before us, the conduct of the union was anything but arbitrary or in bad faith. Simply put, it was trying to get a good result for its member in spite of its view that the underlying case it had was weak.

10Finally, I would just like to comment that an adjudicative tribunal is not required in its reasons to deal with every piece of evidence before it. In this regard, the passage that we were referred to this morning by Mr. Hayes from the Supreme Court of Canada, the judgment of Mr. Justice Laskin, in Woolaston v. Canada (Minister of Manpower and Immigration) (1973), 28 D.L.R. (3d) (S.C.C.) is apposite and I quote from that:

I am unable to conclude that the Board ignored that evidence and thereby committed an error of law to be redressed in this Court. The fact that it was not mentioned in the Board’s reasons is not fatal to its decision. It was in the record to be weighed as to its reliability and cogency along with the other evidence in the case, and it was open to the Board to discount it or to disbelieve it.

11We are all of the view that the Board’s decision was reasonable and thoughtful and is entitled to deference and accordingly, the application for judicial review is dismissed.

12Before leaving this case, I would just like to say, on behalf of the entire panel, that we thought that Mr. McEachran was obviously a highly intelligent gentleman who believed that he was badly dealt with. In argument, you showed great advocacy skills. Mr. Hayes, I would like to say to you that we certainly appreciate your professionalism and the strong advocacy you demonstrated.

13I have endorsed the Application Record as follows: “The application is dismissed for reasons given orally this day. In the circumstances, no costs.”

CUNNINGHAM A.C.J. S.C.

SPEYER J.

JARVIS J.

Date of Reasons for Judgment: January 19, 2005

Date of Release: February 8, 2005

COURT FILE NO.: 298/04

DATE: 20050119

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT