Court File and Parties
Released: 20070625
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Re: Stéphane Verreault (Applicant)
-and-
Ontario Labour Relations Board, United Association of Journeypersons and Apprentices of the Plumbing and Pipefitting Industry of the US and Canada (UA Local 787), Teamsters Local Union 419 (Respondents)
Before: Lane, Lederman and Swinton JJ.
Counsel: Stéphane Verreault, in person Voy T. Stelmaszynski for the Board R. Graham Williamson for UA Local 787 Lindsay Lawrence for Teamsters Local 419
Heard at Toronto: June 20, 2007
ENDORSEMENT
[1]
Introduction
The applicant has brought an application for judicial review of two decisions of the Ontario Labour Relations Board (“Board”). In its decision of May 30, 2006, the Board dismissed an unfair labour practice complaint in which the applicant alleged that his union, Teamsters Local 419 (“Union”), violated the duty of fair representation set out in s. 74 of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1. In a decision dated September 5, 2006, the Board dismissed a request for reconsideration.
[2]
Background
The applicant was terminated from his employment with United Association of Journeypersons and Apprentices of the Plumbing and Pipefitting Industry of the US and Canada Local 787 (“Employer”) on November 19, 2002. The Union filed a grievance, which was referred to arbitration. Prior to the resolution of the grievance, the applicant engaged in a series of website postings and emails that attacked the Employer and its senior official. On September 23, 2003, the Employer advised the applicant that if he were reinstated to employment, he would be immediately terminated due to his further misconduct. The arbitrator took jurisdiction over these allegations and treated them as constituting another termination.
3The Employer conceded that it did not have jurisdiction to terminate the applicant in November 2002. The arbitrator ordered that the applicant be paid damages for the period November 2002 to September 23, 2003.
4In June 2005, the applicant filed a complaint with the Board alleging a breach of the duty of fair representation found in s. 74 of the Act. This section requires that a trade union “not act in a manner that is arbitrary, discriminatory or in bad faith” in the representation of members of a bargaining unit. The applicant filed a second complaint on July 18, 2005. The Board ordered the complaints be consolidated, but refused to proceed with them until the grievance process was concluded.
5On November 7, 2005, the trade union advised the Board that it was withdrawing the grievance from arbitration. It stated,
The Union is not satisfied that the negative comments made by Mr. Verreault are true. This fact, combined with the view that the union takes of its chances of securing further benefits for Mr. Verreault from the arbitration process, are factors which deter the union from taking further steps on behalf of Mr. Verreault. In addition, it has become abundantly clear that Mr. Verreault cannot or will not accept the advice or direction of the union or its counsel.
6A consultation took place before the Board on April 19, 2006. In its decision issued May 30, 2006, the Board extensively reviewed the facts, which it found were not substantially in dispute. It then reviewed the applicable case law, noting that a grievor’s level of cooperation is one factor that a union can take into consideration in determining whether to continue with a grievance.
7The Board made a number of findings: that the Union represented the applicant in an “appropriate, if not exemplary manner” in 2002 when he was terminated during his probationary period; that the Union represented the applicant “ably” in the arbitration of the termination in November 2002; that the Union acted “reasonably and appropriately” when it proposed to proceed on the basis of an agreed statement of facts in the arbitration of the third termination; and that the applicant had become quite antagonistic to the Union without reasonable grounds for his complaints. The Board stated (at para. 52):
I find that Mr. Verreault’s antagonism towards and distrust of the Union was unwarranted. The Union’s representation of Mr. Verreault was reasonable and appropriate. Mr. Verreault had no reasonable or legitimate grounds for becoming uncooperative with the Union. Mr. Verreault’s antagonistic and uncooperative conduct towards the Union made it impossible for the Union to continue to represent Mr. Verreault. The Union’s representation of Mr. Verreault and the Union’s ultimate decision that it could not continue to represent Mr. Verreault do not amount to a violation of section 74.
8The Board rejected the request for a reconsideration, as the grounds put forth did not reveal an obvious error in the decision, nor did they raise important policy issues or rest on new evidence that could not have been obtained with due diligence.
[9]
Standard of Review
The standard of review with respect to the merits of the decisions is patent unreasonableness, given the two privative clauses in ss. 114(1) and 116 of the Act, the expertise of the Board in matters of labour relations, and the nature of the question here – the application of the Board’s home statute to the particular facts of this case (Collier v. Amalgamated Transit Union, Local 113, [2004] O.J. No. 53113 (Div. Ct.) at para. 2).
[10]
Analysis
Both the Board’s decision on the merits and its decision on reconsideration were entirely reasonable. The Board applied the existing case law on s. 74 to the facts before it. It concluded that the Union could not continue to represent the applicant because of his antagonistic and uncooperative attitude, which was unwarranted. There was ample evidence on which it could come to that conclusion. The whistleblower jurisprudence that the applicant invokes was not applicable to the Board’s determination whether s. 74 had been breached by the Union.
11The applicant submits that the Union acted arbitrarily in not investigating the truth of his allegations against the Employer. However, that issue does not appear to have been raised before the Board during the consultation. In any event, it is premature, as the Union was in the course of taking the grievance about his termination to arbitration and had not yet completed its preparations for a hearing that lay in the future.
[12]
Procedural Fairness
The applicant also submits that he was denied procedural fairness by the manner in which the Board proceeded. The Board is not required to hold a hearing when considering a complaint under s. 74 (see s. 99(3)). Pursuant to s. 99(5), the Board may make any final order that it considers appropriate after “consulting with the parties”. In any event, the applicant was given the opportunity to present evidence and make submissions. He has not demonstrated, by giving precise details, that he was denied an opportunity to make his case. There was no denial of procedural fairness by the Board.
[13]
Disposition
Therefore, the application for judicial review is dismissed. The Board is not seeking costs. If the remaining parties are unable to agree on costs, they may make brief written submissions within 30 days of the release of this decision.
Lane J.
Lederman J.
Swinton J.
Released: June , 2007