CITATION: Innisfil Prof’l Firefighters Assn. v. Corp. of Town of Innisfil, 2010 ONSC 1121
DIVISIONAL COURT FILE NO.: 508/08
DATE: 20100217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GREER, LEDERMAN AND SACHS JJ.
BETWEEN:
INNISFIL PROFESSIONAL FIREFIGHTERS ASSOCIATION, IAFF LOCAL 3804
Applicant
– and –
THE CORPORATION OF THE TOWN OF INNISFIL
Respondent
Sean P. McManus, for the Applicant
Ross Dunsmore and Peigi Ross, for the Respondent
HEARD at Toronto: February 17, 2010
SACHS J. (orally)
[1] The Innisfil Professional Firefighters Association (the “Association”) applies for judicial review of the decision of Arbitrator Shime dated September 10, 2008. Arbitrator Shime allowed the Town of Innisfil’s (the “Town”) grievance against the Association, finding that the Association had violated Article 14 of the Collective Agreement, and ordered the Association to pay $180.00 in damages.
[2] The grievance before the Arbitrator concerns “two hatters” and the conduct of Captain Hunter, the President of the Association, which is a local of the International Association of Firefighters, (the “IAFF”). Two hatters are firefighters who are employed full-time in one jurisdiction and work as volunteer firefighters in another. Two hatting is against the constitution of the IAFF.
[3] Articles 14.01 and 22 of the Collective Agreement between the Association and the Town expressly recognized the continuing need of the Town to use volunteer firefighters and their unfettered right to hire employees. Specifically they provide as follows:
Article 14.01 The Association recognizes the continuing needs of the Corporation as it relates to the use of volunteer firefighters.
The Corporation recognizes the concerns of full-time firefighters covered by this agreement as these relate to protection from layoff.
In light of these concerns the parties agree as follows:
(a) The Association recognizes the continuing use of volunteer firefighters.
(b) The Corporation agrees that no full-time firefighters employed by the Corporation as of the date of this agreement and as set out in Appendix “C” attached hereto shall be laid off as a result of the Corporation assigning full-time firefighter duties to volunteers. This section shall not be applicable to any new full-time firefighter hired after the date of this agreement and subsequent agreements.
(c) No work customarily performed by a full-time firefighter covered by this agreement shall be performed by non-qualified personnel, or part time firefighters unless the Association agrees otherwise.
Article 22.03 The town through the Chief, shall be empowered to maintain order and efficiency and direct the working force including the right to hire, suspend, discharge, discipline, layoff, recall, transfer, promote or demote employees subject only to the limitations expressed in this agreement and the Fire Protection and Prevention Act, 1997.
[4] In accordance with its rights under the Collective Agreement, the Town offered supplemental volunteer employment to Mr. Rosiello, a full-time firefighter in the City of Toronto. In order to be employed as a full-time firefighter with the City of Toronto, Mr. Rosiello needed to be a member of the IAFF.
[5] When Captain Hunter learned that the Town had offered employment as a volunteer firefighter to Mr. Rosiello, he first contacted a representative of the Toronto Fire Association, told him what the Town had done and encouraged him to contact Mr. Rosiello. After that Captain Hunter approached Mr. Rosiello directly and advised him that if he accepted a position as a volunteer firefighter with the Town, he would become a two hatter, thereby putting himself in violation of the constitution of the IAFF. He also threatened to have Mr. Rosiello charged under the IAFF constitution. This in turn could impact Mr. Rosiello’s full-time employment with the City of Toronto. The threat of charges and the possible consequence of losing his full-time job was enough of a threat to cause Mr. Rosiello to decline the job offer with the Town.
[6] Arbitrator Shime found that Captain Hunter’s actions were not reasonable and that by threatening Mr. Rosiello’s employment in Toronto he interfered with the Town’s right to use volunteer firefighters even if they were permanently employed elsewhere. As such, his actions breached the Collective Agreement.
[7] On this application the Association raised two issues:
(i) Did the Arbitrator render an unreasonable decision in finding that the Association’s conduct violated the Collective Agreement which specifically recognizes the Town’s continuing need to use volunteer firefighters?
(ii) Did the Arbitrator render an unreasonable decision in finding that Captain Hunter’s conduct was not part of legitimate union activity justifying immunity from employer interference?
[8] As is clear from the way the applicant Association framed the issues on the application, both parties agree on the standard of review that is applicable on this application, namely, reasonableness.
[9] The essence of the applicant’s argument on the first issue is that Captain Hunter’s conduct did not violate the Town’s unfettered right to hire employees and to use volunteers. All Captain Hunter was doing was informing Mr. Rosiello as to the provisions of the IAFF constitution and the possible jeopardy he could face if he accepted the Town’s offer. Mr. Rosiello was then free to make his own decision. The Town in turn was free to hire whom it wanted. There was nothing in the Collective Agreement that expressly prohibited Captain Hunter from informing fellow members of the IAFF of the implications of becoming a two hatter.
[10] This is the interpretation of the facts that the applicant urges upon us. It is clearly not the interpretation that the Arbitrator accepted. The question before us is not whether the Association’s interpretation of the facts is a reasonable one, but, rather, whether the Arbitrator’s interpretation of the facts as he found them (which were not challenged by the Applicant on this application) could reasonably lead to the conclusion that Captain Hunter’s conduct interfered with the Town’s unfettered ability to hire, which in turn violated the Collective Agreement.
[11] In our view, given who engaged in the conduct, (the President of the Association who entered into the Collective Agreement) and the Arbitrator’s findings as to the threatening nature of the conduct, the Arbitrator’s finding that this conduct violated the Collective Agreement was a reasonable one.
[12] It was also reasonable for the Arbitrator to find that the Association could not use as an excuse for their conduct the fact that they were simply trying to uphold the IAFF constitution.
[13] It is agreed that the IAFF constitutional provisions prohibiting two hatters is not incorporated in any way in the Collective Agreement. Therefore, the Arbitrator reasonably found that it cannot be used as an excuse for violating that Collective Agreement. He also reasonably observed that the Association had, in effect, given up their right to enforce this aspect of the IAFF constitution when it entered into the Collective Agreement with the Town. By implication in Articles 14 and 22, they agreed that the Town could hire two hatters. In exchange, the Town agreed, among other things, that they would not lay off any full-time firefighters employed by them as of the date of the Agreement. Having entered into the Collective Agreement, the Association, through its President, could not do indirectly what they were unable to achieve directly through the negotiation of the Collective Agreement.
[14] The second issue raised by the applicant addresses the question of the limits of union activity when it comes to upholding the provisions of a union’s by-laws and constitution.
[15] The caselaw is clear that union officials will be given a wide immunity when it comes to their actions, but that there is a limit to that immunity. One of those limits is set out in the decision of B. Laskin (as he then was) in the case of Orenda Engines Ltd. v. International Association of Machinists [1958] O.L.A.A. No. 2. At paragraph 22 of that decision Mr. Laskin states:
Secondly, the union cannot insist on enforcement of its constitution and by-laws in derogation of the obligations which it has assumed, and which are binding upon employees, under the terms of the collective agreement… If a dilemma is posed for the union as between its constitution and by-laws on the one hand, and the collective agreement on the other, the latter must govern if it should be impossible to reconcile them.
[16] This principle was cited and relied upon by the Arbitrator in his decision, as was the fact that it has been followed in subsequent cases.
[17] Arbitrator Shime found that Captain Hunter had overstepped the limits of acceptable union official activity. On the facts before him this was not an unreasonable conclusion.
[18] For these reasons, we would dismiss the application.
GREER J.
[19] I will endorse the Record that the application is dismissed for the oral reasons delivered. Costs of the respondent are fixed at $6,000.00 inclusive of GST and disbursements, on consent.
SACHS J.
GREER J.
LEDERMAN J.
Date of Reasons for Judgment: February 17, 2010
Date of Release: March 1, 2010
CITATION: Innisfil Prof’l Firefighters Assn. v. Corp. of Town of Innisfil, 2010 ONSC 1121
DIVISIONAL COURT FILE NO.: 508/08
DATE: 20100217
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
GREER, LEDERMAN AND SACHS JJ.
BETWEEN:
INNISFIL PROFESSIONAL FIREFIGHTERS ASSOCIATION, IAFF LOCAL 3804
Applicant
– and –
THE CORPORATION OF THE TOWN OF INNISFIL
Respondent
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: February 17, 2010
Date of Release: March 1, 2010