CITATION: Ali v. United Food and Commercial Workers Canada (Local 175), 2013 ONSC 6208
DIVISIONAL COURT FILE NO.: 497/12
DATE: 20131009
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
ABDALLA MOHAMED ALI
Applicant/Responding Party
– and –
UNITED FOOD AND COMMERCIAL WORKERS CANADA, LOCAL 175, AVIS BUDGET GROUP and PETER F. CHAUVIN
Respondents/Moving Party
Counsel:
Joseph Markin, for the Applicant/Responding Party
Michael A. Church, for the Respondent/Moving Party, United Food and Commercial Workers Canada, Local 175,
Jordan D. Winch, for the Respondent/Moving Party, Avis Budget Group
HEARD: July 24, 2013
LEDERER J.:
Introduction
[1] This is a motion to quash a judicial review brought by the applicant, Abdalla Mohamed Ali, with respect to an arbitration meant to resolve a grievance made by him in respect of his termination, by his employer, the moving party, Avis Budget Group.
[2] Collective bargaining means exactly what the words say. The employees give up their individual rights to deal with their employer; they act together, collectively. For its part, the employer knows that it only has to deal with one party, the union, which is the exclusive representative of all its employees, the collective.[^1]
[3] This understanding is manifested in the grievance procedure outlined in most collectively-bargained agreements. The grievance is between the union and the employer. As a general rule, the employee is without the right to individual standing in the grievance and without standing to bring any judicial review which may arise as a result of the grievance. There are exceptions, but none that apply in this case.
Background
[4] The employment of Abdalla Mohamed Ali was terminated for cause on October 29, 2010. A grievance was filed, followed by the arbitration. Abdalla Mohamed Ali was represented by the Union, the United Food and Commercial Workers Canada, Local 175. Like the employer, it is a moving party seeking to quash the judicial review.
[5] Only the employer and the Union were parties to the arbitration. Abdalla Mohamed Ali was not. The arbitration was conducted by Peter Chauvin. He is a respondent to the application for judicial review. He was not represented and did not appear at the motion. He issued his award on April 17, 2012. The grievance was dismissed. The judicial review was commenced by Abdalla Mohamed Ali on or about October 19, 2012. The Union wrote to Abdalla Mohamed Ali. It advised that, in its view, there were no grounds for a judicial review. The Union reminded Abdalla Mohamed Ali that it was his exclusive bargaining agent and that he had no standing to initiate an application for judicial review. It urged him to withdraw the application.
[6] The application continued. The motion seeks to quash the application on the basis that the applicant, Abdalla Mohamed Ali, is without standing.
Analysis
[7] The Labour Relations Act, 1995[^2] provides that, in respect of every collective agreement, the union that is a party becomes the exclusive bargaining agent of the employees:
- (1) Every collective agreement shall be deemed to provide that the trade union that is a party thereto is recognized as the exclusive bargaining agent of the employees in the bargaining unit defined therein.
(2) Every collective agreement to which an accredited employers’ organization is a party shall be deemed to provide that the accredited employers’ organization is recognized as the exclusive bargaining agent of the employers in the unit of employers for whom the employers’ organization has been accredited
[8] By the Act, a collective agreement binds both the union and the individual employees, in this case, Abdalla Mohamed Ali:
- A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.
[Emphasis added]
[9] In a situation strikingly similar to this one, an employee who had been terminated sought re-instatement. His grievance was dismissed. When the union refused to undertake a judicial review, the employee commenced one on his own. The Supreme Court of Canada dismissed the application:
Given the day-to-day reality of managing collective agreements, the interpretation of arbitration awards, and the abundance of litigation in this area, a union cannot be placed under a duty to challenge each and every arbitration award at the behest of the employee in question on the ground of unreasonableness of the decision, even in dismissal cases. The rule is that the employer and the union are entitled to the stability that results from s. 101 L.C. which provides: ‘The arbitration award is without appeal, binds the parties and, where such is the case, any employee concerned. . .’. Judicial review must therefore not be seen as a routine way of challenging awards or as a right of appeal. Accordingly, even in discipline and dismissal cases, the normal process provided by the Act ends with arbitration. That process represents the normal and exclusive method of resolving the conflicts that arise in the course of administering collective agreements, including disciplinary action. In fact, this Court gave strong support for the principle of exclusivity and finality in Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, at pp. 956-957 and 959, per McLachlin J. That approach is also intended to discourage challenges that are collateral to disputes which, as a general rule, will be definitively disposed of under the procedure for administering collective agreements. While judicial review by the superior courts is an important principle, it cannot allow employees to jeopardize this expectation of stability in labour relations in a situation where there is union representation. Allowing an employee to take action against a decision made by his or her union, by applying for judicial review where he or she believes that the arbitration award was unreasonable, would offend the union’s exclusive right of representation and the legislative intent regarding the finality of the arbitration process, and would jeopardize the effectiveness and speed of the arbitration process.
Recognition of this kind of right to challenge an arbitration award would necessarily offend the fundamental principles governing relations with the employer where there is a right of exclusive collective representation. In a case where the arbitration process has been carried out, in accordance with the collective agreement, the employer is entitled to expect that a grievance that has been disposed of by the arbitrator will, as a rule, be disposed of permanently, and that the arbitration process will not be exposed to challenges that are launched without any control being exercised by its union interlocutor. As a general rule, the proper performance by the employer of the duty to negotiate and apply collective agreements must carry with it an assurance of stability in terms of the conditions of employment in its company.[^3]
[10] There are exceptions to the general principle that trade unions have the exclusive right to commence, conduct, withdraw and challenge the results of arbitration proceedings. There are three situations in which an employee may have standing to pursue a judicial review. First, the collective agreement may provide for it:
Collective agreements may of course recognize the right of employees to file grievances and take them to certain levels, even to arbitration, or to participate directly in grievances as parties. That is not the case here.[^4]
[11] In Singh v. Laurention University[^5], the Divisional Court considered an application questioning the outcome of an arbitration which ended with the dismissal of a professor by the university. The court held that, in the circumstances:
It was open to the arbitrator rationally to conclude that article 2.41(8) governed this grievance at this stage of the proceedings and that the grievor had no right of individual representation under the collective agreement.[^6]
[12] This suggests that there was an examination made as to whether the collective agreement allowed for the individual participation and representation of the employee. It was found that it did not. In the case before me, this exception was not relied on. The collective agreement does not provide an individual employee with the right to be separately represented.
[13] The second of the three exceptions occurs when the right of the employee to the procedural protections of natural justice has been breached. In this case, the general indicia of compliance with the requirements of natural justice are evident. Abdalla Mohamed Ali was aware of the arbitration and was given notice of it. He was in attendance at the arbitration. He testified. Through the participation of the Union, evidence was presented on his behalf, the witnesses called by the employer were cross-examined and submissions were made in support of his position. A decision was made and extensive reasons were provided. Nonetheless, counsel on behalf of Abdalla Mohamed Ali says that his right to natural justice was breached, not by the arbitrator on the conduct of the arbitration, but by the conduct of the Union. I shall return to this idea shortly.
[14] The third exception reflects a circumstance where the grievor, in this case Abdalla Mohamed Ali, was unfairly or inadequately represented by the Union. The potential for inadequate representation to lead to the prospect for independent representation of the employee has been recognized.
[15] In Dwyer v. Canada Post[^7], it was argued that the employee should have individual representation. The employee objected to: (1) the law firm chosen to represent him at the arbitration; (2) to the failure of the union to support him in his contention that he had, during the arbitration, been assaulted by counsel for the employer; and (3) to the union’s refusal to support his request that a reporter be present at the arbitration and a transcript prepared. The union refused to commence a judicial review. The court found that an apprehension of inadequate representation had to be reasonable. It wasn’t.[^8]
[16] In Hoogendoorn v. Greening Metal Products and Screening Equipment Co.[^9], the employee refused to pay his union dues. There was a wildcat strike. The other employees demanded that he be terminated. There was an arbitration. The employer and the union sought the same result. While the arbitration ostensibly concerned neutral questions considering the interpretation of the collective agreement, its real and underlying purpose was the termination of the employee. The union that was to represent him took a position that was adverse to the employee. The majority determined that the employee was entitled to be heard; that is to say, he was entitled to separate representation.
[17] I return now to the second of the three exceptions – the idea that the applicant was denied natural justice. It is alleged that the Union failed to provide natural justice. At first, this is confusing. Generally, it is the failure of the process leading to the hearing or the conduct of the proceeding by the arbitrator that would raise these concerns. A more careful review demonstrates that the concern leading to the allegation of a denial of natural justice is the suggested failure of the Union to provide the employee with proper representation. In other words, the same concern is said to be a breach of both the second and third exception to the proposition that an employee, where there is a collective agreement, has no right to independent representation. This is not the first time that this overlapping of concerns has arisen:
Our system of collective bargaining is premised generally on representation by the union, not by individual employees. In particular we have considered whether the requirements of natural justice in this case give rise to some right of personal representation outside the provisions of the collective agreement.[^10]
[18] In this case, Abdalla Mohamed Ali says that the breach of natural justice and failure to provide him adequate and fair representation arose from his inability to absorb and understand portions of the evidence because English is not his first language. He says he could not follow most of the comments about legal issues and felt confused when being examined and cross-examined. Abdalla Mohamed Ali says that the failure to provide him with an interpreter contributed to numerous errors made by the Union which could have been avoided had he had an opportunity to provide the insight and information, but which he could not do because of his language difficulties.
[19] There are problems with this position.
[20] The history of the employment of Abdalla Mohamed does not corroborate what is now being said. Prior to being hired by Avis Budget Group, Abdalla Mohamed Ali filled out an “Application for Employment”. In it, he indicated that he was able to speak and write English.[^11] Ali Abdalla Mohamed Ali worked for Avis Budget Group for thirteen years. Throughout that time, he reported to an individual whose first language, like his, was Somalian. For all work-related matters, they spoke English.[^12] Throughout those years, Avis Budget Group held “pre-shift meetings”. All workers are present. They are conducted in English. At no time did Abdalla Mohamed Ali raise concerns that he had trouble comprehending company notices, letters or topics discussed at these meetings.[^13] Abdalla Mohamed Ali took part in disciplinary hearings and grievance meetings. He assisted in representing other employees in the grievance procedure conducted entirely in English. There is no evidence that he ever asked for the assistance of a translator, co-worker or third party to aid in his understanding of English. To the contrary, Abdalla Mohamed Ali presented employee grievances and conversed with management entirely in English.[^14] Abdalla Mohamed Ali was a member of the bargaining committee of the Union. Negotiations took place over six days during June and July, 2010. They were conducted in English. During the negotiations, Abdalla Mohamed Ali personally bargained for matters relating to safety-shoe allowances and pump assignments. He is a signatory to the collective agreement which is written in English.[^15]
[21] The history of the grievance and the arbitration hearing confirms that Abdalla Mohamed Ali was able to both understand and communicate in English. Before the commencement of the hearing, on August 5, 2011, Abdalla Mohamed Ali met with counsel for the Union to prepare for the arbitration. For approximately two hours, they discussed the facts of the case, the testimony he would give, and the questions he would likely be asked on cross-examination. They reviewed the arbitration process and counsel answered questions put by Abdalla Mohamed Ali about the legal issues in the case. On that occasion, Abdalla Mohamed Ali did not ask for, and, as the Union’s counsel saw it, did not require assistance in understanding and communicating in English. He did not indicate that he was unable to understand and did not say that he required an interpreter.[^16]
[22] As for the conduct of the arbitration, a review of the decision does not reveal any concern, demonstration or indication that Abdalla Mohamed Ali had difficulty expressing himself or understanding what was being said. This applies to what was said, by others, explaining what took place during the course of his employment and termination, as well as his ability to respond to the questions that were put to him when he testified.[^17]
[23] At its root, the allegation reflects on the actions of the Union and, in particular, its counsel. On August 10, 2011, Abdalla Mohamed Ali contacted that counsel and inquired about having an interpreter at the hearing. Counsel discussed this request with the Union representative of Abdalla Mohamed Ali. Counsel was advised that Abdalla Mohamed Ali had filed a high volume of grievances over the preceding six years and that these grievances, as filed, were always in English. The grievance meetings had been conducted in English as was collective bargaining when Abdalla Mohamed Ali was on the negotiating committee. The Union representative advised counsel that he had always communicated with Abdalla Mohamed Ali in English and that this had been the language of communication during the thirteen years that Abdalla Mohamed Ali was an employee.
[24] Counsel for the Union spoke to counsel for the employer about the request for an interpreter. Counsel for the employer advised that he would object to the presence of an interpreter at the hearing as Abdalla Mohamed Ali was fully conversant in English, was on the negotiating committee and bargained in English and did not require the assistance of an interpreter.
[25] Counsel for the Union discussed the request with the Regional Director of the Union. The director requested that the memo be prepared as to when a witness was entitled to give his or her evidence through an interpreter. Counsel undertook the necessary research. She concluded that Abdalla Mohamed Ali “…would not meet the test of prejudice established in the case law…based on my understanding of the Grievor’s interactions with [his union representative], my own experience with him, and my reading of the case law I do not think that Mr. Ali would be able to prove a need for an interpreter.”[^18] There is nothing in this that suggests anything but a careful and complete review of whether an interpreter was required. On this issue, the representation provided was proper and complete.
[26] Finally, it may be as well to refer to the last comment made by the arbitrator in his award:
…I commend both counsel for the most thorough and able manner in which they presented the evidence, made their submissions and represented their clients.[^19]
[Emphasis added]
[27] In the face of this evidence, the bald, uncorroborated allegations made by Abdalla Mohamed Ali are not sufficient to suggest that he was not properly represented. The exceptions to the proposition that an employee is not entitled to independent representation have no application in this case. Even if this is wrong, Abdalla Mohamed Ali would still be without standing to bring this judicial review.
[28] It is only with the bringing of the motion to dismiss the judicial review that the suggestion that Abdalla Mohamed Ali was not properly represented at the arbitration was raised. It was not mentioned at any time during the arbitration, including when Abdalla Mohamed Ali gave evidence to the arbitrator. It is not referred to in the “Notice of Application to the Divisional Court for Judicial Review”. The breach of the rules of natural justice (fairness) is a substantive complaint in questioning the decision of a tribunal or other decision-maker. It is not appropriate, proper or acceptable for a party to wait until after a proceeding has been completed and standing to bring a judicial review questioned, to raise a concern that the representation provided by the Union constituted a breach of natural justice. The Ontario Labour Relations Board confronted a similar situation in Metropolitan Toronto Condominium Corp. No. 638[^20], and said:
Further, while he maintained the union disregarded his requests for an interpreter, he still signed the Minutes of Settlement. He made no allegations of threats or any other type of coercion by the union that might have compelled him to do so. If in fact, the union disregarded his request for an interpreter, and I make no such finding, it would have been open to the applicant to refuse to sign the Minutes of Settlement, and consider his options, one of which would have been to bring this application at that time. However, having signed the document, and waited this long to raise the issue, makes it difficult for me to accept the applicant’s version of events.[^21]
[29] The kind of adverse inference made there could as easily be made here. If I were required to do so, I would.
[30] This approach is confirmed by the fact that, in the normal course, a judicial review is not the proper forum in which to raise the issue of improper representation. The Labour Relations Act provides that a union bears a duty to fairly represent its members:
A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.[^22]
[31] A complaint that the duty has not been adhered to is made to the Ontario Labour Relations Board. The legislation is specific on this point:
This section applies when the Board receives a complaint,
(c) that a trade union has failed to comply with its duties under section 74 or 75.[^23]
[32] In Gilinsky v. Carrier[^24], a teacher was placed on medical leave. He grieved this decision. There was an arbitration. The grievance was dismissed. The teacher attempted to bring a judicial review on the basis that the arbitration was “procedurally unfair and the arbitrator was biased, that counsel for the Board and the union contributed to the unfairness of the hearing, that counsel for the union did not represent him in good faith, did not adequately consult him or keep him informed, and did not represent him fairly”.[^25] As in this case, the court held that there was no basis for the court to find that the employee could have standing to bring an application to judicially review the decision of the arbitrator. Relying on the Labour Relations Act, s. 74 (see: para. [30], above), the judge concluded:
If he wishes to complain that his union did not fairly represent him his proper course of action would have been an application before the Ontario Labour Relations Board. Section 74 of the Labour Relations Act provides…[^26]
[33] In the same vein, there is no basis for the assertion that the representation provided by the Union breached the rules of natural justice or that, as a result of the manner of that representation, Abdalla Mohamed Ali was denied a fair hearing. In the circumstances, a complaint as to the representation he received should have been made to the Ontario Labour Relations Board.
Conclusion
[34] For the reasons reviewed, the motion is granted. The application is quashed.
Costs
[35] No submissions were made as to costs. If the parties are unable to agree, I will consider written submissions on the following terms:
On behalf of the moving parties (the employer and the Union), within fourteen days of the release of these reasons; such submissions are to be no longer than four pages, double- spaced, exclusive of any Bill of Costs or Cost Outline and case law that may be provided;
On behalf of the responding party (the employee), within ten days thereafter; such submissions are to be no longer than four pages, double-spaced, exclusive of any Bill of Costs or Cost Outline and case law that may be provided.
If necessary, on behalf of the moving parties, in reply, within five days thereafter; such submissions are to be no longer than four pages, double-spaced.
LEDERER J.
Released: 20131009
CITATION: Ali v. United Food and Commercial Workers Canada (Local 175), 2013 ONSC 6208
DIVISIONAL COURT FILE NO.: 497/12
DATE: 20131009
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER J.
BETWEEN:
ABDALLA MOHAMED ALI
Applicant/Responding Party
– and –
UNITED FOOD AND COMMERCIAL WORKERS CANADA, LOCAL 175, AVIS BUDGET GROUP and PETER F. CHAUVIN
Respondents/Moving Party
JUDGMENT
LEDERER J.
Released: 20131009
[^1]: Hoogendoorn v. Greening Metal Products and Screening Equipment Co. et al., 1967 20 (SCC), [1968] S.C.R. 30; 1967 20 (SCC) at pp. 32 (per Cartwright J. quoting Judson J.) and 34 (per Judson J dissenting):
> The scheme of The Labour Relations Act, R.S.O. 1960, c. 202, is to provide for a bargaining agent which is given power to conclude an agreement with an employer, on behalf of the employees of that employer, which agreement becomes binding upon all employees. No ratification or consent by the employees or any of them is required before a lawful agreement can be concluded and the bargaining agent is given specific authority by the Act to make the kind of agreement represented by art. 5.02 in the instant case. No individual employee is entitled as of right to be present during bargaining or at the conclusion of such an agreement. To require that notice and the right to be present be given to each employee on any occasion when a provision in a collective agreement having general application to all employees was being interpreted would be to destroy the principle of the bargaining agent and to vitiate the purpose of the Act.
[^2]: S.O. 1995, c. 1 Sched. A.
[^3]: Noël v. Société d'énergie de la Baie James, 2001 SCC 39, [2001] 2 SCR 207, at paras. 62 and 63.
[^4]: Ibid, at para. 45.
[^5]: [1991] O.J. No. 526.
[^6]: Ibid, at p. 2 of 2.
[^7]: [1994] O.J. No. 2577.
[^8]: Ibid, at para. 9.
[^9]: Supra, see fn. 1.
[^10]: Singh v. Laurention University, supra, at p. 2 of 2; and see: Hoogendoorn v. Greening Metal Products and Screening Equipment Co., supra, see: fn.1, at pp. 39-40.
[^11]: Affidavit of Ajmer Pabla, sworn May 9, 2013, at para. 9.
[^12]: Affidavit of Ilias Mohamed, sworn May 9, 2013, at para. 5.
[^13]: Ibid, at para. 8.
[^14]: Ibid, at para. 7; and Affidavit of Ajmer Pabla, sworn May 9, 2013, at paras. 7 and 8.
[^15]: Ibid, (Ilias Mohamed), at para. 32, and (Ajmer Pabla), at paras. 10 and 11.
[^16]: Affidavit of Simran Prihar, sworn on May 12, 2013, at para. 3.
[^17]: See, for example: Aviscar Inc. v. United Food and Commercial Workers Canada Local 175, 2012 22238 (ON LA), at paras. 22 and 48, which record the following:
> Fifth, in cross-examination the Employer questioned the Grievor as to why he delayed for over 30 hours in returning both of the calls, why he called the garage line late at night, when no Shift Manager would be in the garage, and why he left only a cursory message, not providing the information he had been instructed to provide. The Grievor did not provide any explanation for his conduct, other than stating that in the past he had called the garage line late at night when he was reporting that he would be absent for the next day, and that he had left only brief messages on those occasions stating that he was ill. For reasons that will be discussed later, under the circumstances of this case, this is not an acceptable explanation for the Grievor's conduct. The Grievor had no other explanation for his conduct.
>
> The Grievor readily agreed that he is very familiar with the provisions of the Collective Agreement, the Work Rules, and the grievance process.
For further examples, see paras. 29, 30, 33, 35, 43, 44 and 47.
[^18]: Affidavit of Simran Prihar, sworn May 12, 2013, Exhibit B, p. 3.
[^19]: Aviscar Inc. v. United Food and Commercial Workers Canada Local 175, supra, at para. 110.
[^20]: [2009] O.L.R.D. No. 136.
[^21]: Ibid, at para. 44.
[^22]: Supra, see: fn. 2, s. 74.
[^23]: Ibid, at s. 99.
[^24]: 2012 ONSC 5497, [2012] O.J. No. 4922.
[^25]: Ibid, at para. 2.
[^26]: Ibid, at para. 8.