CITATION: Harrison v. Ontario Labour Relations Board, 2015 ONSC 3275

DIVISIONAL COURT FILE NO.: 189/14

DATE: 20150605

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

J. Wilson, Harvison Young, Tzimas J.J.

BETWEEN:

John Harrison

Applicant

– and –

Ontario Labour Relations Board and the Canadian Union of Public Employees, Local 4400

Respondents

Conseil scolaire Viamonde

Marco Medocino, for the Applicant

Leonard Marvy, for the Ontario Labour Relations Board and

Cynthia Petersen, Counsel for the Canadian Union of Public Employees, Local 4400

Interested Third Party

HEARD: February 20, 2015

TZIMAS, J.

INTRODUCTION

[1] The Applicant, John Harrison, seeks judicial review of two decisions of the Ontario Labour Relations Board, (“the Board”), one of January 17, 2014 and the other of March 7, 2014 whereby Mr. Harrison’s application pursuant to s.74 of the Ontario Labour Relations Act, was dismissed without the benefit of a full hearing. Mr. Harrison asks that the decisions be quashed and that his application be remitted back to the Board for a full hearing.

[2] In his application to the Board, Mr. Harrison claimed that the Canadian Union of Public Employees, Local 4400, (“CUPE”), failed to represent him fairly in the context of a grievance filed by another employee that related to Mr. Harrison’s position. The other employee was successful in his grievance, and assumed Mr. Harrison’s position as a full-time custodian. The thrust of his complaint was that CUPE failed to give him notice that his position was being grieved, that it did not pursue the grievance in a timely way, that seven months lapsed before it advised him that a grievance arbitration hearing date was set, and that it acted unreasonably in its decision not to support him. In Mr. Harrison’s view, the net effect of the grievance and of CUPE’s conduct was that after two years employment as a full-time permanent custodian, Mr. Harrison was demoted, he took a 30% pay-cut and he suffered damages.

[3] The Board disagreed with Mr. Harrison and dismissed his application without a hearing. It did so in two stages. In its “Interim Decision” of January 17, 2014, the Board concluded that there was “no labour relations purpose” to make further inquiries into the matter because the only remedy it “could possibly issue” was a declaration against CUPE. That said, the Board invited Mr. Harrison to make further submissions to explain why his s.74 complaint ought not to be dismissed without the benefit of a hearing. In its “Final Decision” of March 7, 2014 the Board dismissed Mr. Harrison’s application with extensive findings in support of its conclusion.

[4] The Respondents, the Board, and CUPE, ask that the judicial review application be dismissed. They contend that the Board’s decision to dismiss Mr. Harrison’s application was made pursuant to its powers and authority of the Labour Relations Act, 1995, (“the Act”) and its Rules of Civil Procedure, (“the Rules”) and was entirely within its jurisdiction and expertise. They contend further that contrary to Mr. Harrison’s claims, the Board’s decision-making process was justifiable, transparent, intelligible and the outcome is defensible given the particular facts and the law. In the result, the Respondents conclude that the Board did not breach any duties of procedural fairness and that that there is no basis for this court to intervene.

[5] For the reasons that follow Mr. Harrison’s application for the judicial review of the Board’s decisions is dismissed.

Background Facts

[6] Mr. Harrison is an employee of le Conseil scolaire Viamonde, (the “School Board”). He was hired in February 2009 to work at l’Ecole secondaire le Caron as a temporary full-time custodian. The collective agreement defines that position to mean, “a person hired to work in a school to replace a permanent custodian or cleaner or for a fixed period of time not exceeding twelve (12) months. The period of one school year may be extended after consultation with the Union”[^1]. In short, the position was temporary.

[7] Mr. Harrison was renewed for a period of time but eventually the School Board decided to fill that position on a permanent basis and posted it in accordance with the requirements of Article 16.07 of the collective agreement that provided as follows:

Subject to article 16.09, when the Employer fills a posted position, the position is given to the candidate or candidates with:

a) the most seniority among the members of the bargaining unit who apply, with priority given to members holding a regular position and to members on the recall list; and

b) the skills, knowledge, training and aptitudes required by the position.

[8] CUPE described this position as a “threshold” job posting provision, meaning that the posted position had to be awarded to the most senior permanent candidate who had the required skills, knowledge, training and aptitudes for the position. The position, for example could not be offered to a younger person who was better qualified or who performed better in a test.

[9] Mr. Harrison applied for the position of a permanent full-time custodian in May of 2011. He met all the essential qualifications outlined on the job posting and was subsequently asked to participate in a written skills test, as were other eligible candidates. The School Board required candidates to obtain a score of at least 60% on the written test to be deemed qualified.

[10] In June 2011, after all the testing was concluded, Mr. Harrison was advised that he was the successful candidate over other more senior, permanent candidates. In August of the same year, Mr. Harrison was appointed as a permanent full-time custodian of le Caron. In accordance with the collective agreement, Mr. Harrison was scheduled to work 40 hours a week at a gross income of $45,000.00.

[11] Unbeknownst to Mr. Harrison, a number of senior candidates who were unsuccessful expressed to CUPE their concern that the posted position was awarded to a temporary employee. In a meeting held in November 2011 between the School Board and CUPE, the School Board advised CUPE that the other candidates failed to obtain at least a 60% in their interviews and the testing process and therefore failed to qualify for the position. The School Board refused to provide CUPE access to the test results and CUPE proceeded to file a grievance. As it turned out, the School Board had been mistaken and, in fact, one other senior candidate had scored at least 60% on the written test.

[12] Attempts between CUPE and the School Board to resolve the concerns in December 2011, February 2012 and May 2012 were unsuccessful. In June 2012, CUPE asked the School Board to propose arbitrators. In November 2012 the arbitrator sent the parties a notice of the hearing for June 13, 2013. Disclosure of all relevant documents related to the job posting, the applications, the results from the written tests and the notes taken during the interviews were not disclosed by the School Board to CUPE until late May 2013.

[13] CUPE gave Mr. Harrison formal notice of the upcoming arbitration on May 30, 2013. He was advised that he had a right to attend and participate in the proceeding. Within a few days of the notice, Mr. Harrison asked if he would be provided with legal representation at the hearing. When, on June 10, 2013, he was advised that CUPE would not be providing him with separate counsel, Mr. Harrison retained his own counsel who proceeded to request an adjournment of the arbitration.

[14] In the meantime, in the two week period between May 30 and June 12, 2013, CUPE reviewed the disclosure and discovered that the Board made a mistake in its calculation of the test scores, with the implication that Mr. Harrison was erroneously identified as the successful candidate for the job posting. When the error was pointed out to the School Board, the parties entered into negotiations to settle the grievance.

[15] The negotiations had two components to it. The first related to the grievor. The second related to Mr. Harrison’s situation. CUPE recognized that a settlement of the grievance would inevitably displace Mr. Harrison from a position he held for two years and it sought ways to minimize that impact. When the School Board said that there was no other equivalent position, CUPE urged the School Board to create a new custodian position for Mr. Harrison. The School Board refused that request but it identified two alternative options for Mr. Harrison’s consideration. The first option was a temporary position at 35 hours per week. The second option was a permanent position at 40 hours per week but it was to be 64 km from Mr. Harrison’s home in Penetanguishene. In addition, with either option, Mr. Harrison would be deemed qualified for any future custodian position and would not be required to complete an interview or testing process.

[16] Insofar as the grievance was concerned, the negotiations were successful and it was settled without the need for an arbitration hearing. On July 1, 2013, Mr. Harrison was displaced from his position as a permanent full-time custodian. As between the two options that were offered to Mr. Harrison, he accepted the temporary position at 35 hours, which resulted effectively and in a demotion and reduction to his gross annual salary by 33%. Mr. Harrison did not opt for the 40-hour full-time position because of the substantial commute and the associate expenses.

[17] On August 7, 2013 Mr. Harrison filed a complaint with the Board against CUPE. He claimed that CUPE breached its duty of fair representation under s. 74 of the Act. In particular, Mr. Harrison alleged that CUPE failed to give him adequate notice of the grievance and the arbitration hearing. In his view, CUPE should have told him of the existence of the grievance in June 2011 so that he could take the appropriate steps to mitigate the risk of a potential displacement. Mr. Harrison was also of the view that CUPE took far too long to pursue and settle the grievance. Finally, Mr. Harrison claimed that he would have made different financial and family decisions had he known that his position was being challenged. In the absence of such knowledge, Mr. Harrison said that he bought a larger house, he bought a new car, his spouse stopped working and they decided to have a third child.

[18] In light of his inability to mitigate his situation, Mr. Harrison asked the Board to make an order that he be placed in a full-time permanent custodian position. Alternatively, he asked that there be a direction that he be compensated for the difference between his wages and benefits as a cleaner and a custodian until such time as he secured another custodian position. Finally, he asked for his legal costs.

[19] In response, CUPE asked the Board to summarily dismiss Mr. Harrison’s complaint in accordance with Rule 39.1 of the Rules which allows the Board to dismiss an application without a hearing or consultation where “it considers that an application does not make out a case for the orders or remedies requested, even if all the facts stated in the application are assumed to be true”, (my emphasis).

[20] In support of that position CUPE argued that a two-week notice of the arbitration did not amount to a breach of its obligations. It questioned whether notice would even be required since the position at issue was a “threshold position”.

[21] CUPE also addressed the overall delay between the filing of the grievance and its settlement and concluded that although not ideal, there was no basis to suggest that it was the result of any arbitrary, discriminatory or bad faith conduct. This wording is taken from s. 74:

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.

Although the grievance was filed in June 2011, the existence of a meritorious dispute did not become apparent until May 2013, when the School Board disclosed the test results of the competition in question. Once the breach of the collective agreement became clear, there was no choice but pursue a remedy that would award the position to the rightful employee.

[22] Regarding the remedies sought by Mr. Harrison, CUPE argued that his loss in wages was unrelated to either the alleged delay in the notification of the grievance or the length of time for its resolution. Rather, the loss was the result of Mr. Harrison’s loss of the custodian position, which in these circumstances would have resulted whatever notice he had received. CUPE also argued that Mr. Harrison’s personal decisions to assume expenses that he could no longer support did not support an order that CUPE compensate him for the difference in wages and benefits. CUPE stated that if Mr. Harrison lost anything it was the opportunity to mitigate the losses he incurred when he was displaced. However on that point, CUPE argued that Mr. Harrison failed to provide particulars of mitigation opportunities. As far his financial and personal decisions were concerned, CUPE argued that the expenses were speculative and could not in any event form the basis of a claim for damages. Finally, CUPE argued that the only appropriate remedy, even if the Board were to find a breach of the Act would be a declaration to that effect.

[23] In the alternative to this position, CUPE argued that the complaint ought to be dismissed on its merits because it questioned Mr. Harrison’s submission that he had no knowledge of the grievance. It suggested that Mr. Harrison was advised of the grievance in the fall of 2011 and that there was an e-mail exchange in December of 2011 that also suggested that Mr. Harrison knew about the grievance.

[24] Mr. Harrison filed Supplemental Submissions and Reply Evidence on November 13, 2013. He disputed CUPE’s submission concerning the timing of Mr. Harrison’s knowledge and suggested that this particular allegation by CUPE was a testament to CUPE’s bad faith conduct that was designed to mislead the Board.

[25] CUPE responded immediately with a letter to the Board to advise that its submission concerning the timing of Mr. Harrison’s knowledge was the result of an inadvertent error, and withdrew the suggestion that Mr. Harrison was aware of the grievance in the fall of 2011.

The Proceedings Before the Board

a) Interim Decision of January 17, 2014

[26] The Board issued two decisions. In its Interim Decision of January 17, 2014, following a review of the Board’s authority and the applicable case law, the Board reviewed the facts and then the respective positions. The Board noted that insofar as the question of notice to Mr. Harrison was concerned, its case law “recognized that the bargaining agent has the right to determine whether it will file, advance, or settle a grievance and it is not obliged to obtain the consent of any bargaining unit employee before doing so.” The Board also concluded that it could not see “any basis for concluding that the protracted resolution of the grievance amounted to arbitrary, discriminatory, or bad faith behaviour on CUPE’s part”. It noted:

…On one view the applicant benefited from being remunerated at the custodian rate for two years when he possibly ought to have been awarded the position. On his view, of course he was disadvantaged by the assumption that that would continue. That is unfortunate for him, however it does not mean that CUPE conducted itself inappropriately.

[27] More significantly, the Board went on to observe that even if it were to accept Mr. Harrison’s allegation, the only remedy to the situation would be a declaration of CUPE’s contravention of s.74 of the Labour Relations Act, 1995. In view of that limitation, the Board invited Mr. Harrison to file additional written submissions to address the following three questions:

a) In view of the fact that the only available remedy should this application succeed is a declaration that section 74 has been contravened, does he intend to pursue this complaint?

b) If the answer to the preceding question is affirmative, why should the Board not exercise its discretion not to inquire into the merits of the application? and

c) Why should this application not be dismissed for failure to make out a prima facie case that CUPE’s conduct towards him has been arbitrary, discriminatory, or characterized by bad faith, as the Board has interpreted and applied those terms?

b) Mr. Harrision’s Supplemental Submissions in Response to the Board’s Questions

[28] In response to the Board’s specific questions, Mr. Harrison invited the Board to reconsider its findings in its preliminary ruling on the absence of a prima facie case, and he disagreed with the Board’s conclusion that the only remedy available was a declaration. He submitted that he made out a prima facie case, that CUPE’s conduct was arbitrary, seriously negligent and in bad faith. Mr. Harrison drew a distinction between the case law concerning the obligation to give notice of an arbitration of a grievance and notice of the “grievance itself”. He reiterated that the failure of any notice of the grievance prevented him from mitigating his risk of being displaced. On the subject of remedies, Mr. Harrison submitted that the Board’s remedial powers pursuant to s. 96(4) of the Act could include an award of damages. Mr. Harrison outlined those damages. Mr. Harrison essentially described his circumstances as unique; to conclude that there was no reason for the Board to take a restrictive view of its remedial powers.

c) Final Decision, MARCH 7, 2014

[29] The Board considered all of Mr. Harrison’s submissions and ultimately dismissed his application. The Board concluded that “there was no specific authority for the proposition that section 74 of the Act requires a bargaining agent to provide individual bargaining agents with notice that it has filed a grievance seeking redress that may affect them.” The Board drew a distinction between the obligation on CUPE’s part to give notice of the filing of a grievance and notice of a quasi-judicial proceeding. The Board stated: “it has never been the case that section 74 requires that notice of such grievance must be given to the employees who are potentially impacted.” It went on to the review the jurisprudence at some length and concluded where a grievance was not resolved and proceeded to an arbitration, on the basis of common law principles, the individual employee would have a right to participate in the hearing. Concerns about notice could be raised in that hearing.

[30] Next, the Board considered the role of a bargaining agent and underscored its conclusion that a bargaining agent owes a duty generally to all of the bargaining unit employees and that in the event of a conflict between employees, the bargaining agent would have to make that choice.

[31] Turning to the specifics of Mr. Harrison’s case, the Board concluded that nothing in his initial pleadings, his supplemental pleadings, or his further supplemental submissions provided the Board with any basis to conclude that CUPE failed to take into account the wording and obligations under the collective agreement when it pursued the grievance.

[32] On the subject of damages, the Board clarified that in its earlier indication that the only remedy to the situation would be a declaration of a breach; it did not mean to suggest that the Board was limited jurisdictionally by the remedies it could award. Rather, it sought to underscore the “extreme unlikelihood” that Mr. Harrison’s situation “would ever attract a damages award”. The Board noted further that Mr. Harrison’s damages claim was based on the financial obligations he undertook in the two years between the filing of the grievance and its resolution and not because he should have been the successful candidate of the competition. The essence of the Vice-Chair’s reasoning is captured in paragraph 14 of the decision:

14. The applicant’s claims for damages assume that section 74 required CUPE to immediately advise the applicant that it was grieving the results of the job competition in which he had been successful, and that it failed to do so. As I have mentioned above, I do not think that is the law, however, even if it were, the applicant benefitted from the time it took to resolve the grievance as he earned more than he otherwise would have had he remained a cleaner during that whole time. CUPE is not responsible for the fact that he may have chosen to or had to live at the upper limit of his means. The generally accepted remedial principle is that an individual should be put in the same position he would have been in, had a contravention of the law not occurred. The applicant would have been employed as a cleaner. He is now employed as a cleaner, albeit, at his choice, working less than full-time hours.

[33] In short, the Board concluded that the reduction in Mr. Harrison’s wages was not the result of any breach of the Act. By extension, his “loss” and his financial difficulties were the result of personal decisions.

ANALYSIS

ISSUES:

[34] There are principally two issues for consideration in this application:

(a) Did the Board meet the requirements of procedural fairness in its handling of Mr. Harrison’s application?

(b) Was the Board's decision to dismiss Mr. Harrison's application reasonable?

Standard of Review:

[35] The parties agreed that the Board owed Mr. Harrison a high degree of procedural fairness. The Court must determine whether the appropriate level of procedural fairness was accorded by the Board to Mr. Harrison.

[36] The parties also agreed in their submissions to the Court that the standard of review for the Board's decision is reasonableness.

a) Did the Board meet its Duty of Procedural Fairness in its handling of Mr. Harrison’s application?

[37] The Board did not breach any rule of procedural fairness in its handling and consideration of the Mr. Harrison’s application. I cannot agree with Mr. Harrison’s contention that the Board was required to accord Mr. Harrison a hearing.

[38] Sections 96, 99, 110 of the Act and Rule 39.1 of the Rules Board’s Rule give the Board significant scope to give shape to its own practices and approaches to a particular complaint.

[39] To begin with, the Board has the discretion to inquire into complaints concerning unfair labour practices. It may also decide whether to inquire into a complaint and thereafter consider “what if anything” might be an appropriate remedy given the particular circumstances. It is well recognized that the decision to inquire into an unfair labour practice complaint is discretionary and that it is a procedural decision that falls exclusively within the Board’s jurisdiction and expertise: See ss. 96(1) and (4)(a)-(c), and Retail Wholesale Canada, Canadian Service Sector Division of the United Steel Workers of America, Local 448 v. Sirch Holdings Inc. (c.o.b. Ridout Tavern Complex) [2000] O.J. No. 501 (Div. Ct.), at paras. 7-8; Re Dhanota and International Union United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.), Local No. 1258 [1983] O.J. No. 3052 (Div. Ct.) at paras. 5-6 and 12; Ross v. National Automobile Aerospace, Transportation and General Workers Union (CAW-Canada), [1995] O.J. No. 4879 (Div. Ct.), at para.1

[40] Pursuant to s.99 of the Act, it is expressly recognized that the Board is not required to hold a hearing to determine a fair representation complaint. It is open to the Board to make an interim or a final order, after consultation with the parties. Furthermore, although a party is to be provided the opportunity to present evidence and to make submissions, that, according to the requirements of s.110(16) of the Act does not equate to a right to call evidence in an oral hearing.

[41] Finally, Rules 39.01 and 41(3) of the Board’s Rules of Procedure anticipate the Board’s ability to dismiss an application a hearing or consultation in instances where the applicant fails to make out a case for the orders and remedies being sought or where it could decide a case without a hearing. In such an instance, the Board must provide reasons for its decision.

[42] In this instance I conclude that the Board dealt with Mr. Harrison in a procedurally fair manner. Although Mr. Harrison was not given a hearing, he was given the full opportunity to make his submissions in writing. The Board accepted Mr. Harrison’s allegations as true and capable of proof, including the central fact that CUPE did not advise Mr. Harrison of the arbitration hearing until two weeks before its anticipated arbitration. Credibility on that point was therefore not an issue and there was no need to call evidence or for witnesses to be cross-examined.

[43] Significantly, the Board could have dismissed the application on the basis of the parties’ initial submissions. Instead, the Board reviewed Mr. Harrison’s complaint, and issued an Interim Decision where it outlined the applicable statutory provisions, the rules and principles relevant to s.74 complaints, it reviewed its reluctance to inquire into a complaint where such a review would have “no labour relations purpose” and then it related this analysis to Mr. Harrison’s particular concerns. The Board then went on to articulate three very specific questions and invited Mr. Harrison to respond to those questions.

[44] Mr. Harrison used this invitation to advance a further challenge to the Board and rather than limit his response to those three questions, he took issue with the Board’s overall approach. In doing so, Mr. Harrison filed very extensive supplementary and somewhat repetitive submissions that focused on his assessment of CUPE’s conduct and very little on the Board’s specific questions.

[45] The Board received the supplemental submissions and then released a Final Decision that I find was comprehensive and thorough in its analysis of the application and its reasons for the dismissal.

[46] In coming to this conclusion I disagree with Mr. Harrison’s submissions that the Board failed to meet its duty to provide Mr. Harrison with a “full opportunity” to present his case and to give adequate reasons. Mr. Harrison made three very extensive submissions through his original application, his Supplementary Evidence and Reply, and then at the Board’s invitation, through his submissions that were intended to respond to the Board’s very specific questions. The Board accepted Mr. Harrison’s submissions as true and proceeded with its analysis and conclusions on that basis. Moreover, the questions that were put to Mr. Harrison were very carefully worded to exhaust every possible approach and consideration of Mr. Harrison’s complaint.

[47] Given counsel’s extensive submissions on the subject of CUPE’s alleged bad faith and his criticism of the Board’s reasons as being “completely devoid of any reference to the allegation of “bad faith”, I will address this issue in some detail. In his submissions both to the Board and to this court. Mr. Harrison’s counsel structured a substantial part of his argument around CUPE’s bad faith conduct in its communications with Mr. Harrison and its “misrepresentation” about a seven month notice of the grievance instead of just two weeks. But he did so without any discussion of the implications of CUPE’s immediate withdrawal of that allegation. Counsel seemed to be in denial of CUPE’s correction and instead held onto CUPE’s original submission, going so far as to question the credibility of CUPE’s withdrawal, so as to then anchor his conclusion that the Board’s failure to consider CUPE’s bad faith conduct amounted to a failure in procedural fairness.

[48] Absent CUPE’s correction of its error, there might have been something for the Board to consider. But in the face of CUPE’s immediate correction, that aspect of Mr. Harrison’s criticism of CUPE was gone. The natural question to consider would be look for other facts that might support counsel’s arguments against CUPE. The problem however was that no other such facts were pleaded. In my review of the record, I must agree with the Board’s conclusion that Mr. Harrison did not plead any material facts to support his bald assertion of CUPE’s arbitrary, discriminatory, or bad faith conduct. The only facts that became available for such a submission, even if only temporarily, arose from CUPE’s erroneous submission that it gave Mr. Harrison seven months notice of the grievance. When that was withdrawn, there were no other facts to support Mr. Harrison’s allegations.

[49] Even in the face of these deficiencies, and contrary to counsel’s contention that the Board’s reasons were “completely devoid of any reference to the allegation of bad faith”, the Board engaged with the subject and considered in some detail the meaning of “arbitrary”, “discriminatory” and “bad faith conduct”. In its Interim Decision, the Board referred to Chrysler Canada Ltd. [1997] O.L.R.D. No. 2605 at para.37 (QL), to review the meaning of “arbitrary”, discriminatory” or “bad faith” conduct. In that decision, “arbitrary” conduct was defined as “capricious, implausible, or unreasonable, often demonstrated by a consideration of irrelevant factors or a failure to consider all relevant factors.” “Discriminatory” conduct was defined to “include situations in which a trade union distinguishes between or treats employees differently without a cogent reason or labour relations basis”. “Bad faith” conduct was defined as “conduct motivated by hostility, malice, ill-will, dishonesty or improper motivation.” With those principles in mind the Board proceeded to review in some detail the facts of the case and noted that Mr. Harrison “did not plead any facts to suggest that CUPE bore him any personal hostility or that he was treated differently from any other similarly situated bargaining unit member.” It is just not the case that in its decisions, the Board’s analysis was devoid of any reference to bad faith.

[50] The reality is that in its summary dismissal review the Board followed the procedures anticipated by the Act and the Rules. Mr. Harrison knew the case that he had to meet and he was given ample opportunity to present his evidence and make submissions, which Mr. Harrison pursued to the fullest extent. The Board reviewed Mr. Harrison’s submissions and accepted them at the their highest as true and provable. In doing so the Board respected the rules of procedural fairness.

b) Was the Board's decision to dismiss Mr. Harrison's application reasonable?

[51] The two decisions together demonstrate the Board's reasonableness in its approach to Mr. Harrison’s application and ultimately its summary dismissal. The Board considered the factual matrix of the case, it reviewed Mr. Harrison's pleadings and submissions, it considered the subject of notice, both for the filing of a grievance and the arbitration, it considered the parameters of s.74 of the Act as it relates to the conduct of a union, and it also considered the damages that it could order, even if Mr. Harrison could establish a prima facie case. The Board conducted the analysis in a way that was justified, transparent and intelligible. Its decision to dismiss Mr. Harrison’s application falls within the range of possible acceptable outcomes which are defensible in respect of the facts and law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 47.

[52] In particular, in its reasons the Board demonstrated a full appreciation of the events that transpired in relation to Mr. Harrison. In its assessment of whether or not Mr. Harrison’s complaint established a prima facie case, the Board relied on the longstanding principle that a union is entitled to determine its approach to the carriage, pursuit and settlement of a grievance unless those actions were arbitrary, discriminatory or made in bad faith. It reviewed Mr. Harrison’s pleadings and submissions and reasonably concluded that there were no facts to suggest that CUPE bore Mr. Harrison any personal hostility, ill will, or that he was treated any differently from similarly situated members. In the same vein, the Board considered the period of time that passed between the filing of the grievance and the settlement and concluded that the delay was not the result of any arbitrary, discriminatory or bad faith conduct by CUPE.

[53] Insofar as the issue of notice by CUPE to Mr. Harrison was concerned, the Board’s analysis was equally reasonable. The Board’s comment to the effect that it was not “aware of any specific authority for the proposition that section 74 of the Act requires a bargaining agent to provide individual bargaining unit members with notice that it has filed a grievance seeking redress that may affect them”, combined with the conclusion that, “It has never been the case that section 74 requires that notice of such grievances must be given to the employees who are potentially impacted” resulted in extensive submissions and arguments by counsel for both Mr. Harrison and CUPE in both their respective factums and in court.

[54] Mr. Harrison’s counsel submitted that such an acknowledgment on its own revealed the Board’s recognition that Mr. Harrison’s situation was novel and that it merited at the very least a hearing. Substantively, given the uniqueness of Mr. Harrison’s situation, counsel suggested that it was all the more important for the Board to have a hearing and to rule on the subject of notice to individual bargaining unit members as a mitigation measure. As there was no precedent to support a notice requirement at the filing of a grievance, counsel invited this court to rely on Paul Brunet, [2003] OLRB Rep. January/February 24, for the proposition that there is a minimum standard of communication that is owed to the members that a union represents.

[55] Counsel for CUPE took a different view of the Board’s discussion of notice and submitted that its particular observation was not intended to suggest that the Board was in uncharted territory, but rather that it has never been the case that s.74 of the Act required notice.

[56] I am unable to accept Mr. Harrison’s submission on this point in light of the extensive analysis that followed the Board’s initial comment regarding the lack of a specific authority for notice within s.74 of the Act. That comment has to be considered and interpreted in its full context. Far from being in uncharted territory, in its analysis of the subject, the Board demonstrated a comprehensive understanding of the issue and considered the subject of notice from various perspectives. It relied on the Ontario Court of Appeal’s decision in Bradley v. Ottawa Professional Fire Fighters Association 1967 160 (ON CA), [1967] O.J. No. 1017 (C.A.), to conclude reasonably that employees would be entitled to notice of “arbitration proceedings”. The Board also underscored the point that the purpose of adequate notice would be to provide the “notified person” with a reasonable opportunity to prepare his or her submissions for the arbitration proceeding. Ultimately, in its analysis of the subject, the Board concluded that the right to notice and its adequacy would be for the arbitrator to consider and address accordingly.

[57] In this case, the arbitration never occurred. Given these developments, rather than engage in a consideration of the adequacy of the notice to Mr. Harrison, the Board went on to consider what the appropriate damages could be awarded by the Board even if Mr. Harrison could make out a prima facie case of a s.74 breach by CUPE. In this part of the analysis, the Board engaged in an extensive analysis of one’s entitlement to damages, both in general terms and in the context of the specific facts. Ultimately it concluded that the Board would limit an award to a declaration of a breach. More significantly, it rejected Mr. Harrison’s submissions that the Board could award damages to Mr. Harrison on account of the financial obligations he took on as a result of his full time position. In its rejection of that position the Board gave full consideration to Mr. Harrison’s situation, it reviewed his financial undertakings, but it also considered the benefits of being in the higher paying position for two years. That analysis was transparent, thorough and reasonable.

[58] On the subject of damages, counsel for Mr. Harrison contends that the Board conflated and misapplied the “cardinal principle” of damages, namely the restoration of an aggrieved party to his original position but for the breach. He explains further that the Board was wrong to conclude that but for the breach by CUPE Mr. Harrison would have been employed as a cleaner, just as he is now a cleaner. Rather, the comparator ought to be one that would put Mr. Harrison in a position where he would be able to mitigate the risk of displacement.

[59] With respect, I cannot agree with the contention that the Board misunderstood or conflated the principles of damages. In its analysis of this issue, even with its overriding conclusion that the appropriate remedy would be a declaration, the Board gave full consideration to Mr. Harrison’s position. That consideration included the observation that there was no evidence before the Board to suggest that Mr. Harrison suffered a “loss of opportunity”, that Mr. Harrison gained the benefit of a higher-paying salary for two years and that he earned more than he would have otherwise have had if he remained a cleaner.

[60] Finally, in addition to the Board’s analysis of the notice requirements and the entitlement to damages, it was reasonable for the Board to rest its overall assessment of CUPE’s conduct on two critical facts. In the first place, it recognized that CUPE had no choice but to adopt a position that would ensure the proper interpretation of the collective agreement particularly as it related to a formulaic approach to the determination of seniority for a particular position. The Board also recognized CUPE’s efforts to negotiate an alternative position for Mr. Harrison so as to put him in as good as a position as possible.

[61] Taken as a whole, the Board’s two decisions were reasonable and were the result of a process that was procedurally fair. Mr. Harrison’s application is therefore dismissed.

COSTS

[62] Pursuant to the parties’ agreement that costs would be payable to the successful party by the unsuccessful party in the amount of $8,000.00, costs are payable by Mr. Harrison to CUPE, if so demanded.

TZIMAS J.

J. WILSON J.

HARVISON YOUNG J.

Released: June 5, 2015

CITATION: Harrison v. Ontario Labour Relations Board, 2015 ONSC 3275

DIVISIONAL COURT FILE NO.: 189/14

DATE: 20150605

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

J. Wilson, Harvison Young, Tzimas J.J.

BETWEEN:

John Harrison

Applicant

– and –

Ontario Labour Relations Board and the Canadian Union of Public Employees, Local 4400

Respondents

Conseil scolaire Viamonde

Interested Third Party

REASONS FOR JUDGMENT

Tzimas J.

Released: June 5, 2015

[^1]: Article 1.03.01 of the Collective Agreement between Le conseil scolaire de district du centre-sud-ouest (CSDCSO) and The Canadian Union of Public Employees, (CUPE)