DIVISIONAL COURT FILE NO.: 466/17 DATE: 20180509
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
C. HORKINS, CONWAY and C. MACLEOD JJ.
BETWEEN:
KEVIN MACKAY
Stephanie Pope, for the Applicant
Applicant
– and –
WARREN “SMOKEY” THOMAS and THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (OPSEU)
Jodi Martin and Donald K. Eady for the Respondents
Respondents
MOHAWK COLLEGE OF APPLIED ARTS AND TECHNOLOGY
Alan Freedman and Amanda Lawrence-Patel for the Intervenor
Intervenor
Aaron Hart, for the Ontario Labour Relations Board
HEARD at Toronto: May 9, 2018
C. HORKINS J. (Orally)
1The applicant seeks judicial review of decisions of the Ontario Labour Relations Board (the “Board”) dated June 9 and July 26, 2017. In the first decision, the Board dismissed, on a preliminary basis, two applications that the applicant filed with the Board alleging that the Union violated the Colleges Collective Bargaining Act (the “Act”). Specifically, the applicant alleged that the respondents, the Ontario Public Service Employees Union ("OPSEU") and its president, Warren "Smokey" Thomas, breached the duty of fair representation and engaged in intimidating or coercive conduct, contrary to the Act.
background
2The following circumstances led to the applications.
3The applicant is a full-time professor at Mohawk College (the “College”). In addition to working as a professor, he holds three elected positions within OPSEU:
Vice-President of OPSEU Local 240, representing faculty at the College.
Vice-Chair of the OPSEU College of Applied Arts and Technology - Academic ("CAAT-A") Divisional Executive.
Elected member of the 2017 CAAT-A bargaining team.
4In November 2015, the applicant and the CAAT-A Divisional Executive learned that a senior campaign officer at OPSEU headquarters was charged with 12 counts of sexual assault. Female staff at OPSEU made the allegations that led to the charges.
5The applicant learned from OPSEU staff members that it was well known that the campaign manager engaged in inappropriate behaviour and that OPSEU management employees and Mr. Thomas had received complaints and took no action. As a result, the CAAT-A Divisional Executive wrote a letter dated December 8, 2015 to senior union staff, including Mr. Thomas. The letter stated "concerns about the sexual assault incident and OPSEU's workplace culture and requested an independent investigation into these concerns." This letter was circulated and published on publicly available websites.
6This letter led to a series of communications between CAAT-A Divisional Executives and senior union members. In a letter dated December 24, 2015, Mr. Thomas advised that OPSEU had conducted an internal investigation and denied the allegations. He urged CAAT-A to remove the posting of the letter online and issue a retraction.
7On January 18, 2016, the CAAT-A Divisional Executive received a Notice of Libel letter from a law firm representing senior managers, requesting that the applicant and CAAT-A remove the letter from all websites and publish an unqualified apology.
8The Toronto Star reported on the Notice of Libel letter on April 14, 2016 and reported on the letter a second time later that year. The Star interviewed the applicant and another CAAT-A Divisional Executive member for their reporting.
9On February 6, 2017, the applicant alleges that he met with the President of the College, Mr. McKerlie, privately in his office. During this meeting, the applicant says that the President told him"you need to watch your back. I'm not sure what happened between you and Smokey [Mr. Thomas], but he's out to get you." The President is also alleged to have said"[Mr. Thomas] is on the warpath" and "Smokey called me and asked me to fire you." The President also allegedly advised the applicant to "keep your eyes and ears open and watch your back."
10These comments form the basis of the applicant's applications to the Board.
The Board’s decision
11The Board addressed the applicant’s allegations concerning the union’s duty of fair representation and the intimidation and coercion.
Duty of Fair Representation
12Dealing with the duty of fair representation, the Board noted s. 56 of the Act that states:
An employee organization shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee, whether a member of the employee organization or not.
13The Board referred to the jurisprudence that describes this duty. “The duty of fair representation is not a ‘catch-all’ governing a union’s conduct towards its members in general. The union must be acting in its representative capacity with an employee’s employer.” Moreover, the Board observed that the jurisprudence confirms that “the arbitrary, discriminatory or bad faith conduct regulated by section 56 of the Act must produce actual prejudice at the hands of the employer. Section 56 does not regulate conduct resulting in merely speculative prejudice.”
14The Board recognized the seriousness of the alleged comments attributed to Mr. Thomas. If Mr. Thomas made the alleged comments the Board stated, “that was certainly contrary to the union’s representative role and almost certainly a violation of the Act…Comments such as these are antithetical to the role of a union.” However, the Board found that the applicant did not plead any specific prejudice and his alleged prejudice was “not readily apparent”.
15The Board acknowledged the applicant’s statement that he felt torn between his union duties and his employment and that he did not feel safe supporting or participating in the CAAT-A Divisional Executive. Therefore the applicant considered if he should step down. The Board found that these concerns, if true, were internal to the applicant and OPSEU and did not affect his relationship with his employer. The Board noted that “the College did not terminate or threaten to terminate the applicant’s employment. The applicant suffered no actual prejudice at the hands of the College as a result of Mr. Thomas’ comment and by now, it is apparent, that it is extremely unlikely there will be any future consequence to the applicant as a result of the alleged comments.”
16The Board found that it had no reason to believe that the employer would act on Mr. Thomas’ statements and explained that “the opposite conclusion seems more consistent with the alleged facts. After the alleged comments were made, the applicant asserts the College’s president sought to protect the applicant.”
17In these circumstances, the Board concluded that “it is difficult to see what is to be gained by proceeding to a hearing on this matter.” Even if all of the allegations were true, the Board found that there was “no labour relations purpose to inquire further into the application.”
Intimidation & Coercion
18The Board then dealt with the applicant’s complaint that the respondent engaged in intimidating or coercive conduct. The Board referred to s. 53(5) of the Act that states:
No person or employee organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of an employee organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.
19The Board found that Mr. Thomas did not expressly or implicitly demand the applicant to refrain from exercising his rights. The alleged comment was made to the President of the College, and the applicant would not have known about it but for the President mentioning it to the applicant. The Board concluded that “[u]nless the threat or intimidating conduct reaches the intended recipient, or was intended to, it cannot be said the comment was made to have him/her refrain from exercising a right under the Act.”
20In a decision dated July 26, 2017, the Board denied the applicant’s request for reconsideration.
Grounds of Review
21The applicant advances the following two grounds of review:
(1) The Board breached principles of natural justice and procedural fairness by disregarding the applicant's crucial submissions about the impact of the Respondents' conduct on him and his employment relationship.
(2) The Board's decision to dismiss the applicant's complaints was unreasonable because the Board failed to consider the applicant's submissions about the impact of the Respondents' conduct, and at the same time considered irrelevant factors as determinative, including that the College did not fire or threaten to fire the applicant, and that Mr. Thomas did not approach the applicant directly.
standard of review
22The parties agree that there is no standard of review analysis for issues of procedural fairness. Rather the court must decide if the requisite degree of procedural fairness has been provided according to the factors set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; London (City of) v Ayerswood Development Corp, 2002 CanLll 3225 (ON CA) at para. 10.
23The question is whether the requirements of procedural fairness and natural justice have been met, or breached, in the circumstances.
24With respect to the merits of the Board’s decision, it is agreed that the standard of review is reasonableness.
analysis
Did the Board breach principles of natural justice and procedural fairness?
25The applicant argues that the Board breached the principles of natural justice and procedural fairness because it did not mention all of his submissions and misapprehended the impact of the respondent’s conduct on him.
26I see no merit to this argument. The applicant did not plead any specific prejudice and yet the Board specifically allowed the applicant to make his submissions concerning the adverse consequences he claims to have suffered. The Board fairly reviewed these submissions and applied the jurisprudence under the Act.
27There is no requirement that reasons address every submission that a party makes. In its consideration the Board assumed the allegations to be true and concluded that there was no evidence of actual prejudice.
28It is clear that the Board understood the applicant’s submissions. As the Board noted in the Reconsideration Decision, the "problem" was that there is "no evidence that his employment relationship has suffered at all".
Was the Board’s decision Reasonable?
29I do not accept that the applicant’s argument that the decision was unreasonable. As already noted, the Board considered the applicant’s submissions about prejudice even though he did not plead actual prejudice.
30It was not unreasonable for the Board to rely on the fact that Mr. Thomas did not make the alleged threats directly to the applicant. This was part of the factual context. Reliance on this context did not change the fact that the applicant offered no evidence of actual prejudice.
31On reconsideration, the Board member recognized that intimidation or coercion can occur through an intermediary. Further, on reconsideration the member noted the applicant’s “acknowledgment” at the hearing that Mr. Thomas did not think the College President would convey his comments to the applicant.
32The Board also emphasize that the applicant failed to show that the intimidation or coercion was intended to compel the applicant from refraining from exercising his “rights under the Act” as required in s. 53(5) of the Act.
33Finally, one cannot lose sight of the Board’s discretionary power to dismiss a complaint without a hearing. Repeatedly, the Board stated that since “nothing has happened as a result of the alleged comments, the Board ought not to inquire further into the matter.”
34For all of these reasons, the application for judicial review, is dismissed.
35I have endorsed the Application Record of the applicant as follows: “This appeal is dismissed. The parties have agreed on costs. The applicant shall pay the respondents costs of $7,500 plus HST. The applicant shall pay the Intervenor costs of $5,000 plus HST. No costs to the Board.”
___________________________ C. HORKINS J.
I agree
CONWAY J.
I agree
C. MACLEOD J.
Date of Reasons for Judgment: May 9, 2018
Date of Release: May 10, 2018
CITATION: MacKay v. Thomas, 2018 ONSC 2935
DIVISIONAL COURT FILE NO.: 466/17 DATE: 20180509
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
C. HORKINS, CONWAY and C. MACLEOD JJ.
BETWEEN:
KEVIN MACKAY
Applicant
– and –
WARREN “SMOKEY” THOMAS and THE ONTARIO PUBLIC SERVICE EMPLOYEES UNION (OPSEU)
Respondents
MOHAWK COLLEGE OF APPLIED ARTS AND TECHNOLOGY
Intervenor
ORAL REASONS FOR JUDGMENT
C. HORKINS J.
Date of Reasons for Judgment: May 9, 2018
Date of Release: May 10, 2018