CITATION: Themelis v. Toronto, 2021 ONSC 250

DIVISIONAL COURT FILE NO.: 780/18

DATE: 20210112

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: VICTOR THEMELIS, Applicant

AND:

CITY OF TORONTO and TORONTO CIVIC EMPLOYEES UNION, LOCAL 416, Respondents

BEFORE: Penny J.

COUNSEL: Osborne G. Barnwell for the Applicant

Daniel Sheppard for the Toronto Civic Employees Union, Local 416

Amandi Esonwanne for the City of Toronto

HEARD (by videoconference): December 15, 2020

ENDORSEMENT

Overview

1Mr. Themelis is a member of the Union and is employed by the City of Toronto under the terms of a collective agreement. The Applicant was laid off from his job in September 2015 when his position was eliminated. The Union pursued grievances on his behalf and was successful in having the Applicant returned to work in a different position.

2One aspect of the grievance proceedings involved a claim for damages for violations of the Applicant’s rights under the Ontario Human Rights Code, R.S.O. 1990, c. H.19. While the hearing of this matter was still ongoing (but following nine days of evidence), the Union negotiated a settlement of this claim with the City involving a payment to the Applicant of $31,000. The Applicant was dissatisfied with the quantum of the settlement agreement and refused to sign. The Union advised the Applicant that it intended to settle the grievance for damages in any event and proceeded to do so on the Applicant’s behalf. The settlement was endorsed by the arbitrator, who awarded damages to the Applicant for the human rights violation complaint in the agreed upon amount of $31,000.

3The Applicant brought an application for judicial review of the arbitrator’s award concerning the damages claim. He says the amount of the settlement was wholly inadequate. He claims entitlement to over $160,000.

4The matter now before the Court is a motion by the Respondent Union, supported by the City, to quash the Applicant’s application for judicial review of this arbitration award. The grounds for the motion are that: (a) the application rests, in substance, upon the allegation that the Union failed in its duty of fair representation - such a complaint falls within the exclusive jurisdiction of the Ontario Labour Relations Board (“OLRB”); and, (b) the Applicant was not a party to the arbitration proceeding – as such, the Applicant lacks standing to bring this application.

Background

5Although there is a lengthy and detailed litigation history to these proceedings, it is not necessary, for purposes of determining the narrow issues on this motion, to delve too deeply into this background. It is sufficient to say that the grievances raised a number of controversial issues and were hard fought by the City. The Union, in the first two significant proceedings before the arbitrator, won major issues in the Applicant’s favour. This resulted, among other things, in the Applicant’s return to work effective September 2016. The present dispute arose during a third hearing before the arbitrator in which the Applicant’s damage claim was being adjudicated and quantified. A major issue in that proceeding was whether sufficient efforts to accommodate the Applicant’s disabilities were made by the City and whether, in fact, there was a job within the Applicant’s capabilities available at the City during the relevant time. The City maintained there was not. According to the Union and the City, it was by no means certain that the Union would prevail on this aspect of the Applicant’s grievance. To avoid this uncertainty, the Union resolved to settle the damages question rather than complete the hearing and take the risk the grievor would get nothing. These considerations reflect some of the issues going to the merits of the Union’s representation in the damages portion of the grievance proceeding and are not directly pertinent to the narrow issues on this motion.

6Of some importance to the motion, however, is the nature of the arbitrator’s July 19, 2018 award on this issue. After reciting the key terms of the settlement, the arbitrator wrote:

Accordingly, the parties request that I order that they implement and abide by the terms and conditions of the Minutes. Based on the evidence I have received, I am satisfied that the terms of the Minutes do fully and appropriately resolve all the issues that arose from the grievances before me filed on behalf of the Grievor. Further, I note that the Union appropriately defended the issues raised by the grievances.

7What is critical to the issues in dispute on this motion is the nature of the application for judicial review. The grounds upon which the Applicant alleges his notice of application for judicial review should be granted include the following:

(a) when the Applicant objected to the contents of the settlement, the Union representative “yelled and screamed at him”;

(b) the Union “ordered” the Applicant to sign the settlement agreement;

(c) the Union gave him less than 24 hours to consider his position and threatened to sign the agreement if he did not sign it;

(d) he refused to sign the agreement because it had “rather unfair terms”;

(e) the Union had engaged in “oppressive and abusive conduct” toward him;

(f) he had “always had concerns” about how the Union had been handling his case;

(g) it was as if the Union did not wish to get to the truth;

(h) “the Union displayed a negative attitude towards folks” who wished to help him;

(i) the Union failed to explain why the settlement agreement dismissed six outstanding grievances and he was “very confused”;

(j) “the Union must have viewed [him] as someone too ill to really care to fight back and not sufficiently educated”;

(k) the Applicant was “robbed and mistreated by the Union”;

(l) there was “a conspiracy between the lawyers of the Union and the lawyer of the City”;

(m) he was “simply abandoned by [his] union and the employer”;

(n) the settlement made a “mockery” of his rights as a disabled member of the Union and it was “an insult to [his] rights as a member of the Union”;

(o) “it was like [he] was the enemy of the Union” and that the Union representatives “screamed at” and “disrespected” him;

(p) the Union “sacrificed” him;

(q) he felt he was “being bullied” by the executive members of the Union;

(r) the settlement constituted “a successful attempt to railroad” the Applicant;

(s) “the Union continuously threatened” the Applicant that, unless he accepted the settlement, the Union would execute the agreement over his objections;

(t) he felt coerced, dissatisfied and under severe duress from the Union’s conduct surrounding the settlement;

(u) the relationship between the Applicant and the Union was “acrimonious”;

(v) the Union had victimized the Applicant;

(w) the Union “discriminated against” the Applicant because he was disabled and failed to push his case forward; and

(x) the Union “acted with hostility towards the Applicant”.

analysis

Does the substance of this matter fall within the exclusive jurisdiction of the OLRB?

8Section 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”), sets out the duty of fair representation by a union. It provides:

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.

9The duty of fair representation regulates a wide range of union activity, including where unions refuse to pursue grievances or settle grievances against the wishes of grievors: Green v. Canadian Auto Workers Union Local #222, 2000 13370 (ON LRB), at paras. 10-14; Parker v. Service Employees International Union, Local 183, 2003 4234 (ON LRB), at para. 22. Where decisions in this respect are tainted by (i) arbitrariness, (ii) discrimination, or (iii) bad faith, a union violates s. 74 of the LRA and its decisions can be set aside by the OLRB.

10The prohibitions against bad faith and discrimination “describe conduct in a subjective sense – that an employee ought not to be the victim of the ill-will or hostility of trade union officials”: Prinesdomu v. Canadian Union of Public Employees Local 1000 - Ontario Hydro Employees Union (1975), 75 C.L.L.C. 16,196 (OLRB), at para. 27. If a union acts with personal animosity towards a member, it will violate the duty of good faith. If a union draws a distinction between bargaining unit members on bases which have no relevance to legitimate collective bargaining concerns, it violates the prohibition against discrimination: Bartlett v. A.C.T.W.U., Local 307, [1983] O.L.R.B. Rep. 2067, at para. 36.

11Arbitrary conduct refers to a lack of concern in decision making, which reflects a “summary”, “reckless” or “not caring” approach by a Union: Prinesdomu, at paras. 28-31. A union’s decision “will be arbitrary if it is not the result of a process of reasoning applied to relevant considerations”: Bartlett, at para. 36. In the context of processing grievances, s. 74 requires that unions put their minds to the merits of each grievance and engage in a process of making rational decisions which cannot be regarded as either implausible or capricious: Rocca v. Ontario Catholic Occasional Teachers Assn., [1989] O.L.R.B. Rep. 371, at para. 26.

12The Applicant’s complaints – that the Union mistreated him, failed to pursue his claim adequately, and ultimately forced an improvident settlement on him – are all allegations that the Union acted arbitrarily, in a discriminatory manner, and in bad faith. In short, they are allegations that the Union breached its statutory duty to him of fair representation under s. 74 of the LRA. Indeed, the Applicant makes this claim explicitly in his factum on the judicial review itself. In that factum, the Applicant relies on Mastroianni v. B.A.C., Local 28 ON, 2005 CarswellOnt 3453 (OLRB), a duty of fair representation case. The Applicant says in his factum that the Board’s discussion of the duty of fair representation in Mastroianni captures union conduct “motivated by spite and ill will” and “a non-caring attitude”, asserting that “[t]hese very elements punctuate this case.” Thus, although taking the form of an application for judicial review of the arbitrator’s decision accepting the settlement, in substance the application is really a complaint about the Union’s failure of fair representation.

13The Applicant argues that the Union and the City prevailed upon the arbitrator to find, in her decision, that she was “satisfied that the terms of the Minutes do fully and appropriately resolve all the issues” and that “the Union appropriately defended the issues raised by the grievances”. He argues that these findings will prevent him from raising issues about the Union’s breach of the duty of fair representation before the OLRB.

14I am unable to accept this argument. Without commenting on whether the arbitrator’s reasons in any subsequent OLRB proceeding on the Union’s duty of fair representation are even relevant, it is at least clear that they cannot in any way be binding on the Applicant in respect of a claim against the Union for breach of the duty of fair representation. Both the Union and the City argue, on the issue of standing, that the Applicant was not a party to the grievance proceedings – the grievance was brought by the Union on the Applicant’s behalf. The Applicant was not independently represented in the arbitration proceedings. The Applicant had no voice, and made no independent submissions, on the propriety of the Union’s settlement with the City before the arbitrator. The issue of whether the Union fulfilled its duty of fair representation to the Applicant was not an issue that was before the arbitrator. There was no evidence specifically directed to this issue available to her. It is clear that issue estoppel does not, and cannot, apply in these circumstances. Thus, I cannot agree that the comments highlighted by the Applicant from the arbitrator’s decision quoted above, impair his ability to seek relief from the OLRB under s. 74 of the LRA in any way.

15The combined effect of ss. 96(4) and 114 of the LRA confers exclusive jurisdiction on the OLRB to make a wide range of findings and remedial orders in the face of a failure of fair representation by a union. Having found that, in substance, the Applicant’s application for judicial review can only be characterized as a complaint against the Union for breach of the duty of fair representation, it necessarily follows, therefore, that the claim falls within the exclusive jurisdiction of the OLRB: Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 110 (SCC), [1990] 1 S.C.R. 1298, at 1326; Vernon v. General Motors of Canada Ltd., 2005 3323 (ON CA), 250 D.L.R. (4th) 259 (Ont. C.A.), at para. 30. This Court does not have jurisdiction to review that complaint in the guise of judicial review of the arbitration award. For these reasons, the motion is granted and the application for judicial review is quashed.

Does the Applicant have standing to bring an application for judicial review?

16Although not strictly necessary, given my disposition of the jurisdictional issue, I will next address the standing issue raised by the respondents, in part because the standing issue is, in this case at least, ultimately intertwined with the issue of jurisdiction.

17It is trite law that, under the exclusive representation model of collective bargaining, only the union and employers have standing to judicially review labour arbitration awards. This court explained in Misra v. City of Toronto, 2016 ONSC 2246 (Div. Ct.), at para. 56, that there are only three narrow circumstances in which an individual employee can seek judicial review:

(1) where the collective agreement expressly confers that right;

(2) where the union takes a position adverse in interest to the employee; or

(3) where the union’s representation of the employee was so unfair or deficient that the employee should be given the right to pursue judicial review.

18Here the collective agreement clearly confers no right on an individual employee to seek judicial review. Nor was the Union’s position “adverse” to the Applicant in the relevant sense. The adversity of interest must be a fundamental conflict with the employee’s core interest. The conflict must rise to the level of making the union and the employee “opponents” in the litigation. Here, it cannot be said that the Union took any position “adverse” to the core interest of the Applicant. The Union took the position that the Applicant was not properly accommodated by the City, that he should be re-employed, and that he was entitled to damages. The fact that the Applicant wanted a good deal more money than the Union was prepared to insist upon in settlement discussions cannot qualify, without more, as an “adversity of interest” within the meaning of the second exception.

19Likewise, standing cannot be given under the third exception where the allegation of unfairness effectively amounts to no more than an allegation of a violation of a duty of fair representation: Vallabh v. Air Canada and Unifor Local 2002, 2019 ONSC 4016 (Div. Ct.), at paras. 35-36. To find otherwise would gut the exclusive jurisdiction of the OLRB under ss. 74, 96(4) and 114 of the LRA altogether. The third exception, therefore, is meant to capture unusual circumstances, such as where there is no statutory duty of fair representation enforceable by the OLRB. As long as allegations which, in substance, raise issues of unfair representation by the union fall within the scope of s. 74, it would be inconsistent with Gendron, Vallabh, and the exclusive jurisdiction of the OLRB to extend standing to employees under the third exception.

20For these reasons, I would have granted the Union’s motion on this ground as well.

conclusion

21Accordingly, the Union’s motion is granted. The application for judicial review is quashed.

costs

22In the circumstances of this case, I make no order as to costs.

Penny J.