DIVISIONAL COURT FILE NO.: 336/21
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: EUGENE LAHO, Applicant
AND:
UNIFOR LOCAL 414 AND the ontario labour relations board, Respondents
BEFORE: Stewart, Matheson and Kurke JJ.
COUNSEL: Eugene Laho, appearing on his own behalf Farah Baloo, for the Respondent, Unifor Local 414 Aaron Hart, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto by videoconference: February 9, 2022
ENDORSEMENT
1By decision dated March 15, 2021, the Ontario Labour Relations Board (“the Board”) terminated the applicant’s application against Unifor Local 414 under the Labour Relations Act (“the Act”), which alleged a breach of the duty of fair representation, pursuant to s. 74 of the Act. The applicant seeks judicial review of that decision, and asserts that: 1) the decision to terminate his application was unreasonable; 2) he was denied procedural fairness; and, 3) that his rights pursuant to ss. 7, 12, and 15(1) of the Canadian Charter of Rights and Freedoms have been violated by the Board’s order.
2By way of background, from July 2018 the applicant was employed by New Dominion Stores, a division of Metro Ontario Inc. (“Metro”) in one of its retail grocery stores as a clerk. In April 2019 the applicant was injured and filed a WSIB claim on April 15, 2019 after meeting with the store manager, a human resources representative from Metro and a representative from Unifor Local 414, the bargaining agent for Metro employees (“Unifor”). The WSIB claim was initially denied, but on appeal the applicant was approved for medical care and lost time.
3Unifor worked with the applicant who returned to work on modified duties that remained in place until March 2020, when the applicant suffered from a cardiac condition and was again off work. The applicant filed another WSIB claim, which was denied. The applicant appealed and represented himself in the appeal process. In September 2021, the applicant succeeded on his appeal, and he was granted entitlement for psychotraumatic disability and a review for loss of earnings benefit.
4The applicant claimed in an e-mail to Metro and Unifor dated December 18, 2020 that he was constructively dismissed from Metro in October 2020 because Metro refused to provide him with work suitable to his restrictions. The applicant claimed that Unifor failed to provide him with assistance in dealing with the WSIB and in a number of disputes the applicant had in the workplace throughout his employment with Metro. The applicant alleged that Unifor was unresponsive and did not provide requested material.
5On November 13, 2020, the applicant filed a complaint about Unifor to the OLRB alleging that Unifor breached the duty of fair representation provided for in s. 74 of the Act. Unifor responded, requesting that the Board dismiss the application without a hearing. The Board required that Unifor provide reasons and case law in support of that request, which it did.
6Having received Unifor’s submissions, the Board released a decision dated February 8, 2021. In that decision, the Board indicated that it was difficult to meaningfully assess the applicant’s allegations against Unifor because the application as filed was “barely comprehensible”. The Board gave examples to illustrate the point. The Board decided to give the applicant the opportunity to provide a concise statement of facts, setting out what he submitted that the union did or failed to do, in support of his unfair representation application. The applicant proceeded to file his submissions in response.
7In a March 3, 2021 decision, the Board made a preliminary determination that there was no prima facie violation of s. 74 arising from Unifor’s conduct vis-à-vis the applicant’s WSIB proceedings, which represented the bulk of the applicant’s complaint, as the Board’s jurisprudence had long held that the duty of fair representation does not extend to representation in WSIB matters. In the same decision, the Board explained that in accordance with s. 96(4) of the Act, it has a discretion not to inquire into a complaint, based on a range of factors including the utility of any potential remedies and whether any labour relations purpose would be served by an inquiry. In particular, the applicant was no longer employed at Metro.
8The Board invited the applicant to say why, in light of those issues, “the Board should not decline to inquire into the application and terminate it without a consultation.” The applicant responded, providing more submissions to the Board.
9In its March 15, 2021 decision, the Board terminated the application. The decision noted that the applicant had filed “voluminous” submissions in response to the March 3, 2021 invitation to provide further information, but that the filings were “largely, if not entirely unresponsive to the issues in that decision.” The applicant’s main focus remained on the WSIB issue, and he offered no labour relations purpose for further inquiry into other non-WSIB issues, a matter of particular importance given that the applicant had terminated his employment with Metro.
10The Board acknowledged the applicant’s assertion of the importance of an e-mail he had sent to Unifor on December 18, 2020, but declined to accord it weight as the Board found that the e-mail did not request that Unifor file any grievance on the applicant’s behalf, and, in addition, the e-mail was sent after the applicant’s s. 74 application had been made to the OLRB.
11The applicant sought reconsideration by the Board. In its decision of March 19, 2021, the Board found that the basis for the applicant’s request was simply an attempt “to re-argue his position, or to re-structure the arguments he made in the application, because he does not agree with the Board’s decision.” The Board therefore declined the request for reconsideration.
12In our view, assessment of the Board’s decision attracts a reasonableness standard of review: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at paras. 17, 53, and 69. It is also our view that the March 15, 2021 decision is reasonable. We note the following:
a. There was justification, transparency and intelligibility in the decision-making process in relation to the legal and substantial factual constraints that bore on the decision. The applicant’s materials and presentation were challenging, given their volume and diffuse nature. Nevertheless, the Board worked to deal with them in a fair and understanding manner;
b. The analysis clearly set out that the Board was bound by prior jurisprudence to hold that Unifor’s duty of fair representation did not extend to assistance with WSIB claims. The Board’s finding that the applicant did not seek Unifor’s assistance with his allegation of constructive dismissal was open to the Board to make and is owed deference by this Court;
c. Given those two determinations, the decision not to inquire into the applicant’s complaint, on the basis that the applicant had failed to offer a “coherent rationale” as to why the Board should not exercise its discretion in that manner, falls within a range of possible, acceptable outcomes and is defensible in respect of the facts and the law and the reasoning of the Board;
d. The reconsideration decision properly set out the OLRB’s test with respect to its power to reconsider the decision, including its duty to apply that test flexibly, so as not to foreclose from consideration newly raised significant and important evidence and issues. The Board reasonably declined to exercise its discretion to reconsider the decision.
13With respect to procedural fairness, there is no standard of review. The question is whether or not the applicant was afforded procedural fairness by the Board. In our view, the Board met its duty of fairness in the circumstances of the applicant’s case, in accordance with the factors prescribed in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, at paras. 23-28:
a. The Board made significant efforts to ensure that the applicant was able to participate in the decision-making process. It made known its concerns to the applicant, invited his response to those concerns, and considered the applicant’s responses in making its decision to terminate the applicant’s case. The Board considered the lengthy materials provided by the applicant both in the application itself and after further submissions were requested and provided.
b. The applicant had a further opportunity to put forward his submissions on the reconsideration and did so.
c. The decision was important to the applicant, but objectively speaking was unassailable. It was based mainly on a legal determination of long standing by the Board that the duty of fair representation does not extend to assistance in WSIB claims, and because the applicant had not sought Unifor’s assistance concerning the termination of his employment with Metro.
14Given the full context of the application to the Board and the issues that were relevant to that duty of fair representation complaint, there was no procedural unfairness.
15A Charter remedy was not sought before the Board. On this application, the applicant has offered no adequate evidentiary basis for his claim to have suffered violations of his ss. 7, 12, or 15(1) Charter rights by reason of the Board’s decisions under review, or to merit redress under s. 24(1). While we have the discretion to hear the Charter claim, we do not find that the claim has been made out, or that any remedy is justified.
16Accordingly, for the above reasons, the application is dismissed. The applicant shall pay Unifor costs in the amount of $2,000, all inclusive. There shall be no costs paid to or by the Board.
Stewart J.
Matheson J.
Kurke J.
Date: February 11, 2022