Ontario Public Service Employees Union (Hunt et al) v. The Crown in Right of Ontario (Ministry of Attorney General), 2009 CanLII 66598

GSB#2001-0534, 2003-2944, 2008-3397

UNION#2001-0551-0001, 2003-0999-0023, 2008-0526-0018

Under

Before

BETWEEN

Ontario Public Service Employees Union (Hunt et al)

Union

and -

The Crown in Right of Ontario (Ministry of Attorney General)

Employer

BEFORE

Randi H. Abramsky

Vice-Chair

Tim Hannigan Ryder Wright Blair & Holmes, LLP Barristers and Solicitors

Len Hatzis Ministry of Government Services Counsel

October 15, 2009.

1On July 27, 2006, the Board issued a decision in regard to two grievances, one filed by a group of Court Reporters alleging denial of overtime pay, and a policy grievance filed by OPSEU, alleging that “[t]he work associated with the preparation and production of transcripts and certifying them as accurate is bargaining unit work to which the collective agreement applies.” The decision determined “that the preparation and certification of transcripts is bargaining unit work of the Court Reporters…” and further stated that “[a]ll issues regarding the implications of this finding are referred back to the parties, and I will remain seized.”

2After approximately three years of discussion between the parties, the remedial issues are now before the Board. On September 22, 2009, counsel for the Coalition of Concerned Court Reporters of Ontario (the “Coalition”) sought leave to intervene in this proceeding. The motion was opposed by both the Ministry of the Attorney General (the “Ministry) and the Ontario Public Service Employees’ Union (“OPSEU”). A hearing on this issue was held on October 15, 2009, at which time both written documents were received and oral submissions were heard.

3Having carefully considered the matter and the case law submitted by the parties, the motion to intervene is denied. My reasons are set out below.

4At the hearing, the Coalition identified three Court Reporters on whose behalf counsel sought to intervene. In its written submission, the Coalition was described as “a growing organization which represents the work-related interests of approximately 100 Court Reporters.” It was formed because of its “members’ shared concerns related to the particular labour relations issues to be resolved in these proceedings…” Its “mission statement” states:

The Coalition of Concerned Court Reporters of Ontario seeks to promote and protect the integrity of the record and to preserve the public interest in the administration of justice. The Coalition will fight for the rights of dedicated Court Reporters whose professional responsibility in the justice system is to take, preserve, and transcribe the written record for the people of this Province. Audi alteram partem.

5In Ontario, there are approximately 600 Court Reporters who are represented, under the Crown Employees Collective Bargaining Act, R.S.O. 1990, (“CECBA”), by OPSEU. Court Reporters have been represented by OPSEU since 1994, although until the filing of the two grievances in this matter, the work associated with the preparation and typing of transcripts was governed by regulation. Due to the delay in the determination of the remedial issues, it still is.

6As recognized in the July 2006 decision, however, OPSEU is the exclusive representative of the Court Reporters under both CECBA and the parties’ collective agreement. It has a statutory right to represent Court Reporters in regard to their terms and conditions of employment for the work they perform, which includes the preparation and certification of transcripts. As the decision states at p. 42: “To not recognize the Union as the exclusive representative of the Court Reporters for that second part of the job violates the Union’s statutory and collective agreement rights. This is true even though the Ministry has not bargained individually with the Court Reporters but has set their terms and conditions of employment through regulation.”

7In Ontario and Canada, and indeed, all of North America, once a union is recognized or certified to represent employees in an appropriate bargaining unit, it is the exclusive representative of those employees. The collective agreement and the arbitration process are between the employer and the union. They are the “parties” to the collective agreement and the arbitration proceeding. All others – whether they are employees in the unit, other employees of the employer or other employers or unions – are not “parties” and may not participate in the proceedings, except in “exceptional” cases. Re Ontario (Ministry of Transportation) and OPSEU (Fournier) (1994), GSB No. 1530/93, 1994 CanLII 18602 (ON GSB), 43 L.A.C. (4th)1 (Kaplan). As stated by Vice-Chair Kaplan, at p. 4: “[I]n general, employee interests are represented by the trade union and employer interests are represented by the employer, and … only in exceptional cases should a third party be accorded status in a rights arbitration.”

8In Re Thunder Bay Regional Hospital and Ontario Nurses’ Association (2004), 2004 CanLII 94719 (ON LA), 129 L.A.C. (4th) 106 (Davie), the board of arbitration quotes a decision by arbitrator Pam Picher in Re Toronto Hospital and O.N.A., unreported, November 29, 1996, concerning the applicable principles in regard to standing, at pp. 109-110:

As a general rule, the only parties to an arbitration are the union and the employer as those are the two parties to the collective agreement, the alleged violation of which is the subject of the arbitration. Exceptions to this general rule are made in limited circumstances, such as where the union and employee each take a position which is adverse to the employee whose very right to employment is at issue in the arbitration (See, Hoogedoorn v. Greening Metal Products and Screening Equipment Company (1967), 1967 CanLII 20 (SCC), 65 D.L.R. (2d) 641 (S.C.C.) ; or where two groups of employees are competing for the same substantive employee benefits (e.g., a promotion) and the Union can support only one or one group of employees, with the other or others thereby being left without representation (See Bradley et al. v. Corporation of the City of Ottawa (1967), 63 D.L.$. (2d) 376 (Ont. C.A.)); or where the dispute is essentially a jurisdictional dispute between two unions and it makes practical sense to bring the two unions together in a single forum to obtain a single decision regarding which union holds the representation rights for the given group of employees (See CUPE and CBD and NABET Intervener (1970), 1990 CanLII 8078 (ON CA), 70 D.L.R. (4th) 175 (Ont. C.A.) and International Alliance of Theatrical Stage Employees and CUPE et al. (1992), 1992 CanLII 8644 (ON CA), 91 D.L.R. (4th) 767 (S.C.C.). …

My review of the case law provided establishes that these are the generally recognized “exceptional” circumstances that the principles of natural justice require that notice and potentially a right to be heard apply.

9In this case, none of these exceptional circumstances are present. The Coalition asserts that it has a “distinct legal interest that is directly and necessarily affected by the outcome of these proceedings.” With respect, how the interests of the three Court Reporters it represents are “distinct” from the interests of any other Court Reporter is not clear. All of the Court Reporters have a substantial and direct interest in the outcome of these proceedings. The preparation and certification of transcripts is a very significant part of their job and compensation. But there is no indication how their interest is different from the interest of any other Court Reporter, all of whom are represented by OPSEU.

10There is nothing in the record to indicate the three Coalition members’ views on the remedial issues and/or if they differ from OPSEU’s views. But even if they did differ, that would not be sufficient to provide them standing to assert those views. Having a different approach or view than the Union does not result in standing, even though the individual will clearly be affected by the decision. In Re Toronto Hospital, supra, the views of individuals who might be included in the bargaining unit if the Union were successful were deemed irrelevant to the legal issues before the board. The same conclusion was reached in Re Thunder Bay Regional Hospital, supra at p. 111, and Re Royal Victoria Hospital and O.N.A.(1993), 30 C.L.A.S. 355, 1992 CLB 13190 (Starkman).

11In Re OPSEU (Ross) and Ontario (Ministry of Municipal Affairs and Housing) (2009), GSB No. 1981-0407 (Gray), a grievor sought standing to bring forward a number of remedial issues from two decisions that had been issued in 1983 – an astonishing twenty-six years earlier. The Board did not allow it, stating at par. 14 that “a grievor does not have the right to participate as a party in the arbitration of his or her grievance, either in substitution for or addition to the union, merely because the dispute concerns the grievor’s claim that his or her rights under the collective agreement have been violated, and … granting such standing would be inconsistent with the union’s rights as exclusive bargaining agent.” Further, the Board concluded at par. 33 that “the possibility that the union may present the grievance in a manner different from what the grievor would prefer” was irrelevant. The individual’s recourse, if appropriate, rests in the Union’s duty of fair representation – not in being granted standing before the GSB. Vice-Chair Gray concluded at par. 30: “[T]he existence of a dispute between the Union and grievor over the scope of and presentation of the grievance is a matter for the appropriate labour relations board and not for the arbitrator.”

12I recognize that the Coalition Court Reporters here are not “grievors” in the sense of their having filed a grievance in this matter, as in Re OPSEU (Ross), supra. But the Union filed a policy grievance on behalf of the entire bargaining unit in this case. That policy grievance puts them in a similar position to that of a grievor and, in this case, similar considerations apply.

13The Board in OPSEU (Ross), supra, relied on the decision of the Supreme Court of Canada in Noel v. Societe d’energie de la Bai James 2001 SCC 39, [2001] 2 S.C.R. 207. In that case, a grievor had his discharge grievance taken to arbitration by the Union but was unsuccessful and the grievance was dismissed. The Union then refused the grievor’s request to seek judicial review of the arbitrator’s award and the grievor sought leave to appeal it. The courts ruled that the grievor did not have the requisite interest to appeal as he was not a party to the arbitration. The Supreme Court agreed, based largely on the principle of exclusive representation. The Court stated that employees in a bargaining unit are bound by a collective agreement and have to abide by it, “[h]owever reluctant the members of a dissenting or minority group of employees may be…” (par. 44) The Court continued at par. 45:

In administering collective agreements, the same rule will apply to the processing and disposition of grievances. Administering the collective agreement is one of the union’s essential roles, and in this it acts as the employer’s mandatory interlocutory… [T]he rule is that the grievance and arbitration process is controlled by the union, to which that control belongs [citation omitted]. The union’s power to control the process includes the power to settle cases or bring cases to a conclusion in the course of the arbitration process, or to work out a solution with the employer, subject to compliance with the parameters of the legal duty of representation.

14A union is often required to make difficult and hard choices in regard to both collective bargaining and arbitration. The Supreme Court of Canada recognized this basic fact in Noel, supra at par. 55:

The concurrent interests of other employees in the bargaining unit is an important factor is assessing the union’s conduct. This element reflects the collective nature of labour relations, which include the administration of the collective agreement. The interests of the unit as a whole may justify conduct on the part of the union that is otherwise detrimental to certain specific employees. A union may decide to make concessions or to develop a policy for the administration of the agreement in order not to adversely affect other employees, or to maintain good relations with the employer with a view to future negotiations.

As Vice-Chair Gray recognized in Re OPSEU(Ross), supra at par. 33, “[d]isputes between the Union and bargaining unit employees it represents about whether and how their grievances should be advanced are less rare than one might hope.”

15An affected employee or group of employees may not like the decisions made by the Union – a decision to proceed with a grievance or a decision on issues of remedy – but that does not give a member of the bargaining unit a “distinct legal interest” which justifies standing.

16The ramifications of a contrary approach were set out by the arbitrator in Re Royal Victoria Hospital and O.N.A. (1993) 30 C.L.A.S. 355, 1993 CLB 13190 at par. 23:

If the rights of individual employees who are directly or indirectly affected by the outcome of arbitration proceedings were granted standing in all cases where their individual rights were affected, the number of potentially affected employees would be quite large, arbitration hearings would become lengthy and more expensive, and employees would come to feel some obligation to be separately represented. This scenario would undermine the scheme of labour relations in the province of Ontario which grants certified bargaining agents, who enjoy majority support, the right to represent all employees in the bargaining unit and which makes the certified bargaining agent and the employer the parties to disputes concerning the interpretation of the collective agreement.

17The same conclusion was reached in Re Queen Elizabeth Hospital and CUPE, Local 1156 (1988), 1988 CanLII 9145 (ON LA), 2 L.A.C. (4th) 281 (Craven). Acceptance of the Coalition’s motion to intervene would, in my view, effectively allow a member of a bargaining unit to intervene whenever they disagreed with the position of the Union and wished to present a different position.

18The Coalition asserts that the Board has recognized that “where a prospective remedy to a grievance would directly affect an existing contractual relationship to which a third party is bound, including employment relationships, fairness and natural justice dictate that third-party standing should be granted. In support it cites to Re CUPE 1750 (Policy Grievance) and Workers’ Compensation Board (1995), GSB No. 1029 (Kaufman) and Re Fanshaw College and OPSEU (1991), 1991 CanLII 13424 (ON LA), 19 L.A.C. (4th) 162 (Brent).

19It is true that in Re CUPE 1750, supra, the Board permitted employees to intervene when their inclusion in the bargaining unit was put into issue through a grievance. In Re Fanshawe, supra, similarly, employees potentially included in the bargaining unit were allowed to intervene, as was their employer. These cases, in my view, are not particularly relevant because the Court Reporters are already represented by OPSEU. Their “status” or inclusion in the bargaining unit is not in question.

20What the Board has not held, however, is that the existence of a third-party contract gives rise to standing – even when that contractual relationship may be significantly impacted by the arbitration. Re OPSEU (Union Grievance) and Ontario (Ministry of Government Services)(2006), GSB No. 2002-2441 (Petryshen); Re OPSEU (Union Grievance) and Ontario (Ministry of Health & Long-Term Care) (2001), GSB No. 1495/00 (Brown).

21In this regard, the Coalition asserts that despite the decision in this matter that the preparation and certification of transcripts is bargaining unit work over which OPSEU has representation rights, the Court Reporters have continued to function as independent contractors when performing transcript work and “the parties have not yet reached an agreement that would activate this right.” It asserts that the Court Reporters “current work-related interests are represented by OPSEU only in respect of their in-court duties.” It then states at par. 15:

In the instant proceedings, there is no doubt that Coalition members’ interests are uniquely impacted by the remedial outcome, which will fundamentally re-structure Court Reporters’ existing contractual and employment relationships. While the parties have preserved the status quo, these distinct interests have survived intact and are no less worthy of the Board’s protection at this stage of the proceedings that they were prior to its determination on the merits.

It continues at par. 19: “Since OPSEU’s representational capacity in respect of Coalition members’ transcription work exists solely on a prospective basis, it would be a patently unfair result if the finding of the Board in Hunt were to give rise to a situation in which Court Reporters are pre-emptively silenced by membership in a collective from which they have yet to derive any tangible benefits….”

22With respect, this argument misconstrues the earlier decision in this matter. In that decision, the Board rejected the Employer’s argument that Court Reporters were independent contractors in relation to transcription preparation and certification. It was determined that transcription work was the work of Court Reporters in the bargaining unit, represented by OPSEU. The lack of any agreement between the parties following the decision does not mean that the Court Reporters were, or continue to be, independent contractors. The decision held that OPSEU does not just represent Court Reporters for their in-court work, but for the preparation and certification of transcripts as well. The Coalition may be correct that as a practical matter, things have continued as in the past. But as a legal matter, after the Board’s decision of July 2006, it can no longer be asserted that the Court Reporters are independent contractors in relation to transcript work. Further, OPSEU’s representational rights are not prospective only; they are retroactive to the grievances.

23The Coalition also asserts that standing is appropriate because its members have no other recourse available to protect their interests in the proceedings. OPSEU vigorously disputes this, and suggests that it welcomes the views of its members internally, and if the members do not agree with the Union’s approach, they have a remedy through a duty of fair representation claim with the Ontario Labour Relations Board. This was the conclusion of the Board in Re OPSEU (Ross), supra, and Re Ontario and OPSEU (Therrien) (2008), 2008 CanLII 32795 (ON GSB), 173 L.A.C. (4th) 193 (Lynk), as quoted in Re OPSEU (Ross), supra at par. 17. As stated by Vice-Chair Lynk: “For dissatisfied union members, the law provides a check against sloppy, indifferent, discriminatory or bad faith behaviour by unions in their grievance determinations through the fair representation duty in labour law and through human rights statutory obligations.”

24The Coalition also asserts that its members’ participation in this proceeding will be of benefit to the parties’ labour relations and is in the public interest. It asserts that its members have significant and unique expertise which will be of benefit to the hearing process.

25I have no doubt that the Coalition Court Reporters have a wealth of experience and expertise, but it is not apparent how they may contribute in a manner that differs from any other court reporter that the Union could call as a witness. It is not apparent how their participation would aid the process.

26Finally, inclusion of the Coalition as a party may further delay the resolution of these issues. Although I agree with counsel for the Coalition that after the passage of so many years without action, the need for urgency, particularly as claimed by the Ministry, seems disingenuous, there is still a risk that granting standing here may cause delay. The potential for delay does not come predominantly from the participation of the Coalition itself, but from the fact that, if allowed to intervene, many other groups of Court Reporters or individual Court Reporters could equally seek and be entitled to standing. Although counsel for the Coalition suggested that the Board could easily administratively handle that situation, I am not so sure of that.

27In light of these conclusions, I need not address the Employer’s contention that the Coalition waived any right it may have had to intervene in this matter by waiting until the remedial stage to seek to intervene.

Conclusion

28For all of the above-stated reasons, the Coalition motion to intervene is denied.

Dated at Toronto this 21st day of October 2009.