[1981] OLRB Rep. December 1785
0900-81-M Carpenters' District Council of Toronto and Vicinity on Behalf of Locals 27, 666, 681, 1133, 1304, 1747, 1963 and 3227 and 3233, United Brotherhood of Carpenters and Joiners of America, Applicant, V. George Ryder Construction Ltd., Respondent.
BEFORE: D. E. Franks, Vice-Chairman and Board Members W. H. Wightman and M. J. Fenwick.
APPERANCES: David McKee and Torrance Ferrier for the applicant; G. Grossman, B. M. Foote and N. A. Keith for the respondent.
DECISION OF THE BOARD; December 3, 1981
- By a decision of this Board dated August 7, 1981 the Board found the respondent liable for a violation of the collective agreement between the respondent and the applicant council of trade unions. In making that decision the Board found as follows:
At the hearing in this matter the respondent admitted a violation of the collective agreement as alleged in the grievance. The respondent, however, took issue with the remedy sought by the applicant. In this regard there was again substantial agreement between the applicant and respondent as to certain facts. Thus the respondent accepted that the applicant could demonstrate that there were three or more people on the union's out-of-work list at the time which the project in question was operating. The respondent, however, took the position that such evidence was not sufficient to establish the applicant's case. The respondent's position was that as an ordinary matter of proof of the applicant's entitlement to relief, it was necessary for the applicant to call a number of members of the trade union and through oral evidence establish that during the time in question the members were not working at all. We should note at this point that the respondent does not raise any specific allegations concerning the out-of-work list kept by the trade union but simply contends that the kind of evidence required by him is necessary for the establishment of damages suffered by the applicant.
We reject the respondent's contention that such evidence is necessary for the applicant to prove its claim for damages. Indeed, the out-of-work list is what it says it is and, in the absence of specific allegations concerning that list, we see no reason why we should not take it as sufficient evidence that there were members of the applicant trade union out of work at the time in question.
For the foregoing reasons, it is clear that the respondent having admitted the violation of the collective agreement and sufficient evidence to establish the entitlement of the applicant to damages for the violation claimed in the grievance that this Board can find that the respondent has violated the collective agreement as set out in the grievance and, as a consequence, order the respondent to pay to the applicant on behalf of its members damages in the amount claimed under the grievance. Accordingly we so direct the respondent to pay.
After the Board's decision of August 7th the respondent, by letter, asked the applicant for the names of its members on whose behalf it was seeking damages in this matter.
At the second hearing in this matter, concerning quantum of damages, counsel for the applicant and the respondent agreed that there were 470 hours of work in question, but counsel for the respondent reiterated its position that the applicant union was obliged to name the members on whose behalf they were filing the present grievance. Further, the respondent's position was that such members should be obliged at the hearing on the quantum of the award to come forward and show that they have in fact suffered a loss and that they made efforts to mitigate that loss, (and thus, that any award for damages would be reduced by the amount, if any, which such members made in the course of their employment.)
In support of this contention counsel for the respondent relies upon Article 21.17 of the collective agreement which reads as follows:
21.17 Monetary settlements of a grievance involving employee(s) shall be forwarded to the Local Union or District Council for distribution to the grievor(s).
Counsel argues that such grievors must be identified. This in turn must be taken together with the statement of the law concerning damages, by the Supreme Court of Canada, in Red Deer College v. Michaels et al., 1975 CanLII 15 (SCC), [1975] 57 D.L.R. (3d) 386:
None of the three cases in this Court can be taken to settle the question of the burden of proof as it arises in a claim for damages for wrongful dismissal and as it relates to the question of mitigation. It is, of course, for a wronged plaintiff to prove his damages, and there is therefore a burden upon him to establish on a balance of probabilities what his loss is. The parameters of loss are governed by legal principle. The primary rule in breach of contract cases, that a wronged plaintiff is entitled to be put in as good a position as he would have been in if there had been proper performance by the defendant, is subject to the qualification that the defendant cannot be called upon to pay for avoidable losses which would result in an increase in the quantum of damages payable to the plaintiff. The reference in the case law to a "duty" to mitigate should be understood in this sense.
In short, a wronged plaintiff is entitled to recover damages for the losses he has suffered but the extent of those losses may depend on whether he has taken reasonable steps to avoid their unreasonable accumulation. In Payzu, Ltd. v. Saunders, [1979] 2 K.B. 581 at p. 589, Scrutton, L. J., explained the matter in this way:
Whether it be more correct to say that a plaintiff must minimize his damages, or to say that he can recover no more than he would have suffered if he had acted reasonably, because any further damages do not reasonably follow from the defendant's breach, the result is the same.
In the ordinary course of litigation respecting wrongful dismissal, a plaintiff, in offering proof of damages, would lead evidence respecting the loss he claims to have suffered by reason of the dismissal. He may have obtained other employment at a lesser or greater remuneration than before and this fact would have a bearing on his damages. He may not have obtained other employment, and the question whether he has stood idly or unreasonably by, or has tried without success to obtain other employment would be part of the case on damages. If it is the defendant's position that the plaintiff could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issue, subject to the defendant being content to allow the matter to be disposed of on the trial Judge's assessment of the plaintiffs evidence on avoidable consequences.
Counsel in the present matter then argues that the onus continues to rest with the applicant to have the grievors come forward and give evidence that they are ready, willing and able to go to work at the time in question.
We cannot accept counsel's interpretation of the application, the Red Deer College case, in the present case. The applicant and the respondent (as noted in paragraph 2 of the decision of August 7th in this matter) agreed that there were three or more members of the trade union on the out of work list. It is our view that in the absence of any evidence tendered by the respondent this ends the matter with respect to the applicant's proof of damage sufficient to establish liability on the part of the respondent in the present case. That is, that by agreeing to there being such members on the out-of-work list, the respondent at the previous hearing agreed that the applicant had a prima facie case of damages. The proposition which the Red Deer College case stands for in these circumstances would be that once a plaintiff, (i.e. the applicant) establishes a prima facie case then, if the respondent objects to the amount in question is entitled to lead evidence to show that the amount claimed includes items which 1788 could have been avoided. However, in the present case, the respondent made no such claims either in the first hearing or in the second hearing. The respondent, simply put, cannot agree to a prima facie case by the applicant for damages, and then require the applicant to strictly prove such damages. On the other hand, having made such an admission the respondent could have led evidence concerning specific members in the applicant's hiring hall.
It seems to us that the source of the confusion raised in the argument by the respondent lies precisely in the difference between this case and the cases such as the Red Deer College case which are cases for unjust dismissal. Of course, in a case of unjust dismissal one knows precisely as soon as it occurs that there has been an alleged agreement as the particular grievor's conduct in light of that knowledge has an obvious bearing on the quantum of damages and whether or not attempts have been made to mitigate those damages. The present case, however, involves a substantially different remedy. The substance of the present grievance is the breach of the collective agreement by the respondent by refusing to hire members of the applicant as required by the hiring provisions of the collective agreement. As such the applicant trade union may or may not know who would be assigned to such jobs and of course whether such members would accept in the circumstances may very well be a matter of speculation. No one knows about the breach of the collective agreement at the time in question.
The nature of the kind of remedy requested in the present case was discussed at length by the Court of Appeal in the case of Re Blouin Drywall Contractors Ltd. and United Brotherhood of Carpenters and Joiners of America, Local2486, 1975 CanLII 707 (ON CA), [1975] 57 D. L. R. (3d) 199. In that case, the Court of Appeal found that a Board of Arbitration had the jurisdiction to make a monetary award to a trade union on behalf of its members who would have benefited from a union hiring hall type of provision in a collective agreement. In this regard, the Court of Appeal said:
Having regard to the fact that this agreement confers benefits on union members, which includes the benefits of preference in hiring, benefits under the welfare and vacation pay trust funds, both of which agreements form a part of the collective agreement and presumably the persons and bodies therein referred to are to be bound by the grievance and arbitration procedures, I see no reason to limit the right to grieve as contended for. It makes good sense to me that the voice of the non-employee union member should be heard in relation to these benefits. Accordingly, in my view, the non-union member has the status to claim by way of grievance but under the provisions of the collective agreement the grievance may be carried by the union. Alternatively, the union as a party to the agreement may claim on behalf of its members the loss of these benefits and this quite independently of the member's right to grieve.
It would seem to us that that reasoning applies to Article 21. 17 in the present case at it applied to the language referring to "parties" in the Blouin Drywall case.
- The Blouin Drywall case was followed by the McKenna Brothers Ltd. and Plumbers Union, Local 527(1975), 1975 CanLII 2128 (ON LA), 10 L.A.C. (2d) 273 (Shime) With the following additional observations.
It is also apparent that there is little, if anything, that the union could do in forcing its members upon the company when it refused to hire them in order that the union could mitigate the damages that might accrue to the company. Indeed, the hiring hall practices are in themselves factors which would tend to relieve the company from any damages which might accrue. The union is constantly attempting to find work for its members and had it succeeded during the relevant periods, there would obviously have been a no damage to the company. Unfortunately, the union was not successful during the periods in question and some of its members remained out of work.
For the foregoing reasons, we are of the view that the applicant has established its entitlement to damages in the present case. If the respondent had any objections to the findings on which this was based, the respondent need not have agreed to certain facts and certainly the respondent could have called whatever evidence concerning these matters that it wanted to call. For whatever reason, the respondent chose not to call evidence.
For the foregoing reason, the Board directs that the respondent pay to the applicant on behalf of its unemployed members $6,885.50.
DECISION OF BOARD MEMBER W. H. WIGHTMAN;
While I cannot disagree that a penalty should attach to the Respondent, I am disturbed that payment is not going to specific members who might be said to have been injured. Apart from the economic disutility of paying twice for work there may be an even more serious social disutility in not having payment go to individuals in whose hands the monies would be taxable income and who, were they in receipt of unemployment insurance benefits, would be required to reimburse the public purse for those benefits.
It seems to me if our decisions cannot overcome these issues within the framework of existing legislature, then the public policy implications should be reviewed in the appropriate forum.