[1989] OLRB Rep. December 1251
1237-85-U Jeanne St. Pierre, Complainant v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W. Local 444 and Chrysler Canada Ltd., Respondents
BEFORE: Owen V. Gray, Vice-Chair.
DECISION OF THE BOARD; November 21, 1989
In paragraph 25 of my decision of June 6, 1986 in this complaint (reported at [1986] OLRB Rep. June 883) I said that:
In summary, the Board finds and declares that the respondent trade union acted arbitrarily in deciding to withdraw the complainant's discharge grievance, contrary to section 68 of the Labour Relations Act, and orders and directs that:
(a) The respondents forthwith submit Jeanne St. Pierre's discharge grievance to arbitration by a sole arbitrator under the applicable collective agreement, and the respondent Chrysler shall not raise any objection based on the earlier withdrawal or intervening delay;
(b) any control the respondent trade union may have over the identity of the arbitrator shall be exercised jointly by it and the complainant;
(c) the respondent trade union shall retain counsel jointly selected by it and the complainant to act in its name and at its expense to represent the complainant's interest at and in connection with the arbitration of her grievance; and
(d) in the event the grievance is upheld and the arbitrator makes an order for compensation, the respondent union shall pay the complainant the portion of that compensation referable to losses during the period between May 2, 1983, and the date on which this decision would have been released had the complainant acted promptly in filing this complaint and the complainant shall forego that portion of the award which is referable to the period from that date to the actual date of release of this decision.
The Board remains seized of this matter to resolve and dispute arising over the interpretation or implementation of these directions and orders.
Ms. St. Pierre's grievance succeeded at arbitration. A hearing was later scheduled before me to deal with an issue which arose between the complainant and respondent concerning the question identified in paragraph 25(d) of my decision. That issue was settled between the complainant and respondent on the day of that hearing, December 22, 1987.
- The Board has now received the following letter from a lawyer with the firm which represented Ms. St. Pierre before the Board in this matter:
UAW Local 444 and Jeanne St. Pierre
Board File No. 1237-85-U
Your decision in this case dated June 6, 1986, provided among other things, that Jeanne St. Pierre, ("the complainant") and the UAW Local 444 ("the Union") would retain counsel jointly at the Union's expense to represent the complainant at the arbitration of her grievance.
Your decision also provided that:
"the Board remains seized of this matter to resolve any dispute arising over the interpretation or implementation of these directions and orders"
I acted for the complainant on the arbitration hearing before Professor Ian Hunter in January of
I appeared before you on behalf of the complainant on December 22, 1987 to determine the period for which the Union was to compensate the complainant as a result of her discharge from employment.
I subsequently performed various services for Ms. St. Pierre relating to this matter until March
28, 1988.
The complainant changed solicitors to Mr. Angus MacMillan as of March 15, 1988.
I presented an account, dated April 5, 1989 to the complainant and to the Union for my services performed between April 14, 1987 and March 28, 1988.
A former account presented to the complainant and the Union dated April 14, 1987, was paid by the Union on December 4, 1987.
The Union by letter to me dated April 1, 1987 advised that it would no longer pay for legal services performed on behalf of the complainant.
I served a Notice of Solicitor and Client Assessment against the complainant and the Union on June 6, 1989 with respect to my account dated April 5, 1989.
The Union disputed the terms of the retainer as set out in your decision of June 6, 1986.
The Union argued that your decision of June 6, 1986 had determined the retainer and that the Master had no jurisdiction to look into the solicitor's account based upon your Order, and in any event, denied liability for payment of the solicitor's account on behalf of the complainant.
The Master set aside the praecipe Order of the Deputy Local Registrar of the Supreme Court of Ontario referring the solicitor's bill to an assessment officer.
I would ask that the Board reconvene strictly for the purpose of seeking directions with respect to whether or not the retainer pursuant to your Order extended to March 28, 1988 or was terminated prior to that date.
I do not wish to burden the Board with a relatively minor issue; however, the Union has taken a position that it should not be responsible to pay Ms. St. Pierre's legal bill past April 14, 1987.
In the circumstances, I consider that I have no other alternative but to ask the Board to reconvene this matter to resolve the issue of when the retainer for my services was terminated.
If you agree that the Board "remains seized of this matter" for the purpose of interpreting the Board's directions on the issue of retention of counsel for Ms. St. Pierre, would you be kind enough to ask the Registrar to arrange for a hearing date at your and the parties convenience?
I do not propose to direct that the Registrar arrange a hearing date. It does not appear that Ms. St. Pierre's former counsel has standing to raise a question about the interpretation or implementation of my decision nor, indeed, does it appear that he has raised such a question.
It is important to recognize that paragraph 25(c) of my decision did not effect a retainer or counsel. It required that the respondent trade union retain counsel. As between the trade union and the lawyer it retained, the terms of the retainer would have been established by the dealings between them. While the trade union's instructions might have been to act as my order contemplated, that retainer would have come about as a result of the giving and the accepting of those instructions by the trade union and the lawyer, respectively, and not by operation of my order. If the trade union had not retained a lawyer to act or had retained a lawyer on terms the complainant considered inconsistent with my order, she could have applied to the Board for clarification of the order or redress for the default. As they are the persons against whom and in favour of whom the order concerning the retaining and payment of counsel was made, the trade union and the complainant are, however, the only persons with a legal interest in the enforcement or clarification of my order. Ms. St. Pierre's former counsel does not purport to act for her or for the union in requesting that a hearing be scheduled for the purpose of interpreting my directions on the issue of retention of counsel. He does not, therefore, have standing to seek clarification or enforcement of my order.
As will be apparent from what I already said, I would not have thought that my decision of June 6, 1986 "had determined the retainer" as the union is said to have argued before the Master. The existence and terms of any retainer would have been determined by the dealings between the trade union and the lawyer. Ms. St. Pierre's former counsel is careful not to suggest that the union's argument was given by Master as his reason for setting aside the praecipe order of the Deputy Local Registrar. The mere fact that retainer was disputed would have been a sufficient basis for the Master's decision, having regard to the language of section 3 the Solicitors Act, R.S.O. 1980, c. 478.
When the lawyer's retainer is disputed, disputes over the non-payment of a lawyer's account are the proper subject matter of an action in the Courts. I do not propose to make the dispute referred to in the lawyer's letter the subject of a hearing before me, particularly when neither of the parties legally affected by that aspect of my order has asked that I do so.