Luis Lopez v. Canadian Union of Public Employees, 1989 CanLII 3472

[1989] OLRB Rep. May 464

1689-88-U Luis Lopez, Complainant v. Canadian Union of Public Employees, Respondent

BEFORE: S. A. Tacon, Vice-Chair.

APPEARANCES: Luis Lopez on his own behalf; Brian Sheehan and Jack White for the respondent.

DECISION OF THE BOARD; May 1, 1989

1. The name of the respondent is amended to read: "Canadian Union of Public Employees".

2. This is a complaint alleging violation of section 68 of the Labour Relations Act in the respondent trade union's decision not to represent the complainant before the Workers' Compen­sation Appeals Tribunal (WCAT) with respect to his claim. The union did represent the complain­ant at the Workers' Compensation Board (WCB) hearing. The complainant wishes to initiate legal proceedings in the courts, as well, seeking to challenge the WCB decision on the ground that the WCB violated the complainant's rights under the Canadian Charter of Rights and Freedoms. The relief sought by the complainant in the section 68 complaint consists of a declaration that he has the right to be represented by the union with respect to his workers' compensation case wherever this is dealt with in legal proceedings and, specifically, that the Board direct that the union finance the complainant's court challenge with respect to the workers' compensation case raising the Charter issue, i.e.,that the union pay the costs of a lawyer selected by the complainant.

3. The complainant appeared without legal counsel. The Board indicated that, while it is not necessary to be so represented and the Board not infrequently hears complaints wherein one or both parties appear on their own behalf, Board hearings are legal proceedings which, while not conducted as formally as in the courts, do determine questions of liability in the context of eviden­tiary and jurisprudential principles. In this instance, the Board described the hearing process as consisting of two parts: the evidentiary portion wherein the parties must place before the Board, through witnesses or documents, evidence from which the Board may make its findings of fact; and, then, the argument, wherein each party has the opportunity to comment on the evidence, to tell the Board what legal conclusion each feels can be drawn from the evidence. The Board also stated that the Board could explain its procedure but could not advise a party.

4. A translator was provided. In accordance with the complainant's preference, all state­ments in English were translated into Spanish, but the complainant stated he would try to reply in English unless he felt he could not adequately do so, in which case he would speak in Spanish and his statements would be translated into English. The Board noted that the translator could not advise the complainant but was merely to translate statements from English to Spanish and vice versa. The Board also directed the translator, before the complainant was called upon for submis­sions on the preliminary motions (see infra), to translate specific passages referred to in the case law cited by respondent counsel and, as well, to translate any other passages in those cases upon the complainant's request.

5. Counsel for the respondent raised three preliminary motions seeking dismissal of the complaint without a hearing on the merits. The Board explained to the complainant that each party would have an opportunity to make submissions with respect to the preliminary motions. Those submissions are next briefly set out.

6. Respondent's counsel stated that, while the union sympathized with the complainant's circumstances, the union had fulfilled its obligation under section 68 of the Act. Counsel noted the complaint, as filed, was somewhat difficult to comprehend but appeared to focus on two areas, namely, that the union was not taking action with respect to the violation (admitted by the WCB) of section 77 of the Workers' Compensation Act (the WCA) in disclosing medical records, and that the union did not provide a lawyer to the complainant at the WCAT hearing or otherwise repre­sent him at that hearing. The three preliminary motions raised by the respondent concerned: the jurisdiction of the Board to hear the complaint; whether the complaint disclosed a prima facie case; and the remedy. With respect to jurisdiction, counsel submitted that the section 68 duty exists solely with respect to the employee's relationship with the employer and is restricted to collective bargaining rights. In the instant case, the complainant had been terminated from his employment with the Toronto General Hospital whereas the representation sought as relief in these proceed­ings was vis-a-vis the WCAT. Counsel argued that such representation fell outside the scope of sec­tion 68 notwithstanding that there may be "employment" consequences. With respect to the sec­ond preliminary motion, counsel argued that the complaint, as filed, did not disclose in what way the union violated its duty of fair representation and, so, did not disclose a prima facie case. In this regard, counsel stressed that there is no positive duty on a trade union to provide counsel to the complainant in order to challenge the release of medical documents by the WCB contrary to sec­tion 77 of the WCA or in order to argue these (and other) points on the complainant's behalf at the WCAT. Finally, as regards remedy, counsel contended that the Board could not properly direct the relief requested, i.e., that the union provide counsel to the complainant in connection with the WCAT proceedings or that the union initiate proceedings in the courts challenging the release of medical records by the WCB. It was argued the remedy was too remote from an appropriate exer­cise of the Board's remedial authority under section 68 of the Act as no outcome of the proceed­ings at the WCAT or in the courts would result in the return of the complainant to the bargaining unit because neither the courts nor the WCAT had the authority to direct reinstatement. Cases cited in support included: Conestoga College of Applied Arts & Technology, [1983] OLRB Rep. June 882; Cryovac, [1983] OLRB Rep. June 886; General Motors of Canada Limited, [1982] OLRB Rep. Feb. 181; Betty Lavoie, [1981] OLRB Rep. Aug. 1098; Registered Psychiatric Nurses' Association of British Columbia, [1980] 1 Can. LRBR 441.

7. The complainant was afforded full opportunity to make submissions on the preliminary motions. The complainant reviewed the complaint, referring to and quoting from the material filed by him. He distinguished the cases cited by respondent's counsel, asserting each case was different and whether the Board had jurisdiction should be decided solely with respect to this complaint itself. The complainant stated he had no complaint about the union representation at the WCB stage but submitted the union, having represented him before the WCB, was obliged to continue that representation at the WCAT and to pursue the apparent violation by the WCB of section 77 of the WCA. Indeed, he argued he was still entitled to be represented by the union before the WCB with respect to a new "psychogenic" pain claim he wished to raise. The complainant submitted that he was represented by the union while he was a bargaining unit employee at the Toronto General Hospital (where he last worked in December 1985) and, thus, should be represented by the union at the WCAT. In effect, the complainant sought a declaration that the union had to represent him before the WCB in connection with this "psychogenic pain" complaint he wished to pursue as well as in representation at the WCAT and in the courts.

8. Counsel for the respondent stressed that the WCAT hearing had already taken place and the Board had no authority to direct a new hearing. Counsel again emphasized that there was no factual basis in the complaint on which to ground an assertion that the union had been arbitrary or discriminatory or had acted in bad faith when it decided not to represent the complaint at the

WCAT.

9. The Board stated at the hearing that its decision on the preliminary motions was being reserved. The Board explained to the complainant that, if any of the preliminary objections were upheld, the complaint would be dismissed without a hearing on the merits. If the complaint was not dismissed on any of the preliminary grounds, new dates would be set for hearing of the merits. It is useful to note one other matter at this point. At the commencement of the hearing, the Board asked if there were any preliminary matters. Only the respondent's counsel responded, although the complainant did request confirmation that a witness he had summonsed to testify on his behalf was present. [The individual was in attendance.] In his submissions on the preliminary motions, the complainant stated he was not represented at the Board hearing because he had filed a written request seeking postponement of the case. The Board informed the complainant that the Board's practice was not to grant adjournments except on consent of both parties or in exceptional circum­stances which would not include scheduling a hearing for the convenience of counsel to one of the parties where notice of the hearing was given and an opportunity to retain counsel afforded. In the instant case, the union had not consented to the adjournment request by the complainant. More­over, the Board pointed out that the complainant had not raised this issue before the Board until the conclusion of his submissions on the preliminary motions. In response, the complainant con­firmed that he had not requested the adjournment because his counsel could not attend today's hearing, but because he could not afford a lawyer and wished to delay matters until January 1989. However, there was no suggestion that the complainant would be able to afford counsel at that point or had taken steps to obtain legal aid. In essence, the complainant was seeking an unlimited delay in hearing a complaint he filed on October 13, 1988 and which had been scheduled for hear­ing on December 6, 1988.

10. The factual context relevant for purposes of the preliminary objections is undisputed and may be succinctly stated. The complainant was terminated from his employment at the Toronto General Hospital in 1985. Prior to his termination, the complainant was an employee in the bargaining unit represented by the respondent. The trade union represented the complainant before the WCB. The complainant wished to appeal the WCB decision, in part, to the WCAT, to pursue an apparent breach by the WCB of section 77 of the WCA in releasing medical documents and to be represented by the union in those processes. The complainant asserts the section 77 issue involves a violation of his rights under the Charter. It appears the complainant also seeks a Board order directing the union represent him at another WCB hearing dealing with a "psychogenic pain" complaint he wished to file.

11. The issue squarely raised in these proceedings is the ambit of the obligation imposed by section 68 of the Act. Is the trade union obliged to represent bargaining unit employees in connec­tion with WCAT proceedings in the sense that a specific decision not to so represent the complain­ant in the instant case is subject to scrutiny by the Board to ensure that that decision was not arbi­trary, discriminatory or in bad faith? Further, is it relevant to the analysis that the union did represent the complainant before the WCB?

12. It is appropriate to first reflect on the history and purpose of section 68 of the Act which reads:

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.

While the section is couched in broad terms ("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"), the Board regards the duty of fair representation as restricted so that the extent of the duty is coextensive with the extent of the union's authority as exclusive bargaining agent. The duty of fair representa­tion was enacted as a counterweight to the restrictions on individual employee rights inherent in the creation of a collective bargaining regime in which the bargaining agent was granted exclusive rights to bargain on behalf of all employees in the bargaining unit, whether or not union members. The duty of fair representation serves to protect the individual from decisions of the bargaining agent which could be characterized as arbitrary, discriminatory or in bad faith. In effect, given that the trade union would likely be more responsive to the wishes of the majority, the individual was afforded some protection against the "tyranny of the majority" since the advent of a collective bar­gaining regime had, for all intents and purposes, eliminated the individual's common law right to negotiate an individual contract of employment. Thus, the context in which the section 68 duty arises and its purpose constitute the rationale for defining the ambit of the trade union's statutory obligation to fairly represent the employees in the bargaining unit.

13. In elaborating on the Board's conclusion, it is useful to briefly sketch the American jurisprudence dealing with the duty of fair representation which arises in a judicial context in that jurisdiction but which was influential in the adoption here of a statutory duty of fairness. The duty developed through a series of cases including Steele v. Louisville & National Railroad, 15 LRRM 708 (1944); Tunstall v. Locomotive Firemen, 15 LRRM 715 (1944); Wallace Corp. v. NLRB, 15 LRRM 697 (1944); Humphrey v. Moore, 55 LRRM 2031 (1964); Ford Motor Co., v. Huffman, 31 LRRM 2548 (1953). The far-reaching decision in Vaca v. Sipes, 64 LRRM 2369 (1967) firmly established the duty of fair representation as an obligation imposed on an exclusive bargaining agent with respect to representation of employees in the bargaining unit both in collective bargain­ing and in the enforcement of a collective agreement. While the focus of the jurisprudence prior to and since Vaca v. Sipes was on the quality of representation and the appropriate standard for eval­uation of the representation afforded to an individual bargaining unit member, a common theme in the cases links the issue of the duty of fair representation to the employer's conduct in that the remedy for breach may well run to both the union and the employer.

14. A few cases have commented more directly on the ambit of the duty rather than solely on its content. In Hines v. Anchor Motor Freight, Inc., 91 LRRM 2481 (1976), Mr. Justice White, for the U. S. Supreme Court, stated (at 2484):

Because "[t]he collective bargaining system as encouraged by Congress and administered by the NLRB of necessity subordinates the interests of the individual employee to the collective inter­ests of all employees in a bargaining unit," Vaca v. Sipes, 386 U.S. 171, 182, 64 LRRM 2369 (1967), the controlling statutes have long been interpreted as imposing upon the bargaining agent a responsibility equal in scope to its authority, '~the responsibility and duty of fair repre­sentation" Humphrey v. Moore, supra, at 342, 55 LRRM at 2034.

The self-limiting reach of the duty was expressed thus in Freeman v. Teamsters, Local 135, 117

LRRM 2873 (C.A. 7, 1984) at 2875:

A union's statutory duty of fair representation is coextensive with its authority under s 9(a) of the National Labour Relations Act, 29 U.S.C. s 159(a), to act as the exclusive representative for the members of the collective bargaining unit. Schneider Moving & Storage, Co. v. Robbins, 104 S.Ct. 1844, 1851 n.22, 101 LRRM 2365; International Brotherhood of Electrical Workers v. Foust, 442 U.S. 42, 46 n.8, 101 LRRM 2365; Kolinske v. Lubbers, 712 F.2d 471, 481, 113 LRRM 2957 (D.C. Cir. 1983). The scope of the duty of fair representation, however, extends no further. If a union does not serve as the exclusive agent for the members of the bargaining unit with respect to a particular matter, there is no corresponding duty of fair representation. Dycus v. NLRB, 615 F.2d 820, 827, 103 LRRM 2686 (9th Cir. 1980); Kuhn v. National Ass'n of Letter Carriers, Branch 5, 528 F.2d 767, 770, 91 LRRM 2177 (8th Cir. 1976). "[Al union ... can be held to represent employees unfairly only in regard to those matters as to which it represents them at all - namely, 'rates of pay, wages, hours ... or other conditions of employment."' International Brotherhood of Teamsters, Local No. 310 v. NLRB, 587 F. 2d 1176, 1183, 98 LRRM 3186 (D.C. Cir. 1978) (quoting 29 U.S.C. s159(a)).

The rationale that the union's obligation to represent is necessarily limited to the arena circum­scribed by the collective agreement for the reason that that arena defines the scope of the union's exclusive authority to act for its members is echoed in other Court of Appeals decisions including:

Bass v. Boilermakers, Local 582, 105 LRRM 3258 (1980); Smith v. Local No. 25, Sheet Metal Workers, 87 LRRM 2211 (1974); Kolinske v. Lubbers, 113 LRRM 2966 (1983); International Brotherhood of Teamsters, Local No. 310 v. NLRB, 98 LRRM 3186 (1978); Price v. The Automo­bile Workers, 122 LRRM 3130 (C.A. 2, 1986).

15. These just-noted cases have arisen in the context of the courts' refusal to extend the duty to internal union affairs, subject to circumstances wherein the internal policies and practices have a substantial impact on members' rights relating to the negotiation and administration of a collective agreement: Retana v. Elevator Operators Union, 79 LRRM 2272 (1972). Less frequent are cases involving the attempted application of the duty of fair representation to obligate the union in respect to matters external to the union and the collective bargaining relationship: Hawkins v. Babcock & Wilcox Co., 105 LRRM 3438 (1980); Eason v. Frontier Airlines, 106 LRRM 2268 (C.A. 10, 1981). The latter case, Eason v. Frontier Airlines, concerned an allegation that the union had breached its duty of fair representation by refusing to process a grievance, arising from a workplace injury, against the employer. The Colorado workers' compensation legis­lation precluded an action against the employer. For this reason, the court stated the grievance would accomplish nothing and commented that the:

plaintiff may not convert a claim for personal injury in the course of employment to a claim against the union for unfair representation. We agree with the trial court that it would be anom­alous to expose the Union to a claim for that inquiry when Colorado law provides an exclusive remedy for the injury.

This conclusion assumes that the duty of fair representation is confined to the collective bargaining process and recognizes that the absence of a remedy beyond that provided by workers' compensa­tion legislation renders the representation issue moot.

16. Thus, the American jurisprudence has recognized, generally by implication but on occa­sion expressly, that the duty of fair representation reaches only as far as the scope of the union's role as exclusive bargaining agent in the context of collective bargaining matters.

17. The Board's elaboration of the content of the duty of fair representation has drawn on the American jurisprudence. The decisions have focused on the quality of representation afforded the individual bargaining unit member but implicit in the leading decisions is the confinement of the duty to matters arising out of the collective agreement and/or the collective bargaining relation­ship with the employer, that is, the areas wherein the Labour Relations Act confers exclusive authority on the union: Donald G. Gebbie, [1973] OLRB Rep. Oct. 519; Walter Princesdomu, [1975] OLRB Rep. May 444; Myrna Wood, [1981] OLRB Rep. Feb. 137; Imperial Tobacco Prod­ucts (Ontario) Limited, [1974] OLRB Rep. July 418.

18. The ambit of the section 68 duty rather than its content has been briefly addressed in the context of complaints concerned with internal union affairs. The Board has consistently refused to extend the section 68 duty into matters properly characterized as internal union affairs because representational rights with respect to an employer are not involved: Arthur Joseph Roberts, [1974] OLRB Rep. Mar. 169; Mario Moreira, [1980] OLRB Rep. July 1039; Frank Manoni, [1981] OLRB Rep. Dec. 1775; Sylvia Colalillo, [1982] OLRB Rep. July 1066; Angelo Moro, [1983] OLRB Rep. Aug. 1354; Michael Connolly, [1987] OLRB Rep. Feb. 193; Ronald Lewzoniuk, [1984] OLRB Rep. Jan. 48; except where the union's conduct pursuant to its usual practice has a direct impact on the right of an employee to grieve (R. CA. Limited, Prescott, [1974] OLRB Rep. Jan. 60). It is useful to set out the following passage from Sylvia Colalillo, supra, which briefly reviews the Board's reasoning in this area:

3.... The dispute was solely between the complainant and her trade union, and this is the pri­mary problem which the complainant is faced with in these proceedings. The real issue between the complainant and the respondent is the complainant's eligibility to run for the Union position of steward, and the employer understandably has taken no position on that matter. The duty of fair representation in section 68 on the other hand, is concerned only with the representation by a trade union of an employee vis-a-vis his or her employer. See Ford Motor Company, [1973] OLRB Rep. Oct. 519; Myrna Wood, [1981] OLRB Rep. Feb. 137; Frank Manoni, [1981] OLRB Rep. Dec. 1775; Softley Cartage, Board File No. 1347-81-U, released May 26, 1982. It is only because the employee's normal rights to deal directly with the employer are circumscribed by collective-bargaining law that the duty of fair representation arises. As the Board stated in Frank Manoni , supra, at paragraph 11:

….The arbitrary, discriminatory or bad faith conduct, directed at such employees and regulated by the section must be such as to produce actual, and not merely specula­tive prejudice to those employees at the hands of their employer.

As the Board also noted in Mario Moreira, [1980] OLRB Rep. July 1039:

. . . this Board has no specific authority under the Act to undertake any sort of watch­dog role over a union's internal processes under its constitution and by-laws.

And also in Arthur Joseph Roberts, [1984] OLRB Rep. March 169 the Board stated:

8... .the duty of fair representation owed by a trade union to an employee under sec­tion 60 [now section 68] of the Act does not contemplate controlling the manner in which a trade union conducts its affairs with its elected officials whether they be on the payroll or not. The case law indicates that the propriety of a trade union's behav­iour vis a vis its members is governed by its constitution and by-laws and the proce­dural remedies provided therein. And recourse must be made by an aggrieved mem­ber to the governing rules provided under the constitution for relief. The safeguard provided by the controlling supervision of the courts are his assurance that these rules will be implemented fairly and impartially. (See White v. Kuzych (1951), 1951 CanLII 373 (UK JCPC), A.C. 585; Lee v. Showmans Guild (1952), All. E. R. 1175; Orchard v. Tunney (1957), 1957 CanLII 57 (SCC), 5CR. 436; 8 D.L.R. (2d) 273; Jurak et al v. Cunningham (No. 1) (1959), 1959 CanLII 340 (BC SC), 20 D.L.R. (2d) 377; Jurak et al v. Cunningham (No. 2) (1959), 1959 CanLII 341 (BC SC), 20 D.L.R. (2d) 381; Gee v. Freeman et al (1958), 1958 CanLII 258 (BC SC), 26 W.W.R. 546).

4. The only aspect of the present complaint touching upon the employment relationship as such is the fact that the collective agreement does provide a kind of super-seniority for area stewards in the event of lay-off and the complainant points out that had she been permitted to run for election, she might today be still employed in the plant in the place of the incumbent area stew­ard. This, however, is obviously not the basic reason why stewards are provided for, and the complainant does not put this consideration forward as a significant element of motivation either on her part, in seeking the nomination, or, more importantly, of the respondent in deny­ing her that status. The matter of super-seniority was, the complainant concedes, not even raised with the respondent at any time prior to the filing of this complainant. It is, in other words, an issue wholly incidental to the real dispute which arose between the parties, being the matter of eligibility for internal trade union elections, and is not sufficient to clothe the Board with jurisdiction.

5. Beyond the cases dealing with internal union affairs, few decisions expressly consider the reach of the duty of fair representation. In Percy Woods, [1972] OLRB Rep. Apr. 353, the complainant alleged a breach of the section 68 duty, inter alia, in the union's refusal to pursue a further appeal of a WCB claim wherein the union had represented the complainant at the earlier stages in the process. The Board, assumed without deciding that the duty of fair representation extended to such instances and dismissed this aspect of the complaint on the basis that the union's conduct was not arbitrary, discriminatory or in bad faith. In James Richard Hughes, [1986] OLRB Rep. Jan. 103, the Board commented that "it is not at all clear that the duty would extend to ESB [Employment Standard Branch] meetings" (at paragraph 26) but did not have to resolve that issue in dismissing the complaint. The decision in Betty Lavoie, supra, wherein the Board refused to apply the section 68 duty to the context of civil proceedings merits further comment. In the Board's view, the union had neither the right nor the obligation to represent or fund an employee in collateral civil proceedings related to the termination of the complainant's employment:

6. It was suggested in particular, that the union should provide the funds, and absorb the costs, if the grievor commences a civil action in the Courts against her former employer. There are several difficulties with this proposition. In the first place, as we have already noted, there is no evidence that this suggestion was ever made to the union, and it is a little difficult to find that the union has broken the law by refusing to volunteer. More fundamentally, a civil action involves the assertion of common law rights which are personal to the grievor, and entirely remote from the sphere of collective bargaining in which the union operates and to which sec­tion 60 was intended to apply. Within the collective bargaining realm, the trade union is, by stat­ute, the employee's exclusive bargaining agent, and an employee is unable to bargain on his own behalf or even act unilaterally to assert his rights under a collective agreement. In this context, it is easy to understand why the Legislature would impose upon the union a statutory obligation to act fairly. But the trade union has no right to bring a civil action on behalf of an employee, and could not be a party to that proceeding. A civil action has nothing to do with the employee's col­lective bargaining rights either directly or indirectly. Since a common law Court (unlike an arbi­trator) cannot order the employee reinstated, the grievor's connection with her employer, the bargaining unit, and her union has now been permanently severed. Her sole remedy is in terms of damages if she is able to prove, contrary to her employer's assertion, that her absenteeism did not justify her termination. It is one thing to assert that a union must act fairly within the con­text of collective bargaining; it is quite another to suggest that the union has an obligation in respect of the personal, civil or common law rights of a former bargaining unit employee. We do not think that section 60 was ever intended to extend that far or that the union could be breach­ing its obligation as bargaining agent by failing to fund a collateral civil action.

See also: Registered Psychiatric Nurses' Association of British Columbia, supra, wherein the B.C. Board, in part, held that the union was not required to represent bargaining unit employees at pro­ceedings such as inquests which are outside the realm of the administration of collective agree­ments.

20. The Board regards the analysis in Betty Lavoie, supra, as applicable to other matters outside the reach of the union's statutory exclusivity as bargaining agent, such as the instant case involving representation at WCB and the WCAT proceedings. Delimiting the scope of the duty of fair representation to areas encompassed by the negotiation and administration of the collective agreement is grounded on the historical context in which the duty arose and the purpose and con­text of the duty as expressed in the Board's jurisprudence. The development of the American case law since Vaca v. Sipes, supra, indicates the thrust of the cases is to confine the duty of fair repre­sentation to the arena of collective bargaining and collective agreement administration. The Board case law, while not expressly imposing such a limitation, implicitly acknowledges those parameters as well.

21. The issue of the ambit of the union's obligation under section 68 is squarely raised in the instant case. The Board concludes, for the reasons already expressed, that the duty of fair repre­sentation must be commensurate with the reach of the union's statutory authority to represent the employees in the bargaining unit. Although, in a sense, the WCB intimately affects the relation­ship of employer and employee, the relevant statute, the Workers' Compensation Act, R.S.O. 1980, c. 539 (as am) effectively removes the adjustment of compensation for work-related injuries from the collective agreement arena by interposing an administrative agency between the worker and the employer. All claims for compensation are to be heard and determined by the WCB and, once compensation is awarded, it is paid out of an accident fund in accordance with a pre-deter­mined scale. The trade union has no statutory role in the scheme. Hence, the union's representa­tional duty in section 68 of the Labour Relations Act as exclusive bargaining agent is unrelated to the statutory scheme for workers' compensation and cannot apply to such claims: see Eason v. Frontier Airlines, supra, to the same effect. Accordingly, the Board finds that the union's decision not to represent the complainant at the WCAT proceeding falls outside the scope of the section 68 duty. Its decision in that regard may not scrutinized by the Board by virtue of the duty of fair rep­resentation.

22. The fact that the WCB process has an "employment" aspect is insufficient to clothe the Board with jurisdiction under section 68. This conclusion echoes the reasoning in Sylvia Colalillo, supra, at paragraph 4 of that decision (set out at paragraph 18 above). The B.C. Board's comment in Registered Psychiatric Nurses' Association, supra, at 459 is particularly apposite in this regard:

The next branch of Morgan's complaint is the Union's failure to represent him at the coroner's inquest. The Association has argued that they were under no further duty to Morgan at this point in time since he had resigned and was no longer a member of the bargaining unit. We can­not accept this proposition. Had Morgan been discharged and a grievance sustained on arbitra­tion, reinstatement would have restored his bargaining unit status at the time of the inquest.

Similarly, had the Association's representation of him before or throughout the Hall incident been in breach of Section 7(1), and a subsequent arbitration resulted in Morgan's reinstatement, the same result would have occurred. Notwithstanding this, however, we are of the opinion that the Association had no obligation under the Code to represent Morgan at the inquest.

The inquest was not a proceeding under the collective agreement; it was an outside proceeding. Where Section 7(1) speaks to "representation", it must be taken to mean representation in the negotiation or administration of collective agreements. Disciplinary matters and grievances come within the purview of the duty. Inquests do not. It is not enough that the outcome of the inquest might influence Morgan's employment rights. The same could be said of criminal charges, theft from an employer for example. While Section 7(1) would require fair representa­tion of an employee discharged as a result of such a theft, it would not require the union to rep­resent him in criminal court. A union may choose to provide representation to its member at outside proceedings such as inquests or criminal proceedings arising out of incidents during strikes, but their failure to do so is not a matter which may be a breach of the duty of fair repre­sentation.

23. Given the Board's finding that the instant complaint falls outside the ambit of section 68, the complaint cannot be said to disclose a prima facie case for breach of section 68: Angelo Moro, supra; Ken Johnson, [1986] OLRB Rep. Jan. 113; Ronald Lewzoniuk, supra. The objection of the respondent on this ground is upheld as well. Quite simply, the union had no obligation, pur­suant to section 68, to represent the complainant at the WCB level or thereafter. The commence­ment of other legal proceedings seeking to challenge the WCB disclosure of the medical records on the grounds that such disclosure violated the complainant's Charter rights likewise falls outside the scope of the duty of fair representation. Indeed, to the extent those legal proceedings are to be ini­tiated in the courts, the reasoning in Betty Lavoie, supra, is directly applicable: see, too, Ronald Lewzoniuk, supra. Consequently, this aspect of the complaint fails to disclose a prima facie for breach of section 68.

24. The Board's conclusion is not affected by the fact that the union initially represented the complainant before the WCB. That is, representation which arises outside the union's role as exclusive bargaining agent cannot generate a duty to represent pursuant to the Labour Relations Act. It may be that, in another forum, the union or its officers could be compelled to continue representing the complainant (or to have initially represented him at the WCB if they had declined to do so) based on the contractual relationship between a union and its members as expressed in its constitution or arising out of its conduct: see, for example, Orchard v. Tunney (1957), 1957 CanLII 57 (SCC), 8 D.L.R. (2d) 273; Astgen v. Smith, [1969] 1 O.R. 129; Foran v. Kottmeier, [1973] 3 O.R. 102 (C.A.); and see paragraph 18 above. Whether or not an enforceable right may be established elsewhere, it is clear the union's conduct in representing the complainant at the WCB stage cannot subject a deci­sion not to do so at the WCAT level to review by the Board by virtue of section 68 of the Labour Relations Act as such an obligation would not be coextensive with the union's exclusive bargaining authority conferred by the Labour Relations Act and to which section 68 scrutiny must be limited. In other words, without statutory or inherent jurisdiction to review the contractual relationship between a union and its members, as expressed in the union's constitution and bylaws, the Board cannot enforce that relationship. Nor can the Board rely on a doctrine akin to estoppel to require the union to continue its representation as a matter of equity because of the union's conduct in ini­tially representing the complainant, when the Board lacks the jurisdiction to supervise the relation­ship between the union and its members beyond the confines of the collective agreement, its nego­tiation and administration: see Registered Psychiatric Nurses' Association, supra, in the passage cited in paragraph 22 above.

25. Having regard to the foregoing, the Board upholds the respondent's preliminary objec­tions that the Board does not have the jurisdiction to hear this complaint because the representation involved falls outside the scope of section 68 and that, accordingly, the complaint does not dis­close a prima facie case.

26. For the foregoing reasons, the complaint is hereby dismissed.