Dennis Leonard v. Ontario Nurses' Association, 1990 CanLII 5822

Ontario Labour Relations Board

[1990] OLRB Rep. May 575

1504-89-U Dennis Leonard, Complainant v. Ontario Nurses' Association, Respondent v. Mount Sinai Hospital, Intervener

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members W. A. Correll and K. Davies.

APPEARANCES: Dennis Leonard on his own behalf; David Nicholson, Dottye Edwards, Marie McLean, Judy McIlwain and Bill Alexander for the respondent; Nancy Eber, Beverly J. Lanigan-Gilmour and Susan A. Lewis for the intervener.

DECISION OF THE BOARD; May 15, 1990

I

1. This is the complaint of Dennis Leonard who contends that he has been dealt with by the respondent union ("ONA") contrary to sections 68 and 70 of the Labour Relations Act. Those sections read as follows:

2. 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.

3. No person, trade union or employers' organization shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of a trade union or of an employers' organization or to refrain from exercising any other rights under this Act or from performing any obligations under this Act.

4. A hearing in this matter was held in Toronto on November 6, 1989. ONA and the intervener, Mount Sinai Hospital, were both represented by counsel. The complainant appeared on his own behalf.

5. The union's Reply was not received by the Board until the business day immediately preceding the hearing date. That Reply contained various submissions, including the plea that even if the complainant's factual allegations were true, they would not support the relief requested (see infra). The union relied upon Rule 71 which provides as follows:

71.-(1) Where an application or complaint does not, in the opinion of the Board, make out a prima facie case for the remedy requested, the Board may dismiss the application or complaint without a hearing and it shall in its decision state the reason for the dismissal.

(2) The applicant or complainant may within ten days after he is served with the decision of the Board under subsection (1) request the Board to review its decision.

(3) A request for review under this section shall contain a concise statement of the facts and reasons upon which the applicant relies.

(4) Upon a request for review being filed, the Board may,

(a) direct that the application or complaint be re-opened and proceeded with by the Board in accordance with the provisions applicable thereto;

(b) direct the registrar to serve the applicant and any other person who in the opinion of the Board may be affected by the application or complaint with a notice of hearing to show cause why the application or complaint should be re-opened; or

(c) confirm its decision dismissing the application or complaint.

The union urged the Board to review each individual allegation, and conclude that none of them would establish a breach of sections 68 or 70 of the Act. The union submitted that the complaint should be dismissed in its entirety.

4. Given the late filing and the union's preliminary motion, the Board considered it appropriate to explore with the parties what facts were really in dispute. If the basic facts were not in contention it would not be necessary to formally prove them, and if particular assertions (although admitted) were not legally relevant it would be possible to limit the evidence. Accordingly, the Board went through the complainant's assertions, paragraph by paragraph, to clarify what the union did or did not agree with. The complainant was also given the opportunity to expand upon his pleadings, - bearing in mind that the validity of his grievance against the hospital is not directly in issue before us. The concern in this forum is the conduct of the respondent union.

II

5. The complainant is a registered nurse. At the time of his termination he had been employed by the hospital for a little less than a year. He worked with infants in the intensive care/neo-natal unit. This is a position of trust and responsibility.

6. The complainant's initial quarrel with the hospital arose from a scheduling and wage payment dispute. The complainant asserts that he was induced to work a particular shift as a result of "lies" by a fellow employee. He maintains that the head nurse was aware of the situation and condoned the lie. The complainant contends that he should have been given an overtime shift. The complainant demanded compensation.

7. The hospital was not sympathetic to the complainant's position and, according to Mr. Leonard, did not take his complaint seriously. The hospital told him that the "problem" was simply a clerical error, and that the issue could have been cleared up in consultation with the personnel department.

8. That explanation was not acceptable to the complainant. In his words he "rejected it out of hand" - He took the position (repeated before this Board) that he had been lied to, and that money had been stolen from him. He charged that records had been falsified, and that there had been a breach of both the Employment Standards Act and the Criminal Code of Canada. He told the hospital that because of the "manifest acts of corruption" by his fellow employees and the head nurse he should be relieved of his duties and put on paid leave of absence until the situation was resolved. He also told the hospital that he intended to report the situation to the Ontario College of Nurses.

9. The hospital has a different version of events. In its submission, it had before it a simple pay dispute that had unaccountably mushroomed into bizarre and spurious charges that there had been criminal misconduct, conspiracy, and a breach of the legislation governing health care professionals. The hospital treated this as a gross over-reaction which might be either the result of stress or symptomatic of psychiatric problems. The Hospital was concerned about that possibility. The hospital advised the grievor to seek an assessment from a psychiatrist of his choice and to submit the results for review. The hospital made that assessment a condition of continued employment. The hospital maintains that had a psychiatrist confirmed that Mr. Leonard was fit to work, he would have been returned to duty immediately.

10. The grievor refused to submit a psychiatric assessment. The hospital terminated his employment.

11. The termination resulted in a grievance which the union filed on the complainant's behalf. That grievance was processed through the steps of the grievance procedure established in the collective agreement. Eventually an arbitrator was appointed to hear the case.

12. But the case was not heard. The night before the hearing the union and the hospital reached a proposed settlement. That settlement was reduced to writing and reads as follows:

IN THE MATTER of an Arbitration arising out of the Grievance of Dennis Leonard (dated August 3, 1989) Pursuant to a Collective Agreement between MOUNT SINAI HOSPITAL and ONTARIO NURSES' ASSOCIATION

BETWEEN:

ONTARIO NURSES' ASSOCIATION

(The Association)

• and -

MOUNT SINAI HOSPITAL

(The Hospital)

• and -

DENNIS LEONARD

(The Grievor)

MINUTES OF SETTLEMENT

The Parties hereto agree to settle all matters arising out of or related to the above described grievance on the following terms:

1. The Grievor and the Association hereby withdraw the grievance.

2. The Hospital shall pay to the Grievor an amount equal to one (1) month's salary at the Grievor's regular rate of pay plus 14% of said amount as compensation for all benefits, less all statutory deductions.

3. The Grievor hereby resigns from his employment with the Hospital effective July 25, 1989. The Hospital shall amend its records accordingly.

4. The Hospital shall permit the Grievor to remain in his present apartment until November 30, 1989, subject to his obligation to pay the rent. The Grievor agrees to vacate the apartment no later than November 30, 1989.

5. The Hospital has provided to the Grievor a letter confirming his employment history with the Hospital.

6. In consideration for the above payment and promises, the Grievor and the Association, jointly and severally, hereby release and forever discharge the Hospital, its servants, agents and directors of and from all actions, causes of action, claims and demands of every nature or kind arising out of or as a result of or in any way relating to his employment or the cessation of his employment with the Hospital.

7. The Parties agree that this settlement represents no admission of liability whatsoever by the Hospital and that this settlement shall be binding upon them.

8. This settlement is without prejudice or precedent.

DATED AT TORONTO, THIS 12Th DAY OF SEPTEMBER, 1989

"Dennis Leonard" "Dottyc Edwards, ERO." Dennis Leonard Ontario Nurses' Association

"B. Lanigan-Gilmour"

Mount Sinai Hospital

13. The complainant was advised of the settlement the evening before the hearing and had the opportunity to consider its terms. He signed it. So did the hospital and the union. This complaint was filed about a week later.

14. By the date of the hearing before the Labour Relations Board, both the hospital and the union had complied with their part of the agreement. The grievance was withdrawn and the arbitration hearing cancelled; however, it is not disputed that if the complainant had rejected the settlement, the arbitration hearing would have proceeded, as scheduled.

15. The complainant does not claim that, at the time he signed the settlement, he was of unsound mind, ignorant or infirm. Nor does he claim that he could not understand the settlement terms. He does claim that he was under improper pressure to accept the settlement, and now believes the terms to be unfair. He argues that the settlement should be enriched or set aside because:

"my signature on the agreement of September 12th was obtained fraudulently by intimidation through threats of discrimination, misrepresentation, statements of deceit and behaviour that disheartened, misled, and confused"

The complainant seeks to have his case directed to arbitration, without participation by the union or, alternatively, that the Board direct a more generous compensation package and strike out paragraph 6 of the settlement. That paragraph purports to prevent him from bringing any further action against the hospital relating to his former employment.

II

16. The hospital takes the position that it is too late for the grievor to repudiate the settlement agreement. The hospital submits that nothing the grievor pleads could constitute coercion, intimidation or undue influence on its part; and, in any event, it is not a named respondent. It did not and could not breach section 68 of the Act, since section 68 applies only to conduct of the union. If there has been inadequate representation by the union at some point in the process, that is not something for which the hospital is responsible. The hospital argues that, having forgone the opportunity to go to arbitration, the complainant cannot resurrect that option, indirectly, by a complaint against the union under the Labour Relations Act.

17. The union submits that the complainant's allegations do not constitute a breach of sections 68 or 70 of the Act and would not support the remedy requested. The union argues that the complainant is trying to use the Board's processes as a means to abrogate or enrich a settlement which he earlier accepted but now considers improvident.

III

18. With this background then, we turn to the complainant's allegations. We will begin with those against Mr. Paliare, the labour lawyer hired by the union to deal with the grievance. Mr. Leonard had a number of complaints about the way in which Mr. Paliare handled the case. It will be convenient to deal with them one by one.

IV

19. Mr. Leonard complains that Mr. Paliare acted contrary to sections 68 and 70 of the Labour Relations Act when Mr. Paliare advised him that it would be wiser to give up his intention to sue the hospital for defamation. Mr. Paliare mentioned the time, expense and energy involved in a civil action of this kind. Mr. Leonard complains that Mr. Paliare was not his lawyer for that purpose and therefore should not have been giving such advice Mr. Leonard argues that these comments by Mr. Paliare support a finding that the union breached sections 68 and 70.

20. We do not accept the complainant's submission. In our view, Mr. Paliare's remarks are merely a recognition of the realities of litigation. They amount to no more than what Professor Pannick had to say in his recent book entitled Judges. At page 29 Professor Pannick observes:

Becoming involved in a lawsuit is like being ground to bits in a slow mill; it's being roasted at a slow fire; it's being stung to death by single bees; it's being drowned by drops; it's going mad by grains'. Hundreds of thousands of people are exposed to such torture each year, some of them actually choosing to initiate the process. They invariably find the experience painful, protracted, and expensive. When it has run its course, they often realize that it was futile. Yet there remains a queue of victims impatient for their turn.

There is nothing coercive or intimidatory about what Mr. Paliare said to the complainant, moreover, there is no causal connection with either the complainant's trade union activity or the exercise of rights under the Act. There is no breach of section 70.

21. Nor is there a breach of section 68. The union is not obliged to support private civil actions brought by employees against their employer. The proposed defamation action has nothing to do with the collective bargaining relationship or the union's exclusive bargaining agency. Mr. Paliare's advice is totally unrelated. Section 68 has no application.

V

22. According to the complainant, Mr. Paliare told him that the settlement document does not specifically address the payment of rent for the apartment he was occupying. Mr. Paliare said that it was up to the complainant to decide whether or not to pay his rent, and that it was sometimes difficult for landlords to evict tenants for non-payment of rent.. Mr. Leonard argues that those remarks establish a breach of sections 68 or 70 of the Act.

23. We do not agree. Mr. Paliare's comments are probably true and in any event do not constitute breaches of section 68 or 70 of the Labour Relations Act. If anything, Mr. Paliare is merely advising the complainant that the "deal" which he subsequently signed does not cover some contingencies and that the employer might have difficulty enforcing part of it. It is difficult to see why Mr. Leonard would believe that Mr. Paliare was advising him to "break the law" (his words), but in any case, once again, this has nothing to do with the union's obligation to fairly represent him. The union is obliged to represent the complainant in collective bargaining matters or in disputes concerning the administration of the collective agreement, but we do not think section 68 extends to landlord-tenant matters. Even, if it did, Mr. Paliare's reniarks would not support a breach of section 68. We further find that, there is nothing intimidatory about these comments, and no connection with the complainant's union membership or the exercise of rights under the Act. There is no breach of section 70 of the Act.

VI

24. It is not disputed that both Mr. Paliare, and the local union representative told Mr. Leonard that they were not confident that the case would be successftil at arbitration. They suggested that the complainant consider the hospital's demand for confirmation of his fitness to work. If a satisfactory doctor's note were provided, the entire matter would be resolved without the cost and uncertainty of litigation. Subsequently both Mr. Paliare and Ms. Edwards suggested that the proposed settlement (reproduced above) might be better than the arbitral alternative.

25. We find that there is nothing intimidatory about either suggestion, nor do they establish the alleged breach of the union's duty of fair representation. Leaving aside the complainant's characterization - "fraudulent", "malicious", "discriminatory" etc.,- there is nothing illegal in a union expressing pessimism about the merits of Mr. Leonard's grievance. There is nothing improper in suggesting that there might be something to the hospital's position that it was entitled to demand that an intensive care/neo-natal nurse establish his fitness to do his job. Nor is there any doubt that in deciding whether the hospital's position was reasonable, an arbitrator might well take into account the professional responsibilities of the complainant's position. That is not, as Mr. Leonard now claims, an assertion by Mr. Paliare or the union that the arbitrator would "discriminate" against him or would not apply "the law". It is simply a recognition of the fact that the hospital had put the complainant's fitness in issue, and in assessing the "reasonableness" of the hospital's position, an arbitrator would likely consider the importance of the grievor's duties. "The law", as the complainant refers to it, permits an adjudicator to consider such matters, and it would be surprising if the arbitrator did not do so.

26. Assuming, as alleged, that the trade union and its counsel related these concerns to the complainant, we do not think that such conduct was contrary to section 68 of the Act. Nor was there any intimidation or coercion within the meaning of section 70. The union's comments have nothing to do with the complainant's membership in the union or efforts to exercise rights unter the Labour Relations Act.

27. As we have already mentioned, Mr. Leonard's own assessment of the situation was that the arbitrator would be biased, or would discriminate against him, or would not apply "the law". Mr. Leonard complains that Mr. Paliare did not outline the strategy which he would employ to meet these arbitral reactions should they in fact materialize. This, it is said, amounts to a breach of section 68 of the Act.

28. Mr. Leonard's inferences from Mr. Paliare's remarks are themselves rather dubious, however, even if Mr. Leonard foresaw some potential error or leaning on the arbitrator's part, Mr. Paliare was under no obligation to accept Mr. Leonards predictions or outline his (Paliare's) proposed strategy for meeting such eventualities should they arise. The trade union must represent employees in a manner that is neither arbitrary, discriminatory or in bad faith, and will be vicariously liable should its lawyer conduct himself in a manner inconsistent with that duty. However we do not think counsel is obliged to provide, in advance, a detailed rebuttal for all of the contingencies feared or conceived by a grievor. It may be that a lawyer's investigation, preparation or presentation of a case is so grossly negligent or obviously flawed as to be considered "arbitrary", and that the union will inherit the "sins" of its counsel. But that is clearly not this case. Nor, assuming Mr. Leonard's assertions to be true, would they support a conclusion of bad faith or discrimination. And of course, all of this is entirely hypothetical because the case did not proceed.

29. While the hospital is not a respondent in this proceeding and owes Mr. Leonard no duty under section 68, certain of Mr. Leonard's assertions touch on the applicability of sections 66(c) or 50 of the Act to the hospital's response to his original scheduling complaint. For completeness, those assertions deserve some comment.

30. Mr. Leonard argues that the hospital contravened sections 50 and 66(c) of the Labour Relations Act because, as a result of his dispute with the hospital there was friction and disunity within the nursing team. He argues that the hospitals purported concern about fitness to work surfaced only when he threatened to go to the College of Nurses. Mr. Leonard argues that by rejecting his allegations of conspiracy, collusion etc., and demanding that he prove himself fit, the hospital committed an unfair labour practice. Mr. Leonard maintains that the union's failure to accept or pursue this alleged unfair labour practice supports the conclusion that it was acting contrary to section 68 of the Act. Sections 50 and 66(c) of the Labour Relations Act read as follows:

31. A collective agreement is, subject to and for the purposes of this Act, binding upon the employer and upon the trade union that is a party to the agreement whether or not the trade union is certified and upon the employees in the bargaining unit defined in the agreement.

32. No employer, employers' organization or person acting on behalf of an employer or an employers' organization,

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming cir to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.

31. At common law collective agreements had no legal existence. They could not be enforced in the Courts. Section 50 reverses that result, but must be read in conjunction with sections 44 and 45. They provide that arbitration is the mechanism for resolving disputes concerning the application or alleged violation of collective agreements. To the extent that Mr. Leonard's complaint against the hospital is based upon an alleged breach of the collective agreement he was already on his way to arbitration and mention of section 50 adds nothing. Even if it is argued that section 50 creates a substantive offence (i.e. every breach of a collective agreement is automatically and necessarily a breach of the Act), the Board as a matter of discretion under section 89, leaves the enforcement of collective agreements to the arbitration process contemplated by sections 44 and 45. There is nothing in the circumstances here which would warrant a departure from that approach. Section 66(c) can have no application to the hospital because its actions were not related to Mr. Leonard's membership in the union and the exercise of statutory rights - except perhaps the arguable "right" to proceed to arbitration which the hospital was not in a position to deny, and in fact remained open to him until he accepted the settlement proposal. Accordingly, to the extent that the union "summarily dismissed" these unfair labour practice allegations, it was entirely right to do so. And, if the hospital's alleged reprisal constitutes some breach of the Health Disciplines Act, that is something which must be pursued under that statute. Neither an arbitrator or this Board has any jurisdiction.

32. We make no comment on the gestures or facial expressions which Mr. Leonard says accompanied the union's rejection or expression of doubts concerning his analysis of his legal position. It suffices to say that, in general, the union was entitled to form its own opinion or take the advice of its solicitor; moreover the fact that the union disagreed with Mr. Leonard, and said so, or expressed doubts about his interpretation of events or the law, does not establish that it acted illegally.

VII

33. There is nothing wrong in a trade union, or its counsel urging settlement. Indeed, that is precisely what the grievance procedure is for. In Catherine Syme, [1983] OLRB Rep. May 775 the Board had this to say:

34. Section 68 requires a trade union to act fairly, inter alia, in the handling of employee grievances. But it does not require a trade union to carry any particular grievance through to arbitration simply because an employee wishes that this be done. A trade union is entitled to consider the merits of the grievance, the likelihood of its success, and the claims or interests of other individuals or groups within the bargaining unit who may be affected by the result of the arbitration.

The trade union must give each grievance its honest consideration, but so long as the arbitration process involves a significant financial commitment and has ramifications beyond the individual case, a trade union is not only entitled to settle grievances, in many cases it should do so. And, as has been pointed out in a number of cases, in assessing the merits of a grievance a trade union official - especially an elected one - cannot be expected to exhibit the skills, ability, training and judgement of a lawyer.

21. Most collective agreements contain a grievance procedure to which resort must be made before a matter can proceed to arbitration. The grievance procedure involves several stages of pre-arbitration discussion in which (as in the present case) the parties seek to amicably resolve their differences. As in the ordinary civil litigation process, it may be in the interests of both parties to seek an "out of court" settlement which is more modest than either of them might have obtained had they been entirely successful before an adjudicator. A settlement is a compromise solution which avoids the costs and uncertainties of litigation, and where it appears that the claim is without legal foundation or cannot be proved it makes little sense to proceed further.

If union officials expressed doubts about the grievor's likelihood of success, or suggested that he comply with the hospital's request as a simple way of resolving the matter, those actions do not amount to a breach of section 68 of the Act. The union was merely exploring the ambit of the problem as it was entitled to do; and, as we have already said, had Mr. Leonard opted to proceed to arbitration, the case would have proceeded. Ultimately, the option was his.

VIII

34. It was not unreasonable or arbitrary for the union to suggest that there might be certain "technical" arguments which could support the complainant's position quite apart from the merits of his case. There is arbitral authority that, in some circumstances, the absence of union representation at the point of termination can invalidate a discharge despite the presence of just cause. Nor was it improper for the union to remind the grievor that even if he won on this "technical" basis, his future employment might still be in jeopardy if the hospital renewed its demand for proof of fitness before continuing the complainant in his former position. Neither of these actions constitute a breach of section 68 of the Act. On the contrary; they indicate that the union was being thorough, and was cognizant of the realities of the situation.

IX

35. Mr. Leonard agrees that he was advised of the proposed settlement on the evening before the arbitration was to begin, and that he had the opportunity to consider the settlement terms. Those terms are set out above, and are relatively simple and straight forward. The complainant is not an unsophisticated man. He does not claim that he did not understand what he was signing. Mr. Leonard does claim that there was "intimidation, misrepresentation and deceit" but on this key point, there are simply no facts pleaded which would support such allegation. No doubt Mr. Leonard was disheartened that the union did not share his optimism and expressed the view that an arbitrator might be sympathetic to the hospital's position. But a union is not obliged to agree with a grievor's position or legal anaysis, and the fact remains that, knowing the union s views, the complainant signed the settlement anyway. We are simply not satisfied on the pleadings, that the complainant has made out any basis for setting aside the settlement enriching its terms to which all parties had agreed as a resolution of his dispute with the hospital, or directing the arbitration option which Mr. Leonard himself earlier objected.

36. It is unnecessary to consider the hospital's submission, that even if there were some misconduct on the union's part, there is no jurisdiction to order the hospital to proceed to arbitration or direct the hospital to provide more generous payments. Nor need we speculate about the effect of paragraph 6 should the complainant launch a civil action. That is for a Court to decide.

37. For the foregoing reasons, this complaint is dismissed.