Ontario Labour Relations Board

[1993] OLRB Rep. December 1283

0014-93-U Susan Forbes, Applicant v. The Simcoe County Roman Catholic Separate School Custodians, Responding Party v. The Simcoe County Roman Catholic Separate School Board, Intervenor

BEFORE: Brain Herlich, Vice-Chair.

APPEARANCES: C. J. Abbass and Susan Forbes for the applicant; Joseph N. Tascona, Petra Vanderley and Leo Joyce for the responding party; John W. Woon, Michael P. Fitzgibbon, Sandra L. Bickley and Steven Hudson for the intervenor.

DECISION OF THE BOARD; December 21, 1993

1. This is an application filed pursuant to section 91 of the Labour Relations Act in which the applicant, Susan Forbes, alleges that the responding party (also referred to as the "Association") has violated section 69 of the Act. The claim arises from the applicant's discharge from her employment with the intervenor (also referred to as the "employer") and the Association's subsequent refusal, in circumstances which will be described more fully, to advance a grievance challenging that discharge to arbitration.

2. Both the Association and the employer asserted that the Association was not a trade union within the meaning of the Act and that the statutory obligations set out in section 69 of the Act consequently did not apply to the case at hand. On that basis they argued that the application ought to be dismissed. Although this issue was initially described as a preliminary matter, the parties agreed to adduce their evidence relating to both this issue and the merits of the complaint at the same time. The parties filed a written Agreed Statement of Facts (although there were some residual disputes regarding a few of the facts outlined therein). The Board also heard the oral evidence of the applicant and of Leo Joyce, who was the vice-chairman and, subsequently, chairman of the Association during the time relevant to Ms. Forbes' complaint. In addition, 51 documents were marked and filed as exhibits in these proceedings.

3. As evidenced by the parties' ability to produce an agreed statement of fact (although subject to some qualifications), the essential facts giving rise to this matter were not in serious dispute. There were, however, significant differences in the characterizations and legal conclusions the parties urged should flow from those facts. To the extent that I have had to resolve any conflicts in evidence in arriving at my findings of fact I have carefully considered all of the evidence before me and have taken into account such factors as: the demeanour of the witnesses when giving their evidence, the clarity and consistency of that evidence when tested in cross-examination, the witnesses' ability to recall events and resist the tug of self-interest in shaping their answers, and what seems most probable in all the circumstances.

4. The parties' Agreed Statement of Facts reads as follows:

AGREED STATEMENT OF FACTS

Trade Union Status

1. The Labour Relations Board has not granted the Respondent trade union status under s.1(1) of the Labour Relations Act;

2. The Respondent is an informal association established in 1969 in relation to custodians and cleaners employed by the Board;

3. The Respondent [both the Association and the employer asserted that this reference to "The Respondent" should read "A committee of the respondent"] and the Board have entered into agreements in relation to certain terms and conditions of employment and compensation since 1970. The Board's relationship with the Respondent is set out at ARTICLE II- RECOGNITION of the present agreement:

"2.01 The Board recognizes the Custodians Committee as the regular and official committee empowered to represent all the Custodians employed by the Board and to negotiate on their behalf."

4. On November 25, 1976, custodians in attendance at a meeting voted for the continuation of a social committee and to initiate a social fund.

5. The Respondent's Constitution and Bylaws enacted on September 23, 1977 and updated on March 19, 1987, provides under Article 2 - Aim and Objectives the following:

"(a) To arrive at by group discussion and interchange of experience, measures by which the Custodians may offer the Board more informed and professional service;

(b) To keep its members informed and educated by comprehensive and progressive study of custodial requirements and to establish, as far as possible, reasonable standards of efficiency;

(c) To work in co-operation with other groups on common problems."

6. The Respondent does not require through either its Constitution and Bylaws or agreement for custodians and cleaners employed by the Board to become members of its organization.

7. Custodians and cleaners employed by the Board may authorize deductions from salary to be paid to the Respondent's social fund. The Complainant signed a Memorandum of Authorization dated May 4, 1988, but not all custodians and cleaners employed by the Board have done so.

Susan Forbes

8. Susan Forbes (hereinafter called the "Complainant") was employed by the Simcoe County Roman Catholic Separate School Board (hereinafter called the "Board") from approximately September 8, 1987 until her termination on December 30, 1991.

9. On May 4, 1988 the Complainant signed a Memorandum of Authorization which allowed the Board to deduct from her salary $5.00 as an initial contribution and $2.00 per month. The monies collected in this manner are then used as a social fund by the Respondent.

10. On October 29, 1991, the Complainant was charged under the Criminal Code by the Alliston Detachment of the Ontario Provincial Police with theft under $1,000.00. This charge arose from the theft of $29.00 from a purse left in the school lounge at Father O'Reilly School by the Principal of the school.

11. By letter, dated October 29th, 1991, the Complainant was "suspended with pay" pending an investigation by the Board into allegations of theft. The Complainant is alleged to have stolen approximately $30.00 from a purse intentionally left in the staff-room as a trap on October 28th, 1991, while working as a custodian at the F.X. O'Reilly School in Tottenham, Ontario. The money had been dusted with identification powder. The Complainant had worked a full day's shift, 8:00 a.m. - 4:05 p.m. cleaning and emptying waste baskets when she was called into the office. There was dusting powder found on her hands. She did give a statement to the police admitting the theft, which she alleges was given under duress and is not true. On the afternoon of October 29th, 1991, the Complainant had a meeting at her home with Sandy Bickley and Donna Folz (management of the Board) and Leo Joyce (Custodian Committee) and Bill Annand (Custodian Co-ordinator) [while conceding that this was Mr. Annand's title, the applicant did not agree that he was acting in that capacity] concerning her termination, where she denied her guilt and advised the group that she was intending to plead not guilty and fight the charge.

12. By a letter, dated November 1st, 1991, the Board suspended the Complainant "without pay" effective November 2nd, 1991, pending disposition of the criminal charge laid in regard to the alleged theft.

13. On November 11th, 1991, the Complainant grieved her suspension under the grievance procedure provided in Article XI.

14. The agreement between the Board and Respondent provides at ARTICLE XI - GRIEVANCE PROCEDURE the following:

"11:01 It is the mutual desire of both the Board and the Custodians that all grievances shall be adjusted as quickly as possible at the lowest administrative level.

11:02 A grievance is a claim by a Custodian, a group of Custodians or the Board relating either to the interpretation, application, administration or allegation that the Agreement has been contravened.

11:03 Individual grievances shall normally be settled in the following manner and sequence:

Step - Informal Stage

A. The Custodian having a complaint arising out of this Agreement shall first approach the Manager of Custodian Services.

B. The Complaint must be received within ten (10) working days after the Custodian becomes aware of the circumstances giving rise to the complaint.

C. The Manager of Custodian Services shall reply verbally within three (3) working days after receipt of the complaint. Failing satisfaction with the verbal reply of the Manager of Custodian Services, the complaint shall become a grievance and may proceed to Step 2.

D. The complainant may be accompanied by a representative of the Custodian Committee.

Step 2 - Formal Stage

Failing satisfaction with the reply in Step 1, then within five (5) working days of receipt of the reply, the grievance shall be submitted in writing to the Director of Education or designate. The Director of Education or designate shall reply in writing within ten (10) working days of receipt of the grievance. Failing satisfaction, the grievance may proceed to Step 3.

Step 3 - Last Stage

A. Failing satisfaction with the reply in Step 2 above, then within five (5) working days of receipt of the reply, the grievance shall be transmitted in writing to the Board of Trustees together with a request for a hearing with a Committee of the Board. The Board of Trustees shall reply in writing within ten (10) working days of receipt of the grievance. Should the grievance not be settled to the satisfaction of the griever, then the grievance may proceed to arbitration as governed by the Arbitration Act of Ontario.

B. The complainant may be accompanied by either a representative or representatives of the Custodian Committee."

15. At the time the grievance was filed, the Complainant was a director with the Respondent.

16. On November 13th, 1991, the Board denied her grievance.

17. November 15th, 1991, the Custodians [the Association and the employer both asserted that this reference to "the Custodians" should read "the Complainant"] requested a Step II meeting, which was held on December 5th, 1991. The Complainant attended, along with Kathy Kriska, a representative from the Respondent and requested she be reinstated until the criminal charge was tried.

18. December 5th, 1991, the Board "without prejudice" changed the terms of her suspension effective December 6th, 1991, to "suspension with pay".

19. December 13th, 1991, the Complainant proceeded to Step III, a hearing with a Committee of the Board, requesting that she be put back to work in a different school.

20. December 17th, 1991, the Board requested an extension of the time for setting up the hearing, which was granted.

21. The Board was advised that on December 18, 1991, Judge Inch of the Provincial Court (Criminal Division) found the Complainant guilty of theft. The Board terminated the Complainant's employment on December 30, 1991 for cause.

22. On January 6th, 1992, the Complainant prepared and filed a grievance as to her termination, requesting reinstatement to suspension without pay, until her appeal was heard.

23. On January 8th, 1992, the Board set up a meeting for January 13th,

1992 in line with 11:03 (b) of the Collective Agreement.

24. On January 13, 1992, the Complainant attended a meeting with Board representatives including, Bill Annand, Custodian Co-ordinator, in which Leo Joyce and John Lalonde, Respondent representatives were present.

25. The Complainant never requested Respondent Chairman, Leo Joyce, to assist her in the preparation of and processing of any grievance. The Respondent only received grievance documents provided to the Board by the Complainant, in which its representatives were copied, but no other documents.

26. On January 16th, 1992, the Board advised that both Complainant's grievances were denied.

27. On March 2nd, 1992, the Board acknowledged the Complainant's request to proceed to Arbitration and asked for the request in writing.

28. On March 10th, 1992, the Complainant wrote to Board, requesting that her grievance proceed to Arbitration.

29. On March 13th, 1992, the Board wrote to the Complainant's lawyer acknowledging the written request to proceed to arbitration and advised of the name of their legal counsel.

30. By letter April 3,1992, the Board was informed that the Complainant had retained legal counsel in connection with her intention to appeal the conviction referred to in paragraph 21 hereof. It is the Board's understanding that this appeal was either abandoned or dismissed.

31. By letter dated May 27, 1992, the Board was informed that the Complainant had retained legal counsel and of her continued intention to proceed to arbitration under the Arbitration Act, R.S.O. 1991, c.17. The Board has not heard anything in this regard from either the Complainant or her counsel in almost one year, therefore it believes

the Complainant has abandoned her intention to proceed to arbitration under the Arbitration Act.

32. On July 1st, 1992, the Complainant's counsel wrote to the Respondent requesting confirmation that they would cover their share of the cost of the Arbitration.

33. The Respondent Chairman, Leo Joyce by letter dated July 15, 1992, advised the Complainant's solicitor as follows:

"I am in receipt of your letter requesting an answer as to whether our Custodial Association will cover the cost for an arbitrator, should Susan Forbes grievance proceed to arbitration.

We are sorry, but we do not have the funds to cover this amount. The total contributions from our custodians for one year would not be sufficient to cover the cost of $3,000.00. Therefore it is the Custodial Committee's decision to say no to this request."

34. The Complainant's solicitor by letter dated November 19, 1992, advised the Respondent Chairman, Leo Joyce as follows:

"On July 15, 1992 you advised me that your association was not prepared to cover the cost of an arbitrator. I understood that the rationale for this decision had to do with lack of funds. Your association is a small one.

As the bargaining agent for Ms. Forbes you are of course obligated to take reasonable steps to protect her interest and you owe her a duty of fair representation. Please be advised that I have now received authority from the Ontario Legal Aid Plan to cover the cost of the arbitrator providing that cost does not exceed $4,000.00.

Accordingly, I am now requesting that the association proceed to move this matter forward to arbitration. The collective agreement is between the board and the association and not the employee. Please advise me at once whether or not you are prepared to take the necessary steps to move this matter forward."

35. The Respondent Chairman, Leo Joyce by letter dated November 27,

1992, advised the Complainant's solicitor as follows:

"I am in receipt of your letter requesting that our Custodial Association proceed to move Ms. Forbes matter forward to arbitration.

Again, we wish to advise that no steps will be taken to proceed this matter forward. After a meeting with our committee, we have been legally advised that according to our collective agreement, there is nothing to say that we must proceed with this any further."

5. Is the Association a trade union within the meaning of section 1(1) of the Act? The agreed facts set out above with respect to this issue (primarily paragraphs 1-7) were augmented by oral and documentary evidence. The Association's Constitution and Bylaws appear to have been in place since at least 1977. Although its Aims and Objectives section does not include the regulation of relations between employees and employers or other similar collective bargaining purposes one might normally expect to find in a trade union constitution, Article 4 of the Bylaws provides:

ARTICLE 4 - NEGOTIATIONS

The Executive Committee shall be the official committee to represent all custodians and cleaners employed by the Board and to negotiate and accept by a majority of the Executive Committee on their behalf compensation, conditions of employment and other matters relative to the custodians and cleaners as a whole.

[emphasis in the original]

6. The Association's constitutional documents contain other provisions typical of trade union constitutions. For example, officers, their duties and regular election are provided for; regular bi-annual and other meetings are contemplated; and the collection of member fees is regulated (an initial $5.00 fee and subsequent monthly payments of $2.00).

7. It was not disputed that since the inception of the Association, it (through the contemplated committee) and the employer have negotiated a series of documents they have described as collective agreements, a number of which were filed in these proceedings. (For the sake of exposition we shall continue to refer to these as collective agreements, although we should note, as the Association and employer both argued, these documents can only be collective agreements under the Act if we are satisfied that the Association is a trade union). The collective agreement in place at the time relevant to the present matter contains a recognition clause already reproduced as well as Article 1 - Intent and Scope, portions of which provide:

ARTICLE 1- INTENT AND SCOPE

1:01 The intent and purpose of the Parties is to maintain a harmonious relationship between the Board, each custodian and the Custodian Association and to co-operate to the fullest extent possible in an endeavour to provide the best possible custodial services.

1:02 The Parties desire to set forth in the Agreement certain terms and conditions of employment together with a salary schedule which governs the Custodians who are employed under this Agreement.

1:03 During the period of this Agreement, its terms shall be applicable to all Custodians.

8. The agreement also contains other provisions regarding subjects typical of collective agreements including matters relating to issues of classification, remuneration (including premium payments), benefits, leaves of absence, holidays, vacations and a grievance procedure. The agreement does not expressly prohibit strikes or lock-outs during its currency. It was not disputed that the Association has never called a strike or, prior to the events giving rise to the present complaint, been involved in a grievance or arbitration. We heard no evidence regarding whether or not the Association and the employer have ever sought the appointment of a conciliation officer or had a "no board" report. Similarly, while documents were filed indicating that the two most recent (for our purposes) collective agreements appear to have been filed with relevant Ministry of Labour offices, we have no evidence as to how or why or by whom this was done.

9. When Ms. Forbes was hired as an acting custodian-in-charge effective September 8, 1987 the employer provided her with a copy of the then current collective agreement which defined her terms and conditions of employment. There was no indication that she (or any other employee covered by the collective agreement has) engaged in any individual negotiations with the employer regarding terms and conditions of employment found in the collective agreement. There is little doubt that the Association and employer have participated in a collective bargaining relationship whereby the Association has performed the role of an exclusive bargaining agent on behalf of all employees covered by the terms of successive agreements negotiated between the employer and the Association (through its committee). While Mr. Joyce testified that there is no requirement that any agreement between the Association and the employer be ratified by affected employees, the minutes of the Association's November 1976 meeting show that a vote was held on a proposed contract.

10. The evidence does not disclose when the Association first began collecting fees from its members. As of January of 1977, however, fees were raised to their current level. That was the result of a motion passed at the November, 1976 meeting recorded in the minutes as follows:

A vote was called on for a raise from $1.00 to $2.00 deduction per month from our salary towards the Social Club Activities. This was passed by a show of hands.

11. Members are required to sign an authorization form permitting the deduction of monies from their pay. Relevant portions of that form provide as follows:

12. The custodians voted at the meeting held on Thursday, November 25, 1976, for the continuation of a social committee and to initiate a social fund.

13. The custodians agreed to the following deductions from salary effective January 1,

1977, for those custodians concerned:

(a) $5.00 initial contribution by all custodians.

(b) $2.00 per month.

4. AUTHORIZATION BY EMPLOYEE

I, …………………authorize the Payroll Department to make the deductions listed in Paragraph 2(a) (b) above from my salary …………………………

12. Thus, while the motion and authorization form reproduced refer to a social club or committee or fund, the Association's constitution refers to what appear to be the same monies as fees to be paid by all Association members.

13. The Association also filed a document outlining its financial position from June 27, 1990 to March 24, 1993. This document clarifies a number of issues. First of all the Association's liquid assets appear to have approached but never exceeded $4,000.00 (although there is also reference to a $1,500.00 investment certificate purchased in November of 1990). There is no doubt that the Association's primary source of revenue is the custodians' deductions outlined above. With respect to expenditures, there are a number which have been made which could best be characterized as purely "social" (e.g. flowers for bereavement and the like), and others which might in part be similarly classified (e.g. for periodic Association functions). There are other significant expenditures, however, which either cannot be so classified or which have a distinct collective bargaining aspect to them (e.g. general office maintenance expenses, contributions to an EAP program). Most significant in this latter category are the regularly recurring expenses associated with the activities of the committee involved in negotiations with the employer.

14. Correspondence between the Association and the employer indicates that the overwhelming majority of employees covered by the terms of the relevant collective agreement are fees paying members of the Association. While the most recent of such correspondence dates to 1990, there was no suggestion that state of affairs has changed significantly (indeed, the relatively constant levels of monies collected by the Association, as indicated in its recent financial records, confirm this).

15. Despite the parties' articulation in the very first paragraph of their Agreed Statement of

Facts, it is not the function of the Board to "grant" or "withhold" trade union status under the

Act. As the Board observed in Ontario Hydro, [1989] OLRB Rep. Feb. 185 at paragraph 37:

……It is clearly not the Board's function to "confer" or "withhold" "the status of a trade union, as the language of older Board decisions suggests. An entity or group of persons either is or is not a trade union, depending on whether the statutory definition is satisfied. The Board's function is to make a finding of fact.

16. The statutory definition of "trade union" found in section 1(1) of the Act is as follows:

"trade union" means an organization of employees formed for purposes that include the regulation of relations between employees and employers and includes a provincial, national, or international trade union, a certified council of trade unions and a designated or certified employee bargaining agency.

17. The most typical context in which the Board is called upon to determine whether an organization is a trade union is in certification applications where the applicant is a newly formed organization claiming to be a trade union. In cases such as those the Board has developed what has been referred to as the "five steps" it considers sufficient to bring a trade union into existence. These have been set out in Local 199 U.A.W. Building Corporation, [1977] OLRB Rep. July 472 at paragraph 10:

(1) A constitution should be drafted setting out, among other things, the purpose of the organization (which must include the regulation of labour relations) and the procedure for electing officers and calling meetings;

(2) the constitution should be placed before a meeting of employees for approval;

(3) the employees attending such meeting should be admitted to membership;

(4) the constitution should be adopted or ratified by the vote of said members;

(5) officers should be elected pursuant to the constitution.

18. While these "five steps" have always been viewed as sufficient proof of the existence of a trade union, they are not the exclusive means of establishing trade union status. Substantial compliance with the "five steps" may well suffice (see for example Service Employees International Union, [1991] OLRB Rep. Feb. 267 and the cases cited therein at paragraph 14). In that respect while the employer argued there was little or no evidence of membership in the Association before the Board in the present case, I am satisfied and have already adverted to the fact that the evidence, taken as a whole, readily discloses that the vast majority of employees covered by the collective agreement are members of the Association (since this is not an application for certification, it is not necessary for me to assess the level of membership support for the purposes of section 8 or to apply the provisions of section 8(5) to the evidence of membership before me). More significant for the purposes of the present case is the fact that compliance with the "five steps" is not the only way to establish the existence of a trade union. As the Board observed in Center Tool & Mold Company Limited, [1985] OLRB Rep. May 633 at paragraph 16:

…..In determining whether an entity or group of persons constitutes a trade union, the Board is obliged not to impose requirements unsupported by the language of section 1(l)(p) [now section 1(1)] in the context of the Labour Relations Act: re CSAO National (Inc.) and Oakville Trafalgar Memorial Hospital Association, 1972 CanLII 563 (ON CA), [1972] 2 O.R. 498 (Ont. CA.); and see, Board of Education for the City of York, [1984] OLRB Rep. Sept. 1279 at paragraphs 38 to 61. The definition requires that there be an organization. The precise nature of that organization is not defined, but certain necessary characteristics can be inferred from the modifying phrase of employees and from the nature of the rights, obligations and duties conferred and imposed on the trade unions by the Labour Relations Act.

19. As already indicated the application of the "five steps" normally occurs in relation to

newly formed organizations. This case does not fall within that category. The Association and the employer have been involved in negotiating agreements since 1970. The Association appears to have been in existence for almost 25 years; its constitutional documents date to at least 1977. The steps originally taken to bring an organization into existence will not be the subject of the same critical focus when the organization has been in existence for a considerable period of time (see Ontario Hydro, cited above and the cases cited therein at paragraph 44). Obviously, in the case of a newly formed organization with no "track record" compliance with the five steps may be more significant than in the case of a well-established organization which has readily demonstrated its trade union character by its conduct.

20. Having regard to all the evidence before me and, in particular, to the Association's Constitution and Bylaws (which include provisions for the election of officers, the holding of regular meetings, and the collection of fees from members, and which also indicate a collective bargaining purpose); the long history of collective bargaining between the Association and the employer resulting in a series of collective agreements; the collection from Association members of monies used for, among other things, collective bargaining purposes; the significant number of bargaining unit employees who appear to be Association members; and the role which so strongly resembles that of an exclusive bargaining agent played by the Association, I am satisfied that the Association is a trade union within the meaning of the Act.

21. I would note that in arriving at this conclusion I have rejected a number of the arguments advanced by the employer and the Association who both resisted this conclusion. I did not find the evidence regarding overtures and inquiries made by the Association in relation to having another trade union possibly represent Association members to be particularly helpful. While some of these activities may well have taken place during or after a relevant open period, there was no evidence to suggest that the discussions ever advanced far enough to determine whether the objective would have been pursued by way of merger or amalgamation or by way of a certification application (displacement or otherwise). In short, I simply did not find this evidence to be particularly supportive of any particular inference the parties suggested should be drawn.

22. Similarly, neither was I convinced by the assertion that because the collective agreement does not contain a no strike/lock-out clause that I should infer that the Association is not a trade union. The Legislature has anticipated precisely such a gap in a collective agreement in section 43 of the Act which deems every collective agreement to provide a no strike/lock-out provision.

23. Finally, a similar argument was advanced in relation to the fact that the grievance and arbitration provisions (reproduced in paragraph 4(14) above) of the collective agreement are somewhat unusual in that they contemplate arbitration pursuant to the Arbitration Act, while the Labour Relations Act, in section 45(12) specifically provides that the Arbitrations Act does not apply to arbitrations under collective agreements. I was asked to infer that a reference to legislation specifically excluded by the governing legislation is consistent with the conclusion that the Association is not a trade union. Again, I do not find this argument to be persuasive. To the extent that the arbitration provisions contained in the collective agreement do not meet the requirements of section 45(1) of the Act (and I specifically make no finding in that regard), section 45(2) contains an arbitration provision which would be deemed to be included in the collective agreement. The reference in the collective agreement to the Arbitration Act was relied on to assert that the parties, by incorporating that legislation, did not intend to be bound by the Labour Relations Act and, equally, did not intend that the Association be a trade union within that Act. Mr. Joyce was quite candid, however, in his evidence that he had no understanding of the collective agreement arbitration provision (Article 11.03) and gave no evidence to support the argument about the parties' intention in incorporating provisions of the Arbitration Act. Neither did we hear any other direct evidence about the parties' intentions at the time they first agreed to those provisions. The Association has all the necessary hallmarks to identify itself as a union. It has conducted activities over a protracted period of time consistent with those of a trade union. I am satisfied that it is a trade union within the meaning of section 1(1) of the Act. Neither am I satisfied that, in the circumstances of this case, a lack of intention to be bound by the terms of the Act (even assuming such a lack of intention had been proved before me) is or should be an effective method of avoiding its application.

24. Having determined that the Association is a trade union within the meaning of the Act,

I turn now to a consideration of whether it breached its statutory obligation under section 69 which

provides:

69. 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.

70. The essential facts are set out in the agreed statement reproduced above. Once again, however, those facts were augmented by further oral and documentary evidence. In view of a significant concession by the applicant and the conclusion at which I have arrived it is unnecessary for me to review the facts in elaborate detail. There are, however, a few matters which merit exposition. Much was made of questions regarding whether and, if so, when and how the Association became involved in assisting Ms. Forbes during the course of her various grievances and, in particular, her discharge grievance. There is no doubt that she had the assistance of Bill Annand through most, if not all, of the relevant stages. Mr. Annand is a former chair of the Association who resigned his position some seven months prior to the commencement of the events giving rise to this application. Early on in those events Ms. Forbes sought and obtained his assistance. His participation was the subject of a discussion between Ms. Forbes and Mr. Joyce. Part of the rationale for seeking his involvement included the view that he would be more able to assist given the Association's (and presumably Mr. Joyce's) lack of experience regarding the handling of grievances. In any event, Mr. Joyce explicitly told Ms. Forbes that he had no difficulty with Mr. Annand assisting her throughout the grievance process. It may well be that Mr. Annand had no explicit authority to act on behalf of the Association in this matter. It may, however, be equally true that, in the circumstances, Ms. Forbes viewed his involvement as, effectively, that of the Association. The applicant has conceded, however, that she had and has no difficulty with the treatment afforded to her by the Association up until its November 27, 1993 response to her counsel's request (referred to in paragraphs 34 and 35 respectively of the agreed facts). Given that concession, I find it unnecessary to finally resolve any conflicts regarding the Association's involvement prior to that response.

71. It is perhaps useful to examine in some detail what the respective positions of Ms. Forbes and the Association were at the time of this last request and refusal. Ms. Forbes acknowledged that she had no real expectation that the Association, given its finances and history, would pay the cost of any fees associated with her representation at an arbitration of her discharge. She had consequently made arrangements to have those fees covered by the Ontario Legal Aid Plan. When that had been accomplished, counsel retained for that purpose inquired whether the Association would cover its share of the arbitrator's cost, which was estimated at $3,000.00. Mr. Joyce responded, in writing, and cited the Association's lack of funds as the factor leading to the Association's denial of that request. Four months later Ms. Forbes (through counsel) advised the Association that further arrangements had now been made with the Ontario Legal Aid Plan to cover the arbitrator's costs up to a maximum of $4,000.00 and requested that the Association move the matter forward to arbitration. With the possible exception of arbitration fees which might exceed $4,000.00, it does not appear that the applicant was making any financial demand whatsoever on the Association. All she appears to have been requesting was that the Association merely lend its name, not its limited financial resources, to Ms. Forbes' efforts to have her grievance arbitrated. It is helpful to once again set out (at least the operative portion of) the Association's response to that request:

Again, we wish to advise that no steps will be taken to proceed this matter forward. After a meeting with our committee, we have been legally advised that according to our collective agreement, there is nothing to say that we must proceed with this any further.

27. Mr. Joyce explained the reference to legal advice in the Association's response. Sometime after receiving Ms. Forbes' request, Mr. Joyce went to discuss the matter with Vincent Monaghan, the employer's Superintendent of Operations. At that meeting Mr. Monaghan telephoned the employer's counsel (a member of the same firm as counsel who represented the employer at these proceedings) and the three of them discussed whether or not the Association was obliged to refer Ms. Forbes' grievance. On the basis of that conversation, Mr. Joyce concluded that there was no such obligation. Unfortunately, Mr. Joyce's evidence made it clear that while portions of the grievance arbitration provisions of the collective agreement were read to counsel at that time, the letter from the applicant was not. Neither was it suggested that the merits of Ms. Forbes' case were discussed in any fashion whatsoever. Thus, while some collective agreement provisions were considered, it is clear that the employer counsel was not made specifically aware of the precise nature of Ms. Forbes' request or the fact that no financial support was being sought from the Association.

28. Mr. Joyce was frankly unable to offer any cogent explanation for why the Association declined Ms. Forbes' request which was, effectively, little more than a request that the Association merely lend its name, not its limited financial resources, to Ms. Forbes' efforts to have her grievance arbitrated.

29. During the course of these proceedings the Association and the employer argued that, given the wording of the collective agreement, Ms. Forbes would have been able, on her own and without the necessity of the Association's consent, to advance her case to arbitration. But while that view was advanced tenaciously by counsel at the hearing, it is not at all apparent to me that understanding was shared or understood by Mr. Joyce or the Association at the time the events took place. Indeed, as adverted to earlier, Mr. Joyce candidly acknowledged that he had little understanding of the arbitration scheme contemplated by the agreement. Furthermore, even assuming the Association shared the view expressed by its counsel at the hearing that Ms. Forbes could have advanced her grievance to arbitration on her own, I am not persuaded, despite some suggestions to the contrary, that view was effectively communicated to Ms. Forbes. It is certainly not made explicit in Mr. Joyce's written response reproduced above. Indeed, it is that lack of understanding or communication which lends this case a certain tragic quality. Had that position been effectively communicated to Ms. Forbes it is hard, given the position she took and is continuing to take, to see how there would have been any necessity for the filing of the instant complaint.

30. It is not my function to interpret the provisions of the collective agreement. However, even assuming that the Association and employer's view with respect to individual carriage rights is correct, I have still not been provided with any explanation of the Association's refusal to advance Ms. Forbes' case to arbitration, particularly given that I am not persuaded that she was ever explicitly advised that access to arbitration did not depend on the Association.

31. Quite apart from the specific concerns around the Association's response to Ms. Forbes' request, there is a much more fundamental shortcoming in the Association's conduct in this matter. It is abundantly clear that the Association has simply never turned its mind to the merits of Ms. Forbes' case. And while the context in which these events have unfolded, including the Association's mistaken view of its legal obligations, may serve to explain this shortcoming, it does not relieve the Association of its statutory obligations. I am satisfied that the Association has breached its obligations under section 69 of the Act.

32. Counsel for the applicant argued that the Association ought to be directed to advance Ms. Forbes' case to arbitration and to pay all the attendant expenses. I am not persuaded that is an appropriate remedy in this case, given the applicant's position already outlined. The most appropriate remedy in this case is and I hereby direct the Association to consider the merits of Ms. Forbes' case, to conduct any investigation it feels is appropriate in the circumstances and to advise the applicant in writing no later than February 14, 1994 of what it intends to do and the reasons for its decision. I cannot presume to direct what the results of this inquiry will be, that is for the applicant to decide and so long as it henceforward conducts itself in accordance with its obligations under the Act, its decision is its own to make. Without proposing to suggest an exhaustive catalogue of possible results, the Association may, after conducting the relevant inquiry, determine that it will advance and fund Ms. Forbes' arbitration case, or it may decide that the case should only be advanced at the complete or partial expense of the applicant, or it may decide that the merits of Ms. Forbes' case (about which I heard very little) are so lacking in substance that it ought not to be advanced to arbitration under any circumstances. Again, so long as it reaches its conclusion after honestly turning its mind to Ms. Forbes' case and acting in a fashion free of arbitrariness, discrimination or bad faith the decision as to what it will or will not do is the Association's to make.

33. The employer submitted that it ought not to be prejudiced by any order of the Board in this case and that it should continue to have any defences previously available to it. I am prepared to accept that position to the following extent. First, in the event that an arbitration hearing results, there may be some issue as to the meaning of the collective agreement arbitration provisions and the existence and consequences of any possible conflict between the Arbitration Act and the Labour Relations Act. Although I have determined, as the parties required me to do, that the Association is a trade union within the meaning of the latter Act, I have not otherwise made any determinations with respect to this issue. Second, for various reasons many of which are obvious from this case, there will be a period of at least two years between Ms. Forbes' discharge and any arbitration hearing which may take place in respect of that discharge. I do not propose, as the Board often does, to effectively preclude the employer from arguing delay at any arbitration hearing which may result. In the circumstances, however, I do not think it would be appropriate for the employer to be permitted to rely on any delay which took place subsequent to the Association's response on November 27, 1992 to Ms. Forbes' solicitor's November 19, 1992 letter to the Association. Thus, to the extent that the employer may wish to raise any issue of delay at any arbitration hearing into Ms. Forbes' discharge, it shall only do so if and to the extent that argument was available to it as of November 27, 1992. As a corollary, to the extent that any arbitration hearing results in any financial liability for the employer, I will remain seized as to whether such liability should be shifted to or otherwise shared by the Association.