Arthur Chen v. Local 43 Metro Toronto Civic Employees Union CUPE Affiliate, 1994 CanLII 9935

[1994] OLRB Rep. September 1184

3369-91-U Arthur Chen, Applicant v. Local 43 Metro Toronto Civic Employees Union CUPE Affiliate, Respondent v. The City of Toronto, Intervenor

BEFORE: Lee Shouldice, Vice-Chair.

APPEARANCES: Arthur Chen on his own behalf; Mark Wright for the responding party; David

Bannon and Georgina Husvar for the intervenor.

DECISION OF THE BOARD September 12, 1994

1. This is an application brought under section 89 [now 91] of the Labour Relations Act

("the Act"). The applicant alleges that the responding party (hereinafter "the union") has acted in

a manner which violates section 68 [now 69] of the Act.

2. This matter came on before me for hearing on August 11 and 16, 1994. On August 16,

1994, I issued the following brief oral decision:

I have heard the evidence of Mr. Chen and, at the close of his case and at my request, I have heard Mr. Chen's argument on the evidence before me. In my view, the evidence before me does not substantiate that s.68 [now s.691 of the Act has been violated. Accordingly, I am dis­missing this application. Written reasons will follow.

These are those reasons.

3. At the outset of the hearing, I observed that Mr. Chen was not represented by counsel. By way of decision dated June 13, 1994, I had granted Mr. Chen an adjournment of the hearing of

this matter as a result of the rather abrupt departure of his legal counsel shortly before the sched­uled hearing dates. Mr. Chen advised upon the resumption of the hearing that he had made efforts to retain another representative but found that the individual he desired to retain was too busy to take on his case. I advised Mr. Chen that it was appropriate for him to appear unrepresented before the Board, as many people do. However, I advised Mr. Chen that, as the Vice-Chair decid­ing this case, I was not in the position to guide Mr. Chen respecting such matters as what evidence to call and how it should be presented. I did indicate that I would outline for Mr. Chen, as the case developed, certain procedural matters. Mr. Chen indicated that he understood that the risk of attending without counsel was to be borne by him.

4. During the course of the hearing, a number of objections were raised by counsel regard­ing the evidence offered by Mr. Chen. The initial complaint, dated January 22, 1992, was some­what lacking in particulars. By decision dated September 1,1992 the Board (differently consti­tuted) ordered Mr. Chen to provide particulars of the allegations raised in the complaint. The solicitors then acting for Mr. Chen provided the other parties and the Board with particulars under cover of letter dated October 9, 1992. Counsel for the union at that time requested further particu­lars of certain allegations. Again, the Board (differently constituted) determined that any further particulars would be ordered by the panel hearing this case on its merits, should it be determined to be necessary.

5. Through no fault of the applicant, this complaint was not scheduled for hearing until May, 1994. The hearing was adjourned to a hearing date in June, 1994, at which time I dealt with a number of preliminary motions. As a result of the motions brought, I ordered certain paragraphs struck from the complaint and/or particulars. Many of the struck paragraphs consisted of general statements alleging various human rights violations by Harold Smith, Business Agent of the union. For reasons outlined in the decision dated June 13, 1994, 1 determined that it was inappropriate to entertain evidence on these allegations.

6. During the hearing of this matter on its merits, Mr. Chen offered evidence on numerous occasions relating to these human rights allegations and other allegations which had been struck from the complaint. As a general observation, when this evidence was presented I told Mr. Chen that the evidence was unhelpful and irrelevant. However, in order to avoid numerous, time-consuming objections, I advised counsel for both the union and the City of Toronto ("the City") that I would only consider the relevant evidence before me for the purposes of determining this application. This I have done.

7. During the course of the hearing in June, 1994, Mr. Chen indicated that he possessed a number of documents that he wished to place into evidence. By way of the June 13, 1994 prelimi­nary decision, I ordered that Mr. Chen provide the other parties (and file with the Board) copies of any documents that he would be relying upon for the purposes of this hearing, not later than August 4,1994. At the outset of the hearing on August 11, 1994,1 asked counsel for the union and counsel for the City whether they had received any such documents. Both responded in the nega­tive. Mr. Chen indicated that he did, in fact, have a number of documents which he still desired to utilize in support of his claims. He could provide no excuse for not forwarding copies as previously ordered.

8. Counsel reviewed all documents to determine whether an objection would be taken to the admission of some or all of these documents into evidence. Ultimately, counsel objected to the admission of all but a few of the documents. After hearing the submissions of all parties, I permit­ted only 3 of the documents to be placed into evidence, excluding all others. Most of the docu­ments were either already before the Board (in a bound volume filed by the union) or were personal notes which could not have been anticipated by the union or the City, and which would require an adjournment to fully review and consider. In the circumstances of this case, I felt it appropriate to exclude all documents that could, in any way, take either the union or the City by surprise.

9. This ruling caused some distress to Mr. Chen, as he frequently attempted to make refer­ence to some of the excluded notes during the course of testimony. Some latitude was granted to Mr. Chen in that regard, but when it became clear that he was relying exclusively on his notes dur­ing testimony Mr. Chen was asked to refrain from referring to them. Mr. Chen expressed the view that the truth would be better discovered if these notes were entered into evidence. As I explained to Mr. Chen during the hearing, there is some legitimacy to his view that the truth would be better discovered if all of his documents were entered into evidence. However, there are, as always, countervailing interests to consider. In this case, this complaint is 2 1/2 years old and a further adjournment to permit the union and the City to consider Mr. Chen's notes was not appropriate, especially in light of the fact that Mr. Chen had previously been ordered to produce the documents prior to the hearing.

10. Turning to the merits of this complaint, Mr. Chen has, essentially, three complaints against the union which he alleges constitute violations of s. 68 [now s. 69] of the Act. In sub­stance, they are as follows:

(a) the union refused to arbitrate an overtime grievance and "withdrew" it on four separate occasions;

(b) the union filed an improperly-worded grievance relating to 53 sick days that he claims that he was deprived of; and

(c) the union, through Mr. Harold Smith, did not consult him regarding a transfer from the Purchasing and Supply Department of the City.

As noted above, the Board heard the evidence of Mr. Chen on these matters, and his evidence is set out directly below.

11. With respect to his overtime grievance, Mr. Chen alleges that the union ought to have arbitrated this grievance against the City. At the relevant times in 1989 Mr. Chen was employed by the City as a watchman. The evidence disclosed that Mr. Chen verbally complained about an unequal amount of overtime being given to other watchmen in 1988 and was subsequently pro­vided an opportunity for greater overtime compensation over the holiday season in 1988. It was Mr. Chen's evidence that during discussions on this matter his co-ordinator had produced a "false printout" of overtime, which printout was eventually shown to be inaccurate by the union. There was no evidence to the contrary.

12. Mr. Chen was of the view, in or around August, 1989, that he was once again not being afforded adequate opportunities for overtime. He attributed this to supervisory harassment and as a reprisal for his earlier complaint. A grievance was filed. During the grievance steps, the City pro­vided the union with a printout showing that, to that date, Mr. Chen had worked more overtime than his coworkers. Mr. Chen's own notes, based on his analysis of attendance sheets and a work schedule, were strikingly different and painted an opposite picture.

13. Ultimately, Mr. Chen was asked to attend at the offices of the solicitors for Local 43 to explain the situation. He met with an articling student and put forward his position. Mr. Chen stated that the meeting was not particularly long and that he was quite emotional during the meet-

ing. Counsel for Local 43 eventually provided an opinion letter to the union dated April 17, 1990, in which it was stated that the grievance was unlikely to succeed at arbitration unless some proof existed that the City's printout was erroneous and that no such proof existed at that date.

14. Between April, 1990 and November, 1991, Mr. Chen's grievance was slated to be for­mally withdrawn by the union at 4 separate general meetings. On each of the first three occasions, the grievance was not withdrawn as a result of Mr. Chen's efforts to keep his grievance alive. In May, 1991, Mr. Chen once again met with Local 43's solicitors in order to weigh the possibility of success should the case proceed to arbitration. No opinion letter was rendered as a result of this meeting, but Mr. Chen alleged that the lawyer that he spoke to told him that he had "a good case

15. Eventually, in November, 1991, Mr. Chen's grievance was formally withdrawn by the union's Executive Board. Mr. Chen was provided with an opportunity to address the Executive Board prior to the withdrawal. He was advised that, should he not be happy with the union's deci­sion, he could complain to the Labour Relations Board. Mr. Chen attended the next general meet­ing of the union and tried to speak to his grievance. He was not permitted to "have the floor" to speak to his grievance as he was ruled out-of-order.

16. It is on the basis of these facts that Mr. Chen states that s.68 [now s.69] of the Act has been violated. Quite simply, there is no evidence at all that the union has acted inappropriately. It is true that the union had scheduled the withdrawal of Mr. Chen's grievance three times prior to November, 1991. However, the first of these times was subsequent to the receipt of the opinion letter from counsel (which concluded no success should the grievance be arbitrated). The other times that the grievance was scheduled to be withdrawn were, in my view, simply reflective of the opinion letter, each time the withdrawal being deferred due to the persuasive nature of Mr. Chen's request. In my view, merely because the union "changed its mind" on various occasions regarding the disposition of a grievance does not support a claim that s. 68 [now s.69] of the Act has been violated.

17. Nor does the withdrawal of this grievance itself support such a claim. The opinion of the union's law firm is reflected by the letter dated April 17, 1990. The union never received any letter qualifying that opinion. The mere assertion by Mr. Chen that the lawyer he saw in May, 1991, felt that he had "a good case" does not alter my conclusion. Having observed Mr. Chen as a witness, I must say that I am not satisfied, notwithstanding that this testimony was not contradicted, that the lawyer in question did state that this was "a good case". It was apparent from the testimony of Mr. Chen that he often "grasps" certain words or phrases used by others, to the exclusion of all other words used, to justify the position taken by him on certain issues. I have some real doubt, there­fore, of what the lawyer actually said to Mr. Chen. However, even on the assumption that the law­yer did say to Mr. Chen that he felt there was a "good case", the union acted on the written legal opinion offered by a senior, respected labour counsel and, in my view, cannot be criticized for doing so. There is no evidence before me to suggest that the union was ever advised that Mr. Chen had "a good case". Accordingly, this branch of the complaint is dismissed.

18. With respect to the second grievance, the events in question arose out of what was rather mischievously referred to in Mr. Chen's particulars as a "satirical comment" made to a coworker in March, 1990. Mr. Chen testified that on March 2, 1990, he commented to a coworker, regarding his overtime situation, that he had "gone the legal channels" and asked whether it was necessary "to buy a gun and shoot someone". This comment was reported to management, and then the police, which arrested Mr. Chen at his home, charged him with uttering a death threat, and imprisoned him for four days. Ultimately, on June 27, 1990, the charges were withdrawn by the Crown.

19. The court had ordered that Mr. Chen not attend at the work place pending disposition of the charge. Accordingly, Mr. Chen was provided with sick pay (equivalent to 100% of his sal­ary) for 53 days. The sick pay was drawn from Mr. Chen's sick bank. Mr. Chen filed a grievance on April 27, 1990, claiming that "management failed to reimburse Arthur Chen for legal expenses incurred as a result of a criminal charge which was subsequently withdrawn".

20. The legal fees incurred by Mr. Chen for representation regarding the criminal charges totalled $1,000.00. During the grievance procedure the City agreed to pay Mr. Chen for this expense (although it is not apparent to me that it was obliged under the collective agreement to do so). The City specifically refused to compensate Mr. Chen for his 53 sick days on the basis that he had not incurred any loss. Ultimately, the union considered the grievance as resolved and with­drew it.

21. Mr. Chen complains that Mr. Smith improperly drafted the grievance, and that this con­stitutes a violation of s. 68 [now s. 69] of the Act. This proposition is entirely without merit. The grievance form does not specifically state that Mr. Chen wanted compensation for any "sick days" lost due to his predicament, but it is abundantly clear from the record that the City understood at all times that that was what Mr. Chen (and the union) had claimed. Mr. Chen acknowledged as much in response to a series of questions that I put to him. It is hard to believe that the union could be said to have failed to properly represent Mr. Chen in these circumstances, particularly when one considers (in my view, at least) that the wording of the collective agreement on its face does not support Mr. Chen on either the claim for the 53 sick days or the legal fees, which he ultimately recovered.

22. With regard to the allegation made in the particulars that the union failed in its statu­tory duty by failing to inform Mr. Chen of his right to file a grievance against the City for "discrim­ination and harassment" for their actions (in calling the police and precipitating his imprisonment), I disagree with this proposition. There is no suggestion that Mr. Chen made inquiries regarding such a right which were ignored by the union. Assuming, for the purposes of this decision that such a right covering these circumstances exists in the collective agreement, it is not evident to me that the union has an obligation to inform a worker, such as Mr. Chen, of "his rights" in a proactive manner. Mr. Chen is quite capable of formulating his own claims should he so desire and the union is not obligated to do so independently of a request by him.

23. More importantly, however, I am of the view that it would not have been clear to the union in the circumstances that management had acted inappropriately towards Mr. Chen. Mr. Chen admitted making his "satirical comment" to a coworker. Assuming that the comment was as innocuous as described by Mr. Chen, one would expect that some contact with police might be warranted. Their response to the situation is beyond the control of the City and the union. In this regard, Mr. Chen seems oblivious to the possibility that he may have been primarily responsible for the situation which resulted from his attempts to be "satirical". Accordingly, I am of the view that the union's conduct in respect of this incident discloses no violation of s. 68 [now s.69] of the Act.

24. The final circumstances put forth as constituting a breach of s. 68 [now s. 69] of the Act relates to the conduct of Mr. Smith in September, 1991. Mr. Chen had, in August, 1990, com­menced work as a Materials Supply Clerk in the City's Purchasing and Supply Department. This post was pursuant to the terms of a rehabilitation policy in effect between the City and the union and Mr. Chen's posting there was to come to an end on September 30, 1991. On September 21,

1991, Mr. Chen's doctor recommended that Mr. Chen not be returned to the Public Works Department for reasons relating to his mental health. The doctor's report was made available at that time to Mr. Smith. However, previously, on August 20, 1991, Mr. Smith had written to the appropriate City official to confirm that Mr. Chen would be returning to Public Works. By letter dated September 18, 1991, Mr. Chen advised Mr. Smith that he did not want to be transferred back to Public Works. Mr. Smith very shortly thereafter rectified the situation and Mr. Chen did not return to Public Works on September 30, 1991. Mr. Chen alleges in his complaint that, in light of the medical documentation, Mr. Smith had "persisted" in his efforts to transfer Mr. Chen to Public Works. There is, quite simply, no evidence of such "persistent" efforts - in fact, the evi­dence suggests quite the opposite, and that, in the face of an error he made, Mr. Smith quickly attempted to (and in fact did) rectify the situation once it was brought to his attention.

25. At the hearing, Mr. Chen also complained that Mr. Smith had not "consulted" with him regarding this transfer. I do not believe that, in these circumstances, such consultation was required by Mr. Smith. Mr. Chen wrote to Mr. Smith and required of him that he rectify an error and he did not request in that letter that Mr. Smith consult with him. Mr. Chen's position was clear, and Mr. Smith acted accordingly. In my view, this alleged incident does not disclose a viola­tion of s. 68 [now s. 69] of the Act.

26. At the close of Mr. Chen's testimony, I asked Mr. Chen if he had any further witnesses to call, explaining to him that this was the appropriate time to call any further evidence in support of his case. Mr. Chen named two individuals, neither of whom was in attendance. Mr. Chen advised that these two individuals had been in attendance at the union membership meetings and "had an impression" of what was going on at the meetings. Mr. Chen advised that he had spoken to these two individuals two months earlier, and that they were "busy" at that time and could not testify. No contact had since then been made with these individuals, and no summonses had been served on them.

27. I took Mr. Chen's indication that he wished to call these two individuals as witnesses to be a request for an adjournment and sought submissions from opposing counsel. Not surprisingly, counsel were strongly opposed to such an adjournment. After hearing Mr. Chen in response, I ruled that I would not grant an adjournment in light of all of the delays that had occurred in this matter. None of the evidence to be given by these possible witnesses was particularized in advance and I would have refused to hear the evidence of these potential witnesses on that basis in any event.

28. At the close of Mr. Chen's case, counsel for the union moved for a non-suit. Counsel asked the Board to rule that the motion for non-suit could be heard without the need for the union to be put to its election. After entertaining argument on this motion, I ruled that I would, instead, entertain Mr. Chen's argument on this matter, and that I would call on counsel for the union and the employer for argument only if necessary. Mr. Chen subsequently made his submissions and the oral ruling set out above was rendered.

29. As noted by the Board in the recent decision of Covington Clarke [1994] OLRB Rep. June 649, at paragraph 8:

A party must have full and fair opportunity to make its case. This includes a reasonable oppor­tunity to outline the facts it asserts and to make submissions. But a full opportunity does not demand that a court-like hearing be held in every case. The Statutory Powers Procedure Act, applicable to most types of Board proceedings, does not require that every proceeding be con­ducted with the full formality and requirements of a typical court trial. Neither does any princi­ple of natural justice.

30. Here, as in Covington Clarke, there were a number of reasons for the Board's interven­tion and direction that the parties proceed to submissions forthwith. Mr. Chen had completed his testimony and there were no further witnesses to be called on his behalf with relevant, admissible evidence. Written particulars preceded the applicant's evidence, which particulars set out the rele­vant issues of the case. The applicant's evidence, though not flagrantly inaccurate, reflected signifi­cant weaknesses in the theory of his case. Furthermore, the union indicated, through counsel, that at least one and possibly two witnesses would be called on behalf of the union, which testimony would take at least one full hearing day.

31. In light of the factors referred to above, and the fact that Mr. Chen had the onus of establishing that the union had breached the Act, it was hard to see any labour relations purpose for continuing the hearing through to completion. This proceeding was already 2 1/2 years old and the delay caused by the scheduling of new hearing dates would merely further delay the completion of the proceeding. Accordingly, the Board called on Mr. Chen to make his submissions as described above.

32. For these reasons this application was dismissed.