Dr. James Winter v. The Faculty Association of the University of Windsor, 1996 CanLII 11185

[1996] OLRB REP. FEBRUARY 154

1933-94-U Dr. James Winter, Applicant v. The Faculty Association of the Univer­sity of Windsor, Responding Party v. The University of Windsor, Intervenor

BEFORE: Gail Misra, Vice-Chair.

APPEARANCES:Dr. James Winter for the applicant; James A. Renaud and Bruce Tucker for the responding party; Theodore Crljencia and Charles James for the intervenor.

DECISION OF THE BOARD; February 23, 1996

1. This is an application filed pursuant to section 96 (formerly section 91) of the Labour Relations Act, 1995, alleging a breach of section 74 (formerly section 69) of the Act.

2. The applicant ("Winter") is claiming that the responding party (the "Faculty Associa­tion" or the "Association") breached its duty of fair representation when it refused to take his grievance to arbitration. The University of Windsor (the "University"), the employer in this case, has intervened. As remedies the applicant has requested that the Board refer his grievance to arbi­tration; that he be permitted to use counsel of his choice at the arbitration, but at the Faculty Asso­ciation's expense; and, that the Association be required to sign and distribute notices acknowledg­ing its violation of the Act.

3. Given the complexity of the allegations, it took 14 days to hear the applicant's case. The intervenor then made a motion to non-suit the applicant as it was argued that the applicant had not made out a case for the relief he was seeking. The parties' arguments, made over the course of three days, will be outlined below.

4. At the hearing the applicant was not represented by counsel. At the outset,.I explained to Dr. Winter that although persons involved in proceedings before the Board are entitled to appear before it without counsel or other representation, they do so at their own risk. It was explained to the applicant that the Board, as an adjudicative body, was unable to guide him in determining what evidence he should call to support his case, and that he would be responsible for the calling of evidence and the making of submissions to the Board. The Board is sensitive to the difficulties faced by persons who appear before it without representation. Consequently, I explained to Dr. Winter the general order of proceeding, that the applicant could make an opening statement, call witnesses, cross-examine any witnesses called by the other parties, and that he could make closing submissions based on the law and the evidence. I informed Dr. Winter that he could ask me questions about the proceedings at any time during the hearing, an offer of which Dr. Winter availed himself.

5. The applicant called four witnesses, and gave evidence himself, in support of his posi­tion. Sixty-one exhibits were filed by Dr. Winter. In coming to the findings of fact outlined below, I have carefully considered all of the oral and documentary evidence before me~ the submissions of the applicant and counsel, and the usual factors germane to assessing evidentiary credibility and reliability. I have also assessed what is most probable in the circumstances of the case, and have considered the inferences which may reasonably be drawn from the totality of the evidence. All of the witnesses called gave evidence in a straightforward manner, and to the best of their recollec­tion.

6. In order to make sense of the vast amount of evidence called it is worth outlining at the outset of what Dr. Winter complains:

1. that the Faculty Association's leadership was, for the most part, hos­tile towards him because of his "political creed and past events";

2. that the Faculty Association and/or Professor Ray Brown, the Asso­ciation's Industrial Relations Consultant, conducted a cursory, per­functory and narrow investigation of the timeliness issue regarding his grievance, and that the excuse of costs was used to decide not to take his grievance to arbitration. In particular, Dr. Winter notes that the legal opinion obtained by the Faculty Association was from an "in-house" source who not only had a conflict of interest by virtue of being a member of the Faculty Association, but whose opinion was incorrect;

3. that the majority of the Grievance Committee, the Executive Com­mittee and the Council of the Faculty Association acted in a manner which was arbitrary, discriminatory, and in bad faith towards him, and that they did not fully consider the merits of his grievance, the issue of academic freedom, and his argument that the delay issue would not be dispositive;

4. that the then Chair of the Grievance Committee, Professor Brian Etherington, is a lawyer and colleague of Professor Brown, that he concurred in the Brown assessment, and then used his position as a voting member of the various committees to vote and influence oth­ers against Dr. Winter's appeals. He is alleged to have acted arbitrar­ily and in bad faith in that his investigations of Dr. Winter's case were selective, superficial and perfunctory, and his representation of Dr. Winter's case was biased;

5. that members of the Grievance Committee sat as voting members on the Executive Committee on his appeal, and then members of the Executive Committee sat as voting members on the Council on his appeal to that level. Some persons, while they abstained from voting, argued in defence of their earlier decisions, which Dr. Winter sug­gests is a conflict of interest; and,

6. that several councillors, during the appeal to Council, evidenced hos­tility and ill-will towards Dr. Winter because of the political views he holds.

THE FACTS

7. Dr. Winter is an associate professor in the Communications Studies Department of the University of Windsor. He has been there since July 1981, when he started as an assistant profes­sor. Between 1982 and 1986 he was the chair of Graduate Studies for his department. He has writ­ten and published one book and has edited others. Dr. Winter has written extensively in his area of expertise and has made numerous presentations. Dr. Winter would describe himself as a union activist and as someone who has championed the cause of others. For the 1988-89 year he was elected to the Faculty Association's Council. He has also been elected for one other term on the Council and is presently elected to the Council from his Social Science faculty. In addition, since 1981 he has sat on the Council as a substitute on a number of occasions. Dr. Winter has acted as a Grievance Officer twice.

8. In 1984 - 1985 Dr. Winter gave a weekly three minute commentary on the local CBC affiliate radio station in Windsor. In one particular commentary on April 12, 1985 Dr. Winter dis­cussed the case of a female professor who had been by-passed for a permanent tenure-track posi­tion in the Political Science Department of the University of Windsor. She was allegedly passed over in favour of a male candidate who was related to a senior professor of that department. A furor resulted from the commentary as some professors at the University felt Dr. Winter should not have aired this matter publicly. However, no disciplinary or other action was taken against Dr. Winter by the University of Windsor in this regard.

9. In January 1987 Dr. Winter received a written offer of a tenure-track position as an associate professor and Director of the Centre for Mass Media Studies in the Graduate School of Joumalism at the University of Western Ontario. The offer was qualified to the extent that it was subject to the approval of the Vice President, Academic and the Board of Governors. However, in February 1987, after he had accepted the position, and had given notice of his impending depar­ture to the University of Windsor, ,he was informed that the offer from the University of Western Ontario had been withdrawn. It appears that Dean Tom Collins, the Vice President, Academic of that university had spoken to some officials of the University of Windsor and had been advised of the CBC incident. Dr. Winter's participation in that radio commentary was characterized by the Windsor officials as improper and as showing a lack of judgment, maturity, and leadership. As a consequence, Dean Collins withdrew the offer made to Dr. Winter.

10. In April 1987 Dr. Winter began the process of bringing a grievance against the adminis­tration of the University of Windsor. On June 8, 1987 a grievance was formally filed on behalf of Dr. Winter claiming that the University had violated his freedom of discussion and academic free­dom, contrary to Article 10 of the collective agreement. The grievance claimed that Gordon Wood, Vice-President, Academic for the University of Windsor, and other Windsor officials told Dean Collins that, based on the CBC incident, Dr. Winter lacked judgment, maturity, and leader­ship. The remedies sought in the grievance included a payment of $36,000 (the salary differential for the three year initial contract); that Dr. Winter's future prospects for promotion not be hin­dered by the views held by those concerned; that Dr. Winter have the right to inspect University files pertaining to him, and to correct any misleading information in those files; that in the future the University of Windsor administration refrain from saying harmful and prejudicial things about Dr. Winter; that Gordon Wood make a public apology; and, because the University of Western Ontario appointment had almost entirely involved research and advising on graduate theses, not teaching, that Dr. Winter's teaching load of six courses be reduced to no more than four courses per year in perpetuity.

11. Contemporaneous with the filing of the grievance, Dr. Winter began a civil suit for libel against Gordon Wood and the Board of Governors of the University of Windsor. Dr. Winter also filed a complaint with the Canadian Association of University Teachers (CAUT), Academic Free­dom and Tenure Committee, claiming a breach of his academic freedom. Soon after the filing of the grievance the Grievance Committee of the Faculty Association decided that, due to the hear­say nature of the allegations, more information would be needed to pursue the grievance. Profes­sor Don Wallen, the then chair of the Grievance Committee, advised Dr. Winter that the Commit­tee also had some concerns about supporting his remedies regarding financial reimbursement as there was a lack of precedent for such remedies. Dr. Winter was asked to revise the remedies, but he refused to do so. Despite its misgivings, the Grievance Committee decided unanimously on October 14, 1987 that it would "hold firm in negotiating all the remedies contained in the griev­ance at this point in time".

12. Following discussions with the University administration an agreement was reached, the substance of which is contained in the following letter dated October 23, 1987 from Professor Bob Kerr, a Vice-President of the Faculty Association, and the then Grievance Committee chair, to Professor Charlie James, the Executive Assistant to the President of the University:

In confirmation of our telephone conversation, I understand that you are agreeable to waive the normal time limits for notification from the Faculty Association of intent to proceed to arbitra­tion in this matter until a reasonable time after the discovery process in Dr. Winter's civil suit has been concluded so that the Faculty Association may have an opportunity to review the documenta­tion exchanged in the civil suit before deciding whether to proceed to arbitration. I would be grateful if you would confirm this.

(emphasis added)

Professor James responded on October 26, 1987 with the following memorandum:

I am writing to confirm that the University is agreeable to waiving the 14 day time limit for noti­fication of intention to proceed to arbitration required by Article 39:13(a) of the Collective Agreement, 1987-1990. My information is that Examinations for Discovery in relation to Dr. Winter's slander action will be conducted shortly and I will leave it to you to contact me as soon as you are able to do so.

(emphasis added)

13. While it is evident from the testimony that Dr. Winter was not happy about the deferral of his grievance pending the outcome of discoveries, and his lawyer, Robert Barlow, contacted Professor Kerr to indicate as much, both Dr. Winter and his lawyer did apparently agree to it. In his letter to Dr. Winter, dated November 5, 1987, Robert Barlow, then of Blaney, McMurtry, Sta­pells, related his discussion with Professor Kerr, and went on to state: "I agree with John's view [Dr. Winter's brother] that we should perhaps wait to see how the lawsuit unfolds before forcing the grievance committee to complete its inquiries and reach a determination." It is also significant that at that juncture everyone understood that the Grievance Committee had not determined whether it would proceed to arbitration with Dr. Winter's grievance. The Faculty Association did not provide Dr. Winter with the correspondence regarding the deferral of his grievance until March of 1994. However, while Dr. Winter never knew the exact terms of the agreement between the administration and the Faculty Association, it is clear from his lawyer's letter to him dated November 5, 1987, that he knew the salient feature of the agreement. That letter indicates:

I conveyed to him your concerns that the grievance committee is holding off on completing its inquiries pending the results of the examinations for discovery in the litigation.

14. The Grievance Committee of the Faculty Association is elected by the membership. The Chair of that committee is also a member of the Executive Committee of the Association. The other four members of the committee are elected for two year terms and may or may not hold some position on the Executive. Executive Committee members are elected and may also be mem­bers of the Joint Council of the Faculty Association.

15. The examinations for discovery of Gordon Wood and Dr. Winter occurred on March 28, 1988. While Dr. Winter's discovery was not completed at that time, or indeed ever, a transcript of Professor Wood's discovery was sent to Dr. Winter by June 1988. Dr. Winter's discovery was scheduled to continue on two occasions in 1989, but did not. His counsel, Robert Barlow, had left the firm of Blaney, McMurtry and had joined the firm of Fasken & Calvin. However, since Dr. Winter had not paid an outstanding bill at Blaney, McMurtry, that firm would not release his file to Mr. Barlow. Mr. Barlow appears to have indicated to Dr. Winter that he could not continue without the file, but should be able to get the file by applying to the Court to have it released. Dr. Winter appears never to have paid the former firm and the file was never released. The civil action seems to have stalled in 1989.

16. In 1988 the Grievance Committee supported another Winter grievance and took it to arbitration. In that case Dr. Winter had been denied a promotion and it was alleged that Vice Pres­ident, Academic Gordon Wood had wrongly sat on the committee deciding on the promotion. The grievance was ultimately successful.

17. To establish that Dr. Winter had been discriminated against because of his political views, a great deal of evidence was called about Dr. Winter's general activities, about the 1988 Faculty Association elections, the aftermath of that election, and Dr. Winter's editorship of the Association newsletter. Dr. Winter has made presentations to the organized labour movement including to such bodies as the Ontario Federation of Labour and the Canadian Auto Workers Union. An example of his activism on the campus was his role in encouraging the divestment of funds from South Africa in order to remove financial support for the apartheid regime of that time. He is a left wing, progressive activist both at the University and generally in the Windsor commu­nity.

18. In 1986 Dr. Winter was the Chair of Graduate Studies for the Communications faculty, and was the head of Press Studies. However, he resigned from all of his administrative roles when his colleague, Professor Irv Goldman, was denied tenure after the faculty committee had unani­mously recommended him for tenure. Dr. Winter and others wrote to the President of the Univer­sity, Mr. Ron lanni, to appeal the denial but were unsuccessful. Dr. Winter became active in Pro­fessor Goldman's grievance regarding his situation and participated in organizing demonstrations in support of Goldman. Following a grievance arbitration, Professor Goldman was successful and his situation was to be reconsidered in two years. However, initially the University refused to rein­state Goldman and said it would judicially review the arbitration award. It eventually honoured the award. In the course of this matter Dr. Winter had a difference of opinion with Professor Chatter­jee about how the Goldman matter had been handled. Also, it appears Professor Ray Brown, the Industrial Relations Consultant, had recommended against going to arbitration, but Council had decided to take the case forward. Dr. Winter relies on this set of circumstances to advance his con­tention that Professor Chatterjee was biased against him and for the proposition that Professor Brown can be wrong in his assessment of a situation.

19. In and around 1988 some faculty members were dissatisfied with the apparently cozy relationship between the Executive of the Association and the University administration. There­fore, Dr. Winter and others decided to run a slate of progressive candidates for the 1988 election to the Executive and the Council. Election material was sent out to those faculty members who were known to be progressive, and they were asked to consider voting for the slate. Professor Bird took umbrage to the campaign and circulated a memo to his Classics department deploring the activities of Dr. Winter and his compatriots. Some correspondence between Dr. Winter and Professor Bird followed in which Bird referred to Dr. Winter's activities as being of a Marxist nature. It is Dr. Winter's view that after that time Professor Bird has never agreed with him on any issue at a meet­ing.

20. After the election it became obvious that the campaign had been successful and, among others, Dr. Winter was elected to the Executive. In his office of Vice President, Internal he also held the position of the Editor of the Association newsletter. Professor Emily Carasco, one of the Winter slate of candidates, became the President of the Faculty Association.

21. In August 1988 Dr. Winter published the first edition of the newsletter under his editor­ship. He saw his role as being pro-active on behalf of the Association, and to take the University administration to task when it was necessary. Up to that time the newsletter had had a collegial rather than a confrontational style. The editions of the newsletter put out while Dr. Winter was the Editor were more combative than had been the norm for the Association.

22. At the first Executive meeting after the August newsletter had issued, the President of the Faculty Association, Professor Emily Carasco, signified her discomfort with the new style and Professor Ray Brown, the Faculty Association's legal advisor, had also expressed concern about the tone and content of the newsletter. Following extensive discussion motions passed such that in the future individual grievances or potential grievances could not be identified unless they were going to arbitration, or if the individual grievor gave permission; in future the contents of the newsletter, except for the Editorial and Opinion pages, would be considered the responsibility of the Executive; and, the President, and Vice-President, External would review the content of the newsletter. Any difficulties were to be resolved by the Executive Committee. Professor Chatterjee was instrumental in moving or seconding the motions.

23. From that point on every month until December 1988 there were directions given or motions passed to further limit Dr. Winter's editorial powers. Professor Carasco appears to have complained about all manner of things in an effort to limit the Editor's powers and to ensure that newsletter issues were brought to the Executive, rather than left at the sub-committee where she could be outvoted. Finally, on December 12, 1988 there was a motion made to remove Dr. Winter from the Editor position. The motion was defeated, but production of the newsletter was stopped until the Joint Council could consider the matter. On December 14, 1988 a Council meeting was held at which time Dr. Winter was removed from the position of Editor of the newsletter. In and around June 1989, at the end of his term of office as Vice President, Internal Dr. Winter had to give an annual report. Normally that report would be accepted by the Executive first and then printed by the Faculty Association for the General Meeting. The Executive refused to approve Dr. Winter's report and he was forced to have his report printed himself.

24. It is undisputed that this sequence of events, and the actions taken against Dr. Winter, were unprecedented in the Faculty Association.

25. Between October 1987 and December 1993 there had been sporadic contact between the Grievance Committee and Dr. Winter regarding his unsolicited references grievance. In March 1991, since the Committee had not heard from Dr. Winter about the progress of the discoveries, Don Wallen, the then Chair of the Grievance Committee, spoke to Dr. Winter and asked him what was happening with the lawsuit. In a letter dated March 19, 1991 Dr. Winter wrote to Profes­sor Wallen and said he wished to proceed with his grievance.

26. Dr. Winter was invited to attend a Faculty Association Grievance Committee meeting on May 1, 1991 to discuss his grievance. In addition to the Committee members and Dr. Winter, Professor Ray Brown, was present. Professor Brown has been on a retainer with the Faculty Asso­ciation since the 1970's. He teaches at the Faculty of Law of the University, and is in the Faculty Association himself. There is no dispute that Professor Brown is a labour law scholar. As needed, the Faculty Association Grievance Committee or the Executive refer matters to Professor Brown for legal opinions. When it does so the Association provides him with whatever documentation it has, but it is not customary for Professor Brown to interview the grievor or conduct an investigation of a situation on his own. The Faculty Association tends to use outside counsel or counsel from the Canadian Association of University Teachers when it needs someone to act on its behalf. It may also seek advice from outside counsel when Professor Brown declares a conflict of interest, or when a question is posed which is outside of his area of expertise.

27. At the May 1, 1991 meeting Dr. Winter told the Committee his lawsuit was in abeyance due to his financial constraints and that he owed Mr. Barlow's old law firm $4,000. Dr. Winter read out sections of the examination for discovery of Gordon Wood to indicate information sup­portive of his grievance. While Dr. Winter had had the transcript of the discovery since June 1988, he had been told by his counsel that he should not show it to people. Professor Brown indicated that the University of Western Ontario's Dean Collins' evidence was critical to assessing the strength of Dr. Winter's grievance. Dr. Winter said he would try to have Dean Collins examined for discovery. It is now clear that since Dean Collins was not a party to the civil action he could not have been compelled to submit to an examination for discovery without leave of the Court. How­ever, at that juncture, it is clear that Professor Brown was strongly of the view that Dean Collins' discovery was important. After Dr. Winter left the meeting the Committee and Professor Brown discussed the grievance further. They considered whether the issue should be refrained as a policy grievance, but chose not to do that. There was a long discussion about the merits of the grievance, the harm suffered by Dr. Winter, and the decision was made to wait for the discovery process to finish. Professor Brown felt the case was weak at this stage. The Committee began to consider con­tributing $3,000 towards Dr. Winter's legal fees to help him continue the discovery process.

28. It would appear that Mr. Barlow may not have properly explained to Dr. Winter how costs would mount in the litigation, and as Mr. Barlow did not seek regular payments, Dr. Winter had no idea of the real cost of the lawsuit. When Dr. Winter did not pay Mr. Barlow's first law firm, Mr. Barlow appears not to have fully explained the consequences of such non-payment. It also appears he did not tell Dr. Winter of dates when he was supposed to have been available to continue discoveries, and when the defendants were making motions before the Court. Dr. Winter appears to have believed that his litigation was proceeding, when in reality little progress was being made. Notwithstanding these problems however, it is clear that in May 1991 Dr. Winter had known for one year that his file would not be released from Blaney, McMurtry without him work­ing out a payment schedule to cover his outstanding bill. He also knew that his lawyer needed his file to proceed. He never told the Grievance Committee about any of this because he felt these were technical problems which could be resolved.

29. On May 6, 1991, at the next Grievance Committee meeting, the Committee voted una­nimously to make the $3,000 contribution to Dr. Winter's legal fees, especially in light of Professor Brown's suggestion that Dean Collins' evidence was necessary. The motion was moved by Profes­sor Forrest and seconded by Professor Pinto. The Committee also decided not to proceed with the grievance at that time, pending the outcome of the examination for discovery.

30. In the normal course the motion should have been forwarded to the Executive to approve the monetary commitment, and a letter should have gone to Dr. Winter informing him of the Grievance Committee's decision. However, as the summer vacation had commenced, the mat­ter was not dealt with, although Dr. Winter was informed of the decisions. In November 1991 Dr. Winter still had not received any confirmation of the motion, nor had he received the money. He asked that the President of the Faculty Association do the letter confirming the allocation because he thought it may be helpful to Mr. Barlow in getting his file. In July 1992 Dr. Winter still had not received this letter. At the Grievance Committee meeting of August 6, 1992 a motion was passed to indicate that if Dr. Winter recovered his costs for the discovery process, he was to repay the $3,000. In September 1992, after Professor Brown, the Industrial Relations Consultant, had vetted the letter, it was finally sent to Dr. Winter. In all it took the Faculty Association 16 months to get the letter to the applicant, and in the final analysis, the money was never paid to him. It is unclear whether Dr. Winter ever sent Mr. Barlow the letter, or told Mr. Barlow about the Faculty Associ­ation's interest in having Dean Collins examined.

31. On November 25, 1992 counsel for the University wrote to inform Dr. Winter that the Ontario Court (General Division) had dismissed his action on May 2, 1990, with costs payable to the defendants. From the Court's order it is apparent that at a status hearing on February 2,1990 the Court had ordered that the action be listed for trial by May 1,1990. Since this was not done, on May 2,1990 the Court had dismissed Dr. Winter's libel action. No one appears to have been told about the dismissal and it was not until late in 1992 that the defendants became aware of it. Dr. Winter's counsel had never informed him of the dismissal.

32. At Christmas in 1992 Dr. Winter spoke to his brother, John Winter, a lawyer, about the Court order. However, no further action was taken. In early June 1993 Dr. Winter again spoke to his brother about the Court order, and he claims he then realized the import of it. Between that time and December, 1993 he sought legal advice and attempted to establish what monies he owed the University of Windsor for the civil suit. It was not until December 15, 1993, a year after he had received notice of the dismissal of his civil suit, that Dr. Winter wrote a lengthy letter to the Fac­ulty Association about the dismissal of the civil action, and to request that his grievance be re-acti­vated. He also requested that the Association approve the allocation of $3,000 which had been set aside for his lawsuit to assist him in paying the $6,330.53 owing in legal costs of the defendants, as ordered by the Court.

33. At this point it had been about 5.5 years since the examinations for discovery had been discontinued, about 3.5 years since the case had been dismissed, and one year since Dr. Winter had known about the dismissal. The extent of the Grievance Committee members' knowledge of the state of the discoveries was what Dr. Winter had told them at the May 1991 meeting. At the January 2, 1994 Grievance Committee meeting a motion passed to reactivate the Winter grievance at Step 3 of the grievance procedure. The Committee agreed to ask the University administration for further documentation and information, and the Committee resolved to consider what would be appropriate remedies.

34. In early January 1994 Professor Brian Etherington spoke to the University administra­tion and to Dr. Winter about the case. Dr. Winter was asked what remedies he was still seeking, and he responded with a letter on February 3, 1994. He proposed the following remedies to avoid going to arbitration:

35. that the administration establish a formal agreement with the Faculty Association such that administrators not provide references for fac­ulty members unless asked to do so by the faculty members them­selves;

36. a written apology from the administration for infringing on his aca­demic freedom and freedom of speech, and for making prejudicial statements which damaged Dr. Winter's academic career;

37. a lump sum payment of $36,000;

38. that his teaching load be waived for three years, but that his depart­ment receive the monetary equivalent to fund five sessional lecture courses for each of the three years; and,

39. the administration pay his legal costs totalling approximately $10,300.

40. From the correspondence it is evident that Brian Etherington, on behalf of the Griev­ance Committee, had met with Dr. Jones of the University administration on January 26, 1994 to inform him that Dr. Winter wished to reactivate his grievance. At that time Professor Etherington asked the administration to provide to the Faculty Association written statements which the administration had taken from those persons alleged to have given the University of Western Ontario references about Dr. Winter. The January 28, 1994 Grievance Committee meeting minutes indicate he and the administration had talked about settling the grievance for Dr. Winter's legal costs and a joint protocol on unsolicited references. Preliminary discussions were held with the Vice- President, Academic who indicated he was willing to write a cautionary note about the type of communication which had led to the Winter grievance, and to have such a note distributed throughout the University. It was common practice for the Faculty Association to explore with the administration remedies, other than those named by the grievor, in an effort to find common ground for a resolution without going to arbitration.

41. After receiving Dr. Winter's letter regarding the remedies he was seeking, Professor Etherington again met with the administration and indicated that Dr. Winter was now seeking some different remedies. That letter was also circulated to the Grievance Committee, which was somewhat taken aback by Dr. Winter's list of revised remedies. It was believed what he was seek­ing would never be possible short of grievance arbitration, even if there had been a good case. It seems clear in retrospect that had Dr. Winter put forward more reasonable settlement terms, Pro­fessor Etherington may have considered trying to negotiate them. When Professor Anne Forrest was asked why no one spoke to Dr. Winter about this, she indicated the Grievance Committee does not try to get a grievor to change his/her mind, so it would not have been part of the normal practice to speak to Dr. Winter about his remedy list.

42. In late February Professor Etherington again asked the administration for the written statements. However, as Professor Charlie James was away, the administration could not respond at that time. At the March 11, 1994 Grievance Committee meeting Professor Etherington indi­cated his concern that the grievance would be denied because of the expiry of the time limits. Nonetheless, it was decided that he would write to the administration to ask for further informa­tion. On March 21, 1994 Professor Etherington had another meeting with the administration and learned that Professor James felt the grievance was no longer timely as "some reasonable time" after the discoveries were complete had long since expired and the civil action had been dismissed a number of years previously.

43. It would appear this was the first indication the Faculty Association Grievance Commit­tee received that the University would be denying the grievance proceeding any further on the basis of delay. In late March 1994 Professor Etherington wrote to the administration to formally request the documentation he was seeking. He also wrote to Dr. Winter to inform him of all of the developments and to tell him that the Grievance Committee was seeking a legal opinion from Pro­fessor Ray Brown. The question being referred was the likelihood of the University succeeding in an objection, on the basis of delay, to the grievance being arbitrated. Ray Brown had been sent Dr. Winter's December 1993 eight page letter to the Faculty Association explaining the history of his case and asking to reactivate his grievance, and the correspondence between the Faculty Asso­ciation and the administration in October 1987 putting the grievance on hold.

44. By way of a two-page letter dated April 4, 1994 Professor Ray Brown gave the Griev­ance Committee his legal opinion that based on the material before him there were no reasonable

grounds for an arbitrator to grant an extension on the time limits for the Winter grievance, and, he opined, an arbitrator was likely to find that the University would be substantially prejudiced by any such extension. In his view "a grievor cannot extend the time of the waiver by being remiss in pursuing discoveries", "even if the fault lies with his lawyers". He felt that an arbitrator would find that once Dr. Winter knew his action had been dismissed he had an obligation to notify the Faculty Association to request re-activation of his grievance.

40. Sometime prior to the April 18, 1994 Grievance committee meeting the University for­mally notified the Grievance Committee that it objected, on the basis of delay, to any attempt to reactivate the Winter grievance. Whether a grievance will proceed to arbitration is decided by the Grievance Committee of the Faculty Association. It may consult with a grievor, but ultimately it is the Grievance Committee which decides on the carriage of any grievance. The Grievance Commit­tee voted not to support the Winter grievance to arbitration. While there were mixed views on the Committee about the academic freedom issue in this grievance, the members of the Committee agreed that it was very likely that an arbitrator would uphold the University's position that the grievance was out of time. While the issue raised in the grievance was important, it was felt that one of the implications of taking a weak case to arbitration was that a bad decision may issue from an arbitrator.

41. By letter dated April 21, 1994 Professor Etherington informed Dr. Winter that after considering all of the relevant information, and the legal opinion of Ray Brown, the Grievance Committee had decided not to refer his grievance to arbitration. The reasons given for the decision were the likelihood of success of the University's. preliminary objection regarding the unreasonable delay if the matter were referred to arbitration, and, the Grievance Committee's continuing con­cern about the adequacy of an evidentiary basis for the grievance itself. Dr. Winter was informed of his right to appeal this decision to the Executive Committee of the Faculty Association.

42. Throughout the period from January 1994 on Professor Etherington reported on the progress of the Winter grievance to the Executive Committee. That committee met weekly and the Grievance Committee chair was responsible for giving an update on the status of grievances which may be active or moving from one stage to the next in the grievance procedure. The Ray Brown opinion letter had been circulated to the Executive, as had the grievance, and Dr. Winter's letter of December 1993.

43. Dr. Winter did avail himself of his right to appeal, and was scheduled to be heard by the Executive Committee on May 25, 1994. However, since there was poor attendance at that meeting, it was suggested by Professor Bruce Tucker, the then President of the Faculty Association, that the matter be put off for a week. Dr. Winter agreed, distributed some additional documentation he would be relying upon, and left the meeting.

44. On June 1, 1994 Dr. Winter's appeal was heard by the Executive Committee of the Fac­ulty Association. He gave a five page presentation in which he discussed the delay issue, his view of how it may be dealt with, and how he believed an arbitrator would rule in his favour on the delay issue since the discovery had in fact never been completed. Dr. Winter also noted that the decision to put his grievance on hold had been reached between the Association and the adminis­tration, without his participation. Dr. Winter questioned Ray Brown's legal opinion. At appeals it is expected that a grievor/appellant will present his/her own case for reconsideration, and that the Grievance Committee Chair will present that committee' reasons for its decision. Hence, Professor Etherington went over the chronology of the grievance, gave the Grievance Committee's reasons for not recommending that the grievance proceed to arbitration, and he answered questions. He anticipated what the University's arguments would be, what could be expected at arbitration, and what the risks and possibilities were in the circumstances. After the presentation, Dr. Winter answered questions from the Executive and then left the meeting.

45. There was a significant concern about the timeliness problem and Professor Etherington did not agree with Dr. Winter's view that an arbitrator would rule in Dr. Winter's favour. He was of the view that the onus was on Dr. Winter to explain the inordinate delay, and that Dr. Winter did not have a compelling enough reason for that delay. Members of the Executive were divided about the academic freedom issue, some being supportive of Dr. Winter's position. It appears the Executive discussed the material before it regarding the merits of the grievance, and noted that despite efforts made to have the University disclose further information to the Association~ there had been no success. Concern was expressed that Professor Bob Kerr, who had brokered the origi­nal deal to delay the grievance, was very ill and therefore unavailable for any hearing (He died in the Fall of 1994).

46. Thereafter the Executive voted unanimously, by secret ballot, to accept the recommen­dation of the Grievance Committee not to pursue the grievance to arbitration. It is noteworthy that Professor Etherington and other Grievance Committee members on the Executive agreed to abstain from voting on this issue. The decision was later communicated to Dr. Winter and he was advised of his right to appeal the Executive decision to the Joint Council of the Faculty Associa­tion.

47. By a letter dated June 17, 1994 the CAUT informed Dr. Winter that it would not be pursuing his complaint any further. The letter from Mariette Blanchette, the Secretary of the Aca­demic Freedom and Tenure Committee states:

Unfortunately, after careful consideration, the Committee came to the conclusion that the time period involved in your case cannot be ignored. Furthermore, there is a definite lack of evidence and the Committee came to the conclusion that there is nothing in its mandate or terms of refer­ence which it could use to take action in your case.

(emphasis added)

48. Dr. Winter appealed the Executive Committee's decision to the Faculty Association Joint Council. The Council is comprised of between 40 and 44 members, each elected from within his/her departmental unit. It has the final authority within the Faculty Association. On June 22, 1994 Dr. Winter's appeal was the last item on the Council's agenda so it came up towards the end of what are usually about two hour meetings. He had provided the text of his presentation to the members of Council the day before and began to give the presentation orally. Professor Meyer complained to the Chair of the meeting, Professor Bruce Tucker, that Dr. Winter was reading from the presentation. Professor Woodyard said Dr. Winter should be allowed to make his presen­tation as he wished to. In the interest of fairness it was decided that the written presentation would be circulated to all of the Council members who were not present, that everyone would then have the opportunity to read it, and that a meeting would be scheduled on June 28, 1994 to hear Dr. Winter's presentation more fully. Dr. Winter had no objection to this course of action.

49. One week later, on June 28, 1994 Dr. Winter's appeal to the Faculty Association Joint Council was heard. In his ten and one half page, single spaced written presentation distributed on June 22, 1994, Dr. Winter dealt extensively with jurisprudence regarding the issue of delay in bringing a grievance to arbitration. He also discussed the doctrine of promissory estoppel. Dr. Winter explained the reasons for the delay in his case, was of the view that he had exercised due diligence, and felt that the Faculty Association and the administration were partially at fault for the delay. He suggested that the problems of the legal system, and the inaction of his lawyer, were also factors. At the appeal meeting itself Dr. Winter presented a further three and one half page single-spaced presentation orally. In that presentation he outlined the background to his grievance, read excerpts from the discovery of Gordon Wood, referred to the relevant articles of the collective agreement, in particular those dealing with academic freedom, and he further explained the delay in pursuing the grievance. Dr. Winter discussed case law outlining the factors considered by labour arbitrators in assessing whether to exercise their discretion to allow a case to proceed even when there had been a delay in proceeding to arbitration. He felt he was personally responsible only for six months of the delay, from December 1992 to June 1993.

50. Twenty two council members were present at the beginning of the meeting of June 28,

1994, in addition to Dr. Winter and Professor Tucker, the Chair of the meeting. The Council had been provided with all of the documentation on Dr. Winter's grievance, the document he wrote to the Executive on his appeal, and the material he had given to Council for the previous date. Dr. Winter was invited to make his presentation, the substance of which is outlined above. There were then questions from the Council members and responses were given by Dr. Winter and by others. From the oral evidence and the minutes of the meeting it is clear that a full discussion ensued after the presentation.

51. There was some support expressed for Dr. Winter's position, and for the proposition that the Faculty Association should protect academic freedom (in a later conversation with Dr. Winter Professor Tucker told him four Council members made "very strong representations" in support of Dr. Winter). Professor Woodyard was impressed with the legal presentation made by Dr. Winter, and he argued at the Council meeting that costs should not be a hindrance to the grievance proceeding. Professor Woodyard also expressed his concern that the academic freedom issue was an important one. However, there were also those who did not feel there had been a breach of academic freedom in this case. There was discussion about the delay, the impact of that delay on the likely success of the grievance, the costs which an arbitration may entail~ and the like­lihood of success on the merits of the grievance.

52. Professor Etherington's role at the Council meeting, and indeed at the earlier Executive

meeting, had been to present the view of the Grievance Committee in support of its recommenda­tion, and to answer questions. At the beginning of his tenure as the Grievance Committee chair

Professor Etherington had advised the Faculty Association that he was not acting in the capacity of

a lawyer and would not be dispensing legal advice or giving legal opinions.

53. When the issue of the cost of an arbitration was raised, Professor Meyer said he felt the Association should not spend $75,000 on this grievance. Professor Meyer appears to have been aggressive and argumentative, as was his style. Dr. Winter describes Professor Meyer as his politi­cal enemy within the Association. In order to ensure that the Council was discussing realistic fig­ures, and in order to keep the meeting orderly and fair, Professor Tucker requested that the Asso­ciation's Resource Officer provide average figures for the cost of Association grievances. Those figures indicated it cost an average of $8,000 to $8,500 for a grievance to be arbitrated. Brian Eth­erington informed the Council that the Winter grievance was unlikely to cost just $8,500 since it was a complex case. It is undisputed that the Faculty Association was financially sound, but as Pro­fessor Tucker pointed out in his testimony, the Association must still decide whether a grievance has merit before it will support it at arbitration.

54. There was ongoing discussion about the merits of the grievance. It appears to have been the majority view that there was insufficient evidence to support Dr. Winter's grievance at an arbi­tration. On the specific issue of academic freedom, Professors Bird and Lewis voiced their views that Dr. Winter's academic freedom had not been violated. Brian Etherington indicated there had been ambivalence at the Grievance Committee and at the Executive Committee about whether there had been a breach of Dr. Winter's academic freedom. Professor Anne Forrest indicated she felt that academic freedom was an important issue in this case, but that an arbitrator would not get to the merits of the case because it would be dismissed on the basis of delay. Although Professor Forrest heard Dr. Winter's legal submission she was not persuaded by it as she felt he had over­stepped his expertise and did not comprehend the legal complexity of the issues.

55. The delay issue dominated the discussion at the Council. Professor Etherington explained to the Council the argument the administration could make about the time which had elapsed and that Dr. Winter did not have the extenuating circumstances of suffering from alcohol­ism or some other incapacitating ailment which could be said to have prevented him from pursuing his grievance in a more timely fashion. Professor Etherington indicated to the Council that he agreed with Professor Ray Brown's legal opinion. Professor Anne Forrest, who had been on the Grievance Committee as well, expressed her view that an arbitrator may never get to the merits of the grievance because the delay argument would be so compelling that an arbitrator would not hear the matter further.

56. Dr. Winter expressed his concern that Professor Brown's opinion never dealt with the merits of his grievance (that was not an issue submitted to Ray Brown for his opinion), never con­sidered the doctrine of promissory estoppel, and did not consider whether the language in the col­lective agreement regarding time limits was mandatory or directory. He told the Council he too had obtained a legal opinion and that it was contrary to that of Professor Brown. However, Dr. Winter never produced this legal opinion, and did not rely upon it at the hearing of this complaint. Dr. Winter has no legal training. Both Dr. Winter and Professor Woodyard contend that the Council was unduly swayed by the legal opinion and Professor Etherington's views because both came from lawyers.

57. Dr. Winter was invited to summarize his appeal before he left the meeting, which he did. It is clear that anyone who had anything to say was able to participate in the discussion at this meeting which lasted about two hours. There was no set time for the meeting to end, and discus­sion only stopped when there was a motion from a Council member to close discussion and move to the vote. The constitution of the Association does not require that when an appeal is heard, that members of the earlier deciding body should abstain from voting on the appeal. Nonetheless, Pro­fessor Etherington, the Chair of the Grievance Committee left the meeting so as not to participate in the vote. He also encouraged the members of the Grievance Committee not to vote at the Coun­cil, and Professors Forrest and McPhail, who had been on the Grievance Committee, abstained from voting. However, three members of the Executive (Professors Brown [not Ray Brown]; Solo­mon, and Chatterjee) did vote at the Council meeting, despite Professor Tucker's suggestion that they too abstain from voting. Dr. Winter contends that even though the constitution does not address the conflict of interest inherent in people voting when it is their decision that is being appealed, as a matter of conscience people should have abstained. The result of the secret ballot vote was 10 to 6 in favour of supporting the Executive decision not to take Dr. Winter's grievance to arbitration (with two abstentions).

58. Professor Tucker subsequently informed Dr. Winter of the outcome of the Joint Coun­cil meeting, and that his appeal had failed. On July 19, 1994 Dr. Winter and Professor Tucker had a telephone conversation in which Professor Tucker tried to explain to Dr. Winter how some of the comments made at the Joint Council meeting had to be taken in context, and considered in light of who was making the comments. Professor Tucker asked Dr. Winter his thoughts about the process and procedures utilized by the Faculty Association in relation to the appeal process as he wished to deal with Dr. Winter's apparent concern about conflicts of interest at the various voting levels.

59. The Faculty Association sent Dr. Winter a copy of the draft minutes of that meeting so he could make corrections he felt should be made regarding his presentation. Dr. Winter responded on July 25, 1994 with a letter which listed a variety of his concerns, suggested that the text of his presentation be appended to the minutes, and that the minutes more accurately reflect the various interchanges between himself and others. The Association did append his presentation to the minutes, but did not change its usual format for minutes as suggested by Dr. Winter.

60. The constitution of the Association has provision for the reopening of debate on a mat­ter decided by the Joint Council if a member who voted in favour of a motion wishes to raise the matter afresh. No one asked to reconsider the Winter matter, so the matter was finally decided at this juncture.

61. Following the Council's decision Dr. Winter had some telephone contact with Professor Tucker about the conduct of the Council meeting. On September 1,1994 Dr. Winter filed this application with the Labour Relations Board.

"ANTI-WINTER ANIMUS"

62. In addition to the way in which Dr. Winter's grievance was handled, Dr. Winter has also complained that people within the Faculty Association did not like him, and that he was there­fore treated improperly because of what he characterized as an "anti-Winter animus". Dr. Winter based his argument on some of what has already been outlined above. However, Dr. Winter also asked his witnesses about other examples they knew of where Faculty Association members, who had participated in the decision-making about his grievance, had made derogatory comments about him.

63. Professor Woodyard's evidence indicated Dr. Winter is not very well liked among most of the people who hold positions of power in the Faculty Association. Specific examples of expres­sions of these views were not given, and I am therefore unable to rely on this testimony for the proposition that Dr. Winter was viewed unfavourably. It appears that from among the faculty of the University, only three persons are outspoken in their criticism of the administration, and two of those persons are Dr. Winter and Professor Woodyard.

64. Dr. Bruce Tucker was subpoenaed by Dr. Winter to give evidence for the applicant. He was the President of the Faculty Association during the period when Dr. Winter reactivated his grievance in December 1993 and throughout the appeals in 1994. As President, Professor Tucker chaired the Executive Committee and the Joint Council, and sat as an ex officio member of the Grievance Committee. He has no right to vote on the Grievance Committee, and only votes at the other two committees in the event of a tie. He never voted on motions regarding Dr. Winter's grievance.

65. Professor Tucker, who identified himself as being on the left of the political spectrum, never heard any person say anything derogatory about Dr. Winter, nor discuss the fact that Dr. Winter is left wing. During the entire process Dr. Winter never raised with him or anyone else at the Faculty Association that he felt Professors Ray Brown and Brian Etherington had a conflict of interest with respect to his grievance. The constitution of the Association does not disallow such voting, but in any event, Dr. Winter never suggested to Professor Tucker at the time of the meet­ing that there was anything improper about members of the Executive voting at the Council meet­ing. In any event, Professor Tucker, of his own volition, attempted to get Executive members to voluntarily abstain from voting on the Winter appeal at the Joint Council.

66. From all of the evidence it is clear that Professor Ben Meyer is often aggressive and rude at meetings, and that Dr. Winter was not necessarily singled out in this regard at the Joint Council meeting. However, from Professor Woodyard's evidence it seems Professor Meyer has suggested he does not like Dr. Winter.

67. It is apparent from Professor Tucker's experience that Professors Drake and Solomon hold financially conservative views, and that this manifests itself in all sorts of matters. However, it is difficult to see how their views can have any bearing on this complaint since Professor Drake was not at the Council meeting in question, and there is no evidence before me that Professor Solomon spoke on this topic at Dr. Winter's appeal to the Council. There is also no evidence that the poten­tial cost of an arbitration was ever discussed at the appeal to the Executive, at which Professor Sol­omon was present.

68. Dr. Winter called evidence through Professor Anne Forrest about another grievor whose grievance had been taken to arbitration despite an apparent timeliness problem. The issue in that case was quite different from Dr. Winter's, and I am satisfied that the Faculty Association Grievance Committee did not act in a discriminatory fashion towards Dr. Winter in treating his case differently from the other grievor.

REASONS FOR DELAY

69. Throughout his testimony Dr. Winter explained what had been happening in his life during the period in question. He admitted that between 1987 and 1991 there was hardly any com­munication between himself and the Faculty Association. In 1990 he had bought a house in Wheat­ley, which is some distance from Windsor, so that he and his wife spent a lot of time commuting. Also in 1990 Dr. Winter's first child was born. In the spring of 1991 he tried unsuccessfully to get a lawyer in Windsor to take over his case, so he left it with Mr. Barlow. Dr. Winter believes that Mr. Barlow did not work very diligently on his behalf. In the spring of 1992 Dr. Winter had his last communication from Mr. Barlow. At that time Dr. Winter was told the Court had granted an extension on the time to pursue the lawsuit, but that Dr. Winter had to pay the costs of a motion to the defendants.

70. As noted earlier, it was not until late November 1993 that Dr. Winter learned from counsel for the defendants that his civil suit had been dismissed and that costs in the action had been awarded against him. His own counsel never returned his phone calls. Dr. Winter maintains he was confused about the meaning of the dismissal, although he spoke to his lawyer brother about it at Christmas in December 1992. His brother was aghast at what Mr. Barlow had done and encouraged Dr. Winter to go before a judge to have the dismissal overturned on the grounds of Mr. Barlow's negligence.

71. Dr. Winter indicated he had been very busy in this period of time, researching and writ­ing articles, doing interviews, and teaching. In 1992 he had sold the house in Wheatley and had moved back to Windsor. In September 1992 his second child was born. In any event, after Decem­ber 1992, he did not take action on his brother's advice, and claims he still did not fully understand the import of the dismissal. It is Dr. Winter's view that the University should have informed the Faculty Association of the dismissal. He did not do so himself until one year later.

72. It was not until June 1993, when Dr. Winter again saw his brother, that he claims he fully realized the implications of the dismissal of his lawsuit. Thereafter Dr. Winter spoke to three lawyers before he decided on June 23, 1993 not to pursue that matter any further. Due to the nor­mal delays in corresponding, it took from July to November 1993 for Dr. Winter to apprise himself of how much he owed in court costs for the judgment against him. On November 25, 1993 Dr. Winter filed a complaint against Mr. Barlow with the Law Society of Upper Canada (which was ultimately settled to Dr. Winter's satisfaction). Two weeks later he wrote to the Faculty Associa­tion and to CAUT to request that his grievance and complaint, respectively, be reactivated. It is Dr. Winter's view that the period of delay which may properly be ascribed to him is from Decem­ber 1992 to June 1993, because, in his view, this is the period in which he did nothing. Even that, he believes, an arbitrator may have overlooked because Dr. Winter was so busy with his writing and teaching.

ARGUMENTS ON MOTION TO NON-SUIT

73. Counsel for the employer intervenor made a motion that the Board should dismiss this application as the applicant's best evidence does not support the allegations he has made. Dr. Win­ter's evidence, it is argued, demonstrates that Dr. Winter was given every opportunity to present his case to the Faculty Association, and, it is contended, he got a fair and honest review through­out. The intervenor argues that there is no evidence to support a finding that there was "anti-Win­ter animus", or that any of those who voted at each level of the process acted insincerely or with­out giving due consideration to the issue before them. It is further suggested that Dr. Winter's expectations of the process go far beyond what is constitutionally required and what is the estab­lished practice of the Faculty Association. For the Board to set a standard which requires perfec­tion at each level of decision-making within a union, and for the Board to review each person's individual conduct at each step, would be to set a higher test than that set by the Divisional Court in its review of administrative tribunals.

74. The intervenor points out that in 1988-89, after Dr. Winter's participation in the Gold­man matter, the Faculty Association took his promotion grievance to arbitration. In 1991, after the 1988 election slate issue, and after the newsletter Editor matter, the Faculty Association unani­mously supported a motion to give Dr. Winter $3,000 towards the discoveries in his civil action. In January 1994, when it would have been a simple matter to deny re-activation of the Winter griev­ance, the Grievance Committee actively pursued it. All of which, it is argued, belies the applicant's "anti-Winter" animus argument.

75. The test which the intervenor recommends to determine whether the "anti-Winter~~ ani­mus argument can be bome out is threefold. First, the Board should consider whether the appli­cant has established why people may not like him. Secondly, he must show that in fact people do not like him. Lastly, Dr. Winter must establish that the decision-makers' dislike of him was a fac­tor in the result, i.e. that there must be some nexus established between the animus and the deci­sion.

76. The responding party Faculty Association joined the intervenor in its motion to non-suit, arguing that the applicant had failed to produce sufficient evidence to support his allegations that the union had breached its duty of fair representation. The Faculty Association contends that it has conducted itself above and beyond the requirements of section 74 of the Act. Throughout the conduct of Dr. Winter's grievance the Association followed its normal practices and its consti­tutionally mandated procedures. It is argued that Dr. Winter's complaint is premised on conjec­ture, innuendo, and a conspiracy theory which was not borne out by the evidence Dr. Winter called.

77. It is argued by the Association that throughout Dr. Winter has failed to take responsi­bility for his role in the delay of his grievance, and that delay contributed to the final outcome of this matter. It is suggested that Dr. Winter is not a quiet or retiring individual who did not pursue matters of concern to him, so the fact that he did not vigorously pursue his own grievance suggests he was not that interested in it for all of that time.

78. The responding party urged the Board not to set some different standard of review for faculty associations than is set for other unions, although it was argued this faculty association had done everything it could for this applicant, and that the process it followed was fair in every respect.

79. The applicant took two days to argue why the Board should deny the non-suit motion. Dr. Winter's devotion to this complaint was noteworthy, and he is to be commended for the tho­roughness of his preparation throughout this hearing. It is Dr. Winter's theory of the case that this Faculty Association has an interest in "getting along" with the University administration, his griev­ance raised the problem of the "old boys network", and so a tension developed. Added to that was the problem of Dr. Winter being a highly politicized and publicized member of the faculty who had a history of participating in controversial issues. It is his view that the process of deciding not to take his grievance to arbitration was tainted because the decision-makers could not put their views of him aside and did not assess the grievance on its merits, especially the issue of academic free­dom.

80. Given the sophistication of a faculty association, Dr. Winter argued that the standard to which it is held in a duty of fair representation complaint should be higher than the standard the Board expects less sophisticated unions to meet.

81. Dr. Winter is of the view that the Grievance Committee was remiss in not making clear to him that his revised list of remedies was outside of the realm of what it was believed the admin­istration would settle. He was thereby deprived of considering his options before the Committee decided not to take his grievance to arbitration. Dr. Winter argues that Professor Etherington, in any event, should not have been pursuing a deal with the administration, a deal which would have been far less than what the grievor wanted. To have done so is said to demonstrate the withholding of information, abandonment of the grievor, and bad faith on the part of the Association.

82. Dr. Winter argued that in reaching its decision not to grant his appeal, the Joint Council of the Faculty Association gave undue regard to the potential cost of an arbitration, and to the views of Professors Etherington and Ray Brown, because of their status as lawyers. He was of the view that Professor Etherington had failed to present the merits of Dr. Winter's grievance, but had rather focused on the problems the grievance would have. With respect to Professor Brown, it is Dr. Winter's contention that Professor Brown has a conflict of interest because he too is a member of the Association. Additionally, Dr. Winter asserts that Professor Brown's legal opinion was wrong.

83. The Joint Council did not fully canvass the academic freedom issue, which Dr. Winter contends is evidence of a non-caring and indifferent attitude because it shows the councillors were distracted by issues extraneous to the merits.

84. Dr. Winter relied on the testimony which he feels shows that particular individuals within the Faculty Association dislike him because of his past activism on various issues. He argues that the Board should be concerned about how an unpopular member of a trade union is treated by his/her fellow members, should consider that there may be a built-in bias in such situations, and should find that any outcome which is not in the grievor's favour is tainted and cannot stand.

85. It was the applicant's view that the delay in moving his grievance forward is not solely his fault, but that the University and the Association also bear a shared responsibility for the delay. In any event, Dr. Winter argued, the Association should have taken the delay issue to an arbitra­tor for a preliminary ruling, which would not have been costly and could have been dispositive.

DECISION

86. As the Board articulated in D & E Insulation, [1995] OLRB Rep. June 748, in consider­ing a non-suit motion the standard of proof is whether, on a prima facie basis, there is a case for the opposite party, or parties, to answer. In reaching my decision in this case I have assumed all of the evidence called by the applicant to be true.

87. In this application the responding party is alleged to have contravened section 74 of the Act. That section reads as follows:

88. 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.

89. The Labour Relations Act imposes a duty upon a trade union to fairly represent all of the employees in the bargaining unit for which it holds bargaining rights. The trade union may be found to have violated the Act if it has represented an employee in a manner which is arbitrary, discriminatory, or in bad faith. The Labour Relations Board does not consider whether the union was right or wrong in its approach, but rather whether the union's actions were motivated by bad faith, whether it has discriminated against the employee or whether it acted in an arbitrary man­ner.

90. In Kenneth Edward Homer, [1993] OLRB Rep. May 433, the Board reviewed the juris­prudence outlining what the Supreme Court of Canada and this Board have found to be the princi­ples applicable to a trade union's duty of fair representation. The following excerpt from the case outlines the guidelines applicable to the case before me:

5 ……..In Canadian Merchant Service Guild v. G. Gagnon, 1984 CanLII 18 (SCC), [1984] 1 SCR 509 at page 527, the Supreme Court of Canada reviewed the principles applicable to a trade union's duty of fair representation as follows:

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an abso­lute right to arbitration and the union enjoys considerable discretion.

3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of the consequences for the employee on the one hand and the legitimate interest of the union on the other.

4. The union's decision must not be arbitrary, capricious, discriminatory or wrongful.

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

This is both a useful general guideline for assessing a trade union's representation and is consis­tent with the Board's approach to fair representation complaints.

6. Honest mistakes, innocent misunderstandings, simple negligence, or errors in judgement will not, of themselves, constitute "arbitrary" conduct within the meaning of section 69. In other words, a trade union has a kind of "right to be wrong". Terms like "implausible", "so reckless as to be unworthy of protection", "unreasonable", "capricious", "negligent", and "demonstra­tive of a non-caring attitude" have been used to describe conduct found to be arbitrary within the meaning of section 69 (see, Consumers Glass Co. Ltd., [1979] OLRB Rep. Sept. 861,1. TE. Industries, [1980] OLRB Rep. July 1001, North York General Hospital, [1982] OLRB Rep. Aug. 1190, Seagram Company Ltd., [1982] OLRB Rep. Oct. 1571, Cryovac, Division of W.R. Grace and Co. Ltd., [1983] OLRB Rep. June 886, Smith & Stone, (1982) Inc., [1984] OLRB Rep. Nov. 1609, Howard J. Howes, [1987] OLRB Rep. Jan. 55, George Xerri, [1987] OLRB Rep. March 444, among others). Such strong words are applicable to the more obvious cases but may not accurately describe the entire spectrum of conduct which could be considered to be arbitrary. As the jurisprudence demonstrates, whether particular conduct will be considered to be arbitrary will depend on the circumstances.

7. The term "discriminatory" in section 69 has been interpreted broadly to include all cases in which a trade union distinguishes between or treats members differently without a cogent reason for doing so (see, for example, The Municipality of Metropolitan Toronto, [1978] OLRB Rep. Feb. 143, Douglas Aircraft Co. of Canada Ltd.,[1976] OLRB Rep. Dec. 779).

8. Actions or decisions motivated by hostility, ill-will or other improper considerations consti­tute "bad faith" within the meaning of section 69 (see, for example, Chrysler Canada Ltd., [1979] OLRB Rep. July 618, John Farrugia, [1978] OLRB Rep. Feb. 152, Leonard Murphy, [1977] OLRB Rep. March 146, Canadian Union of Public Employees Local 1000 - Ontario Hydro Employees Union (sometimes cited as Walter Princessdomu), [1975] OLRB Rep. May 444).

9. As I have already indicated, complaints that a trade union has acted in a manner contrary to section 69 of the Labour Relations Act often relate to the manner in which the trade union has dealt with a grievance. While the Board does not act as an arbitrator of a grievance in com­plaints under section 69, facts material to the grievance will generally also inevitably be relevant to an assessment of the trade union's conduct, and, in some cases (see Angelo Ritrovato, [1986] OLRB Rep. Oct. 1401 for example) to an assessment of the appropriate remedy if a breach is found. Also relevant to the Board's consideration of a fair representation complaint are the importance of the grievance(s) in question to the complaining employee(s), the implications of the grievance(s) for other bargaining unit employees and the trade union, the degree of consid­eration given to the matter by the trade union, and the factors, both relevant and otherwise, which the union considered in making its decision.

10. The Board recognizes that laypersons usually conduct the union's affairs and such per­sons may not have the skills or training of a lawyer. Thus the standard union officials must meet ts to have honestly considered the merits of the grievance, honestly considered the available evi­dence, and they must take care not to act on the basis of irrelevant factors or considerations. While honest mistakes or errors of judgement do not amount to a breach of the law, each case must be considered on its own merits (see Ford Motor Company, [1973] OLRB Rep. Oct. 519, ITE Industries, [1980] OLRB Rep. July 1001, and Leila Yateman, [1993] OLRB Rep. Aug. 777).

11. I will address each of the allegations made by the applicant in his complaint to the Board, as outlined in paragraph 6 above.

1. The Faculty Association's leadership was, for the most part, hostile towards Dr. Winter because of his "political creed and past events".

92. For the purpose of this decision I have assumed that the leadership of the Faculty Asso­ciation includes anyone who had decision-making authority which affected Dr. Winter's grievance. From the evidence it is clear that from the first instance in early 1987 the Grievance Committee of the Faculty Association supported Dr. Winter's grievance, despite having some reservations about the kinds of remedies he was seeking and notwithstanding that there were manifest concerns about whether there would be an evidentiary basis to support his grievance.

93. In 1988 the Grievance Committee and the Faculty Association supported Dr. Winter's promotion grievance at arbitration.

94. In 1991, after the Irv Goldman matter, and after both the 1988 election and the newslet­ter Editor issues, the Grievance Committee continued to keep alive Dr. Winter's grievance. More­over, the Committee unanimously voted to give Dr. Winter $3,000 towards the cost of examina­tions for discovery in his civil action.

95. There is evidence that Professor Chatterjee had expressed his concerns to Dr. Winter about the latter's handling of the Irv Goldman case. It is also apparent that in 1988 Professor Chat­terjee moved or seconded some of the motions limiting Dr. Winter's editorial powers during the debates over the newsletter. Professor Chatterjee was on the Executive and the Council for Dr. Winter's appeals in 1994. However, there is no evidence that he said anything during the debates to suggest any animus against Dr. Winter. Since all of the votes were taken by secret ballot, it is impossible to know how Professor Chatterjee voted. I am not satisfied that there is any evidence to support a finding that Professor Chatterjee was hostile towards Dr. Winter, or that there is any evidence to suggest that any improper considerations clouded his consideration of Dr. Winter's appeals.

96. Professor Tucker was the President of the Faculty Association during the period of Dr. Winter's appeals. He appears to have kept Dr. Winter informed all along of what was transpiring. There is not a shred of evidence to support a finding that he was, for any reason, hostile towards Dr. Winter. His actions throughout were exemplary, and were designed to ensure that Dr. Winter received the full extent of procedural fairness. Professor Tucker never voted at any level, and he attempted to use moral suasion to encourage others on the Executive committee not to vote on the appeal to the Council. Despite his suggestion, Professors Brown, Chatterjee, and Solomon did vote, but as was noted earlier, since there is no constitutional bar, Professor Tucker could not take any action against them.

97. Professor Ben Meyer was not elected to the Joint Council in 1993-1994; however, he attended the Council meeting at which Dr. Winter's appeal was heard. It is accepted practice that other faculty members may attend in the stead of an elected councillor who is unable to do so. At the June 22, 1994 meeting he interrupted Dr. Winter's presentation because he did not wish to have the presentation read to him. Professor Woodyard came to Dr. Winter's defence, and Profes­sor Tucker defused the situation. At the June 28th meeting Professor Meyer suggested that the cost of arbitrating the Winter grievance could be $75,000. Again, this apparently inflated figure was made reasonable by the interjection of Professor Tucker's actions to obtain the real costs of recent arbitrations. There does not appear to have been an undue emphasis on the issue of the potential cost of an arbitration. Since the union is required to weigh the benefits of a particular grievance being arbitrated against the interests of all of the membership, cost considerations are legitimate concerns for unions.

98. A number of witnesses testified that Professor Meyer has an aggressive and rude man­ner at meetings and that Dr. Winter was not the only brunt of his rudeness. While one cannot con­done that type of behaviour, it is difficult to find on the facts before me that Professor Meyer was being hostile towards Dr. Winter because of Dr. Winter's politics or because of past events. In any event, it is clear that Professor Tucker, as chair of the meetings, did his best to contain Professor Meyer's behaviour.

99. Professors Bird and Lewis attended the Council meeting and expressed their views that Dr. Winter's academic freedom had not been breached. Professor Bird had, in 1988, shown his dis­pleasure with Dr. Winter around the election slate issue. I am not satisfied that there is enough evi­dence to support a finding that these two individuals acted in a hostile manner towards Dr. Winter at the Council meeting, nor that there is any evidence to suggest that improper factors clouded their consideration of Dr. Winter's appeal. That meeting was to discuss the pros and cons of Dr. Winter's grievance, and it was entirely appropriate for people to openly discuss their views about the various concerns the grievance raised. It cannot be the case that only those who support a grievor can speak at such a meeting. In fact, Professors Forrest and Woodyard did speak in the applicant's favour on the academic freedom issue. As with the others it is, in any case, impossible to know how any of these individuals voted, but it is worth noting that the outcome of the vote at Council was 10:6 against Dr. Winter. This suggests that six persons of the sixteen who voted sup­ported Dr. Winter's position. This vote outcome belies Dr. Winter's contention that he was such an unpopular member of the Faculty Association that he was treated in a biased manner.

100. Nothing turns on the comments made by Professor Tucker to Dr. Winter in July 1994 about Professors Drake and Solomon's fiscal conservatism. Professor Drake was not at either of the Executive and Council appeals. Professor Solomon was at both meetings; however, the issue of the possible cost of arbitration never came up at the Executive, and there is no evidence before me that Professor Solomon participated in the cost discussion at the Council meeting.

101. I will address Professor Etherington's role later. From all of the evidence before me I am satisfied that there is no support for the allegation that the leadership of the Faculty Associa­tion was hostile towards Dr. Winter because of his political creed or due to past events.

2. The Faculty Association and/or Professor Ray Brown, the Associa­tion's Industrial Relations Consultant, conducted a cursory, perfunc­tory and narrow investigation of the timeliness issue regarding Dr. Winter's grievance, and the excuse of costs was used to decide not to take his grievance to arbitration.

102. The evidence indicates that Professor Brown's role is not that of an investigator, but rather to give the Association a legal opinion based upon the information the Association makes available to him. His opinion is sought on specific questions, and is not always followed by either the Executive or the Council. The Irv Goldman grievance was one such example where the Coun­cil decided to proceed to arbitration despite Professor Brown's legal opinion. It is noteworthy that in Dr. Winter's case Professor Brown was not present at any of the decision-making meetings regarding his grievance.

103. It is undisputed that Professor Brown had before him Dr. Winter's lengthy letter of December 1993, in which he explained why he was now asking the Association to reactivate a grievance filed in 1987. Dr. Winter went to great lengths in that letter to explain what had been happening in the intervening time period. Professor Brown also had before him the letters between the Association and the administration which had set the parameters for the grievance being put on hold in 1987. It was on the basis of these documents that he gave his opinion that an arbitrator would likely uphold a motion made by the University and find that the grievance was no longer timely because of the unreasonable delay in bringing it forward. In particular, he was of the view that Dr. Winter could not provide a reasonable excuse for having waited a year rather than activat­ing the grievance as soon as he knew that the civil suit had been dismissed.

104. At the Council meeting Dr. Winter alleged that Professor Brown had not addressed the

merits of his case in the opinion letter. It is clear that was not what Professor Brown was asked to do - he was only asked for his legal opinion on the delay issue.

105. There is no support for the allegation that Professor Brown conducted a cursory, per­functory or narrow investigation of the timeliness issue in this case. Dr. Winter has no legal train­ing and is not himself in a position to judge whether the Brown opinion was wrong. While Dr. Winter does feel the opinion given is incorrect, he had no legal opinion to suggest the contrary. The Board is of the view that Professor Brown's legal opinion was not unreasonable given the facts before him. The Board does not find there to be any conflict of interest in Professor Brown being the Industrial Relations Consultant and a member of the Faculty Association. It is not at all uncommon for a trade union to have "in-house" counsel who advise the union on all manner of issues, and that is the function which Professor Brown appears to fulfill.

106. Finally, it is unclear what evidence Dr. Winter is relying on for the proposition that the Faculty Association conducted a cursory, perfunctory, or narrow investigation of the timeliness issue. Dr. Winter submitted to the Grievance Committee his letter of December 1993 to explain the time elapsed in bringing his grievance back on. Had he wished to supplement this explanation it was open to him to do so at any time. At the Executive appeal and at the Council appeal he pro­vided essentially the same information he had given to the Grievance Committee. The timing for the grievance to be reactivated was entirely in the applicant's hands throughout, and it was not possible for the Faculty Association to know when and how things were proceeding in the civil suit without Dr. Winter telling it. It is obvious that he maintained very little contact with the Associa­tion on this subject, and indeed, had it not been for Professor Wallen prodding him in 1991, there would have been no contact made by the applicant. I cannot accept Dr. Winter's contention that the Faculty Association and the administration were partially responsible for the delay. Once the grievance was put in abeyance in October 1987 Dr. Winter was the one who would have had to tell the Faculty Association of the progress of the discovery process before the Association could have taken any further action. There was absolutely no reason why the University should have pursued the matter: It was not their grievance, and by the terms of the October 1987 letter from Professor James, the matter was left squarely in the lap of the Association to revive when necessary. The Board can therefore find no merit to this allegation.

3. The majority of the Grievance Committee, the Executive Committee and the Council of the Faculty Association acted in a manner which was arbitrary, discriminatory, and in bad faith towards Dr. Winter, and that they did not fully consider the merits of his grievance, the issue of academic freedom, and his argument that the delay issue would not be dispositive.

107. The Grievance Committee in 1987 was chaired by Professor Wallen. He told the appli­cant there were concerns about the hearsay nature of the grievance, and about the remedies Dr. Winter was seeking. Dr. Winter refused to change the remedies; nonetheless, the Grievance Com­mittee decided to support his grievance at that stage.

108. The early correspondence indicates that the Grievance Committee did discuss the mer­its of the grievance and the academic freedom issue but was not satisfied that there would be suffi­cient evidence which could be marshalled to support a grievance at arbitration. These discussions appear to have continued every time the Grievance Committee discussed the grievance in any depth. Despite their concerns the members of the Committee continued to strive for more infor­mation, and did not drop the grievance. At the 1991 meeting with Dr. Winter it was evident how dependent the Committee was on Dr. Winter to provide it with the evidence necessary to substan­tiate the grievance.

109. In January 1994, at the applicant's request, the Grievance Committee reactivated his grievance and began to try to find resolutions for the grievance given that Dr. Winter's civil suit had ended without providing the Committee with the information it had been seeking. The Com­mittee hoped to salvage something out of the grievance for the Faculty Association and for the applicant. The applicant was invited to tell the Committee what he would be willing to settle for so as to avoid arbitrating the grievance. It should have been obvious to the applicant at that time that he could no longer realize the remedies he was seeking, but he submitted his proposed remedy list as though nothing much had changed since 1987. Professor Etherington attempted to canvass with the administration a workable resolution to the grievance, but upon the Committee's realization that Dr. Winter was still seeking rather more than was likely to be on the table, settlement talks were abandoned. While Dr. Winter expressed some concern about the Grievance Committee dis­cussing settlement possibilities without his agreement, there was nothing untoward in so doing. The grievance belongs to the Faculty Association and it makes good labour relations sense to attempt to settle grievances to the mutual satisfaction of the Association and the employer, without resorting to the cost and uncertainty of grievance arbitration.

110. Professor Etherington made continued attempts from January to March 1994 to get the University to release to the Association the statements which had been collected from people at the time of the original grievance. Nor can one fault his strategy to get the University to take a fresh step so that the Association could then argue that the University had acquiesced to the delay.

111. The Grievance Committee obtained a legal opinion on the delay issue; It discussed the academic freedom issue and the merits of the grievance and considered that a case with weak facts could set a bad precedent for the Association. Finally, the Committee was of the view that the delay argument would prevail, so it voted not to take the grievance to arbitration. Professor Ether­ington wrote and told Dr. Winter of the decision, the Committee's reasons, and of his right to appeal to the Executive.

112. On the basis of all of the evidence I am satisfied that the Grievance Committee consid­ered all of the relevant issues, and no irrelevant ones, in reaching its decision.

113. As the evidence outlined earlier shows, there is no question that the issues of academic freedom, the merits of Dr. Winter's grievance, and the delay issue were discussed fully at the Executive and Council appeals. At each level Dr. Winter was permitted to make his presentation, to provide the members with written submissions~ and to answer questions. It cannot be said that these committees did not consider Dr. Winter's arguments on delay; rather, it is obvious that they were not swayed by those arguments. Not agreeing with Dr. Winter is not tantamount to having acted in an arbitrary fashion.

4. The then Chair of the Grievance Committee, Professor Brian Ether­ington, is a lawyer and colleague of Professor Brown, he concurred in the Brown assessment, and then used his position as a voting member of the various committees to vote and influence others against Dr. Winter's appeals.

114. It is obvious that everyone on the various committees knew that Professor Etherington is a lawyer, as is Professor Brown, and they knew the two men were colleagues in the law faculty. I accept that it is likely that non-lawyer members of the Faculty Association may rely on the opin­ions of both these individuals when considering matters which have a legal aspect. This is despite

the fact that Professor Etherington had specifically indicated to the Association that he would not be dispensing legal advice. However, there is no breach of the duty of fair representation in this set of circumstances as Professor Etherington merely indicated he agreed with the legal opinion of the Industrial Relations Consultant, which I have found earlier is not an unreasonable legal opinion.

115. Professor Etherington's role has been outlined above. He acted in Dr. Winter's interest up until the Grievance Committee decided not to pursue the grievance any further. At that junc­ture his role changed because thereafter he was called upon to explain and defend the decision of the Grievance Committee to the Executive and to the Council. He was not at the appeals to repre­sent Dr. Winter. Dr. Winter was there to do that for himself and to make his case directly and afresh to the Executive and the Council respectively. Professor Etherington cannot therefore be said to have acted in a biased manner towards Dr. Winter because he did not advocate the appli­cant's position.

116. There is no evidence to support an allegation that Professor Etherington acted arbitrar­ily or in bad faith in his investigation or handling of Dr. Winter's grievance. As the evidence dis­closed, Professor Etherington was dogged in his pursuit of information from the administration, he kept Dr. Winter involved throughout, asked for and received correspondence from Dr. Winter, passed on information from Dr. Winter to Professor Brown when the legal opinion had been sought, and informed Dr. Winter of the Grievance Committee's decision, and of his right to appeal. At the Executive and Council meetings he did not vote~ and he advised the other members of the Grievance Committee to also abstain.

5. The members of the Grievance Committee sat as voting members on the Executive Committee on Dr. Winter's appeal, and then members of the Executive Committee sat as voting members on the Council on his appeal to that level.

117. The evidence contradicts Dr. Winter's allegation that members of the Grievance Com­mittee voted at the Executive and Council meetings. As has been outlined earlier, on Professor Etherington's advice members of the Grievance Committee abstained from voting at the meetings in question.

118. Dr. Winter's further allegation is that some of these person spoke against his appeal at the meetings, and he characterizes that as a conflict of interest. There is no reason why people can­not participate in discussions at these meetings, even if they were on earlier committees. Indeed, since it is their committee's decision being reviewed, it is likely they will wish to explain why they reached the decision they did.

119. The constitution of the Faculty Association does not prohibit members from one com­mittee participating at another level even if that means they will be voting in an appeal of their own earlier decision. While this seems problematic and basically unfair, it is nonetheless the constitu­tional framework of this organization. It is clear that three persons from the Executive voted on the appeal to Council, and since Dr. Winter was not present for the voting he was not in a position to challenge them, had he been inclined to do so. While I have some concerns about this practice, in the absence of any prohibition against it in the Association's constitution and since the Board does not involve itself in internal union matters, I reluctantly find there is no breach of the duty of fair representation as regards this matter. In any event, even if these three individuals may be assumed to have voted against the applicant's appeal, had they not voted the outcome would still have been 7:6 against Dr. Winter.

6. Several councillors, during the appeal to Council, evidenced hostility and ill-will towards Dr. Winter because of the political views he holds.

120. This allegation is not substantially different from Dr. Winter's first allegation that the Faculty Association leadership was hostile towards him because of his political creed and past events. I have dealt with the allegations of hostility arising out of the Council meeting above.

CONCLUSION

121. Having considered the applicant's evidence regarding all of his allegations, I have con­cluded that the non-suit motion must be successful. While I have great sympathy with Dr. Winter's predicament in 1987, I cannot find in all of the ensuing circumstances and on the basis of Dr. Win­ter's evidence, that the Faculty Association breached its duty of fair representation to Dr. Winter. This application is therefore dismissed.

122. Given the length of this case, it seems appropriate to thank all of the parties for their patience and good grace throughout the seventeen days of hearing.