Brian Nash v. Amalgamated Transit Union, Local 113, 1999 CanLII 20011

[1999] OLRB REP. MARCH/APRIL 358

3654-97-HS Brian Nash, Appellant v. Amalgamated Transit Union, Local 113 and Ministry of Labour, Responding Parties v. Toronto Transit Commission (T.T.C.), Intervenor

BEFORE: Russell G. Goodfellow, Vice-Chair.

APPEARANCES: Harry Kopyto. Brian Nash, W McNaught, M. Bugala, R. Jones, L. Mounlford, D. Straw and F Defazio for the appellant; Cynthia Watson and Dieter Wehr for Amalgamated Transit Union, Local 113; Alicia Gordon-Fagan for the Ministry of Labour; S. C. Raymond and Debbie Dalle Vedove for the Toronto Transit Commission.

DECISION OF THE BOARD; March 22, 1999

1. The title of proceedings is hereby amended to add the "Toronto Transit Commission (T.T.C.)" as an intervenor.

2. This is an appeal under subsection 6 1(1) of the Occupational Health and Safety Act from the refusal by an Occupational Health and Safety Inspector to make an order concerning the appellant's removal from his position as a worker committee member on the intervenor's Joint Health and Safety Committee.

3. The appellant was removed by the union following his refusal to comply with the recommen­dations of a trial board said to be appointed pursuant to the union's internal processes. The trial board found that the appellant had maligned the worker co-chair of the committee and required him to apologize. The appellant refused to comply and, thereafter, was removed. Later, the appellant was re­elected as a worker committee member and he continues to serve in this capacity to this day.

4. The matter came on for hearing before me on March 8, 1999. The day was devoted to a request by the union for the dismissal of the appeal on the basis that it failed to disclose a prima facie case of a breach of the Act. The request was supported by the intervenor and opposed by the appellant.

5. It is unnecessary for me to record the parties' arguments in detail. Suffice it to say that the appellant asserted that his removal from the committee constituted a violation of paragraphs 62(5)(a) and 65(1 )(d) of the Act, and that I had the jurisdiction to remedy those violations pursuant to subsection 61(4). The remedies requested were a declaration that the inspector should have investigated the alleged violations, that the union and certain named individuals breached the foregoing provisions of the Act by instituting a trial board to pass judgement on the appellant's actions and by removing him from his position, and a recommendation that a prosecution be instituted against the union and the named individuals in respect of the alleged violations.

6. The provisions alleged to be violated appear as follows: 62. . . . . .

(5) No person shall knowingly,

(a) hinder or interfere with a committee, a committee member or a health and safety representative in the exercise of a power or performance of a duty under this Act;

65. (1) No action or other proceeding for damages, prohibition or mandamus shall be instituted respecting any act done in good faith in the execution or intended execution of a person's duties under this Act or in the exercise or intended exercise of a person's powers under this Act or for any alleged neglect or default in the execution or performance in good faith of the person's duties or powers if the person is,

(d) a health and safety representative or a committee member;

7. At the conclusion of the hearing I reserved my decision. I now provide that decision. In my view, the appeal must be dismissed for failing to establish a prima facie case of a breach of the Act. The reasons for my decision are as follows:

8. The union is not a "person" within the meaning of paragraph 62(5)(a) of the Act. It is trite law that a trade union is an unincorporated associa­tion of individuals that enjoys no legal existence independent of its members. While exceptions to this common law principle may be cre­ated by statute, none exist here.

9. Even if I were to treat the appeal as being against the individuals named in the request for relief (a request that was not made by the appellant), I would still have found that there could be no violation of paragraph 62(5)(a). The appellant, in preparing and circulating a "without preju­dice" memorandum to employees stating that "both Co-Chairs have produced and allowed signed incorrect Safety Minutes" and, therefore, that they are" ... directly effecting (sic) the safety of the workers at Arrow Road Division", was not engaged "... in the exercise of a power or performance of a duty under [the] Act". As reviewed by counsel at the hearing, the circumstances in which powers and duties are conferred on individual committee members, as contrasted with the committee itself, are expressly spelled-out in the Act, and the power to "blow the whistle" on allegedly incorrect safety minutes is not among them. As subsection 9(22) makes clear, it is the "committee" that is required to maintain minutes and, while the committee must act through individuals, no power or duty is conferred on individual committee members to maintain such minutes. Similarly, no power or duty is imposed on individual committee members, as contrasted with the committee itself, to identify and report to employees on workplace hazards or dangers. That is a function for the committee to perform; hence the need for meetings and minutes.

10. With respect to the alleged breach of paragraph 65(l)(d), proceedings before a trade union's trial board are not "... an action or other proceeding for damages, prohibition or mandamus ...". Such proceedings can only be instituted in the courts and no amount of "large and liberal construc­tion" can accommodate these words to a trade union's internal processes. Accordingly, subsection 65(1) does not apply.

11. Even if I were to find that a matter before a trade union's trial board could constitute an "action or other proceeding for damages, prohibition or mandamus", for the reasons set out in paragraph 2 above such pro­ceedings were not "... instituted respecting any act done in good faith in the exercise or intended exercise of a person's duties under [the] Act or the exercise or intended exercise of a person's powers under [the] Act In view of the foregoing, it is unnecessary for me to comment on the further argument made by counsel for the union and intervenor that a trade union's authority under the Act to determine the make-up of its side of a committee is entirely unfettered. However, I note that even if restrictions on this authority were to exist, neither paragraph 62(5)(a) nor 65(l)(d) would appear to provide a vehicle for the Board to deal with the matter. I would also observe that the Board has no jurisdiction to order or recommend the institution of a prosecution. That is an authority that rests with the Ministry of the Attorney General; it is not part of the powers of an inspector or the Board under the Act.

12. Lastly, as counsel for the intervenor pointed out at the hearing, lest it be thought that there is no outlet for a dysfunctional, or worse, joint health and safety committee to be removed or replaced in a unionized environment, not only are there the obvious internal political processes available on the trade union side but subsection 9(3) may permit an application to be made to the Minister to require the establishment and maintenance of a committee in such circumstances and to provide for its "composi­tion, practice and procedure". These latter observations are made, however, without any suggestion that they are applicable to the facts of this case.

13. Accordingly, and for all of these reasons the appeal is dismissed.