Ontario Labour Relations Board
[1999] OLRB REP. JULY/AUGUST 757
0221-97-U William Cordon Switzer, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAWCanada), Local 1459, Responding Parties v. Chrysler Canada Limited, Intervenor
BEFORE: G. T Surdykowski, Vice-Chair.
APPEARANCES: Allan Kogon, Mark Rush and William Switzer for the applicant; Ron Pellerin, Mike Holjevac and Mike McCue for the responding parties; David Corbett, Christine Chen and Rick Thrasher for the intervenor.
DECISION OF THE BOARD; August 16, 1999
A. General Conclusion
1Having considered the evidence before the Board, and the representations of the parties, I am satisfied that this complaint should be allowed. I have chosen to begin this decision with the "bottom line" because, as a result of my conclusion and the remedy that I consider to be appropriate, I must take care that nothing that I say will influence the outcome of any subsequent proceeding.
B. Reasons
1. Introduction
2Factually, this is a tragic case. Until August 1992, the applicant appears to have been a productive employee and member of society. Today, he is clearly permanently disabled. But however tragic the situation, it cannot be allowed to cloud the complex and difficult issues raised in the complaint. This is far from the "usual" case (if there is such thing).
3This is a complaint under section 96 of the Labour Relations Act, 1995, (the "Act") in which the applicant alleges that the responding trade unions have violated the duty of fair representation imposed by section 74 of the Act.
4Initially, the complaint concerned both the termination of the applicant's employment in August 1992, and his claim for sickness and accident, and extended disability benefits under the collective agreement between the employer ("Chrysler") and the unions.
5This application began with some extended preliminary skirmishing in which the unions and Chrysler sought to have the complaint dismissed as untimely and because, they submitted, the applicant's pleadings did not disclose a prima facie case.
6By decision dated August 7, 1997, I agreed with these submissions and I dismissed the complaint in its entirety.
7However, the applicant sought reconsideration, and upon further reflection, I allowed that request in part in a decision dated November 19, 1997. More specifically, I determined that there was no reason to doubt the correctness of the earlier decision regarding the termination of the applicant's employment, but that the part of the complaint relating to the claim for insurance benefits under the collective agreement should be permitted to proceed, although without prejudice to the unions' and Chrysler's right to continue to pursue their timeliness objection in that respect. A request by the unions and Chrysler for reconsideration of the first reconsideration decision was dismissed (by decision dated January 14, 1998).
8It then took nearly 16 months to complete the hearing, and a further five and a half months to prepare this decision. This makes it fully 7 years since Chrysler fired the applicant.
9This case presents a difficult matter. It is another chapter in the evolution of labour relations since the Supreme Court of Canada's decision in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929 (and the subsequent decision of the Ontario Court of Appeal in Pilon v. International Minerals & Chemical Corp. (1997) 1996 CanLII 1178 (ON CA), 31 O.R. 210). Labour boards, arbitrators and the labour relations community continue to struggle to understand and adapt to collective bargaining life in the post-Weber era. This case demonstrates that lessons remain to be learned, and that the last legal chapter has yet to be written.
10Questions concerning disability type insurance benefits under a collective agreement are at the root of this complaint. The issues include entitlement, the intersection between traditional labour relation principles and concepts and insurance law principles and concepts, and the effect of this on trade unions and the duty of fair representation.
11As I stated repeatedly in the August 7 and November 19, 1997 "preliminary" decisions, what is directly in issue before the Board is whether the applicant's delay in coming to the Board was so extreme that it should be dismissed, whatever merit there may be to it, and if that is not the case, the scope to the duty of fair representation post Weber and whether either of the unions in this case breached that duty.
12Whether the applicant was disabled before his employment was terminated, and whether and to what extent he is entitled to any disability type benefits under the collective agreement (together with the subsidiary issues of when he was discharged, and when he was obliged to do what under the collective agreement or applicable insurance policies, to the extent that there is any difference in that respect) are not directly before the Board. But given the nature of duty of fair representation complaints, and the Board's approach to them, these are factors for the Board to consider.
2. The Effect of Delay in Board Proceedings
13In the preliminary decisions, I dealt at length with the Board's interpretation and application of section 74, and the Board's approach to delay in the absence of a limitation period in the Act. As a general matter, what I said then is no less accurate or true today. But for ease of reference if nothing else, a brief review is in order. But the Board's approach to delay has continued to evolve.
14The Board exercises its broad discretion not to inquire into a complaint with caution, and only after examining the relevant considerations in each case. It is well established that delay is particularly inimical and prejudicial in labour relations matters, both in a particular case and generally to a collective bargaining relationship. Accordingly, anyone who wishes to complain about an alleged violation of the Act or related legislation under which the Board has jurisdiction must to do so within a reasonable time, so that the matter can be dealt with in a fair and timely way. It is well established that delay is one basis upon which the Board can (and will) exercise its discretion to decline to inquire into a complaint.
15The Board's response to delay has not been a mechanical one. On the contrary, where another party asks that a complaint be dismissed on the basis of delay, the Board gives the complainant an opportunity to explain what may appear on its face to be untoward delay, and considers all relevant factors and the interests of all concerned.
16When delay is an issue, the factors that are relevant will vary from case to case. But in every case the Board considers the length of the delay and the reasons for it, when the complainant became aware of the facts material to the alleged violation of the Act (or other legislation), whether an appropriate remedy remains available, and whether a fair hearing can be held. In this respect, I observe that a substantial majority of the cases in the Board's delay jurisprudence concern duty of fair representation cases or other complaints by individuals, rather than by one of the institutional parties (i.e. trade unions and employers). This suggests that individuals tend to be more poorly informed than the institutional parties about their rights under the Act (and as the Board has pointed out in many cases, the institutional parties are often content that individuals remain ignorant in that respect). And as this case, among others, demonstrates, suggesting that individuals can inform themselves about their rights is not always a satisfactory answer because it appears that even lawyers can be poorly informed in that respect, particularly if they do not regularly practice in the area. If even lawyers who work with the law daily are unaware of what the Act says, or of the labour relations principles which have been developed by the courts and administrative tribunals, how can the average employee be expected to be versed in labour relations law or procedure? It seems to me that the legal fiction that people are taken to know what every statute provides or requires is just that, a fiction, and one which does not stand up under even normal scrutiny. It is not clear that this legal fiction was apt even when it was developed, much less in today's complex, heavily legislated world where even the legal "experts" have difficulty sorting out who should or must do what, or where and when they can or should do it.
17But this only means that the Board should be cautious in exercising its discretion not to inquire into a complaint without a hearing on the merits, and that it should only do so on the clearest of cases. Untoward delay is presumptively prejudicial to a fair rights adjudication, particularly in labour relations matters, and in a clear case it is therefore quite appropriate to dismiss on the basis of delay.
18In the past, the Board's approach to delay tended to be more liberal than it is today. What may appear on its face to be an inconsistent approach is merely a reflection of a liberal approach applied on a case by case basis. In more recent years, the Board developed a one year "rule of thumb" based on its past experience with delay, including the results in matters which were permitted to proceed notwithstanding sometimes significant delay. Today, the Board appears to be developing an even more stringent approach, such that 6-9 months delay is likely to be considered excessive. Because I have resigned from the Board, it may not be my place to critique this further contraction. However, I find myself constrained to observe that speed is not the only objective, and that fairness and justice can suffer when too much emphasis is placed on speed. With respect, the one year rule of thumb (which was based on a rebuttable presumption of prejudice, and which was never more than a general guideline which did not operate to fetter the Board's discretion in a particular case), was the considered product of an attempt to balance conflicting interests in the context of a lengthy experience with the issue. In any case, the Board will undoubtedly continue its practice of continually re-examining its approach to delay, so as to ensure that the Board's process are fair to all, and in step with the needs of labour relations justice (which are not necessarily congruent with the subjective desires of the institutional parties).
3. The Duty of Fair Representation
19The section 74 duty of fair representation is part of the duty side of the exclusive bargaining agent coin. A trade union which holds bargaining rights has the exclusive right to speak for bargaining unit employees in employment matters. But it is also obliged to represent the employees in a manner which is neither arbitrary, discriminatory, nor in bad faith.
20Most duty of fair representation cases concern the failure or refusal of a trade union to file or pursue a grievance for an employee. It is well established that the duty of fair representation does not absolutely require a union to either file a grievance or to take a grievance to arbitration just because an employee wants it to. But it does require a union to give fair and objective consideration, not only to an employee's request to proceed with a grievance, but also to whether a situation merits a grievance even if no employee has complained or requested one. A union is not entitled to sit back and take a purely reactive approach to representative. Indeed, few unions do. Most diligently monitor the administration of their collective agreements in order to protect the integrity of collective bargaining interests, the most important of which (from the perspective of unions if not generally) are the interests of the employees, who are who collective agreements are for after all. The duty of fair representation therefore requires a union to be proactive where circumstances warrant.
21Of course, a union cannot be held to a standard of perfection. So long as it acts honestly, objectively and gives due consideration to matters which fall within the ambit of its responsibility as exclusive bargaining agent, a union will not be held to account if it makes a mistake or a simple error in judgment. A union has a sort of limited "right to be wrong". (As an aside, this raises potentially thorny issues concerning a union's role as gatekeeper to insurance benefits. There is no such gatekeeper standing between an insurer and employees not covered by a collective agreement.) To constitute a breach of the Act, a union's conduct must be more than just wrong. It must be arbitrary, discriminatory or in bad faith. These terms have been interpreted by the Board as follows:
(a) "arbitrary" means conduct which is capricious, implausible, or unreasonable in the circumstances. This is often demonstrated by a failure by the union to properly direct its mind to a situation, or to conduct a proper and meaningful investigation when one appears to be called for;
(b) "discriminatory" means distinguishing between or treating employees differently without good reason;
(c) "bad faith" is conduct motivated by hostility, malice, ill-will or dishonesty.
4. Facts and Conclusions
22I am satisfied that at the end of the day, the significant material facts in this case are not seriously in dispute. What is in dispute is what these facts mean in the context of the rights of the parties under the Act, and specifically the duty of fair representation. I have already said that this is a difficult case. But that difficulty is a legal one rather than a factual one. It presents for scrutiny the intersection of insurance law and labour relations principles, which until relatively recently was something that labour relations adjudicators were not often concerned with. However, and at the risk of oversimplifying, the Legislature and the courts seem to have directed that any dispute about anything arising out of an employment relationship governed by a collective agreement be dealt with through the collective agreement grievance arbitration process. As a result, and notwithstanding that the grievance arbitration process may not be a particularly satisfactory "one stop shopping" forum, arbitrators are now being presented with grievances which raise non-traditional labour relations issues (including human rights, and pensions and insurance benefits issues, for example). The Board has been less directly affected by this, although such issues have come before the Board sitting as an arbitrator in construction industry grievances under section 133 of the Act, in complaints to the Board under the Occupational Health and Safety Act, and in complaints that a trade union has failed to fairly represent an employee.
23The applicant was 57 years old when he testified before the Board. He was employed by Chrysler as a stationary engineer from 1974 until August 1992 when he was discharged for violating Rule No. 2 of the Employees' Safety and Conduct Guide. More specifically, the applicant was discharged for theft of company property. The discharge letter in that respect is dated August 10, 1992, and reads as follows:
On August 5th, 1992, you violated Rule No. 2 of your Employee's [sic] Safety and Conduct Guide which read as:
"Actual or attempted theft, misappropriation of property, including the aiding or abetting of the same, from employees or the Company. Misappropriation of Company property includes, but is not limited to, the following:
a) Actual or attempted theft of Company materials (automobile parts, tools, gloves, coveralls, stationery, office supplies, etc.).
b) Any other incidents of dishonesty which may adversely affect the Company's interests.
Accordingly, you are advised that your employment and seniority have been terminated effective August 5th, 1992.
You are advised of your right to Union representation.
24The applicant testified that in the spring of 1992 he felt anxious, depressed, unable to cope, and even suicidal. It appears that his home life was deteriorating because he said that in April 1992 he began to spend more time at work in order to avoid being at home.
25The medical evidence before the Board suggests that the applicant had experienced depression and an inability to cope for a year prior to his discharge. This medical evidence consists of reports written by doctors recounting what the applicant reported to them. However, the applicant confirmed this in his own testimony. There is no evidence to corroborate the applicant's testimony that his medical condition during the spring and early summer of 1992 manifested itself in his job performance. The evidence before the Board is that the applicant worked as scheduled until he was arrested by the police on August 5, 1992 and was subsequently admitted to the psychiatric ward of the Peel Memorial Hospital. There is no evidence that anyone else noticed anything odd or different in his behaviour at work prior to August 5, 1992. There is no evidence that anyone else perceived any deterioration in his job performance, or in his relations with other employees in the months prior to August 5, 1992.
26August 5, 1992 was the applicant's last day of work. After he completed his shift that day he was arrested and charged with the Criminal Code offense of theft. Subsequently, on August 7, 1992, the applicant sought medical assistance from his family doctor, who referred him to the emergency department of Peel Memorial Hospital for a psychiatric assessment. The applicant was diagnosed as suffering from major depressive illness with suicidal ideations and a history of diabetes mellitus, and he was admitted and treated as an inpatient until August 28, 1992.
27Subsequently, in September 1992 the applicant, who was represented by counsel during the criminal proceedings, pleaded guilty to "theft over $1,000.00". A conviction was entered, and the applicant was sentenced to 3 years probation. This was notwithstanding that the applicant testified that he was "completely out of it" between August 1992 and September 1993 as a result of his medical condition and the medication he was receiving for it. Before the Board, there was no suggestion from anyone that the applicant was unable to understand the criminal proceedings, or that he was unable to properly instruct counsel in that respect.
28After his release from hospital, the applicant continued (and apparently still continues) to receive psychiatric treatment on an outpatient basis.
29On December 15, 1995, the applicant suffered serious multiple injuries, including injuries to his head, when he was struck by a car while crossing a street as a pedestrian. As a result of these injuries, from which he very nearly died, the applicant was hospitalized until May 8, 1996. Unfortunately, the aggressive treatment which saved his life also resulted in serious damage to his eyes. Despite treatment, including multiple laser surgeries, the applicant is now legally blind.
30There can be no question but that the applicant is now totally disabled, and that he has been totally disabled for some time. Notwithstanding that the questions of when the applicant became disabled for insurance benefits purposes is a matter for arbitration, and is not directly before the Board, it is something which I must consider when assessing whether the point of this complaint (i.e. to obtain sickness and accident or extended disability benefits) is moot.
31As the Nova Scotia Court of Appeal observed in Blackburn v. Victory Credit Union Ltd. (1998) 1998 CanLII 6089 (NS CA), 1 C.C.L.I. (3d) 226, the reality of mental illness is that it does not develop over night, and a person who is apparently functioning at work may nevertheless be medically disabled as a result of a mental illness. In assessing such a situation, one has to apply logic and common sense. One has to understand that it may take a culminating incident, like the proverbial straw that broke the camel's back, to make the conditions apparent or hospitalization necessary. In this case, it does not take a great leap of logic to conclude that it is prima facie more probable than not that the applicant was suffering from a mental illness before he was hospitalized for it on August 7, 1992. Indeed, there is evidence (albeit not much) that the applicant sought and obtained treatment from his family doctor in that respect. More importantly, the medical evidence includes a psychiatric medical report dated February 27, 1995 from Dr. Sood which includes the opinion that the applicant "had been depressed for at least four months prior to his loss of job and the incident of stealing". I am therefore satisfied that there is a prima facie case for the proposition that the applicant was disabled prior to August 5, 1992.
32Further, and in any event, there is a strong prima facie case for the proposition that the applicant was totally disabled prior to August 10, 1992. This is significant because one of the issues between the parties is when the applicant's employment was actually terminated. The unions and Chrysler say that the date of discharge was August 5, 1992. I disagree.
33The unions and Chrysler assert that the applicant was suspended pending further investigation. They say that when the investigation was completed, the applicant was discharged effective the date of suspension; that is, effective August 5, 1992.
34In unionized workplaces, it is common practice for an employer which thinks it has cause to discipline or discharge an employee to first suspend that employee, almost always without pay, pending further investigation, which often includes discussion with the employee and the trade union.
There are sound labour relations policy reasons for this approach, and as a practical matter it has no effect on the final disposition of the "usual" discipline case. But as I have already observed, this is not the usual case. Entitlement to insurance benefits issues do not often arise in disciplinary discharge cases. But the issue may become more important in this post-Weber era.
35In this case, there was no evidence that anyone advised the applicant that he had been suspended. There is evidence that the applicant assumed that he had been suspended, and that the union was told that he had been. But the usual practice, both generally and specifically under this collective agreement is for the employer to give written notice of suspension to the employee and to the union. That did not happen here. At least there is no evidence that it did. Indeed, the August 10, 1992 discharge letter makes no reference to the purported suspension.
36Suspension from employment is a serious matter. It is not enough for everyone or anyone to assume a suspension, or for an employer to suspend an employee without telling him/her about it. Nor is it enough to tell the union. I am not satisfied that there is a prima facie case for the assertion that the applicant had in fact been suspended on August 5, 1992.
37But even if he had been suspended on August 5, 1992, a suspension does not operate to terminate the employment of an employee. Suspension is suspension, and discharge is discharge. So, for example, an employee who is suspended for five days because of some misconduct is not fired and then rehired five days later (with all of the collective agreement consequences which could follow if that was the case). Accordingly, assuming that the applicant was suspended on August 5, 1992, he was not discharged until after that.
38Nor can an employer discharge an employee retroactively. Whether it intends to deprive the employee of some benefit or its motives are pure, an employer cannot purport to give a discharge decision effect prior to the date that the decision is actually made. This is true both as a general principle, and specifically in cases involving entitlement to insurance benefits. It is counter-intuitive and would be unfair to consider a decision to terminate a person's employment, and the rights and benefits arising out of employment, to be effective before the decision is made and communicated (or deemed to have been communicated) to the employee. In this case, there is no evidence before the Board regarding who made the decision to terminate the applicant, or when that decision was made. All there is is the August 10, 1992 discharge letter, from which I can only infer that the decision was made on or about that day.
39I recognize that this conclusion may cause employers to act first and investigate later, with the result that positions may tend to become fixed earlier and grievances more difficult to settle. This would be a negative labour relations consequence, but policy considerations cannot override legal rights or obligations. (This conclusion is also consistent with the approach the courts have taken: see, for example, Smith v. The Empire Life Insurance Company, [1996] I.L.R. 1-33 12 (Ontario General Division), and Bull v. Capital Reality Corporation [1981] 8 C.C.E.L. 229 (Ontario Court of Appeal).)
40Accordingly, there is a strong argument to be made that the applicant's employment was not terminated by Chrysler until August 10, 1992, the date of the discharge letter. As I have already indicated, the applicant was hospitalized from August 7 to August 28, 1992. The evidence before the Board also indicates that during that time the applicant was advised that he would be unable to return to work for at least one year. That is, there is a strong prima facie case for the applicant's assertion that he became totally disabled, within the meaning of and for the purposes of insurance benefits under the collective agreement, before his employment was terminated. That is, it appears that he became entitled to insurance benefits under the collective agreement when he was still an employee of Chrysler.
41There is no dispute that the insurance policy in question forms part of the collective agreement between "Chrysler Canada Ltd., and National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), 444, 1090, 1286, 1459 and the National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada)" under which the applicant was employed by Chrysler. Not only was there no suggestion to the contrary, but Exhibit "C" to the collective agreement specifies that the life and disability insurance program is incorporated by reference into the agreement. No insurance policy was produced at the hearing. However, Exhibit "C" specifies that the employer is to maintain group life and disability insurance policies and that:
Said policies, together with any rider or riders incorporated therein, shall determine the rights and obligations of all persons with respect to group life insurance (including dependent group life insurance and optional group life insurance), group accidental death and dismemberment insurance, group sickness and accident insurance, group reinstated sickness and accident insurance and group extended disability insurance under this Life and Disability Insurance Program. A representative of the Corporation and a representative of the Union will sign and approve a copy of each of said policies and each rider thereto.
42Although no policy was not produced, a booklet entitled "Life and Disability Programs for Hourly Employees Represented by the CAW" was produced and is before the Board. This document self-identifies as containing important insurance information and that it is intended to be an easy to read description of the main features of the various bargaining unit insurance benefits plans. It was not suggested that this booklet does not accurately reflect the relevant provisions of the actual insurance policies. More importantly, Exhibit "C" to the collective agreement also contains provisions regarding time limits for providing written notice of claims and proof of loss. The booklet is a Chrysler-generated document, into which the unions had no input. Accordingly, to the extent that there may be any conflict between the provisions negotiated in the collective agreement and an insurance policy or policy booklet, the collective agreement provisions must prevail for the purposes of determining rights under the collective agreement. (I note that no relevant inconsistencies are apparent).
43On the evidence before the Board, the applicant was and is prima facie entitled to both sickness and accident, and extended disability benefits under the collective agreement.
44The collective agreement provides that in order to qualify for benefits, an employee must furnish written notice of claim within 20 days after the commencement of any period of disability "or so soon thereafter as is reasonably possible". It also provides that written proof of loss must be furnished within 90 days "after the termination of the period for which the Insurance Company is liable", or later if it is submitted "as soon as reasonably possible and no event, except in the absence of legal capacity of the employee, later than one year from the time proof is otherwise required". (Under the collective agreement insurance program, sickness and accident benefits are payable for one year, and thereafter extended disability benefits are payable upon application and satisfactory proof of disability). The insurance benefits booklet also provides, in part XIII C., that:
"No legal action may be brought to recover any benefit, except group life insurance, after three years from the deadline for filing a claim...
45Finally, Appendix "C" to the collective agreement contains a "Procedure for Review of Denied Claims". This is identified as being an internal procedure of Chrysler and AETNA Life Insurance Company (the benefits plan administrator) although the evidence before the Board is that all disputes regarding insurance claims are dealt with through this process. The main body of the collective agreement contains a grievance procedure. This procedure, which is obviously the product of a mature collective bargaining relationship, requires that grievances be filed promptly and specifies that claims are in effect limited to a period of 30 days prior to when an employee or the union, as the case may be, knew or ought to have known about the alleged violation of the collective agreement. To the extent that there are conflicts between these provisions, it is appropriate that the more generous provisions prevail.
46It may be that the applicant suffered from a disability prior to August 7, 1992. That is an issue for "trial" and remains to be determined. But he was (it appears) paid his regular wages until August 5, 1992. Accordingly, the earliest date for which a disability benefits claim would have been (and presumably is being) made is August 6, 1992. It is inconceivable that the applicant could reasonably have been expected to file a notice of claim prior to his release from the psychiatric ward of the Peel Memorial Hospital on August 28, 1992. The question is when after that date ought he reasonably to have done so.
47One possible answer to this question is immediately upon or within a few days of his release from hospital. However, the applicant had been hospitalized for a mental illness, and upon his release from hospital he continued to be treated as an outpatient. Further, his mind was undoubtedly occupied by the criminal proceedings in September 1992. The applicant also testified that he assumed that he could not apply for benefits because he had been discharged (which discharge he was aware of by the time he left the hospital) and because he thought coverage was limited to physical disabilities (which at the time he did not think he had). Further, both the unions and Chrysler were aware that he had been hospitalized, and they either knew or could easily have discovered the reason for this. No one did anything to advise the applicant that he might be able to make a claim for disability benefits (which they could have done even if they assumed he was not entitled to them). In the circumstances, I am not Al satisfied that "upon release from hospital" is the appropriate answer.
48In any case, it was not until November 23, 1993, when the applicant consulted counsel with respect to matrimonial matters, that the applicant was advised that he could have a claim for disability benefits. Some two weeks later, by letter dated December 8, 1993, counsel wrote to Chrysler on the applicant's behalf, suggesting that the applicant was suffering from a medical disability covered under his employment disability benefits at the time his employment was terminated, and requesting a copy of the relevant insurance documents.
49On the evidence before the Board, I am satisfied that this December 8, 1993 letter from counsel arguably constitutes a notice of claim for insurance purposes, and that in the circumstances it was arguably furnished as soon as reasonably possible within the meaning of the insurance provisions of the collective agreement. (Indeed, there is some support in the insurance jurisprudence that the time for filing such a claim did not begin to run against the applicant until he actually became aware that he could make a claim; that is, November 23, 1993 - see, Vallobh v. Kay (1986) I.L.R. - 2089).
50Chrysler responded by letter dated January 12, 1994. It provided counsel with a copy of the insurance benefits summary booklet, but not of any actual policy. Nor did Chrysler provide proof of loss or other forms, or indicate how any relevant or appropriate forms could be obtained. Instead, Chrysler took the position that the applicant's entitlement to disability benefits covered ceased concurrently with the termination of his employment (which in its view was August 5, 1992). There was then a delay of several months while the applicant, being without a job or funds, sought Legal Aid funding. It was not until August 18, 1994 that counsel wrote again, this time to AETNA Benefits Management Inc. Counsel indicated that the applicant's position was that he was entitled to insurance benefits. AETNA's reply, by letter dated August 25, 1994, was not particularly responsive. It merely acknowledged receipt of the August 18, 1994 letter and indicated that it would keep that letter on file. No forms or information were provided or requested.
51Undeterred, counsel for the applicant wrote (by letter dated March 2, 1995) to Chrysler and the Local Union advising that he had been "consulted" by the applicant, and inquiring about status of the applicant's discharge grievance. Mr. Mike McCue, the Local Union Chairperson, responded on behalf of the Local Union by letter dated March 29, 1995. He enclosed several documents relating to the discharge grievance, including the disposition of that grievance and a copy of the collective agreement. The letter does not refer to anything other than the discharge.
52In the meantime, counsel for the applicant had begun to collect medical evidence, and by letter dated May 16, 1995, he provided a copy of a psychiatric medical report dated February 27, 1995 to AETNA's Chrysler claims office.
53Counsel for the applicant (Mr. Rush) testified that up to this point neither the grievor nor anyone else had mentioned anything about the grievance procedure under the collective agreement. He candidly conceded that he was not familiar with labour relations law, or with the Ontario Court of Appeal decision in Weber (the Supreme Court of Canada decision not having been released until June 29, 1995). However, counsel was familiar with insurance law, and having regard to the pace of things up to that point, he considered it prudent to issue a Statement of Claim for sickness and extended disability benefits in the applicant's name on May 31, 1995.
54In September 1995, counsel forwarded two further medical reports to AETNA's Chrysler claims office.
55In late November 1995, Chrysler advised the applicant's counsel of the Supreme Court of Canada's decision in Weber, supra, and of Chrysler's position that the effect of that decision is that if the grievor had any remedy it was through the grievance arbitration procedure under the collective agreement and not in the courts. Whether or not counsel should have been alerted to this earlier, this was when he in fact first became aware of the Weber decision. Counsel acted promptly, and under cover of letter dated December 5, 1995, he sent a "Notice of Grievance" signed by the applicant to Chrysler and the Local Union. In this "Notice of Grievance", the applicant specifically claimed sickness and accident and extended disability benefits under the collective agreement.
56Neither Chrysler nor the Local Union responded.
57Accordingly, by letter dated March 6, 1996, counsel wrote asking for a response, and advising that the applicant had again been hospitalized (recall that the applicant was hospitalized from December 15, 1995 to May 6, 1996 as a result of the severe injuries he suffered when he was struck by a motor vehicle).
58Again there was no response from either Chrysler or the Local Union.
59Counsel wrote again by letter dated April 11, 1996. He again asked for a response to the December 5, 1995 notice of grievance. In a separate April 11, 1996 letter to counsel for Chrysler in the civil proceeding, counsel asked what arrangements were being made for a hearing of the grievance and for Chrysler's position regarding the civil action.
60Neither Chrysler nor the Local Union responded to the first letter. Chrysler responded to the second letter on April 30, 1995 (although counsel for the applicant apparently was unaware of this until June 5, 1996, and did not actually receive a copy until July 3, 1996). Chrysler took the position that the applicant could not himself initiate any proceedings under the collective agreement, and that the civil action was "ill founded" because of the provisions of the Workers' Compensation Act, as it then was (and not, interestingly enough, in that letter, because of the Weber decision, or the Labour Relations Act, 1995).
61On the evidence, counsel then had difficulty communicating with the applicant, and it was not until February 3, 1997 that counsel wrote again, this time only to the Local Union. In this letter, counsel in effect re-stated the applicant's December 5, 1995 Notice of Grievance. Counsel briefly reviewed the history of the matter, asserted that had the "CAW" fully appreciated the state of the applicant's health in August 1992 it would have advised him to grieve for disability benefits, and would not have subsequently withdrawn his discharge grievance. Counsel enclosed copies of three medical reports, summarized the medical situation, and requested that: (a) a disability benefits grievance be "commenced" and (b) the discharge grievance be reinstated at Step 4 of the grievance procedure.
62This letter was responded to by Ron Pellerin, National Representative of the CAW. Mr. Pellerin rejected the applicant's request. He asserted that a grievance for sickness and accident benefits "would after such a long time not be proper", and that the request in that respect was the first one the Local Union had received.
63This complaint was then filed, on April 18, 1997.
64While all of this was going on, there is a prima facie basis in the evidence for concluding that the applicant's medical condition continued to deteriorate, slowly at first, and more precipitously after December 15, 1995 when the severe physical injuries he suffered exacerbated his already poor mental state. Prima facie, the applicant appears to have been totally disabled, within the meaning of the collective agreement disability insurance provisions, at all material times. There can be no doubt that he is totally disabled today. There appears to be no reasonable prospect that he will ever recover.
65From my review of the insurance jurisprudence, this appears to be the sort of case in which the courts have been prepared to grant relief from forfeiture with respect to notice of claim and proof of loss requirements. Relief from forfeiture applies to both statutory and contractual provisions. The courts have granted such relief in the exercise of both inherent jurisdiction and the provisions of the Insurance Act (section 328). The Board and labour relations boards of arbitration do not have the inherent jurisdiction that the courts do. But if disability or other insurance issues are to be adjudicated by boards of arbitration under a collective agreement, arbitrators must also have the jurisdiction to apply the provisions of the Insurance Act, either pursuant to the authority granted them under clause 48(12)(j) of the Labour Relations Act, 1995 or otherwise. As the Supreme Court of Canada's decision in Falk Brothers Industries v. Elance Steel Fabricating 1989 CanLII 38 (SCC), [1989] 2 S.C.R. 778, and the Ontario Court of Appeal's decision in Thomas v. Hickey 1998 CanLII 3205 (ON CA), [1998] 38 O.R. (3d) 423 affirming the trial decision of the Ontario General Court (General Division (1995) 1995 CanLII 7158 (ON CTGD), 22 O.R. (3d) 331 (among others) demonstrate, in insurance matters, the courts have distinguished between imperfect compliance (i.e. a breach of the term of the contract) and non-compliance (i.e. a breach of the conditions precedent). Failure to give timely notice of claim has been treated as imperfect compliance while a failure to institute legal proceedings within the prescribed time has been considered to be non-compliance. Non-compliance is fatal to a claim. Imperfect compliance is not. The question which the courts have asked in determining whether relief from forfeiture is appropriate is whether the delay has actually prejudiced the fair adjudication of the claim. The courts also consider whether the claimant has acted in an improper manner such that it would be inappropriate to allow the claim.
66I am not satisfied that the sort of prima facie prejudice that would cause me to conclude that the applicant could not possibly succeed on the merits of this claim exists in this case. Indeed, the evidence before me (and I appreciate that it may be incomplete on this point) suggests that Chrysler, a self-insurer in this case and against whom the insurance claim on the merits is made, did nothing to investigate the merits of the applicant's claim, even though it knew or ought to have been alerted to the applicant's medical situation and the possibility of such a claim when he was hospitalized on August 1992, and certainly no later than December 1993 when counsel furnished what is prima facie notice of claim for benefits (and in that respect, see, Canadian Equipment Sales v. Continental Insurance, (1975) 1975 CanLII 670 (ON CA), 9 O.R. (2d) 7 (Ontario Court of Appeal, and Coombs v. Royal Insurance (1986) 14 C.C.L.I. 271 (Ontario District Court)). Chrysler's position throughout has been that the applicant is not entitled to any insurance benefits under the collective agreement because his employment was terminated on August 5, 1992 (a proposition which I consider quite suspect, see paras. 32-40, above).
67In short, any prejudice to Chrysler as a self-insurer arises primarily if not entirely out of its own conduct, and I find nothing in the applicant's conduct which would be certain to disqualify him from relief from forfeiture. On the contrary, I consider there to be a strong arguable case for relief from forfeiture with respect to any imperfect compliance in this case. (I will deal with the prejudice to the unions, against whom the complaint to the Board is made, below).
68The question then becomes, has there been non-compliance? That is, has there been a "legal action" commenced within the prescribed time for purposes of the applicant's claim for collective agreement insurance benefits?
69The first question is what is the prescribed time? On the evidence before the Board, the prescribed time is "three years after the deadline for filing a claim". When is a claim "filed"? I am satisfied that there is a strong argument to be made that a claim is not "filed" until the requisite proof of loss of documents have been filed. When does a proof of loss have to be filed? It must in no event be filed later than one year from the time proof of loss was otherwise required - except in the absence of legal capacity. This presents two issues. First, was there an "absence of legal capacity" within the meaning of the insurance policy in this case, and if so, what is its effect. Second, since proof of loss must be furnished within 90 days after the termination of the period for which sickness and accident benefits are payable, when did the three year "legal action" limitation period begin to run. Third, what is the effect of the insurer's apparent failure to provide information or forms?
70Sickness and accident benefits are payable for a maximum of 52 weeks. In this case, it is arguable that proof of loss was not required until 90 days after August 6, 1993 (i.e. if as I have found is prima facie the case, the applicant was entitled to sickness and accident benefits for 52 weeks beginning August 6, 1992), and that the "one year for the time proof is otherwise required" is calculated at 90 days plus one year after August 6, 1993; that is, on or about November 4, 1994. It is therefor arguable that the three year "legal action" limitation period would therefor run out on or about November 4, 1997.
71Assuming no material absence of legal capacity (as there must have been until at least August 28, 1992) and that the failure to provide forms or information has no effect. November 4, 1997 appears to be the furthest out that the "legal action" could have been commenced. I consider there to be only a very weak argument to be made for the proposition that the legal action commencement date is August 5th (or 6th), 1996 (i.e. four years from the commencement of the claim). A marginally stronger argument is available for November 4th (or 5th), 1996. Another arguable alternative is December 9, 1996, which is the date suggested by the applicant.
72Whatever may be the case generally, there is no dispute before the Board that "legal action" for purposes of the insurance benefits in issue in this case means a grievance under the collective agreement between Chrysler and the CAW. That appears to be the effect of Weber, supra. It has also been part of the position of Chrysler throughout. The unions did not directly disagree, although their position on the point seems somewhat confused. I am satisfied that a grievance is at least an appropriate proceeding. That being the case, the relatively short general grievance proceeding limitation periods in the collective agreement do not apply. The specific provisions of the insurance benefits part of the collective agreement, which are more generous, are the ones that apply. Not only is that an established approach to contract and statutory interpretation, as a matter of policy it would be inappropriate to adopt an interpretation which would result in employees employed under a collective agreement being in a substantially worse position than employees not represented by a trade union.
73I am satisfied that the December 4, 1995 Notice of Grievance, which was faxed and sent by registered mail to both Chrysler and the Local Union on December 5, 1995, was notice to Chrysler and the unions that the applicant wished to grieve a denial of disability type insurance benefits under the collective agreement. Whatever view one takes of the limitation period calculation, the Local Union had ample time to investigate the matter or file a grievance for the applicant in a timely way. Indeed, even if one considers the February 3, 1997 letter and not the December 4, 1995 notice of grievance to be the grievance, it is arguably timely. In the alternative, the delay would not be so long that the time limits would not have been extended in the discretion of an arbitrator under subsection 48(16) of the Act. Finally, the insurance jurisprudence developed by the courts seems to suggest that the continuing nature of such disability claims, which is substantially the same as the continuing grievance principle that the labour relations community is familiar with, is such that the limitation period would only effect how far back benefits could be awarded, and not whether they could be claimed at all. In any case, I am not satisfied that the applicant has clearly breached a condition precedent such that he is clearly non-compliant and precluded from obtaining any relief. On the contrary, there is a strong prima facie case to be made that he is entitled to a remedy.
5. The Conduct of the Unions
74That said, I turn to examine the conduct of the unions, which is what is actually in issue before the Board, particularly now that I have determined that there is indeed a point to determining the issue.
75The CAW is a large and sophisticated trade union. It has well established, mature collective bargaining relationships with all of the major North American motor vehicle manufacturers. It is known to be aggressive in bargaining and in pursuing the rights and interests of CAW members. But no one is perfect, and however high the general quality of CAW representation may be, each case must be examined and determined on its individual merits. It is neither a consolation to an aggrieved employee, nor a defense to a duty of fair representation complaint to plead or rely upon general good representation reputation.
76In this case, the essence of the unions' defense is ignorance. That is, the unions say they were ignorant of the applicant's situation. In addition, they appear to have been ignorant of the provisions of the collective agreement regarding sickness and accident and disability insurance benefits, and also of the Weber decision and its impact. Unfortunately, the unions did nothing to dispel this ignorance, and on the evidence, I find their response to this complaint to be disingenuous. In any event, it is without merit.
77There are several components to the unions' defense. They assert that they were unaware that the complainant might be disabled within the meaning of the sickness and accident or extended disability insurance provisions of the collective agreement prior to the termination of his employment, or for years after that. There is no cogent evidence that suggests that the unions were or ought to have been aware of that possibility prior to August 5, 1992. But Mike McCue (CAW Plant Chairperson at all material times), Mike Holjevac (the Local Union President), and other union representatives visited the complainant in Peel Memorial Hospital on or about August 9, 1997, two days after he was hospitalized and the day before the August 10, 1992 discharge letter was issued. They knew that the applicant had been admitted to the psychiatric ward, and the applicant told them that he had been diagnosed as suffering from a major depressive illness. That being the case, it is impossible for the unions to maintain that they were unaware of the possibility that the applicant was disabled. It was clear he could not work, and that he could not work because he had been hospitalized. It is no answer for the unions to say that the union representatives assumed that the applicant was hospitalized because he was traumatized by his arrest and the assumed termination of his employment. They had no basis for such an assumption.
Notwithstanding this, the unions made no further inquiries, and conducted no investigation, in support of a long-time member who they finally conceded at the hearing was prima facie disabled at the time. Nor did they give any consideration to the possibility that the applicant might have a claim for benefits under the collective agreement notwithstanding that he had been discharged.
78The unions professed that they assumed that entitlement to benefits ceases upon termination of employment, and that the union representatives who visited the applicant in the hospital knew he "was being" (not "had been" because he had not been) discharged before he was hospitalized. Even on the first part of this assertion, the unions are only partially correct. An employee may be entitled to insurance benefits even after termination if his right to such benefits crystallized prior to termination. As to the second part of the assertion, the assumption made is prima facie incorrect. I have already commented on this issue in paragraphs 32-40, above. In addition, Article 35 of the collective agreement between the unions and Chrysler requires that written notice of discharge be given promptly to the union and to the employee. There is no evidence of anyone from the unions having written notice in hand prior to August 10, 1992. Further, five days seems prompt enough in the circumstances. Indeed, if Chrysler was able to retroactively terminate an employee as suggested, what would happen to the Article 37 right to appeal which must be made within 48 hours of a discharge? In a case like this, that time would have expired three days before any written notice was received by anyone. This demonstrates the fallacy of the retroactive theory in this case. More importantly, the union did not even consider the possibility that the applicant's termination might not be effective for benefits purposes, or any other rights under the collective agreement for that matter, until August 10, 1992.
79In this latter respect, it appears that the unions' assumptions regarding the applicant's entitlement to insurance benefits under the collective agreement were based on nothing other than the experience of the unions' representatives, notwithstanding that on the evidence they had had no experience with a situation like the applicant's. There is no evidence that the unions sought any legal advice, either from the CAW's own legal department, or otherwise. Further, the unions appear to be unaware of, and unconcerned about, the Weber or subsequent Court decisions and the impact that they might have on the applicant's situation (or the obligations of a trade union). Indeed, it is not clear that the light has come on yet in that respect.
80The unions' assumptions were prima facie incorrect, but they apparently caused the unions to do nothing. They did nothing when, in October 1992 after his release from hospital, the applicant told them that he had been advised by his doctor to stay off work for a year. It does appear that sometime latter, during a meeting with the grievor about his discharge grievance, the Local Union asked the applicant if there was anything he could provide them with to assist in that grievance, including medical evidence. In the context of the situation as a whole, this single, halfhearted and rather pro forma attempt which no one made any effort to follow up on, is virtually meaningless. Indeed, the unions conceded that no union representative gave the matter a great deal of thought in 1993, and when the Local Union subsequently received the December 4, 1995 Notice of Grievance, it did not even have the courtesy to respond. At the hearing, Mr. Holjevac glibly asserted that this was not a grievance because it was not in the proper form, and that in any event, the Local Union assumed that is was untimely and that a claim for insurance benefits could not be pursued through the grievance procedure in any event. The Local Union was wrong, and because it failed to properly turn its mind to investigate either the facts or the legal position, it was wrong in a way which exceeds its limited right to be wrong. Indeed, the unions' ignorance of the relevant provisions of the insurance policies, or even of the employees' booklet in that respect, and of the Weber decision is nothing short of inexcusable. It is difficult to understand the unions' explanation that they considered it inappropriate to respond to the Notice of Grievance because of the civil action which had been commenced. What did the civil action have to do with it, or their duty of fair representation to the applicant? The short answer is nothing at all. At the very least, the Local Union could have responded that that was its position. Instead, the Local Union did nothing.
81Nor did the Local Union, or anyone else, do anything when it received the applicant's letters (from counsel) dated March 6 and April 11, 1996. When I say the Local Union did nothing, I mean for or with respect to the applicant. The evidence discloses that the Local Union did consider it appropriate to discuss the matter with Chrysler. Why the Local Union considered this to be appropriate while it was refusing to respond to the applicant's request under the collective agreement escapes me.
82Indeed, the unions did nothing to even respond to the applicant until after they received the applicant's February 3, 1997 letter. I am left to guess at why the unions considered it appropriate to respond to this letter when they had considered it inappropriate to do so before. What had changed other than the passage of additional time? Nevertheless, National Representative Pellerin responded by letter dated March 11, 1997 as follows:
I have received your correspondence from CAW Local 1459.
Please be advise [sic] that after reviewing the information with regard to the termination of William
Switzer that there would be no basis for the action you are requesting.
There was never any appeal of the local union decision by Mr. Switzer to provide for a review by the National Union structures.
I am not sure that you have the full information with regard to his termination.
A grievance at this time on Mr. Switzer's behalf for sickness and accident benefits would after such a long period of time not be proper.
This is the first request of this nature that the local union has received.
Mr. Switzer was terminated. The local union's actions were proper with regard to their decision on this grievance. There is no legitimate basis for any further action by the local union of the National Union.
83I am mystified by this response. Since the unions had done no investigation of their own, and had no information other than what they had received from Chrysler or counsel for the applicant, what information did Mr. Pellerin review, and on what basis did he assert that there "would be no basis for the action you are requesting"? On what basis did Mr. Pellerin assert that a claim for sickness and accident benefits after such a long time would not be proper, particularly when the evidence suggests that the unions were improperly informed about the insurance policies or the rights of bargaining unit employees to insurance benefits under the collective agreement? There is no mention in this letter of extended disability benefits, or the continuing entitlement component of such benefits. Indeed, Mr. Pellerin's statement that this was the first such request that the Local Union had received is patently incorrect, and suggests that he is the one who was incompletely informed of the situation. Further, the last paragraph demonstrates the unions' apparent inability to separate the discharge grievance from the benefits claim. As a whole, the letter indicates that the union's "mind" had been and remained closed to the possibility that the grievor might have a claim to benefits under the collective agreement, all of this notwithstanding the lack of any prior experience with such a case, or any investigation of the facts or the law.
C. Conclusion and Remedy
84I am satisfied that neither unions' conduct in this case was discriminatory or in bad faith, within the meaning of those terms in section 74 of the Labour Relations Act, 1995. However, I am satisfied that the unions' conduct was arbitrary. In argument, counsel for the applicant conceded that there had been no breach of section 74 in 1992. But for that concession, I would have found that there was such a breach on the basis of the unions' inability to distinguish between discharge and an entitlement to benefits in circumstances where it ought to have been sufficiently clear that the applicant was disabled and might have a claim to such benefits, or to have at least prompted an investigation of the facts and legal position. Even if they had not noticed anything odd in the applicant's behaviour prior to August 5, 1992, and perhaps particularly in that event, why didn't the Local Union's representatives consider the applicant's criminal conduct to be out of character. Did they not think if sufficiently odd that he was almost immediately admitted to a psychiatric ward that some investigation might be in order, whatever their own uninformed assumptions were? And did it not occur to them that the situation was factually unlike any other in their experience, and that there might be legal issues which merited some inquiry, of the CAW's own legal department (which presumably exists to provide such a service) of nowhere else? Apparently, the answer to each of these questions is "no". Clearly, the answer should have been "yes".
85This was precisely the sort of situation in which a union has a duty to be proactive in representing and advising a bargaining unit employee. In any case, the unions' arbitrary conduct, as demonstrated by their failure to investigate or otherwise properly turn their minds to the applicant and particularly his December 4, 1995 notice of grievance, and their inexplicable ignorance of the insurance policies which are part of the collective agreement between the CAW and Chrysler resulted in a mind-set which was completely closed, albeit without malice, to the applicant and his entreaties.
86Turning to the issue of delay insofar as it affects the unions, there is no doubt that a substantial part of the delay relied upon resulted from the unions' own failure to represent the applicant properly, and specifically their own failure to investigate or to respond to him. The unions conceded that they would have done nothing to investigate or pursue a benefits grievance even if this complaint had been brought in 1996. On the evidence, I am satisfied that the same is true for 1995, 1994 and 1993. Any prejudice to the unions in this case has resulted from their own conduct, and not from the applicant's lack of diligence. In the result, I am satisfied that this complaint should not be dismissed because of delay. I am further satisfied that the unions, which did not seek to distinguish the Local Union's role in the matter from that played by the National Union, have failed to represent the applicant fairly, contrary to section 74 of the Act.
87As I said earlier, this is not a case in which the question is whether the attentions the Unions gave to the applicant's collective agreement benefits situation was adequate in the circumstances because it is clear they gave it no attention at all. The unions accepted without question that Chrysler's purported retroactive discharge of the applicant. They did not even consider the possibility that the applicant might be entitled to some of the benefits which form such a substantial part of the collective agreement. Had the unions considered this, had they investigated the facts and law, and then wrongly concluded that there was no basis for such a claim, they may have had a viable defense to this complaint (subject to the "gatekeeper" issue I alluded to above). But they did not.
88I turn now to the question of remedy. The applicant asks that the unions be required to proceed with his benefits grievance, and to pursue the matter to arbitration if necessary. This is a difficult case on the merits of the benefits claim. It is fraught with factual and legal difficulties. That is the way it is now. But it needn't have been, if only the unions had fulfilled their duty to the applicant. Having said this, the primary remedy sought is the common (indeed the usual) remedy in such matters, and having regard to my conclusions as aforesaid, I am satisfied that it is an appropriate remedy in this case.
89However, the applicant also asks that the unions be required to pay for independent legal representation for the applicant throughout the grievance process, at arbitration, and on appeal or at judicial review if necessary. In my view, this is not generally an appropriate remedy except when there has been an element of bad faith in the union's conduct which cannot be eradicated or remedied. There is nothing before the Board in this case which suggests that the unions will do anything other than their very best to represent the applicant in his benefits grievance, and I decline to award this remedy. However, the nature and complexity of the factual and legal issues of the claim are such that I do consider it appropriate to require that the unions provide counsel to deal with the matter. None of this precludes the applicant from continuing to have his own legal advice, but the unions need not pay for this unless they elect to permit the applicant to proceed with counsel of his choice.
90Finally, the applicant requests that the benefits grievance be litigated in a forum other than the Appeal Board under the collective agreement, or the AETNA review process. The AETNA review process, in which that administrator has the final say, is clearly an inappropriate forum for a final rights determination concerning disability benefits, particularly in this case. The collective agreement Appeal Board process is somewhat more problematic. It is obviously the product of a mature collective bargaining relationship which undoubtedly works very well. There is nothing before the Board which suggests that it does not. However, its structure appears to give far too much input to representatives of the unions and Chrysler, who act as both advocates of the respective positions and as 'judges" in the cause. In addition, the "impartial chairperson" seems unduly limited in his/her jurisdiction. I am not satisfied that the Appeal Board process is an appropriate forum for the litigation of the applicant's claim for insurance benefits in this case. I consider it more appropriate that if arbitration is necessary, the board of arbitration consist of a tripartite panel where neither the union nor the employer nominee have a direct connection with either of the parties, and where the neutral Chair comes from the Minister's list of arbitrators (either on agreement or by Ministerial appointment under section 49 of the Act). In the alternative, the matter may proceed before a sole arbitrator, from the Minister's list of arbitrators, agreed to by the parties or appointed by the Minister.
91In the result, the Board:
(a) declares that the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Local 1459 failed to represent the applicant fairly with respect to his claim for collective agreement sickness and accident and extended disability benefits, contrary to section 74 of the Act;
(b) orders that the National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) Local 1459 forthwith proceed with the said grievance, to arbitration if necessary;
(c) orders that the unions provide counsel to the applicant in accordance with paragraph 89 of this decision;
(d) orders that Chrysler refrain from raising any grievance time limits issues;
(e) orders that no settlement of the applicant's claim for disability benefits and other collective agreement be entered into without the applicant's agreement;
(f) orders that if the grievance cannot be settled that it proceed to arbitration, and that the grievance not be arbitrated under either the Exhibit "C"
Appendix "C" Procedure for Review of Denied Claims under the collective agreement, or the Appeal Board process under Articles 22 to 32 of the collective agreement. Instead the Board orders that the matter proceed before a tripartite board of arbitration or a sole arbitrator in accordance with paragraph 90, of this decision.
92The Board (but in the circumstances not me personally) shall remain seized with this matter for the purposes of dealing with any issues relating to the interpretation or implementation of this decision, and for the purposes of dealing with any remedial issues which may remain if and after the matter is arbitrated.