0365-00-U Margaret Cannon, Timothy Young, Milda Marjama, Leo Ryan and George Meisner, Applicants v. President Jim Lee, International Association of Fire Fighters’ Local 3888, Responding Parties v. City of Toronto, Intervenor.
BEFORE: Christopher J. Albertyn, Vice-Chair, and Board Members J. A. Rundle and R. R. Montague.
DECISION OF THE BOARD; June 20, 2000
1This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, as amended (“the Act”) in which the applicants claim that the responding association has violated section 74 of the Act.
2The responding party has filed submissions which contend that the Board does not have jurisdiction to consider this application. It submits that all fire fighters covered by its collective agreement with the intervenor are “fire fighters” within the definition of Part IX of the Fire Protection and Prevention Act. Section 3(e) of the Act reads:
(e) except as provided in Part IX of the Fire Protection and Prevention Act, 1997, [this Act does not apply] to a person who is a firefighter within the meaning of subsection 41(1) of the Act.
In the responding party’s submission, there is no duty of fair representation, nor any provision for complaints of unfair labour practices, under the Fire Protection and Prevention Act. The Board therefore has no jurisdiction to consider the application.
3The applicants were given an opportunity to file representations in response to the challenge to the Board’s jurisdiction. They contend that the provisions of the Act which are expressly incorporated in Part IX of the Fire Protection and Prevention Act, particularly subsections 111(1) and 114(1), give broad remedial powers to the Board, which would empower the Board to exercise its powers under section 96 of the Act, as read with section 74.
4We have considered the applicants’ submissions and we are not persuaded by them. The general powers conferred on the Board in the sections of the Act which are incorporated by reference in Part IX of the Fire Protection and Prevention Act do not
give the Board the power to “read in” a duty of fair representation on the part of the responding party under section 74 of the Act. The Board is therefore without jurisdiction to consider the application. It is dismissed.
“Christopher J. Albertyn”
for the Board
CONCURRING OPINION OF BOARD MEMBER R. R. MONTAGUE; June 20, 2000
There are no sound labour relations reasons for the predicament in which the applicants find themselves. They have a possibly well-founded complaint against the responding party yet there is no forum within which they can address it. The Board has no jurisdiction to deal with the matter. They have nowhere else to go. If they go to court, the courts will likely not provide a remedy because the applicants are governed by a collective agreement and the courts will likely tell them they must find their relief at arbitration. The applicants are in a remedial vacuum, unable to challenge what they believe to be an unfair labour practice by their collective bargaining agent. In my view there is no good reason for the continuing non-application of the UNFAIR PRACTICES sections of the Act (sections 70 to 118.1). They should apply with equal force to fire fighters. In the absence of protections against unfair labour practices, whether at the hands of their collective bargaining agent or their employer, fire fighters are left with no suitable remedy. In my view, the lacuna in the legislation protecting the labour and employment rights of fire fighters should be addressed by the Legislature.
“R. R. Montague”