Vito Gironda v. Canadian Union of Public Employees, Local 1280
File No.: 3430-94-U Date: January 5, 2000
Vito Gironda, Applicant v. Canadian Union of Public Employees, Local 1280, Responding Party v. Metropolitan Separate School Board, Intervenor.
BEFORE: David A. McKee, Vice-Chair.
APPEARANCES: Vito Gironda for the applicant; Kathleen Martin, Bob Moreau and Ralph Carnovale for the responding party; Guy Bisson and Bob Dubniak for the intervenor.
DECISION OF THE BOARD
1This is an application brought pursuant to section 96 of the Labour Relations Act, 1995, S.O. 1995, ch. 1 (“the Act”) alleging a violation of what is now section 74 by the Canadian Union of Public Employees of Local 1280 (“CUPE”). The applicant alleges that CUPE failed to represent him by refusing to participate in an application for judicial review of an arbitration decision respecting his discharge from employment by his former employer, the Metropolitan Separate School Board (“MSSB”).
2This hearing commenced on December 9, 1999. At that hearing, the applicant appeared representing himself. The Board advised him that the Board is an adjudicative tribunal and its role is to hear and decide cases. There is no requirement that persons appearing before the Board retain legal counsel and many people appear before the Board unrepresented. However, Board hearings are legal proceedings and persons appearing before the Board on their own must bear any risks involved in doing so. As an adjudicative tribunal, we cannot advise unrepresented parties as to how they should proceed. The responsibility for preparing and presenting a case lies with the persons appearing before the Board. As the Board’s role is to adjudicate, it is inconsistent with that role for the Board to act as advisor to any person because that person is unrepresented by counsel.
3There were several preliminary objections raised by CUPE and the intervenor. (Since 1995 the Metropolitan Separate School Board (“MSSB”) has become the Toronto Catholic District School Board (“TCDSB”)). I advised the applicant of the nature of these preliminary objections and indicated the following procedure. I asked the applicant to state his case in full. That is, I wanted him to state every fact that he alleged was of relevance or importance to his application. I would then permit a very limited right of cross-examination to CUPE and the CDSB only with respect to issues relating to their preliminary motion. Should the matter go further, additional rights of cross-examination would be permitted. However, in this way I wished to ensure that the Board had the full extent of the applicant’s case before it in order to assess properly the preliminary objections. This was the procedure followed and argument on the preliminary motions was then entertained.
4Much of CUPE’s submission with respect to this complaint centered on the issued of delay. It is therefore necessary to set out the rather lengthy sequence of events in this case. The relevant events and dates are as follows:
January 26, 1989 - the grievor was discharged by the MSSB.
February 1, 1989 - his grievance was referred to arbitration. The first day of hearing was held October 27, 1989. After that date, CUPE considered not proceeding further.
August 27, 1990 – the applicant filed his first complaint under what is now section 74 with respect to CUPE’s refusal to proceed to arbitration. This matter was settled by way of an agreement where the union would permit the applicant to proceed to arbitration with a lawyer of his choice. CUPE would pay for the cost of the arbitrator. The applicant would pay his own lawyer’s fees. The matter proceeded to arbitration over 12 days of hearing which concluded on March 24, 1992.
December 15, 1992 – the arbitrator issued his award dismissing the grievance on the grounds that the applicant was a probationary employee and that the employer had proper grounds for discharge in that context.
At some unidentified point, the applicant decided he wished to take the matter further. He states that he discussed the matter with the executive of Local 1280 and they supported his application for judicial review.
February 10, 1993 – Apparently in connection with charges that the applicant wished to lay against other members of the Local because of their testimony before the arbitrator, he became involved in discussions with respect to an application for judicial review. That is, at that time he was not asking the union to proceed with the judicial review application but simply indicated that he was proceeding. Apparently this was necessary before he could bring charges since he was no longer a member of Local 1210. The letter of Norman Revells, Recording Secretary of CUPE, wrote and asked the applicant to provide him with a copy of the application for judicial review.
March 9, 1993 – is the date on the letter from the solicitor to the applicant enclosing a draft notice of application for judicial review which the applicant states he delivered to Mr. Revells.
May 14, 1993 – R. E. Moreau, National Representative of CUPE, wrote asking the applicant for proof that he had commenced a judicial review. He asked the applicant to respond to him by Friday, May 21, 1993. No reply was received.
September 20, 1993 – the solicitor who had acted for the applicant in the arbitration, wrote to Mr. Revells, perhaps in response to another undated letter asking for information which was filed with the Board, indicating that he was not acting in any application for judicial review nor was he prepared to take on such an application. His letter includes the statement: “If it is the union’s intention to pursue the judicial review of Mr. Palmer’s decision, then I would point out that you should do so without further delay as the court may well refuse to hear such an application if it is not filed within a reasonable time.
October 29, 1993 – the applicant sought agreement from CUPE to “subrogate to me its rights to bring an application for judicial review of arbitration of arbitrator