Ontario Labour Relations Board
3457-00-U Albert Legault, Applicant v. AEFO, Responding Party.
BEFORE: Mary Ellen Cummings, Alternate Chair.
DECISION OF THE BOARD; May 16, 2001
This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”). The applicant alleges that the responding party (the union) has breached its duty of fair representation. The union has asked that the Board dismiss the application without a hearing because it fails to make out a prima facie breach of section 74 of the Act.
The applicant is claiming from the union the legal costs he incurred in successfully defending a highway traffic charge. The applicant was seeking to go to work. His fellow employees had put up a picket line. An accident ensued, and the applicant was charged with an offence under the Highway Traffic Act, allegedly at the insistence of the picket captain. The applicant was acquitted at trial. He wants the union to reimburse his legal expenses, on the basis that he was lawfully going to work at the time he was charged; that he was found totally innocent of the charges; and that the union regularly represents its members when they are charged with criminal offences.
In a decision released on March 30, 2001, I set out the Board’s concerns with the application, and directed the applicant to respond to them. First, the Board is concerned about the delay in bringing this matter. The applicant, on the basis of correspondence he relies on, knew on April 29, 1998 that the AEFO was refusing to pay his legal costs. Although the applicant has repeatedly asked, he has consistently received the same response. This application was brought 21 months after the union advised that it was not paying his fees. Second, the Board indicated it had doubts that the paying of a member’s legal fees was an issue around which the union had a duty of fair representation. Put another way, the Board noted that the duty of fair representation has been typically confined to matters related to the union’s status as exclusive bargaining agent.
The applicant provided further submissions, to which the union has responded. With respect to the delay issue, the applicant submits that the AEFO is not prejudiced in any way, because the applicant has consistently asserted his claim for the reimbursement, and sought his remedy in Small Claims Court, without success.
With respect to the Board’s concerns about whether this issue is subject to the duty of representation, counsel for the applicant asserted that if the Board were to make a conclusion that it was not, then the applicant would be left without any remedy, because the Small Claims Court, based on the submissions of the union, concluded that it did not have jurisdiction. Counsel submitted that the Board has “…an inherent jurisdiction…to remedy this injustice”.
Counsel concludes that while he appreciates that this is an unusual case, the arbitrary treatment of the applicant by the union, who is an innocent in all of this, is a situation that the Board should remedy.
Starting first with the issue of delay, the applicant’s explanation that the union has long known of his claim is not sufficient. In Reffio DiSimone, [1999] O.L.R.D. No. 271, the Board considered a two-year delay that sought to be justified on account of the applicant’s distraction by a related civil action. The Board wrote:
Counsel for the applicant argued that the delay is understandable because the applicant was focusing his attention on the civil action, which was difficult, and in any event, the trade union was put on early notice that the applicant was looking to it to pay the legal expenses. Counsel argued that there was no real prejudice to the union in the delay, because the legal costs being sought were not likely to be substantially different from what the union would have paid had it not breached its duty of fair representation.
I rejected those arguments, preferring the submissions of the trade union, which are well supported in the Board's jurisprudence. The Board measures delays in months, not years, and a 21/2 year delay in pursuing this claim is extreme. The explanation that the applicant was focused on the civil action is not sufficient, and as the Board noted in Sheller Globe of Canada Ltd., [1982] OLRB Rep. January 113:
… Certainly the Board has no quarrel with the notion of an aggrieved individual investigating other avenues of redress prior to launching section 68 [now section 74] application with the Board. But a point is reached, after a reasonable period of time, when the individual must decide whether it is going to go against the trade union or not, and if so, then overt steps must be taken in that direction. The individual cannot rely indefinitely in the efforts being taken on his or her behalf in other directions, and then come back against the trade union when those efforts prove fruitless. …
For the same reasons, the applicant cannot rely on his early notice to the trade union that he would be looking to it for his legal costs. An intention to take action is not a "marker" that forever holds open the possibility of bringing a proceeding.
Similarly in the case before me, making a request for reimbursement from the AEFO does not forever hold open the opportunity to bring an application to the Board. The Board is not satisfied that the applicant has provided a sufficient explanation for the 21-month delay between being told by the AEFO that it would not reimburse his fees, and the bringing of this application. The Board declines to inquire further into this complaint on account of delay.
In any event, however, the Board is not satisfied that the subject matter of the complaint is one to which the duty of fair representation applies. Contrary to the submissions of counsel to the applicant, the Board has no “inherent jurisdiction…to remedy this injustice”. The Board is a creature of statute, and both its powers, and the limits of those powers are determined by legislation, in this case, by the Labour Relations Act, 1995. The duty of fair representation has been consistently held to be concerned only with the representation of an employee with respect to his or her employment. The Board has said that it will not police the internal policies and practices of trade unions that are unrelated to the representation of employees in their employment relationship. In John Kohut, [1991] OLRB Rep. Jan. 35, the Board declined to extend the duty of fair representation to require a union to represent an employee in a criminal proceeding, even where the proceeding had some relationship to the workplace.
Trade unions may choose (or not choose) to provide a range of services to its members. To use the example from John Kohut, supra, a union may choose (or not choose) to provide legal services to its members in matters that are outside the realm of its representation obligations. But the Board will not act as a referee around those choices. Put another way, a union’s choice to provide an additional service, in some circumstances, does not render the union’s conduct subject to the duty of fair representation. Counsel for the applicant submits that if the Board does not provide a remedy, then the applicant may be without one. That may be true. However, that is not a basis on which the Board can assume jurisdiction.
The decision around the reimbursement of legal fees for the defence of a highway traffic offence does not fall within the range of obligations to which the union’s duty of fair representation applies. Even if the Board had been satisfied with the applicant’s explanation for the delay in bringing this matter, the Board would have dismissed the complaint for failure to make out a prima facie breach of section 74 of the Act.
“Mary Ellen Cummings”
for the Board