1687-01-U Adèle Gendron, Applicant v. Elementary Teachers’ Federation of Ontario (ETFO) for (Federation of Women Teachers’ Association of Ontario) (FWTAO), Responding Party.
BEFORE: Christopher J. Albertyn, Vice-Chair.
DECISION OF THE BOARD; November 14, 2001
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 applicant claims that the responding trade union (“the union”) has violated section 74 of the Act.
2The applicant was formerly a teacher employed by what was then known as the Ottawa Board of Education (it is now the Ottawa-Carleton District School Board) (“the School Board”). She resigned in 1994. She claims she was forced to resign, following harassment at work. She claims the union (in fact, one of its predecessors, the Federation of Women Teachers’ Association of Ontario (“FWTAO”)) failed in its duty of fair representation towards her.
3The union takes the position that the Board does not have jurisdiction to consider this application. It contends too that the Board should not consider the application, given the long delay between the time of the applicant’s resignation in 1994 and the date on which this application was brought, September 18, 2001. The applicant’s complaint relates to the period 1991 to 1994.
4The Board recognizes that the applicant has a strong sense of grievance and that the impact upon her of not being able to pursue this complaint is severe, however, the union’s jurisdictional argument is sound. It is not necessary, therefore, to consider the union’s delay argument. The Board does not have jurisdiction to consider this application because the union (assuming it is liable for the alleged omissions of its predecessor) had no obligation under section 74 of the Act at the time the applicant was employed. At that time, neither the applicant nor the union was covered by the Act. As the union contends, during the course of the applicant’s employment with the School Board and while she was represented by FWTAO, collective bargaining concerning the School Board and FWTAO was not governed by the Act. Rather, it was governed by the School Boards and Teachers Collective Negotiations Act which remained in effect until the Education Quality Improvement Act, 1997 brought about significant amendments to the Education Act. Therefore, until 1998, the Act explicitly excluded from its coverage teachers whose employment was governed by the School Boards and Teachers Collective Negotiations Act.
5The Board decided on several occasions that the duty of fair representation under the Act did not apply to teachers governed by the School Boards and Teachers Collective Negotiations Act. Once teachers’ employment fell under the Act, the Board held that section 74 applied to the conduct of the union (and to that of other teachers’ unions) which had occurred after the coming into effect of the amendments to the Education Act, on January 1, 1998: Lakeshore Catholic District School Board (McKever), [1999] O.L.R.D. No. 824.
6In the circumstances, when the conduct complained of by the applicant occurred in the period 1991 to 1994, the union had no obligation to her under (the equivalent provision of) section 74 of the Act. There is therefore no cause of action by the applicant against the union.
7The application is accordingly dismissed.
“Christopher J. Albertyn”
for the Board