CITATION: McCool v. Ontario Labour Relations Board, 2019 ONSC 1561

DIVISIONAL COURT FILE NO.: 566/17

DATE: 20190307

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DENNIS McCOOL, Applicant

AND:

ontario labour relations board, the society of energy professionals, and ontario power generation, Respondents

BEFORE: SACHS, THORBURN, and BALE JJ.

COUNSEL: Bob Ebrahimzadeh, for the Appellant

Andrea Bowker, for the Respondent Ontario Labour Relations Board

Angela Rae and Alexandra Jamieson, for the Respondent Ontario Power Generation

Michael D. Wright and Alex St. John for The Society of Energy Professionals

HEARD at Toronto: March 7, 2019

ENDORSEMENT - ORALLY

SACHS J.

OVERVIEW

[1] In this application for judicial review, Mr. McCool (the “Applicant”) seeks to overturn the decisions of the Ontario Labour Relations Board (the “Board”) dated April 18, 2017 (the “Initial Decision”) and July 24, 2017 (the “Reconsideration Decision”).

background

[2] The application arises out of a voluntary retirement/severance program (“VSP”) agreed to by the Society of Energy Professionals (the “Union”) and the employer, Ontario Power Generation (the “Employer”). Under the program, the Employer was entitled to refuse to accept the application for resignation, and had the discretion to establish a termination date for anyone who it agreed to provide a VSP to for 21 months from the date of the agreement (December 31, 2003).

[3] The Applicant applied for and was granted a significant VSP. The Employer determined his termination date was the latest day possible: December 31, 2003. The Applicant repeatedly asked the Employer for his termination date to be moved up, but the Employer declined to do so. Following the acceptance of his VSP application, the Applicant was transferred to a different job. In his view, he was performing duties well below his qualifications. The Applicant left the Employer on October 26, 2002, more than a year prior to the termination date set by the Employer. He did not receive his VSP.

[4] The Union filed two grievances on behalf of the Applicant with respect to 1) the alleged demotion (transfer to a different job following the VSP approval), and 2) the Employer’s failure to permit him to resign earlier and/or the failure to pay him a severance package. With respect to the demotion grievance, the Union asserts that it did not pursue the grievance because the Applicant did not suffer a loss of pay as a result of the demotion, and therefore there was no practical remedy that could be achieved.

[5] Given the large number of VSP grievances, the Employer and the Union decided to divide the grievors into categories and refer each category to arbitration sequentially. Six arbitrations were held over 32 days before Arbitrator Ken Swan in 2003, 2004, 2007, 2011, and 2013 (“Arbitrator Swan Awards”). During this time period, the Applicant asked for and received numerous updates about the status of the proceedings. The Union gave no indication that they were considering withdrawing his grievance.

[6] After receiving Arbitrator Swan’s 2013 award, the Union became concerned that the Arbitrator Swan Awards made clear that the Employer was to be given wide latitude in VSP decision making. It conducted a year and a half review of all remaining grievances, concluding in December 2014. The Applicant was informed, by letter dated August 5, 2015, that the Union had decided to withdraw his grievance. The letter also advised that the Union would withdraw the vast majority of grievances, deciding to pursue only one individual and one group grievance. The letter was not personalized and did not refer to the Applicant’s individual circumstances.

[7] The Applicant met with a union official on September 14, 2015. The official did not bring the Applicant’s grievance file to the meeting as asked, which reinforced the Applicant’s belief that the Union did not know, or was not considering, the individual facts of his grievance. The Applicant appealed his case to the Union’s Grievance Appeal Board (“GAB”). Before the GAB hearing on November 12, 2015, the Union sent the Applicant a letter on September 29, 2015 outlining why the Union was withdrawing the Applicant’s grievance. The Applicant responded with a letter stating that the Union should proceed with his grievance because the Employer had punished him for certain activities he engaged in during his career.

[8] The GAB decided not to change the Union’s decision to withdraw the Applicant’s grievance. Following the hearing, on November 10, 2015, the Applicant sent a letter to the GAB containing additional information for the GAB’s consideration. On November 22, 2015, the GAB advised the Applicant that his appeal was not accepted.

[9] The Applicant made an application under s. 96 of the Labours Relations Act, S.O. 1995, c.1 (the “Act”) to the Board, alleging that the Union violated s. 74 of the Act (the duty of fair representation). The Board held a consultation on March 7, 2017, and released its decision on April 18, 2017. The Board found that the Union’s decision to withdraw the Applicant’s grievance was not arbitrary, discriminatory, or made in bad faith.

[10] The Applicant requested reconsideration of the Initial Decision, and on July 24, 2017, the Board dismissed the request.

APPLICANT’S POSITion

[11] The Applicant made the following submissions on this application for judicial review:

(a) The Board erred in law by improperly applying the test for the duty of fair representation.

(b) The Board misapprehended the evidence before it and made findings that were unreasonable.

(c) The Board failed to provide adequate reasons and ignored the evidence concerning one of Arbitrator Swan's awards.

(d) The Board conducted a consultation hearing that was contrary to the principles of natural justice and fairness.

STANDARD OF REVIEW

[12] The parties agree that the appropriate standard of review that is applicable to the first three issues raised by the Applicant is reasonableness. With respect to the allegation of lack of procedural fairness,no standard of review analysis is necessary.

DID THE BOARD IMPROPERLY APPLY THE TEST FOR THE DUTY OF FAIR REPRESENTATION?

[13] The Applicant alleges that the Board did not properly apply the test for unfair representation set out by the Supreme Court of Canada in Societe d'energie de la Baie James v. Noel, 2001 SCC 39. At para. 48 of that decision, the Supreme Court states that the duty of fair representation encompasses "four types of conduct: bad faith, discrimination, arbitrary conduct and serious negligence". At para. 40 of the Board's decision in the case at bar, the Board states that the duty of fair representation requires the Union "not to act arbitrarily, discriminatorily, or in bad faith".

[14] The reason for the difference is that in Noel the Supreme Court was describing the duty as set out in the Quebec Labour Code which reads:

47.2 A certified association shall not act in bad faith or in an arbitrary or discriminatory manner or show serious negligence in respect .of employees comprised in the bargaining unit represented by it, whether or not they are members.

[15] In the case at bar, the Board was describing the duty as set out at s. 74 of the Act which states:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

[16] Unlike the Quebec Labour Code, the Act does not state that serious negligence on the part of the Union may be regarded as a breach of the duty of fair representation. However, the Board in the case at bar did consider the applicable jurisprudence on the duty of fair representation and accurately describes it (including the role that negligence plays) at para. 40 of its decision as follows:

[40] The starting point of my assessment is the Board’s jurisprudence the union’s obligation under the Act not to act arbitrarily, discriminatorily, or in bad faith. In Kenneth Edward Homer [1993] OLRB Rep. May 433, the Board explained the terms “arbitrary, discriminatory and bad faith” as follows:

6. Honest mistakes, innocent misunderstandings, simple negligence, or errors in judgement will not, of themselves, constitute "arbitrary" conduct within the meaning of section 69 [now section 74]. In other words, a trade union has a kind of "right to be wrong". Terms like "implausible""so reckless as to be unworthy of protection""unreasonable""capricious""negligent", and "demonstrative of a non-caring attitude" have been used to describe conduct found to be arbitrary within the meaning of section 69 … Such strong words are applicable to the more obvious cases but may not accurately describe the entire spectrum of conduct which could be considered to be arbitrary. As the jurisprudence demonstrates, whether particular conduct will be considered to be arbitrary will depend on the circumstances.

7. The term "discriminatory" in section 69 has been interpreted broadly to include all cases in which a trade union distinguishes between or treats members differently without a cogent reason for doing so …

8. Actions or decisions motivated by hostility, ill-will or other improper considerations constitute "bad faith" within the meaning of section 69…

[17] In our view, there is no merit to the Applicant's submission that the Board improperly articulated or applied the test for the duty of fair representation.

DID THE BOARD MISAPPREHEND THE EVIDENCE BEFORE IT AND MAKE FINDINGS THAT WERE UNREASONABLE?

[18] The Applicant submits that the Board’s reliance on the September 29, 2015 letter demonstrates a misapprehension of the evidence. When the Board indicated that the Union considered the Applicant’s individual circumstances, the Board erred because a) the letter was produced after the Union’s decision to withdraw the grievance was already made, b) the details in the letter were information provided by the Applicant after the withdrawal occurred and therefore could not have been part of the consideration, and c) the lack of case specific analysis does not support the Board’s finding. The Applicant submits that the Board’s failure to address the deficiencies in the Union’s letter amounts to gross negligence and in total, the Board’s findings amount to a decision that misapprehended the facts and is unreasonable.

[19] The Applicant further submits that it was unreasonable for the Board to indicate that the Applicant had a further opportunity to plead its case to the Union’s GAB because a) the GAB did not allow the Applicant to raise specific concerns and argue his case; and b) it was clear from the questions asked at the GAB hearing by the members of the GAB that those members had already decided to dismiss the Applicant’s grievance i.e. they did not approach their task with an open mind.

[20] We do not agree that the Board misapprehended the evidence before it. It clearly appreciated that the September 29, 2015 letter was sent after the Union had already made its decision to withdraw the Applicant's grievance. It also appreciated that the Applicant had reason to be concerned about the basis for that initial decision given that he was not consulted before it was made and given that the letter advising him that it had been made did not refer to his individual circumstances. This is apparent from paras. 44 and 45 of the Board's Initial Decision:

44. The central and fundamental issue before the Board is whether the Society acted arbitrarily in deciding to withdraw the applicant’s grievance. As noted, there are concerns about this given that the Society made the initial decision to withdraw the grievance without speaking to the applicant first. This was perhaps a somewhat surprising decision given the substantial amount of money at stake for the applicant and the amount of time that had passed.

45. I also think that it is fair to say that the memorandum and the August 5, 2015 letter provided to the applicant raise issues about whether the individual circumstances of his grievance were actually considered by the Society. In neither of those documents are the facts of the applicant’s grievance set out. There are merely general statements about the latitude of discretion given to the employer in the Swan awards. This is reflected in the pleadings which describe what the union asserts it did; the pleadings also do not specifically suggest the process through which the Society paid attention to the specific facts of the applicant’s grievance except in a general way.

[21] The Board then goes on to deal with the September 29th letter as follows at paras. 45, 46 and 47:

45. …That being said, the Society’s September 29, 2015 letter goes a considerable way to address these concerns. More specifically, it is clear that the author of that letter was aware of the applicant’s individual circumstances, including the fact that he was claiming to have been singled out by OPG in order to punish him for his history of management confrontation.

46. What is missing, perhaps from the letter, is analysis of the applicant’s claim that there was no work for him to do at his level and so he should been permitted to leave early. However, this is where the Society’s analysis of the Swan awards finding of significant discretion on OPG’s part come in. It is apparent that the Society concluded that the arbitrator’s findings of the extent of the employer’s discretion date meant OPG would be given wide leeway to set a termination date.

47. In my view, while not perfect, the Society’s September 29, 2015 letter demonstrates that the decision to withdraw the applicant’s grievance was not arbitrary one and therefore did not violate s. 74. The Society put thought into the decision and considered the applicant’s individual circumstances. It simply came to the conclusion it would not likely win.

[22] The Board also considered the evidence of the Applicant that when he attended a meeting with the Union representative on August 14, 2015 that representative did not have his file. The Board dealt with this submission at paras. 25 and 50 of its Initial Decision:

25. The applicant expressed concern about the Society’s decision. He met with a union official on September 14, 2015. The official did not bring the applicant’s grievance file to the meeting as the applicant had asked to do. This reinforced the applicant’s belief that the Society either did not know, or was not considering, the individual facts of his grievance. Moreover, he alleges that the Society’s representative was not aware of the special facts of his grievance. The applicant asked the representative to send a copy of his grievance file to him electronically; this was not done. The applicant considers this to be a reprisal against him for asserting his rights.

26. Even if the Society had not determined that it considered the applicant’s case properly when it first made its decision to withdraw his grievance, it had two more opportunities to consider the matter fully. The first was in the applicant’s meeting on September 14. Although the applicant is concerned the Society’s representative did not have his file when he attended the meeting, he still had the opportunity to argue that his case should proceed and the reason why. There was no suggestion he was not given a full opportunity to present his case. The fact that the representative did not have his file does not substantiate the applicant’s arguments. The letter sent to the applicant on September 15 (sic) makes it clear that the Society considered the applicant’s submissions.

[23] With respect to the Applicant's submissions concerning the GAB appeal, the Board dealt with these submissions at paras. 30 to 32 and 51 of its decision.

30. The hearing before the Appeal Board took place on November 12, 2015. At the hearing, the applicant provided the documentation which he relied on in connection with this application in order to demonstrate that his grievance and that the Society should therefore take his grievance to arbitration.

31. The applicant alleges that during the course of the hearing, two members of the Appeal Board Panel chastised the applicant for “leaving early” after being accepted for the VSP (one of the members in question had been denied a VSP in 2002). Another panel member kept emphasizing that the applicant “should have stayed” until the end of the termination period. This member also emphasized the costliness of going to arbitration.

32. Following the Appeal Board hearing, on November 10, 2015, the applicant sent out a letter containing additional information for the Appeal Board’s consideration.

33. The second time [the union had the opportunity to consider the matter] was when the applicant went to the Society’s Appeal Board. He was again given a full chance to explain why his grievance ought not to be withdrawn. He was given an opportunity to provide the members of the committee with any documents he wished. I do not accept the fact the committee members asked tough questions of him means that they did not consider his position. That is especially the case since the questions asked were, in my view, a recognition of the potential problems with the applicant’s grievance.

[24] On the basis of these passages, there is no support for the suggestion that the Board misapprehended the evidence before it. They understood that evidence, considered it and concluded that in light of the other evidence before it, it did not sustain the Applicant's argument that the Union had breached its duty of fair representation. It is important to remember that on a standard of reasonableness a factual finding will only be reviewed “'where there is no evidence to support it” (142445 Ontario Ltd. (c.o.b. Utilities Kingston) v. International Brotherhood of Electrical Workers, Local 636). In this case, there was clearly evidence to support the Board's conclusion that even if there were problems with the way in which the Union initially dealt with the Applicant's grievance, those problems were cured when it considered the matter again on September 14 and when the Applicant went to the Union's appeal board.

FAILURE TO PROVIDE ADEQUATE REASONS

[25] The Applicant's argument on this point focuses on the fact that the Board's decisions failed to address arbitrator Swan's March 12, 2004 decision (''the Kozeluh Decision"). According to the Applicant, this award contradicted the Union's assertion that his grievance was unlikely to succeed because of the breadth of the Employer's discretion when it came to departure dates

[26] First, as the Supreme Court of Canada stated in Construction Labour Relations Assn. (Alberta) v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, at para. 3"[A]dministrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons."

[27] Second, the Kozeluh Decision concerns the exercise of discretion in a very different circumstance. It involved the denial of a VSP. It did not involve the exercise of the Employer's discretion when it granted a VSP and was setting departure dates. Thus, there was no need for Board to comment on this argument.

ALLEGED' DENIAL OF NATURAL JUSTICE

[28] The Applicant asserts that there was a denial of natural justice because the Board improperly relied on the "Status of VSP Grievances and Recommendations” document ("VSP document") when he was not in receipt of the document prior to the consultation hearing. He also argued that the Board breached the rules of natural justice when it did not hear oral testimony about the status of the VSP document and did not permit cross-examination regarding the document.

[29] In fact, the status of the VSP document was included in the Union's response to the Applicant's s. 96 application. As noted by the Board in its Reconsideration Decision, the Applicant had every opportunity to say what he wanted to say about the document at the consultation. Further the Applicant did not object to the admissibility of the document; question the authenticity of the document; request that oral evidence be tendered with respect to the document (or otherwise); or request the opportunity to cross-examine a witness relating to the document.

[30] One of the principles that underlies the effective administration of justice is finality. Thus, a party who has the capacity to raise an issue before an administrative decision maker and does not do so should not be given the ability to make that objection on judicial review (see for example Bernard v. Canada (Revenue Agency), 205 FCA 263 at para. 26). Here the Applicant could reasonably have raised all the natural justice issues he is raising on this application before the Board. He did not do so. Therefore, in the interests of finality, we decline to allow him to pursue these arguments before us.

CONCLUSION

[31] For these reasons, the application for judicial review is dismissed.

[32] I have endorsed the Applicant’s Record as follows: “This Application is dismissed for reasons given orally by Sachs J. As agreed by the parties, the Applicant will pay $6,000 in costs to the Union and $2,000 to the Employer, OPG.”

SACHS J.

I agree _______________________________

THORBURN J.

I agree _______________________________

BALE J.

Date released orally: March 7, 2019

Date released: March 22, 2019