CITATION: Laporte v. United Steelworkers, Local 1998, 2019 ONSC 3705
DIVISIONAL COURT FILE NO.: 037/18
DATE: 20190627
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, M. Edwards, Favreau, JJ.
BETWEEN:
Robert Daniel Laporte
Applicant
– and –
United Steel Workers, Local 1998
Respondent
- and-
Self-represented
Frank Cesario and Amanda Cohen for the respondent, United Steel Workers, Local 1998
Ontario Labour Relations Board
Respondent
-and-
Governing Council of the University of Toronto
Intervenor
Andrea Bowker for the respondent, Ontario Labour Relations Board
Robert Healey for Governing Council of the
University of Toronto
HEARD at Toronto: June 13, 2019
BY THE COURT
Nature of Proceeding
[1] The Applicant, Robert Daniel Laporte, applies for judicial review of the decision of the Ontario Labour Relation Board (the “Board”) dated April 4, 2017 and Reconsideration Decision dated November 29, 2017.
[2] The Board dismissed the Applicant’s assertion that United Steel Workers, Local 1998 (the “Union”), had violated its duty of fair representation under s. 74 of the Labour Relations Act, 1995, S.O. 1995 (the “Act”) by deciding not to pursue three grievances to arbitration. However, the Board did find that the Union’s delay in communicating its decision not to proceed to arbitration with two of the grievances was arbitrary and therefore breached s. 74 of the Act. As such, the Board granted declaratory relief to that effect.
[3] The Applicant seeks an order quashing and setting aside the Board’s findings that the Union did not breach s. 74 of the Act in deciding not to pursue the grievances to arbitration. The Applicant also requests that this court issue an order directing that the three grievances proceed to arbitration.
[4] For the reasons that follow, the application is dismissed.
Background
[5] The Applicant was employed by the University of Toronto, Faculty of Nursing (the “Employer”) as a research officer with the Nursing Health Sciences Research Unit (the “research program”). The Applicant’s position was contingent upon the research program receiving external grants of funding. During the period of his employment, the Applicant was also a member of a bargaining unit represented by the Union. The Union and the Employer were parties to a collective agreement effective July 1, 2011 to June 30, 2014.
[6] On November 27, 2012, the Applicant received a notice of indefinite layoff from the Employer, effective March 29, 2013. The Applicant was informed that the research program lost its bid for refunding and would cease operations after March 31st, 2013. Pursuant to Article 12.09 of the collective agreement, the Applicant was offered two options: (1) sever his employment and receive enhanced severance pay; or (2) enter into a “re-deployment pool” from which he could apply for job vacancies as an internal candidate. The Applicant elected to terminate his employment and receive enhanced severance pay.
[7] After his employment ended and he had opted for enhanced severance, he was copied on an email that he understood as suggesting that the research program had in fact received funding two weeks before his layoff date, and that this information had been intentionally withheld from him. On April 3, 2013 the Applicant requested a meeting with the Union to discuss his rights. The Union agreed to review the Applicant’s allegations.
[8] During the Union’s investigation into the Applicant’s claims, the Employer maintained that the grant it received was for a separate and distinct research project – the funding arose from a different grant process, involved different deliverables, and had a different principal investigator. The Union and the Applicant met to discuss the Employer’s response to his claims. Ultimately, the Union filed three grievances on the Applicant’s behalf:
• A policy grievance alleging improper layoff and a request that the layoff notice be rescinded;
• Two individual grievances, including:
o A Failure to Interview Grievance: filed in response to the Applicant’s unsuccessful attempt to obtain a new position with the Employer. Although the Union filed this grievance on behalf of the Applicant, it took the position that the Applicant had no standing to file grievances since he was no longer an employee/party to the collective agreement.
o An Improper Layoff Grievance: the individual grievance alleging improper layoff in relation to the Applicant’s March 29, 2013 layoff.
[9] Over the following weeks the Union pursued the grievances, including pursuing the policy grievance through unsuccessful mediation. The Union ultimately decided not to pursue the grievances to arbitration as a result of a legal opinion it received in October 2015 which advised that it was unlikely the grievances would succeed at arbitration.
[10] On December 22, 2015, the Applicant filed an application with the Board alleging that the Union, through one or more of its representatives, mishandled the grievances it filed on his behalf and, therefore, violated the duty of fair representation under s. 74 of the Act. The Applicant alleged, among other things, that:
• The Union’s recommendation to pursue a policy grievance caused an unreasonable delay in filing the Applicant’s individual grievance and resulted in the Employer’s preliminary objection to the grievance’s timeliness, and the Union’s subsequent decision to discontinue the grievance; and
• The Union failed to follow through on its commitments to advance the grievances to arbitration.
The Board’s Decision
[11] In its decision dated April 4, 2017, the Board held that the Union’s decision not to pursue the grievances to arbitration did not violate s. 74 of the Act. The Board found that the Union’s conduct did not meet the level of arbitrariness to breach s. 74 – i.e. the Union did not act in a manner that was “so reckless as to be unworthy of protection”, “unreasonable”, “capricious”, “negligent”, or “demonstrative of a non-caring attitude”.
[12] The Board added that the Applicant did not allege that the Union’s conduct was in bad faith or discriminatory, or that in any event there was no evidence of such conduct in the facts before them. The Board held that, therefore, the only issue to be determined was whether the Union acted in an arbitrary manner. In support of its decision that the Union did not violate s. 74 of the Act, the Board made the following findings:
• The Union did not mislead the Applicant about the effect of filing a policy grievance. The Applicant initially expressed concerns to the Union about the filing of an individual grievance. The Board found that in following these instructions, it was not unreasonable for the Union to file a policy grievance on the Applicant’s behalf;
• Even though the processing of the policy grievance was untimely, the untimeliness was “not fatal in this instance”;
• The Union had no obligation to represent the Applicant and pursue his grievances because he chose to take the enhanced severance option, and as a result was no longer an employee/party to the collective agreement;
• The Union’s failure to advise the Applicant that he could not pursue a civil remedy in court did not rise to the level of arbitrariness to breach s. 74;
• The Board rejected the Applicant’s assertion that the Union mishandled the two individual grievances:
o With respect to the failure to interview grievance, the Board found that the Union took the Applicant’s concerns seriously and continued to advance the grievance until it obtained the legal opinion.
o With respect to the improper layoff grievance, the Board found that the Union attempted to advance the grievance to arbitration, notwithstanding its own reservations regarding the Applicant’s status as a member of the Union.
[13] However, the Board found that the Union breached its duty of fair representation by failing to properly communicate the decision not to proceed to arbitration with the two individual grievances. The Board found that a two-month delay in advising the Applicant demonstrated a “non-caring attitude” that was arbitrary and a violation of s. 74 of the Act. As a result, the Board granted declaratory relief to that effect.
[14] The Board stated in the Decision that it reached its findings following a consultation hearing with the parties where each party was given the opportunity to make submissions and provide evidence in support of its position. The Board held that it was satisfied that the application could be disposed of on the basis of written materials and submissions made by counsel during the consultation.
The Board’s Reconsideration Decision
[15] On May 1, 2017, the Applicant filed a Request for Reconsideration of the Decision.
[16] The Board declined to exercise its discretion to reconsider the decision, finding that the Applicant’s reconsideration request was an attempt to re-argue the case. In reaching this conclusion, the Board held that:
• The Applicant did not raise any new evidence or arguments that could not have been provided earlier;
• The reconsideration request was the Applicant’s attempt to recast his arguments in an effort to explain why he believed the Board’s decision was deficient;
• In regard to the Applicant’s disagreement with its finding that there were no allegations of bad faith contained in the initial application, the Board found that regardless of the Applicant’s characterization of the Union’s conduct, all of the information he described as ‘bad faith’ was included within the original application. As such, it had sufficient information before it at the initial decision to reach this conclusion and there is no basis upon which to reconsider this finding.
• The Applicant was attempting to re-cast his submissions by relying on additional case law that he did not initially rely upon at the Decision. The Board held that this is not a valid basis on which to grant the reconsideration request.
Court’s Jurisdiction
[17] Pursuant to ss. 2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, the Divisional Court has jurisdiction to hear an application for judicial review.
Standard of Review
[18] The standard of review applicable to the Board’s interpretation and analysis of the Act, and particularly s. 74, is reasonableness.
[19] Since Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.190, a presumptive standard of reasonableness has been applied to the review of the Board’s decisions involving the interpretation and application of its home statute (Ontario Refrigeration and Air Condition Contractors Association v. United Association of Journeymen, 2016 ONCA 460 at paras. 47-48).
[20] Where a party raises an issue of procedural fairness, it is not necessary to engage in a standard of review analysis. Rather it is for the Court to determine whether the requisite level of procedural fairness has been accorded, taking into account the five factors in Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817.
Issues
Was the Board’s finding that the Union’s conduct did not violate s. 74 of the Act reasonable?
Was the Board’s process of holding the consultation hearing a violation of the principles of procedural fairness?
Issue 1: Was the Board’s finding that the Union’s conduct did not violate s. 74 of the Act reasonable?
Applicant’s Submissions
[21] The Applicant submits that this case is not just about the duty of fair representation. Under article 12.06 of the collective agreement, the employer could lay off the Applicant only if “there is a reduction or elimination of research funding that results in the reduced or eliminated core duties no longer being done by any member of the bargaining unit in the Principal Investigator’s research program.” He submits that the employer contravened the collective agreement when it imposed a layoff in the circumstances where the funding grant for the research program was renewed for three years which fact the employer sought to conceal. He submits that the fact that the new funding grant had the exact same numbers as the prior grant meant that it was an extension of an existing grant. The only difference in the research program was instead of conducting a survey of employers, interviews were now to be conducted.
[22] Referencing the decisions of Huronview Home for the Aged v. S.E.I.U., Local 210[^1] and University of Alberta v. A.A.S.U.A (1998)[^2], the Applicant argues that even if the funding of his former research program had changed, the Union had “every reason to conclude that [his] core duties continued”, and that “without a reduction or elimination of those duties, the [Employer’s] layoff was void”. The Applicant argues that the Board failed to consider these decisions and whether the layoff may have been “invalid to begin with”.
[23] The Applicant also refers to a series of decisions where the Board ordered the grievances to arbitration. The Applicant relies on the decisions in support of his argument that the Board “ought to have ordered the same type of remedy [here]” and that in departing from this line of cases, “the Board diluted the duty of fair representation”.
[24] The Applicant submits that he was wrongly blamed by the Union and the employer for the untimeliness of his personal grievance. He refers to minutes of a Union meeting regarding reversing its decision to advance the grievance to arbitration when no decision had in fact been made. He submits that he was told that his grievance had been referred to arbitration when in fact the Union missed the deadline for doing so. He submits that the Union repeatedly ignored his reasonable requests for answers and demonstrated a non-caring attitude. He submits that there is no good faith way to look at that. He submits that the decision was unreasonable for failing to address these issues.
Respondent – Union’s Submissions
[25] The Union submits that the Board’s conclusion that the Union’s handling of the grievances did not violate the Act meets the test of reasonableness. The Union submits that this finding is supported by the Board’s careful review of the materials before it and its reasons.
[26] The Union submits that on this judicial review application, the Applicant is re-arguing that the Union is alleged to have acted arbitrarily or in bad faith. However, the Union submits that the Applicant has failed to explain how the Board’s decision-making in respect of those issues is unreasonable and/or requires this Court’s intervention.
Respondent – University of Toronto’s Submissions (“Employer”)
[27] The Employer submits that the Board’s decisions easily meet the standard of reasonableness. The Employer argues that the Applicant is seeking to re-argue his case and his submissions are directed at revisiting the merits of his grievances in an attempt to prove that the Union was wrong in not pursuing them further.
[28] The Employer submits that this is not the purpose of judicial review and that it is not open for this Court to reweigh the evidence that was before the Board. The Employer argues that there were ample reasons for the Board’s findings and that its failure to agree with the Applicant’s position does not mean that the decisions are unreasonable.
[29] The Employer argues that in the Decision, the Board “goes painstakingly through the Applicant’s allegation as to each issue and each grievance” and that it granted the Applicant’s declaratory relief with respect to one aspect of his claim. The Employer submits that this demonstrates that the Board was alive to the Applicant’s claims and to the duty of fair representation requirements.
Issue 2: Was the Board’s process of holding the consultation hearing a violation of the principles of procedural fairness?
Applicant’s Submissions
[30] The Applicant argues that the highest level of procedural fairness is required where the loss of a job is at stake. He submits that in utilizing the consultation process, the Board “adopted an unfair procedure” that denied him procedural fairness because he was unable to provide sworn testimony and/or cross-examine Union witnesses. The Applicant submits that these procedures were necessary given the contradictory evidence and important issues of credibility before the Board.
[31] In support of the credibility argument, the Applicant refers to the Board’s comments that he failed to follow the advice of the Union during the filing of the policy grievance. The Applicant argues that the Board’s decision turned on this finding and that to “ascribe blame to this is to reject his contention…and [affirm the Union’s competency]”.
[32] The Applicant also asserts that the Board failed to properly apprehend the evidence before it. In support of this argument, the Applicant refers to two examples where the Board allegedly misconstrued admissions in the written record. The Applicant argues that oral evidence and cross-examination would have assisted in addressing these errors, and that this Court should, at a minimum, refer his grievances to the Board for a full hearing.
Respondent – Union’s Submissions
[33] The Union argues that the Board did not deny the Applicant procedural fairness. The Union submits that the Board followed the provisions in the Act and the Board’s Rules of Procedure in conducting the consultation and determining that the application could be determined without a hearing.
[34] The Union submits that in the Decision, the Board described the process followed during the consultation hearing, including that all the parties:
• set out their position and offered evidence in support;
• responded to questions posed by the Board; and
• submitted arguments on the merits of the application.
[35] The Union argues that, contrary to the Applicant’s submissions, there were no significant issues of credibility between the parties that required viva voce evidence. The Union submits that any disagreements or questions were resolved by reference to the documentary evidence submitted to the Board and the facts stipulated before it.
Respondent – University of Toronto’s Submissions (“Employer”)
[36] The Employer submits that the Board did not deny the Applicant procedural fairness. The Employer submits that the consultation process engaged by the Board is specifically authorized by statute for the type of complaint and that this process has been endorsed by this Court in the decision of Williams v. Ontario Labour Relations Board[^3].
[37] The Employer argues that it was reasonable for the Board to use this well-established consultation process in this case. The Employer adds that, despite the Applicant’s attempts to “recast his case as relating to credibility disputes”, the issue before the Board was whether the Union’s conduct amounted to breach of the statute. The Employer argues that the decision did not turn on any credibility assessments or findings.
[38] Lastly, the Employer submits that the Applicant was represented by counsel at the consultation process and that no submissions were made to the Board that the process was inappropriate or that live evidence was necessary to decide the case.
Respondent – Board’s Submissions
[39] The Board submits that the Divisional Court, in a case that challenged the Board’s procedural power to hear a matter by consultation rather than a traditional oral hearing, found that the consultation process did not violate the principles of procedural fairness.[^4]
Analysis
Issue 1: Was the Board’s finding that the Union’s conduct did not violate s. 74 of the Act reasonable?
[40] As the Applicant did during the Reconsideration application, he contends that the Decisions contain errors of fact, overlooked several specific complaints contained in the original application and make rulings that contravene Board jurisprudence.
[41] In reviewing the Board’s decisions on judicial review, the court adopts a deferential standard. It considers the reasons holistically. It will not focus on minor individual complaints if they do not undermine the reasonableness of the decision as a whole. The Supreme Court of Canada made this point in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board)[^5]:
Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees’ International Union, Local NO.333 v. Nipawin District Staff Nurses Assn., 1973 191 (SCC), [1975] 1 S.C.R.382 at p.391). In other words if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
[42] The Applicant’s loss of his employment was obviously very important to him. The Board found that the Union’s decision to abandon the two individual grievances did not breach the duty of fair representation. In coming to that decision, the Board found that it was significant that before the Applicant sought the assistance of the Union, he chose to take enhanced severance and not the redeployment option. The Board found that the Union relied upon the opinion of legal counsel that it was unlikely that a member could opt for severance, terminate employment and subsequently have standing to file a grievance. It correctly noted that a union’s decision not to proceed to arbitration over a grievor’s objections does not in itself amount to a breach of the duty.
[43] There were ample reasons for the Board’s findings. It is not for this Court to reweigh the evidence that was before the Board. The Board’s failure to agree with the Applicant’s position does not mean that the decisions are unreasonable.
[44] On a full and fair reading of the Board’s detailed Decision and Reconsideration Decision, it plainly and appropriately dealt with the issues and evidence presented by the Applicant. The result reached was transparent, intelligible and among the alternatives available to the Board on the evidence and arguments before it. The Applicant points to numerous holdings or comments that he does not believe are correct. None of his points, either individually, or taken as a whole, undermine the clarity and intelligibility of the decision.
Issue 2: Was the Board’s process of holding the consultation hearing a violation of the principles of procedural fairness?
[45] Section 99 of the Act provides that the Board is not required to hold a formal oral hearing on a complaint of this type. This Court has held that the Board’s consultation process in a duty of fair representation proceeding is consistent with the requirements of procedural fairness. In doing so, this Court has found that the consultation process and, in particular, the absence of sworn testimony and cross-examination is not, in and of itself, a violation of the duty of procedural fairness.[^6]
[46] I do not agree with the Applicant’s submission that there were important issues of credibility before the Board that required oral evidence and cross-examination. The applicant is incorrect in his assertion that the Board made an adverse credibility finding that he had ignored the Union’s advice to file an individual grievance. Rather, the Board noted the differing evidence on this point and also found correctly that the Applicant had expressed some trepidation about filing an individual grievance, not wanting to antagonize the employer regarding future employment. I do not agree that the Board’s decision turned on this finding or that by failing to have a full hearing, the Board failed to properly apprehend the evidence before it. Where there were disagreements or questions, they were resolved by reference to the documentary evidence submitted to the Board and the facts stipulated before it.
[47] The Board did not violate the doctrine of procedural fairness and did not deny the Applicant natural justice.
Conclusion
[48] The application is therefore dismissed.
[49] The Union and the Board do not seek costs. The University seeks costs of $3500. Although the University filed a factum and attended at court, counsel was not called upon to make submissions. In all the circumstances, there shall be no order for costs.
Backhouse, J.
I agree_______________________________
M. Edwards, J.
I agree_______________________________
Favreau, J.
Released:
CITATION: Laporte v. United Steelworkers, Local 1998, 2019 ONSC 3705
DIVISIONAL COURT FILE NO.: 037/18
DATE: 20190627
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, M. Edwards, Favreau, JJ.
BETWEEN:
Robert Daniel Laporte
Applicant
– and –
United Steel Workers, Local 1998
Respondent
- and-
Ontario Labour Relations Board
Respondent
-and-
Governing Council of the University of Toronto
Intervenor
REASONS FOR JUDGMENT
Released: June 27, 2019
[^1]: Huronview Home for the Aged v. S.E.I.U., Local 210, 2000 16893 (ON CA), [2000] O.J. No. 3928 [^2]: University of Alberta v. A.A.S.U.A (1998), 1988 9157 (AB GAA), 2 L.A.C. (4th) 199 [^3]: Williams v. Ontario Labour Relations Board, 2016 ONSC 1239, at para. 5-6. [^4]: International Brotherhood of Electrical Workers, Local 1739 v International Brotherhood of Electrical Workers, 2007 65617 (ON SCDC) at para.65. [^5]: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board) [2011] 3 SCR 708, 2011 SCC 62, at para.16 [^6]: Williams v. Ontario Labour Relations Board, 2016 ONSC 1239, at para 5-6; I.B.E.W., Local 1739 v. I.B.E.W., 2007 65617 (ON SCDC), [2007] O.J. No. 2460 at paras. 57-61; I.B.E.W, Local 894 v. I.B.E.W, 2014 ONSC 1997 at paras. 20-22, 51-52