Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298

Local 50057, Supply and Services Union of the Public Service Alliance of Canada and the Public Service Alliance of Canada Appellants

v.

François Gendron Respondent

indexed as: gendron v. supply and services union of the public service alliance of canada, local 50057

File No.: 20708.

1990: January 26; 1990: May 31.

Present: Lamer, Wilson, L'Heureux-Dubé, Sopinka, Gonthier, Cory and McLachlin JJ.

on appeal from the court of appeal for manitoba

Courts -- Jurisdiction -- Provincial superior court -- Labour relations -- Duty of fair representation -- Employee commencing action in provincial superior court alleging breach by union of its duty of fair representation ‑‑ Whether superior court had jurisdiction under the Canada Labour Code to entertain employee's claim -- Principles governing duty of fair representation ‑‑ Canada Labour Code, R.S.C. 1970, c. L-1, ss. 122, 136.1.

Respondent, a member of the appellant union, was the successful candidate for a position for which the employer had posted a notice of vacancy. The three unsuccessful candidates grieved the employer's decision appointing respondent on the ground that the determining factor of previous experience had not been properly applied as required by the collective agreement. As a result of a reassessment by the employer, one of the three was declared the successful candidate. Respondent subsequently presented two grievances arising out of management's decision, which were denied at the first two stages of the grievance procedure. The union's executive council determined that the grievances had no merit and recommended that the local not proceed further with them. Respondent later commenced an action against appellants in the Manitoba Court of Queen's Bench alleging a breach of the duty of fair representation.

Respondent contended, among other things, that the union acted unfairly by pursuing the grievances of the three unsuccessful applicants. The court found that appellants had fairly represented respondent and dismissed the action. It concluded that when a union finds itself in a position of conflict regarding the interests of certain of its employees, it satisfies its duty of fair representation so long as it acts honestly, treats all members equally, does not act in a perfunctory or hostile manner and does not engage in favoritism.

The Court of Appeal set aside the judgment. In a majority decision, the court concluded that the union must not only fairly represent the interests of the individual as seen by the union, but must also fairly represent the interests of the individual as seen by such individual. Monnin C.J.M. in dissent would have dismissed the appeal as, in his view, the union had fulfilled its duty to fairly represent respondent in that it acted in good faith and fairly represented him throughout.

This appeal is to determine whether the ordinary courts have jurisdiction under the Canada Labour Code to entertain a claim based on a breach of a union's duty of fair representation; and, if so, what is the correct test as regards that duty.

Held: The appeal should be allowed.

The duty placed on unions, as exclusive bargaining agents, to fairly represent the employees in their unit has its origins in American case law dealing with employee allegations of discriminatory practices engaged in by unions. That such a duty exists in Canada, independent of statutory enactment, was recognized by this Court in Canadian Merchant Service Guild v. Gagnon.

Unless the statute contains words that expressly or by necessary implication oust the common law duty or remedy, one has a choice of remedies. Parliament has codified the common law duty of fair representation within a larger comprehensive legislative scheme and has provided a new and superior method of remedying a breach. The common law duty of fair representation is neither necessary nor appropriate in circumstances where the statutory duty applies. Therefore, while the Code does not expressly oust the common law duty, it does so by necessary implication in most situations where the terms of the statute apply. A different result may obtain in situations where the statute is silent, or by its terms does not apply, and where it is not clear that the statute exclusively covers the breach, such as in the context of human rights violations. Even though the statutory duty ousts the common law duty in most situations where it applies, it is still necessary to determine whether the statutory duty can be the subject of a claim in the ordinary courts. While the legislation does not expressly provide that the Board has exclusive jurisdiction, it indicates that Parliament envisioned a fairly autonomous and specialized Board whose decisions and orders were to be accorded deference by the ordinary courts, subject only to review within the confines of the privative clause. As the statute was applicable in this case, respondent could not base his claim on the common law but instead had to have recourse to the Code, and, in addition, had to proceed to the Canada Labour Relations Board, the decision-making structure assigned this adjudicative task under the legislation. There is no original jurisdiction in the ordinary courts to decide the matter, only the ability to review Board decisions in the very limited parameters contemplated by the privative clause.

The principles governing a union's duty of fair representation which are set out in this Court's decision in Canadian Merchant Service Guild v. Gagnon clearly contemplate a balancing process. A union must in certain circumstances choose between conflicting interests in order to resolve a dispute. Here the union's choice was clearly due to the obvious error made in the selection process: it had no choice but to adopt the position that would ensure a proper interpretation of the collective agreement. In a situation of conflicting employee interests, the union may pursue one set of interests to the detriment of another as long as its decision to do so is not actuated by improper motives and as long as it turns steps its mind to all the relevant considerations.

Cases Cited

Referred to: Canadian Merchant Service Guild v. Gagnon, 1984 CanLII 18 (SCC), [1984] 1 S.C.R. 509; Rayonier Canada (B.C.) Ltd. and International Woodworkers of America, Local 1-217, [1975] 2 Can. L.R.B.R. 196; Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192 (1944); Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210 (1944); Ford Motor Co. v. Huffman, 345 U.S. 330 (1953); Vaca v. Sipes, 386 U.S. 171 (1967); Fisher v. Pemberton (1969), 1969 CanLII 726 (BC SC), 8 D.L.R. (3d) 521; Harvey Adams and Vancouver Symphony Society and Musicians Association, Local 145, [1976] 1 Can. L.R.B.R. 192; Simpson and United Garment Workers of Canada, [1980] 3 Can. L.R.B.R. 136; Syndicat des agents de la paix de la Fonction publique v. Richer, 1983 CanLII 3456 (QC CA), [1983] C.A. 167; Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70; Goodyear Tire & Rubber Co. of Canada v. T. Eaton Co., 1956 CanLII 2 (SCC), [1956] S.C.R. 610; Mulherin v. U.S.W.A., Loc. 7884 (1987), 1987 CanLII 2739 (BC CA), 12 B.C.L.R. (2d) 251, leave to appeal refused [1987] 1 S.C.R. xi; McGavin Toastmaster Ltd. v. Ainscough, 1975 CanLII 9 (SCC), [1976] 1 S.C.R. 718; Winnipeg Teachers' Association v. Winnipeg School Division No. 1, 1975 CanLII 181 (SCC), [1976] 2 S.C.R. 695; General Motors of Canada Ltd. v. Brunet, 1976 CanLII 196 (SCC), [1977] 2 S.C.R. 537; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paperworkers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704; TWU v. British Columbia Telephone Co., 1988 CanLII 14 (SCC), [1988] 2 S.C.R. 564; Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), 1989 CanLII 67 (SCC), [1989] 1 S.C.R. 1722.

Statutes and Regulations Cited

Canada Labour Code, R.S.C. 1970, c. L-1, ss. 122 [am. 1972, c. 18, s. 1; am. 1977-78, c. 27, s. 43], 136.1 [ad. 1977-78, c. 27, s. 49], 189 [am. 1972, c. 18, s. 1; am. 1977-78, c. 27, s. 68].

Authors Cited

Adams, George W. Canadian Labour Law: A Comprehensive Text. Aurora, Ont.: Canada Law Book, 1985.

Dorsey, James E. Canada Labour Relations Board: Federal Law and Practice. Toronto: Carswells, 1983.

Gagnon, Robert P., Louis LeBel and Pierre Verge. Droit du travail en vigueur au Québec. Québec: Presses de l'université Laval, 1971.

APPEAL from a judgment of the Manitoba Court of Appeal (1987), 1987 CanLII 6905 (MB CA), 49 Man. R. (2d) 179, [1988] 1 W.W.R. 613, setting aside a judgment of the Manitoba Court of Queen's Bench (1986), 1986 CanLII 4904 (MB QB), 43 Man. R. (2d) 123. Appeal allowed.

Mel Myers, Q.C., for the appellants.

Sidney Green, Q.C., for the respondent.

//L'Heureux-Dubé//

The judgment of the Court was delivered by

L'HEUREUX-DUBÉ J. -- The main issue in this appeal concerns the jurisdiction of ordinary courts under the Canada Labour Code, R.S.C. 1970, c. L-1 (as am. S.C. 1972, c. 18; S.C. 1977-78, c. 27) to entertain a claim from an employee alleging a breach of the duty of fair representation by his bargaining agent. A subsidiary issue is what is the correct test as regards a union's duty of fair representation.

Facts

The facts of the case were clearly set out by Hirschfield J. at trial and were accepted by the Court of Appeal. The respondent both in his factum and in his oral argument re-argued the facts and urged us to accept a different version of them. The respondent however has not convinced me that the analysis and conclusions of the trial judge, who had the advantage of hearing and seeing the witnesses, should be disturbed. This is especially the case where, as here, the trial judge had to, in assessing credibility, choose between contradictory assertions of fact. I will therefore reproduce the relevant facts as found at trial.

In 1979 the respondent commenced employment as an Operator C at the Royal Canadian Mint. Prior to such employment he had gained practical experience over a period of one and one-half years as a tinsmith and electrician's helper. At all material times the respondent was a member of the union and subject to the collective agreement. On January 18, 1982, the Mint posted a notice of vacancy in the position of preventive maintenance man. The qualifications required for the position included "a minimum of two years experience in an industrial environment". Four employees of the Mint, including the respondent, applied for the position.

Article 38.16 of the collective agreement provided the factors required to be determined by the employer in evaluating applicants for a vacant position. The article reads:

In filling the vacant and newly-created positions as per the provisions of Clauses 38.14 and 38.15 hereof, the Employer shall evaluate the applicants according to the following determining factors:

• Skills;

• Ability;

• Seniority;

• Knowledge;

• Previous Experience.

These factors shall be equally weighted.

The Mint had, with the union's approval, prepared a document entitled "Promotion Assessment" which set out how the five factors in question were to be assessed. The factor of "previous experience" would be tested "by way of related experience acquired both within and without the Mint". A maximum of 20 points could be awarded for each factor. The plaintiff (here the respondent) received the maximum 20 points for previous experience. He was the successful candidate for the position of preventive maintenance man and was so advised by letter from the Mint. On March 15 and 16, 1982, the three unsuccessful candidates for the position, Lorne Cavers, John S. McKenzie and Michel Hébert, grieved the decision of the employer appointing the respondent to the position of preventive maintenance man on the ground that the determining factor of previous experience had not been properly applied and that the scores should be re-evaluated and, if necessary, adjusted.

Following the presentation of the grievances by the three unsuccessful applicants the union caused an investigation to be conducted which determined that the factor of previous experience of both Cavers and Hébert had not been considered by the plant foreman who conducted the assessment. If the experience of these two applicants had been considered, the results of the assessment would have been different.

The president of the union local, Mr. Lionel Saurette, and the shop steward, Mr. Alain Seguies, categorically stated that they advised the respondent of the fact of the presentation of the three grievances; the fact the union was conducting the grievances; and the date upon which the grievances would be heard. The respondent stated he was not aware of the grievances or the date they would be heard, and was not made aware of the grievances until the results of the hearing were made known and he was displaced. Both Mr. Saurette and Mr. Seguies stated that they further informed the respondent that it would be advisable to apply for a re-evaluation of the factors other than that of previous experience. His reply to each was to the effect that he had won the competition "fair and square", and that it would not be necessary to ask for, nor would he seek, a re-evaluation.

Mr. Gérard Belisle, a senior Industrial Relations Officer of the Mint, heard the three grievances in Winnipeg on October 14, 1982, and after hearing the union's submissions concluded that the local management had in fact neglected and omitted to consider the experience relating to operating and maintaining machinery and equipment gained by Mr. Cavers and Mr. Hébert within the Mint. Mr. Belisle then directed a reassessment of the marks obtained by both Mr. Hébert and Mr. Cavers. On November 10, 1982, Mr. Blaine Yellowega, the personnel supervisor of the Mint, advised the chief steward of the union local, Mr. Dennis Rebizant, when management would meet with the three grievers "and, if necessary, the successful candidate, Mr. Gendron" in order to re-assess the "previous related experience factor". Mr. Saurette told the respondent of this letter and advised him that, because he had obtained the highest possible mark for the previous related experience factor, he should not attend the re-evaluation. The respondent denied having held such a conversation with Mr. Saurette. On November 24, 1982, Mr. Yellowega informed Mr. Saurette of the marks awarded to the three grievers for previous related experience on the reassessment. As a result of the reassessment Hébert was declared the successful candidate. On January 10, 1983 the respondent was notified of his displacement and was also notified that he would be laid off effective January 23, 1983 as his prior position was now redundant.

On January 25, 1983 the respondent presented two grievances. The first was against management's decision to award the position of preventive maintenance man to Mr. Hébert, and claimed that his competition for the job be reviewed and that he be reinstated to that position. The second grievance was that he had been unjustly laid off. Management denied the respondent's grievances at Step One in the grievance procedure. At this meeting the respondent refused to have any of his scores re-examined. The union formed the opinion that any further steps in the procedure would be fruitless but proceeded to Step Two at the insistence of respondent's counsel. Again the respondent refused to have his scores re-examined and stated that this should not be necessary as he had won the competition in the first instance. Management again denied the grievances.

In accordance with a policy adopted by the union in 1978, a member who disagreed with the local's position could convene a meeting with the national president and two members of the executive council of the union to determine whether or not the union should proceed with the grievances. A meeting was convened on December 6, 1983 at which the respondent restated his position at steps one and two. The executive council determined that the grievances had no merit and recommended that the local should not proceed further with them. The respondent was notified of the recommendation on December 29, 1983. As a result, the respondent commenced action in the ordinary courts against the appellants alleging a breach of the duty of fair representation.

The Arguments

The appellants argue that as Parliament has, through the Canada Labour Code, provided a comprehensive legislative scheme governing labour relations, there is no jurisdiction for the Manitoba Court of Queen's Bench to hear the matter. The legislation ousts the common law duty and provides a different method of remedying a breach. Because the courts are increasingly deferring to the expertise of specialized tribunals and access to the ordinary courts is not contemplated by the scheme, the Manitoba Court of Appeal erred in upholding the jurisdiction of the Court of Queen's Bench to hear this matter.

As regards the duty of fair representation, the appellant contends that the principles in Canadian Merchant Service Guild v. Gagnon, 1984 CanLII 18 (SCC), [1984] 1 S.C.R. 509, must be applied in order to review the union's conduct. The appellant submits that these principles were properly applied at trial and by Monnin C.J.M. in dissent at the Court of Appeal.

The respondent pleads that the Canada Labour Code does not expressly or by necessary implication oust the common law duty in circumstances where the statute applies. At best, the Code offers an optional remedy. As a result, the Manitoba Court of Queen's Bench properly assumed jurisdiction in the matter.

In the context of the duty of fair representation, the respondent contends that the principles in Gagnon, supra, do not necessarily apply and that different facts may warrant the application of different considerations. However, even if the principles set out in Gagnon do apply, the conduct of the appellant union was unfair in this case.

The Judgments

The question of the jurisdiction of the ordinary courts to hear the matter, while pleaded at both levels, was not determined by either court. Since the main issue in this appeal revolves around the duty of fair representation, it is useful at this stage to set out the relevant provision of the Canada Labour Code in this regard. As stated earlier, all references to the Code will be to the 1970 version as amended by S.C. 1972, c. 18 and S.C. 1977-78, c. 27.

136.1 Where a trade union is the bargaining agent for a bargaining unit, the trade union and every representative of the trade union shall represent, fairly and without discrimination, all employees in the bargaining unit.

Manitoba Court of Queen's Bench (1986), 1986 CanLII 4904 (MB QB), 43 Man. R. (2d) 123

Hirschfield J. began his consideration by stating that the only issue was whether or not the union had properly fulfilled its duty to fairly represent the respondent. He then proceeded to examine the content of the duty. After reviewing s. 136.1 of the Canada Labour Code and the submissions of the respondent, he posed the question, "Did the union act arbitrarily, discriminatorily, in a hostile manner and in bad faith toward the plaintiff [here the respondent] in not performing as he now suggests?" (p. 128). Hirschfield J. went on to state that s. 136.1 of the Code requires that the union act in a manner that is not arbitrary and he reviewed the decisions in Gagnon, supra, and Rayonier Canada (B.C.) Ltd. and International Woodworkers of America, Local 1-217, [1975] 2 Can. L.R.B.R. 196, in this regard. He concluded that when a union finds itself in a position of conflict regarding the interests of certain of its employees, it satisfies its duty of fair representation, and cannot be accused of acting in bad faith, so long as it acts honestly, treats all members equally, does not act in a perfunctory or hostile manner and does not engage in favoritism. Applied to the facts of the case, Hirschfield J. found that "the defendant" [here the appellant union] "at all material times acted in good faith towards and fairly represented the plaintiff" [here the respondent] (p. 130). He accordingly dismissed the respondent's action.

Court of Appeal (1987), 1987 CanLII 7001 (MB CA), 49 Man. R. (2d) 179

Gendron initially alleged two breaches of the duty of fair representation; one arising out of the union's conduct in pursuing his grievance and another as a result of the union's decision to process the grievances of the other employees. The first alleged breach was rejected both by Hirschfield J. at trial and by the Court of Appeal. The sole issue for determination by this Court is whether or not the union acted unfairly by pursuing the grievances of the three unsuccessful applicants. It is, in light of this, unnecessary to examine the judgments at the Court of Appeal as regards this first issue.

On a review of the terms of s. 136.1 of the Code, O'Sullivan J.A., speaking for himself and Hall J.A., concluded that the common law duty of fair representation was indistinguishable from the statutory duty. Though finding that the common law duty and statutory duty are identical, O'Sullivan J.A. held that the trial judge erred by phrasing the duty in terms different from the precise statutory language even though the words used by the trial judge were referable to the common law duty.

While O'Sullivan J.A. reviews much the same case law as does the Chief Justice in dissent, he interprets it differently and comes to another result on an application of this law to the facts of the case. O'Sullivan J.A. held that the union must not only fairly represent the interests of the individual as seen by the union but must also fairly represent the interests of the individual as seen by such individual. He concluded that the appellant (here the respondent) was not fairly represented as the union acted in a fashion that was contrary to his interests. The majority therefore allowed the appeal and awarded damages in the amount of $3,000 and costs at both court levels to Gendron.

Hall J.A. agreed generally with the reasoning and disposition of O'Sullivan J.A. but added that the union could have settled the dispute in a manner that avoided Gendron's job loss. In all other respects he would have allowed the appeal as proposed by O'Sullivan J.A.

Monnin C.J.M. in dissent began by reviewing the facts and stating that Hirschfield J. properly found that the only issue was whether or not the union had acted fairly. In his analysis of s. 136.1 of the Code, the Chief Justice reviewed the case law relied on by Hirschfield J. at trial and identified the rationale behind the duty of fair representation to conclude that "[s]ince a union is given the exclusive right to represent all the members of a designated unit, it also has the duty to serve the interests of all of its members without hostility or discrimination towards any and to exercise its discretion with complete good faith, with honesty avoiding all arbitrary conduct" (p. 184).

Monnin C.J.M., in applying the test to the facts, concluded that the union had fulfilled its duty to fairly represent the respondent in that it acted in good faith and fairly represented him throughout. The appellant union had to ensure that the collective agreement was properly interpreted and applied, and if it had not proceeded with the grievances filed by the unsuccessful applicants, its conduct would have been unfair and discriminatory as regards the other employees in the unit. He found that the respondent's position was untenable from the outset and that the union had more than fulfilled its duty in its representation of him. He accordingly would have dismissed the appeal.

The jurisdiction of the ordinary courts to entertain a claim based on a breach of the duty of fair representation is at the heart of this case. Although argued before them, the lower courts did not deal with it. It was pleaded at length before us and it must be determined whether or not the Court of Queen's Bench had jurisdiction to entertain the claim of the respondent prior to any examination of the content and application of the duty. If they did not, this ends the matter.

Jurisdiction

In resolving the issue of jurisdiction a good point of departure is to review the duty of fair representation at common law in order to decide whether or not the statutory duty, as embodied in the Canada Labour Code, ousts the common law in situations where the statute applies. The second step of the inquiry will examine whether the Code contemplates any jurisdiction in the ordinary courts to entertain claims based upon the statutory duty.

The Duty of Fair Representation at Common Law

The duty placed on unions, as exclusive bargaining agents, to fairly represent the employees in their unit has its origin in American case law. The duty was originally applied and defined in the context of suits by employees alleging that their unions had engaged in discriminatory practices. The first cases to recognize such a duty and offer a rationale for its imposition are the companion cases of Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192 (1944), and Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210 (1944). The governing legislation in both of these cases was the Railway Labor Act. In Steele, the trade union had negotiated a number of terms that discriminated against black employees, including a ceiling on the number of blacks hired and a seniority clause that favored white workers. The United States Supreme Court, in striking down the offending clauses, reasoned that as the union was the exclusive bargaining agent of the employees, it had a duty to ensure that its power was exercised fairly and that it represented all members of the bargaining unit. In the words of Stone C.J. at p. 202:

While the majority of the craft chooses the bargaining representative, when chosen it represents, as the Act by its terms makes plain, the craft or class, and not the majority. The fair interpretation of the statutory language is that the organization chosen to represent a craft is to represent all its members, the majority as well as the minority, and is to act for and not against those whom it represents. It is a principle of general application that the exercise of a granted power to act in behalf of others involves the assumption toward them of a duty to exercise the power in their interest and behalf, and that such a grant of power will not be deemed to dispense with all duty toward those for whom it is exercised unless so expressed.

Stone C.J. further stated (at pp. 202-3) that:

. . . the language of the Act to which we have referred, read in the light of the purposes of the Act, expresses the aim of Congress to impose on the bargaining representative of a craft or class of employees the duty to exercise fairly the power conferred upon it in behalf of all those for whom it acts, without hostile discrimination against them.

These initial American cases were followed by cases that extended the newly recognized duty of fair representation to unions governed by the National Labor Relations Act. In Ford Motor Co. v. Huffman, 345 U.S. 330 (1953), the United States Supreme Court found no breach of the duty on the facts of the case but, more importantly, it found that, as trade unions under the National Labor Relations Act also enjoyed exclusive bargaining rights, they were required to fairly represent the employees within the unit. Like the court in Steele, supra, it held that a necessary corollary of such a grant of power was the duty to exercise it fairly.

While the cases mentioned above took the lead in establishing a duty of fair representation, it was not until the American Supreme Court decision in Vaca v. Sipes, 386 U.S. 171 (1967), that it was fully examined and defined. The majority in Vaca reviewed the American case law and at p. 177 put the duty in precise, positive terms:

Under this doctrine, the exclusive agent's statutory authority to represent all members of a designated unit includes a statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct.

At page 190, White J. for the majority phrased the duty in even more succinct terms:

A breach of the statutory duty of fair representation occurs only when a union's conduct toward a member of the collective bargaining unit is arbitrary, discriminatory, or in bad faith.

While the court gave precise content to the duty, it also set out its scope, based on previous cases. At page 177, White J. stated:

. . . the Union had a statutory duty fairly to represent all of those employees, both in its collective bargaining with Swift, see Ford Motor Co. v. Huffman, 345 U.S. 330; Syres v. Oil Workers International Union, 350 U.S. 892, and in its enforcement of the resulting collective bargaining agreement, see Humphrey v. Moore, 375 U.S. 335.

The common law duty imposed on a union to fairly represent its employees is well established in American jurisprudence. Implying such a duty was necessary in order to balance unions' statutory grant of power. It was recognized that while the union's status as exclusive bargaining agent operates to counteract the economic power of the employer, and therefore works to the benefit of those represented, it was nevertheless necessary to ensure that unions wielded their power fairly.

It is unlikely that the rationale for the imposition of the duty is confined to the American labour experience; however the Canadian courts have proceeded more cautiously in their recognition of such a duty. The first decision in the context of Canadian labour relations that adopted the reasoning of the American courts is that of Fisher v. Pemberton (1969), 1969 CanLII 726 (BC SC), 8 D.L.R. (3d) 521. Macdonald J. of the British Columbia Supreme Court used the same rationale for implying a duty of fair representation as did the American courts before him; the fact that unions enjoy, pursuant to statute, exclusive bargaining status. Macdonald J. found that this authority carried with it the duty of fair representation. At page 540 he states:

. . . what duty in law did Spencer owe the plaintiff when acting in the course of his office as acting president of Local 592? That duty is not spelled out in any Canadian decisions of which I am aware, but there are decisions of the Supreme Court of the United States which are in point. They define the duty with which I am concerned in a way which, with respect, appeals to me as sound and I therefore apply them in this case.

Macdonald J. then proceeded to examine the American case law and, as applied to the facts before him, he found that the union had breached its duty to fairly represent the plaintiff. Many Canadian cases decided subsequently have referred to Macdonald J.'s decision in Fisher, supra, and have applied it in order to scrutinize the conduct of unions. It would appear that after the decision in Fisher, the Canadian courts have developed the duty independently of the post-Vaca v. Sipes American case law. I will briefly refer to some of these later decisions.

In Harvey Adams and Vancouver Symphony Society and Musicians Association, Local 145, [1976] 1 Can. L.R.B.R. 192 (B.C.), the Board was faced with a situation in which the events giving rise to the alleged breach of the duty occurred prior to the enactment of a duty of fair representation in the province's Labour Code. In deciding whether or not the statute should be applied retrospectively, the Board had to determine the status of the duty at common law. The Board reviewed earlier case law and in particular the reasoning in Fisher, supra, and concluded that, as the duty had existed at common law, the subsequent enactment was merely declaratory and could be applied retrospectively.

The Saskatchewan Labour Relations Board has also followed the direction of Macdonald J. in Fisher, supra, and has held that notwithstanding the lack of a statutorily enacted duty, a union must fairly represent all of the employees in the bargaining unit (Simpson and United Garment Workers of Canada, [1980] 3 Can. L.R.B.R. 136 (Sask.)) The Board limited its findings to the processing of grievances and after reviewing the relevant case law stated (at p. 139):

So long as a union, in dealing with a grievance, acts fairly, impartially, and in good faith in deciding whether or not a grievance should be proceeded with, its decision will not be interfered with by this Board. . . .

The Quebec courts have on a number of occasions concluded that such a duty was imposed upon a union prior to statutory codification of the duty. In one such case, Syndicat des agents de la paix de la Fonction publique v. Richer, 1983 CanLII 3456 (QC CA), [1983] C.A. 167, a case in which the facts arose prior to statutory codification of the duty in the Quebec Labour Code, I noted for the Court of Appeal (at p. 178) that:

[TRANSLATION] Having said that, no lengthy analysis would seem to be necessary to arrive at the conclusion that the union failed in its duty of fair representation toward its members in good standing, the respondents, both by filing a grievance diametrically opposed to their interests in circumstances that amount to a flagrant denial of justice to them and by refusing to take the grievance regarding their dismissal to the fourth level, that of arbitration.

The conclusion that there exists a common law duty of fair representation is not held solely by Canadian labour boards, but is shared equally by legal commentators writing in the area. James E. Dorsey, in his work Canada Labour Relations Board: Federal Law and Practice, states at p. 230:

While the duty of fair representation first appeared in the courts in Canada, its common form today is legislative with administration assigned to a labour relations board or the Labour Court in Quebec.

In their 1971 edition of Droit du travail en vigueur au Québec, Gagnon, LeBel (now a member of the Quebec Court of Appeal) and Verge discuss the obligations imposed upon a union under the duty of fair representation. They examine the duty as it existed in 1971, six years prior to the codification of the duty in Quebec. As regards the duty the authors state (at p. 139):

[TRANSLATION] Corresponding to the right to represent all employees is a duty of the same amplitude: each employee in the group is entitled to benefit equally from the certified association's representational function. Accordingly such an association, which enjoys a statutory monopoly on the right to represent employees, cannot conclude a collective agreement containing discriminatory work provisions, in other words, containing disparities with respect to certain categories of employees that are not justified by objective facts, such as seniority. Similarly, when it comes to applying the collective agreement, the association may not avoid presenting valid grievances on behalf of employees it does not favour, solely because they are not among its members. The association must always represent each employee in the group equally, both in concluding the collective agreement and in applying it.

More importantly, in Canadian Merchant Service Guild v. Gagnon, 1984 CanLII 18 (SCC), [1984] 1 S.C.R. 509, this Court recognized that the duty of fair representation existed at common law, prior to any statutory enactment. To that effect, Chouinard J. for the Court stated at p. 517:

Section 136.1 of the Canada Labour Code, like s. 47.2 of the Quebec Labour Code and s. 7 of the British Columbia Labour Code, is subsequent to the facts giving rise to the issue at bar. It is nonetheless useful to see how this legislation has subsequently been interpreted since, as we shall see below, the Canadian and Quebec courts recognized long before this legislation that a union has a duty to represent its members and that certain obligations follow from that duty.

At page 522 Chouinard J. commented further on the existence of a common law duty:

However, as mentioned above, the Canadian cases, following the U.S. precedents, had already recognized the existence of a union's duty of representation and of the resulting obligations.

It is clear then that Canadian courts have followed the lead of their counterparts in the United States in inferring from statutory grants of exclusive bargaining authority a corresponding duty of fair representation. It therefore becomes necessary to determine what effect statutory codifications of the duty, such as s. 136.1 of the Canada Labour Code, have on the duty as it exists at common law.

The Effect of the Canada Labour Code on the Common Law Duty

Although in a different context, this Court has had recent occasion to consider the effect of statutory codification upon a pre-existing common law duty or remedy in the case of Rawluk v. Rawluk, 1990 CanLII 152 (SCC), [1990] 1 S.C.R. 70. Many of the considerations that occupied the Court in that case are relevant here. Our analysis in this area must be guided by the rule that unless the statute contains words that expressly or by necessary implication oust the common law duty or remedy, one has a choice of remedies. As Cory J., albeit in different terms, stated for the majority in Rawluk, supra, at p. 90:

It is trite but true to state that as a general rule a legislature is presumed not to depart from prevailing law "without expressing its intentions to do so with irresistible clearness" (Goodyear Tire & Rubber Co. of Canada v. T. Eaton Co., 1956 CanLII 2 (SCC), [1956] S.C.R. 610, at p. 614).

An analysis of the provisions of the Canada Labour Code will, in my opinion, lead to the conclusion that while the legislation has not expressly ousted the common law duty of fair representation, it does so by necessary implication or, in the words of Goodyear Tire (cited above by Cory J. in Rawluk), with irresistible clearness.

For ease of reference s. 136.1 of the Code is reproduced here:

136.1 Where a trade union is the bargaining agent for a bargaining unit, the trade union and every representative of the trade union shall represent, fairly and without discrimination, all employees in the bargaining unit.

From a reading of s. 136.1 it is evident that Parliament had recourse to the common law duty in framing the statutory duty. The words "fairly and without discrimination", among others, refer to the content of the duty as it has developed at common law. It can be reasonably inferred from Parliament's choice of words that it intended to incorporate the common law duty. Conversely, if the aim of Parliament was to create a duty different from that at common law it could have chosen words that clearly indicated such an intention. Section 136.1 has no inherent meaning unless one infers legislative intent from an examination of its terms. This examination necessarily leads to the common law duty, which then, through incorporation, provides the content of s. 136.1. This content then is obviously identical to the duty at common law. The common law duty is therefore not in any sense additive; it is merely duplicative.

This duty, however, must be viewed as part of a legislative scheme governing labour relations. The Code provisions cover a wide range of labour relations including fair employment practices, equal pay for similar or identical work, wages, vacations and holidays, employment safety, unfair labour practices, the process of collective bargaining including certification, the collective agreement, strikes and lock-outs and conciliation. More particularly, Division II of the Code (ss. 111 to 123) contains the provisions relating to the composition and operation of the Board. The powers given to the Board in this part of the Code both ensure that the Board has ample ability to investigate and adduce evidence relevant to proceedings before it and ensure that the hearing process is as flexible and efficient as possible. In reviewing the legislation it becomes clear that, at least as regards the duty of fair representation, Parliament has enacted a comprehensive, exclusive code. An overview of the Code puts the statutory duty of fair representation in its proper context, that of a complete and comprehensive scheme that both supplies the duty and provides the necessary adjudicative machinery such that resort to the common law is duplicative in any situation where the statute applies. While not determinative in itself, this is in my view a strong indication of Parliament's intention that the Code occupy the whole field in terms of a determination of whether or not a union has acted fairly.

An examination of the statutory remedies contained in s. 189 of the Code further supports this conclusion.

189. Where, under section 188, the Board determines that a party to a complaint has failed to comply with subsection 124(4) or section 136.1, 148, 161.1, 184, 185 or 186, the Board may, by order, require the party to comply with that subsection or section and may

(a) in respect of a failure to comply with section 136.1, require a trade union to take and carry on on behalf of any employee affected by the failure or to assist any such employee to take and carry on such action or proceeding as the Board considers that the union ought to have taken and carried on on the employee's behalf or ought to have assisted the employee to take and carry on;

and, for the purpose of ensuring the fulfilment of the objectives of this Part, the Board may, in respect of any failure to comply with any provision to which this section applies and in addition to or in lieu of any other order that the Board is authorized to make under this section, by order, require an employer or a trade union to do or refrain from doing any thing that it is equitable to require the employer or trade union to do or refrain from doing in order to remedy or counteract any consequence of such failure to comply that is adverse to the fulfilment of those objectives.

The remedial provisions improve significantly the position at common law of an aggrieved person. At common law, courts were restricted to an award of damages, whereas under the Canada Labour Code a broad range of remedies designed to "make whole" are available. The range of remedies recognizes that often an award of damages will only go a short distance in remedying the effects of a breach. Parliament has substituted a broad, comprehensive, remedial scheme much superior to an award of damages available at common law. George W. Adams in his text Canadian Labour Law (1985) concludes that the Board has a wide discretion in choosing an appropriate remedy. At page 767 he states:

In deciding upon a remedy, a board will consider the size and resources of a union as mitigating factors . . . . The remedy can be innovative, and can affect the employer. Where the complaint concerns the failure to pursue a grievance to arbitration, labour boards have ordered the trade union to take the grievance to arbitration, and the employer to waive any preliminary objections to arbitration such as the issue of expired time. . . . Trade unions have also been directed to arbitrate grievances and to permit the complainant employee to choose independent legal counsel. . . . [Citations omitted.]

The common law duty adds nothing to the effectiveness of the Canada Labour Code and serves no purpose in situations where, as here, the Code applies.

The judgment of Chouinard J. for the Court in Gagnon, supra, also buttresses this conclusion. In that case Chouinard J. canvassed the law relating to the duty of fair representation and included in his summary both cases that relied on a statutory codification of the duty and those that did not. On the basis of this review, he concluded that the duty of fair representation had a definite content. Significantly, no distinction was drawn by the Court between those formulations of the duty based on a codification of the duty and those formulated in the absence of legislative enactment; this informs us that the Court concluded that the common law and statutory codifications had the same content. Based then on this Court's decision in Gagnon and a reasonable interpretation of the statutory scheme, it would appear that the rule stated at the outset has been satisfied. In other words, where, in a case such as this one, the statute applies, it, by necessary implication, ousts the common law duty. (See also Mulherin v. U.S.W.A., Loc. 7884 (1987), 1987 CanLII 2739 (BC CA), 12 B.C.L.R. (2d) 251 (leave to appeal refused [1987] 1 S.C.R. xi), at p. 255.)

In view of the legislation we must consider here, the words of McLachlin J. in dissent in Rawluk, supra, are appropriate. To use her words in the context of this case, the common law duty of fair representation is neither "necessary or appropriate" in circumstances where the statutory duty applies. Parliament has codified the common law duty and provided a new and superior method of remedying a breach. It is therefore reasonable to conclude that while the legislation does not expressly oust the common law duty of fair representation, it does however effect this end by necessary implication or, to once again use the language in Goodyear Tire, supra, Parliament has, by the enactment of this particular legislative scheme, expressed its intentions with "irresistible clearness".

A necessary caveat to this conclusion is that, while the common law duty will be inoperative in a situation where the terms of the statute apply, a different conclusion may be warranted in a case where the statute is silent or by its terms cannot apply. Such may be the case where the statutory duty is, by its terms, applicable only in circumstances where the breach of the duty arises out of contract administration. Recent amendments to the Canada Labour Code may restrict the statutory duty in such a fashion thereby arguably leaving some room for the common law duty to operate at the collective bargaining stage. This is however not the situation here, as the alleged breach occurred in the context of contract administration, and therefore this issue need not be addressed.

A different conclusion may also be warranted where it is not clear that the statute exclusively covers the breach. In other instances, such as in the context of human rights violations, while the statute may apply, the breach may not be properly characterized exclusively as a labour relations matter. In these circumstances jurisdiction may be grounded elsewhere. Since neither of these potential examples are at issue in this case, nothing more need be said of them at this point.

Notwithstanding my conclusion that the provisions contained in the Canada Labour Code necessarily oust the common law duty of fair representation in most situations where the terms of the statute apply, it is now necessary to determine whether or not the statutory duty can be the subject of a claim in the ordinary courts or whether instead the legislative scheme has substituted a procedure that must be followed.

Jurisdiction of the Ordinary Courts when the Terms of the Stature Apply

Many of the considerations examined in the previous section will be relevant and applicable in a resolution of this question as one must also examine here the legislative scheme and its underlying objectives. I have already set out the statutory form of the duty, the range of the legislation and the remedies available upon a breach of the duty. Section 122 of the Code (as it read at the time the facts giving rise to the alleged breach occurred) contains a privative clause protecting the decisions of the Board:

122. (1) Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with paragraph 28(1)(a) of the Federal Court Act.

(2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall be

(a) questioned, reviewed, prohibited or restrained, or

(b) made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise,

on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.

While the legislation does not expressly provide that the Board has exclusive jurisdiction, it indicates that Parliament envisioned a fairly autonomous and specialized Board whose decisions and orders were to be accorded deference by the ordinary courts, subject only to review within the confines of the privative clause. As noted earlier, Parliament has provided the duty, the procedure for adjudicating an alleged breach, a wide array of remedies and a privative clause protecting the Board. It can be therefore assumed to have intended that the ordinary courts would have but a small role if any to play in the determination of disputes covered by the statute. An analysis of the legislative scheme would not seem to permit any alternative as any other interpretation would endanger the special role of the Labour Board and the policy underlying the Code. An examination of this particular legislation and its policy objectives would not seem to permit an action in the ordinary courts for a breach of the statutory duty. That, of course, may not be the case for other legislation differently drafted.

In his text, Canadian Labour Law, Adams examines the rationale underlying the deference accorded the decisions and jurisdiction of labour boards and states at p. 154:

Such privative clauses [contained in most legislation which establishes labour relations boards] reflect the rationale for administrative agencies and the importance of finality and speed in labour relations dispute resolution. While courts of superior jurisdiction have historically assumed the duty of supervising tribunals of inferior jurisdiction with the purpose of maintaining the integrity of legal rules, the distinctive characteristics of labour relations warrant a high degree of judicial restraint and self-control.

. . . Labour relations boards represent greater specialization and expertise. And because of their relative familiarity with the problems before them, labour boards are better able to fashion and monitor workable new policies. Activity before them is also more informal, less costly and expeditious.

This is certainly not the first time this Court has had to resolve questions about the jurisdiction of the courts in the area of labour relations. Before reaching a final conclusion I will briefly examine previous decisions as they relate to this issue.

The starting point in a review of the applicable case law is the reasons of Chief Justice Laskin in the cases of McGavin Toastmaster Ltd. v. Ainscough, 1975 CanLII 9 (SCC), [1976] 1 S.C.R. 718, and Winnipeg Teachers' Association v. Winnipeg School Division No. 1, 1975 CanLII 181 (SCC), [1976] 2 S.C.R. 695. In McGavin Toastmaster the Chief Justice, speaking for the majority, considered the issue of the Court's ability to adjudicate a claim concerning the interpretation of a collective agreement. The collective agreement provided a grievance procedure and also provided for binding arbitration. On the issue of jurisdiction Laskin C.J. stated at p. 721 that while the jurisdiction of the Court to hear the matter was in doubt since the claim had not proceeded to arbitration, the parties had not raised the issue and therefore the Court would proceed on the basis that it had the necessary jurisdiction.

While this position was adopted by the majority in the Winnipeg Teachers' Association case, Laskin C.J., in dissent, would have allowed the appeal on this ground if it had been raised by the parties. His reasoning on this point is set out at p. 706:

Moreover, the machinery for determining contract disputes as prescribed by the collective agreement is not only better suited than resort to the Court, but ought to have been resorted to here. . . .

A somewhat similar question faced this Court in General Motors of Canada Ltd. v. Brunet, 1976 CanLII 196 (SCC), [1977] 2 S.C.R. 537. In writing for the Court, Pigeon J. addressed the question of whether the ordinary courts had jurisdiction to entertain a claim based on an interpretation of the collective agreement. The union in that case refused to bring the employee's grievance to arbitration. In deciding that the courts had no jurisdiction to entertain the claim, Pigeon J. for the Court stated at p. 542:

To admit of a right to go to the Superior Court instead of having recourse to arbitration whenever a sum of money is claimed under a collective agreement would make totally ineffective the provision of s. 88 of the Labour Code, which reads as follows . . .

88. Every grievance shall be submitted to arbitration in the manner provided in the collective agreement. . . .

And further at p. 549:

If, instead of saying that these rights can be exercised only through the grievance procedure provided in the agreement, it is held that any employee whose grievance the Union decides to drop may bring an action in the courts, the nature of the contract is radically altered: it is the Court which makes the final decision, instead of the arbitrator chosen by agreement.

This attitude of judicial deference in the face of both the expertise of specialized tribunals and a demonstrated intention of the Legislature to exclude the courts has also been commented on by this Court in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227. The judgment of the Court was delivered by Dickson J. (as he then was). After examining the terms of a privative clause contained in the relevant legislation, a privative clause whose terms are very similar to that contained in the Canada Labour Code, Dickson J. stated (at pp. 235-36) that the clause represented a:

. . . clear statutory direction on the part of the Legislature that public sector labour matters be promptly and finally decided by the Board. Privative clauses of this type are typically found in labour relations legislation. The rationale for protection of a labour board's decisions within jurisdiction is straightforward and compelling. The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations. In the administration of that regime, a board is called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence that has developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired from accumulated experience in the area.

The decision of this Court in St. Anne Nackawic Pulp & Paper Co. v. Canadian Paperworkers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704, examined in depth the proper relationship between the courts and the decision-making machinery set up under collective agreements and labour relations legislation. Although Estey J., for the Court, did not consider at length the role played by the Labour Relations Board, his analysis of the overall scheme of labour relations and the policy objectives that drive it are applicable in the case at bar. The Court in St. Anne provides a compelling and forceful rationale for the proposition that both statutory and contractual decision-making structures should be respected and deferred to. While the issue in St. Anne, supra, as in the first cases mentioned was whether or not an arbitrable dispute was properly before the courts as it had not proceeded to arbitration, the reasoning is nevertheless appropriate and applicable here. Of the proper relationship between the various decision-making structures, Estey J. stated, at p. 718-19:

The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law. . . . The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks.

This Court has more recently considered the question of judicial deference to specialized tribunals in the cases of TWU v. British Columbia Telephone Co., 1988 CanLII 14 (SCC), [1988] 2 S.C.R. 564, and Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), 1989 CanLII 67 (SCC), [1989] 1 S.C.R. 1722. Although the majority did not touch upon this issue in the TWU case, it was considered at length in my dissenting reasons. The accepted rationale for such deference is set out on p. 584:

The rationale for this approach has to do with the Court's deference to the "expertise" of statutorily established and administered tribunals. In the field of labour law, the concentration of decision making power among labour tribunals and arbitrators is designed for efficiency, and is tailored to the development of a coherent labour policy.

While this approach may constitute the general approach, it does not of course prevail in the face of jurisdictional error (see p. 585) nor does it prevail when the impugned decision is outside the acknowledged "expertise" of the board or tribunal as was the case in Bell Canada, supra. That case concerned an application by Bell Canada for a general rate increase. In reaching his conclusion, Gonthier J. considered the question of curial deference to the decisions of specialized tribunals. He begins his analysis at p. 1743 and at p. 1746 states, albeit in the context of statutory appeals as opposed to judicial review, that deference should be accorded to the decisions of tribunals made within their area of expertise:

. . . within the context of a statutory appeal from an administrative tribunal, additional consideration must be given to the principle of specialization of duties. Although an appeal tribunal has the right to disagree with the lower tribunal on issues which fall within the scope of the statutory appeal, curial deference should be given to the opinion of the lower tribunal on issues which fall squarely within its area of expertise.

It is clear then that this Court has enunciated a principle of deference, not only to decision-making structures under the collective agreement but as well to structures set up by labour legislation and in general, to specialized tribunals operating within their fields of expertise. When the relevant statute requires collective agreements to provide for the final and binding settlement of disputes, it becomes difficult if not impossible to distinguish St. Anne, supra, and similarly reasoned cases on the basis that the issue in those cases concerned the relationship between contractual dispute resolution and the jurisdiction of the ordinary courts, not the relationship between statutory dispute resolution and the courts. The concern that recourse to the ordinary courts may jeopardize the comprehensive dispute resolution process contained in labour relations legislation is one that arises in this latter situation as well. Allowing parties to disputes which, by their very nature, are those contemplated and regulated by labour legislation, to have recourse to the ordinary courts would fly in the face of the demonstrated intention of Parliament to provide an exclusive and comprehensive mechanism for labour dispute resolution, particularly in the context of the present case.

I concluded earlier that the common law duty of fair representation was by necessary implication ousted in situations where the statute applies. As the statute is applicable in the present case, the respondent in this case cannot base his claim on the common law but must instead have recourse to the statute. For the above reasons, I would also conclude that the statutory duty owed the respondent was one that must first proceed to the decision-making structure assigned this task under the legislation, the Canada Labour Relations Board. There is no original jurisdiction in the ordinary courts to decide the matter, only the ability to review Board decisions in the very limited parameters contemplated by the privative clause.

For these reasons I would conclude that the Manitoba Court of Queen's Bench, in entertaining the respondent's claim, improperly assumed jurisdiction in this case.

The Duty of Fair Representation

It is not strictly necessary to consider the reasons of the Court of Appeal as regards the duty of fair representation because I have concluded that a determination of this point is within the original jurisdiction of the Canada Labour Relations Board. I will however make some brief comments about the factors that must be examined in determining whether the union has breached its duty and their application to the facts by the Court of Appeal in this case.

The leading case in this area is Canadian Merchant Service Guild v. Gagnon, 1984 CanLII 18 (SCC), supra. While the facts giving rise to the claim in Gagnon occurred prior to statutory codification of the duty, the principles set out by Chouinard J. were based on a review that included both cases based on statutory formulations and those that were not and drew no distinction between the cases based on the different statutory terms which set out the duty. After an impressive and lengthy review of the Canadian jurisprudence, Chouinard J. for the Court lists at p. 527 the principles governing the duty of a union to fairly represent its members:

The following principles, concerning a union's duty of representation in respect of a grievance, emerge from the case law and academic opinion consulted.

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other.

4. The union's decision must not be arbitrary, capricious, discriminatory or wrongful.

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

In distilling these five principles Chouinard J. relied heavily on Rayonier Canada (B.C.) Ltd., supra, a decision by the British Columbia Labour Relations Board. At pages 201-2 the Board states:

The union must not be actuated by bad faith in the sense of personal hostility, political revenge, or dishonesty. There can be no discrimination, treatment of particular employees unequally whether on account of such factors as race and sex . . . or simple, personal favoritism. Finally, a union cannot act arbitrarily, disregarding the interests of one of the employees in a perfunctory matter. Instead, it must take a reasonable view of the problem before it and arrive at a thoughtful judgment about what to do after considering the various relevant and conflicting considerations.

The principles set out in Gagnon clearly contemplate a balancing process. As is illustrated by the situation here a union must in certain circumstances choose between conflicting interests in order to resolve a dispute. Here the union's choice was clear due to the obvious error made in the selection process. The union had no choice but to adopt that position that would ensure the proper interpretation of the collective agreement. In a situation of conflicting employee interests, the union may pursue one set of interests to the detriment of another as long as its decision to do so is not actuated by any of the improper motives described above, and as long as it turns its mind to all the relevant considerations. The choice of one claim over another is not in and of itself objectionable. Rather, it is the underlying motivation and method used to make this choice that may be objectionable.

Disposition

On the whole, I conclude that the Manitoba Court of Queen's Bench had no jurisdiction to entertain the respondent's claim under the Canada Labour Code. The claim should have been litigated before the Canada Labour Relations Board.

Accordingly, I would allow the appeal, set aside the judgment of the Court of Appeal and dismiss the respondent's action against the appellants, with costs. Due to the nature of the case there will be no order as to costs in this Court.

Appeal allowed.

Solicitors for the appellants: Skwark Myers Kussin Weinstein, Winnipeg.

Solicitor for the respondent: Sidney Green, Winnipeg.