ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CV-12-463497
DATE: 20140801
B E T W E E N:
RIENZI CHANGOOR
Andrew R. Morrison, for Mr. Changoor
Plaintiff
(Responding Party)
- and -
INTERNATIONAL BROTHERHOOD of ELECTRICAL WORKERS, LOCAL 353
David Rosenfeld, for the Union
Defendant
(Moving Party)
D.L. CORBETT J.
reasons for DECISION
[1] Mr. Changoor was charged with violating the union constitution by twice performing union work for a non-union contractor. After two separate hearings before internal trial boards, Mr Changoor was found guilty of the charges and ordered to pay fines.
[2] Mr. Changoor appealed the Trial Boards’ findings through four separate levels within the Union. In each appeal the decisions of the Trial Boards were upheld.
[3] Mr. Changoor now seeks further redress in this Court.
Preliminary Issue – Summary Judgment
[4] The amount at stake in this case is $5,460 in fines imposed on Mr. Changoor. The events at issue are well documented in the Union’s records. There are few conflicts in the evidence. The issues are primarily procedural. Both sides agree that the case should be decided on this motion for summary judgment. On the basis of the principles in Hryniak v. Mauldin,[^1] I am satisfied that I can arrive at a just result without oral evidence and that summary judgment is the proportional way in which to proceed.
Issue #1 – Standard of Review of the Impugned Decisions
[5] Union tribunals are “domestic tribunals” which must conduct their proceedings fairly. This Court’s jurisdiction is restricted to determining whether the Union breached its constitution, acted in bad faith, or failed to accord Mr. Changoor procedural fairness. This limited jurisdiction respects the expertise, autonomy and independence of unions over their internal affairs, while maintaining judicial oversight over the fair application of the union’s own rules.[^2]
Issue #2 – Alleged Breaches of the Union Constitution
[6] Mr. Changoor alleges that there were numerous breaches of the Union’s Constitution in respect to the charges brought against him.
(a) Failure to Comply with the Requirements for Charge Sheets
[7] Article XXV, s. 3 of the Constitution specifies what is to be contained in a Charging Sheet that sets out the allegations against a member. The substance of the provision requires that the member receive notice of the allegations made against him with sufficient specificity to be on notice of what it is he is alleged to have done and how this allegation violates the Union’s Constitution.
[8] Mr. Changoor alleges that Charging Sheet #2 does not comply with these requirements.
[9] There is no merit in this allegation. Charging Sheet #2 complies with the letter and the spirit of Article XXV, s. 3. It sets out a short summary of the allegations against Mr. Changoor and the provisions of the collective agreement, by-laws and constitution allegedly violated by Mr. Changoor.
(b) Failure to File Charge #2 and to Read It Out at Union Meeting
[10] Mr. Changoor alleges that Charge #2 was filed too late and not read out at a union meeting, in contravention of the Constitution. The only evidence before the Court is that the charges were filed some six days after the events in issue, and that the charges were read out at the next regular union meeting. Mr. Changoor has no personal knowledge to the contrary and has no evidence to the contrary.
(c) “Blackmailed” Into Attending the Union Meeting on Charge #2
[11] Mr Changoor alleges that he was “blackmailed” into attending the meeting at which Charge #2 was considered. It is not clear what Mr. Changoor means by “blackmailed”. His evidence is that he believes that the evidence presented at the meeting did not match up with the charge against him. This is not “blackmail”.
(d) Improper Appointment of Mr Daniels and Impermissible Reliance on the Daniels Report
[12] The Union’s practice is to hold an informal oral hearing when a charge is laid. That is what happened here. Where, as here, a member appeals the initial decision, it is the Union’s practice to appoint an investigator to look into the matter. Mr. Daniels was appointed to look into Mr. Changoor’s appeal and to report back to the appeal tribunal, the International Vice President (“IVP”).
[13] Mr. Changoor argues that this practice violates Article XXV, ss. 5, 10 and 18 of the Constitution. Section 5 states an accused member is entitled to a “fair and impartial trial”. I do not see how Mr. Daniels’ appointment or the IVP’s reliance upon the Daniels Report is inconsistent with fairness and impartiality. The uncontradicted evidence is that this practice is standard for the appeal of any Union member. And s. 10 specifically provides for the appointment of a referee to investigate for the purpose of the appeal to the IVP. Mr. Daniels’ appointment and reliance on his report were in accordance with s. 10.
[14] Section 18 does not apply. It provides that where an appeal is taken above the IVP, only the evidence submitted in the “original case of appeal” shall be considered. The “original case of appeal” is the appeal before the IVP. Thus it is only the record before the IVP that proceeds to the next level of appeal. Section 18 does not preclude an investigator’s report, and in fact has the effect of providing that the Daniels Report to the IVP is properly part of the appeal record on appeals taken from the IVP.
[15] I conclude that the appointment of Mr. Daniels, and reliance upon his report at the IVP and at subsequent appeals, did not violate the Constitution.
(e) Other Allegations
[16] Mr. Changoor alleged a breach of the Constitution because the Charging Sheets were not approved by the Union recording secretary or the local union president. Mr. Changoor subsequently withdrew this allegation.
(f) Conclusion
[17] I see no breach of the constitution in the process followed in Mr. Changoor’s case.
Issue #3 – Alleged Breaches of Natural Justice
[18] Mr. Changoor received advance notice of the charges against him and the hearings into those charges. He was entitled to attend the hearings, to present his own oral and documentary evidence, and to cross-examine the witnesses who testified against him. He was entitled to make argument after the evidence and before the Tribunal rendered its decision. Following the initial decision, he was entitled to four levels of appeal, each of which he pursued.
[19] The Union is a private voluntary association. The process followed was less structured than would be the case in court, or in court-like statutory tribunals. Here the process was considerably more formal than is required in many private, voluntary associations, and accorded Mr. Changoor significant protection and involvement. Through this lens I now consider the specific complaints raised by Mr Changoor.
(a) No Evidence Presented in Support of Charge #1
[20] Mr. Changoor alleges that “no evidence” was presented to support Charge #1. This allegation is not correct factually. Mr. Changoor, in his own affidavit, describes some of the evidence that was presented. In cross-examination, Mr. Changoor admitted that the charging party had presented evidence against him. The transcription from the hearing demonstrates that evidence was presented against Mr. Changoor. And finally, Mr. Daniels, in his report, describes in detail the evidence presented against Mr. Changoor.
[21] This allegation is without substance.
(b) Witnesses Not Available for Cross Examination
[22] Mr. Changoor alleges that he did not have a fair opportunity to cross-examine the witnesses who testified against him. The transcribed proceedings show that Mr. Changoor was asked if he had any questions for the witnesses against him.
[23] Information from one witness, Mr. Quinn, could not be challenged by cross-examination because Mr. Quinn was not present. The balance of the evidence against Mr. Changoor was overwhelming. The findings of guilt did not rest on the fax received from Mr. Quinn. In all these circumstances, it was within the discretion of the Tribunal to proceed on the strength of the fax and to not insist on Mr. Quinn being present.
(c) Alleged Bias of the Tribunal
[24] Mr. Changoor argues that Tribunal Board #1 was biased because two of its members are brothers.
[25] Tribunal #1 was established in accordance with the Constitution. In this circumstance, the standard for judging the conduct of the Tribunal is actual bias, and not reasonable apprehension of bias.[^3]
[26] Mr. Changoor has not demonstrated a reasonable apprehension of bias in the circumstances of this case, let alone actual bias. This allegation cannot succeed.
(d) Alleged Transcript Defects
[27] Mr. Changoor alleges that the transcript recording devices were turned on and off during the proceedings, and that portions of the transcripts have been erased. Mr. Changoor also complains that he has not received a transcript of his appeal before the International Convention (his final appeal).
(i) Transcripts Turned On and Off
[28] There is one instance where the transcript recording device was turned off during Tribunal #2. This was done while there was a delay searching for a particular document that was not immediately available. There is no evidence that anything material took place while the transcript recording device was turned off.
[29] There is no failure of natural justice in turning off a recording device during a gap in the proceedings. Indeed, court proceedings are the usual measure for the most elaborate procedures required, and it is common for recording devices to be turned off during court proceedings when there is a break in proceedings.
[30] There is no evidence, aside from Mr. Changoor’s bald allegations, that recording devices were shut off at any other point during his hearings. I conclude that the transcripts accurately reflect what took place during the hearings, and that no material portion of the hearings was omitted because the recording devices were turned off.
[31] Mr. Changoor alleges that his own microphone was turned off at times and that during these times he was not heard. First, the transcripts do show certain utterances from Mr. Changoor that were inaudible. This does not mean the microphone had been turned off, or that there was a deliberate failure to record Mr. Changoor. This sinister gloss is placed on the transcript by Mr. Changoor without any supporting evidence. Second, inaudibility on the recording does not mean inaudibility during the hearing. There is no evidence that the Tribunal could not hear Mr. Changoor at any point during the hearings.
(ii) Erasure of Transcripts
[32] Mr. Changoor alleges that the transcripts have been tampered with. There is no evidence to support this allegation other than Mr. Changoor’s bald allegations. I conclude that the transcripts have not been tampered with.
[33] There are some portions of Mr. Changoor’s statements to the Tribunal that were not audible and have not been transcribed. From the context in which those gaps appear, and the overall context of the hearing, I am satisfied that nothing material was missed from the transcripts that would bear on the merits of the Tribunals’ decisions.
(iii) No Transcript from the Final Appeal
[34] It is not a requirement of natural justice that transcripts be kept, let alone that they be kept of appeal proceedings. Mr. Changoor’s hearing before the International Convention was his final appeal. It proceeded on the basis of the record before the IVP. There was no requirement for a transcript to be kept of that hearing or for a transcript to be provided to Mr. Changoor.
[35] I again draw an analogy to court procedures, which have higher requirements of procedural fairness than do internal hearings at a domestic tribunal such as a union tribunal. There is no requirement to keep or provide transcripts of appeals in court. Transcripts are kept of evidence, not argument.
(e) Impermissible Leading Questions
[36] Mr. Changoor alleges that he should have been advised that leading questions posed by the Tribunal are not permitted at tribunal hearings.
[37] From the structure of this Tribunal, it seems clear that the Tribunal is to adjudicate disputes brought before it, and is not to act as prosecutor.
[38] Even lawyers with experience and training can find it difficult to distinguish between leading and non-leading questions, and to adopt appropriate forms of question tailored to the circumstances of the evidence. Here, the gravamen of the applicable principle is that the tribunal is not the prosecutor, and should not be seen to present the case on behalf of the charging member. However, the tribunal members, and the union members, are not lawyers, and a reviewing court should take care to review the proceedings with an eye to the substantive fairness of the process and not the academic propriety of the form of the questions.
[39] Here I am satisfied that the Tribunal went no further than to satisfy itself that it had all the information needed to decide the issues. I see no unfairness in any of the questions asked by the Tribunal.
(f) Unfair Participation by the Union Business Manager at the Grievances and Appeal Committee
[40] Mr. Changoor argues that it was unfair for the Grievances and Appeal Committee to hear submissions from Mr. Martin, the Union business manager, in respect to the appeal.
[41] It is the general practice to hear from a Local business manager, on behalf of the Local, in an appeal originating from that Local. Mr. Changoor was also given an opportunity to be heard on the appeal. I see no failure of natural justice in the Union following its usual practice and hearing from all sides.
(g) Conclusion
[42] The Union conducted a hearing of the charges against Mr. Changoor. It heard evidence from the complainant. Mr. Changoor was present and had the chance to call his own evidence. I see no unfairness in the process followed by the Union here. The Union afforded him a fair hearing and four levels of appeal. There is no basis for this Court to interfere.
[43] Towards the end of the second hearing, Mr. Changoor told the Tribunal that, in his opinion, “all evidence should be provided to me before trial”. This, truly, is the nub of Mr. Changoor’s complaints. He was given notice of the charges against him and the substance of what he was alleged to have done. But he was not shown all of the evidence against him in advance of the hearing. There was no obligation on the part of the Union to disclose all of the evidence ahead of time.
Issue #4 – Alleged Bad Faith
[44] Mr. Changoor makes two sets of allegations under the umbrella of his bad faith claim. First, he claims a conspiracy among Messrs. Chapman, Quinn and Szwec against him. Second, he claims that Mr. Szwec was stalking him.
[45] The first allegation is bald and is not pleaded properly. The evidence before the Tribunal included photographs that show there is a basis for the allegations against Mr. Changoor. Members of the Union have a legitimate interest in seeing that union members abide by their obligation not to undertake non-union work. There is no evidence that Messrs. Chapman and Quinn have done anything other than provide evidence respecting Mr. Changoor.
[46] Mr. Szwec, a complainant, is alleged to have a negative animus against Mr. Changoor. Whether Mr. Szwec does or does not have such an animus does not bear on whether Mr. Changoor was in breach of his obligations as a member of the Union, and whether the hearing into those allegations was fair. Mr. Szwec was the charging party, and not a member of the tribunal deciding the charges against Mr. Changoor. I am satisfied that Mr. Szwec’s personal views, whatever they may have been, did not taint the process.
[47] The allegations of bad faith are not made out.
Conclusion
[48] My reasons are focused on the issues raised by Mr. Changoor in this application. To address those issues, item by item, I have been through the entire record. Based on that review I see no basis on which to intervene in this case. There was considerable evidence against Mr. Changoor, going beyond the oral testimony of the one witness alleged to have a negative animus towards Mr. Changoor. Mr. Changoor had an opportunity to present his case. He chose not to avail himself fully of that opportunity because he disagreed with the Tribunals’ decisions not to grant his adjournment requests.
[49] A decision not to grant an adjournment is procedural and will not be interfered with lightly in this Court. The Tribunals concluded that Mr Changoor had notice of and understood the allegations against him – that he had been working on a non-union job installing light standards at York University on two different days. There were photographs and eyewitnesses to establish these allegations. Mr. Changoor did not explain to the Tribunals – or to this Court – why this evidence caught him by surprise and should have led the Tribunals to grant his request for adjournments.
[50] Further, the first appeal at the IVP provides for a further fact-finding process. Mr. Changoor had notice of the photographs and eyewitness evidence against him before the IVP, and an opportunity to respond to that evidence.
[51] For all of these reasons, despite Mr. Morrison’s able submissions, the Union’s motion for summary judgment is granted and the application is dismissed.
Costs
[52] The Union has prevailed and is entitled to its costs. I agree with the Union that this application is so obviously devoid of merit, and is advanced on so many baseless grounds, that Mr. Changoor ought to be required to pay substantial indemnity costs. I fix those costs at $15,000, inclusive, payable within thirty days.
[53] Mr. Changoor might well note that the union costs he is ordered to pay for losing this application are almost three times the amount of the disputed fines. It is a pity that Mr. Changoor now faces such a large obligation. I am sure it is a very great deal of money for him.
[54] That is one of the reasons that the Union’s internal dispute resolution processes are to be respected by the courts. Those processes are less expensive for the parties. In many disputes – and this is but one example – a pristine court process is too expensive, given the value of the dispute. No matter the substantive result, it could hardly be reasonable to require the Union and its members to spend many times the value of the question in issue in order to decide it.
D.L. CORBETT J.
Released: August 1, 2014
COURT FILE NO.: CV-12-463497
DATE: 20140801
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
RIENZI CHANGOOR
- and –
INTERNATIONAL BROTHERHOOD of ELECTRICAL WORKERS, LOCAL 353
REASONS FOR DECISION
D.L. Corbett J.
Released: August 1, 2014
[^1]: 2014 SCC 7, [2014] S.C.J. No. 7, per Karakatsanis J.
[^2]: Clark v. Gilbert, [1996] O.J. No. 4415, para. 54 (S.C.J.); Berry v. Pulley, 2002 SCC 40, [2002] 2 S.C.R. 493, para. 47; Michael Lynk, “Denning’s Revenge: Judicial Formalism and the Application of Procedural Fairness to Internal Union Hearings”, 23 Queen’s L.J. 115; Re Rees and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 527, 1983 1916 (ON SC), 43 O.R. (2d) 97 (H.C.J.).
[^3]: Vlahovic v. Teamsters’ Joint Council No. 36, [1979] B.C.J. No. 777, para 12 (B.C.S.C.).