Court File and Parties

COURT FILE NO.: CV-17-573552 DATE: 20181120 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MAC VINCENT DAY Plaintiff/Responding Party

– and –

THE INTERNATIONAL ALLIANCE OF THEATRICAL STAGE EMPLOYEES, MOVING PICTURE TECHNICIANS, ARTISTS AND ALLIED CRAFTS OF THE UNITED STATES, ITS TERRITORIES AND CANADA LOCAL 873 Defendant/Moving Party

Counsel: Aaron Rousseau, for the Plaintiff/Responding Party David Rosenfeld, for the Defendant/Moving Party

HEARD: November 13, 2018

Reasons for Judgment

Cavanagh J.

Introduction

[1] The plaintiff Mac Vincent Day is a member of the defendant, Local 873, a union. Mr. Day became involved in disciplinary proceedings arising from his conduct as a union member in submitting timesheets on behalf of members working in the transportation department on a television production that was filmed in Toronto. Following a hearing, Mr. Day was found guilty of the conduct that was alleged against him, and he was given a six month suspension. Mr. Day appealed this decision according to the appeal procedures in the union constitution, and he was not successful.

[2] Mr. Day then commenced this action claiming damages for breach of contract and an order that the suspension be expunged from the records of Local 873. In the action, Mr. Day claims, among other things, (i) that Local 873 breached the provisions of the governing constitution in the disciplinary proceedings and he was thereby denied procedural fairness, and (ii) the disciplinary proceedings were unfair because he was not afforded an unbiased adjudicator. On this motion, Mr. Day also submits that he is entitled to damages for breach of contract because of breaches of the internal rules that applied to the disciplinary proceedings under the constitution of Local 873, whether or not these breaches resulted in procedural unfairness.

[3] Local 873 moves for summary judgment dismissing the action on the ground that the action is, in substance, an attempt to seek judicial review of a decision of a voluntary tribunal, and that the court should not interfere with decisions made in disciplinary proceedings of a voluntary association unless the voluntary association exceeded its jurisdiction, failed to conduct the proceedings fairly, or failed to act in good faith. Local 873 submits that the disciplinary proceedings were within the proper jurisdiction of Local 473, they were conducted fairly, and it has not been shown that there was any bias in the proceedings. Local 473 submits that there is no genuine issue requiring a trial in relation to whether the court should interfere with the disciplinary decision made against Mr. Day, and that this action should be dismissed.

[4] Both Local 873 and Mr. Day agree that the issue of liability on Mr. Day’s action for damages can and should be decided on this motion for summary judgment.

[5] For the following reasons, I conclude that there is no genuine issue requiring a trial with respect to Mr. Day’s claim, and that Local 473’s motion for summary judgment should be granted.

Background Facts

Parties

[6] The defendant, The International Alliance of Theatrical Stage Employees, Moving Pictures Technicians, Artists and Allied Crafts of the United States, Its Territories and Canada, Local 873 (“Local 873”) is a duly chartered trade union representing members engaged in all forms of motion picture and television production.

[7] Mr. Day has been a member of Local 873 since 1999.

Local 873 Constitution and International Constitution

[8] Local 873 is governed by the Constitution and By-laws of the Motion Picture Studio Production Technicians Local 873 (the “Local 873 Constitution”). Local 873 is also governed by, and must conform to, the Constitution of the international union, the International Alliance (the “International Constitution”). Under s. 8 of Article Eighteen of the International Constitution, any local union accepting and holding a charter from the International Alliance, and becoming an affiliate in membership, does so only upon condition that it recognizes the supreme jurisdiction of the International Alliance and accepts the International Constitution and Bylaws of the International Alliance as its fundamental law, reserving to itself no rights of self-government inconsistent with the International Constitution and Bylaws.

Collective Agreement for Reign II Production

[9] Local 873 is a party to a number of separate collective agreements with various motion picture and telephone production companies. Among these was a collective agreement between Local 873 and the television production company Reign II Productions Inc. (the “Employer”), which company was created solely to produce the television series “Reign II” (the “Collective Agreement”).

[10] The Collective Agreement specifies the terms and conditions of employment between Local 873 and the Employer, including meal break provisions, and remuneration for failing to provide a proper meal break (“meal penalty”). Collective agreements can only be varied by written agreement between the duly authorized agents of Local 873 and the Employer. Individual members working on a production are not authorized to vary the terms of the Collective Agreement.

Submission of timesheets for Reign II production

[11] Transportation department members of Local 873 worked on the Reign II production filmed in Toronto. Mr. Day was offered and accepted the job of Transport Captain on this production. As part of his responsibilities, Mr. Day submitted timesheets on behalf of members working in transportation on this production. These timesheets were submitted online by Mr. Day, for review by his superior, the Transport Coordinator, and then provided to the Employer (without review by the individual members of Local 873).

[12] On the production that preceded the Reign II production, the Reign I production, members were not provided a meal break by the Employer and meal penalties were paid out to those members as applicable and in accordance with the Collective Agreement.

[13] Prior to the commencement of the Reign II production, the Employer decided to tighten the production budgets and instructions were given by the Employer to Mr. Day and his superior to reduce costs.

[14] Wayne Goodchild is the President of Local 873. In Mr. Goodchild’s affidavit that was delivered in support of this motion, he explained the factual background to the issues raised on this motion.

[15] According to Mr. Goodchild’s affidavit, beginning in July 2014 until October 3, 2014, Mr. Day (and his superior) submitted false timesheets on behalf of the transportation department members of Local 873 on the Reign II production.

[16] According to Mr. Goodchild’s affidavit, on this production, the transportation department employees generally worked 12 hour days. They would be provided with a meal break in their first six hour period as required by the Collective Agreement. During the second six hour period, a meal break would not always be provided. However, timesheets were completed and submitted by Mr. Day to show transportation department employees having taken a half-hour meal break in their second six hour period of work when they had not been provided with such a meal break. The timesheets therefore showed that the transportation department employees had taken a meal break when they had not.

[17] As a result, transportation department employees were not paid meal break penalties and, consequently, they were paid less than the amount to which they were otherwise entitled under the Collective Agreement. Because timesheets were not provided to the transportation department employees on the production for review prior to submission to the Employer, these employees were not aware that information was being inaccurately recorded. The practice continued for some time until it was noticed by the members.

[18] In his affidavit, Mr. Day provided evidence that the provisions in the Collective Agreement regarding meal breaks and meal penalties worked well in the context of the typical work day on set or for the shooting crew, who had fixed schedules for commencement and completion of work as well as regular breaks throughout the day. However, as a result of the transportation department’s constant travel and long hours, these procedures did not align with the working conditions of the transportation department. According to Mr. Day’s evidence, it was “common policy” amongst members of Local 873 to implement various unofficial methods to deal with the irregular working hours and differing locations of the transport department, including buyouts and half-hour “paid through’s”. According to Mr. Day’s evidence, ultimately, the “common policy” was intended to allow the transportation department to fulfil the intent of the Collective Agreement, even if it did not adhere to the “black letter law” of the Collective Agreement. According to Mr. Day’s evidence, all drivers were informed of the “common policy” and agreed to it, and the drivers knew they were in charge of organizing their own break times.

Charges against Mr. Day

[19] According to Mr. Goodchild’s affidavit, one of the transportation department’s employees, Jason Naidoo, discovered a discrepancy on his pay. In his affidavit, Mr. Day states that Mr. Naidoo raised the meal penalty discrepancies in his paycheck with him at the end of July 2014. Mr. Naidoo agreed in his evidence at the hearing that he brought this to Mr. Day’s attention at the end of July or the first week of August 2014. Mr. Day’s practice of submitting timesheets to the Employer that reported second meal breaks whether or not the members were actually provided with a break continued until October 3, 2014, when the Reign II production was completed.

[20] On November 12, 2014, Local 873 filed a grievance against Reign II for failing to comply with the meal penalty obligations outlined in the Collective Agreement. Following receipt of the grievance, on December 11, 2014, the Employer settled with Local 873, and paid out agreed upon amounts owing to the transport department employees.

[21] On November 28, 2014, Mr. Naidoo swore an Affidavit of Charges against Mr. Day pursuant to the Local 873 Constitution. Mr. Naidoo alleged that Mr. Day had violated Article 10, section 1 of the Local 873 Constitution. Mr. Naidoo alleged that Mr. Day “submitted falsely recorded timesheets, showing meal breaks that never occurred, which resulted in inaccurate pay”. Mr. Naidoo alleged that these acts occurred on or about July 2014 - October 2014 at Reign II Productions - 777 Kipling Ave.

[22] The charges brought against Mr. Day were delivered to Local 873. Local 873 then took cognizance of the charges and served Mr. Day, in accordance with Article 10, Section 9 of the Local 873 Constitution.

Pre-Hearing Challenges

[23] A hearing was scheduled and Mr. Day was notified of the hearing and his right to be represented by another member at that hearing, in accordance with the Constitution.

[24] In accordance with the Constitution, prior to his hearing, Mr. Day challenged the presence of certain members who would otherwise have sat on the trial body which is made up of the Executive Board of the Union (the “Trial Body”). As a result, those members were excluded from the Trial Body and did not preside over the hearing of Mr. Day’s charges.

[25] In addition, prior to the hearing, Mr. Day made Mr. Goodchild aware of a specific Facebook page where allegedly negative comments towards Mr. Day were being made. This was not an official Local 873 Facebook group, nor were the postings endorsed in any way by Local 873. Following his discussion with Mr. Day, Mr. Goodchild directed that the creator of the page to remove the group from the Facebook website. According to Mr. Goodchild’s evidence, he understood that this had been done prior to Mr. Day’s hearing.

Hearing and Trial Body Decision

[26] The hearing before the Trial Body was held on February 22, 2015. At the hearing, Mr. Day made opening and closing submissions, cross-examined witnesses, presented his own evidence and chose not to call other witnesses, all in accordance with Article 10, Section 15 of the Local 873 Constitution. In accordance with the Local 873 Constitution, a written transcript of the hearing was made.

[27] At the hearing, Mr. Day agreed that he inputted second half-hour breaks on members’ timesheets when he did not know whether or not they actually received a meal break, which were then submitted to his superior for review.

[28] Ultimately, the Trial Body concluded in its decision that Mr. Day was guilty of the charges. There are no prescribed penalties listed for violating Article 10, Section 1 of the Local 873 Constitution. The Trial Board recommended that a six-month suspension be issued to Mr. Day.

[29] The Trial Body decision was communicated to Mr. Day in writing on February 24, 2015 in accordance with Article 10, Section 20 of the Local 873 Constitution. In the letter that was sent to Mr. Day enclosing the Trial Body Decision, Mr. Goodchild reminded him that the Trial Body Decision would be read and acted upon by the Local 873 general membership at the April 19, 2015 general meeting, and that Mr. Day had the right to speak at that meeting.

Membership Vote

[30] At the general meeting on April 19, 2015, the Trial Body decision was read out to the members. Members were invited to speak, following which a secret ballot was held. The Trial Body’s decision and recommended suspension were upheld by a majority vote. Mr. Day did not attend this meeting.

Appeals

[31] Mr. Day appealed the suspension decision initially to the President of the International Alliance in accordance with the Local 873 Constitution. In the Notice of Appeal submitted on behalf of Mr. Day, Mr. Day argued that the Trial Body’s decision was improper, disproportionate, and a violation of the fundamental rules of procedural fairness. The International President upheld the six-month suspension, finding that Mr. Day had been afforded the requisite opportunity to present a complete defence on his behalf and that there are no facts to support a conclusion that the Trial Body’s hearing or the subsequent general membership meeting were conducted in a way that contravened the applicable constitutions or principles of natural justice.

[32] Mr. Day then appealed to the General Executive Board of the International Alliance. That appeal was unanimously denied.

[33] Mr. Day then appealed the General Executive Board’s decision to the Convention of the International Alliance (the “Convention”). The Grievance Committee of the Convention considered the appeal and voted to uphold the decision of the General Executive Board.

[34] Mr. Day’s suspension ceased on October 19, 2015.

Commencement of this action

[35] Mr. Day commenced this action by statement of claim issued on April 19, 2017. In his action, Mr. Day alleges that (i) the Union breached its contract with him, (ii) the Union acted ultra vires to its Constitution, (iii) the suspension violated Mr. Day’s right to procedural fairness because it was biased through both institutional and individual bias, (iv) the suspension was an arbitrary penalty unsupported by written reasons, and (v) the punishment was arbitrary, disproportionate and excessive. Mr. Day claims general damages as well as pecuniary damages for lost wages that he would have earned but for the suspension.

Analysis

[36] This is an action by Mr. Day, a member of Local 873, a voluntary association, for damages for breach of contract. Through this action, Mr. Day asks the court to intervene in the disciplinary process that was followed by Local 873.

[37] Local 873 submits that Mr. Day was given notice of the charges against him, afforded an oral hearing, and presented with the evidence against him. He was given the right to cross-examine witnesses who testified, to present his own evidence, and to make submissions. Mr. Day availed himself of three internal levels of appeal where he presented his case as to why the disciplinary process was unfair and why the ultimate decision was wrong. Local 873 submits that the disciplinary process was within its jurisdiction, it afforded Mr. Day procedural fairness, and that Local 873 acted in good faith. Local 873 submits that the court should not interfere with the disciplinary proceedings that were taken and, therefore, there is no genuine issue requiring a trial in respect of Mr. Day’s claim. His action should be dismissed.

[38] In response, Mr. Day submits:

a. Local 873 breached its own governing constitution, including the International Constitution, and denied him procedural fairness. b. Even if I were to find that any breaches of the International Constitution did not result in a denial of procedural fairness, such breaches of the International Constitution are breaches of contract, and Mr. Day’s action claiming damages for breach of contract should be allowed to proceed. c. Even if Local 873 had adhered to the International Constitution, the disciplinary procedures that were followed did not comply with the rules of natural justice and Mr. Day was denied procedural fairness because he was not afforded an unbiased adjudicator. As a result, his action should be allowed to proceed.

[39] Mr. Day agrees that this is an appropriate case for me to decide the issue of liability on this motion for summary judgment. He submits that if I decide the issue of liability in his favour, the action should proceed to trial on the issue of damages. Mr. Day does not submit that there are contentious factual issues that require a trial on the issue of liability.

[40] Rule 20.04(2)(b) of the Rules of Civil Procedure provides that the court shall grant summary judgment if the parties agree to have all or part of the claim determined by summary judgment and the court is satisfied that it is appropriate to grant summary judgment. In this case, I agree with the parties that there are no genuine issues of fact that require a trial on the issue of liability. I am satisfied that it is appropriate to grant summary judgment on this issue.

[41] The following issues arise on this motion:

a. Did Local 873 breach the International Constitution and thereby deprive Mr. Day of procedural fairness? b. Was Mr. Day otherwise deprived of procedural fairness because he was not afforded an unbiased adjudicator? c. If I decide that the court should intervene in the disciplinary processes of Local 873 against Mr. Day, what is the proper remedy?

Applicable legal principles

[42] I first address the principles that apply when a court must decide whether to intervene in the internal processes that were followed in a disciplinary proceeding involving a voluntary association, in this case a union, and one of its members.

[43] In Clark v. Gilbert, [1996] O.J. No. 4415 (S.C.) the union member sought declaratory relief from the court in relation to a decision of the local union respecting election of officers of the local and also in relation to disciplinary proceedings. The disciplinary proceedings had been withdrawn when the application was heard. Cameron J. addressed at paras. 48 and 54 the principles that apply to determine when a court will intervene in the internal affairs of a union:

48 A court will not intervene in the internal affairs of a union where an alternative remedy exists except where such right is unreasonable, impractical or otherwise illusory: [citations omitted].

54 This application asks the court to overturn the decision of the International Precedent and the International Executive Board. In this matter this court should not sit as a court of appeal and should not interfere in the dispute resolution process of a voluntary organization unless the organization exceeded its jurisdiction, the proceedings are contrary to natural justice or fairness, or the decision was not made in good faith: [citations omitted].

[44] A similar expression of the jurisdiction of the court in reviewing decisions of a union was made in Changoor v. International Brotherhood of Electrical Workers, Local 353, 2014 ONSC 4458. In Changoor, a union member was charged with violating the union constitution by performing union work for a non-union contractor. After two separate hearings before internal trial boards, the union member was found guilty of the charges and ordered to pay fines. The union member appealed the trial boards’ findings through four separate levels within the union and, in each appeal, the decisions of the trial boards were upheld. The union member commenced an action seeking to reverse the two convictions. The union brought a motion for summary judgment dismissing the action. Corbett J. addressed the standard of review of the impugned decisions at para. 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 to Mr. Changoor procedural fairness.

Corbett J. concluded that there was no basis for the court to intervene, and he granted the union’s motion for summary judgment. An appeal of this decision was dismissed: Changoor v. I.B.E.W., Local 353, 2015 ONSC 2472 (Div. Ct.).

[45] In Lakeside Hutterite Colony v. Hofer, [1992] 3 S.C.R. 165, the issue was whether the Court should assist a Hutterite colony in enforcing its expulsion of the defendants from the colony. In addressing the standard of a court’s review of decisions taken in disciplinary proceedings of a voluntary association, in this case, a religious one, Gonthier J., writing for the majority, held at p. 175:

In deciding the membership or residence status of the defendants, the court must determine whether they have been validly expelled from the colony. It is not incumbent on the court to review the merits of the decision to expel. It is, however, called upon to determine whether the purported expulsion was carried out according to the applicable rules, with regard to the principles of natural justice, and without mala fides.

I take from this passage that a breach of the rules of the voluntary association in disciplinary proceedings against a member must not be considered in isolation. Such a breach must be considered by the court with regard to its effect on procedural fairness, and taking into account the principles of natural justice.

[46] These authorities are clear that a court should not sit as a court of appeal and interfere with decisions made in disciplinary proceedings between a voluntary association, such as a union, and a member except in limited circumstances. These circumstances are where the tribunal exceeded its jurisdiction, failed to conduct the proceeding fairly (whether because of breaches of the union constitution or failures to comply with the principles of natural justice), or failed to act in good faith.

[47] I agree with Corbett J. that “[t]his 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”: Changoor at para. 5.

[48] Based upon these authorities, I do not accept the submission that was made by Mr. Day at the hearing of this motion that the circumstances under which a court may interfere with decisions of voluntary associations should be extended to include all occasions where the association breached its internal rules, even where the breaches were not such as to deprive the member of procedural fairness. Unless the breach or breaches of the internal rules of the voluntary association resulted in procedural unfairness to the member, the court should not intervene in the internal affairs of the voluntary association.

Did Local 873 breach the International Constitution and thereby deprive Mr. Day of procedural fairness?

[49] Mr. Day submits that Local 873 breached the International Constitution in its dealings with Mr. Day in five significant respects, and thereby denied him procedural fairness. He submits that, as a consequence, the disciplinary process should be nullified.

[50] In Changoor, Corbett J. observed at paras. 18-19 that the union was a voluntary association and that the process that was followed was less structured than would be the case in court, or in court-like tribunals. He noted, however, that the process that was followed, involving a hearing at which oral and documentary evidence was presented and four levels of appeal, was considerably more formal than is required in many private, voluntary associations, and that it accorded the union member significant protection and involvement. Corbett J. viewed the specific complaints of the union member through this lens. In this case, the processes that were followed were similar to the processes that were followed in the Changoor case. I also consider it to be appropriate to view the complaints made by Mr. Day concerning the procedures that were followed in the context of all of the procedures that were made available to Mr. Day.

[51] First, Mr. Day relies upon Article 16, s. 6 of the International Constitution that provides the charges must be filed with the local of which the accused is a member within 60 calendar days after the event becomes or should have become known to the person making the charge. Mr. Day submits that Local 873 breached this provision because Mr. Naidoo raised the circumstances relating to the charge against Mr. Day with him in late July or early August 2014 and the Affidavit of Charges was not sworn until November 28, 2014.

[52] In response, Local 873 points out that the Affidavit of Charges states that Mr. Day acted in violation of the Local 873 Constitution or the International Constitution by falsely submitting recorded timesheets showing meal breaks that never occurred during the period July 2014 to October 2014. Local 873 submits that the conduct was ongoing during this period of time, and that the charge was brought within the time prescribed by the International Constitution. Mr. Day submits that there is no evidence to prove that he submitted timesheets that were incorrect in the period from September 29 to October 3, 2014 (within 60 days of the charges) because, on the evidence, the problem of incorrect timesheets did not come up every day.

[53] I view the charges against Mr. Day as directed to his ongoing practice during the Reign II production of submitting false time sheets showing meal breaks that never occurred. Mr. Day has acknowledged that he engaged in this practice during the Reign II production. There is no evidence that Mr. Day changed his practice at any time during the Reign II production. The practice that Mr. Day followed was ongoing throughout the Reign II production, which ended on October 3, 2014.

[54] The charges were brought within 60 calendar days of October 3, 2014. I find that the November 28, 2014 charges were not made in contravention of the International Constitution.

[55] Second, Mr. Day relies upon a provision in the International Constitution that provides that when charges are laid, they must be read at the next general meeting of the local union. If there is no general meeting within 30 days of the charges, the local may within an additional 10 days call a meeting to address the charges. Mr. Day submits that there is no evidence that the charges were read at any meeting within this period of time. Mr. Day submits that this amounted to a breach of the International Constitution. The charges were read at a general meeting that was held on January 17, 2015, ten days after the expiry of the 40 day time period under the International Constitution.

[56] I find that the charges were not read at a general meeting of Local 873 within 40 days of the charges, as required by the International Constitution.

[57] Third, Mr. Day relies upon a provision of the International Constitution that provides that the membership meeting of the local union at which the report of the Trial Board is submitted for appropriate action is not to be held sooner than 20 days from the date on which the accused has been notified of the availability of a written transcript of the Trial Board hearing. The evidence is that Mr. Day was told that transcripts of the hearing were available 12 days in advance of the membership meeting. Mr. Day did not attend the membership meeting.

[58] I find that holding the membership meeting fewer than 20 days from the date on which Mr. Day was notified of the availability of written transcripts was not in compliance with the International Constitution.

[59] Fourth, Mr. Dave submits that the charges lack the specificity this required under the International Constitution in that it is not clear which pay periods are involved and how the timesheets are incorrect. Section 3 of Article Sixteen requires that the charges “be in writing, in the form of a sworn affidavit, reciting clearly the offense charged, the name of the accused, the time, place and nature of the violation, over the signature of the accuser, together with a statement of the names of all witnesses to the offenses charged who shall be known to the accuser”. The charging document alleges that Mr. Day, on or about the period July 2014 and October 2014 at Reign II Productions – 777 Kipling Ave. “submitted falsely recorded timesheets, showing meal breaks that never occurred, which resulted in incorrect pay”. The charging document states that to the best of Mr. Naidoo’s knowledge, information and belief, the acts complained of were committed in the presence of, or are within the personal knowledge of, nine listed persons who are members of Local 873.

[60] I do not agree with Mr. Day that the Affidavit of Charges lacks sufficient specificity. It clearly recites the nature of the offense charged and the time, place and nature of the violation. I find that the charging document does not contravene s. 3 of Article 16 of the International Constitution.

[61] Fifth, Mr. Day submits that the Local 873 failed to serve upon Mr. Day a copy of its written answer to Mr. Day’s first appeal until after the appeal decision of the International President. Under the International Constitution, the local union is required to serve this answer upon the appellant at the same time as it forwards the records of the case to the appeal tribunal.

[62] I find that Local 873 failed to serve its answer according to the requirements of section 4 of Article Seventeen of the International Constitution.

[63] The next question is whether Mr. Day was deprived of procedural fairness by these three violations of the International Constitution.

[64] With respect to these three violations, Mr. Day submits:

a. Local 873’s failure to read the charges at a membership meeting within 40 days of the charges deprived him of procedural fairness. He submits that the purpose of this provision is to allow members to become aware of the charges, to allow time for witnesses to make themselves known, and to ensure that members are not forced to wait an undue length of time before charges are addressed. b. The action of Local 873 in holding a membership meeting at which the report of the Trial Board was submitted for appropriate action twelve days after Mr. Day was notified of the availability of written transcripts of the hearing, instead of a minimum of 20 days as provided for by the International Constitution, denied him procedural fairness. Mr. Day submits that it is impossible to know what effect this violation had on his procedural rights. c. The failure by Local 873 to provide to Mr. Day a copy of its written answer to Mr. Day’s first appeal until after the decision dismissing the appeal deprived him of procedural fairness. Mr. Day submits that although the International Constitution does not provide for any right of an appellant to file a written reply, it does not foreclose a right of reply. Mr. Day’s evidence is that in the answer of Local 873, Mr. Goodchild incorrectly stated that he had not known of a Facebook group the members of which had, according to Mr. Day advocated for his guilt.

[65] Mr. Day submits that the provisions with respect to disciplinary proceedings are included in the International Constitution for the purpose of ensuring procedural fairness to a member, and that violations of one or more of these provisions should be presumed to have resulted in a deprivation of procedural fairness. Mr. Day submits that, as a result, he is entitled to proceed with his action against Local 873 for damages for breach of contract.

[66] I conclude that the three violations of the International Constitution that I have found did not deprive Mr. Day of procedural fairness for the following reasons:

a. The charges were read at a membership meeting on January 17, 2015, ten days following the expiry of the 40 day time period called for under the International Constitution. The hearing was held on February 22, 2015. There is no evidence that any material witness was not available because of the ten day delay in reading the charges to a membership meeting, or that there was any other prejudice to Mr. Day as a result. b. The meeting at which the report of the Trial Board was submitted to the membership for appropriate action was held twelve days after Mr. Day was notified of the availability of written transcripts of the Trial Board hearing. Mr. Day was reminded of his opportunity to address the membership prior to the Trial Board decision being voted on by the general membership. Mr. Day chose not to attend this meeting. There is no evidence that Mr. Day was prejudiced by receiving notice concerning the availability of transcripts of the Trial Board hearing twelve days before the membership meeting instead of twenty days before this meeting as required by the International Constitution. c. The International Constitution provides for an appeal in writing to the President of the International Union. The International Constitution sets out in sections 3 and 4 of Article 17 the procedures that apply to this appeal, and these procedures do not provide for a reply, nor do they foreclose a reply. Mr. Day appealed the decision of the President to the General Executive Board of the international union and to the International Convention of the international union, and he was able to address the issues relating to the Facebook group through these appeal processes. In my view, the failure of Local 873 to comply with the International Constitution by serving a copy of its answer upon Mr. Day before the first appeal decision was not in violation of the rules of natural justice and did not deprive Mr. Day of a fair process.

[67] I have also considered the cumulative effect of these failures by Local 873 to comply with the procedural requirements found in the International Constitution. I do not regard these failures by Local 873, individually or together, to be such that Mr. Day was deprived of procedural fairness. I regard these failures to be more like failures by a party to civil litigation to comply strictly with time periods for steps to be taken under the Rules of Civil Procedure. I recognize that the International Constitution does not include a specific provision like rule 2.01 of the Rules of Civil Procedure that addresses the effect of a failure to comply with a procedural requirement. Nevertheless, even absent such a provision, I do not accept that the International Constitution should be construed in such a way that a failure to comply with a procedural requirement automatically makes the process procedurally unfair and justifies a court in interfering in the disciplinary process that was followed.

Was Mr. Day otherwise deprived of procedural fairness because he was not afforded an unbiased adjudicator?

[68] Mr. Day submits that even if Local 873 had adhered to the International Constitution, I should find that the procedures that were followed did not conform to the rules of natural justice and that Mr. Day was deprived of a fair procedure because he was not afforded an unbiased adjudicator. Mr. Day submits that, as a result, the disciplinary decision cannot stand and he should be allowed to proceed with his action for damages.

[69] In Lakeside, Gonthier J. held at p. 195 that the content of the principles of natural justice is flexible and depends on the circumstances in which the question arises. However, the most basic requirements are those of notice, opportunity to make representations, and an unbiased tribunal. Gonthier J. also addressed at p. 197 the requirement for an unbiased tribunal:

As Forbes observes in “Judicial Review of the Private Decision Maker: The Domestic Tribunal” (1977), 15 U.W.O. L. Rev. 123 at pp. 139-141, the requirement of an unbiased tribunal in the context of expulsion from a voluntary association raises a number of puzzling issues. There is no doubt that an unbiased tribunal is one of the central requirements of natural justice. However, given the close relationship amongst members of voluntary associations, it seems rather likely that members of the relevant tribunal will have had some previous contact with the issue in question, and given the structure of a voluntary association, it is almost inevitable that the decision-makers will have at least an indirect interest in the question. Furthermore, the procedure set out in the rules of the association may often require that certain persons make certain kinds of decisions without allowing for an alternate procedure in the case of bias.

[70] In Changoor, Corbett J. held that the standard for judging the conduct of the tribunal is actual bias, and not reasonable apprehension of bias. Corbett J. cited the decision of Gould J. in Vlahovic v. Teamsters’ Joint Council No. 36, [1979] B.C.J. No. 777 (B.C.S.C.) at para. 12:

In a domestic tribunal such as the one with which we are concerned here, a reasonable likelihood of bias very often exists. Indeed, the plaintiff by his membership in the Union and a consequent agreement to abide by the Constitution has impliedly consented to be subject to the disciplinary machinery of the Teamsters, and the jurisdiction of the trial panel for which the Constitution provides: [citation omitted]. The trial panel was constituted in accordance with the Teamsters’ Constitution and it so happens that those people who duly constituted the trial panel were, not surprisingly, of the “old guard”, rather than supporters of the plaintiff. In such a situation, as with a statutory tribunal which is specifically authorized by the Legislature to act, the plaintiff must show the existence of “actual bias”: Re Schabas et al. and Caput of the University of Toronto (1974), 52 D.L.R. (3d) 495 (O.H.C.)

[71] In Vlahovic, Gould J. was directed to 160 examples of improprieties on the part of the Chairman of the panel which he regarded as individually insufficient to warrant judicial action but which, by their accumulation, overwhelmingly proved real bias on the part of the Chairman.

[72] In Tippett v. International Typographical Union (1975), 63 D.L.R. (3d) (B.C.S.C.) Anderson J. addressed the standard to be applied when an allegation of bias is made against a tribunal constituted by a voluntary association such as a union. He held that the member who alleges bias must show a “real likelihood of bias”. In that case, Anderson J. held at p. 540 that there was proof of actual bias on the parts of two members of the tribunal and, at the very least, a “real likelihood of bias”.

[73] The hearing of Mr. Day’s charges was presided over by a Trial Body that was established through the Local 873 Constitution. Those Executive Board members who would have been part of the Trial Body but were challenged by Mr. Day were excluded from presiding over the hearing.

[74] Mr. Day submits that these actions were not sufficient, and that another member of the Trial Board, Ms. Katie Brennan, showed that she had come to a predetermined conclusion as to Mr. Day’s guilt through her conduct at the hearing. In support of this submission, Mr. Day relies upon evidence of the following conduct of Ms. Brennan that, he submits, is based upon the transcript of the hearing:

a. Ms. Brennan thanked one of the witnesses when he challenged Mr. Day’s interpretation of his membership to specific crews and she laughed at Mr. Day when the witness ridiculed him. b. Ms. Brennan made sarcastic comments such as “oh, my head’s getting cloudy” when Mr. Day was explaining the application of the “common policy”. c. Ms. Brennan responded with “oh boy” when the Trial Board, near the conclusion of the hearing, asked if there were any further questions and Mr. Day indicated his intention to speak.

Mr. Day submits that Ms. Brennan demonstrated prejudgment and bias through these comments and conduct and showed that she was not providing Mr. Day a fair hearing.

[75] In respect of the first complaint concerning Ms. Brennan, the transcript reads:

Day: Now we’re here to determine whether or not it contravened. So don’t let your foregone conclusions get carried away. Montgomerie: I don’t make foregone conclusions. Day: No, I know. Uh, is there ... Make a distinction between half-hour pay-through for the first meal and half-hour pay-through for the second meal. Is there a distinction between them? Are the same… Is it necessary to have a catered meal therefore… In order to implement half-hour pay-through for the first meal? Montgomerie: Uh, there should ... I mean, here ... here’s what happens, on the shooting crew floor there’s generally always 99.9% of the time, a meal provided. Day: I’m not talking shooting. Montgomerie: No, you’re on the shooting crew. I… I hate to break it to you, but you are. Okay? Brennan: Thank you. Montgomerie: You… you… you might think that you’re not. But you’re wrong. So let’s get that clear first. Day: Okay. Montgomerie: Once we’re past that, then I can answer your question – Day: I’ll come back to that later. Brennan:

[76] These interventions by Ms. Brennan seem, on their face, to be rather innocuous. When I view, in context, the expression of thanks following an answer by a witness and the record of “laughs” by Ms. Brennan when Mr. Day indicated that he would return to his line of questioning later, there is no basis upon which I could find that Ms. Brennan showed bias towards Mr. Day.

[77] In respect of Mr. Day’s second complaint, the transcript reads:

Day: So we had an understanding. Before… when it… when they decided that they weren’t going to pay second meal penalty in the studio, I went to the crew and I said, “Okay, here’s the options that we have.” And it was general consensus that the system worked okay. Joe and Jason say that they weren’t informed. My recollection is that I talked to Joe outside of the transport office, the first day after I had talked to the rest of the crew. And my recollection is that myself and Jason had discussed this several times prior to his filing the grievance. G. Goodchild (?): So just let me clarify this ‘cause I’m getting a little confused and… getting – Brennan: Oh, my head’s getting cloudy.

[78] With respect to this passage, the words of Ms. Brennan of which Mr. Day complains appear to be an expression in agreement with the immediately preceding statement made by Mr. Goodchild to the effect that the evidence given by Mr. Day concerning his separate discussions with two members of the transportation department was causing Mr. Goodchild to become confused. This statement by Ms. Brennan does not show a predisposition against Mr. Day.

[79] In respect to Mr. Day’s third complaint, the transcript reads:

Naidoo: Joe, the same thing. Ballantine: Is that true, Mac? Day: No. Goodchild: Okay, anybody else? Brennan: Oh, boy... Day: I would like to just reiterate, I was given specific instructions by the producer, that after October 3, I was not to discriminate in any way, shape or form. I have the ... I don’t have it with me, I have the paperwork where I monitored the hours for each of the drivers and they were all, generally, within the four or five hours, Joe and Jason, or within that range, as well. That was specific instructions, that was monitored by the production manager, as well. They did not want to incur- Brennan: Yeah, it’s causing (?)... Day: …retribution (?) so ... Brennan: Sure, they just want this to stop.

[80] In respect to this passage, Ms. Brennan’s statement “[o]h, boy…” was made following Mr. Goodchild’s question “okay, anybody else?”. The transcript does not support Mr. Day’s submission that this statement was made when he indicated his intention to speak and that it shows that Ms. Brennan had demonstrated prejudgment and bias.

[81] When I consider these three passages, individually and together, there is no basis upon which I can find that Ms. Brennan demonstrated prejudgment and bias towards Mr. Day.

[82] Mr. Day submits that Mr. Goodchild demonstrated bias through his response during the appeal process by failing to inform the International Alliance of his knowledge of the Facebook group where postings were made that showed prejudice towards Mr. Day, despite instructing a union member to remove the Facebook postings prior to the hearing.

[83] In his reply affidavit for this motion, Mr. Goodchild addressed the evidence given by Mr. Day with respect to the Facebook postings. His evidence is that the Facebook page was created by a member of Local 873 and that this member does not have, and has never had, the authority to act on behalf of Local 873. Mr. Goodchild’s evidence is that Local 873 does not maintain, and has never had, its own Facebook page and that, after being made aware of the Facebook page and prior to Mr. Day’s hearing, he directed the member who created the page to remove it. Mr. Goodchild’s evidence is that he believes that the Facebook page was removed prior to the April 19, 2015 general membership meeting.

[84] Mr. Goodchild was cross-examined with respect to these paragraphs of his affidavit and with respect to the letter that he sent to the President of the International Alliance. This letter contains the following statement: “... I was not aware of any secret Facebook page or any social media campaign underway prior to the general meeting…” Mr. Goodchild’s evidence on cross-examination was that prior to the hearing he was aware of a Facebook page that one union member had put up, and he had instructed this union member to take down the page. He testified that he had been assured that the page was taken down. Mr. Goodchild’s evidence on cross-examination was that the statement in his letter was true. He acknowledged that he did not state elsewhere in the letter that he was aware of the Facebook page prior to the hearing.

[85] When I consider the evidence of Mr. Day and the evidence of Mr. Goodchild with respect to the issue of the Facebook page, I am unable to find that there is any evidence to support a finding that Mr. Goodchild was predisposed against Mr. Day and showed bias in the disciplinary proceedings.

[86] In support of his submission that the Trial Board was biased, Mr. Day also relies upon the penalty that was recommended by the Trial Board of a six-month suspension. Mr. Day submits that this recommended punishment was inconsistent with the punishment that was recommended against another union member in similar circumstances in relation to the Reign I production. In that case, the Trial Body had recommended a $500 fine. Mr. Day submits that the recommended penalty was disproportionate and, in and of itself, shows a high degree of bias against Mr. Day.

[87] I do not accept that the recommended penalty proves that the Trial Body was biased. A court is not to act as an appellate court on the merits of a decision of a voluntary association. The decision with respect to the penalty to be imposed is within the jurisdiction of the union. The fact that the recommended penalty in this case differs from the recommended penalty in another similar case is not evidence that the Trial Body was predisposed against Mr. Day.

[88] There is no evidentiary basis upon which I could find that Mr. Day was deprived of the right to have the disciplinary proceedings against him adjudicated by an unbiased tribunal. Even if I were to apply the standard that would require Mr. Day to show a “real likelihood of bias”, I would conclude that there is no evidentiary basis for me to make such a finding.

[89] Day was given notice of the charges against him. He was provided with a hearing at which he was presented with the evidence against him. Mr. Day was allowed to cross-examine witnesses and to present his own evidence. He took advantage of these rights. Mr. Day was able to make submissions at the hearing and did so. The International Constitution provides for three levels of appeal, and Mr. Day took advantage of his rights of appeal. Through these appeal processes, Mr. Day was able to address why, from his perspective, the processes that were followed were not in compliance with the applicable procedural requirements in the International Constitution, and why the discipline decision was wrong and should be set aside.

[90] I conclude that the evidence shows that Mr. Day was given a fair hearing, and there were no contraventions of the principles of natural justice. The evidence does not support a finding that there was actual bias or a “real likelihood of bias” on the part of the Trial Body or during other parts of the disciplinary proceedings. There is no basis for the court to interfere in the disciplinary process that was followed. As a result of this conclusion, Mr. Day is not permitted to proceed with an action against Local 873 for damages for breach of contract.

[91] Local 873 submits that if I were to conclude that Mr. Day was deprived of a fair hearing, the appropriate remedy would be to refer the matter back to the Trial Body of Local 873. Mr. Day submits that given the nature of the breaches of the International Constitution and the fact that the suspension has been served, it would be impossible to provide Mr. Day with procedural fairness at a new hearing and the proper remedy would be to allow the action to proceed to trial on the question of damages. Given my decision on the issue of liability, it is not necessary for me to decide this question.

Disposition

[92] For the foregoing reasons, Local 873’s motion for summary judgment is granted and Mr. Day’s action is dismissed.

[93] Local 873 as the successful party is entitled to costs of the motion and the action. Local 873 claims fees on a partial indemnity scale in the amount of $46,971.60 plus applicable HST and disbursements in the amount of $3,432.43 (inclusive of HST). The fees are comprised of fees for pleadings of $13,341.60, fees for the summary judgment motion of $33,030, and counsel fee on the motion in the amount of $600.

[94] Mr. Day submits that the amount claimed for fees substantially exceeds the amount that would be reasonable and proportionate. He points out that the costs claimed in his costs outline are $18,703.81. Mr. Day submits that I should take into account that the issues are somewhat novel and that bringing the action was not unreasonable. Mr. Day submits that the fact that there were breaches of the International Constitution should reduce the amount awarded for fees. Mr. Day submits that the successful party should be awarded costs in the range of the amount in his costs outline, $19,000.

[95] In Boucher v. Public Accountants Council for the Province of Ontario (2004), 71 O.R. (3d) 728, the Court of Appeal, at para. 26, wrote that the express language of rule 57.01(3) of the Rules of Civil Procedure make it clear that the fixing of costs is not simply a mechanical exercise and that, overall, the objective is to fix an amount that is fair and reasonable for the unsuccessful party to pay in the particular proceeding, rather than an amount fixed by the actual costs incurred by the successful litigant.

[96] The costs outline submitted by Local 873 does not break down the amount claimed for fees other than by the three categories to which I have referred. A substantial number of hours is claimed for work by a student-at-law and a law clerk at the pleadings stage and for the summary judgment motion. It is not clear what services were provided, although I assume that the student performed much of the legal research. Overall, I regard the amount claimed for fees to be too high for this action, having regard to the reasonable expectations of Mr. Day, taking his costs outline into account. I take into consideration the factors in rule 57.01(1) of the Rules of Civil Procedure and the principles in Boucher and I fix fees for the action at $35,000 (excluding HST) and disbursements (including HST) at $3,421.43. The total amount of costs on a partial indemnity scale, inclusive of HST, is fixed at $42,971.43.

Cavanagh J. Released: November 20, 2018