Ontario Superior Court of Justice

Court File No.: CV-21-86362
Date: 2025/03/18

BETWEEN:
Serge Charette, Applicant
– and –
Customs and Immigration Union, Respondent

R. Mitchell Rowe, for the Applicant
Michael Fisher, for the Respondent

Heard: December 10, 2024 (Ottawa)

Reasons for Judgment
Charles Hackland

Overview

[1] The applicant is a retired Federal Public Servant, past president of the respondent Customs and Immigration Union (“CIU”) and until recently, was a “Life member” of the CIU. The CIU is a component union under the umbrella of the Public Service Alliance of Canada (“PSAC”).

[2] On April 29, 2019, subsequent to a disagreement between the parties concerning the rights that Life members had concerning their ability to speak at meetings, the applicant was advised that a motion had been passed “revoking/rescinding” his CIU Life membership.

[3] The applicant asserts that the revocation of his Life membership was in breach of the CIU By-laws and seeks to have the Court grant declaratory relief to this effect and to re-instate the applicant to his status as a Life Member and to order the CIU to adhere to the PSAC Constitution and CIU By-laws.

Issues

[4] The parties agree the issues presented by this application are whether the Court has jurisdiction to intervene in the internal affairs of this private public service union (the CIU), and if the issue raised by the applicant is justiciable, is the applicant entitled to a remedy.

Position of the Parties

[5] The applicant submits that the structure and organization of the CIU and the nature of the relationship that individual members had with the CIU, is contractual in nature and therefore this Honourable Court has jurisdiction to consider if the CIU breached its own Constitution and/or By-laws in the way the applicant’s CIU membership was revoked. If the Court has jurisdiction, the applicant wishes to be re-instated as a Life member and to be permitted to contest his expulsion as a Life member under the CIU’s discipline process.

[6] The respondent’s position is the Court has no jurisdiction to hear the present case or to award the relief requested. CIU’s decision to award the applicant a Life membership did not create any enforceable legal rights. The respondent Union says the parties' relationship was not contractual in nature. Viewed objectively, the parties did not enter any contract for Life membership. The respondent says “an honourary award was given. It was taken away. There was neither offer, nor acceptance, nor consideration”.

Disposition

[7] The Court is of the opinion, for the reasons discussed below, that the applicant’s complaints arising from the termination of his Life membership in the CIU are not justiciable and this application must be dismissed.

Discussion

[8] The CIU is a component of PSAC, which is the certified bargaining agent of federal public service employees appointed to certain positions at Canada Border Services Agency (“CBSA”), including uniformed officers. PSAC is responsible for negotiating these employees’ terms and conditions of employment. In carrying out this responsibility, PSAC has a statutory duty to represent the interests of these dues-paying members, particularly in relation to bargaining their terms and conditions of employment, under the legislation governing labour relations in the federal public sector. As their certified bargaining agent, PSAC has a statutory obligation to represent these employees in collective bargaining and grievance adjudication. CBSA employees are members of PSAC and are also members of CIU.

[9] The applicant’s employment with the federal public service ended many years ago, in January 2004, a year after the creation of CBSA. Once his employment ended, the applicant was no longer eligible for regular membership in the CIU (or PSAC). Only regular, dues-paying members can hold elected office, act as delegates at union conventions, and vote on any matters at union meetings or conventions. In summary, only dues-paying members have a right to participate in the Union’s decision-making processes. CIU Life members are invited to attend the CIU National Convention but only as guests and are seated away from the Convention floor. The CIU By-Laws permit the National Executive to appoint Life members to perform administrative functions at the National Convention, namely, to sit on the credentials committee, an elections committee, or to perform other roles for the proper conduct of the Convention.

[10] The CIU By-Laws permit the CIU National Board of Directors to “award” a “Life membership” and other honours “to any current or retired member, who, through personal and devoted efforts has performed exemplary services for the membership”.

[11] On October 18, 2003, the National Board of Directors voted to award the applicant a CIU Life membership. Subsequently on October 2, 2005, his Life membership was suspended because, after he retired from the federal public service, he filed a lawsuit against CIU regarding his pay during his single term as National President. The applicant’s Life membership was reinstated six years later, on October 20, 2011, after the applicant abandoned his lawsuit.

[12] Further issues arose between the applicant and CIU beginning in 2017 pertaining to what his entitlements were as a Life member. The applicant intended to nominate his son as a delegate to the CIU National Convention. The CIU’s Headquarters Branch President, based on advice from the CIU National President, advised the applicant on May 5, 2017, that only regular members could nominate delegates to the Convention, since only regular members could be involved in the selection process. The applicant was unhappy with this advice and chose to escalate the matter to the CIU and PSAC National Presidents, based on his own interpretation of the Constitution and By-Laws, asserting that, as a CIU Life member, he had a right to nominate his son or actively participate in meetings where decisions were being made affecting regular dues-paying members.

[13] The applicant continued this debate through extensive email correspondence with the CIU National President and the PSAC National President and he also presented complaints against various PSAC and CIU executives.

[14] On August 9, 2018, the CIU National President provided a final answer to what she viewed as the voluminous email correspondence concerning this matter, in addition to the Applicant’s complaints about the delegate selection process:

Let me be clear, as a non dues paying life member you do not enjoy most
of the rights that you have asserted countless times over the past almost
two years. Your Branch President and his executive as well as the
National Office, Executive and [National Board of Directors] have all
engaged with you out of respect for your honorary status as a Life
Member. But you continue to abuse that privilege, at a significant time cost to people who should be fully engaged with other matters.

[15] By letter of April 29, 2019, the then CIU National President advised the applicant that the CIU Board of Directors had voted to revoke his Life membership. The reason for this action, from the respondent’s perspective, is explained in paragraph 23 of the respondent’s factum:

By April 2019, the CIU leadership felt the Applicant’s conduct, and the volume of correspondence he was generating, had created a “tremendous amount of work” that dominated the time and resources of CIU and diminished its ability to represent the members in the workforce, whom it had a duty to represent. On April 3, 2019, the CIU National Board of Directors approved a resolution to revoke the Applicant’s Life membership, because his “behaviour over the past years has focused specifically on his own self-interest and detracted from our goal of solidarity within the Component”.

[16] When the applicant sought to appeal the CIU National Board of Directors’ decision to revoke his CIU Life membership, he was advised there was no appeal mechanism: He was told by the CIU President: “The CIU National Board of Directors is the body that can award the title of Life Membership; it is also the body that can rescind said title.”

The Case Law

[17] The applicant submits it is settled law that the relationship between a Union and its members is contractual in nature and for that reason is taken to confer on members certain legal rights enforceable in court, see Berry v. Pulley, 2002 SCC 40.

[18] The respondent contends, this jurisprudence, while settled, has no application to the present case. It has no application to a Life membership, in which the Life member has a mere honourary status and a social relationship without any related impact on the member’s property or their terms and conditions of employment. While it is conceded by the respondent that the CIU has a contract with its ordinary members who are dues paying members employed by CBSA, none of the rationales for recognizing the existence of a contract between a union and its members apply to Life membership in the CIU.

[19] In Berry v. Pulley, the Supreme Court reasoned that, through the sophisticated statutory regime governing unions, a union has capacity to form a contract with its members, without the “legal fiction” of a web of contracts. Courts have, therefore, taken jurisdiction over union affairs based on the contract between a union and its members, typically consisting of its constitution and by-laws. This however arises from a fact specific analysis of the relationship between the union member and the union.

[20] In other cases, courts have developed the meaning of the union contract, reading a duty of fairness into the union constitution. In doing so, the courts have placed “great emphasis” on the “possible consequences of union disciplinary action,” given that expulsion from the union deprives a worker of the right to participate in workplace democracy and to have a meaningful say over their terms and conditions of employment, see (Michael Mac Neil, Michael Lynk, Peter Engelmann, Trade Union Law in Canada (Thomson Reuters) at § 9:6, The Union Constitution as Contract—Procedural Fairness).

[21] Importantly, the respondent submits, there are no economic benefits associated with a CIU Life membership, nor any economic consequences associated with its revocation. Furthermore, Life membership is not regulated by the statute governing labour relations in the federal public service or any other labour relations statute.

[22] The CIU did not enter into any other form of contract with the applicant, when it awarded him a Life membership. He was not required to pay Union dues. His only “benefit” was to attend annual meetings if he wished. It can not be said the Applicant’s Life membership was related to his employment, from which he retired over twenty years ago. Not only were there no financial implications arising from his Life membership but the relationship imposed no obligations on him. And, the award of a Life membership was a unilateral decision taken by the Union’s Board, as a gesture of respect, and not the result of any form of negotiated process. There is no objective evidence of offer and acceptance.

[23] The respondent argues forcefully, the relationship between the Applicant and CIU, viewed objectively, was not contractual. Life membership is an honour. The loss of an honour, however important to the Applicant, is not a breach of contract. It is not justiciable. As the Federal Court reasoned in Black v. Advisory Council for the Order of Canada, 2012 FC 1234 at para. 51: “The mere fact that a privilege has been conferred, however, absent other external circumstances, does not transform that privilege into a right enforceable in court”.

[24] I would note a recent decision is Hannan v. Scouts Canada, 2024 ONSC 5361 in which MacLeod RSJ of this Court considered whether a volunteer Scouter had an enforceable contract with Scouts Canada. The Court closely examined the relationship between a Scouter and the organization, which is incorporated by an Act of Parliament. The Court emphasized the significant mutual commitments made by the Scouter and the organization. Scouts Canada is “volunteer driven.” Membership is “not simply passive.” Rather, it “demands a significant ongoing commitment on the part of the volunteer.” The volunteer commits to abide by the Scout Law and the Code of Conduct. In turn, the organization “induces” individuals to volunteer by promising “important and rewarding opportunities to promote the skills, traditions and values of scouting to Canada’s youth. It promises the volunteers will be supported in those roles through its policies of training, coaching and progressive discipline.

[25] In finding the Court had jurisdiction, MacLeod RSJ focused on the role of volunteers with Scouts Canada, including their training and the important role played by volunteers and the supports and rewards they can expect in turn for their extensive commitment. This case contrasts significantly with the very limited honourary role played by Life members in the CIU.

[26] In summary, the court finds for the reasons provided above, that in the particular circumstances before the Court, the parties did not intend to create a contractual relationship when the applicant was awarded a Life Membership in the CIU. As a result, on the established jurisprudence, the Court lacks jurisdiction to adjudicate this matter. I would also observe it is the function of Unions to determine what recognitions or awards they provide to members who are no longer employed and represented by the union. The extent to which such former members should participate in Union governance is a policy matter most appropriately left to them. Accordingly, this application is dismissed.

[27] In the event the court were to be found in error in this jurisdictional ruling, I would have re-instated the applicant in order that he could access the Union’s discipline appeal procedure, in order to be accorded procedural fairness in relation to the decision to revoke his Life membership.

[28] If the respondent Union wishes to claim costs of this application, it shall provide a concise written submission within 30 days of the release of these reasons and the applicant may respond within 30 days of receipt of the respondent’s submission.

Justice Charles Hackland
Released: March 18, 2025