Date: 20110601
Docket: A-339-10
Citation:
2011 FCA 185
CORAM: LÉTOURNEAU J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
CHRISTIAN DUMONT
Applicant
and
CANADIAN
UNION OF POSTAL WORKERS,
MONTRÉAL
LOCAL
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
Introduction
[1]
This is an application for judicial review of a
decision of the Canada Industrial Relations Board (Board) dated August 25, 2010
(2010 CIRB LD 2416). The Board dismissed the applicant’s complaint, in which he
alleged that the Canadian Union of Postal Workers, Montréal Local (Union or
respondent), had breached its duty of fair and equitable representation in his
regard, contrary to section 37 of the Canada Labour Code, R.S.C.
1985, c. L-2 (Code).
[2]
The applicant raises two basic grounds on which
the Board should not have dismissed his complaint:
(a)
The Union was not justified in failing to file a
grievance following the applicant’s dismissal announced on July 24, 2009
(in a letter terminating his employment as of August 28, 2009, on the grounds
of his incapacity, applicant’s record, tab E, at page 140);
(b)
The Union did not act fairly and equitably in
signing an agreement with the employer, thus putting an end to the applicant’s
claims from the employer. The Union knew that the applicant objected to this
agreement, which, in his opinion, was causing him substantial financial losses related
to his pension fund and harming his health.
[3]
The applicant argues that had it not been for
the erroneous findings of fact made by the Board, the Board would not have
concluded as it did. Moreover, the applicant alleges that the Board breached
the principles of natural justice by failing to hold a hearing even though the
complexity and history of the case and the fact that he was representing
himself warranted it (applicant’s memorandum, at paragraphs 54 and 56).
[4]
To dispose of the application for judicial
review, I must review the evidence and determine whether, in the light of that
evidence, the Board erred in dismissing the applicant’s complaint.
[5]
But before setting out the relevant facts of the
applicant’s position, I intend to immediately discuss whether the Board had to
hold a hearing. In fact, if the applicant was right on that point, there would
be no need to address the other issues. I would then simply propose referring
the matter back to the Board for a hearing.
(1) The Board did not breach procedural fairness by refusing
to hold an oral hearing
[6]
Section 16.1 of the Code states:
|
Determination
without oral hearing
16.1 The
Board may decide any matter before it without holding an oral hearing.
|
Décision
sans audience
16.1 Le
Conseil peut trancher toute affaire ou question dont il est saisi sans tenir
d’audience.
|
[7]
The case law of this Court has often reaffirmed
the Board’s discretion to decide matters without holding an oral hearing (Grain
Services Union (ILWU-Canada) v. Freisen, 2010 FCA 339, at paragraph 22
[Grain]; Raymond v. Canadian Union of Postal Workers, 2003 FCA
418, at paragraph 4; NAV Canada v. International Brotherhood of
Electrical Workers, Local 2228, 2001 FCA 30, at paragraphs 10 and 11).
[8]
This Court has also specified that generally
speaking and absent compelling reasons, credibility issues or contradictory
evidence are not “exceptional circumstances” that warrant an oral hearing (Nadeau
v. United Steelworkers of America, 2009 FCA 100, at paragraph 6; Guan
v. Purolator Courier Ltd., 2010 FCA 103, at paragraph 28).
[9]
Lastly, this Court did not regard the fact that
an applicant was self-represented as having any influence on the Board’s
discretion under section 16.1 of the Code (Bomongo v. Communications,
Energy and Paperworkers Union of Canada, 2010 FCA 126, at paragraphs 14
to 17).
[10]
None of the applicant’s arguments satisfy me
that the Board erred in not making an exception to its usual practice not to
hold an oral hearing when the documentation on file suffices for it to make a
decision. I therefore propose rejecting this argument and moving on to setting
out the facts relevant to the other issues.
(2) Relevant facts and the Board’s decision
(A) Relevant
facts
[11]
Mr. Dumont worked as a letter carrier for
Canada Post for almost 28 years. At the time of the dispute with his
employer, he was assigned to the Delorimier postal station in Montréal.
[12]
In 2000, the applicant and two of his colleagues
denounced to the employer the [translation] “under-the-table sale of afternoon mail routes”, a prohibited
practice that had become increasingly popular at their postal station. The
system in question had been established by certain letter carriers to allow
them to relieve themselves of part of their workload on the route assigned to
them and by which they subcontracted that part of their workload to other
letter carriers for cash in hand, generally $20.
[13]
Before what he considered to be his employer’s
inaction, the applicant publically denounced the practice, by, among other
things, participating in various reports broadcast in the media. He had
allegedly also insulted some of his co-workers. All of this resulted in the
applicant being sanctioned by the employer in 2003, in the form of notices of suspension
ranging between 5 and 10 days without pay.
[14]
The Union filed a number of grievances on his behalf,
of which Adjudicator Guy E. Dulude disposed as follows in his decision dated
July 13, 2005 (applicant’s record, tab B, at pages 97 and 98):
[translation]
[282] ALLOWS, regarding Christian Dumont, grievances Nos. 350-00-8120
and 8119 against a disciplinary warning dated June 6, 2003, sanctioning
him to a suspension of five (5) working days which he did not serve, finds this
measure unwarranted, cancels it and orders that it be removed from
Mr. Dumont’s file;
[283] ALLOWS in part Mr. Dumont’s grievance No. 350-00-8403
against a disciplinary warning dated August 28, 2003, ordering a
suspension of five (5) working days with no pay, finds this measure to be
excessive in light of the evidence submitted and orders it to be replaced by a
written warning with full compensation of the wage and benefit losses incurred;
[284] ALLOWS grievances Nos. 350-00-8439, 8421, 8442, 8463 and
8465 filed by Mr. Dumont against a suspension of ten (10) working days
without pay following his participation in various reports broadcast in the
media and as a result of his comments, finds this measure to be unwarranted,
orders the various notices relating to this measure to be removed from
Mr. Dumont’s file and orders the employer to fully compensate him for lost
wages and benefits;
[15]
In addition, Adjudicator Dulude reserved
jurisdiction [translation] “over
any potential dispute concerning the establishment of quanta” and the
enforcement of his decision (ibidem, at page 98).
[16]
When this adjudication decision was rendered,
the applicant had already not been working since September 2003, the
Commission de la santé et de la sécurité du travail du Québec (CSST) having
granted him income replacement benefits following his diagnosis of adjustment
disorder with anxious mood (applicant’s affidavit, applicant’s record, tab 3,
page 33, at paragraph 6).
[17]
On April 13, 2009, Adjudicator Dulude
rendered a second adjudication decision disposing, as follows, of the items
claimed in damages by the applicant (adjudicator’s decision dated April 13,
2009, applicant’s record, tab C, pages 135 and 136, at
paragraph 117):
[translation]
ALLOWS complainant Christian Dumont’s proceedings
for an award for damages against the Employer for damage to his reputation
and
ORDERS the Corporation to compensate Mr. Dumont in
that respect for the amount of thirty-five thousand dollars ($35,000.00);
ALLOWS the complainant’s proceedings and motion to amend for additional
awards of thirty-five thousand dollars ($35,000.00) and ten thousand dollars
($10,000.00) in exemplary and punitive damages for the Employer’s subsequent,
persistent conduct to destroy his dignity, honour and reputation;
Consequently ORDERS the Employer to pay Mr. Dumont the above-mentioned
compensation coming to a total of $80,000.00 within no later than fifteen (15)
days of this decision, with interest, according to the rate prescribed at
section 28 of the Act respecting the ministère du Revenu.
RESERVES the right for the complainant and the Union on the
complainant’s behalf to file, where applicable, a motion to amend for an
additional claim of twenty thousand dollars ($20,000.00) in punitive damages
for any later incidents;
RESERVES JURISDICTION in accordance with the provisions of
section 80.99 of the collective agreement on any dispute concerning the
complete resolution of the dispute.
[Emphasis added.]
[18]
This adjudication decision resulting from an ex
parte hearing, the employer having failed to attend, was followed by
multiple proceedings between the employer and the Union, the main goal of the
Union’s proceedings being the prompt enforcement of the adjudicator’s decision.
[19]
The Union’s job was made all the more difficult
by the employer, who, albeit absent before the adjudicator, was now resolutely
resisting the Union’s efforts to obtain the $80,000.00 granted to the applicant
in the adjudication decision. The affidavit of the respondent’s representative
(respondent’s record, book 1, tab B, at pages 8 and following)
lists the various steps taken by the Union between April 13 and
June 29, 2009, including a writ of seizure and sale for the employer and the
challenge of (a) two motions for judicial review instituted by the Canada Post
Corporation before the Superior Court of Quebec (December 15, 2008, and
May 12, 2009); (b) a motion to quash the seizure on the grounds that Crown
property was unseizable and (c) a motion to stay the adjudication decision. During
all of this time, the Union also represented the applicant before the
Commission des lésions professionnelles (CLP).
[20]
Given the turn of events, the Union was
concerned that the applicant would not receive his $80,000.00 quickly. It
therefore decided, in parallel to the legal proceedings under way, to negotiate
with the employer to reach an out-of-court settlement.
[21]
To do so, the Union submitted a first draft agreement (respondent’s record, book 2,
tab 13, at pages 251 and following) to the applicant on May 27,
2009, which he refused.
[22]
The legal proceedings therefore continued,
albeit slowly and with a number of postponements. On June 10, 2009, the
employer and the Union agreed on a second draft agreement. This one included
the payment of the $80,000.00 established in Adjudicator Dulude’s decision
and the discontinuance of the legal proceedings instituted before the Superior
Court (ibidem, tab 18, at pages 321 and following). A few days
later, this agreement was submitted to the applicant, who again refused it,
stating that he preferred going to court even if it resulted in a less
advantageous settlement.
[23]
On June 25, 2009, the employer sent the
applicant a cheque for $84,800.00, including interest, to fulfill its
obligation under the Adjudicator’s decision (ibidem, tab 21, at
pages 334 to 336).
[24]
The Union continued negotiating with the
employer. They agreed on a third draft agreement. This time, the Union signed it
on July 15, 2009 (ibidem, tab 23, at pages 344 and 345),
and informed Mr. Dumont of this on July 21 (ibidem, tab 23, at
pages 342 and 343).
[25]
A few days later, on July 24, 2009, the
applicant received a letter from his employer stating that his employment was
terminated on the grounds of his incapacity (applicant’s record, tab E, at
pages 140 and 141).
[26]
On August 12, 2009, the applicant asked the
Union to file a grievance on
his behalf to challenge his unlawful dismissal, providing the following reasons
(applicant’s record, tab F, at page 142):
[translation]
- My incapacity is the result of Canada Post’s
conduct towards me and its harassment of me. They simply have to rectify their
behaviour so that I can return to work.
- Canada Post’s decision was made in reprisal
against my success before Adjudicator Guy E. Dulude.
-
The letter alludes to statements made at a CLP
hearing where I was not an official witness: all the remarks were informal and
had to do with a request for postponement. My comments were therefore taken out
of context.
-
There will be many points to make at
pre-adjudication meetings and at the adjudication hearing itself.
[27]
On August 25, the Union informed the
applicant that it would not file a grievance (letter dated August 25,
2009, applicant’s record, tab G, at page 143). An in-depth analysis [translation] “of the reasons given by the employer” had
led the Union to conclude that there was [translation] “no positive prognosis” for the applicant’s return to work. Two
legal opinions obtained by the Union (respondent’s record, volume 2, tab 24,
at pages 349 and following, and tab 27, at pages 367 and 368) on
July 29 and August 24, 2009, found that the proposed grievance was
unlikely to succeed.
[28]
Hence, the applicant’s complaint under
section 37 of the Code, the Board’s negative decision and the application
for judicial review before this Court.
(B) Decision
of the Board
[29]
Regarding the Union’s duty of fair and equitable
representation, the Board found that the Union
[translation]
. . . analyzed the situation and that, after due
consideration, it decided to close the file having obtained the best possible settlement
in the complainant’s interests (Board’s reasons, at page 10).
[30]
The Board came to this conclusion such after
noting that the Union [translation] “did everything to settle the dispute in the complainant’s favour,
but that the complainant seems to be set on a confrontation between the parties
rather than a resolution of the conflict” (ibidem).
[31]
Regarding the Union’s refusal to file a
grievance concerning the complainant’s dismissal, the Board found that
[translation]
(n)one of the evidence filed demonstrates that the union acted in a
manner that was arbitrary, discriminatory or in bad faith (ibidem, at
page 11).
[32]
In addition, the Board noted that
[translation]
. . . the documents filed reveal that the complainant was
represented in a manner that went beyond what could be qualified as the norm
. . .. (ibidem)
Analysis
(3) Standard
of review
[33]
The parties agree that the standard of review to
be applied to Board decisions on the interpretation of the Code is that of
reasonableness (Canadian Broadcasting Corp. v. Canada (Labour Relations
Board), [1995] 1 S.C.R. 157, at paragraph 48; Dunsmuir v. New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at paragraphs 54 and 55 [Dunsmuir];
Association des courtiers et agents immobiliers du Québec v. Proprio Direct
inc., 2008 SCC 32, at paragraph 21; Canada (Citizenship and
Immigration) v. Khosa, [2009] 1 S.C.R. 339, at paragraph 25; Nolan
v. Kerry (Canada) Inc., 2009 SCC 39, at paragraphs 33 and 34; Canadian
Federal Pilots Assn. v. Canada (Attorney General), 2009 FCA 223, at
paragraphs 36 and 50). They are right.
[34]
More particularly, this Court has found that
great deference is owed to Board findings on how to interpret the Code and a
union’s duty of fair and equitable representation under section 37 of the
Code (Grain, above, at paragraph 31; McAuley v. Chalk River
Technicians and Technologists Union, 2011 FCA 156, at paragraph 13).
(4) The Board did not err in finding that the Union had acted
fairly and equitably in signing the agreement dated July 15, 2009
[35]
As the employee’s exclusive bargaining agent,
any union has the exclusive authority to represent its members in any
proceedings relating to their rights under the collective agreement. This
exclusive right is, however, subject to the union’s duty to represent its
members fairly, as provided at section 37 of the Code:
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Duty
of fair representation
37. A
trade union or representative of a trade union that is the bargaining agent
for a bargaining unit shall not act in a manner that is arbitrary,
discriminatory or in bad faith in the representation of any of the employees
in the unit with respect to their rights under the collective agreement that
is applicable to them.
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Représentation
37. Il
est interdit au syndicat, ainsi qu’à ses représentants, d’agir de manière
arbitraire ou discriminatoire ou de mauvaise foi à l’égard des employés de l’unité
de négociation dans l’exercice des droits reconnus à ceux-ci par la
convention collective.
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[36]
In the case at bar, the issue was not whether or
not the Union could sign a
settlement without the applicant’s consent. The issue was whether the Union had
acted fairly and equitably in its negotiations with the employer and whether it
had accepted a settlement that was in the applicant’s best interests. The Union’s
entire conduct therefore had to be examined, which the Board did.
[37]
The applicant argued that the July 15 agreement
was prejudicial to him in that it did not provide for his retirement, in
contrast to the second agreement proposed, but that was rejected by him. Specifically,
the agreement provided for his early retirement without monetary compensation
for the resulting actuarial loss.
[38]
In fact, the second agreement merely stipulated
that, in addition to the employer paying a total amount of $115,000.00 and
waiving its recovery of any money the applicant had received or would receive
from the CSST, the applicant promise [translation] “to irrevocably retire no later than June 30, 2009” (respondent’s
record, book 2, tab 18, at page 322).
[39]
The applicant blames the lack of a clause
providing for his early retirement without actuarial loss in the agreement
concluded without his consent on the Union’s bad faith. He infers from this
that the Union knew that his employment would soon be terminated and criticizes
the Union’s inaction.
[40]
This statement is not supported by the evidence.
First, the termination decision falls exclusively under the employer’s
management rights. Moreover, the record shows rather that the Union was
informed of the employer’s decision only when it received a carbon copy of the
termination letter dated July 24, 2009, sent to the applicant (applicant’s
record, tab E, at page 140). In addition, the Union had negotiated
the third agreement knowing that the applicant would object to it. The Union
could not come to an agreement on the applicant’s retirement date, which
explains why the agreement does not contain such a clause.
[41]
It is clear that the applicant’s pension entitlements
are not such as he might have expected given that he was dismissed about two
years before he would normally have completed his years of service for his
employer. The applicant did not, among other things, want to settle his case
without being compensated for the loss thus incurred, namely [translation] “the 10% of the contribution to my pension
fund” (applicant’s affidavit, applicant’s record, tab 3, page 36, at
paragraph 55). The applicant’s concern is entirely understandable, but he
could not receive pension entitlements he had not yet earned. Having said that,
the Board fairly examined all of the Union’s efforts.
[42]
In context, since the dispute between the
parties had gone on for several years and even the $80,000.00 awarded to the
applicant by the adjudicator was in jeopardy, the Board did not err in
concluding, as mentioned above, that the Union had acted fairly and equitably
and obtained the [translation] “best possible settlement in the complainant’s interests” (Board’s reasons,
at page 10).
[43]
I would therefore dismiss the first ground for
challenging the Board’s decision.
(5) The Board did not err in finding that the Union had not
breached its duty of fair and equitable representation by not filing a
grievance following the applicant’s dismissal.
[44]
The applicant is of the opinion that, in
refusing to file a grievance, the Union in fact wanted to get rid of him since
the agreement had just been concluded. He completely disagrees with the Union’s decision, finding rather that his
dismissal was unlawful since, at the time of his dismissal, he was still on
disability leave, the result of an occupational injury recognized by the CSST (applicant’s
memorandum, at paragraph 42). At the hearing, his counsel reinforced this
argument by referring to section 32 of the Act respecting industrial
accidents and occupational diseases, R.S.Q., c. A-3.001 [AIAOD], which
provides as follows:
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32. No employer may dismiss, suspend or transfer a worker or
practice discrimination or take reprisals against him, or impose any other
sanction upon him because he has suffered an employment injury or exercised
his rights under this Act.
A worker who believes that he has been
the victim of a sanction or action described in the first paragraph may, as he
elects, resort to the grievance procedure set down in the collective
agreement applicable to him or submit a complaint to the Commission in
accordance with section 253.
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32. L’employeur ne peut congédier,
suspendre ou déplacer un travailleur, exercer à son endroit des mesures
discriminatoires ou de représailles ou lui imposer toute autre sanction parce
qu’il a été victime d’une lésion professionnelle ou à cause de l’exercice d’un
droit que lui confère la présente loi.
Le travailleur qui
croit avoir été l’objet d’une sanction ou d’une mesure visée dans le premier
alinéa peut, à son choix, recourir à la procédure de griefs prévue par la
convention collective qui lui est applicable ou soumettre une plainte à la
Commission conformément à l’article 253.
|
[45]
However, this provision is not at issue here. It has been found that the wording of section 32 of the AIAOD
does not apply to federal undertakings (Bell Canada v. Quebec (Commission de
la santé et de la sécurité du travail), [1988] 1 S.C.R. 749, at
paragraphs 290 and 291; Purolator Courrier Ltée v. Syndicat canadien
des communications de l’énergie et du papier, [2002] R.J.Q. 310, [2002]
J.Q. no 163 (C.A.), at paragraphs 18 to 20 and 36; Cie de chemin
de fer Canadien Pacifique v. Vincent, [2002] J.Q. no 195 (C.A.), at
paragraph 8; Nutribec ltée v. Québec (Commission de la santé et de la
sécurité du travail), [2002] R.J.Q. 2593, [2002] J.Q. no 4577 (C.A.), at
paragraph 6).
[46]
However, the documentary evidence on file
confirmed the following facts: the applicant had been away from work since September 3,
2003, and his return to work was not anticipated in the foreseeable future. His
attending physician had issued a final report dated February 5, 2007, stating
on that date that his injury entailed a permanent impairment and functional
limitations that would not allow him to return to work.
[47]
On June 11, 2008, the CSST had decided that
the applicant could not return to work for the employer and had examined the
possibility of his taking up other employment, elsewhere on the labour market.
Dr. Louis Côté, whose services had been retained by the Union, had found that
the applicant was permanently impaired and incapable of returning to work for
the employer.
[48]
The two legal opinions obtained by the Union
before deciding not to file a grievance are supported by this factual
framework. It cannot be argued, as the applicant is attempting to do, that the
Union took its duty lightly, without considering his situation.
[49]
At the hearing, in response to a question from the
bench, counsel for the applicant explained that her client saw his dismissal as
an extension of the employer’s harassment of him. Should not, as the applicant
wished it, a grievance have been filed in that regard in the hope of obtaining
additional damages?
[50]
With respect, I do not think so. Just because
the applicant saw his case through the lens of harassment does not necessarily
mean that the Union had to follow suit. The Union had to assess Mr. Dumont’s
request in light of all the facts on file, and there is no evidence to suggest
that this is not what it did. As one can read in the Board’s decision, the
Board must not review the merit of the Union’s decision, only the process by
which that decision was reached (Board’s reasons, at page 9).
[51]
It is trite law that the right to take a
grievance to arbitration is reserved to the union and that the employee does
not have an absolute right to arbitration, the union enjoying considerable
discretion (Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R.
509, at paragraph 38).
[52]
The applicant clearly disagrees with the Union’s
decision. I agree with the following statement of a panel of the Canada
Industrial Relations Board:
It is not because a member is disgruntled over the results of the
union’s inquiries or the fact that its findings agree with those of the
employer that the union has breached its duty of fair representation. The Board’s
analysis is limited to the union’s conduct in reaching a decision. Thus, the
complainant must be able to demonstrate persuasively that the union acted in a
manner that was arbitrary, discriminatory or in bad faith. In the absence of
severe negligence, the Board will not intervene in the union-member
relationship. (Misiura (Re), [2000] CIRB Decision No. 63, at
paragraph 20).
[53]
In the present case, the Board found that the
applicant had not demonstrated this. Following a thorough analysis of this
file, I find no error in the Board’s conclusion. I therefore would also dismiss
this ground of attack.
(6) The Board’s decision was not made on erroneous findings
of fact
[54]
Having reached that conclusion, I do not deem it
useful to comment at length on the applicant’s argument that the Board reached
its decision on the basis of erroneous findings of fact.
[55]
I will confine myself to stating that the evidence
on file provided ample support for the Board’s conclusion. The evidence was
contradictory on some issues. It was the Board’s role to assess that evidence
and to afford it the appropriate weight in light of the evidence as a whole. The
Board did not need to mention every piece of evidence it admitted when making
its findings.
Conclusion
[56]
I am certainly not without sympathy for the applicant
and the difficult events he has experienced, but it is my view that the Board’s
decision has the qualities that make a decision reasonable, referring both to
the process of articulating the reasons and to outcomes (Dunsmuir, at
paragraph 47).
[57]
Accordingly, I would dismiss the application for
judicial review with costs.
“Johanne Trudel”
“I concur.
Gilles Létourneau
J.A.”
“I concur.
Robert M.
Mainville J.A.”
Certified true
translation
Johanna Kratz,
Translator
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