Docket: A-115-17
Citation:
2017 FCA 233
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CORAM:
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DAWSON J.A.
NEAR J.A.
DE MONTIGNY J.A.
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BETWEEN:
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CANADIAN UNION
OF POSTAL WORKERS
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Applicant
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and
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CORRIE LANG
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Respondent
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REASONS
FOR JUDGMENT
DAWSON J.A.
[1]
The applicant Union seeks judicial review of the
decision of the Canada Industrial Relations Board that found the Union to have
violated its duty of fair representation, contrary to section 37 of the Canada
Labour Code, R.S.C., 1985, c. L-2 (2017 CIRB 848).
[2]
As a preliminary matter, I begin by confirming
that during the hearing the respondent withdrew its submission that the Union
was precluded from seeking judicial review because it did not seek what was
said to be an adequate, alternative remedy – reconsideration. In light of the
recent decision of this Court in Rogers Communications Canada Inc. v.
Maintenance and Service Employees’ Association, 2017 FCA 127, [2017] F.C.J.
No. 635, and the authorities discussed therein, this was a very reasonable
concession for the respondent to make on the facts of this case.
[3]
On this application, the Union concedes that the
Board identified the correct standard to be applied when considering the duty
of fair representation. This is the standard articulated by the Supreme Court
of Canada in Canadian Merchant Service Guild v. Gagnon et al., [1984] 1
S.C.R. 509, at page 527. The Union argues, however, that the Board failed to
apply the test. Rather, the Union asserts that the Board sat in appeal of the
Union’s actions and imposed a standard of virtual perfection; a standard the
Union says was divorced from the factual reality of the respondent’s grievance.
[4]
I agree that the respondent’s explanation for
her use of a stolen gift card could at least initially be viewed to be
implausible. However, the Board found that the Union fell short of its duty of
fair representation because of the process the Union followed in reaching its final
conclusion that the respondent’s explanation was implausible. The Board’s
conclusion was supported by a number of factual findings:
- The Union departed from its usual process to determine whether
a grievance should be submitted to arbitration. More particularly, the
following routine steps are generally taken: a local grievance hearing is
held between the local representative and the employer during which the
Local obtains the employer’s documents; the Local then assesses the
grievance and submits its file together with its opinion to the region;
the regional representative receives and considers the file and opinion,
gathers further information about the grievance, and decides whether to
recommend it to arbitration. The final decision as to whether the
grievance goes to arbitration is made by either the regional grievance
officer or the national office (reasons of the Board, paragraph 98).
- In the present case, there was no evidence that the Union
conducted a local grievance hearing, there was no evidence that either the
regional grievance representative or the regional grievance officer
received any notes or opinion from the Local shop steward. Rather, the
evidence disclosed that the Local’s only role was to assist the
complainant with filing her grievance and delivering a copy to the
employer (reasons of the Board, paragraph 101).
- The employer never responded to the grievance, which was said
by the Board to be unusual (reasons of the Board, paragraph 102).
- There was no evidence whether any local steward continued to
investigate following the filing of the grievance (reasons of the Board,
paragraph 102).
- There was no evidence that the respondent was asked to complete
a statement of fact for the purpose of the grievance. The regional
grievance officer’s evidence was imprecise as to what information he had
and what steps he took to investigate before or after the decision was
initially made in October 2014, not to refer the grievance to arbitration.
At that time the Union had not received the police reports, nor had Union
representatives spoken to a witness the respondent advised would
corroborate her explanation that she was given the stolen gift card
(reasons of the Board, paragraph 106).
- There was no evidence that the Union made a request for the
employer’s disclosure at any time, and no evidence that the Union
contacted the employer to obtain, or attempt to obtain, what information
the employer had in its investigation file to support the complainant’s
dismissal (reasons of the Board, paragraph 107).
- There was no evidence that the regional grievance officer
contacted the employer to discuss the grievance. Particularly after the
criminal charges against the respondent resulted in a not guilty verdict,
there was no evidence that the Union ensured that the employer was aware
of this, or that the Union discussed the impact, if any, the acquittal had
on the employer’s position regarding the grievance. This was viewed by the
Board to be significant, given that the employer had indicated that it was
relying on the criminal charges as the basis for the respondent’s
suspension (reasons of the Board, paragraph 111).
[5]
Based on these conclusions the Board found that
not only did the Union not follow its usual process in handling the grievance
but that “[t]his denied the union the benefit of having
the employer’s full disclosure, and the complainant’s full response to it,
prior to making its recommendation not to refer the grievance to arbitration”
(reasons of the Board, paragraph 107). Ultimately, the Board went on to
conclude that this level of investigation and effort to represent the
complainant in these circumstances fell below the acceptable standard required
of it and amounted to arbitrary conduct. Accordingly, the Board found the Union
breached its duty of fair representation (reasons of the Board, paragraph 136).
[6]
The substance of the Union’s position on this
application is that all of the relevant facts were known to the Union from the
outset, including the respondent’s explanation for how she came to possess the
stolen gift card. It submits that it was therefore unreasonable to expect the
Union to investigate further; it is unclear as to what additional information
could have possibly been obtained through further investigation.
[7]
In my view, this submission is answered by the
Board’s conclusions at paragraphs 124 and 131 of its reasons. There, the Board
observed that while the Union was entitled to assess the respondent’s
credibility in the course of its investigation and decision making process, the
Union did so without conducting a full investigation into the circumstances.
Instead, the Union made an initial assessment that the complainant was not
credible and failed to further investigate the facts or to follow-up with
witnesses. In the Board’s view, assessing credibility without a further and
full investigation of the circumstances in order to substantiate or confirm the
initial assessment was not sufficient. Deference is owed to the Board’s
expertise and to its fact-based conclusions.
[8]
Given the substantial deference owed to the
Board’s fact-based conclusions, despite Mr. Raven’s able submissions, I have
not been persuaded that the Board’s decision was unreasonable.
[9]
It follows that I would dismiss the application
for judicial review. In my view, this is a case where the parties should bear
their own costs so I would make no award of costs.
“Eleanor R. Dawson”
“I agree.
D.G. Near J.A.”
“I agree.
Yves de Montigny
J.A.”
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