Date: 20001103
Docket: A-15-00
A-290-00
CORAM: ROTHSTEIN, J.A.,
SEXTON, J.A.,
EVANS, J.A.
BETWEEN:
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION,
SHIP AND DOCK FOREMEN, LOCAL 514
Applicant
- and -
EMPIRE INTERNATIONAL STEVEDORES LTD.;
and WILLIAM HARRIS
Respondents
REASONS FOR JUDGMENT
(Delivered Orally from the Bench at Vancouver,
British Columbia, on November 1, 2000)
EVANS, J.A.
[1] This is an application for judicial review in which the union seeks to have set aside a decision of the Canada Industrial Relations Board, dated December 17, 1999, and a reconsideration of that decision by the Board, dated April 3, 2000. The Board found that the union had breached its statutory duty under section 37 of the Canada Labour Code, R.S.C. 1985, c. L-1, not to "act in a manner that is arbitrary, discriminatory or in bad faith in the representation" of its member, Mr. William Harris, the respondent.
[2] Mr. Harris had complained to the Board that the union had arbitrarily refused to process a grievance that he had been unfairly dismissed by his employer when he was medically disabled from performing any employment duties.
[3] The issue in this case is whether the Board was patently unreasonable in concluding that the union had breached its duty to conduct a thorough investigation of Mr. Harris's claim when it failed to make further enquiries of two doctors who had submitted letters stating, in November 1997 and January 1998, that Mr. Harris was unable to work because of the osteoarthritic condition of an ankle. In order to establish that the union's process was arbitrary, and hence in breach of section 37, a member must satisfy the Board that the union's investigation into the grievance was no more than cursory or perfunctory.
[4] This Court affords very considerable deference to decisions of specialized administrative tribunals, especially those, like the Board, that are protected by a strong statutory privative clause. However, it is our opinion that the Board committed reviewable error when it concluded that the duty of fair representation required the union to make further enquiries of the doctors before finally refusing to process Mr. Harris's grievance.
[5] In our view, the evidence before the union that the grievance was unlikely to succeed was so powerful that, in all the circumstances, it was patently unreasonable to require the union to investigate further the two medical reports on which Mr. Harris principally relied.
[6] First, two other medical reports indicated that, while Mr. Harris undoubtably had a problem with his ankle, it was not so serious as to prevent him from working altogether. Indeed, the employer had agreed to provide Mr. Harris with "light duties" so as to accommodate his medical difficulty. However, Mr. Harris decided not to return from Vancouver, where he had worked during the summer, to Prince Rupert to see whether he was able to perform the work offered by his employer.
[7] Second, the medical reports all relied to a considerable extent on what Mr. Harris had told the doctors about the pain that he was experiencing. For reasons set out below, the union had cause to believe that Mr. Harris might not have been telling the doctors the truth.
[8] Third, while Mr. Harris was visiting doctors and starting to solicit medical reports, he was also actively seeking employment in Vancouver, with the assistance of the union. He did not at this time indicate to the union that he was unable to work for medical reasons.
[9] Fourth, and most important, the Board found that Mr. Harris had told union officials that, having moved his family to the Lower Mainland of British Columbia while he was temporarily employed in Vancouver during the cruise ship season, he did not intend to return to Prince Rupert, where he had been employed for several years prior to his temporary relocation to Vancouver. The Board did not go on to consider whether Mr. Harris's apparent intention not to return to Prince Rupert was in itself sufficient to justify the union in deciding not to pursue the grievance, since it was bound to be unsuccessful if it could be shown that Mr. Harris had failed to report for work in Prince Rupert because he wanted to remain in Vancouver.
[10] Fifth, Mr. Harris had been denied disability benefits under an employer-union benefits plan to which he had applied, and a claim to the Workers' Compensation Board was rejected because his condition was unrelated to work.
[11] Sixth, the union obtained an opinion from its counsel, based on all the documents in its possession, that a grievance on behalf of Mr. Harris was unlikely to succeed, a prediction that turned out to be true.
[12] Seventh, having lost confidence in the union, Mr. Harris was represented by his own lawyer in attempting to persuade the union to process his grievance. In these circumstances, it was reasonable for the union to take the position that, if there was any more information available to indicate that Mr. Harris was totally disabled from work, the lawyer would ensure that it was in the union's possession.
[13] In these circumstances, it was patently unreasonable for the Board to require the union to conduct further investigation by making enquiries about the basis of the reports of the two doctors who had stated that Mr. Harris was unable to work. Hence, it was not open to the Board to conclude that the union had breached section 37 of the Canada Labour Code by acting towards Mr. Harris in an arbitrary manner.
[14] For these reasons, which apply to files A-15-00 and A-290-00, the application for judicial review is allowed and the decision of the Board, and its reconsideration, set aside. The matter is not remitted to the Board, because, in a decision dated October 12, 2000, an arbitrator has recently dismissed the respondent's grievance. The union shall have its costs of this application.
(Sgd.) "John M. Evans"
J.A.
November 3, 2000
Vancouver, British Columbia
Date: 20001103
Docket: A-15-00
A-290-00
CORAM: ROTHSTEIN, J.A.,
SEXTON, J.A.,
EVANS, J.A.
BETWEEN:
INTERNATIONAL LONGSHORE AND WAREHOUSE UNION,
SHIP AND DOCK FOREMEN, LOCAL 514
Applicant
- and -
EMPIRE INTERNATIONAL STEVEDORES LTD.;
and WILLIAM HARRIS
Respondents
Heard at Vancouver, British Columbia on November 1, 2000
JUDGMENT delivered Orally from the Bench at Vancouver, British Columbia on November 1, 2000 with Reasons for Judgment signed on November 3, 2000
REASONS FOR JUDGMENT BY: EVANS, J.A.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
A-290-00
| STYLE OF CAUSE: International Longshore and Warehouse Union, |
Ship and Dock Foremen, Local 514
v.
Empire International Stevedores Ltd et al
| PLACE OF HEARING: Vancouver, British Columbia |
| DATE OF HEARING: November 1, 2000 |
REASONS FOR JUDGMENT BY EVANS, J.A.
| CONCURRED IN BY: Rothstein, J.A., |
Sexton, J.A.
APPEARANCES:
| Mr. Derek R. Corrigan For the Applicant |
| Mr. Ib S. Petersen For the Respondent, William Harris |
SOLICITORS OF RECORD:
Lindsay Kenney
Barristers and Solicitors
| Vancouver, BC For the Applicant |
Ib S. Petersen
Barrister and Solicitor
| Vancouver, BC For the Respondent, William Harris |
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