Williams v. Telecommunications Workers Union, 2011 ABQB 314

Court of Queen ’ s Bench of Alberta Citation: Williams v. Telecommunications Workers Union, 2011 ABQB 314 Date: 20110511 Docket: 0803 00527 Registry: Edmonton Between: Mimi Williams Plaintiff - and - Telecommunications Workers Union and Telecommunications Workers Union Benevolent Society Defendants _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice Gerald A.

Verville _______________________________________________________ Introduction [ 1 ] Mimi Williams (the “plaintiff”) was a member of the Telecommunications Workers Union (the “TWU”) and Telecommunications Workers Union Benevolent Society and an employee of Telus Inc. (“Telus”) when she was elected at an annual convention of the TWU to serve a three year term in a full time position as business agent. Subsequent to the election, Telus terminated the plaintiff’s employment.

That dismissal was upheld by an arbitration award. [ 2 ] The plaintiff claims that she was dismissed without cause from her employment as bargaining agent with the TWU. In

addition to claiming salary and benefits, the plaintiff submits that the defendants acted in bad faith and that she is entitled to aggravated and punitive damages. [ 3 ] The defendants submit that as a result of the plaintiff’s dismissal by Telus, she could no longer serve out her term as business agent, under the terms of the TWU Constitution and bylaws, and accordingly the plaintiff has not suffered damages. Facts [ 4 ] The defendant Telecommunications Workers Union Benevolent Society is an incorporated society, and the TWU is an unincorporated association with the legal status of a trade union.

At all material times, the TWU was governed by a Constitution and bylaws and had written TWU policies. It was a bargaining agent that represented employees of Telus, including the plaintiff when she was employed by Telus. Portions of the TWU Constitution and Canada Labour Code , R.S.C. 1985, c. L-2 (“ Labour Code” ) are attached as Appendix A. [ 5 ] The plaintiff commenced employment with Telus in Edmonton on October 31, 2003 as a customer service representative.

She applied for membership in the TWU on December 19, 2003, and her application was approved on January 8, 2004. [ 6 ] On July 20, 2005, Telus purported to terminate her employment for cause. A grievance was initiated by the TWU which proceeded to an arbitration hearing. On March 3, 2006, the plaintiff was found to have been unjustly terminated and was ordered reinstated to her employment with Telus. Arbitrator Sims stated at page 31: The company’s particulars in respect of Ms. Williams include 9 specific items.

However, her case is unusual in that only the first of those items took place prior to her termination, which occurred on July 20, 2005. Both parties agree that, should I find cause for discipline in respect to item 1 then the remaining items are relevant to whether reinstatement is appropriate.

However, they also both agree that if I do not find cause for discipline in respect to item one, then the other issues are not relevant to and cannot themselves establish just cause. [ 7 ] At an annual TWU convention held between March 6 and 12, 2006, the plaintiff was nominated for, and elected by a vote of the delegates at the convention, to the office of business agent in Edmonton for a three year term.

This was a full time office, for which the TWU paid the plaintiff an annual salary and expenses. [ 8 ] At the time of her election to the office of business agent with the TWU in March 2006 the plaintiff was employed by Telus, and was a member in good standing of the TWU. Following her election as business agent at the March 2006 annual convention, Telus again terminated the plaintiff's employment. [ 9 ] Another grievance was initiated on the plaintiff's behalf by the TWU which proceeded to arbitration.

The arbitrator was informed by the TWU that the plaintiff was currently working in an elected union position which was dependent on her being a Telus employee. On October 12, 2006, the plaintiff's dismissal from her employment with Telus was upheld. Arbitrator Sims explained the two terminations stating at pages 1 & 2: ... In Ms. William’s case, the company particularized nine incidents said to provide just cause for termination. However, the decision to terminate her took place in the middle of the first incident.

While I heard evidence on all the incidents alleged, I ruled that at the time of that termination Telus lacked just cause for discipline, and so I set aside that termination. ... Once Telus received that award, it terminated Ms. Williams a second time, alleging as cause the post dismissal allegations that had not been available to prove cause in the first instance. Williams grieved, this time under the provisions of the new collective agreement by then in force.

The parties agreed that I should hear and decide the matter based on the evidence and argument I heard under the expedited process but with a further hearing for evidence and argument which was held in Vancouver on May 5, 2006. No additional evidence was put forward by either side, although some additional arguments were advanced. ...

[ 10 ] The arbitrator found that Telus had established just cause in respect to three of the remaining eight allegations put forward. [ 11 ] On October 17, 2006 a written legal opinion was obtained by the TWU and made available to the plaintiff, concerning the prospect of pursuing an application for judicial review to challenge the arbitration award of October 12, 2006 affecting the plaintiff's employment status with Telus.

Also on October 17, 2006 a written legal opinion was obtained by the plaintiff and made available to the TWU, concerning her ability to continue to hold the office of business agent with the TWU, notwithstanding the arbitration award of October 12, 2006 affecting her employment status with Telus. [ 12 ] During TWU executive council meetings held on October 18 and 19, 2006, a motion to pursue an application for judicial review to challenge the arbitration award of October 12, 2006 affecting the plaintiff's employment status with Telus was defeated.

Further, during these meetings the acting TWU President, Peter Massy, made an oral ruling that the plaintiff would cease to hold the office of business agent after November 30, 2006. The minutes of the meetings of executive council do not contain a record of the ruling. [ 13 ] On November 9, 2006 a written legal opinion was obtained by the TWU, and made available to the plaintiff, concerning her ability to continue to hold the office of business agent with the TWU. [ 14 ] In a letter to the plaintiff dated November 10, 2006, Mr.

Massy explained his reasons for his oral ruling that the plaintiff would cease to hold the office of business agent. The plaintiff was informed by Mr.

Massy that she could appeal his ruling at the next annual convention of the TWU to be held in March 2007, which she did. [ 15 ] During executive council meetings of the TWU held on November 15 and 16, 2006, a motion was carried which stayed the ruling of the acting president to remove the plaintiff from the office of business agent, pending the plaintiff’s appeal of the ruling at the next annual convention of the TWU in March 2007. [ 16 ] The plaintiff prepared a written presentation concerning her appeal of the ruling removing her from the office of business agent for distribution to delegates attending the TWU annual convention in March 2007.

An appeal by the plaintiff of the ruling was heard at the convention on March 5, 2007. The motion to overturn the ruling was defeated. [ 17 ] Later on March 6, 2007, a motion to amend the Constitution of the TWU was carried at the convention. The amendment was ratified and incorporated in the July 2007 constitution of the TWU:

Article XI 1...(

e) Only members of the union in good standing shall be eligible to vote or hold elective office. [ 18 ] The plaintiff's last day as business agent with the TWU was April 13, 2007. The TWU did not pay a salary to the plaintiff after that date. Witnesses The Plaintiff [ 19 ] The plaintiff testified that she was an active member of TWU local 207. In 2005, there was a bitter labour dispute between the TWU and Telus which led to a strike by the TWU on July 21, 2005. She was initially terminated by Telus one day before the strike for threatening a co-worker, but was reinstated as a result of the March 3, 2006 arbitration award.

[ 20 ] The plaintiff testified that despite being terminated by Telus she was active as a union member during the strike and at 6:00 a.m. on the first day of the strike had organized the picket line.

She stated that the TWU was disorganized during the strike and the members of the executive council were useless and incompetent and did not even show up at the picket line until 10:00 a.m.; she had much greater expertise. [ 21 ] The plaintiff testified that when she was elected business agent in March 2006, the TWU executive council consisted of the president, two vice-presidents, a secretary-treasurer and approximately ten to twelve business agents, including herself. [ 22 ] In addition to her salary she was given a vehicle, cell phone, laptop computer and credit card for fuel.

She stated that some time after her election she learned that business agents were treated differently with respect to benefits and RRSP contributions in the different jurisdictions where the TWU operated. She stated that it was subsequently agreed that she would receive these benefits. [ 23 ] The plaintiff confirmed that she was terminated a second time by Telus after her election as business agent based on what she called ridiculous allegations.

She stated that she was poorly represented by the TWU at the arbitration hearing; she had witnesses to corroborate her testimony and confirm her credibility but they were not called. The plaintiff agreed that TWU’s counsel told the arbitrator during the second arbitration that if the dismissal by Telus was upheld she would lose her job as business agent. [ 24 ] The plaintiff recalled that she was on her way to the body shop with her vehicle when she received a telephone call from Mr. Massey advising of the arbitration decision and that as a result she was no longer a business agent.

She stated that she was dumfounded. She described Mr. Massey as “giddy” when giving her the news. On cross-examination she admitted that there were three calls between herself and Mr. Massey, but resisted agreeing with the suggestion that her status as business agent was not discussed during the initial call, stating it may have been discussed during every conversation. [ 25 ] The plaintiff testified that Mr. Massey told her that she was not to come to the October executive counsel meetings in Burnaby because she was no longer a business agent.

However, on speaking with the secretary-treasurer, Jim Christensen, she was told to come and did attend the October meetings. [ 26 ] The plaintiff stated that she obtained a legal opinion while in British Columbia which stated that the TWU Constitution did not require her dismissal from office as a consequence of her dismissal from Telus. The opinion noted that while the president had the authority to interpret the Constitution, this fact does not entitle him to alter or amend it. [ 27 ] The plaintiff stated that she felt that Mr.

Massey was trying to remove her as this was part of the political climate at the time. The issue of whether she could continue as business agent was put over to the November meeting and ultimately to the March 2007 convention. [ 28 ] She stated that she had an acrimonious relationship with John Carpenter, the other vice-president who spoke against her at the November meeting and reacted angrily when it was determined she could appeal Mr. Massey’s decision to the convention. She stated that her relationship with Mr.

Carpenter had been strained from the outset, and that he laid a harassment complaint against her as evidenced by a letter dated August 4, 2006 from the TWU Human Rights Officer which stated, “This letter is to advise you that there has been a complaint lodged against you by John Carpenter for threats and intimidation” [ 29 ] The plaintiff stated that in preparing her appeal to the March 2007 convention she required the tape of the 2004 convention and that because of the delay in receiving same she could not meet the deadline for filing her appeal.

She stated that she did not know whether the delegates at the convention received her materials, and she recalled Jim Christensen making copies. [ 30 ] The plaintiff did not disagree on cross-examination with the suggestion that her appeal lasted thirty three minutes and sixteen seconds or that she spoke three times for a total of seven minutes and fifty-eight seconds. She asserted however that both Mr. Massey and Mr. Carpenter who spoke against her lied and misrepresented the facts to the convention.

[ 31 ] The plaintiff stated that she was emotionally crippled after losing the appeal at the convention and being terminated by the TWU. [ 32 ] The plaintiff confirmed that she self reported an alcohol addiction and gambling problem to the TWU in June of 2006 and the fact that she had misappropriated funds through the improper use of a credit card. She stated that she was told to get treatment. She confirmed that there were ongoing discussions about getting treatment (a six week program in Grande Prairie) throughout her tenure as business agent.

At one point a space was booked for her but she was not able to arrange babysitting as it was during the Christmas season of 2006. The plaintiff confirmed that after April 13, 2007, the TWU still offered to pay for the cost of the treatment program and for babysitting but advised that it would not pay her wages. She stated that without payment of wages she was unable to attend. Laurie Ruggles [ 33 ] Ms. Ruggles testified that she is presently on extended medical leave from Telus but was active in the TWU in 2006.

She testified that she agreed to act as shop steward or advocate for the plaintiff at the meetings in October. She stated that Mr. Massey’s ruling was ultimately suspended and that it was determined that the process was to bring the matter to convention. [ 34 ] Ms. Ruggles stated that there were a number of members of the TWU who disliked the plaintiff and that there were camps on very divisive issues. She described politics as being a blood sport in the union, stating that there were no wallflowers and that this included both herself and the plaintiff. Peter Massey [ 35 ] Mr.

Massey confirmed that he was the British Columbia TWU vice-president and at times the acting president. He stated that the executive council can override a decision of the president and that decisions of the executive council can be overturned at the annual convention. [ 36 ] Mr. Massey testified that he worked mostly in British Columbia and had not been involved in the arbitrations involving the plaintiff. The year 2006 was particularly tumultuous for the union with the members divided into camps.

He said he had disagreed with the way the TWU had purported to terminate the president Bruce Bell and that he was familiar with the decision of the British Columbia Supreme Court reinstating him. [ 37 ] Mr. Massey recalled that it was always understood that if the termination of the plaintiff by Telus was upheld, she could not continue as an elected business agent.

He specifically recalled this being discussed in the context of the plaintiff’s alcohol addiction and more particularly whether the TWU would pay for the treatment if the arbitrator upheld the termination. [ 38 ] He disagreed completely with the plaintiff’s assertion that he was giddy when he phoned her to advise of the arbitration award. He stated that he advised the plaintiff that he would send her a copy of the award and later phoned to see if she had received it. As she had not, he phoned her a third time and during this conversation told her not to come to Burnaby as she was no longer a business agent.

He stated that he subsequently spoke with Jim Christensen who informed him that he had told the plaintiff to come to Burnaby. [ 39 ] Mr. Massey testified that he then asked the TWU’s lawyer to consider whether there could be a successful judicial review. He recalled that the plaintiff indicated she would get a legal opinion and mentioned the possibility of legal action. He received an opinion from the TWU’s labour lawyer which indicated that the likelihood of success on a judicial review application was minimal to non- existent. [ 40 ] Mr.

Massey stated that as acting president it was his opinion that the plaintiff could not continue to serve as business agent once she was terminated by Telus. However he felt it was in the best interests of the TWU to have the plaintiff’s appeal heard at the convention and prudent to keep her on staff until it was dealt with there. He was provided with a copy of the legal opinion obtained by the plaintiff and requested a second opinion. The legal opinion dated November 9, 2006 concluded, “The difficulty with this issue is that there is no clear answer”.

By letter dated November 10, 2006, he provided the plaintiff with the reasons for his ruling that the plaintiff could no longer hold office.

[ 41 ] Mr. Massey confirmed that he spoke against the plaintiff’s appeal at the convention. He denied lying or making misrepresentations to the delegates. George Doubt [ 42 ] Mr. Doubt confirmed that he was elected president of the TWU at the 2007 convention. He stated that he was new and that there was a new secretary treasurer. He stated that with respect to RRSPs and benefits there was confusion from previous years and an attempt to treat everyone fairly. He stated that as the plaintiff had been an occasional worker for Telus she was not a member of what had been the Telus plan in Alberta.

He recalled that a decision was made in 2007 to contribute 10% to an RRSP. [ 43 ] He testified that there was some discussion initiated by the plaintiff about working in a paid position with the TWU but that the union was not in a position to hire additional staff as the budget would not allow it. [ 44 ] With respect to treatment for her alcohol problem, Mr. Doubt stated that the TWU was prepared to pay for the treatment and child care if she chose to go, but could not pay wages once she was out of office. He stated that if she had taken the treatment before April 13, 2007, her wages would have been paid.

Jim Christensen [ 45 ] Jim Christensen was the secretary-treasurer of the TWU in 2006 and until April 2007 when he retired. He stated that he and another member of the TWU had a discussion with the plaintiff about her misuse of the credit card and her alcohol problems. He recalled that the plaintiff offered her resignation but that he simply told her to get help. Mr. Christensen stated that he had dealt with a number of people with alcohol and drug problems, and this was not the first time there had been inappropriate use of a credit card. He stated he did not operate on the basis of “one strike and you’re out”.

He recalled that the plaintiff acknowledged her problems and in his mind this was a positive first step. [ 46 ] Mr. Christensen stated that alcoholism was considered an illness and that the TWU was prepared to pay for her treatment, child care and wages during treatment. [ 47 ] He did not recall discussing with the plaintiff whether she could continue as a business agent if the arbitrator upheld the termination by Telus. He stated however that it was his understanding that the plaintiff could not be a business agent if terminated. [ 48 ] Mr.

Christensen was about to be tried for dereliction of duty at the time of the arbitration award. He stated that there was an eight day trial in October of 2006 which resulted in all the charges being dismissed. [ 49 ] He confirmed that he told the plaintiff that she should come to Burnaby in October. He voted in favour of judicial review of the arbitrator’s decision at the October meeting and understood that the issue of whether the plaintiff could continue as business agent was ultimately extended to the March 2007 convention. [ 50 ] With respect to RRSP contributions, Mr.

Christensen indicated that the situation was somewhat disorganized as the TWU office was understaffed and approximately twenty million dollars in the hole as a result of the Telus strike. He stated that on the last day he wired $2,500.00 of his personal money which was the most he could send electronically to the plaintiff for her RRSP. [ 51 ] He recalled sending the plaintiff a copy of the tapes of the 2004 convention she had requested in order to prepare her appeal. Mr. Christensen confirmed that it was his understanding that the plaintiff’s appeal was sent by email to the delegates but specifically

recalled 150 hard copies were made for the 102 delegates and additional guests. John Carpenter [52] Mr. Carpenter is a vice-president of the TWU situated in Calgary and was initially elected in 2006. He also testified that 2006was a tumultuous time for the TWU with lots going on in and out of court. He stated that within months of his election he was throwninto the acting president’s position which was very stressful. [53] He testified that he initially had little interaction with the plaintiff but stated he later found her difficult to work with, that shetalked behind his back and was negative.

He testified that he could not recall laying a harassment complaint against the plaintiff butacknowledged same when shown a letter dated August 4, 2006 from the TWU Human Rights Officer to the plaintiff which stated, “Thisletter is to advise you that there has been a complaint lodged against you by John Carpenter for threats and intimidation”. He could notrecall what happened with the complaint. [54] Mr. Carpenter testified that although he was not a supporter of president Bell, he believed he deserved a fair trial.

He statedthat it was his view that the plaintiff had a closed mind and should have recused herself from participating in that trial. [55] Mr. Carpenter confirmed that he spoke against the plaintiff continuing as a business agent at the convention. He said that healso attempted to relate factually what had transpired at the 2004 convention which involved an alternate business agent. [56] He was supportive of the plaintiff getting treatment for her addictions.

He recalled phoning her in November of 2006 when abed was available, but that the plaintiff informed him of babysitting problems and stated that she was going to alcoholics anonymous andgetting treatment. Issues [57] The issues are as follows: 1. Did the TWU wrongfully dismiss the plaintiff after she was terminated by Telus? 2. If it did, is the plaintiff entitled to salary and benefits to the end of her elected term and in what amounts? If wrongfullydismissed, is the plaintiff entitled to aggravated and punitive damages? 1. Did the TWU wrongfully dismiss the plaintiff after she was terminated by Telus?

Positions of the Parties [58] The plaintiff cites authorities including: Berry v. Pulley, 2002 SCC 40, [2002] 2 S.C.R. 493, Boe v. Hamilton, [1990] B.C.J.No. 330, 90 CLLC 12268; Bell (President, Telecommunications Workers Union) v. Stang, 2006 BCSC 998, TelecommunicationsWorkers Union Local 202 v. MacMillan, 2008 ABPC 38, aff’d 2008 ABQB 657, leave denied [2008] S.C.C.A No. 548, Abbott v.Longshoremen’s Protective Union, Local 1953 (1977), 18 Nfld. & P.E.I.R. 335, [1977] N.J. No. 109 (S.C.T.D.). [59] The TWU cites: Berry v. Pulley, Bradburn v.

Wentworth Arms Hotel, (SCC), [1979] 1 S.C.R. 846, CatreIndustries Ltd. v. Alberta (1989), 1989 ABCA 243 , 63 D.L.R. (4th) 74, 99 A.R. 321 (C.A.), leave denied [1989] S.C.C.A. No.447, Lauren International, Inc. v. Reichert, 2008 ONCA 382, Inland Cement Industries v. C.L.G. W, Local 359 (1981), 1981 ABCA

7 , 27 A.R. 135 (C.A.), Erehwon Exploration Ltd v. Northstar Energy Corp. (1993), (AB KB), 147 A.R. 1,[1993] A.J. No. 916 (Q.B.), Re International Association of Machinists, Local 1740, and John Bertram & Sons Co. Ltd. (1967), (ON LA), 18 L.A.C. 362, [1967] O.L.A.A. No. 2, Alberta Teachers Association and Province of Alberta - Arbitrator,Andy Sims, Arbitration Award February 2, 2010. [60] The parties agree that this issue turns on contractual

interpretation, the contract being the TWU Constitution. The partiesfurther agree that parol evidence, even if admissible, is of no assistance with respect to contractual

interpretation in this case. [61] The plaintiff submits that she remained eligible to be a member in good standing of the TWU pursuant to

Article V,

Section 1of the TWU Constitution after she was terminated by Telus because as a full-time salaried dues paying officer of the TWU she was still a“worker in the communications or related fields”. In the alternative, the plaintiff argues that the TWU Constitution did not require thatshe remain a member of the TWU to continue to hold the office of business agent once elected. The plaintiff submits that the TWUConstitution provisions should be strictly construed, and additional terms should be implied with caution and only when strictlynecessary. The TWU Constitution is a contract of adhesion.

Provisions in a union constitution providing for expulsion of members orremoval from office should be strictly construed. Under the TWU Constitution, there are only two ways to remove an elected officerbefore the end of the officer’s term: recall under

Article XII or charges under

Article XVIII. [62] The TWU submits that the relationship between a union member and the TWU is governed by the TWU Constitution and therelevant labour law principles. The TWU argues that the contract must be interpreted within its factual matrix, and in a fashion consistentwith the philosophy of the Labour Code, unless there are clear provisions stating otherwise. [63] The TWU argues that the union is an organization of employees, and therefore it is logical for the constitution of such anorganization of employees to provide that it will be governed by such employees.

To be elected to be a business agent on the executivecouncil, a person must be both an employee in the bargaining unit and a member of TWU. The executive council is the directing mind ofthe trade union (subject to the convention which consists of delegated members) and as such, it consists of employees represented by thetrade union and selected by such employees. TWU business agents are not employees but rather members elected to the executivecouncil.

It must be concluded that in order to continue to be a business agent, a person has to continue to be both an employee in abargaining unit and a member of the trade union. It would be absurd to construe the TWU Constitution as meaning that a person who isno longer a member of the TWU or an employee represented by TWU could continue to be on the executive council as part of thedirecting mind of the union. Analysis [64] I will deal first with the suggestion (although not strenuously asserted by the TWU) that TWU business agents are notemployees but rather members elected to the executive council.

Whereas an office holder at pleasure can be dismissed without a hearingand without cause and has no recourse, an employee may only be dismissed for just cause. However, the fact that the plaintiff held anelected office does not preclude a finding that she was an employee: Ferguson v. British Columbia Nurses' Union, 2005 BCSC 982, 42C.C.E.L. (3d) 63; Hokanson v. Sheet Metal Workers International Assn., Local 280 (1985), (BC SC), 12 C.C.E.L.231, [1985] B.C.J. No. 550 (S.C.).

In those cases, the courts held that the determining factor is the degree of control over the electedmember. [65] The plaintiff in the present case was elected (and so “selected”) to her position by the membership, and the TWU Constitutionprovided that persons were so elected to the position for a fixed term. She was paid on a full time basis by the union. She receivedbenefits. She was placed in a hierarchy where she was subject to direction from the president as to her function (Article IX,

Section 4(a)).The contract of employment was unwritten, but its terms could be construed from the TWU Constitution. [66] I find that the plaintiff was an employee and that her employment with the TWU was governed by the terms of the TWUConstitution. [67] Part of the backdrop to that employment relationship is the fact that the plaintiff was also in a relationship “in the nature of acontract” with the TWU while she was a member of the union. In Berry at paras. 46 to 51, the Supreme Court held that legislatures haveintended to bestow on trade unions the legal status to sue and be sued. In order for trade unions to fulfill their labour relations functions,

it is essential that they control and regulate their internal affairs. Regulation of union membership is a fundamental part of the role oftrade unions. When a member joins a union, a relationship in the nature of a contract arises between the member and the trade union as alegal entity. By the act of membership, both the union and the member agree to be bound by the terms of the union constitution. Theterms of the contractual relationship are determined by the statutory regime affecting unions generally as well as labour law principlesdeveloped in the common law.

The contract is essentially an adhesion contract as, practically speaking, the applicant has no bargainingpower with the union. In many situations, union membership is a prerequisite to employment, leaving the individual with little choice butto accept the contract and its terms. The statutory labour relations scheme is superimposed over the contract between the member and theunion, and can create legal obligations. Consequently, the contract must be viewed in this overall statutory context. [68]

Interpretation of a union constitution may be likened to the

interpretation according to labour law principles of a collectiveagreement. In Bradburn, Estey J. at pp. 9 to 12 considered the manner in which a collective agreement should be interpreted. He heldthat a court should not be quick to place a meaning on a term of a collective agreement which would put that clause in conflict with thegeneral philosophy of labour relations as established under the applicable statute. Such should be the case only where the contract by itsclearest intent and provisions dictates otherwise.

The conflicting interests must be weighed realistically and fairly, having regard to thesocial policy behind the relevant labour relations statute. [69] General contractual principles of

interpretation are also relevant. In Lauren, the Ontario Court of Appeal at para. 16 held thata commercial contract is to be interpreted: as a whole, in a manner that gives meaning to all of its terms and avoids an

interpretation thatwould render one or more of its terms ineffective; by determining the intention of the parties in accordance with the language they haveused in the written document; with regard to objective evidence of the factual matrix underlying the negotiation of the contract, butwithout reference to the subjective intention of the parties; and where there is any ambiguity, in a fashion that accords with soundcommercial principles and good business sense, and that avoid a commercial absurdity. [70] The Alberta Court of Appeal has considered implied terms, holding that there may be cases where obviously some term mustbe implied if the intention of the parties is not to be defeated, a term of which it can be predicted that “it goes without saying”, which isnecessary to give to the transaction such business efficacy as the parties must have intended.

This does not mean that the court canembark on a reconstruction of the agreement; the implication must arise inevitably to give effect to the intention of the parties. Thequestion of whether a term is to be logically implied from the express terms of the agreement is a matter of construing the intention ofthe parties.

Even where a term may not be logically implied from the words used, the law admits of implied terms which the partiesprobably had in mind but did not express; which the parties would probably have expressed if the question had been brought to theirattention, and which are implied by the court because of the court's view of fairness or policy or in consequence of rules of law. Thepower to imply terms is to be used cautiously. It is not permissible to imply a term into a contract if that implied term contradicts anexpress term of the contract: Catre at 8-9, Sullivan v.

Newsome (1987), 1987 ABCA 102 , 78 A.R. 297 at 303-04 (C.A.),Gainers Inc. v. Pocklington Financial Corp., 2000 ABCA 151 at para. 18, Motkoski Holdings Ltd. v. Yellowhead (County), 2010ABCA 72 at para. 118. [71] All of the above principles are helpful in interpreting the TWU Constitution in this case. [72] The Court must start with the proposition that a “trade union” is an organization of employees, the purposes of which includethe regulation of relations between employers and employees: s. 3, Labour Code.

Article IV of the TWU Constitution provides that theConvention is the highest governing authority of the TWU and the executive council exercises the authority of the Convention betweenconventions. The executive council is charged with carrying out the resolutions and instructions of the Convention and enforcing theprovisions of the TWU Constitution subject to the right of appeal to the Convention. The president, as the principal officer of the Union,has sole authority to interpret the TWU Constitution and to carry out the policies of the Union in accordance with the Constitution andthe mandates of the Convention, subject to the right of appeal to the Convention. [73]

Article V addresses union membership. Sections 10 and 11 thereof provide that a member of the union who leaves theemployment of a company certified with the union may remain as an associate member, however such associate members are not eligibleto hold any office nor are they entitled to any voting privileges. [74]

Article VII,

Section 7 provides that the Convention has the power to establish union policies, amend the TWU Constitutionsubject to membership ratification, and generally do all things necessary for the proper disposition of any business brought before it.Section 9(

b) provides that members of the executive council are not seated at the Convention as delegates. They have the right to speakon any issue but do not have the right to vote. [75] Under

Article VIII, the executive council consists of the president, vice-president(s), secretary-treasurer and all other elected

salaried officers. The president under

Article IX,

Section 1 is responsible for the selection, hiring or termination of all office staff and non-elected personnel of the union subject to executive council approval.

Section 4 provides that business agents are full-time officers of the union and are elected by Convention. They perform day to day servicing of the membership and such other duties as assigned by the president. [ 76 ]

Article XI,

Section 1(

b) and (

c) provide that the business agents are elected at the Convention by a secret ballot, and they hold office for three years unless removed or until their successor has been duly elected and installed. Only members in good standing of the union are eligible for election. The 2007 amendment adds that “only members of the union in good standing are eligible to vote or hold elective office”.

Article XII provides that all elected salaried officers are subject to recall. Under

Article XVIII, a member may be disciplined for violation of any of the provisions of the TWU Constitution or local bylaws, or for violation of the policies of the union, or for cause detrimental to the welfare of the union, among other things.

Section E further provides that a member of the executive council can be suspended if charged, or removed from office if found guilty. [ 77 ] The TWU Constitution includes the Constitution of the Telecommunications Workers Union Benevolent Society which manages monies collected as union dues. Under

Article 4, membership in the Society is limited to members in good standing of the union, and all union members in good standing are automatically members of the Society. Any member of the Society who ceases to be a member of the union for any reason is deemed to have resigned from the Society. The board of directors consists of the members of the executive council of the union:

Article 7.1. [ 78 ] Having considered the TWU Constitution in detail, I find for the following reasons that the contract governing the plaintiff’s employment as business agent is properly construed as requiring that business agents maintain the status of employee and union member during their tenure. [ 79 ] The plaintiff asserts that after her dismissal, she remained eligible to be a member in good standing of the TWU pursuant to

Article V,

Section 1, which provides that membership is open to “all workers in the communications or related fields”. This argument pertains not to the employment relationship, but to the relationship under the member/union contract referred to in Berry . The plaintiff’s union membership did not arise as a result of her election to position of business agent, rather her eligibility to stand for election was conditional on her union membership.

Article V,

Section 10 specifically contemplates the situation where a union member is laid off or “otherwise leaves the employment” of a Company certified with the TWU. Such a person may become an associate member. Therefore, under the plaintiff’s contract with the TWU regarding her union membership, she was arguably entitled to become an associate member.

As a business agent no longer employed by Telus, the plaintiff would no longer be in the employment of a “company certified with the TWU”. [ 80 ] The union is an organization of employees, and the Convention (the highest governing authority of the union) is a meeting of the union including governing bodies and delegates. Between conventions, the executive council exercises the authority of the Convention. Only members in good standing of the Union are eligible for election to council positions.

Members of the executive council are not seated at the Convention as delegates; they have the right to speak on any issue but do not have the right to vote. Therefore, the plaintiff’s change in status did not impact on her ability to vote. [ 81 ] However, those no longer in the employ of a company certified with the union may remain as associate members, and as such they are not eligible to vote nor to hold any office .

In my view, it would be absurd to interpret the TWU Constitution in such a way that associate union members become, through their change in employment status, ineligible to hold office while a former employee and non associate member can continue to hold office. [ 82 ] Business agents hold office for three years unless removed. The only explicit means of removal are through disciplinary proceedings or the recall process. The plaintiff argues these are the only avenues for removal. Again, the plaintiff’s

interpretation creates an absurdity: a person who is no longer in the employ of a company certified with the union, and takes the step as provided for in the TWU Constitution of becoming an associate member, is no longer eligible to hold office, but one who does not become an associate member remains eligible. [ 83 ] If the plaintiff’s

interpretation prevails, then status as an employee and union member is only relevant on the day of one’s election to office, and this would apply to all members of the executive council. It would be unreasonable to interpret the TWU Constitution as contemplating that the entire executive council could potentially have no continuing relevant employment or union membership, especially given the provisions regarding associate membership.

[ 84 ] Further, membership in the Telecommunications Workers Union Benevolent Society is limited to members in good standing of the TWU, and those persons are automatically members of the society. A member of the society who ceases to be a member of the TWU for any reason is deemed to have resigned from the society. The board of directors consists of the members of the executive council of the union. The intent appears to be that the membership of the executive council is the same as that of the board.

However, if non union members are eligible to hold office on the executive council, but not on the society’s board of directors, a situation could arise where few of the executive council are eligible for society board membership. [ 85 ] The plaintiff argued that expulsion of members or removal from office should be strictly construed. However, to my mind this is not a situation where expulsion or recall as contemplated by the above articles is the issue. Recall in the union context is essentially a popularity contest, and charges relate to specific offences.

What is in issue here is eligibility to continue to hold office. [ 86 ] The Court in Bell dealt with a situation where the union’s convention delegates decided to hold an immediate election for all executive council positions in response to the executive's refusal to respect a non-confidence motion. The Court noted the requirement for strict construction had been applied primarily in cases involving expulsion or suspension of union members.

It explained at para. 25 that the rationale for strict construction of provisions dealing with expulsion or suspension of members is the profound effect such action has on the rights of the individual. In addition to denying the member the ability to participate in the affairs of the union and in the collective bargaining process, expulsion or suspension from the union may affect a member's ability to continue in his or her employment. In the present case, the plaintiff’s ability to continue in her Telus employment was already decided.

Under the plaintiff’s contract with the TWU as a union member, her dismissal from Telus triggered the option for the plaintiff of either no union membership, or associate membership which precluded voting and holding office. [ 87 ] The Court in Bell at paras. 26 and 27 held that the right to hold union office has been treated as a matter of similar importance; all members of the union have a right to expect that its affairs will be governed by its constitution, not by arbitrary actions of either the executive or the convention.

The Court found no support in the constitution for immediate election following a non-confidence motion. [ 88 ] I am mindful that judges have no right to make contracts for the parties but rather that their province is to interpret them. In the circumstances of this case it is my view that the parties' intentions are clear. The heart of the question is whether the plaintiff who was no longer an employee represented by the TWU was eligible to continue to be on the executive council as part of the directing mind of the union.

It is my view that had the particular difficulty encountered here been foreseen, this would have been a clearly expressed term. A contrary finding would create an absurdity. [ 89 ] The 2007 amendment mirrors the provisions regarding associate members: only members of the union in good standing are eligible to vote or hold elective office. In my view, this amendment merely expressly declared what must be logically implied on a reading of the TWU Constitution as it existed prior to the amendment.

The clarification afforded by the 2007 amendment is consistent with the terms of the TWU Constitution as a whole. [ 90 ] The TWU Constitution specifies who has authority to interpret the contract (the president subject to appeal to the Convention). Arguably, such

interpretation should be attributed some weight by the Court in its own

interpretation. This matter came on before the Court as a wrongful dismissal claim and not as a judicial review of the exercise of powers by the governing officers of a private or public body. In Bell , Smith J. at paras. 31 and 32 rejected the union’s argument that the convention had the ultimate authority to interpret the constitution.

Although it provided that the president had sole authority to interpret it, subject to appeal to the convention, Smith J. noted that the constitution made the convention the union's highest governing body "subject to the restrictions imposed by this constitution." Smith J. determined that those words, and indeed the whole constitution, would be meaningless if the convention could simply declare that "the constitution means whatever we say it means," regardless of the clear language in the document.

As it turns out, it is unnecessary to pronounce definitively on this issue as I have reached the same conclusion as did the president and the Convention on appeal. [ 91 ] For the foregoing reasons, I find that the plaintiff was not wrongfully dismissed but rather that she became ineligible to continue to hold the office of business agent pursuant to the TWU Constitution when she was dismissed from her position with Telus. 2. Provisional Damages

[ 92 ] The plaintiff says that she is entitled to the salary and benefits she would have earned over the remaining fixed term of her elected office. Further the plaintiff asserts that the manner of her removal from office should be characterized as bad faith conduct which warrants awards of aggravated and punitive damages. [ 93 ] The TWU does not rely on the plaintiff’s credit card misuse or alcohol or gambling dependency as just cause for dismissal.

However, it says that the manner in which it dealt with these issues and the procedure it followed after the plaintiff’s termination by Telus demonstrate good faith on its part. As well, the TWU says that any damages should not be based on the remaining fixed term of the plaintiff’s elected office but rather to the date of the amendment. [ 94 ] The plaintiff's annual salary when she first became a business agent with the TWU in March, 2006 was $70,018.08. On October 1, 2006 her annual salary increased to $71,768.53 and this was the salary in effect on her last day as a business agent.

Effective October 1, 2007, the annual salary of a business agent was increased to $73,203.90 and on October 1, 2008 it was increased to $74,667.98. On January 1, 2009 the annual salary was increased to $76,161.34. [ 95 ] TWU union dues were deducted from the pay the plaintiff received from Telus and remitted to the TWU up to April 8, 2006.

TWU union dues were deducted from the pay the plaintiff received from the TWU and remitted to the TWU up to April 13, 2007. [ 96 ] Until September 30, 2007, the plaintiff participated in a group employment benefit plan provided by the TWU, for which the TWU made contributions of $165.62 per month.

The TWU did not provide group benefits or pay contributions after the above date. [ 97 ] Until April 13, 2007 the plaintiff participated in a retirement savings plan provided by the TWU, in the form of a Registered Retirement Savings Plan, into which the TWU provided contributions on the same basis as if they were made to the Telecommunications Workers Pension Plan. For 2006 and 2007, the TWU made contributions to the plaintiff's RRSP in the amount of $8,619.81, allocated as a contribution of $1,104.13 by the plaintiff and $7,515.68 by the TWU.

The TWU did not provide a retirement savings plan to the plaintiff after April 13, 2007. [ 98 ] Until April 13, 2007, the plaintiff was supplied with the use of a vehicle, a laptop computer and a cell phone by the TWU, which she was permitted to make personal use of, in addition to use for purposes of performing work for the TWU. The TWU did not provide the use of a vehicle, laptop computer or cell phone to the plaintiff after April 13, 2007.

Duration and Amount of Salary and Benefits [ 99 ] The TWU submits that even if the plaintiff was wrongfully dismissed any entitlement to salary or benefits should only run to July 2007 when the amendment which states “Only members of the union in good standing shall be eligible to vote or hold elective office” came into effect. The TWU cites no authority to support this proposition. To my mind this would be tantamount to rewriting the contract after the fact. If there were no proper grounds for dismissal at the time, then such action would have amounted to constructive dismissal.

In the event I am wrong in concluding that the plaintiff was not wrongfully dismissed, it is my view that the plaintiff is entitled to salary and benefits to the end of her elected term. [ 100 ] The parties agree that loss of salary over the balance of the term of office is $146,942.86 and that the value of the loss of personal use of car, laptop computer and cell phone is $31,758.65.

Further the parties agree that employment earnings of $25,491.23 by the plaintiff during the term should be deducted. [ 101 ] The TWU disputes the plaintiff’s claim for loss of group employee benefits from October 1, 2007 through April 13, 2009 (based on employer benefit plan contributions of $165.62 per month for 19 months) of $3,146.78 on two grounds namely that such amounts are only recoverable if incurred or paid and that in any event they were gratuitous in that there was no entitlement to the benefits. [ 102 ] While there has been some debate about whether damages should be allowed if the employee has suffered no loss, particularly

where insurance benefits are involved, the Court of Appeal in Rahmath v. Louisiana Land & Exploration Co. (1989), 1989 ABCA 100, 97 A.R. 246 (C.A.) found that the plaintiff was not required to prove a loss. At para. 5, the Court stated that the employee wasentitled to the "worth of the benefit which would otherwise have been provided." In Davidson v. Allelic Inc. (1991), (ON CA), 7 O.R. (3d) 581 (C.A.), the Ontario Court of Appeal followed the Alberta approach and awarded damages based on theamount of benefits the employer would have paid during the notice period.

I find that an actual loss does not have to be proved. [103] With respect to the second ground for opposing payment, the TWU points to its policies which sets out the salaries of officerssuch as the plaintiff and states “... fringe benefits gained by the Collective Agreement automatically apply to paid Officers.” The TWUsays that as the plaintiff only had temporary employee status with Telus she was never entitled to benefits.

While it is true that theplaintiff was not initially entitled to these benefits, it is apparent that sometime after being elected to her position of bargaining agentthese payments became part of the plaintiff’s employment package. Accordingly the plaintiff is entitled to $3,146.78 [104] The plaintiff also claims a loss of employer contributions to RRSP from April 13, 2007 through April 13, 2009 (based on 10%of salary) of $14, 694.29. The TWU opposes this payment on the basis of entitlement.

Again while it is clear that this was not part ofher employment package when elected it is equally clear that employer contributions later became a part of the employment package. Accordingly the plaintiff is entitled to $14, 694.29. Bad Faith, Aggravated and Punitive Damages [105] The plaintiff says that the TWU acted in bad faith and that accordingly she is entitled to aggravated and punitive damages. Theplaintiff seeks an additional award of $100,000.00 under one or both of these heads of damages. The TWU denies this assertion and saysthat at all material times it acted in good faith [106] In Huff v.

Price (1990), (BC CA), 51 B.C.L.R. (2d) 282, [1990] B.C.J. No. 2692 (C.A.) the Court explainedthat aggravated damages are an award, or an augmentation of an award, of compensatory damages for non-pecuniary losses. They aredesigned to compensate the plaintiff, and they are measured by the plaintiff's suffering. It is not the damages that are aggravated but theinjury; the damage award is for aggravation of the injury by the defendant's highhanded conduct.

Punitive damages are designed toimpose a punishment on the defendant and to set an example to others who might seek to act in a similar way; they are measured by thedegree of moral culpability of the defendant. [107] The TWU notes that the plaintiff did not adduce medical evidence in support of aggravated damages. [108] N. MacDonald in Extraordinary Damages in Canadian Employment Law (Toronto: Carswell, 2010) states at 63 and 64 : There was no specific statement in Honda that medical evidence was required in support of a plaintiff’s claim for moral damages.

Further, no statement within Honda required that a claim for mental distress be in some way independently verifiable, or supported byevidence of “visible and provable” harm. To request that this be done would be more in line with evidence required for the tort ofintentional infliction of mental suffering. ... Honda has therefore not made it more difficult for an employee to prove a claim for moral damages. Employees should not be requiredto provide independently verifiable evidence of mental distress to support such a claim.

Although documented medical evidence ofmental distress and discomfort will be useful to a trier of fact, the focus of the enquiry should remain on the employer’s actions, not themental state of the terminated employee. ... [109] I find that the lack of medical evidence is not determinative in this case. [110] Both parties referred to numerous cases regarding the factors giving rise to punitive and aggravated damages. Recently, ourCourt of Appeal succinctly summarized the applicable principles in Elgert v. Home Hardware Stores Limited, 2011 ABCA 112.

[ 111 ] In assessing whether such damages should be awarded, it is necessary to consider the actions of the TWU and the credibility of witnesses. [ 112 ] The plaintiff asserts that she was poorly represented at the arbitration hearing and denied due process after her termination from Telus was confirmed by the arbitration decision. She further asserts that Mr. Massey was “giddy” when he delivered the news of the arbitration decision, immediately advising her that she was no longer a business agent. The TWU ignored the judicial review option and at the March convention Mr. Massey and Mr.

Carpenter gave misleading evidence to the delegates concerning past practice. I would note that the plaintiff was argumentative and confrontational throughout most of her cross-examination. She had a precise memory when it suited her and almost no memory when it did not. [ 113 ] Mr. Massey testified that in October of 2006 when the arbitration decision was handed down, he hardly knew the plaintiff. He denied that he was “giddy” when informing the plaintiff of the arbitration decision.

He testified that he did not inform the plaintiff that she could no longer serve as business agent during the initial phone call when informing her of the decision, that he called back to see if she had the decision and did not tell her she was no longer a business agent until the third call. Further, he testified that the plaintiff’s ability to continue to serve as business agent was a live issue prior to the arbitration decision being handed down as it had been discussed in the context of whether the TWU would pay for the plaintiff’s alcohol addiction treatment if she was dismissed. This is in

part confirmed by the fact that the issue was raised before arbitrator Sims as a post-termination event. I found Mr. Massey to be a straightforward honest witness who answered questions succinctly and to the point. I accept his evidence in preference to that of the plaintiff. Finally, I reject the plaintiff’s assertion that he lied at the convention about past practice. While it is true that he spoke against the plaintiff at the convention, there is in my view nothing in the recorded statements to support the plaintiff’s assertion. [ 114 ] While it was apparent that Mr.

Christensen was at times a bit disorganized, it is equally apparent that he did everything he could to assist the plaintiff with respect to obtaining treatment for alcohol dependency and went out of his way by providing his own money for an RRSP contribution. Further, while he had an honestly held belief that the plaintiff could not continue to serve as business agent once terminated by Telus, I accept his evidence that 150 copies of materials which included the plaintiff’s appeal were made available for the 102 delegates attending the convention. I find that he was a credible witness. [ 115 ] Mr.

Carpenter confirmed that he did not get along with the plaintiff and explained why that was so. While it is clear that he did not like the plaintiff - which feeling was apparently mutual - I find he did nothing to interfere with the process set in place by the executive council.

Further, while he spoke against the plaintiff at the convention, there is in my view nothing in the recorded statements to support the plaintiff’s assertion that he lied at the convention. [ 116 ] With respect to the arbitration decision upholding the termination by Telus, the arbitrator in a very thorough and reasoned decision found just cause in respect to three of the allegations put forward. In each case he made negative findings with respect to the plaintiff’s credibility. The TWU nonetheless requested and received an opinion from an experienced labour lawyer in Vancouver on October 17, 2006.

The opinion carefully reviewed the law (pre- Dunsmuir ) . The opinion notes that the arbitrator made findings of fact and states that “there is little or no chance of these conclusions being overturned on judicial review.” [ 117 ] In this case, the acting president Mr. Massey interpreted the TWU Constitution which

interpretation was appealed to the Convention. His decision that the plaintiff could no longer serve as business agent made in October of 2006 did not take effect until April 13, 2007 and only after the plaintiff’s appeal had been heard. Further the TWU continued to pay the plaintiff’s group benefits until September 30, 2007. In the circumstances of this case, I find that the actions of the TWU did not constitute bad faith and do not warrant an award of aggravated or punitive damages.

Summary of Conclusions [ 118 ] I find that: 1. The plaintiff was not wrongfully dismissed. 2. If the plaintiff had been wrongfully dismissed, she would have been entitled to damages totalling $171,051.35 based on losses of

salary of $146,942.86, group employee benefits of $3,146.78, employer contributions to RRSP of $14, 694.29 and personal use of car, laptop computer and cell phone of $31,758.65 less employment earnings of $25,491.23. 3. If wrongfully dismissed, the plaintiff would not have been entitled to aggravated or punitive damages. Costs [ 119 ] If the parties are unable to agree on costs they may arrange a further hearing in that regard within 30 days of the date of this decision. Heard on the 28 th , 29 th , 30 th and 31 st days of March, 2011. Dated at the City of Edmonton, Alberta this 10 day of May, 2011. Gerald A.

Verville J.C.Q.B.A. Appearances: Craig W. Neuman, Q.C. Neuman Thompson for the plaintiff William J. Johnson, Q.C. McGown Johnson for the Defendants Appendix A Relevant Provisions of the TWU Constitution (October 2006)

ARTICLE IV

Authority and Structure 1. The Convention shall be the highest governing authority of the Union, subject to restrictions imposed by this Constitution. 2. The Executive Council shall exercise the Authority of the Convention between conventions. It shall take such action and render decisions necessary to carry out fully the resolutions and instructions of the Convention and to enforce the provisions of this Constitution subject to the right of appeal to the Convention. 3.

The President as the principal officer of the Union, shall have sole authority to interpret this Constitution and to carry out the policies of the Union in accordance with the Constitution and the mandates of the Convention subject to the right of appeal to the Convention.

ARTICLE V Membership 1. Membership in this Union shall be open to all workers in the communications or related fields except those excluded by legislation. ... 5. Former members who resigned from the Union under the Collective Agreement Maintenance of Membership Clause shall make ‘their applications for reinstatement through the Local Membership Committee to the Convention. The Convention shall then accept or reject the applications. ... 7. Upon application in writing, a member in good standing leaving the services of their employer shall receive a withdrawal card.

Should the holder of a withdrawal card later return to the jurisdiction of the Union they will not be required to pay the initiation fee but will be required to pay a reinstatement fee in the amount of $1.00. 8. Membership in the Union will automatically terminate when a member assumes any permanent position of employment which places them outside the jurisdiction of the Union. ... 10.

A member of the Union laid off or who otherwise leaves the employment of a Company certified with the Union may remain a member of the Union as an Associate Member by paying to the Secretary-Treasurer, on or before the 15 th of the month, the sum of one dollar ($1.00) to be deposited in the General Fund. 11. An Associate or Honorary Member shall be entitled to attend. Local Meetings. They shall have a voice but shall not be eligible to hold any office or be entitled to any voting privileges.

ARTICLE VII Conventions

7. Powers of Convention The Convention shall have the power to: ... (

b) Establish policies to be followed by the Union. (

c) Amend this Constitution subject to membership ratification. (

d) Do all things necessary for the proper disposition of any business brought before it. 9. Officers ... (

b) Members of the Executive Council shall not be seated at the Convention as Delegates. They shall have the right to speak on any issue but shall not have the right to vote. 10. Convention Rules ... (

d) Speeches shall be limited to three (3) minutes except in moving a motion when the member shall be allowed five (5) minutes. When making a report there shall be no time limit.

ARTICLE VIII Executive Council 1. The Executive Council of the Union shall consist of the following: (

a) President (

b) Vice President(s) (

c) Secretary-Treasurer (

d) All other elected salaried Officers

ARTICLE IX

Officers and Their Duties 1. President The president as the principal officer of the Union shall: ... (

e) Be responsible for the selection, hiring or termination of all office staff and non-elected personnel of the Union subject to Executive Council approval. ... (

h) Have sole authority to interpret this Constitution subject to appeal to the Convention. 2. Vice-President(s) (

a) The Vice-President(

s) shall be full-time officers of the Union and shall be elected by Convention, and shall perform the duties of the President in their absence and other T.W.U. duties as determined by the President. 4. Business Agents (

a) The Business Agents shall be full-time officers of the Union and shall be elected by Convention. They shall perform day to day servicing of the Membership and such other duties as assigned by the President. (

b) Should a vacancy occur in the office of Business Agent, an elected Alternate Business Agent shall serve until the next Convention, at which time a successor will be elected, In the case of a temporary absence, an elected Alternate Business Agent will be assigned to perform the duties of Business Agent. (

c) Receive an annual salary and expenses established for the office by Convention.

ARTICLE XI Election of Officers 1. Executive Council ... (

b) The Business Agents and Alternate Business Agents shall be elected at the Convention by a secret ballot. The shall hold office for a period of three (3) years unless removed or until their successor has been duly elected and installed.

(c) ... Only members in good standing of the Union will be eligible for elections. 2. Local Officers ... (

b) Only members of the Union in good standing shall be eligible to vote or hold elective office.

ARTICLE XII Recall 1. Any elected salaried Officer of the Union is subject to recall: (

a) By a resolution to the Convention passed by a Local at a General Meeting or (

b) By the written request of a majority of Convention Delegates for a Special Convention. or (

c) By a Special Convention called by a majority of the Executive Council. 2. A 66-2/3% vote of the Delegates present at a duly constituted Convention shall be required for recall.

ARTICLE XVIII Offences, Charges, Trials, Penalties and Appeals

SECTION A: Offences Any member may te disciplined for violation of any of the provisions of this Constitution or Local by-laws, or for violation of the policies of the Union, or for cause detrimental to the welfare of the Union, or for bringing charges under this

Article without reasonable grounds for believing such charges to be true, or for crossing or working behind any picket line without authorization from the Executive Council.

SECTION C: Penalties

1. Upon a verdict of guilty of any charge the Trial Board may impose a penalty of expulsion ...

SECTION E: Penalties In The Case Of Officers 1. Any Local Officer or member of the Executive Council charged with any violation under

Section A shall be tried as a member and tried in accordance with the provisions relating to trial procedure for members. If such an Officer is found guilty then the Executive Council may in their discretion upon receiving notice of the verdict in writing signed by the members of the Trial Board remove that person from office for the balance of the term of office without regard to any penalty imposed against them by the Trial Board. 2.

A Local Officer or a member of the Executive Council charged with an offence may be suspended from office by the Executive Council in their absolute discretion if the Local Executive refers the charge to the Trial Board for hearing and determination. SOCIETY ACT

SCHEDULE “A” TELECOMMUNICATIONS WORKERS UNION BENEVOLENT SOCIETY CONSTITUTION 4. MEMBERSHIP 4.1 Membership in the Society is limited to members in good standing of the Union. ... 4.3 Any member of the Society who ceases to be a member of the Union for any reason shall be deemed to have resigned from the Society. ... 4.6 Every person who after the incorporation of the Society becomes a member of the Union shall automatically be a member of the Society. 7.

BOARD OF DIRECTORS AND OFFICERS 7.1 The Board of Directors of the Society shall consist of persons who are for the time being members of the Executive Council of the Union. Provisions of the Canada Labour Code , R.S.C. 1985, c. L-2 referred to by Counsel s. 3 “bargaining agent” means (

a) a trade union that has been certified by the Board as the bargaining agent for the employees in a bargaining unit and the certification of which has not been revoked, or (

b) any other trade union that has entered into a collective agreement on behalf of the employees in a bargaining unit

(

i) the term of which has not expired, or (ii) in respect of which the trade union has, by notice given pursuant to subsection 49(1), required the employer to commence collective bargaining; “bargaining unit” means a unit (

a) determined by the Board to be appropriate for collective bargaining, or (

b) to which a collective agreement applies; “employee” means any person employed by an employer and includes a dependent contractor and a private constable, but does not include a person who performs management functions or is employed in a confidential capacity in matters relating to industrial relations; “trade union” means any organization of employees, or any branch or local thereof, the purposes of which include the regulation of relations between employers and employees.