Chandra v. Civic Service Union 52, 2011 ABQB 345

Court of Queen ’ s Bench of Alberta Citation: Chandra v. Civic Service Union 52, 2011 ABQB 345 Date: 20110524 Docket: 1003 11267 Registry: Edmonton Between: Ahilla Chandra Plaintiff - and - Civic Service Union 52 Defendant Corrected judgment: A corrigendum was issued on May 23, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of W. S.

Schlosser, Master in Chambers _______________________________________________________ [ 1 ] This is an application pursuant to Rule 3.68 to strike a claim. When the application came before me in regular chambers I stayed the action pending this decision.

[ 2 ] The Plaintiff claims (inter alia) that the Defendant Union breached the duty of fair representation codified in

Section 153 of the Labour Relations Code, RSA 2000 c. L-1 . The Plaintiff made a complaint to the Alberta Relations Board and when she did not agree with its decision she sought reconsideration. The Board issued a further written decision dated March 27, 2009. [ 3 ] A good

summary of the facts, (and the merits) are set out in the second decision: 5. The decision of the Kanee Panel of January 12, 2009 indicates that during the course of Ms. Chandra ’ s employment with the City of Edmonton there had been some instances of discipline being imposed in respect of which the Union disputed the actions of the City and the matters were resolved although not always on a basis with which Ms. Chandra agreed. In March and May, 2007 Ms. Chandra received suspensions of three and five days and on August 2007 her employment was terminated.

The Union had disputed these three incidents of discipline and eventually they were referred to a single arbitration hearing. After five days of arbitration hearing sin July 2008, with further hearings scheduled to continue in September and November 2008, the Union was able to convince the City to increase the amount of an earlier settlement offer. The Union obtained a legal opinion on the merits of continuing with the hearings in light of the evidence already presented and the newly enhanced settlement offer. In a lengthy opinion the lawyers concluded reinstatement was not likely and that, at best, Ms.

Chandra would receive damages that would be less than the amount of the settlement offer and so recommended the offer be accepted. 6. The Union passed the legal opinion on to Ms. Chandra and then met with her to discuss it. She expressed the desire to reject it and continue with the arbitration hearings. A few days later the Union wrote to her saying it considered the offer to be reasonable and decided to accept it and discontinue the hearings. After further correspondence passed between the Union and Ms. Chandra, the Union proceeded to accept the offer and cancelled the arbitration hearings.

Under these circumstances, the Kanee Panel was satisfied the Union did not breach its duty to represent Ms. Chandra nor did it act in a manner that was arbitrary, capricious, discriminatory or otherwise wrongful.

Rather, the Union thoroughly investigated and considered the merits of the case against her including the testimony already presented at the arbitration hearings, it kept her informed throughout, it negotiated an increase in the settlement offer, it obtained and carefully considered a legal opinion which it shared with her, and invited her to appeal the Union ’ s decision to accept the offer to an internal appeal body, 7. In her request for reconsideration, Ms.

Chandra states her grievances did not proceed all the way through the arbitration process outlined in the Collective Agreement because of the settlement which she did not consider to be fair. She says the Board ’ s decision is not satisfactory to her and the Board should have investigated her file and come to accept her suggestion that this was a harassment case and one of constructive dismissal. She also says she would have presented more evidence to the Board but that evidence was stolen. And, finally, she alleges the disciplines were not grieved on time. 8. There is nothing contained in Ms.

Chandra ’ s correspondence to the Board that supports the granting of a reconsideration of the Kanee Panel ’ s decision. The fact she does not consider the decision to be satisfactory is not sufficient. When the Board considers a duty of fair representation complaint it is concerned with whether the Union ’ s conduct in dealing with grievances of a member was carried out in good faith, done with integrity and competence, without serious negligence and without hostility towards the employee.

It does not sit in appeal on a Union ’ s decision to settle a grievance so long as the Union ’ s conclusion to settle was reasonable and considered one. This is exactly what the Kanee Panel did in this case in concluding the Union responsibly exercised its discretion to settle Ms. Chandra ’ s grievances and in accordance with the duty of fair representation it owed to her. The decision of the Panel in reaching that conclusion has not been shown by Ms.

Chandra to have been the result of any substantial errors of fact or errors of law and she has otherwise failed to establish any basis on which to reconsider the January 12, 2009 decision. [ 4 ] The Defendant referred to: Gendron v. Supply & Services Union of the Public Service Alliance of Canada, Local 50057

(1991) SCR 298; Pokonzie v. Canadian Union of Public Employees , 1999 ABCA 189 and Philip v. International Association of Bridge Structural, Ornamental and Reinforcing Ironworkers (Local 720 ), 2009 ABCA 400 . These decisions make it clear that where the essential character of the dispute is a matter that falls under the Labour Code, the dispute between the parties is barred from being heard by the courts. [ 5 ] In this case, the Labour Board heard and reconsidered the matter.

The Plaintiff ’ s only remedy was an application for judicial review within 30 days of the decision pursuant to Section 19(2) of the Labour Relations Code, RSA 2000, c. L-1 . Instead, she sued. [ 6 ] The decisions set out above and the privative effect of

Section 19 make the Plaintiff ’ s lawsuit impossible. The materials also show that the Plaintiff ’ s case is hopeless in point of fact. Allowing it to proceed will only expose the Plaintiff to costs which, I expect,

she can ill afford. Accordingly, the Defendant ’ s application is allowed and the Plaintiff ’ s lawsuit is struck. [ 7 ] The Defendant may prepare an Order for my approval and I direct that Rule 9.4(2)(

c) applies. Heard on the 10 th day of May, 2011. Dated at the City of Edmonton, Alberta this 24 th day of May, 2011. W. S. Schlosser M.C.C.Q.B.A. Appearances: Ahilla Chandra self represented Leanne Chahley Blair Chahley for the Defendant _______________________________________________________ Corrigendum of the Memorandum of Decision of W. S. Schlosser, Master in Chambers _______________________________________________________

In paragraph 8 of the Alberta Labour Relation Board ’ s second decision quoted in paragraph 3 of this Memorandum of Decision, third line from the bottom of that quote the name Mr. Chandra appears and is hereby amended to read Ms. Chandra.