Thompson v Alberta Labour Relations Board, 2017 ABQB 205

Court of Queen’s Bench of Alberta Citation: Thompson v Alberta Labour Relations Board, 2017 ABQB 205 Date: 20170327 Docket: 1503 18765 Registry: Edmonton Between: Derek Thompson Applicant - and - Alberta Labour Relations Board and Bruce Moffatt, Business Manager for the International Union of Operating Engineers Local No. 955 Respondents _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice J.M.

Ross _______________________________________________________ Introduction [ 1 ] This is an application under s 19 of the Labour Relations Code , RSA 2000, c L-1 [ Code ] for judicial review of a decision of the Alberta Labour Relations Board [Board] regarding a complaint brought by Mr. Derek Thompson [“Applicant” herein, or the “Complainant” before the Board] against the International Union of Operating Engineers, Local 955 [Union].

The Complainant alleged that the Union breached its duty of fair representation under s 153 of the Code in relation to its handling of a grievance regarding the termination of his employment by Procrane Inc [Employer]. [ 2 ] The Board reviewed the complaint and various responses to determine whether the complaint should be summarily dismissed, pursuant to section 16(4) (

e) of the Code , as without merit, or sent to hearing. In its decision dated November 25, 2015 [Board Decision], the Board concluded that the complaint should be dismissed as without merit.

Board Decision [ 3 ] The Board Decision sets out the background facts as follows (at paras 3 and 4): The Complainant was employed as a crane operator for the Employer. In 2014, the Complainant informed the Employer that maintenance was not being carried out according to the procedures set out in the operating manuals. He gave the Employer 30 days to get reports from manufacturers of the cranes to certify they were safe or in accordance with the manuals. When no report was received within the 30 days, he reported the Employer to Occupational Health and Safety (OH&

S) which was required to conduct an investigation. On December 12, 2014, the Complainant was either terminated or laid off (the Employer stated it was a layoff; the Complainant says he was terminated). The Complainant approached the Union for assistance, claiming that as a result of complaining to OH&S his employment was terminated. The Union filed a grievance. In an attempt to resolve the matter, meetings were held between the Union and Employer with the Complainant present.

The Union proposed a resolution that would involve changing the termination to a layoff, reissuing the ROE and having the Employer lift the ban on rehiring the Complainant. The Complainant was unsatisfied with that resolution. His grievance was further reviewed by a Union grievance panel. The members of the grievance review panel conducted a further investigation into the Complainant’s concern about the true motivation for the termination and concluded that, at the time of the Complainant’s termination, the Employer had not yet received notice of the Complainant’s OH&S complaint.

The Union declined to take the matter forward in light of that information and the resolve [sic] it had achieved with the Employer. [ 4 ] The Board Decision summarized the issues raised by the Complainant: 1. The Union relied on the management rights clause in the collective agreement in support of the grievance, and failed to refer to other relevant provisions of the collective agreement. 2. The meetings between the Union, the Employer and the Complainant did not comply with requirements under the collective agreement for a meeting of a Joint Grievance Panel. 3.

The Union’s failure to deal fairly with his grievance is demonstrated by his successful complaint to the Occupational Health and Safety Council [OH&S Award] in a matter involving the Applicant and the Employer. [ 5 ] A fourth issue arose when, during the course of the proceeding before the Board, the Complainant sought further production of documents from the Union, and the Board declined to order this. [ 6 ] The Board found no merit to any of the complaints. [ 7 ] The Board Decision commenced with a review of the law surrounding the duty of fair representation under s 153 of the Code .

The Board’s role “is to examine and decide whether the Union represented the employee fairly – that is without discrimination, arbitrariness, bad faith or serious negligence.” Key principles underlying the duty of fair representation include: • a Union need not take every grievance to arbitration, and is entitled to assess the merits of a grievance and the chances of success at arbitration; • the Union is entitled to make a wrong decision, as long as it fairly and reasonably investigates the grievance and comes to an informed decision; • a Union does not breach its duty of fair representation just because it reaches a conclusion with which the employee does not agree.

Issue #1: Clauses Referred to in the Grievance [ 8 ] The grievance stated: The Grievance is that Derek Thompson was unjustly terminated. The Articles of the Collective Agreement that have been violated are

Article 7:00 [sic] and any other Articles of the Collective Agreement that may have a bearing in the matter. [ 9 ]

Article 7.00 is headed “management rights.” It provides that the Employer may “discharge any employee for cause.” The Applicant claimed that this clause provided a defence to the Employer, and so could not form the basis of his grievance against the Employer. [ 10 ] The Board Decision explained that the clause contained not only management rights, but also implicit limitations on management rights. It was relevant to the grievance because the allegation was that the Applicant had been dismissed without cause. [ 11 ] The grievance did not refer to Articles 8.01 or 2.04 of the collective agreement, which the Complainant argued were relevant.

Article 8.01 provides that the agreement shall comply with regulations of the Occupational Health and Safety Act , RSA 2000, c O-2 [ OHSA ], and refusals to work in contravention of the OHSA do not violate the agreement.

Article 2.04 provides that, if the agreement is in conflict with the laws of Canada or Alberta, it is superseded by those laws. [ 12 ] The Board held that neither of these clauses was implicated in the grievance. The Complainant had not refused to work. There was nothing in the agreement that was alleged to contravene the OHSA . The form of the grievance was appropriate.

Issue #2: The Meetings [ 13 ] The Board Decision notes that the Applicant took issue with both a January 2015 meeting involving the Union, the Employer and the Complainant, and a February 2015 meeting involving the Union and the Complainant. [ 14 ] The Board held that the January meeting was not intended to constitute a formal Joint Grievance Review Panel and the provisions of the collective agreement did not apply.

It was an informal discussion of issues between the parties seeking potential resolution, which did not breach the duty of fair representation. [ 15 ] The Board held that the February meeting was an internal grievance review mechanism provided by the Union. As an internal union process, it does not need to be mentioned in the collective agreement. Engaging in such a review does not amount to a breach of the duty of fairness. Issue #3: The OH&S Award [ 16 ] The Board noted that the Complainant’s successful OH&S Award (which has now been set aside on appeal) did not alter its conclusions.

An OH&S complaint is different from a grievance under a collective agreement. Success in that venue does not mean the Union’s handling of the grievance was improper.

Issue #4: Request for Production of Documents [ 17 ] The Board denied the Complainant’s request for further production of documents from the Union on the ground that the Board does not order production unless there is a complaint showing an arguable case, and the Applicant had failed at this preliminary stage. “The Board’s production processes are not intended to allow parties to engage in fishing expeditions in search of potential breaches.” [ 18 ] The Board Decision concludes that there was no arguable basis to conclude that the Union had breached the duty of fair representation, and summarily dismissed the complaint under s. 16(4) (

e) of the Code . Issues on the Judicial Review Application [ 19 ] The Applicant submits that the Board Decision with respect to each of the four issues before it failed to meet the standard of reasonableness. Statutory Provisions [ 20 ] The relevant provisions of the Code reads: 12

(1) Notwithstanding anything in this Act, the powers and duties of the Board shall be exercised and performed in a manner consistent with the jurisdiction conferred on the Board by this Act or any other enactment conferring jurisdiction on the Board. (2 ) The Board may for the purposes of this Act (

a) receive applications, references and complaints, (

b) conduct any inquiries or investigations that it considers necessary, either itself or through its officers, (

c) conduct any hearings that it considers necessary, ... (

g) make rules (

i) of procedure for the conduct of its business, including inquiries and hearings. ... 16

(1) An employer, employers’ organization, employee, trade union or other interested person may make a complaint in writing to the Board that there has been or is a failure to comply with any provision of this Act that is specified in the complaint. ...

(4) When a complaint is made under subsection (1), a reference is made under subsection (3) or any other application to the Board is made under this Act, the Board may do one or more of the following: (

a) appoint an officer to inquire into the complaint, reference or application and endeavour to effect a settlement within a reasonable time; ...

(

c) decide the matter itself after any hearings or inquiries that it considers necessary; ... (

e) where the Board is of the opinion that the matter is without merit, or is frivolous, trivial or vexatious, reject the matter summarily. ... 153

(1) No trade union or person acting on behalf of a trade union shall deny an employee or former employee who is or was in the bargaining unit the right to be fairly represented by the trade union with respect to the employee’s or former employee’s rights under the collective agreement. (2) Subsection (1) does not render a trade union liable to an employee for financial loss to the employee if (

a) the trade union acted in good faith in representing the employee, or (

b) the loss was as the result of the employee’s own conduct.

(3) When a complaint is made in respect of an alleged denial of fair representation by a trade union under subsection (1), the Board may extend the time for the taking of any step in the grievance procedure under a collective agreement, notwithstanding the expiration of that time, subject to any conditions that the Board may prescribe, if the Board is satisfied that (

a) the denial of fair representation has resulted in loss of employment or substantial amounts of work by the employee or former employee, (

b) there are reasonable grounds for the extension, and (

c) the employer will not be substantially prejudiced by the extension, either as a result of an order that the trade union compensate the employer for any financial loss or otherwise. [ 21 ] Sections 7 and 8(1) and (3)(

e) and (

f) of the Alberta Labour Relations Board, Rules of Procedure (Revised: April 15, 2015) [ Rules ] provide as follows: 7 . Any document commencing a complaint shall also contain (

a) an outline of the facts and circumstances alleged to violate the Code , including when and where the relevant facts occurred and, where known, by whom any actions alleged to violate the Code were taken, and (

b) a reference to the provision or provisions of the Code that the complainant alleges to have been violated. 8 .

(1) A respondent to a complaint, application or reference, except certification and revocation, shall file a reply to the complaint, application, or reference unless the Director of Settlement otherwise directs. ...

(3) A reply shall contain ... (

e) an admission of the allegations contained in the document commencing the proceeding that are not contested, (

f) where the party replying relies upon a different version of the facts alleged by the party commencing the proceeding, a concise statement of the facts relied upon. [amended January, 1998]. Standard of Review [ 22 ] The Applicant submits that the standard of review on all issues is reasonableness, citing the decision of Verville J in Procrane Inc (Sterling Crane) v Thompson , 2016 ABQB 646 , 2016 CarswellAlta 2232.

While this decision dealt with a statutory appeal under the OHSA , the reasonableness standard of review also applies to Board decisions in duty of fair representation matters: United Association of Journeymen and Apprentices of the Plumbing and PipefittingIndustry of the United States and Canada, Local 488 v Radke , 2013 ABCA 436 , 237 CLRBR (2d) 1 [ Radke ]. [ 23 ] The parties agree, and I find that is the applicable standard, with one qualification. [ 24 ] In relation to the fourth issue, regarding disclosure, to the extent that this issue involves

interpretation of the Code or Board rules and procedures, the reasonableness standard of review applies. However, to the extent that a question of procedural fairness may arise, a traditional standard of review analysis does not apply; rather, the issue is “whether the proceedings met the level of fairness required by law”: Institute of Chartered Accountants of Alberta v Barry , 2016 ABCA 354 at para 5 , 2016 CarswellAlta 2166. Application of the Standard of Review and Procedural

Fairness Issue #1: Clauses Referred to in the Grievance [ 25 ] The Board Decision on this issue easily meets the standard of reasonableness: “the Board’s reasons provide justification for the decision, wherein the justification is transparent and intelligible and where the decision itself falls within a range of possible acceptable outcomes which are defensible in light of the facts and the law”: Radke at para 4 , citing Dunsmuir v New Brunswick , 2008 SCC 9 , [2008] 1 SCR 190. [ 26 ] The Board made a valiant effort to explain to the Applicant the way in which the management rights clause operates and why it was relevant to the grievance.

This explanation and the Board reasons regarding the inapplicability of other clauses of the collective agreement are clear and intelligible. The Board’s conclusions are certainly within a range of acceptable outcomes. Even if the clauses relied on by the Applicant were found to have some relevance, they would have come within the scope of the grievance, which contemplated reference to other provisions of the collective agreement that “may have a bearing on the matter.” Issue #2: The Meetings [ 27 ] Again, the Board Decision on this issue meets the standard of reasonableness.

The Board’s conclusions that the meetings were not formal proceedings under the Collective Agreement, but informal efforts to settle the grievance and resolve the Applicant’s concerns, are justifiable given the facts and the law. [ 28 ] There was no evidence that the meetings were represented to be formal proceedings. The Board notes that such meetings are common in the labour law context, and I would add that informal resolution efforts should be encouraged in any dispute resolution context. Issue #3: The OH&S Award [ 29 ] The Board Decision regarding the OH&S Award also meets the standard of reasonableness.

The fact that the Applicant was successful in a different venue does not mean that the Union’s handling of the grievance was improper, especially given the nature of the duty of fair representation. [ 30 ] The law is clear that a Union need not take every grievance to arbitration, and that even a wrong decision in this regard does not breach the duty of fair representation, provided the Union has fairly and reasonably investigated the grievance and come to an informed decision. There was no evidence, and in fact no allegation, before the Board, that the Union had failed to properly investigate the grievance.

Issue #4: Request for Production of Documents [ 31 ] The Board Decision regarding the Complainant’s request for further production of documents is found at paras 28-30: To the extent the Complainant asks for further production of documents from the Union in relation to this complaint, the Board refuses the request on the basis the Board does not order production unless there is a complaint showing an arguable case. The Complainant has failed at this preliminary stage. The Board’s production processes are not intended to allow parties to engage in fishing expeditions in search of potential breaches.

In support of his request for production, the Complainant refers to the Board’s regular form of correspondence it issues on receiving duty of fair representation complaints. The Board’s letter asks the Union to provide in its response a copy of the collective agreement, any grievance documents, and responses to the grievance. The Board issues this request to encourage the parties to place before the Board the full narrative history regarding the issues in dispute.

Most duty of fair representation complaints are brought by self-​represented litigants who may fail to provide a sufficiently detailed background to their complaint. When a union replies to the complaint with a fulsome narrative history of the grievance process, along with all the relevant documents, it allows the Board to better understand the basic, and often uncontentious, steps taken by the union in relation to the grievance. The Board’s process ensures a complainant has an opportunity to respond to the union’s version of events.

When a union fails to provide this kind of detailed reply to the complaint, it risks having the Board send the complaint on to hearing in order to fill in the informational gaps. But, the request for information in the Board’s correspondence is not intended as a directive to provide production so a complainant can file totally new allegations against the union. That is how the Complainant seeks to use the information here.

The production request is, accordingly, denied. [ Emphasis in the original ]. [ 32 ] The Code gives the Board the power to inquire into complaints, to determine whether a hearing is necessary and to dismiss a matter summarily, if it is of the opinion that the matter is without merit: s 12(2)(a)(

b) and (c), 16(4)(a), (

c) and (e). [ 33 ] The Board has the power to make rules of procedure: s 12(2)(g)(i). The Rules adopted by the Board require that a complaint contain “an outline of the facts and circumstances alleged to violate the Code ”: s 7(a). [ 34 ] The Alberta Labour Relations Board Policy & Procedure Manual [ Policy Manual ] outlines what particulars must be disclosed in a complaint. The Policy Manual states in

Chapter 19(b): The applicant’s initial correspondence should clearly set out a statement of fact that, if accepted as true, would establish that the Code applies, or was violated. The applicant does not have to prove the allegations in the written complaint but they must lay out the facts. The

reader should know from the complaint when and how it occurred as well as who committed the alleged contravention. This requirementprevents “fishing expeditions.” The facts should justify the remedy requested.

Particulars do not need to disclose the exact details of the evidence or the identity of thewitnesses or documents to be called. [35] The Rules provide that a reply to a complaint shall contain “where the party replying relies upon a different version of thefacts alleged by the party commencing the proceeding, a concise statement of the facts relied upon”: s 8(3)(f). [36] There is no requirement in the Code or the Rules for production of documents when a complaint or reply is filed.

The Boardmay issue a notice to attend and produce documents for a hearing: Rules, s 36. [37] The Board declined the Complainant’s request for further production of documents from the Union.

The Board Decisionexplained the rationale for this denial – it does not order production unless there is a complaint showing an arguable case, as itsproduction processes are “not intended to allow parties to engage in fishing expeditions in search of potential breaches.” While the Boardhad requested, in its regular form of correspondence, that the Union provide “a copy of the collective agreement, any grievancedocuments and responses to the grievance,” this request for information was “not intended as a directive to provide production so acomplainant can file totally new allegations against the union.” [38] The Complainant’s allegations against the Union were based on uncontested facts.

It was uncontested that the managementrights clause was asserted as a defence in the grievance, and other sections of the collective agreement were not asserted as defences. Itwas uncontested what occurred at the January 2015 and February 2015 meetings. The issues were whether these uncontested facts werebreaches of the duty of fair representation. [39] In its written submission before the Court, the Board provided information regarding its process for considering

summarydismissal in cases with contested facts. “To the extent of contradictory factual information, the Board assumes the applicant’s factualinformation or assertions are correct. That is, to the extent of contradictory information, the Board assesses the applicant’s complaintfrom the best possible factual position for the applicant.

Complaints are summarily dismissed only if there is no arguable merit to thecomplaint based upon that factual position.” Thus, as observed in the Board Decision, when a union fails to provide a detailed reply to arequest for information, “it risks having the Board send the complaint on to hearing in order to fill in the informational gaps.” That wasnot the result in this case, because the complaint was based on uncontested facts, and the Board was able to determine that the mattersraised by the Complainant were without merit. [40] The Board Decision meets the standard of reasonableness as an

interpretation of its powers to inquire into complaints, tocontrol its own procedure, and to dismiss summarily matters that are without merit. The Board’s reasons are transparent and intelligible.The Rules and procedures adopted by the Board limit its production processes to prevent fishing expeditions, and ensure that complaintswhich may have merit proceed to a full hearing.

That the Board’s approach is within the range of possible, acceptable outcomes issupported by the similarity of the Board’s requirements regarding a complaint and reply, as compared with pleadings in a civil courtaction. [41] The purpose and application of the duty of fairness was described in FortisAlberta Inc v Alberta (Utilities Commission),2015 ABCA 295 at para 180, 389 DLR (4th) 1: The purpose of the duty of fairness is to “provide a meaningful opportunity for those interested to bring evidence and arguments that arerelevant to the decision to be made to the attention of the decision maker”.

Issues of procedural fairness are not subject to a standard ofreview in the Dunsmuir sense; the question is not whether the tribunal’s decision was correct, but rather whether the procedure chosenwas fair given all the circumstances.

Those circumstances can include the nature of the decision, the nature of the statutory scheme, theimportance of the decision, the legitimate expectations of the parties, and the procedural choices made by the agency, particularly whereits legislation gives it the power to develop its own procedures: Baker v Canada (Minister of Citizenship and Immigration), (SCC), [1999] 2 SCR 817, 174 DLR (4th) 193.

As was noted by the Supreme Court of Canada in Canada (AttorneyGeneral) v Mavi, 2011 SCC 30, [2011] 2 SCR 504 at para 42: “The simple overarching requirement is fairness”; a “central notion of the‘just exercise of power’.” [42] There is no basis to find a breach of procedural fairness.

The process adopted by the Board is appropriate to its statutorymandate, in light of the Board’s power to develop its own procedure and the procedural choices that is has made. [43] In the context of complaints regarding the duty of fair representation, it is the mandate of the Board to inquire into complaintsmade to it that a union has failed to comply with the duty of fair representation. The Board has adopted Rules and procedures to ensurethat complaints disclose facts that, if accepted by the Board, would prove a breach of the duty of fair representation.

The Board appliesits power to direct production of documents at the hearing stage, in relation to complaints that have arguable merit. The Board does notpermit the use of its production processes to enable fishing expeditions seeking new allegations. [44] The Board’s approach to dealing with contested facts when considering

summary dismissal ensures that complainants are notprejudiced in the determination of whether a complaint has arguable merit. The Board “assesses the applicant’s complaint from the bestpossible factual position for the applicant.” If there is an arguable case based on that factual position, the matter will go to a hearing andthe complainant will then have the benefit of the Board’s production processes to prove his or her case. Only when there is no arguablemerit based on the best possible factual position is a complaint rejected summarily. Conclusion [45] The application for judicial review is dismissed.

[ 46 ] The Board has not sought costs and none are ordered in its favour. [ 47 ] The Union has sought costs, and, as the successful party, is entitled to its costs under Column 1 of

Schedule C: Tariff of Recoverable Fees in the Alberta Rules of Court . Heard on the 12 th day of January, 2017. Dated at the City of Edmonton, Alberta this 27 th day of March, 2017. J.M. Ross J.C.Q.B.A. Appearances: Derek Thompson Self-represented for the Applicant Jeremy D Schick Alberta Labour Relations Board for the Respondent, Alberta Labour Relations Board Murray D McGown, QC McGown Cook for the Respondent, Bruce Moffatt, Business Manager for the International Union of Operating Engineers Local No. 955