Wilson v Alberta (Labour Relations Board), 2021 ABQB 673

Court of Queen’s Bench of Alberta Citation: Wilson v Alberta (Labour Relations Board), 2021 ABQB 673 Date: 20210923 Docket: 1903 08011 Registry: Edmonton Between: Corie Wilson Applicant - and - Alberta Labour Relations Board and Canadian Union of Public Employees, Local 1357 Respondents _______________________________________________________ Reasons for Decision of the Honourable Madam Justice S. Leonard _______________________________________________________ [ 1 ] This is an application under

section 19 of the Labour Relations Code , RSA 2000, c L-1 (the “ Code ”) for judicial review of a decision of the Alberta Labour Relations Board (the “Board”) regarding a complaint brought by Ms. Corie Wilson (the “Applicant”) against the Canadian Union of Public Employees, Local 1357 (the “Union”). The Applicant alleges that the Union breached its duty of fair representation under

section 153 of the Code in relation to its handling of a grievance regarding the termination of her employment from the Grande Yellowhead Public School Division (the “Employer”). [ 2 ] The matter came before the Board on November 6, 2018, for an administrative review. At this stage of the process, the Board determines whether the matter should be summarily dismissed or sent to a hearing. For the purposes of the administrative review,

the Board relied on those allegations of fact that were agreed or uncontested. Where there was a dispute as to the facts, they relied on the Applicant’s version of events. [ 3 ] In a decision dated March 27, 2019, the Board summarily dismissed the Applicant’s complaint pursuant to section 16(4) (

e) of Code for lack of merit (the “Board Decision”). [ 4 ] The Applicant seeks judicial review of the Board Decision. For the reasons that follow, the application for judicial review is dismissed. Background [ 5 ] The Applicant was hired by the Employer on February 5, 2018 as a full-time permanent teaching assistant at a high school in the Employer’s school division. Her employment was terminated on April 13, 2018. [ 6 ] The Applicant was hired to work with an autistic student. She states that she received ¾ of a day of training on the first day and began work on her second day.

She states there were no safety rules in place and that if matters got out of hand with the student, she was to call the office for assistance. On her first day of work with the student, the Applicant states that he hit her. This abuse continued on every subsequent day. The student was often agitated and aggressive with her, other staff, and with students. [ 7 ] She brought her concerns to her supervisor and inquired about reporting the incidents. According to the Applicant, she was told not to report them. She then went to her shop steward who provided her a computer link where she could report incidents.

The abuse continued and the Applicant returned to her shop steward. She was advised that she was reporting the incidents in the wrong place and was provided with a new computer link. She told the shop steward she would transfer her reports to the correct place by the end of the day. Later that same day, the Applicant was terminated. [ 8 ] According to the Applicant, her supervisor was unable to tell her why she was terminated. She was told to contact the head office. She claims that she was told several different reasons for the termination.

The Applicant’s position is that she was terminated because she was trying to report the student’s violence. [ 9 ] The Applicant contacted the national Union representative for assistance. She states that without hearing any of the facts, he told her that she did not have a case. She told the Union representative that the Employer was breaking sections of the Collective Agreement as well as several labour relations rules.

In oral argument, she also contended that the Employer was in contravention of whistleblower legislation. [ 10 ] The Applicant argued that the Union failed to apply the just cause sections of the Collective Agreement contained in

Article 8. She was never advised of her unsatisfactory performance and no written warnings are on her personnel file.

Article 8 states: 8.1 Where a supervisor intends to interview an employee for disciplinary purposes, the supervisor shall so notify the employee in advance of the purpose of the interview. An employee shall have the right to have a Union representative present at any disciplinary meeting and shall be informed of such right. 8.2 Unsatisfactory conduct and/or performance by an Employee may result in a written warning to the Employee. A written warning shall provide specifics of the issue(

s) that gave rise to the disciplinary action, shall provide direction regarding work performance expectations and a timeline for improvement, as well as indicating that further discipline or discharge may follow any similar infractions. A copy of the written warning shall be placed on the Employee’s personnel file. A copy of the written warning shall be forwarded to the Union. An employee considered by the Union to be wrongfully or unjustly disciplined shall be entitled to a hearing commencing with Step 2 of the grievance procedure. 8.3 The Employer may suspend or discharge any employee for just cause.

An employee considered by the Union to be wrongfully or unjustly suspended or discharged shall be entitled to a hearing commencing with Step 3 of the grievance procedure. 8.4 A copy of any report on or evaluation of, an employee that is to become part of the employee’s record shall be given to the employee. The employee’s written reply or comments in regard to such a report or evaluation must also become part of the record.

With thirty-six (36) hours’ notice, excluding weekends and General Holidays, an employee may examine and copy her file. [ 11 ] The Union representative filed a grievance on the applicant’s behalf and a meeting was arranged with the Employer. Prior to the meeting, the Applicant claims that the Union representative told her not to argue with the Employer or say anything bad or wrong. If she did, the meeting would be over. [ 12 ] The Employer apologized to the Applicant for her having been hit at work. The Employer was making changes to address the situation.

A week after the meeting, the Applicant was advised that she would be permitted to apply for a new job at one other school. The Applicant states, however, that she has conflicts with the principal of this school and he would never have hired her. [ 13 ] The Applicant was advised by the Union that her case was closed and the Union would not be doing anything further on her behalf. On August 13, 2008, the Applicant filed a complaint pursuant to

section 153 of the Code claiming that the Union had failed to represent her in a grievance relating to the termination of her employment. [ 14 ] The Union’s characterization of events differs somewhat from the Applicant’s version of events. The Union states that on April 11, 2018, the Union President received a phone call from the Applicant asking about reporting procedures for safety incidents. When the Union president contacted the Employer on April 13, 2018, the president was advised that the Employer intended to terminate the Applicant that day because the Applicant was often late and the relationship between the Applicant and the student was not working.

[ 15 ] The Union remained involved and arranged a meeting between the Applicant, a representative of the Union and a representative of the Employer. This meeting occurred on April 30, 2018. The Employer representative advised the Applicant that she was terminated because she was not fitting in with the team. Relying on

Article 11 of the Collective Agreement, the Employer indicated that the Applicant was a probationary employee and no reason was needed to terminate her during the 90-day probationary period.

Article 11 provides as follows: 11.1 All employees covered by the terms of this Agreement shall serve a probationary period of ninety (90) days worked, not to exceed ten (10) months. At the end of this period, she shall be classified as a “permanent employee”. On reaching permanent employee status, seniority shall commence from the first day of employment.

If a new employee is unsuitable in the opinion of the Employer such Employee may be terminated at any time during the probationary period and such termination shall not be subject in any manner to the grievance or arbitration procedure. 11.2 In the event an employee has not had the opportunity to complete her probationary period, as a result of a layoff, that employee shall continue to accrue seniority upon recall in order to complete her probationary period. 11.3 If a temporary employee is successful in retaining the position, following posting of the position, her term of service in the position as a temporary employee, will be recognized as contributing to the completion of the probationary period. 11.4 A probationary employee shall be notified of her progress during the probationary period in order to correct any shortcomings in her job performance. [ 16 ] At a subsequent meeting between the Employer and the Union, the Applicant’s termination was again discussed.

The Employer indicated that the termination was a “slam dunk.” The Union then proceeded to file a grievance regarding the Applicant’s termination. [ 17 ] In May 2018, the Employer sent the Union a letter confirming that the Applicant was unsuitable for the position. The Employer included notes from the principal, vice principal and various teachers at the school regarding the Applicant’s performance and her interactions with other members of the staff. [ 18 ] A grievance meeting was scheduled for June 2018. At the meeting, the Applicant outlined her concerns with the termination.

The Employer described its concerns with the Applicant’s job performance. The Union states that the conversation at this meeting became heated and began straying into issues that were not relevant. The meeting was adjourned. [ 19 ] The Union continued to advocate for the Applicant after the meeting was adjourned. The Union asked the Employer to consider whether there might be another job that the Applicant would be suitable for.

Subsequently, the Employer indicated that it was willing to consider the Applicant for a probationary period at another school if a position came available and if the Applicant had the required skills to apply for the position. [ 20 ] The Applicant was of the view that she was restricted from applying for positions with the Employer. The Union confirmed that this was not the case. She was encouraged to apply for other positions with the Employer. [ 21 ] The Union indicated to the Applicant that because of

Article 11 of the Collective Agreement, her grievance had little chance of success. The Applicant asked why the Union continued to rely on

Article 11 when

Article 8 only allows termination for just cause. The Union explained that

Article 11 applies to probationary employees. It specifically states that probationary terminations cannot be grieved. The Board Decision [ 22 ] The Applicant’s complaint to the Board was made pursuant to

section 16 of the Code . Section 16(1) provides that an employee “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.” [ 23 ] The Applicant complained that the Union failed to represent her with respect to a grievance related to her termination, as required by

section 153 of the Code . Section 153(1) provides as follows: 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. [ 24 ] The Board reviewed prior decisions related to the duty of fair representation under

section 153 . These decisions establish that “[t]he 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:” Board Decision at para. 16. [ 25 ] The Board relied on the prior decision in Reid v United Steelworkers of America Local Union No. 7226 , [2000] Alta. LRBR LD-064 (WL) at para. 3 which summaries some of the key principles underlying the duty of fair representation. These are found at para. 16 of the Board Decision: The Union need not take every grievance to arbitration… The Board focuses its examination of the Union’s conduct… rather than the merits of the grievance…

The Union is entitled to make a wrong decision… The Union must give the employee a fair opportunity to present the employee’s own case to the Union and to provide input on theresults of the Union’s investigation. The Union should communicate fairly with the employee about all aspects of its representation… A Union does not breach its duty of fair representation just because it reaches a conclusion with which the employee does not agree. [26] Based on its review of applicable decisions regarding the duty of fair representation, the Board concluded that the Union didnot act contrary to

section 153 of the Code. There was no evidence of discrimination, arbitrariness or bad faith. [27] The Board explained

Article 11, acknowledging that the Applicant was of the view that the just cause portions of theCollective Agreement contained in

Article 8 should apply to her termination rather than the terms related to probationary employeescontained in

Article 11. [28] The Board considered the prior decision of AUPE v Alberta, (AB GAA) of Arbitrator Wallace andexplained the probationary

article creates an exclusion of or limitation on the applicability of grievance procedures. The Board cited thefollowing

summary of the applicable jurisprudence from paragraph 34 of Arbitrator Wallace’s decision: Unions have often challenged the applicability of these limitations in what they view to be meritorious cases. … The common responseof employers seeking to prevent arbitral review of their action has been to argue some or all of: (1) the parties are free to contract to limitaccess to the grievance and arbitration procedures; (2) if they do so, a dispute of that type is not a “difference” that by statute must bearbitrated; (3) arbitrators may not arbitrate such disputes without running afoul of the statutory prohibition upon amending the collectiveagreement; and (4) the parties have exercised their statutory right (in Alberta) to agree to a method of dispute resolution other thanarbitration, and arbitrators cannot take jurisdiction over the grievance in the face of that choice.

Generally, though with exceptions,arbitrators and the Courts in Alberta have found in favour of the employers’ arguments. [29] The Board agreed that where there is a probationary clause such as is found at

Article 11 of the Collective Agreement, agrievance concerning a probationary employee was “highly unlikely to succeed:” Board Decision at para. 19. The Reconsideration Decision [30] There is a preliminary issue that must be addressed before considering the merits of the judicial review. The Applicant is ofthe view that there is a reconsideration decision before the Court for judicial review. For the reasons that follow, I find that the onlymatter before the Court for judicial review is the Board Decision. [31] The Board Decision was released on March 27, 2019.

On April 11, 2019, the Applicant applied for reconsideration of theBoard Decision. On April 16, 2019, the Applicant then filed an Originating Notice of Motion seeking judicial review of the BoardDecision. [32] The decision on the reconsideration was issued on June 3, 2020 (the Reconsideration Decision). The Board consideredwhether the application for reconsideration should proceed to a hearing or be summarily dismissed for lack of merit under section16(4)(e).

The application for reconsideration was summarily dismissed. [33] Having considered the procedural history, I conclude that the Reconsideration Decision is not before the court as theApplicant did not seek judicial review of that decision. [34] Because the Reconsideration Decision is not before the Court, the Union argues that seeking judicial review of the BoardDecision is a collateral attack on the Reconsideration Decision. The Union argues that the situation in this case is unusual and distinctfrom most other cases that involve a reconsideration.

The Union contends that if the Board Decision is quashed in these proceedings,there will be an impact on the subsequent Reconsideration Decision because that subsequent decision may be undermined in some wayby the decision of this Court. If, however, the Board Decision is upheld, there is no impact on the Reconsideration Decision. [35] The Board’s position is that the Reconsideration Decision is simply not relevant to the matters before the Court. Counsel forthe Board explained that the reconsideration powers are contained in section 12(4) of the Code. This

section allows the Board to“reconsider any decision... and vary, revoke or affirm the decision...” [36] When the Board receives a request for reconsideration, the Board first conducts an administrative review under

section 153.As such, there’s a distinction between upholding the original decision and deciding not to reconsider the matter. In this case, a decisionwas made not to reconsider the Board Decision. [37] The Board’s position is therefore that judicial review of the Board Decision is not a collateral attack on the ReconsiderationDecision. Both decisions are subject to separate judicial review proceedings. If the Reconsideration Decision was before the Court forjudicial review, the issue would be the reasonableness of the Board’s decision not to reconsider the Board Decision pursuant to section153.

The Board states that it is conceptually a different matter from the reasonableness of the Board’s decision on the duty of fairrepresentation complaint.

[ 38 ] I agree with the Board. The Reconsideration Decision is not before the Court and is not relevant to these proceedings. In the circumstances of this case, judicial review of the Board Decision has no impact on the Reconsideration Decision. The Reconsideration Decision did not consider the duty of fair representation issue on its merits. The Reconsideration Decision is an exercise of the Board’s discretion not to reconsider the Board Decision. Positions of the Parties [ 39 ] The Applicant’s position before the Board was that she was terminated because she was trying to protect herself and others.

She asked that her matter go to arbitration and that she be represented by the Union in the arbitration process. She was of the view that

Article 8 of the Collective Agreement dealing with terminations for just cause should govern and not

Article 11. She expressed the view that the Union and the Employer were choosing which articles of the Collective Agreement to rely on rather than reading the document as a whole. [ 40 ] On judicial review, the Applicant again argues she was terminated because she raised the alarm about the physical abuses she suffered at the school. She argues that she should be protected from termination by whistleblower legislation and by other labour standards. [ 41 ] The Applicant also contends that several sections of the Collective Agreement and labour laws were broken by the Employer.

The Union should be required to represent her. She argues that she has a right to be safe at work and that the Union only relied on those sections of the Collective Agreement of benefit to it. The Union improperly rejected other relevant sections of the Collective Agreement that are relevant to proving that the Union did not represent her properly. [ 42 ] The Union’s position before the Board was that that

Article 11 prevents the Union from arbitrating the termination of a probationary employee. Despite

Article 11, the Union filed a grievance on behalf of the Applicant and attempted to negotiate a resolution that would allow the Applicant to return to work in a different position. The Union’s decision not to arbitrate the Applicant’s grievance was not arbitrary, discriminatory, or made in bad faith. [ 43 ] On judicial review, the Union’s position is that the only issue before this Court is whether the Board Decision was reasonable. The Union contends that it is internally coherent, displays a rational chain of analysis and is justified in relation to the facts and law that constrained the Board.

The Board Decision is reasonable and this request for judicial review should be dismissed. Standing of the Board [ 44 ] The Board sought standing to make limited arguments before the Court on the judicial review of the Board Decision. The Board did not seek leave to make submissions on the merits of the judicial review but sought only standing for the following: (

i) Address any questions the Court may have about the Labour Relations Code , in particular the provisions relating to duty of fair representation complaints and

summary dismissals; (ii) Address any questions regarding the Certified Record of Proceedings; (iii) Address any questions the Court may have on the reconsideration process; and (iv) Provides submissions on the applicable standard of review. [ 45 ] The Applicant agreed that the Board might add value to the judicial review. She was not opposed to its involvement in these proceedings. The Union did not oppose the Board’s participation. Having heard the submissions of the parties, I granted the Board standing with reasons to follow.

These are those reasons. [ 46 ] The “permissible role of a tribunal in a ... proceeding is in the discretion of the court and depends on the ... context:” Leon's Furniture Ltd. v. Alberta (Information & Privacy Commissioner) , 2011 ABCA 94 , at para. 26 .

A Court must “balance the need for fully informed adjudication against the importance of maintaining tribunal impartiality:” Ontario (Energy Board) v Ontario Power Generation Inc , 2015 SCC 44 at para. 57 (“ OEB ”). [ 47 ] The need for a discretionary approach was explained by the Supreme Court of Canada in OEB , at para. 53 : Several considerations argue in favour of a discretionary approach. Notably, because of their expertise and familiarity with the relevant administrative scheme, tribunals may in many cases be well positioned to help the reviewing court reach a just outcome.

For example, a tribunal may be able to explain how one

interpretation of a statutory provision might impact other provisions within the regulatory scheme, or the factual and legal realities of the specialized field in which they work. Submissions of this type may be harder for other parties to present. [ 48 ] In OEB , at para. 59 , the Court identifies three factors applicable to the exercise of the Court’s discretion:

(1) If an appeal review were to be otherwise unopposed, a reviewing court may benefit by exercising its discretion to grant tribunal standing.

(2) If there are other parties available to oppose an appeal or review, and those parties have the necessary knowledge and expertise to fully make and respond to arguments on appeal or review, tribunal standing may be less important to ensuring just outcomes.

(3) Whether the tribunal adjudicates individual conflicts between two adversarial parties, or whether it instead serves a policy-making, regulatory or investigative role, or acts on behalf of the public interest, bears on the degree to which impartiality concerns are raised. Such concerns may weigh more heavily where the tribunal served an adjudicatory function in the proceeding that is the subject of the appeal, while a proceeding in which the tribunal adopts a more regulatory role may not raise such concerns. [ 49 ] There are parties on both sides of this judicial review.

The Union is represented by counsel and the Applicant is self- represented. Although the Board adjudicates conflicts between adversarial parties, it is seeking to have a limited role. It is not seeking to defend the merits of the Decision. I am of the view that its expertise, particularly with regards to the

interpretation of the Code , the issue of reconsideration, and the Certified Record of Proceedings will be of benefit to the Court. I therefore grant the Board standing in these proceedings.

Standard of review [ 50 ] Both the Union and the Board assert that the Board Decision is reviewable on the standard of reasonableness: Canada (Minister of Citizenship and Immigration) v Vavilov , 2019 SCC 65 at para. 16-17 (“ Vavilov ”). [ 51 ] The Applicant contends that in conducting a review of the Board Decision, this Court should apply the rules contained in whistleblower legislation and the applicable labour laws. [ 52 ] In Vavilov , the Supreme Court of Canada provided a framework for judicial review.

Other than in certain situations that do not apply in this case, the presumption is that decisions of administrative tribunals are reviewed on a standard of reasonableness. A reviewing Court must consider whether “the decision as a whole is reasonable.” The decision must be “internally coherent,” follow a “rational chain of analysis” and be “justified in relation to the facts and law that constrain the decision maker:” Vavilov at para. 85 . [ 53 ] A reviewing Court must take a “reasons first” approach.

This requires the Court to examine the reasons of the decision maker and seek “to understand the reasoning process:” Vavilov at para. 84 . [ 54 ] According to Vavilov , the Applicant in a judicial review hearing has the burden of showing that the decision of the Adjudicator is unreasonable: Vavilov at para. 100 . This burden will be met where: ...the reviewing court [is] satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency.

Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable ( ibid ). [ 55 ] This Court is constrained by decisions of the Supreme Court of Canada. The decision in Vavilov apples to the circumstances of this case.

I find that this Court must apply the standard of reasonableness to the Board Decision. Issue [ 56 ] The sole issue on this judicial review is whether the decision of the Board was reasonable. Discussion [ 57 ] I find that the explanation provided by the Board regarding the applicability of

Article 11 to the Applicant’s case is clear and intelligible. The conclusion drawn by the Board is within the range of acceptable outcomes: see, Thompson v Alberta Labour Relations Board , 2017 ABQB 205 at para. 26 . [ 58 ] Having considered prior decisions interpreting the duty of fair representation as well as having explained the applicability of

Article 11 to the circumstances of this case, the Board concluded that “the Union’s assessment of the likelihood of success on the Complainant’s grievance was in line with the legal authorities.” Even if the Union was wrong in its assessment of its chance of success in the face of

Article 11, the Board concluded that “it would not necessarily demonstrate arbitrary treatment, bad faith or discrimination:” Board Decision at para. 20. [ 59 ] The Board has a broad discretion to summarily dismiss complaints that are without merit. This power is found in section 16(4) of the Code which provides as follows: Where the Board is of the opinion that the matter is without merit, or is frivolous, trivial, vexatious, filed with improper motives or an abuse of process, reject the matter summarily. [ 60 ] Having found that there was no evidence that the Union acted contrary to

section 153 of the Code , the Board summarily dismissed the Applicant’s complaint pursuant to section 16(4) because it had no likelihood of success: Board Decision at para. 21. [ 61 ] I am satisfied that the Board’s conclusion that the Union did not breach its duty of fair representation towards the Applicant is reasonable. The Board Decision found that since the Applicant was a probationary employee, the Union was highly unlikely to succeed in an arbitration claim. The Union nevertheless attempted to grieve the Applicant’s complaint and achieve an amicable resolution.

The Board’s finding that there was no evidence to support the Applicant’s claims of “arbitrary treatment, bad faith or discrimination” by the Union is entitled to deference.

[ 62 ] Read holistically and contextually, the Board’s decision demonstrates a rational chain of analysis. The conclusions reached are within the range of possible outcomes that were reasonably available. The Applicant has not met the burden of demonstrating that the Board’s decision was unreasonable. Conclusion [ 63 ] The application for judicial review is dismissed. Heard on the 24 th day of June, 2021. Dated at Edmonton, Alberta this 23 rd day of September, 2021. S. Leonard J.C.Q.B.A. Appearances: Corie Wilson Self-Represented Terri Susan Zurbrigg for Alberta Labour Relations Board Ella Henry for Canadian Union for Public Employees