Zhou v Alberta (Labour Relation Board), 2021 ABQB 858

Court of Queen’s Bench of Alberta Citation: Zhou v Alberta (Labour Relation Board), 2021 ABQB 858 Date: 20211029 Docket: 2101 04237 Registry: Calgary Between: Frank Zhou Applicant/Respondent - and - Alberta Labour Relations Board Respondent - and - Canadian Union of Public Employees, Local 38 Respondent/Applicant _______________________________________________________ Reasons for Decision on Application to Strike Originating Application for Judicial Review of the Honourable Mr. Justice Eric F. Macklin _______________________________________________________ I.

Introduction [ 1 ] On March 11, 2021, the Alberta Labor Relations Board (ALRB or Board) summarily dismissed a duty of fair representation complaint by the Respondent, Frank Zhou, against the Canadian Union of Public Employees, Local 38 (CUPE 38 or Union). [ 2 ] On April 7, 2021, Mr. Zhou filed a document entitled “Originating Application-- Notice of Appeal/Reference Under an

Enactment” challenging the decision of the ALRB. [ 3 ] The Originating Application named the ALRB as the Respondent. It was served on the ALRB, with a copy also served on CUPE 38 as an affected party. [ 4 ] On June 9, 2021, CUPE 38 brought an application seeking, among other things, to have the Originating Application rectified to a Judicial Review Application and to have CUPE 38 named as a Respondent party to the Judicial Review. The application was successful and the Originating Application filed and served by Mr.

Zhou was corrected to an “Originating Application for Judicial Review” and the Canadian Union of Public Employees, Local 38 was added as a Respondent party. [ 5 ] CUPE 38 now brings this application to strike out, or summarily dismiss, the Judicial Review application brought by Mr. Zhou on the ground that he has failed to serve his Originating Application for Judicial Review of the ALRB decision of March 11, 2021 on the Municipal Corporation of the City of Calgary, a body directly affected by the application, by September 11, 2021, six months from the date of the decision. [ 6 ] Mr.

Zhou asks that the application be dismissed as his “Duty of Fair Representation” (DFR) complaint related solely to the conduct of CUPE 38 and the City of Calgary is not an “affected party” entitling it to service or notice. II. Background Facts [ 7 ] Mr. Zhou began working for the City of Calgary (City) in April 2016. He became a member of the Union’s bargaining unit on January 7, 2019. [ 8 ] Mr. Zhou and another individual (the Grievor) both applied for a permanent position as a Business Strategist, posted by the City of Calgary (City) in May 2019. Mr.

Zhou was selected for the position by the City and began working in his new position on July 8, 2019. [ 9 ] The Grievor approached the Union to represent her on a non-selection grievance based on her seniority over Mr. Zhou. On July 4, 2019, the Union filed a non-selection grievance on behalf of the Grievor. The grievance was ultimately resolved between the City and the Union in October 2019. The resolution had no effect on Mr. Zhou, his position, his pay or any other benefit to which he was entitled by virtue of his position. [ 10 ] In December 2019, Mr.

Zhou filed a complaint under s153(1) of the Labour Relations Code ( Code ). His initial complaint was that the Union failed to fairly represent him in relation to a non-selection grievance filed on behalf of the Grievor against the City. Specifically, Mr. Zhou alleged that a permanent position he was awarded by the City through a competition was taken away as a consequence of the Union pursuing and handling the grievance on behalf of the Grievor. [ 11 ] On February 19, 2020, the Board directed the City, as the Employer, to file a written response to the complaint and submissions.

The City was also required to indicate whether it would participate in the hearing and resolution conference and to state their position. [ 12 ] The City responded on February 26, 2020, advising that it wished to participate in any hearing or resolution conference pertaining to the matter. The ALRB acknowledged the City’s response. [ 13 ] On March 6, 2020, the City stated its position that proper procedures were followed by the City in notifying Mr. Zhou of the process for a non-selection grievance.

The City then participated in an ALRB resolution conference on May 26, 2020. [ 14 ] An issue had arisen as to the City’s entitlement to an unredacted copy of Mr. Zhou’s original complaint and the City took the position that, as the employer of Mr. Zhou, it was an affected party and may be affected by the remedies ordered by the Board.

The City indicated that it would be prejudiced if it were to attend the DFR hearing without having the opportunity to fully prepare and stated that “it would make the process manifestly unfair should the employer not be allowed to fully participate.” [ 15 ] On June 19, 2020, the ALRB directed that the City was to be provided with an unredacted copy of the original complaint and on August 28, 2020, the City provided its response to the complaint. [ 16 ] The allegation in Mr. Zhou’s filed complaint that a permanent position he was awarded by the City had been taken away was clearly false.

His position had never been taken away for any period of time and he continued to work in that position. [ 17 ] In August 2020, Mr. Zhou amended his complaint to acknowledge that he had not lost his position. However, he alleged that the Union still breached its duty of fair representation to him by the simple act of grieving for another, which could have resulted in his losing his position or otherwise impacting on his pay, benefits or other entitlements. None of these possible consequences did occur and the resolution of the grievance did not affect, or impact on, Mr. Zhou’s collective agreement rights.

On application by CUPE 38, the ALRB found that there was no prejudice or unfairness to Mr. Zhou and summarily dismissed his complaint under s 16(4)(

e) of the Code as being without merit and trivial. [ 18 ] One of the key remedies that had been sought by Mr. Zhou in his complaint was for the ALRB to institute a “standing seniority overriding memo” which would have precluded the City from releasing him prior to the Grievor in the event of a layoff decision being made with respect to their positions. This relief was considered outside of the ALRB’s jurisdiction. [ 19 ] The Decision of the ALRB was released on March 11, 2021, and served on Mr. Zhou, the City, CUPE 38 and its counsel. Neither the Originating Application filed by Mr. Zhou on April 7, 2021, nor the corrected Originating Application has ever been served on the City. III. Issue

[ 20 ] The issue to be determined in this application is whether the Originating Application for Judicial Review should be struck out or summarily dismissed on the ground that an affected party, the City of Calgary, was not served within six months of the March 11, 2021, decision of the ALRB. [ 21 ] In order to determine this issue, it is necessary to consider the following:

a) Is the City of Calgary directly affected by the application?

b) If so, was the Respondent, Mr. Zhou, obliged to serve the City with an Originating Application within six months of the ALRB decision? IV. Analysis

a) Is the City directly affected? [ 22 ] Mr. Zhou argues that the City is not directly affected by his application for judicial review. He acknowledges that his original complaint, in seeking a “standard seniority overriding memo” may have been relevant to the City as an employer. However, the Originating Application is limited in scope and is not seeking any remedies pertaining to the City. Accordingly, argues Mr. Zhou, the City is not directly affected by the application.

Consequently, the cases relied upon by the Union requiring affected parties to be served within six months of an ALRB decision, are not applicable. [ 23 ] The City considered itself so directly affected by the potential decision of the ALRB that it sought standing. It emphasized at one stage that the process would be “manifestly unfair should the employer not be allowed to fully participate.” The ALRB asked the City for a response and submissions regarding the original complaint. The City was granted party standing and ultimately participated in the ALRB resolution conference on May 26, 2020. Mr.

Zhou was aware of all of this. [ 24 ] In the relief claimed in his Originating Application, Mr. Zhou seeks, among other things, an order in the nature of certiorari quashing the Board’s decision. Regardless of how Mr. Zhou now frames his Originating Application, the filed application itself asks that the whole of the Board’s decision be quashed.

He has acknowledged, however, that if the decision is quashed and the matter remitted back to the Board for reconsideration, the City would be a party affected by the Board’s reconsideration as it would again be asked to institute a “standing seniority overriding memo” as requested by Mr. Zhou in his complaint. [ 25 ] In short, if Mr. Zhou is successful in obtaining the remedy of certiorari in this Court, the decision of the ALRB will be quashed.

This would result in his original complaint being considered again by the Board including the issue of whether the City could be subject to a “standing seniority overriding memo”. Clearly, any decision by this Court on the application to quash the Board’s decision could directly impact and affect the City. It was, and is, entitled to appear before this Court to argue against the certiorari application of Mr. Zhou. [ 26 ] The City is a directly affected party.

b) Was the Respondent obliged to serve the City within six months? [ 27 ] Pursuant to s 19(2) of the Code , an application for judicial review seeking an order in the nature of certiorari must be served on the Board no later than 30 days after the date of the decision or the reasons for decision. Rule 3.15(2) of the Alberta Rules of Court , provides that an originating application for judicial review must be filed and served within six months after the date of the decision.

Rule 3.15(3) provides that it must be served on every body directly affected by the application. [ 28 ] I have already determined that the City is directly affected by the application as it is framed and, as a consequence, Mr. Zhou was obliged to serve the City with his Originating Application for Judicial Review by September 11, 2021, six months after the ALRB released its decision. He did not do so. [ 29 ] There are many cases in this jurisdiction confirming that the limitation period prescribed by r 3.15(2) is sacrosanct.

It provides that r 13.5(2), which gives the Court discretion to extend time periods otherwise prescribed in the Rules , does not apply and there is no inherent discretion in this Court to permit a judicial review to proceed or extend the time for service where there has been noncompliance. [ 30 ] I would also emphasize that there is no self-represented litigant exception to this Rule. All parties, represented by counsel or not, must comply with the Rules of Court and there is no lesser standard of compliance for an unrepresented litigant. [ 31 ] In short, Mr.

Zhou was obliged to serve the City with his Originating Application for Judicial Review by September 11, 2021. He failed to do so. His Originating Application must be struck for noncompliance with mandatory service and timeline requirements.

c) Additional comments [ 32 ] In view of this finding, it is unnecessary for me to consider the substantive merits of Mr. Zhou’s Judicial Review Application. I would also emphasize that, while I have reviewed the filed materials, I have not heard oral submissions on the substantive application. Nevertheless, I make the following observations, recognizing them to be obiter dicta . [ 33 ] The ALRB has expertise in areas of labour disputes. Decisions of the ALRB command deference from the courts. In this case, the Board was considering a complaint by Mr.

Zhou that his union, CUPE 38, breached its duty of fair representation to him. [ 34 ] The Board considered all of the evidence before it, including that presented by Mr. Zhou, and ultimately determined that his complaint should be summarily dismissed as nothing done by the Union in representing the Grievor negatively affected Mr. Zhou in any way. He never lost his position and there was no impact on his pay, benefits or other entitlements. The resolution of the grievance had no

impact on Mr. Zhou’s collective agreement rights. He suffered no prejudice or unfairness. [ 35 ] Mr. Zhou alleges that he has sustained damages and frames them in his Originating Application as “long-term and ongoing emotional distress, pain and psychological suffering inflicted onto [him] by the Union’s targeted and willful discriminatory conduct and wrongful acts.” It bears emphasizing that the Union chose to represent the Grievor and filed the grievance on July 4, 2019. The grievance was resolved by agreement between the City and the Union in October 2019. Mr. Zhou was aware of this.

It is difficult to see how Mr. Zhou’s claim, even if successful, could result in anything more than nuisance damages resulting from the actions of the Union over that three-month period which, again, had no impact on Mr. Zhou’s position, pay, benefits or other entitlements. [ 36 ] The Board summarily determined that the complaint by Mr. Zhou was without merit and was trivial. Given the expertise of the ALRB in matters involving union-member and employer-employee relations, decisions in those areas by the ALRB is entitled to deference. Its decision to summarily dismiss the complaint of Mr.

Zhou appears reasonable and would be entitled to deference. V. Conclusion [ 37 ] The City of Calgary is a party that was directly affected by the

summary dismissal decision of the ALRB issued on March 11, 2021 and would be directly affected by the results of a judicial review of that decision. It was entitled to be served with notice of Mr. Zhou’s Originating Application for Judicial Review within six months of March 11, 2021. [ 38 ] Mr. Zhou failed to serve the Originating Application on the City of Calgary by September 11, 2021, or at any time. [ 39 ] The Originating Application for Judicial Review is struck. Heard on the 29 th day of October, 2021. Delivered orally at the City of Calgary, Alberta this 29 th day of October, 2021. Eric F.

Macklin J.C.Q.B.A. Appearances: Frank Zhou on his own behalf Terri Susan Zurbrigg, Counsel for the Alberta Labour Relations Board E. Wayne Benedict, McGown Cook for CUPE 38 Chelsea Sutherland, Counsel for City of Calgary (Observer)