2020 YKSC 1, 2020 YKSC 1

SUPREME COURT OF YUKON Citation: Kornelsen v. Yukon Employees Union , 2020 YKSC 01 Date: 20200117 S.C. No. 17-A0066 Registry: Whitehorse BETWEEN JEANNIE KORNELSEN PLAINTIFF AND YUKON EMPLOYEES’ UNION PUBLIC SERVICE ALLIANCE OF CANADA DEFENDANT Before Madam Justice S.M. Duncan Appearances: Jeannie Kornelsen Appearing on her own behalf Meagan Hannam Counsel for the defendant REASONS FOR JUDGMENT INTRODUCTION [ 1 ] This is an application by the Yukon Employee’s Union (“YEU”) for dismissal of a claim against them by one of their members, Jeannie Kornelsen, for a breach of the duty of fair representation.

The dismissal application is based on a want of jurisdiction of the Supreme Court of Yukon, pursuant to Rule 14(4)(

a) of the Rules of Court . [ 2 ] The issue is whether a complaint by a union member against her union of unfair representation is properly brought before this Court, or whether as a result of the labour relations statutory scheme her complaint is more properly brought before the Yukon Public Service Labour Relations Board (the “Yukon Board”). [ 3 ] The Yukon Board is established under the Yukon Public Service Labour Relations Act , R.S.Y. 2002, c. 185 (“ Yukon PSLRA ”) to administer the statute. [ 4 ] The Yukon PSLRA does not expressly include a provision about the duty of fair representation by a union.

BACKGROUND [ 5 ] This is a pleadings application. The following background comes from allegations as set out in the pleadings as well as from affidavit evidence and oral submissions in support of this application. [ 6 ] The YEU is part of the Public Service Alliance of Canada and is the union that represents employees of the Government of Yukon. Jeannie Kornelsen commenced employment with the Government of Yukon in 1995. She has been a member of the YEU since 1998, when she first occupied a permanent seasonal position in the Marketing Branch of the Department of Tourism and Culture.

She retained her status as a permanent seasonal employee throughout her employment. [ 7 ] The employment relationship was governed by the Public Service Act , R.S.Y. 2002, c. 183 , the Yukon PSLRA , and the collective agreement. [ 8 ] Ms. Kornelsen originally approached the YEU in 2015 for assistance with an employment accommodation request on the basis of a claimed disability. Several meetings were held between her and the YEU representative assigned to her file. She also attended a

number of meetings with the Government of Yukon, accompanied by YEU representatives. Attempts over several months to create anaccommodation plan were unsuccessful. The employer had concerns that Ms. Kornelsen did not participate fully in the accommodationprocess. Her employment was terminated by the deputy head pursuant to s. 121 of the Public Service Act by letter dated September 4,2015. The reasons were declining reasonable accommodation; refusing to cooperate with accommodation efforts; and not beingavailable for work. [9] Ms.

Kornelsen indicated to the YEU by email her intention to appeal the decision of the deputy head. The Public Service Actallows an employee’s bargaining unit representative to assist the employee in the appeal process. After some further email exchangesbetween Ms. Kornelsen and the YEU, the YEU offered to meet with her to discuss how they could assist her with an appeal. Ms.Kornelsen did not respond to that offer. YEU says they have no knowledge of whether the appeal was initiated and, if so, its outcome. [10] Ms.

Kornelsen alleges that the YEU failed to fulfill their duty of fair representation during the accommodation process, up toand including the termination of her employment. She claims damages for pain and suffering plus an amount equivalent to her uniondues over the years. For the purpose of this pleadings application, it is not necessary to set out the allegations in any detail or address themerits of the underlying claim of unfair representation. [11] Ms. Kornelsen says the Supreme Court of Yukon is her last resort to address this matter.

In her oral submissions she says sheattempted unsuccessfully to contact the Yukon Board and concluded they do not exist. ISSUES [12] Does the absence of an expressly stated duty of fair representation in the Yukon PSLRA prohibit the Yukon Board fromassuming jurisdiction over a complaint of a breach of duty of fair representation? [13] If the Court has residual jurisdiction, should it assume jurisdiction in this case? Short Answer [14] The duty of fair representation exists implicitly in the Yukon PSLRA.

The exclusive statutory right of the union to bargain onbehalf of and represent employees gives rise to a corresponding obligation on the union to act fairly when exercising those duties. TheYukon PSLRA sets out a comprehensive scheme to regulate the employer-employee relationship and creates a specialized tribunal, theYukon Board, to administer the statute. [15] The statute provides the Yukon Board the ability to exercise powers and perform functions conferred or imposed upon it by thestatute, or as are incidental to the attainment of the objects of the statute.

Protection of the implied right of employees to be fairlyrepresented is one of the objects of the statute. The Yukon Board is given the specific statutory mandate to examine and inquire into anycomplaint made to it that any employee organization, or person acting on its behalf, has failed to observe any prohibition or give effect toany provision contained in the Yukon PSLRA or the regulations.

Upon the Yukon Board determining such a failure, it may make anorder addressed to the person and/or the employee organization directing them to observe the prohibition, give effect to the provision, orto take any action that may be required within a specified period of time.

Where the order is not complied with, the Yukon Board ismandated to forward a report to the Minister of the circumstances and related documents and a copy shall be provided to the legislativeassembly by the Minister within 15 days after receipt. [16] Every order or decision of the Yukon Board is final and may only be subject to judicial review on the grounds of lack ofjurisdiction, failure to observe natural justice or procedural fairness, or acting or failing to act by reason of fraud or perjured evidence. [17] This comprehensive statutory scheme demonstrates legislative intent that judicial restraint be exercised in the context of labourrelations.

It is consistent with the modern approach that recognizes labour relations as a field of specialized expertise. The Yukon PSLRAcontains provisions that allow for effective redress of a complaint by an employee of unfair representation by her union. It is notnecessary to determine with finality whether the jurisdiction of the Yukon Board is exclusive or whether there is any residual jurisdictionof the Court. On the allegations set out in the pleadings in this case, it is appropriate for jurisdiction to be assumed by the Yukon Board. I.

Board jurisdiction in the absence of express statutory duty of fair representation a. Legal Principles [18] The first question to be determined is whether the absence of an express duty of fair representation in the Yukon PSLRA is fatalto the ability of the Yukon Board to hear any complaint of unfair representation against the YEU by one of its members. [19] It is undisputed that the duty of fair representation exists at common law.

Once a union is given by statute the exclusive right torepresent employees, there is a commensurate obligation on the union to act fairly, impartially, without arbitrariness, discrimination or inbad faith. The Supreme Court of Canada (Canadian Merchant Service Guild v. Gagnon, (SCC), [1984] 1 S.C.R. 509)has acknowledged and endorsed this common law duty as described originally by the United States Supreme Court to be necessary “inorder to balance unions’ statutory grant of power.

It was recognized that while the union’s status as exclusive bargaining agent operatesto counteract the economic power of the employer, and therefore works to the benefit of those represented, it was nevertheless necessaryto ensure that unions wielded their power fairly” (Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local50057, (SCC), [1990] 1 S.C.R. 1298 (“Gendron”) at p. 1312). [20] Most Canadian jurisdictions have codified the duty of fair representation into the relevant labour relations statutes.

Although ineach case the specific provisions of the statute must be examined, generally the jurisprudence provides that where codification of the

duty exists and there are statutory remedies to address breaches of the duty, the procedure under the statute should be followed, ratherthan allowing litigation of the complaint through the court. This approach has been followed even where the legislation does notexpressly provide that the statutory tribunal has exclusive jurisdiction. [21] Judicial deference is justified by the legislators’ choices to establish specialized structures under the legislation, includingspecialized tribunals operating within a particular field of expertise. As stated in Canadian Union of Public Employees Local 963 v.

NewBrunswick Liquor Corp., (SCC), [1979] 2 S.C.R. 227 at p. 5, The rationale for protection of a labour board’s decisions within jurisdiction is straightforward and compelling. The labour board is aspecialized tribunal which administers a comprehensive statute regulating labour relations.

In the administration of that regime, a boardis called upon not only to find facts and decide questions of law, but also to exercise its understanding of the body of jurisprudence thathas developed around the collective bargaining system, as understood in Canada, and its labour relations sense acquired fromaccumulated experience in the area. [22] Further, as noted in Gendron at p. 1325: The rationale for this approach has to do with the Court’s deference to the “expertise” of statutorily established and administeredtribunals.

In the field of labour law, the concentration of decision making power among labour tribunals and arbitrators is designed forefficiency, and is tailored to the development of a coherent labour law policy. [23] Where Parliament has codified the common law duty, the Court in Gendron concluded that: … while the legislation does not expressly oust the common law duty of fair representation, it does however effect this end by necessaryimplication … A necessary caveat to this conclusion is that, while the common law duty will be inoperative in a situation where the terms of the statuteapply, a different conclusion may be warranted in a case where the statute is silent or by its terms cannot apply.

Such may be the casewhere the statutory duty is, by its terms, applicable only in circumstances where the breach of the duty arises out of contractadministration… A different conclusion may also be warranted where it is not clear that the statute exclusively covers the breach. (p. 1319-20) [24] In cases such as this one where no express statutory duty of fair representation exists, the courts are divided.

Courts in NewBrunswick, Nova Scotia and Prince Edward Island have held that the absence of an express statutory duty means that the courts haveexclusive jurisdiction to determine if the duty has been breached and if so, provide a remedy under the common law, which is usuallyrestricted to damages. [25] None of the court decisions from the provincial or territorial superior courts to which this Court was referred provides anyanalysis of the issue of jurisdiction where there is no express duty. The discussion ends with the finding that there is no express duty inthe relevant labour relations statute.

The Courts conclude that displacement of the common law duty of fair representation by a statutoryduty of fair representation cannot be effected by inference (Re United Brotherhood of Carpenters and Joiners of America, Local 1023 v.Laviolette, (1998) (NB CA), 199 N.B.R. (2d) 270 (C.A.)). There is no discussion of whether or not an implied dutyexists. In one case from the Northwest Territories, McLeod v. Union of Northern Workers, 2002 NWTSC 57, court jurisdiction wasnecessarily found because there was no applicable labour relations legislation.

Court jurisdiction in the absence of an express statutoryduty of fair representation is viewed in the referenced cases as an exception to the modern approach of judicial deference in the contextof a comprehensive labour relations statutory scheme. [26] By contrast, the jurisprudence from the Federal Court shows deference to labour relations schemes set out by statute even in theabsence of an express statutory duty. [27] The first step in the analysis in these cases is a finding that an implied duty of fair representation exists in the statute.

The firstcourt to address this was the Federal Court of Appeal in Canadian Air Traffic Control Association v. The Queen in right of Canada asrepresented by the Treasury Board, (FCA), [1985] 2 F.C. 84 (C.A.), in which the Court examined the federal PublicService Staff Relations Act (“PSSRA”). Before its 1992 amendments, that statute contained no express duty of fair representation. Thus itwas the same as the current Yukon PSLRA. [28] The Federal Court of Appeal noted the acceptance by Canadian courts (as first stated in Canadian Merchant v.

Gagnon) of theAmerican precedents that concluded once a union has the right to represent employees, it has resulting obligations.

The Federal Court ofAppeal further stated that the specific statutory provisions setting out the union’s exclusive right to bargain and its exclusive right torepresent employees inevitably result in an implied duty. [29] On the basis of this decision as well as the decision in Gendron, in which the rationale for the jurisdiction of boards or tribunalsestablished by statute received judicial approval in the context of an express duty, labour boards in the federal context began to assumejurisdiction over complaints of unfair representation even in the absence of an express statutory duty. (See Albert v.

Hawley, [1987]C.P.S.S.R.B. No. 292; Beaulne v. Public Service Alliance of Canada, [2009] C.P.S.L.R.B. No. 10, aff’d 2011 FCA 62, leave to appealdismissed [2011] S.C.C.A. 214 (“Beaulne”); Canadian Union of Public Employees Local 963 v. New Brunswick Liquor Corp, citedabove; Morin v. Ford, [1989] C.P.S.S.R.B. No. 263). These jurisdictional decisions have been upheld by the Federal Court and theSupreme Court of Canada. [30] In assuming jurisdiction, the boards have relied in part on the statutory provision that sets out their mandate and the powers and

functions conferred on them. For example, in Beaulne, a complaint about the duty of fair representation was filed with the Canada PublicService Staff Relations Board, pursuant to the Parliamentary Employment and Staff Relations Act (“PESRA”). The PESRA, like theoriginal PSSRA before the 1992 amendments and the current Yukon PSLRA, did not contain an express duty of fair representation. TheBoard found that the duty was implied under the statute, following the reasoning in Canadian Air Traffic Control Association. It thenbased its assumption of jurisdiction on the following

section of the PESRA: 10. The Board shall administer this Part and shall exercise such powers and perform such duties as are conferred or imposed on it by, oras may be incidental to the attainment of the purposes of, this

Part including, without restricting the generality of the foregoing, themaking of orders requiring compliance with this Part, with any regulation made hereunder or with any decision made in respect of amatter coming before it. [31] This reasoning was followed in Public Service Alliance of Canada v. Treasury Board (Program and Administrative ServicesGroup), 2010 PSLRB 88, aff’d 2011 FCA 257. The case was not about the duty of fair representation.

It was about the employer’sexclusive power under s. 120 of the federal Public Service Labour Relations Act (“PSLRA”) to determine the level of essential service inthe event of a strike. The issue was the same as in the duty of fair representation cases, and in the case at bar: was there an implied dutyon the employer to exercise their discretion fairly given their exclusive power, and if so, could the board created under the PSLRAdetermine disputes related to this implied duty?

The Board held at para. 164 (upheld by the Federal Court of Appeal on judicial review): Parliament intended that the Board take responsibility for the labour relations processes that the Act mandates provided that it acts in afashion that is consistent with the objects of the Act. With Vaughan and other more recent decisions, the courts have increasinglyrecognized that labour statutes create exclusive regimes for the supervision of labour relations and for the resolution of labour relationsdisputes.

Effective stewardship of those regimes requires that boards and arbitrators or adjudicators, as opposed to the courts, activelysupervise the parties to the extent that their enabling statutes (or collective agreements) permit. … Had Parliament intended

section 120to operate outside the exercise of any administrative supervision by the Board whatsoever, it could have achieved that end by expresslyexempting

section 120 from

section 36 [the provision giving the board powers and functions conferred on by the Act or incidental to theattainment of objects of the Act] in either or both provisions. Parliament did not. [32] Further, as stated by the Nova Scotia Court of Appeal in Adams v. Cusack, 2006 NSCA 9 at para. 13: Since at least the mid 1980’s [sic], the Supreme Court of Canada has recognized that the courts should be cautious not to undermine “…acomprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting”: St. AnneNackawic Pulp & Paper v.

Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 S.C.R. 704 at 721. [33] In the Adams v. Cusack case, the relevant statute was the federal Public Service Staff Relations Act, R.S.C. 1985, c. P-35(“PSSRA”), the statute on which the Yukon PSLRA was modelled before its 1992 amendments. The issue was whether a Captain in theCoast Guard could access the courts to remedy his allegation of constructive or wrongful dismissal, or whether his complaints should beaddressed under the grievance and adjudication provisions of the PSSRA, and the harassment provisions of the Public ServiceCommission.

The Nova Scotia Court of Appeal noted that even though the PSSRA did not contain language sufficiently clear to oustcourt jurisdiction, judicial deference was appropriate because of the clear legislative intent that disputes be resolved within the schemeset out in the statute. [34] The Supreme Court of Canada in Vaughan v.

Canada, 2005 SCC 11, a case about whether a workplace dispute over entitlementto certain benefits should be decided under the grievance procedure established by the federal PSSRA, or by the court, summarized thecourt’s task in such jurisdictional determinations as follows: (p. 157, para. 22) The task of the court is still to determine whether, looking at the legislative scheme as a whole, Parliament intended workplace disputesto be decided by the courts or under the grievance procedure established by the PSSRA. b. The Yukon PSLRA [35] The Yukon statute is silent on the duty of fair representation.

However, the statute provides that the union has the exclusiveright to bargain and represent employees in a grievance.

Section 30 states: 30(1) If an employee organization is certified under this Act as the bargaining agent for a bargaining unit, (

a) the employee organization has the exclusive right under this Act (

i) to bargain collectively on behalf of employees in the bargaining unit and to bind them by a collective agreement until its certificationin respect of the bargaining unit is revoked, and (ii) to represent, in accordance with this Act, an employee in the presentation or reference to adjudication of a grievance relating to theinterpretation or application of a collective agreement or arbitral award applying to the bargaining unit to which the employee belongs; [36] Sections 77(2) and 78(2) provide that the union must approve any grievance presentation or referral to adjudication by an

employee. Those sections state: 77(2) An employee is not entitled to present any grievance relating to the

interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies, or any grievance relating to any action taken pursuant to an instruction, direction, or regulation given or made as described in

section 100. … 78(2) The employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies signifies in the prescribed manner (

a) its approval of the reference of the grievance to adjudication; and (

b) its willingness to represent the employee in the adjudication proceedings. [ 37 ] The Yukon PSLRA also contains a comprehensive scheme for remedy for breach.

Section 6 of the Yukon PSLRA establishes the Yukon Board. It is made up of members of the Public Service Labour Relations Board (“PSLRB”) appointed under the federal statute. The Chair and the Vice-Chair of the Yukon Board hold the equivalent positions in the federal PSLRB. They are members who clearly have specialized expertise in this area of labour relations. [ 38 ]

Section 16 of the Yukon PSLRA sets out the mandate of the Yukon Board as follows: 16 The board administers this Act and it may exercise the powers and perform the functions that are conferred or imposed on it by this Act, or as are incidental to the attainment of the objects of this Act, including the making of orders requiring compliance with (

a) this Act; (

b) regulations made under this Act; or (

c) decisions made in respect of a matter coming before the board. S.Y. 2004, c.8, s.49 ; S.Y. 2002, c.185, s.16 . [ 39 ]

Section 19 describes the specific powers of the Yukon Board relating to evidence, witnesses, documents, types of hearings and other matters related to the conduct of hearings and the making of decisions and orders, with respect to any matter that comes before them.

Section 19.9 provides for judicial review of any order or decision of the Yukon Board on grounds of jurisdiction, natural justice or procedural fairness, or fraud/perjury. [ 40 ] Most significantly, s. 19.11 sets out the nature of the complaints that may be examined or inquired into by the Yukon Board: 19.11(1) The board shall examine and inquire into any complaint made to it that the employer, or any person acting on its behalf, or that any employee organization, or any person acting on its behalf, has failed (

a) to observe any prohibition or to give effect to any provision contained in this Act or the regulations; …

(2) If under subsection (1) the board determines that any person has failed to observe any prohibition, to give effect to any provision or decision, or to comply with any regulation as described in subsection (1), it may make an order, addressed to that person, directing them to observe the prohibition, give effect to the provision or decision, or comply with the regulation, as the case may be, or take any action that may be required in that behalf within any specified period the board may consider appropriate, and … (

b) if that person has acted or purported to act on behalf of an employee organization, it shall direct its order as well to the chief officer of

that employee organization. S.Y. 2004 , c.8, s.49 . [ 41 ]

Section 19.12 provides that where an order made under s. 19.11 is not complied with, the Yukon Board is required to forward a report to the Minister setting out the circumstances and including documents, and that material must be put before the Legislative Assembly by the Minister within 15 days of receipt. c. Analysis [ 42 ] There is one Yukon decision from this Court dealing with the same subject matter- Laforet v. Public Service Alliance of Canada, [1995] Y.J. No. 108 (S.C.) .

The plaintiff brought an action against his union for breach of the duty of fair representation for failure to grieve the termination of his employment. The union withdrew its initial objection that the Supreme Court of Yukon did not have jurisdiction. The Court speculated that the reason for the withdrawal of the objection was because neither the PSLRA nor the collective agreement contained an express duty of fair representation. [ 43 ] This conclusion was in obiter after the union’s objection was withdrawn.

The decision was issued 25 years ago, without the benefit of legal argument on the matter of jurisdiction. It does not take into account the more recent jurisprudence from the Federal Court and Supreme Court of Canada analysing implied duty and judicial deference to a comprehensive statutory scheme in the labour relations context. [ 44 ] I am persuaded instead by the analysis in the Federal Court jurisprudence that the existence in the Yukon PSLRA of an exclusive right of the union to bargain and represent employees gives rise to a corresponding obligation to do so fairly, implicit in the statute.

Sections 30 and 77 clearly set out those exclusive rights of the union. This case is not one of the exceptions contemplated in Gendron where the statute does not cover the subject matter of the alleged breach or by its own terms does not apply. [ 45 ] The analysis requires a review of the statute to determine if it provides a remedy for a complaint of breach of the implied duty. In this case, s. 16 sets out the Yukon Board’s powers, which include doing anything the Yukon PSLRA confers or imposes, or anything incidental to the attainment of the objects of the Yukon PSLRA .

The objects include the protection afforded to the employees of the union’s duty to them of fair representation, implied in the statute ( Albert v. Hawley ). [ 46 ] Even more specifically, the provisions in ss. 19.11 and 19.12 set out the Yukon Board’s obligation to inquire into any complaint that an employee organization has failed to act in accordance with the statute or regulations. The wording is almost identical to that in the PESRA that was assessed in the case of Beaulne , except in one important respect.

In that case, the complainant employee filed a complaint of unfair representation against his union under the equivalent of s. 19.11. The Board took jurisdiction of the complaint on the basis of the reasoning in Gendron and Canadian Air Traffic Control Association v. The Queen , as described above. The Board’s decision was upheld by the Federal Court of Appeal, with application for leave to appeal to the Supreme Court of Canada dismissed. [ 47 ] The important difference between the Yukon PSLRA in this case and the PESRA in the Beaulne case is the breadth of each Board’s powers.

In Beaulne , the Board was restricted by statute to a complaint that an employee organization had failed to observe any prohibition contained in three sections of the statute, none of which is an unfair representation provision. That duty was implied. Still, the Board assumed jurisdiction for an unfair representation complaint. By contrast, the Yukon PSLRA states that the Board shall examine and inquire into a complaint that an employee organization has failed to observe any prohibition or give effect to any provision in the Act or regulation.

This is a broader mandate than that contained in the statute in Beaulne , and reinforces the ability of an unfair representation complaint to be addressed by the Yukon Board in this case. Accepting that the Yukon PSLRA contains an implied duty of fair representation by the union, means that ss. 19.11 and 19.12 provide effective redress for a failure to meet that duty. [ 48 ] Further, the remedy under s. 19.11 of the Yukon PSLRA is broad. It includes giving effect to the provision that has not been complied with or taking any action that may be required.

This is similar to the situation in Gendron , where the Court observed that the remedial provisions in the Canada Labour Code improved “significantly the position at common law of an aggrieved person” (p. 1318) by providing more options than damages, the sole remedy at common law. [ 49 ] To resort to the common law, outside the statutory scheme, would defeat one of the purposes of the Yukon PSLRA which is to preserve a procedural code, with disputes presided over by a competent authority, well-versed in the nature of union representation and factual contexts of disputes.

A consideration of the statute as a whole, and the specific provisions as set out above, are sufficient to persuade me that an implied duty exists under the statute and its breach can be addressed by mechanisms available in the statute. [ 50 ] Given the wording in s.19.11 requiring the Board to examine and inquire into a complaint that an employee organization has not met its duty of fair representation, implicitly found in the statute, it is not necessary to apply the doctrine of necessary implication in this case. [ 51 ] Judicial deference to the Yukon Board is warranted in this case, given the following: i. a finding that the Yukon PSLRA contains a duty of fair representation by implication ( ss. 30 and 77 ); ii. powers of the Board to do anything conferred or imposed on it by the Yukon PSLRA or as are incidental to the attainment of the objects of the Yukon PSLRA ( s. 16 ); iii. recognition that the statute sets out a process for dealing with failure to comply with the duty of unfair representation, including a broad remedy (ss. 16, 19.11 and 19.12); iv. a privative clause, restricting court intervention to judicial review on specific grounds (s. 19.9).

II. Residual Jurisdiction of the Court

a. Legal Principles [52] The next question is whether the court may have concurrent jurisdiction with the Yukon Board to determine a complaint ofunfair representation, and if so, whether the court should still defer to the Yukon Board. [53] Many of the cases in which boards assumed jurisdiction do not address the issue of the court’s residual or concurrentjurisdiction. Two leading decisions in which this issue was addressed are Gendron and Vaughan. [54] In Gendron, the Court found the Board had exclusive jurisdiction because of specific statutory provisions, including an expressduty of fair representation.

The Court indicated that this conclusion might vary with different statutory wording. [55] In Vaughan, the Supreme Court of Canada held that the courts will retain jurisdiction if the remedy sought is not one which thestatutory scheme can provide. In that case, the majority held that the language of the statute was not strong enough to oust thejurisdiction of the ordinary courts with respect to matters that were grievable but not arbitrable. However, the majority held that thecourts should defer to the jurisdiction of the board, for a number of reasons that are applicable in this case. b.

Analysis [56] Like Vaughan, this is a case where the court should defer to the process in the PSLRA for the following reasons (based onVaughan): a. The complaint of unfair representation by an employee against her union arises from the employment relationship. b.

Section 19 of the Yukon PSLRA provides a mechanism and remedy for the complaint to be resolved. The matter of unfairrepresentation can be determined by an independent Board with specialized expertise in labour relations, and the broad remedy, includingan order requiring a person or employee organization to take any action required that the Board considers appropriate, provides effectiveredress to the employee. c. Efficient labour relations is undermined when the courts set themselves up in competition with the statutory scheme (St. AnneNackawic Pulp & Paper v.

Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 S.C.R. 704; Weber v. OntarioHydro, (SCC), [1995] 2 S.C.R. 929; and Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners,2000 SCC 14). d. The legislature has created a comprehensive scheme for addressing labour disputes and courts should not jeopardize thecomprehensive dispute resolution process in the legislation by permitting routine access to the courts. e. More informal dispute resolution procedures are generally faster and less expensive, and provide a solution.

This case has takenfive years to get to court and is still at the stage of a pleadings application. f. The dispute is straightforward.

Specialized tribunals like the Yukon Board (who are all members of the federal board withexpertise in labour relations and union/employee relationships) are best equipped to interpret and apply the duty of fair representation.Like in the case of Vaughan, there remains concern about a floodgates argument if the courts were able to hear any complaints byemployees against their union for failure to represent them fairly. [57] Therefore it is not necessary to decide for the purpose of this application whether the Court may have residual jurisdiction insome circumstances.

There are sufficient reasons as set out above for the Court to decline to exercise jurisdiction on the facts of this case.As stated by the Court of Appeal in Pleau (Litigation Guardian of) v.

Canada (Attorney General) 1999 NSCA 159 , 1999, 182 D.L.R. (4th) 373 (N.S.C.A.), quoted in Vaughan at p.157, in concluding that Parliament’s intent in ss. 91 and 92 of the PSSRA was not tooust the jurisdiction of the courts: While it takes very clear language to oust the jurisdiction of the superior courts as a matter of law, courts properly decline to exercisetheir inherent jurisdiction where there are strong policy reasons for doing so. III. Concerns of Ms. Kornelsen [58] Ms.

Kornelsen states in her outline that the Supreme Court of Yukon is her only and last resort to address her concerns aboutunfair representation by her union. She says her attempts to contact the Yukon Board were futile and she was told by a number ofindividuals that it did not exist. [59] Counsel for the YEU responded that the Yukon Board does indeed exist and provided Ms. Kornelsen with phone numbers bywhich she could access them. [60] At the Court’s request, counsel for the YEU provided a letter after the hearing confirming that if Ms.

Kornelsen were to bring acomplaint now under the Yukon PSLRA against the YEU, about the events that occurred in 2015, the YEU would take no position onany limitations argument. [61] Most of Ms. Kornelsen’s submissions, both written and oral, focussed on the background to her workplace accommodationrequest, and difficulties with her experiences in seeking union representation and assistance. I am sympathetic to Ms. Kornelsen’sfrustrations and acknowledge her strong sense of injustice in her dealings with the union. However, this is not the focus of thisapplication. CONCLUSION

[ 62 ] Based on the foregoing, the action is dismissed pursuant to Rule 14(4)(

a) on the ground that the pleading does not allege facts that, if true, would establish that the Supreme Court of Yukon has jurisdiction in this matter. As noted at the outset, I make no findings on the merits of Ms. Kornelsen’s complaint. Given the YEU is taking no position on limitations if she were to bring a complaint to the Yukon Board now, based in part on this decision, Ms. Kornelsen is not without a potential remedy for her complaint. ___________________________ DUNCAN J.