2018 NLCA 67, 2018 NLCA 67

Trent Douglas Young (appellant) v. W. John Clarke (first respondent) and International Union of Operating Engineers, Local 904 (second respondent) and Atlantic Minerals Limited (third respondent) (18/02) Indexed As: Young v. Clarke 2018 NLCA 67 3 C.A.N.L.R. 565 Court of Appeal of Newfoundland and Labrador Harrington, Hoegg and Goodridge JJ.A. November 30, 2018

Summary: Trent Young, the appellant and a member of the International Union of Operating Engineers, Local 904 (the Union), applied for judicial review of an arbitration award upholding his termination of employment at Atlantic Minerals Limited. The Union, which had grieved Mr. Young’s termination but did not apply for judicial review of the arbitration decision, successfully applied to have the application dismissed. Mr. Young appealed. Held: Appeal dismissed.

Hoegg J.A. (Harrington and Goodridge JJ.A. concurring): The principles governing the relationships among unions, their members, and employers are well-established. The parties to grievance or judicial review proceedings are unions and employers; individual union members are not parties for the purposes of grievance proceedings or applying for judicial review of an arbitration award. Narrow exceptions to this rule have been recognized in the jurisprudence, but they do not apply. The Judge observed that any complaint Mr.

Young had about his representation by the Union could be addressed by filing a complaint under the Labour Relations Act, RSNL 1990, c. L-1 and thereby seeking a remedy. The Court was advised that Mr. Young has availed of this process. The applications Judge made no error. The appeal must be dismissed. Cases cited: Noël v. Société d’énergie de la Baie James , 2001 SCC 39 , [2001] 2 S.C.R. 207 Migneault v. New Brunswick (Board of Management ), 2016 NBCA 52 , 452 N.B.R. (2d) 223 Yee v. Trent University, 2010 ONSC 3307 , 320 D.L.R. (4th) 746 Misra v.

Toronto (City), 2016 ONSC 1011 , 345 O.A.C. 217 Counsel: Appearing on his own behalf, the appellant; Colin D. Feltham, for the first respondent; Ronald A. Pink Q.C., for the second respondent; Twila E. Reid and Giles Ayers, for the third respondent. This appeal was heard on November 22, 2018 before Harrington, Hoegg and Goodridge JJ.A.

The following memorandum of disposition was filed on November 30, 2018 by Hoegg J.A. for the Court. ______________________________________________________________ Hoegg J.A.: [1] Trent Young, a member of the International Union of Operating Engineers, Local 904 (the Union), applied for judicial review ofan arbitration award upholding his termination of employment at Atlantic Minerals Limited. Upon learning of Mr. Young’s application,the Union applied to have it dismissed. The Applications Judge allowed the Union’s application and dismissed Mr. Young’s application(Young v.

Clarke (2017), 295 A.C.W.S. (3d) 166 (NLSC)). Mr. Young appealed the Judge’s decision. [2] When Mr. Young was terminated from his employment at Atlantic Minerals Limited on June 10, 2015, the Union grieved hisdismissal. The matter was eventually referred to mediation/arbitration and W. John Clarke, Q.C. was appointed the arbitrator. Mr.Clarke upheld Mr. Young’s dismissal in an award dated May 29, 2017. The Union did not seek judicial review of the arbitration award. [3] On September 15, 2017, Mr. Young applied for judicial review of the arbitrator’s award. The Union’s subsequent application tohave Mr.

Young’s application for judicial review dismissed was based on the argument that Mr. Young had no standing to apply forjudicial review. Moreover, the Union argued, even if Mr. Young did have standing, his application was out of time. The ApplicationsJudge dismissed Mr. Young’s application on the basis that he had no standing to bring it. [4] Mr. Young’s appeal was heard on November 22, 2018. He represented himself but was permitted to have the assistance of Mr.Roger LaSaga pursuant to rule 22(2)(

b) of the Court of Appeal Rules. [5] After consideration of the record and the written and oral submissions of Mr. Young and all counsel, the Court dismissed Mr.Young’s appeal. [6] In short, the principles governing the relationships among unions, their members, and employers are well-established. Theparties to grievance or judicial review proceedings are unions and employers; individual union members are not parties for the purposesof grievance proceedings or applying for judicial review of an arbitration award (Noël v. Société d’énergie de la Baie James, 2001 SCC39, [2001] 2 S.C.R. 207, at paras. 62-63).

Narrow exceptions to this rule have been recognized in the jurisprudence. They are: (1) wherethe collective agreement confers a right on the union member to seek judicial review; (2) where the union takes a position adverse to the member such that the proceedings are unfair; and (3) where the union’s representation by the member is so deficient that themember must be given the right to pursue judicial review (Migneault v. New Brunswick (Board of Management), 2016 NBCA 52, 452N.B.R. (2d) 223, at para. 8; Yee v.

Trent University, 2010 ONSC 3307 , 2010 ONSE 3307, 320 D.L.R. (4th) 746; and Misra v.Toronto (City), 2016 ONSC 1011, 345 O.A.C. 217). [7] The Applications Judge correctly stated the law and identified the three exceptions. She determined that: (1) there was noprovision in the applicable collective agreement which conferred a right to Mr.

Young to have the arbitration award judicially reviewed;(2) there was no breach of natural justice or unfairness in the grievance or arbitration proceedings; and (3) there was no deficiency in Mr.Young’s representation by the Union at those proceedings that would entitle him to seek judicial review. [8] On appeal, Mr. Young focused on two arguments: (1) despite not being a party to the collective agreement, he was a partywithin the meaning of section 14(2) of the Arbitration Act, RSNL 1990, c.

A-14 and thereby entitled to apply for judicial review; and (2)his signature on a Memorandum of Process, which he, the Union, the employer, and the arbitrator had signed and agreed to follow, gavehim party status so as to entitle him to apply for judicial review. The reference to parties in section 14(2) the Arbitration Act refers to theUnion and the Employer, and does not in any way give credence to the notion that an individual union member is a party for thepurposes of seeking judicial review of an arbitration award. In regard to Mr.

Young’s agreement to the manner in which the arbitrationproceeded, the process document he signed was a precaution taken to insure that all participants in the arbitration understood and agreedwith the procedure to be followed. It specifically provides in clause 4 that the procedure agreed to, does not grant a right of challenge byany court, board, or the parties. Accordingly, such a process document does not make Mr. Young a party for the purposes of seekingjudicial review, as the Judge found. [9] Finally, the Judge observed that any complaint Mr.

Young had about his representation by the Union could be addressed byfiling a complaint under the Labour Relations Act, RSNL 1990, c. L-1 and thereby seeking a remedy. The Court was advised that Mr.Young has availed of this process. [10] In

summary, the Court was of the view that the applications Judge made no error in her apprehension of the applicable law andits application to the facts of Mr. Young’s case. Mr. Young was unable to demonstrate otherwise. Accordingly, his appeal wasdismissed. [11] The Court ordered Mr. Young to pay costs on the appeal to the Union and Atlantic Minerals Limited. We fix the amounts at$750 for each. Appeal dismissed.