Burns et al. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 219 et al., (2012) 383 N.B.R.(2d) 245 (CA)

• Judge: Robertson, Richard and Green, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: May 24, 2011
• Jurisdiction: New Brunswick
• Citations: (2012), 383 N.B.R.(2d) 245 (CA);2012 NBCA 13

Burns v. NAATGWU (2012), 383 N.B.R.(2d) 245 (CA);

    383 R.N.-B.(2e) 245; 991 A.P.R. 245

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2012] N.B.R.(2d) TBEd. FE.022

Renvoi temp.: [2012] N.B.R.(2d) TBEd. FE.022

Thomas Burns, Henry Grant, Lawrence Graham, Victor Greer, Mike Hawkes, Glen Mills, Byron Murphy and the Estate of Arnold Pike as Represented by Sheila Gray, Executrix and Personal Representative of the Estate of Arnold Pike (plaintiffs/appellants) v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 219 and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (defendants/respondents)

(140-10-CA; 2012 NBCA 13)

Indexed As: Burns et al. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 219 et al.

Répertorié: Burns et al. v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 219 et al.

New Brunswick Court of Appeal

Robertson, Richard and Green, JJ.A.

February 16, 2012.

Summary:

Résumé:

A pulp mill ceased operation. The defendant union represented the approximately 300 workers who were left unemployed. A new owner purchased the mill. A collective agreement was reached. Article 3.09 of the agreement stated that "The Company [the new owner] does not have any obligation to hire any of the employees/former employees of [the mill]". The new owner agreed to give priority in hiring to the former employees and that, if hired, their seniority with the previous employer would be recognized for certain purposes. The plaintiffs were former employees of the mill who were not hired back by the new owner. They sued the union, seeking damages for breach of the duty of fair representation. The plaintiffs alleged that the union had acted dishonestly in misrepresenting the agreement and had deliberately misled the workers by indicating that all former employees would be rehired by seniority.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2010), 365 N.B.R.(2d) 279; 939 A.P.R. 279, dismissed the action. The court declined to award costs. The plaintiffs appealed and the union cross-appealed regarding costs.

The New Brunswick Court of Appeal dismissed the plaintiffs' appeal and allowed the union's cross-appeal, awarding trial costs of $26,375 plus reasonable disbursements to the union.

Labour Law - Topic 2443

Unions - Liability of unions - Torts and civil responsibility - Breach of duty of representation - A pulp mill ceased operation - The defendant union represented the approximately 300 workers who were left unemployed - A new owner purchased the mill - A collective agreement was reached - Article 3.09 of the agreement stated that "The Company [the new owner] does not have any obligation to hire any of the employees/former employees of [the mill]" - The new owner agreed to give priority in hiring to the former employees and that, if hired, their seniority with the previous employer would be recognized for the purpose of "vacations and progression within the mill" - The plaintiffs were former employees of the mill who were not hired back by the new owner - They sued the union, seeking damages for breach of the duty of fair representation - The plaintiffs alleged that the union had acted dishonestly in misrepresenting the agreement and had deliberately misled the workers by indicating that all former employees would be rehired by seniority - The trial court dismissed the action, finding that the alleged misrepresentations had not been made and that the union had fairly represented the workers - The New Brunswick Court of Appeal dismissed the plaintiffs' appeal - The union had not failed to inform its members of article 3.09 prior to the ratification vote - Nor had the union misled the plaintiffs to believe that they would be rehired on the basis of seniority - Article 3.09 was clear and unequivocal - The new owner was under no obligation to hire any of the former employees - There was no error by the trial judge - See paragraphs 10 to 21.

Labour Law - Topic 2706

Unions - Duties - To represent members of bargaining unit - [See Labour Law - Topic 2443 ].

Practice - Topic 7003

Costs - Party and party costs - General principles and definitions - Amount involved - [See Practice - Topic 7024.5 ].

Practice - Topic 7024.5

Costs - Party and party costs - Entitlement to - Successful party - Exceptions - Grounds raised by court - A pulp mill ceased operation - The defendant union represented the approximately 300 workers who were left unemployed - A new owner purchased the mill - A collective agreement was reached - The plaintiffs were former employees of the mill who were not hired back by the new owner - They sued the union, seeking damages for breach of the duty of fair representation - The trial court dismissed the action with no award of costs - On the plaintiffs' appeal, the union cross-appealed regarding costs - The New Brunswick Court of Appeal allowed the cross-appeal - While the court accorded deference to trial judges on costs, that deference was not absolute - Here, the trial judge appeared to have been unwilling to award costs to the successful union because the issue of damages was "difficult to address" - This was not a ground for refusing to award costs to the successful party - The plaintiffs had not identified any reason for departing from the general rule - The trial judge's refusal to award costs was an error of law - This was a five day trial at which seven witnesses testified - The amount involved was $2 million - Applying Tariff A, the court adopted Scale 3 for the first $100,000 ($7,373) and applied a percentage of 1% to the excess ($19,000) - This led to an award of $26,375, plus reasonable disbursements - See paragraphs 22 to 26.

Practice - Topic 8301

Costs - Appeals - Appeals from order for costs - Variation of order of trial court - [See Practice - Topic 7024.5 ].

Droit du travail - Cote 2443

Syndicats - Responsabilité - Responsabilité civile ou délictuelle - Manquement au devoir de représentation - [Voir Labour Law - Topic 2443 ].

Droit du travail - Cote 2706

Syndicats - Obligations - Représentation des membres de l'unité de négociation - [Voir Labour Law - Topic 2706 ].

Procédure - Cote 7003

Dépens - Dépens entre parties - Principes généraux et définitions - Montant clé - [Voir Practice - Topic 7003 ].

Procédure - Cote 7024.5

Dépens - Dépens entre parties - Droits aux dépens entre parties - Partie gagnante - Exceptions - Motifs soulevés par la cour - [Voir Practice - Topic 7024.5 ].

Procédure - Cote 8301

Dépens - Appels - Appels d'une ordonnance prescrivant des dépens - Modification d'une ordonnance rendue en première instance - [Voir Practice - Topic 8301 ].

Cases Noticed:

United Brotherhood of Carpenters and Joiners of America, Local 1023 et al. v. Laviolette et al. (1998), 199 N.B.R.(2d) 270; 510 A.P.R. 270 (C.A.), refd to. [para. 11].

Gagnon v. Canadian Merchant Service Guild and Laurentain Pilotage Authority, [1984] 1 S.C.R. 509; 53 N.R. 100, refd to. [para. 15].

Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057 et al. (1990), 109 N.R. 321; 66 Man.R.(2d) 81 (S.C.C.), refd to. [para. 15].

Noël v. Société d'énergie de la Baie James, [2001] 2 S.C.R. 207; 271 N.R. 304; 2001 SCC 39, refd to. [para. 15].

Carson Construction (1999) Ltd. v. Moncton (City) (2012), 382 N.B.R.(2d) 296; 988 A.P.R. 296; 2012 NBCA 9, dist. [para. 22].

Acadia Marble, Tile & Terrazzo Ltd. v. Oromocto Property Developments Ltd. (1998), 205 N.B.R.(2d) 358; 523 A.P.R. 358 (C.A.), refd to. [para. 24].

Savoie v. Chiasson et al. (2000), 231 N.B.R.(2d) 378; 597 A.P.R. 378; 2000 NBCA 56, refd to. [para. 25].

Authors and Works Noticed:

Adams, George W., Canadian Labour Law (2nd Ed. 1993), generally [para. 10].

Counsel:

Avocats:

J. Gordon Petrie, Q.C., and Clarence L. Bennett, for the appellants;

David Mombourquette and Daniel Leger, for the respondents.

This appeal and this cross-appeal were heard on May 24, 2011, by Robertson, Richard and Green, JJ.A., of the New Brunswick Court of Appeal. On February 16, 2012, Green, J.A., rendered the following judgment for the court in both official languages.