Butt v. United Steelworkers of America et al., (2002) 220 Nfld. & P.E.I.R. 181 (NFCA)

• Judge: Gushue, Marshall and Cameron, JJ.A.
• Court: Court of Appeal (Newfoundland)
• Case Date: December 02, 2002
• Jurisdiction: Newfoundland and Labrador
• Citations: (2002), 220 Nfld. & P.E.I.R. 181 (NFCA)

Butt v. USWA (2002), 220 Nfld. & P.E.I.R. 181 (NFCA);

    657 A.P.R. 181

MLB headnote and full text

Temp. Cite: [2002] Nfld. & P.E.I.R. TBEd. DE.008

United Steelworkers of America and United Steelworkers of America, Local 5795 (appellants) v. David Butt (respondent)

(01/47 and 01/48; 2002 NFCA 62)

Indexed As: Butt v. United Steelworkers of America et al.

Newfoundland and Labrador Supreme Court

Court of Appeal

Gushue, Marshall and Cameron, JJ.A.

October 11, 2002.

Summary:

Butt was terminated from his employment. The union prepared a grievance on Butt's behalf. The employer rejected the grievance, advising that it was not arbitrable because the union had not requested a Step 1 meeting as required by article 7 of the collective agreement. The union proceeded without Step 1. An arbitrator ruled that the grievance was not arbitrable due to the union's failure to comply with article 7. Butt sued the union for damages, alleging negligence in the handling of his grievance.

The Newfoundland Supreme Court, Trial Division, in a decision reported at 106 Nfld. & P.E.I.R. 181; 334 A.P.R. 181, allowed the action and entered judgment for Butt, with damages to be assessed.

The Newfoundland Supreme Court, Trial Division, in a decision reported at 118 Nfld. & P.E.I.R. 303; 369 A.P.R. 303, assessed Butt's damages.

The union appealed, arguing that the Trial Division lacked jurisdiction to hear the claim and, further, that the trial judge erred in concluding that the common law duty of care owed by a union to its members included liability for simple negligence. Butt cross-appealed, submitting that the trial judge erred in principle in determining damages.

The Newfoundland and Labrador Court of Appeal, Marshall, J.A., dissenting, allowed the appeal and dismissed Butt's claim. It was not necessary to address Butt's cross-appeal with respect to damages.

Labour Law - Topic 438

Labour relations boards and judicial review - Boards - Jurisdiction - Provincial boards - Section 126(1) of the Labour Relations Act, S.N. 1977, provided that "Any employee in a bargaining unit who claims to be aggrieved because his bargaining agent has failed to act in good faith in the handling of a grievance that he has filed with that bargaining agent in accordance with any procedure (a) that has been estab­lished by the bargaining agent; and (b) to which the employee has not been given ready access, may make a complaint in writing to the Board" - The Newfoundland and Labrador Court of Appeal held that the jurisdiction of the Labour Relations Board was limited to only those cases where there had been a denial of ready access to the grievance procedure - After considering the meaning of "good faith" in s. 126(1), the court concluded that "the Legislature intended to require unions to comply with the standard of fair representation, though limited to those cases where there has been a failure to provide ready access to the grievance process ... Other matters encompassed within the duty of fair repre­sentation remain with the courts. This would include allegations of serious negli­gence in the conduct of a grievance" - See paragraphs 50 to 59.

Labour Law - Topic 2442

Unions - Liability of unions - Torts and civil responsibility - Negligence - The Newfoundland and Labrador Court of Appeal held that a member of a union could not take an action against his or her union on the basis of negligent representa­tion - The court stated that there was no cause of action in negligent representation outside of an action for breach of the common law duty of fair representation - See paragraph 28.

Labour Law - Topic 2442

Unions - Liability of unions - Torts and civil responsibility - Negligence - Butt was terminated - The union prepared a griev­ance on Butt's behalf - The employer rejected the grievance, advising that it was not arbitrable because the union had not requested a Step 1 meeting as required by article 7 of the collective agreement - The union proceeded without Step 1 - An arbitrator ruled that the grievance was not arbitrable due to the union's failure to comply with article 7 - Butt sued the union for damages, alleging negligence in the handling of his grievance - The trial judge found that Collins, the vice president of the union Local, had breached the standard of care owed to Butt when he failed to have Butt attend for a Step 1 meeting - The Newfoundland and Labrador Court of Appeal allowed an appeal by the union and dismissed Butt's claim - Courts had juris­diction over allegations of serious negli­gence in the conduct of a grievance - However, the court concluded that Collins' actions or inaction could not be said to amount to gross negligence - While Collins made an error in judgment, the complete disregard of consequences necessary for serious or gross negligence was absent - See paragraphs 60 to 67.

Labour Law - Topic 2443

Unions - Liability of unions - Torts and civil responsibility - Breach of duty of representation - [See both Labour Law - Topic 2442 ].

Labour Law - Topic 2448

Unions - Liability of unions - Torts and civil responsibility - Effect of statutory remedies - [See Labour Law - Topic 438 ].

Labour Law - Topic 2706

Unions - Duties - To represent members of bargaining unit - [See both Labour Law - Topic 2442 ].

Labour Law - Topic 2707

Unions - Duties - To represent members of bargaining unit - Remedies - [See Labour Law - Topic 438 ].

Torts - Topic 4

Negligence - Gross negligence defined - [See second Labour Law - Topic 2442 ].

Cases Noticed:

Collins v. Transport and Allied Workers Union (1991), 94 Nfld. & P.E.I.R. 346; 298 A.P.R. 346 (Nfld. T.D.), consd. [paras. 9, 168].

Vaca v. Sipes (1967), 386 U.S. 171 (Sup. Ct.), refd to. [paras. 18, 102].

United Steelworkers of America v. Rawson (1990), 495 U.S. 362, refd to. [paras. 19, 103].

Air Line Pilots Association International v. O'Neill (1991), 111 S. Ct. 1127, refd to. [para. 19].

Le' Mon v. National Labour Relations Board (1991), 952 F.2d 1203 (10th Cir.), refd to. [para. 19].

Gagnon v. Canadian Merchant Service Guild and Laurentian Pilotage Authority, [1984] 1 S.C.R. 509; 53 N.R. 100; 9 D.L.R.(4th) 641, refd to. [paras. 20, 104].

Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057 et al., [1990] 1 S.C.R. 1298; 109 N.R. 321; 66 Man.R.(2d) 81; [1990] 4 W.W.R. 385, refd to. [para. 20].

Duke v. Brotherhood of Locomotive En­gineers (1989), 98 N.B.R.(2d) 99; 248 A.P.R. 99 (Q.B.), leave to appeal refused (1989), 98 N.B.R.(2d) 94; 248 A.P.R. 94 (C.A.), refd to. [para. 23].

Comeau v. Canadian Union of Postal Workers (1991), 112 N.B.R.(2d) 432; 281 A.P.R. 432 (C.A.), refd to. [para. 23].

Hedges v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) (1997), 150 Nfld. & P.E.I.R. 275; 470 A.P.R. 275 (P.E.I.C.A.), refd to. [para. 24].

Moldowan v. Saskatchewan Government Employees Union et al. (1995), 134 Sask.R. 210; 101 W.A.C. 210; 126 D.L.R.(4th) 289 (C.A.), leave to appeal refused (1996), 204 N.R. 71; 144 Sask.R. 240; 124 W.A.C. 240 (S.C.C.), refd to. [para. 25].

Bow Valley Husky (Bermuda) Ltd. et al. v. Saint John Shipbuilding Ltd. et al., [1997] 3 S.C.R. 1210; 221 N.R. 1; 158 Nfld. & P.E.I.R. 269; 490 A.P.R. 269, refd to. [para. 29].

Newfoundland Association of Public Employees v. Labour Relations Board (Nfld.) and Benmore (1992), 100 Nfld. & P.E.I.R. 109; 318 A.P.R. 109 (Nfld. T.D.), refd to. [paras. 41, 165].

Verge, Re, [1995] Nfld. L.R.B.D. No. 15 [paras. 42, 54, footnote 10].

Bemister, Re, [1994] Nfld. L.R.B.D. No. 20, refd to. [paras. 42, 54, footnote 10].

Snow, Re, [2000] Nfld. L.R.B.D. No. 10, refd to. [paras. 42, 54, footnote 10].

Harel v. Québec, [1978] 1 S.C.R. 851; 18 N.R. 91, refd to. [para. 46].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 49].

Archean Resources Ltd. v. Newfoundland (Minister of Finance) (2002), 215 Nfld. & P.E.I.R. 124; 644 A.P.R. 124 (Nfld. C.A.), refd to. [para. 49].

Boma Manufacturing Ltd. et al. v. Cana­dian Imperial Bank of Commerce, [1996] 3 S.C.R. 727; 203 N.R. 321; 82 B.C.A.C. 161; 133 W.A.C. 161, refd to. [para. 53].

Sharan, Re, [1993] Nfld. L.R.B.D. No. 28, refd to. [para. 54, footnote 10].

Feaver, Re, [1995] Nfld. L.R.B.D. No. 17, refd to. [para. 54, footnote 10].

Bolt, Re, [1995] Nfld. L.R.B.D. No. 16, refd to. [para. 54, footnote 10].

Joyce, Re, [1999] Nfld. L.R.B.D. No. 2, refd to. [para. 54, footnote 10].

Shanahan, Re, [1993] Nfld. L.R.B.D. No. 35, refd to. [para. 54, footnote 10].

Fradsham, Re, [1996] Nfld. L.R.B.D. No. 24, refd to. [para. 54, footnote 10].

Butler, Re, [1991] Nfld. L.R.B.D. No. 45, refd to. [para. 54, footnote 10].

Brown, Re, [2001] Nfld. L.R.B.D. No. 13, refd to. [para. 54, footnote 10].

Smith, Re, [1991] Nfld. L.R.B.D. No. 47, refd to. [para. 54, footnote 10].

Hedge, Re, [1991] Nfld. L.R.B.D. No. 41, refd to. [para. 54, footnote 10].

Turpin, Re, [1990] Nfld. L.R.B.D. No. 22, refd to. [para. 54, footnote 10].

Benmore, Re, [1991] Nfld. L.R.B.D. No. 40, refd to. [para. 54, footnote 10].

Janes, Re, [1991] Nfld. L.R.B.D. No. 32, refd to. [para. 54, footnote 10].

Hall, Re, [1997] Nfld. L.R.B.D. No. 9, refd to. [para. 54, footnote 10].

Smith, Re, [1995] Nfld. L.R.B.D. No. 18, refd to. [para. 54, footnote 10].

Dunne, Re, [1994] Nfld. L.R.B.D. No. 13, refd to. [para. 54, footnote 10].

R. v. Devereaux (O.) (1996), 147 Nfld. & P.E.I.R. 108; 459 A.P.R. 108 (Nfld. C.A.), refd to. [para. 56].

Zurich Insurance Co. v. Modern Marine Industries Ltd. et al. (1996), 146 Nfld. & P.E.I.R. 91; 456 A.P.R. 91 (Nfld. C.A.), refd to. [para. 57].

Rousseau (James H.), Re, 98 di 80; 95 C.L.L.C. 220-064 (Can. Lab. Rel. Bd.), refd to. [para. 62].

Noël v. Société d'énergie de la Baie James, [2001] 2 S.C.R. 207; 271 N.R. 304, refd to. [para. 63].

Penner, Re, [1999] Alta. L.R.B.R. 545, refd to. [para. 64].

United Steelworkers of America, Local 6285 v. Wabush Mines (Keating Griev­ance), [1970] Nfld. L.A.A. No. 9, refd to. [para. 66].

Donoghue v. Stevenson, [1932] A.C. 562 (H.L.), refd to. [para. 96].

Fisher v. Pemberton et al. (1969), 8 D.L.R.(3d) 521 (B.C.S.C.), refd to. [para. 104].

Rondel v. Worsley, [1969] 1 A.C. 191 (H.L.), refd to. [para. 131].

Royal Oak Mines Inc. v. Canada Labour Relations Board et al., [1996] 1 S.C.R. 369; 193 N.R. 81; 96 C.L.L.C. 141,983, refd to. [para. 134].

Chaplin v. Hicks, [1911] 2 K.B. 786 (C.A.), refd to. [para. 207].

Health Care Developers Inc. v. Newfound­land (1996), 141 Nfld. & P.E.I.R. 34; 443 A.P.R. 34 (Nfld. C.A.), refd to. [para. 207].

Bradbury v. Newfoundland (Attorney General) (2002), 207 Nfld. & P.E.I.R. 181; 620 A.P.R. 181 (Nfld. C.A.), refd to. [para. 207].

Statutes Noticed:

Labour Relations Act, S.N. 1977, sect. 126 [para. 33].

Authors and Works Noticed:

Adams, George W., Canadian Labour Law (2nd Ed. 1993), c. 13, pp. 13.460 to 13.470 [para. 21].

Driedger, Elmer A., Construction of Stat­utes (2nd Ed. 1983), p. 87 [para. 49].

Driedger, Elmer A., Construction of Stat­utes (3rd Ed. 1994), pp. 168, 169 [para. 35]; 175 [para. 37].

Heuston, R.F.V., Donoghue v. Stevenson and The Modern Law of Negligence (The Paisley Papers) (1991), pp. 1 [para. 99]; 65, 66 [para. 97]; 237 [para. 99].

Newfoundland and Labrador, Legislative Assembly Debates (June 2, 1977), p. 10306 [para. 48].

Newfoundland and Labrador, Royal Com­mission of Labour Legislation (Cohen Report) (1977), p. 413 [para. 47].

Paisley Papers - see Heuston, R.F.V., Donoghue v. Stevenson and the Modern Law of Negligence (1991).

Counsel:

Gordon N. Forsyth, for the appellants;

Derek J. Hogan, for the respondent.

This appeal was heard on February 22, 2002, before Gushue, Marshall and Cameron, JJ.A., of the Newfoundland and Labrador Court of Appeal. The judgment of the Court of Appeal was rendered on October 11, 2002, and the following opinions were filed:

Cameron, J.A. - see paragraphs 1 to 68;

Gushue, J.A. - see paragraphs 69 to 74;

Marshall, J.A., dissenting (filed on De­cember 2, 2002) - see paragraphs 75 to 217.