Harrison v. Labour Relations Board (Ont.) et al., (2015) 336 O.A.C. 216 (DC)

• Judge: J. Wilson, Harvison Young and Tzimas, JJ.
• Court: Superior Court of Justice of Ontario (Canada)
• Case Date: February 20, 2015
• Jurisdiction: Ontario
• Citations: (2015), 336 O.A.C. 216 (DC);2015 ONSC 3275

Harrison v. LRB (2015), 336 O.A.C. 216 (DC)

MLB headnote and full text

Temp. Cite: [2015] O.A.C. TBEd. JL.018

John Harrison (applicant) v. Ontario Labour Relations Board and the Canadian Union of Public Employees, Local 4400 (respondents) and Conseil scolaire Viamonde (interested third party)

(189/14; 2015 ONSC 3275)

Indexed As: Harrison v. Labour Relations Board (Ont.) et al.

Court of Ontario

Superior Court of Justice

Divisional Court

J. Wilson, Harvison Young and Tzimas, JJ.

June 5, 2015.

Summary:

Harrison claimed that his union (CUPE) failed to represent him fairly regarding a grievance filed by another employee. The other employee was successful and assumed Harrison's position as a full-time custodian. The Labour Relations Board dismissed Harrison's complaint without a hearing. Harrison applied for judicial review.

The Ontario Divisional Court dismissed the application.

Administrative Law - Topic 262

The hearing and decision - Right to a hearing - When right exists - [See Administrative Law - Topic 2266 ].

Administrative Law - Topic 2266

Natural justice - The duty of fairness - What constitutes procedural fairness - Harrison claimed that his union (CUPE) failed to represent him fairly regarding a grievance filed by another employee - The other employee was successful and assumed Harrison's position as a full-time custodian - Harrison asserted that the union had failed to notify him that his position was being grieved, that it had not pursued the grievance in a timely way, that seven months had lapsed before the union had advised him that a grievance arbitration hearing was set and that the union had acted unreasonably in failing to support him - The Labour Relations Board dismissed Harrison's complaint without a hearing - The Ontario Divisional Court dismissed Harrison's application for judicial review - The Board had not breached procedural fairness in failing to accord Harrison a hearing - Under s. 99 of the Ontario Labour Relations Act, the Board was not required to hold a hearing to determine a fair representation complaint - Although Harrison was not given a hearing, he was given a full opportunity to make his submissions in writing - The Board accepted Harrison's allegations as true and capable of proof - Credibility was not an issue - There was no need to call witnesses for cross-examination - While the Board could have dismissed the complaint on the parties' initial submissions, it made an interim decision, articulating three questions and inviting Harrison to respond - See paragraphs 37 to 50.

Labour Law - Topic 405

Labour relations boards and judicial review - Boards - General - Duty to act fairly - [See Administrative Law - Topic 2266 ].

Labour Law - Topic 664

Labour relations boards and judicial review - Natural justice - Denial of - Hearing - General - [See Administrative Law - Topic 2266 ].

Labour Law - Topic 804

Labour relations boards and judicial review - Procedure - Hearing - General - [See Administrative Law - Topic 2266 ].

Labour Law - Topic 2706

Unions - Duties - To represent members of bargaining unit - Harrison claimed that his union (CUPE) failed to represent him fairly regarding a grievance filed by another employee - The other employee was successful and assumed Harrison's position as a full-time custodian - Harrison asserted that the union had failed to notify him that his position was being grieved, that it had not pursued the grievance in a timely way, that seven months had lapsed before the union had advised him that a grievance arbitration hearing was set and that the union had acted unreasonably in failing to support him - The Labour Relations Board dismissed Harrison's complaint without a hearing - The Ontario Divisional Court dismissed Harrison's application for judicial review - The Board's decision was reasonable - Nothing suggested that the union bore Harrison any personal hostility or ill will or that he was treated any differently from similarly situated members - Further, the period of time that passed between the grievance's filing and the settlement was not the result of any arbitrary, discriminatory or bad faith conduct by the union - The Board recognized that the union had no choice but to adopt a position that would ensure the proper interpretation of the collective agreement and that the union had tried to negotiate an alternate position for Harrison that would put him in as good of a position as possible - See paragraphs 51, 52 and 60.

Labour Law - Topic 2706

Unions - Duties - To represent members of bargaining unit - Harrison claimed that his union (CUPE) failed to represent him fairly regarding a grievance filed by another employee - The other employee was successful and assumed Harrison's position as a full-time custodian - Harrison asserted that the union had failed to notify him that his position was being grieved, that it had not pursued the grievance in a timely way, that seven months had lapsed before the union had advised him that a grievance arbitration hearing was set and that the union had acted unreasonably in failing to support him - The Labour Relations Board dismissed Harrison's complaint without a hearing - The Ontario Divisional Court dismissed Harrison's application for judicial review - The Board's analysis of the notice requirement was reasonable - Having rejected Harrison's assertion that s. 74 of the Labour Relations Act required a bargaining agent to provide members with notice of a grievance that might affect them, the Board concluded that the right to notice and its adequacy would be for the arbitrator to consider and address accordingly - See paragraphs 53 to 56.

Labour Law - Topic 9058

Public service labour relations - The board - Jurisdiction - Damages - Harrison claimed that his union (CUPE) failed to represent him fairly regarding a grievance filed by another employee - The other employee was successful and assumed Harrison's position as a full-time custodian - Harrison asserted that the union had failed to notify him that his position was being grieved, that it had not pursued the grievance in a timely way, that seven months had lapsed before the union had advised him that a grievance arbitration hearing was set and that the union had acted unreasonably in failing to support him - The Labour Relations Board dismissed Harrison's complaint without a hearing, concluding, inter alia, that any award would be limited to a declaration of a breach - The Board rejected Harrison's submissions that it could award damages to him on account of the financial obligations he had assumed as a result of his full-time position - The Ontario Divisional Court dismissed Harrison's application for judicial review - The Board's analysis of the issue of damages was reasonable - Harrison's position was considered fully - That consideration included the observation that Harrison had not suffered a "loss of opportunity" and that he had gained the benefit of a higher-paying salary for two years (until the other employee assumed his position) - See paragraphs 57 to 59.

Cases Noticed:

Retail Wholesale Canada et al. v. Sirch Holdings Inc. et al. (2000), 132 O.A.C. 52 (Div. Ct.), refd to. [para. 39].

Dhanota and International Union United Automobile, Aerospace and Agricultural Implement Workers (U.A.W.), Local No. 1258, Re, [1983] O.J. No. 3052 (Div. Ct.), refd to. [para. 39].

Ross v. National Automobile, Aerospace, Transportation and General Workers' Union of Canada (CAW-Canada), [1995] O.J. No. 4879 (Div. Ct.), refd to. [para. 39].

Chrysler Canada Ltd., [1997] O.L.R.D. No. 2605, refd to. [para. 49].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 51].

Paul Brunet, [2003] O.L.R.B. Rep. January/February 24, refd to. [para. 54].

Bradley v. Ottawa Professional Fire Fighters Association, [1967] O.J. No. 1017 (C.A.), refd to. [para. 56].

Counsel:

Marco Medocino, for the applicant;

Leonard Marvy, for the Ontario Labour Relations Board;

Cynthia Petersen, for the Canadian Union of Public Employees, Local 4400.

This application was heard on February 20, 2015, by J. Wilson, Harvison Young and Tzimas, JJ., of the Ontario Divisional Court. On June 5, 2015, Tzimas, J., delivered the following judgment for the court.