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Labour (Fed) - Duty of Fair Representation

. Perrin v. Canadian Union of Public Employees

In Perrin v. Canadian Union of Public Employees (Fed CA, 2023) the Federal Court of Appeal considered a JR of a CIRB [Canada Industrial Relations Board] 'duty of fair representation' (s.37 of the Canada Labour Code) decision, here regarding COVID vaccination policy which the union did not grieve:
[2] The applicants alleged in their complaint that the Union breached its duty by refusing to file a policy grievance challenging Air Canada’s mandatory vaccination policy. The applicants are a group of flight attendants, pursers and service directors employed with Air Canada. Ms. Perrin was mandated to bring the complaint on their behalf.

[3] In its decision, the Board found that since the factual considerations and legal arguments raised in the complaint were substantially similar to those reviewed and addressed in its recently issued decision Ingrid Watson v. Canadian Union of Public Employees, 2022 CIRB 1002 [Watson], it could rely on its analysis and rationale. In Watson, it had concluded that the Union had not breached its duty of fair representation when it refused to file a policy grievance with respect to Air Canada’s mandatory vaccination policy. The Board’s decision has since been upheld by this Court in Watson v. Canadian Union of Public Employees, 2023 FCA 48 [Watson FCA].


[10] ... Moreover, contrary to the applicants’ assertion, the Board did examine the Union’s conduct. It found that the Union had communicated regularly with its membership regarding the implementation of the policy, and that it had turned its mind to the issues raised by the members, including those who disapproved of the policy for various reasons. The Board was not required to refer to every document in the record, to respond to every argument or to make an explicit finding on each element leading to its conclusion (Vavilov at paras. 91, 128; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 16). There is no basis for concluding that the Board ignored evidence or that it failed to grapple with any of the issues raised by the applicants.
. Watson v. Canadian Union of Public Employees

In Watson v. Canadian Union of Public Employees (Fed CA, 2023) the Federal Court of Appeal consider duty of fair representation law under the Canada Labour Code:
The duty of fair representation

[18] Unions owe their members a duty of fair representation under section 37 of the Code:
A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.
[19] This duty under section 37 of the Code does not encompass a requirement to file a grievance on behalf of every employee who requests one; an employee does not have an absolute right to arbitration and the union enjoys considerable discretion when deciding whether to proceed with a grievance (Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509, 1984 CanLII 18 (SCC) at 527 [Gagnon]; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, 1990 CanLII 110 (SCC) at 1328 [Gendron]). This discretion "“must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other”" (Gagnon at 527; Gendron at 1328). When faced with conflicting employee interests, the union does not breach its duty of fair representation by pursuing one set of interests to the detriment of another. "“Rather, it is the underlying motivation and method used to make this choice that may be objectionable”" (Gendron at 1329).

[20] The Board began its consideration of the applicant’s complaint by outlining its understanding of what the duty of fair representation entailed. It relied on a decision of the Board, McRaeJackson, which has been applied by this Court (Cadieux v. Amalgamated Transit Union, Local 1415, 2014 FCA 61, 372 D.L.R. (4th) 159 at para. 30 [Cadieux]; McAuley v. Chalk River Technicians and Technologists Union, 2011 FCA 156, 420 N.R. 358 at paras. 11 and 14 [McAuley]; Nadeau v. United Steelworkers of America, 2009 FCA 100, 400 N.R. 246 at para. 7 [Nadeau]). This summary describes the considerations relevant to the Board’s handling of such complaints (McRaeJackson at paras. 33 and 37):
A union can fulfill its duty to fairly represent an employee by taking a reasonable view of the grievance, considering all of the facts surrounding the grievance, investigating it, weighing the conflicting interest of the union and the employee and then making a thoughtful judgment about whether or not to pursue the grievance. That is called balancing the circumstances of the case against the decision to be made. For example, it is legitimate for the union to consider collective agreement language, industry or workplace practices, or how similar issues have been decided. It is also legitimate for the union to consider the credibility of a grievor, the existence of potential witnesses in support of the grievor’s version of the events, whether the discipline is reasonable, as well as the decisions of arbitrators in similar circumstances.


Accordingly, the Board will normally find that the union has fulfilled its duty of fair representation responsibility if: a) it investigated the grievance, obtained full details of the case, including the employee’s side of the story; b) it put its mind to the merits of the claim; c) it made a reasoned judgment about the outcome of the grievance; and d) it advised the employee of the reasons for its decision not to pursue the grievance or refer it to arbitration.

[22] Turning to the first challenge, the applicant argues that the Board failed to apply the correct test for resolving section 37 complaints, as articulated in Lamolinaire, 2009 CIRB 463, 2009 CarswellNat 3120 [Lamolinaire]. That decision listed three questions to determine whether a union had breached its duty of fair representation: (1) did the union conduct only a perfunctory or cursory inquiry, or a thorough one; (2) did the union gather sufficient information to arrive at a sound decision; and (3) were there any personality conflicts or other bad relations that might have affected the soundness of the union’s decision (Lamolinaire at para. 36).

[23] The applicant is correct that the Board does not refer to this test in its reasons. However, this omission does not render the decision unreasonable.

[24] This test from Lamolinaire has only been cited once by this Court, in Cadieux at paragraph 33, and four times by the Board. It does not appear in this Court’s jurisprudence after 2014, and has appeared only once in a Board decision since then. Express reference to this test is not a prerequisite to a reasonable Board decision on a section 37 complaint.

[25] The first and second questions asked by the Board in Lamolinaire are simply a restatement of what section 37 requires—that the decision not be arbitrary. The third question, which explores the existence of personality conflicts or bad faith, may be pertinent depending on whether there is some reason in the evidence to ask it. This is not to say that the questions posited in Lamolinaire are not legitimate questions; rather, it is to say that the inquiry into arbitrariness, bad faith or biased decision-making is a contextual exercise.


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Last modified: 17-05-23
By: admin