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Police (Ont) - Labour. Villamar Delvalle v. Toronto Police Association [a common law 'duty of fair representation']
In Villamar Delvalle v. Toronto Police Association (Ont Divisional Ct, 2025) the Divisional Court dismissed a labour JR, here from a dismissal by a Police Services Act (now repealed) arbitrator against a common law 'duty of fair representative' complaint (which adopts the LRA 'duty of fair rep' law) brought by a civilian police employee against their termination:Relevant Provisions
[8] The PSA does not contain an express duty of fair representation. Instead, the Association owes its members, including the Applicant, a duty of fair representation at common law. The duty of fair representation mirrors the statutory duty under section 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”)[2].
[9] An alleged breach of the duty of fair representation falls within the exclusive jurisdiction of an arbitrator appointed under the PSA. Arbitrators in this context have adopted the principles and procedures applicable to duty of fair representation complaints developed by the Ontario Labour Relations Board.[3]
[10] The duty of fair representation requires that a union or association not act in a manner that is arbitrary, discriminatory, or in bad faith in the representation of the members of the bargaining unit. The Ontario Labour Relations Board and arbitrators appointed under the PSA have interpreted these terms as follows:(a) "arbitrary” means conduct which is capricious, implausible, or unreasonable in the circumstances. This is often demonstrated by a failure by the union to properly direct its mind to a situation, or to conduct a proper and meaningful investigation when one appears to be called for;
(b) "discriminatory” means distinguishing between or treating employees differently without good reason;
(c) "bad faith" is conduct motivated by hostility, malice, or dishonesty.[4] ....
[16] The content of the duty of representation is the same, whether it arises at common law (as in the case of the PSA) or expressly in the LRA. Consistent with virtually every other duty of fair representation decision rendered under the PSA, the Arbitrator adopted and applied the robust body of jurisprudence developed by the Ontario Labour Relations Board.
....
[30] A bargaining agent has no obligation to take every grievance to arbitration. One of the key roles, given its finite resources, is to make the tough decisions about which grievances will proceed.[6] While the Applicant may disagree with the Association’s assessment of its case, that is not sufficient to ground a breach of the duty of fair representation or find a human rights violation.
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