Where do you go for a remedy? This is a question I get asked frequently by my students and clients. It is one that is sometimes difficult to answer, but with increased clarity, courts and administrative tribunals have carved out their turf and the rules that will be applied to determine whether they, or another body, hav jurisdiction to deal with the substance of the complaint.
The most recent case, is Cumming v. Peterborough Police Association, 2013 ONSC 1544 (CanLII) released on March 13, 2013. The Police Association brought an motion to dismiss the applicant’s claim on the basis that this court has no jurisdiction over the subject matter of the action.
The Court reviewed the statement of claim and concluded that the plaintiff “asserts, in essence, a breach of the Police Association’s Duty of Fair Representation”.
The Peterborough-Lakefield Community Police Services Board and the Association are parties to a collective agreement which applies to the plaintiff, and the Association is recognized as the “exclusive bargaining agent” for certain employees, including the plaintiff.
Following the Supreme Court of Canada decision in Weber v. Ontario Hydro,  S.C.J. No. 59 (S.C.C.), the Court nicely summarized the questions it had to determine:
The question to be determined is whether the dispute in its “essential character” arises from the interpretation, application, administration or violation of the Collective Agreement and or the legislation the Collective Agreement incorporates as part of the Collective Agreement.
In order to determine the “essential character”, reference must be made to the wording set out in the pleadings, which in this case is the Statement of Claim.
If the “essential character” of the dispute arises explicitly or implicitly, from the interpretation, application, administration or violation of the Collective Agreement, the dispute is within the sole jurisdiction of an arbitrator to decide.
This analysis must proceed on the basis of the facts surrounding the dispute between the parties and not necessarily on the basis of the way the legal issues may be framed or pled. Whether an arbitrator can hear the dispute and grant the remedies as claimed by the plaintiff, the appropriate form is for the matter to proceed by way of arbitration.
Following an analysis, the Court concluded that “the damages and relief sought by the plaintiff relate to his allegation that the defendant Police Association did not fully discharge their duty to provide him with fair representation” and the exclusive jurisdiction rested with the arbitrator. The allegations “relate to his employment” where:
The essential character of the dispute ultimately concerns an interpretation, application, administration or alleged violation of the provisions of the Collective Agreement, and in particular the duty which [the plaintiff] claims was owed to him, to represent him in a proper and complete and fair manner.
The Court dismissed the action, in its entirety, on the basis that the Court lacked jurisdiction.
Courts will assume jurisdiction in limited circumstances where the issues arise out of the employment of a unionized employee. They have taken an expansive, though reasoned, approach to the “essential character” analysis and have dismissed a variety of claims brought by unionized employees. That is not to say that there are “no” claims over which the court will assume jurisdiction where a unionized employee is the plaintiff, just that there is a developed body of cases that discuss the approach they will take in deciding the jurisdictional issue.
Although this may seem like a simple and straightforward question, the analysis can be complicated.
How does the Ontario Labour Relations Board ("OLRB") go about deciding which of two (2) companies is the employer of certain employees who are subject to an application for certification?
The most recent case to consider the issue is UFCW Canada, Local 1000A v. Sysco Fine Meats of Toronto, 2013 CanLII 9932 (ON LRB). This is an important case as it draws together the older cases on the issue and the more recent reformulation of the approach at the OLRB.
The UFCW, Local 1000A filed an application for certification at Sysco Fine Meats of Toronto, a Division of Sysco Canada, Inc.. The union sought to exclude certain temporary workers supplied to Sysco by an employment agency. The question that the OLRB had to decide was whether Sysco or the employment agency was the true employer of the employment agency.
The Traditional Approach
The traditional approach to the issue was discussed in the leading case of York Condominium Corporation,  OLRB Rep. Oct. 645 where the OLRB set out the following seven criteria:
The OLRB observed that criteria 5 and 6 are generally unhelpful "and it is true that one would be hard pressed to find a case where they played any part in the final conclusion." The OLRB also discounted criteria 5 and so concluded that there are really only four (4) helpful criteria "with the ultimate question being capsulized by asking “which entity exercises fundamental control over the working lives of the individuals in issue”.
The Re-Visiting of the Test
According to this more comprehensive approach, the legal subordination and integration into the business criteria should not be used as exclusive criteria for identifying the real employer. In my view, in a context of collective relations governed by the Labour Code, it is essential that temporary employees be able to bargain with the party that exercises the greatest control over all aspects of their work—and not only over the supervision of their day‑to‑day work. Moreover, when there is a certain splitting of the employer’s identity in the context of a tripartite relationship, the more comprehensive and more flexible approach has the advantage of allowing for a consideration of which party has the most control over all aspects of the work on the specific facts of each case. Without drawing up an exhaustive list of factors pertaining to the employer-employee relationship, I shall mention the following examples: the selection process, hiring, training, discipline, evaluation, supervision, assignment of duties, remuneration and integration into the business.
The OLRB in B.M. Metals Services Inc. then stated:
The analysis must also be purposive. This is an application for certification. As the Board asked in Grant Development Corporation“what choice appears to be more consistent with the statutory and labour relations framework within which the Board operates”. There is little value in certifying a union to represent a group of employees, and then direct it to bargain with a party that has no substantial control of the employment relationship.
I conclude that the reference to the York Condominium Corporation decision is unhelpful. It is more useful to focus on the facts relevant to the kind of issues referred to in the Supreme Court of Canada’s non-exhaustive list, that enable the Board to come to the conclusion that one party or the other exercises the most control over all aspects of the work of the employees in question. [Emphasis added]
The OLRB in Sysco Fine Meats of Toronto adopted the above approach. The OLRB further held that even where the the company to which the agency supplies temporary employees is found to be the employer, this will not automatically mean that the temporary employees will be included in the bargaining unit.
The Board then considered the degree of "control" exercised over the temporary employees by Sysco and the agency. Although the agency had control over the selection and hiring of the temporary workers, transporting them to and from Sysco’s plant, and paying their wages, which are established by Sysco. Sysco has control over "matters dealing with training, discipline, evaluation, day-to-day supervision, assignment of duties, and amount of remuneration, and most importantly the actual number of temporary workers that will be hired from time to time from Better Labour. Further, there is a high level of integration of the temporary workers into Sysco’s workplace."
The Board found that Sysco was the true employees of the temporary employees.
Appropriate Bargaining Unit
The Board then went on to consider the applicable principles when determining the appropriate bargaining unit. The Board stated:
As stated above, simply because Sysco is found to be the true employer of the temporary employees does not automatically result in them being included in the bargaining unit. The responding party argued strenuously that there was a strong community of interest amongst both Sysco’s full-time employees and the temporary employees as they were, inter alia, performing the same work, well integrated into the workplace by working under the same work rules and governed by the same policies (such as the hygiene, harassment, and safety policies). Further, the temporary workers made up approximately 18% of the meat processing unit the union was seeking to represent, being a substantial number. To not include the temporary employees, the employer argued, would lead to an unacceptable fragmentation.
Despite these arguments, and others, the Board found that the Union's proposed bargaining unit, which excluded, temporary workers, was appropriate and made "labour relations sense".
Based on the results of the representation vote, the Board certified the trade union.
The Ontario Labour Relations Act, 1995 defines employees who can unionize and enjoy the protections afforded by the legislation. However certain persons are excluded from the definition of employee under the Act. Specifically:
.... no person shall be deemed to be an employee,
(a) who is a member of the architectural, dental, land surveying, legal or medical profession entitled to practise in Ontario and employed in a professional capacity; or
(b) who, in the opinion of the Board, exercises managerial functions or is employed in a confidential capacity in matters relating to labour relations.
The Ontario Divisional Court recently handed down its decision in Greater Essex County District School Board in which it upheld the decision of the labour board finding that Human Resources Secretaries working for the school board were not employed in a confidential capacity in matters relating to labour relations nor exercising managerial functions within the meaning of s. 1(3)(b) of the Act.
The Divisional Court found that the standard of review was reasonableness, since the Board was interpreting its home statute and applying it to the evidence.
According to the Court, "the determination of an employee’s status is a fact-driven inquiry that lies within the Board’s specialized expertise." The Court summarized the employers' argument as follows:
The applicant argues that the Board gave an unduly narrow interpretation to s. 1(3)(b) of the Act and so applied the wrong test by looking to whether an employee has access to confidential information in relation to the bargaining unit in which the employee would be a member. As well, the Board is said to have erred in its appreciation of the evidence.
The Board referred to its earlier decision in Comtech Group Limited,  OLRB Rep. May 291 where the Board considered the employer's argument and rejected it as follows:
In this regard, counsel for the respondent submits that the capacity of the employee is unspecified in the phrase “employed in a confidential capacity in matters relating to labour relations", and that the legislation does not specifically require that the confidential information in this respect be restricted to matters relating on1y to the labour relations of the employer. It would appear that this is the first occasion in which the Board has been specifically asked to rule upon this issue. We cannot, however, accept the proposition as advocated to us by counsel for the respondent. In our opinion, the conflict of interest as envisioned in the statutory exclusion, relates to a person being "employed” in such a capacity and to which, in the normal course of his employment, such a person has access to labour relations matters which if disclosed to the union bargaining on his behalf, would have an adverse effect upon the employer. [Emphasis Added]
The Board in the Greater Essex County District School Board endorsed this position stating:
Since the decision in Comtech, the jurisprudence clearly and consistently requires that in order for an individual to be excluded pursuant to section 1(3)(b), the confidential capacity regarding labour relations in which they are employed must relate to the bargaining unit in which the individual at issue would be or is a member.
See the Board's reconsideration decision.
The Divisional Court determined that the Board's decision was reasonable.
In the end, the determination of whether an individual is employed in a confidential capacity in matters relating to labour relations is a fact based exercise that will require that the Board consider the duties and responsibilities of those sought to be excluded from collective bargaining. The purpose of the legislation will be considered in making this determination and the exclusion will be applied narrowly, as the Board noted:
The Act is “remedial” legislation that was enacted to protect and facilitate collective bargaining and any exclusions must be construed narrowly so that the Act can have its intended protective effect.
Not surprisingly, as the Board noted, "in making its determination pursuant to 1(3)(b) the Board looks for more than a mere “sprinkling” of tasks, or tasks that are occasional or peripheral in order to find a person is excluded." The Board's decision in Greater Essex County District School Board provides an excellent overview of the law and the Board's approach to these matters which has been endorsed by the Divisional Court.
The Canadian Auto Workers and the Communications, Energy and Paperworkers Union are considering merging. According to the CAW-CEP Discussion Paper:
After two decades of fighting mostly defensive battles against the pressures of globalization, employer aggression, hostile government policy, and public cynicism, the trade union movement in Canada faces an enormous and historic moment of truth.
The CEP-CAW New Union DiscussionProcess Protocol & Timetable states that the "purpose of the New Union Discussion process to develop and agree upon the main principles of a new Canadian union, with a new identity and structure." While acknowledging that a bigger union doesn't equate with a better union, the Protocol calls for something innovative and different:
The formation of a new union must be founded on a desire and willingness to modernize our practices,to innovate with new models of organizing and servicing, and to rebuild our image with workers.
In terms of timing, it seems that they will report to the respective conventions of CAW (in August, 2012) and of CEP (in October, 2012).
The merger of these two unions would result in a combined membership of more than 320,000 and establish the largest private labour union.
As you'd expect with such a huge story, there's lots of press:
The issue of whether a court will assume jurisdiction over a claim brought by a unionized employee against his or her employer (and sometimes third parties) continues to come up from time to time.
Most recently in Paonessa v. Lifemark Health Management Inc. where a former employee sued his employer, various individuals and a company that had been retained by the employer to perform a Functional Abilities Evaluation to decide whether the plaintiff was physically capable of returning to work.
The employment relationship was subject to a collective agreement. The employer and other defendants brought a motion strike the claim, arguing that the court had no jurisdiction to hear the action. The issue to be decided was whether The issue is whether the dispute in the lawsuit was one arising under the collective agreement. If so, according to the principles in Weber v. Ontario Hydro, the court had no jurisdiction and the action would be dismissed.
The court observed that:
"There are situations in which the court has jurisdiction notwithstanding the existence of a collective agreement. For example, actions against insurance benefit providers have been allowed to proceed on the basis that the collective agreement requires the employer to pay the premiums, but not to administer the benefits: London Life Insurance Co. v. Dubreuil Brothers Employees Assn.,  O.J. No. 2609 (CA). On the other hand, where the collective agreement provides for arbitration of the administration of such benefits, the court will not have jurisdiction: Campos v. Sunlife Assurance Company of Canada, 2009 CanLII 43186 (ON SC), 2009 CanLII 43186 (ONSC, Lax J.). An action for malicious prosecution has been allowed to proceed when an employer caused criminal charges to be laid against an employee: Piko v. Hudson's Bay Co.,  O.J. No. 4714 (CA)."
The court concluded that the dispute arose "squarely from the collective agreement" and that the "plaintiff has an adequate remedy in the arbitration process".
The action was dismissed.
No huge surprise here. The Ontario government passed Bill 150 declaring the Toronto Transit Commission an essential service and banning its workers from striking. Lines were drawn before the legislation was passed, but the rhetoric has heated up (TTC declared essential service, union chief says won’t be ‘bullied’ by Toronto). Here's some information on the Ministry of Labour website.
The Word on Employment Law draws our attention to the subject of technology and union organizing (Union Uses Blog to Organize Manufacturing Plant). Not surprisingly, these organizing techniques are being used with increased frequency.
"So organizers got crafty and set up a special blog strictly for the 164 employees to debate, strategize, air concerns and ultimately come together for victory, all while avoiding many of the union-busting tactics so common in most campaigns."
According to the article, the employer set up its own site "but it lacked two-way communication, only plugged the company’s talking points and fell flat with the work force".
These are interesting times and technology is increasingly becoming part of the organizing landscape. In the end, its about getting your message out (whether your the union or the employer).
The Ontario Labour Relations Board in the context of arranging a hearing into allegations that certain conduct amounts to an unlawful strike under the Ontario Labour Relations Act, 1995, discussed the "strike" provisions in the Act:
Strikes are permitted only where there is no collective agreement in force, and the bargaining parties have completed the compulsory conciliation process contemplated by the statute. “Strikes” at any other time are unlawful; moreover, the definition of “strike” is quite elastic, and encompasses any work refusal by a group of employees “in concert, in combination, or in accordance with a common understanding”. Those words have been held to encompass a broad range of collective activity including: slowdowns, “hot cargo arrangements”, “sympathy strikes” and a concerted refusal to cross picket lines as an expression of solidarity with the actions of another trade union. The definition is intentionally cast in very broad terms, and has been so construed by both the Board and the Courts.
* * *
... the Act guarantees that, once a collective agreement is signed, there can be no strike or lock‑out during its term of operation. Moreover, the Act also prohibits behaviour on the part of a trade union or an officer, official or agent of a trade union that may counsel, procure, support or encourage an unlawful strike.
As the Chair of the Board noted in General Motors of Canada Ltd.:
It suffices to say that if there is a work place dispute while a collective agreement is in operation, employees are obliged to use the grievance arbitration procedure to resolve that dispute. They cannot go on strike. Any work stoppage is unlawful. Moreover, an unlawful strike exposes the employees to discipline or discharge, and exposes the union to substantial damages for any production lost as a result of the strike.
These are tough cases, not for the legal principles, but for the broad repercussions they have on the workplace parties.
This is not something I spend a lot of time thinking about, but I came across a case out of the Alberta Court of Appeal that got me asking (myself) some questions. The case is Armstrong v. International Brotherhood of Boilermakers Local 146. It's fact specific and may not be of broad application, but it's an interesting case.
The Court of Appeal considered:
Armstrong, a union member, informed his union that he accepted a position as a construction superintendent (a management position) with a non-union contractor. He did not seek their approval to his doing so. Article 17.1.20 of the Union’s constitution "prohibits members from accepting employment with a non-union contractor without prior written approval of the business manager". A hearing was arranged and, according to the Union's procedures, neither the Union or the member could be represented by an attorney (they could be represented by a member in good standing of the Union).
Only Union members would be allowed in the hearing room. Armstrong did not attend at the hearing. He was fined $5000 payable within 30 days and informed of his right of appeal. He did not appeal and did not pay the fine. He was suspended from the Union for failing to do so.
Section 26 of the Alberta Labour Relations Code provides that:
No trade union shall expel or suspend any of its members or take disciplinary action against or impose any form of penalty on any person ... unless that person has been. . .
(c) afforded a full and fair hearing, including the right to be represented by counsel . . .
The Court of Appeal held that there was a breach of Section 26 in this case:We do not say that the Union bears a positive obligation to advise members of their right to counsel. However, the Union cannot explicitly mis-inform a member about those rights, as was done here, without running afoul of s. 26. The actions of the Union are in clear violation of s. 26(c) of the Code and the Board erred in concluding otherwise. Armstrong’s failure to attend the disciplinary hearing is, in all the circumstances, ultimately irrelevant.
Section 151(i)(ii) of the Code provides that a union cannot discipline a member:
... for engaging in employment with an employer who is not a party to a collective agreement with the trade union if the trade union fails to make reasonable alternate employment available to that person within a reasonable time with an employer who is a party to a collective agreement with the trade union...
The Court found that "if a union fails to make reasonable alternate employment available with an employer with which it has a collective agreement, then it cannot discipline a member for taking employment elsewhere. " However, the Court noted:
As the Union points out, it does not preclude Armstrong from pursuing a career in management; rather, it requires him to obtain prior approval in accordance with the Union’s constitution if he wishes to remain a Union member while pursuing that career.
Makes sense, but when I read the case, it sort of struck me as a little counter-intuitive.
Armstrong didn't jump through the hoops of maintaining membership as set out in the constitution while he pursued non-union employment opportunities. I assume (though I don't know) that such requests would be common and where made would be granted as a matter of course? Who wants to hold someone back in their career? So maybe getting permission isn't a big deal.
In the end, though, for failure to pursue the proper approvals he was fined $5,000 and, ultimately, suspended for failing to pay the fine. I suppose, the Union constitution being a form of contract, I can understand the suspension part - no question, they need rules that govern the relationship between the union and the members and among members . But it's a bit of a struggle, for me at least, to get my head around a fine. Maybe that was of concern to the court as well?