IN THE SUPREME COURT OF NOVA SCOTIA
Cite as: Romard v. Canadian Union of Public Employees, Local 3264, 2000 NSSC 34
BETWEEN:
Robert Joseph Romard
Plaintiff
- AND -
Canadian Union of Public Employees, Local 3264
and Canadian Union of Public Employees, National
Defendants
DECISION
HEARD: At Halifax, Nova Scotia before the Honourable Justice Felix A. Cacchione on March 6th - 10th, April 10th, 11th and 14th, 2000 - Final Briefs due June 2nd, 2000
DATE: September 6th, 2000
WRITTEN RELEASE
OF DECISION: September 6th, 2000
COUNSEL: Bernadette Maxwell and Ronald A. Stockton, for the Plaintiff Burnley A. Jones, for CUPE and Kelly Murray and Larry Power
CACCHIONE , J. (Orally):
FACTS:
[1] The plaintiff brings this action in negligence against his former Union CUPE Local 3264 and CUPE National alleging a breach of the duty of fair representation owed to him as a member of the Union.
[2] This action in negligence was initially brought against CUPE National, CUPE Local 3264, Larry Power and Kelly Murray, National Representatives for CUPE in their personal capacity, and Dan O’Neil, Jason Crawford and John Rossiter, Executive members of Local 3264 in their personal capacity. At the close of the plaintiff’s case, but prior to the defence being put to its election, a motion for non-suit was made on behalf of the defendants sued personally. This motion was granted and the action against these defendants in their personal capacity was dismissed.
[3] On April 12th, 1988, the Labour Relations Board of Nova Scotia certified the Canadian Union of Public Employees, Local 3264, as the bargaining agent for the employees of Dartmouth Ambulance. This certification order did not name CUPE National as the bargaining agent.
[4] The plaintiff was a member of CUPE Local 3264. He worked as a dispatcher for Walker’s Ambulance from 1987 to 1991. When Walker’s Ambulance merged with Dartmouth Ambulance the plaintiff continued to work with Dartmouth Ambulance. In 1992 he became an Emergency Medical Assistant and continued to work as such until May 7th, 1997 when he was fired by Dartmouth Ambulance for allegedly falsifying his time sheets. The plaintiff denied these allegations.
[5] On May 8th, 1997, the plaintiff was given a Record of Employment showing that he had been dismissed. The plaintiff’s vacation pay was withheld by the employer on the basis of alleged fraudulent activity. A grievance was filed by Ian Winter, the plaintiff’ Shop Stewart, on May 12th, 1997. This was done on the instruction of Larry Power, the National Representative of CUPE.
[6] Larry Power, the National Representative for CUPE, wrote to the employer on June 2nd, 1997 regarding the appointment of a sole arbiter. On June 3rd, the Vice President of Local 3264 advised the plaintiff that the employer would not release his vacation pay unless the plaintiff resigned his position. The plaintiff refused to do so and asked that his Record of Employment be changed to show that the reason for termination was a layoff and not a dismissal. On June 4th, the President of Local 3264 advised the plaintiff that the employer would not change the Record of Employment as requested. On June 6th, the employer agreed to a sole arbiter and put forth a name which was sent to Larry Power. In his letter of June 6th, the employer indicates to Mr. Power that he would contact him on Monday, June 9th to discuss the issue of the appointment of an arbitrator.
[7] As of June 9th, 1997 the plaintiff had been unemployed and without income for a period of approximately one month. On June 9th, Larry Power, the CUPE National Representative spoke with the plaintiff and indicated to him that there was a possibility of the plaintiff getting his job back when a full time position became available. Mr. Power dictated a letter to the plaintiff and indicated to him that if he signed the letter, he would get his vacation pay and an amended Record of Employment showing that he was laid off not dismissed. The letter dictated by Mr. Power to the plaintiff and filed as Exhibit 1, Tab 9, states:
I am willing to withdraw grievance on dismissal due to the fact the employer has agreed to change status to layoff.
[8] This letter was signed by the plaintiff as well as the President and Vice President of the Local Union. The letter was given to the Vice President of the Local, and later that same day, the Vice President returned with the plaintiff’s vacation pay and a new Record of Employment showing the reason for termination as “other”, rather than “layoff”. The plaintiff took the vacation pay and the new Record of Employment and asked of his Local Vice President if the new Record of Employment would entitle him to Employment Insurance benefits. The plaintiff was advised by the Local Vice President that this would entitle him to Employment Insurance benefits.
[9] The plaintiff applied for Employment Insurance, but his claim was denied.
[10] Filed as Exhibit 1, Tab 12 is a letter to the employer signed by the President and Vice President of the Local. The letter is dated “09-07-1997". It reads:
Regarding Rob Romard’s grievance: The grievance and any future actions will not be acted on due to your compliance with the issuing of his vacation pay and changing his E.I. slip as agreed upon by yourself, Mr. Rob Romard and Larry Power, C.U.P.E. Rep.
[11] Although the date on the letter could be read as September 7th or August 9th, I am satisfied that this letter was issued on June 9th, 1997 shortly after the plaintiff had signed Exhibit 1, Tab 9. I am also satisfied that this letter or a copy of it was never sent to the plaintiff or Larry Power.
[12] It is clear that the revised Record of Employment was not in accordance with the agreement negotiated by Larry Power and contained in the plaintiff’s letter, Exhibit 1, Tab 9. The plaintiff initially applied for E.I. benefits, but was refused due to his R.O.E. showing that he had been dismissed. This decision was appealed to the Employment Insurance Board of Referees. Before the Board rendered its decision, the plaintiff received the revised R.O.E. and again applied for insurance benefits, but was refused once again. The plaintiff retained counsel and appealed the second refusal to the Board of Referees, which ruled in favour of the plaintiff.
[13] The evidence is clear that the plaintiff was of the opinion that his Local Executive was not working for him. This is corroborated by the fact that between May 7th and June 30th the plaintiff spoke with Larry Power, the National Representative, on at least twelve to fifteen occasions, and attended at Mr. Power’s office two to three times a week. The plaintiff rightly concluded that his Local Executive was not working for him and sought the assistance of the National Representative.
[14] On June 30th, 1997, a meeting was held at the offices of CUPE National and in attendance were Larry Power, the National Representative, the plaintiff and members of the Local Executive. This was a heated meeting with accusations of impropriety going back and forth. I accept the plaintiff’s evidence that at this meeting, the Executive of Local 3264 was advised by Larry Power to file a grievance on behalf of the plaintiff and that if they did not do so, they would be violating the plaintiff’s rights. I also find that the Executive said they would resign if they had to represent the plaintiff. The evidence shows that the Executive of CUPE Local 3264 was not prepared to follow this verbal advice of Mr. Power. On July 28th, 1997, Larry Power wrote to Mr. Dan O’Neil, Vice President of CUPE Local 3264 and advised him as follows:
As I stated to you, it is my position that it is in your best interest to process a grievance on Mr. Romard’s behalf, and if the Executive is not in agreement with the grievance being brought forward to arbitration, the membership is the body to do that.
I understand the position of yourself, John Rossiter and Jason Crawford is that you will not process a grievance on his behalf and this letter is confirmation that I have advised you otherwise.
[15] Mr. Power’s letter was copied to the President and Recording Secretary of the Local, as well as the Acting Regional Director of CUPE National and the legal/legislative representative of CUPE National. The evidence satisfies me that Mr. Power sent this letter because he knew that the Executive was not going to process the grievance, nor was it going to call a meeting. The copying of this letter to the National body is the only piece of evidence showing that the National was aware of what was happening in the Local.
[16] On September 1st, 1997, a meeting of the membership of Local 3264 was held to discuss the plaintiff, his termination and his grievance. The plaintiff was not present at this meeting and I am satisfied that the plaintiff did not know that this meeting was being held. Although the minutes of that meeting, contained in Exhibit 1, Tab 15, state that the Vice President told the membership that the plaintiff was called on several occasions, messages left on his phone and that the plaintiff in fact spoke with the Vice President about the meeting, I am satisfied that this did not occur. I accept the evidence of the plaintiff that he was not notified of the meeting and the evidence of Roger Bosch and Kim Whalen, the plaintiff’s common-law spouse, that the plaintiff’s residence did not have an answering machine or voice mail.
[17] At the meeting of September 1st, a motion was made to carry forward the plaintiff’s grievance, but this was rejected by the membership. This was done despite the plaintiff not being there to put forth his position. I accept as well that the National Representative, Mr. Power, or his substitute, Kelly Murray, were not notified of this meeting. Both the plaintiff and the National Representative, Mr. Power, only became aware of this meeting after it had been concluded, and only as a result of chance meetings with members who had been in attendance.
[18] On August 1st, 1997, the CUPE National Representative, Mr. Power, wrote to the employer with a copy of his letter to the plaintiff. This letter was an attempt to resolve the plaintiff’s termination and in it, Mr. Power again requested a re-issuance of a revised Record of Employment to show that the plaintiff had been laid off and not dismissed. In return for this, the letter states that the plaintiff was prepared to waive his right of recall under the terms of the Collective Agreement, and agreed to take no further action regarding the loss of his employment. The plaintiff’s evidence with regard to this letter is that he was surprised and upset when he received a copy of this letter. On this point, I accept the evidence of Mr. Power that at the time of drafting this letter, the plaintiff had been out of work and without money for approximately two and a half months, that he was frustrated and had been at odds with his Local. This led to his request to Mr. Power that a proposal as contained in the letter of August 1st be made to the employer. I accept that Mr. Power would not have written this letter without the plaintiff’s input and permission. I accept Mr. Power’s testimony that he is not in the habit of waiving a member’s right without that member’s knowledge.
[19] The issues that arise are as folllows:
1. Did CUPE Local 3264 owe a duty of fair representation to the plaintiff?
2. If such a duty was owed, did the defendants CUPE Local 3264breach this duty?
3. Did CUPE National owe a duty of fair representation to the plaintiff and if so, did CUPE National breach this duty?
4. If CUPE National or Local 3264 owed a duty and breached it, what were the damages flowing from this breach?
[20] Issue One: Did CUPE Local 3264 owe a duty of fair representation to the plaintiff?
[21] A Union is a juridical entity capable of suing or being sued - N.S.N.T.E.U. v. Nova Scotia (Attorney General), [1996] N.S.J. No. 87. Courts have concluded that Unions are juridical bodies, not from any expressed provision in Trade Union legislation, but by implication from the duty, rights and obligations imposed on Trade Unions as bargaining agents. On certification, the Trade Union becomes a certified bargaining agent and it is vested with sole authority to negotiate Collective Agreements. Unions have the sole authority to regulate employment relationships between employees and the bargaining unit and their employers. Unions are also vested with administering the grievance procedure.
[22] In International Brotherhood of Teamsters, Chauffeurs, Wharehouseman and Helpers, Building Material Construction and Fuel Truck Drivers, Local 213 v. Therien, [1960] S.C.R. 265 the plaintiff Therien sued the Union for injurious termination of his contract caused by the Union. The Union challenged whether it was a suable entity. Locke, J. stated at page 276:
...A union claiming to have as members in good standing a majority of employees in a unit appropriate for collective bargaining is entitled to apply to the Labour Relations Board for certification as the bargaining agent of such employees and, when certified, to require the employer to bargain with it and, if agreement is reached, to enter into a written agreement with it which was signed by the union in its own name as such bargaining agent. Throughout the Act such organizations are referred to as trade unions and thus treated as legal entities.
[23] The Court in Therien concluded that the Legislature, by implication, gave Trade Unions the essential qualities of corporations in respect of liable for tort. At page 278 Justice Locke stated:
...It is necessary for the exercise of the powers given that such unions should have officers or other agents to act in their names and on their behalf. The legislature, by giving the right to act as agent for others and to contract on their behalf, has given them two of the essential qualities of a corporation in respect of liability for tort since a corporation can only act by its agents.
The passage from the judgment of Blackburn, J. delivering the opinion of the judges which was adopted by the House of Lords in Mersey Docks v. Gibbs [(1866), L.R. 1 H.L. 93 at 110, 11 E. R. 1500.] referred to by Farwell J. states the rule of construction that is to be applied. In the absence of anything to show a contrary intention – and there is nothing here - - the legislature must be taken to have intended that the creature of the statute shall have the same duties and that its funds shall be subject to the same liabilities as the general law would impose on a private individual doing the same thing...
[24] The plaintiff had been a due paying member of CUPE Local 3264 for a number of years prior to his dismissal. Local 3264 was the exclusive bargaining agent for the employees at Dartmouth Ambulance. It had been so since April 12th, 1988. As a result of the Labour Relations Board - Certification of April 12/88, Local 3264 had the exclusive power to act as a bargaining agent for all the employees in that bargaining unit.
[25] In Rayonier Canada (B.C.) Ltd. and International Woodworkers of America, Local 1-217 et al., [1975] 2 Can. L.R.B.R. 196, the British Columbia Labour Relations Board stated at p. 201-2 as follows:
Under this language, which has been directly imported into our legislation, it is apparent that a union is prohibited from engaging in any one of three distinct forms of misconduct in the representation of the employees. The union must not be actuated by bad faith in the sense of personal hostility, political revenge, or dishonesty. There can be no discrimination, treatment of particular employees unequally whether on account of such factors as race and sex (which are illegal under the Human Rights Code), or simple, personal favouritism. Finally, a union cannot act arbitrarily, disregarding the interests of one of the employees in a perfunctory matter. Instead, it must take a reasonable view of the problem before it and arrive at a thoughtful judgment about what to do after considering the various relevant and conflicting considerations.
[26] The duty of fair representation is a duty owed by the Union as a judicial body to its members. The duty of fair representation arises out of the exclusive power given to a union to act as spokesman for the employees in a bargaining unit. In Canadian Merchant Service Guild v. Gagnon (1984), 9 D.L.R. (4th) 641, the Supreme Court of Canada set out the following principles concerning a union’s duty of representation in respect of a grievance. Justice Chouinard, speaking on behalf of the court, stated at p. 654:
1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.
2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.
3. 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.
4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.
5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.
[27] I am satisfied that CUPE Local 3264 owed a duty of fair representation to the plaintiff, given that he was a member of the union, paid dues to the union, and the union had the exclusive power to act as the plaintiff’s spokesperson in the context of the bargaining unit.
[28] Issue Two: Did the defendant, Local 3264, breach the duty of fair representation to the plaintiff?
[29] The plaintiff in this case faced dismissal from his employment. In the labour context, this has been equated to a capital punishment offence. The repercussions for the plaintiff were substantial, in that he faced the loss of his income and his security as an employee. The evidence clearly establishes that CUPE Local 3264 breached its duty of fair representation to the plaintiff. It cannot be said that the discretion reserved to the union to take the grievance to arbitration was exercised in good faith, objectively and honestly after a thorough study of the grievance.
[30] The only conclusion that can be drawn from the actions of the CUPE Local Executive is that they did not want the plaintiff to be part of their union. No copies of the alleged fraudulent time cards were ever shown or given to the plaintiff, nor were the time cards ever seen by the Shop Stewart or by Larry Power. It appears that members of the Local Executive did see the time cards, but did not obtain copies of them or provide them to the plaintiff and his Shop Stewart. These time cards were not shown to the plaintiff, but instead he was simply told of the dates when he was alleged to have misrepresented his working hours.
[31] The meeting of June 30th, 1997 between the CUPE Local Executive members, the plaintiff and the CUPE National Representative discloses that the Local Executive was not prepared to represent the plaintiff, and in fact bore him some animosity. It cannot be said that the representation by the Local Union was fair, genuine and undertaken with integrity and competence. Instead, it is apparent that the Local Executive was not prepared to represent the plaintiff, and in fact indicated to him that they would resign rather than represent the plaintiff.
[32] The fact that the Local Executive called a meeting to discuss the plaintiff’s grievance without giving notice of that meeting to the plaintiff or to the CUPE National Representative is another indication that the Local Executive was not exercising its discretion to take the grievance to arbitration in good faith. It is also indicative of the Local Executive not taking into account the significance of the grievance and its consequences to the plaintiff.
[33] It is evident that the members of the Local Executive did not consider the decision of the Employment Insurance Board of Referees which concluded that the Board could not find that the plaintiff had been dismissed because of misconduct. This finding would certainly have been of assistance to the plaintiff in an arbitration by showing that some other independent body concluded that, at a minimum, the plaintiff had an arguable case to take to arbitration.
[34] In addition to the above on this issue, I have considered the letter written and signed by the President and Vice President of CUPE Local 3264 to the employer, which I have determined was written on June 9th, 1997, shortly after the plaintiff was given his vacation pay and an amended Record of Employment. This letter was never sent to the plaintiff or to the CUPE National Representative. When this letter was drafted, the members of the Local Executive, at least the President and Vice President, were aware that the amended Record of Employment did not comply with the agreement that had been reached between the National Representative and the employer, in that the R.O.E. showed as a reason for termination “Other”, rather than “Layoff”.
[35] The totality of these facts can lead to only one conclusion and that is that the Local union breached its duty of fair representation to the plaintiff.
[36] ISSUE #3 - Did CUPE National owe a duty of fair representation to the Plaintiff?
[37] In order to address this issue, it is necessary to determine what is the relationship between the CUPE and CUPE Local 3264.
[38] Article 13.1 of the CUPE Constitution states:
Local Unions subordinate to the Canadian Union of Public Employees shall be established and chartered as provided in Article III of this Constitution.
[39] Article 5.2 provides that no Local Union or other subordinate body chartered by the Canadian Union of Public Employees has the power to act as an agent for CUPE or otherwise bind CUPE except as authorized by the National President, the National Secretary Treasurer or the National Executive Board.
[40] The testimony of Randy Sykes, the Executive Assistant to the National President, satisfies me that this Article of the CUPE Constitution is intended to enshrine local autonomy in the Local Unions and to make it clear that the decisions of the Local Unions are not binding on the National body.
[41] This point is also made abundantly clear by virtue of Bylaw B.4.6 which states:
The Canadian Union of Public Employees assumes no responsibility for acts or actions of Local Unions, their officers or members, not expressly directed or authorized in writing by the National Executive Boards of the Canadian Union of Public Employees.
[42] The foregoing provisions clearly establish that the Local Union is a separate entity from the CUPE National Organization. Under Bylaw B.2.1 the Local Union establishes its own executive and under Bylaw B.7.1 the Local Union is accountable to its local membership for the decisions made by the executive.
[43] Members of a Local Union’s pay a per capita fee to CUPE National and in return for this fee CUPE National provides advice, education and its expertise to the Local Unions.
[44] Local 3264 was certified as the bargaining agent for all full time and regular part time employees of Dartmouth Ambulance Limited by a certification order dated April 12th, 1988. The Trade Union Act R.S., c.475 states under s.2(1):
2 (1) In this Act,
(a) “bargaining agent” means a trade union that acts on behalf of employees
(i) in collective bargaining,
(ii) as a party to a recognition agreement with their employer, or
(iii) as a party to a collective agreement with their employer;
(b) “Board” means the Labour Relations Board (Nova Scotia);
(c) “certified bargaining agent” means a bargaining agent that has been certified under this Act or that is party to an agreement filed pursuant to subsection (2) of Section 30 and the certification of which has not been revoked;
[45] The Labour Relations Certification Order dated April 12th, 1988 establishes that Local 3264 is the bargaining agent for Dartmouth Ambulance. This certification order makes no reference to CUPE National being the bargaining agent for the workers at Dartmouth Ambulance.
[46] The Collective Agreement signed June 27/1995 and in effect at the time of the plaintiff’s dismissal has as its parties Dartmouth Ambulance (the employer) and CUPE Local 3264 (The Union). CUPE National was not a party to this agreement. The law is that where a party has not signed a Collective Agreement, it cannot be held that there is a Collective Agreement in existence that could bind that party. - Re: Dryden Paper Co. Ltd. and United Paperworkers’ Union, Locals 105 and 1323 (1976), 11 L.A.C. (2d) 337.
[47] In the case of Canvin Products Ltd. and Canadian Food and Allied Workers (1976), 13 L.A.C. (2d) 146 the International Union was held liable for the action of the members of its Local. This case can be distinguished from the case at bar because in Re Canvin the Board held that the International Union should be bound by the conduct of the Local Executive who were at all material times held out as representing the International Union both in the signing of the Collective Agreement and in its administration - Re Canvin p. 153.
[48] In Re Canvin the Board found that there was nothing in the Agreement between the parties which indicated that the Local was a party to the Agreement or that the signatories did not represent the International Union which was a party to the Agreement. In the present case, the evidence in Exhibit 1, Tab 18, the Collective Agreement, names the parties as Dartmouth Ambulance Limited and CUPE Local 3264. The Collective Agreement does not have CUPE National or its representatives as parties to the Agreement. Since CUPE National was not a party to the Agreement, I cannot conclude that the Agreement was binding on CUPE National. The CUPE Constitution also provides that the Local Union cannot bind the National Union except as authorized by the National President. See Article 5.2 (supra).
[49] As well, Article 13.3(a) of the National Constitution provides that all chartered locals are governed by the CUPE Constitution and by the Bylaws set out in that Constitution. Bylaw B.4.6 states:
The Canadian Union of Public Employees assumes no responsibility for acts or actions of Local Unions, their officers or members, not expressly directed or authorized in writing by the National Executive Boards of the Canadian Union of Public Employees.
[50] These provisions establish that CUPE is not responsible for the actions of the Locals except where an emergency exists and the Local Union is thereby placed under administration.
[51] CUPE National representatives are hired to provide advice, education and expertise to the Local Unions. Article 9.4 of the Constitution states:
The National Officers, or their designated representatives, shall have voice but no vote at all meetings of subordinate bodies of the Canadian Union of Public Employees.
[52] This Article of the Constitution is consistent with the objective of CUPE giving advice to its Locals without having the authority to be involved in any vote or decision making process of the Locals. Under the Bylaws governing the chartered affiliates (Locals) which is attached as Appendix B to the National Constitution, Bylaw B.3.15 reiterates that National Representatives have a voice but no vote at Local Meetings.
[53] It is clear that the National Representatives who are assigned to provide advice to the Local Unions cannot be involved in the decision making process of the Local Unions. It is therefore difficult, if not impossible, to find that a body which has no involvement in the decision making process of another body can be held liable for the actions of that second body.
[54] A substantial amount of the evidence led by the plaintiff and brought out by the the cross-examination of defence witnesses dealt with the placing of a Local under administration.
[55] Article 7.8 of the CUPE Constitution provides for the placing of a Local under administration. This section of the Constitution requires that the National body receive substantive evidence from the members of the Local that it would be in the best interests of the Local that immediate action be taken.
[56] Article 7.8(a) reads as follows:
In cases of emergency and having received substantive evidence from members of a chartered organization that it would be in the best interests of the chartered organization of the Canadian Union of Public Employees that immediate action be taken, the National President may place a chartered organization under an administrator who shall forthwith exercise the authority and carry out the functions set out hereunder. Such action by the National President shall be considered by the National Executive Committee within 14 days. The President and Secretary-Treasurer of the chartered organization shall receive notice of the decision of the National Executive Committee.
[57] Article 7.9 of the National Constitution reaffirms the principle of the autonomy of Local Unions by stating:
Sections 7.7 and 7.8 shall not be construed as an encroachment on the autonomy of the chartered organizations as provided in the rest of this Constitution. It is the intent of these sections to protect both the chartered organizations and the members of these chartered organizations. The intent of these sections shall be interpreted in the strictest legal sense and any action taken under them may always be subject to appeal to the National Convention of the Union.
[58] The evidence presented at trial disclosed no emergency or the receipt of substantive evidence from the members of Local 3264 which would have made it in the bests interests of the Local that it be put under administration. I cannot conclude on the evidence presented that Local 3264 should have been placed under administration or that the National Representatives were aware of a situation which would require this type of action.
[59] The duty of fair representation is a duty which is owed by a Union to its members. This arises because of the exclusive power given to a Union to act as spokesman for the employees in a bargaining unit - Canadian Merchant Service Guild v. Gagnon (1984), 9 D.L.R. (4th) 641. In the present case the Union involved is CUPE Local 3264 because it is this body and not CUPE National which represented the workers at Dartmouth Ambulance. It was Local 3264 which acted as the bargaining agent for the employees and which negotiated the terms and conditions of employment on behalf of those employees.
[60] The evidence before this Court establishes that a grievance is the property of the Union and not of the individual grievor. It is the Union’s decision whether to proceed to arbitration with a grievance and not that of the individual member or that of the National Union which matters.
[61] In conclusion I find that CUPE National did not owe the plaintiff a duty of fair representation. Should I be in error on this point I find that the National Representatives of CUPE, that is Mr. Power and Mr. Murray, discharged their duty of care toward the plaintiff. Larry Power, the National Representative advised the Shop Stewart of the time frame involved for filing a grievance and ensured that the grievance was in fact filed. Mr. Power communicated with the employer regarding the Union’s wish to have the matter proceed to arbitration. He advised the Local Executive to bring the grievance to arbitration or if the Executive was not prepared to do so, then to put the matter to a membership vote. Mr. Power attempted to respond to the plaintiff’s financial circumstances by negotiating an agreement which would allow the plaintiff to claim Employment Insurance benefits. Mr. Power also tried to mediate the dispute between the plaintiff and the Local Executive members. When it became clear to Mr. Power that the Local Executive was not prepared to proceed with the plaintiff’s grievance Mr. Power advised that Executive of their duties.
[62] Mr. Power had a voice but no vote in the affairs of the Local Union. He made his voice heard, but he was unable to do anymore. It is obvious that the Local Executive did not listen to Mr. Power or care about what he had to say. This is evident from the fact that the Local Executive wrote the letter to the employer contained in Exhibit 1 at Tab 12, but did not copy this letter to Mr. Power or to the plaintiff. The Local Executive also did not notify any of the National Representatives or the plaintiff of the membership meeting called by the Executive to discuss the plaintiff’s grievance. The Local Executive did not advise the National Representatives or the plaintiff of the results of that meeting.
[63] I find that if Mr. Power did owe a duty of fair representation to the plaintiff and if he did breach it, the breach was not sufficient enough to attract liability. In Kendall v. Nova Scotia Union of Public Employees, Local 2, [1996] N.S.J. No. 243 the Nova Scotia Court of Appeal confirmed that when negligent conduct is at issue, the onus is on the plaintiff to prove that there was serious negligence on the part of the Union. The Court cited with approval the following comments contained in Trade Union Law in Canada (Canada Law Book, Aurora Ont. 1995) at p. 7-6:
...In decisions pre-dating the Supreme Court cases on fair representation, labour boards generally held that mere negligence by a union did not constitute a violation of the duty of fair representation. In more recent decisions, boards have affirmed that only gross negligence, and not simple negligence, will make the union liable.
[64] I cannot find that either Mr. Power or Mr. Murray, as National Representatives of CUPE, were negligent to the degree required.
[65] In conclusion I find that CUPE National did not owe a duty of fair representation to the plaintiff. If it did owe a duty and if that duty was breached, the breach was not sufficient to amount to serious negligence. I therefore dismiss the action against the defendant CUPE.
[66] Having concluded that CUPE Local 3264 did owe a duty of fair representation to the plaintiff and that Local 3264 did breach that duty, I must now consider the question of damages.
[67] The plaintiff claims for loss of wages for three years up to the time of trial together with a further year for a re-training period. There is as well a claim for the cost of a one-year re-training course, the cost of hiring a lawyer for the Employment Insurance appeal and general damages for emotional stress and loss of career.
[68] The plaintiff argues that because the defendant did not lead any evidence that the plaintiff’s grievance was unlikely to succeed had it been pursued, then the Court must assume that the grievance would in fact have succeeded and that therefore the plaintiff would have been re-instated and continued to work throughout the indefinite future. It is this assumption that the plaintiff urges the Court to use in order to calculate damages.
[69] There are some difficulties associated with this assumption. The onus is on the plaintiff to prove its case and to establish that the grievance would have succeeded had it gone to arbitration. The onus is on the plaintiff to establish damages. The only evidence before the Court on this point is the testimony of Kelly Murray who gave his opinion that dismissal grievances are the easiest ones to handle because the success rate is high. I am unable to conclude on the evidence or lack of evidence before this Court that the plaintiff’s grievance would have succeeded. I am asked to draw the inference that because the Employment Insurance Board of Referees could not conclude that the plaintiff was dismissed because of misconduct that this would have automatically been the finding of the arbitrator. There is a great difference between the evidence that was presented to the Board of Referees and that which may have been presented at an arbitration.
[70] There is also the question of whether the plaintiff would have become a member of the successor union, NSGEU had its grievance been successfully arbitrated and had he continued to work for Dartmouth Ambulance. There is no evidence before this Court that all previous members of CUPE Local 3264 automatically became members of NSGEU under the Labour Relations Board ordered dated May 4th, 1998. It would be speculative for this Court to conclude that the plaintiff would have succeeded with his arbitration and that he would have continued to work at the same job from the time of his dismissal until the time of trial.
[71] The plaintiff has not, in my view, mitigated his damages. The only evidence that the plaintiff cannot find work in the same field is his sole attempt at securing a similar job which was unsuccessful. There was no other evidence led of further attempts to gain employment in the same field and the evidence of the plaintiff was that he only worked for a period of one and a half months from the time of his dismissal to the time of trial. The plaintiff provided no evidence as to why the employment which he had for one and a half months did not continue.
[72] The plaintiff claims for mental distress because of (a) his bankruptcy and (b) the loss of his employment. The plaintiff states that this has caused him not to “be himself”. The plaintiff testified that he saw no medical or psychological professionals regarding this distress and no such evidence was put before the Court. The Court can however take notice that generally speaking the loss of employment would cause a certain degree of stress, particularly in a person who has a family to support and whose spouse has taken maternity leave from her employment.
[73] I find that CUPE Local 3264 and its Executive failed the plaintiff at every turn. The “not caring” attitude manifested by the Local Executive was inconsistent with the duty of fair representation owed to the plaintiff by the Executive. It was this attitude which led the Local Executive to abandon the plaintiff, his rights and his career. This action and inaction together with the violation of the plaintiff’s rights certainly caused him some degree of mental stress. For this and for the violation of the plaintiff’s rights I award the plaintiff $25,000.00.
[74] The plaintiff seeks as well a re-training allowance so that he can become an air traffic controller or to upgrade his education so as to enable him to enter medical school. I am satisfied that some amount should be awarded for re-training or educational upgrading and I fix this amount at $5,000.00.
[75] I am also satisfied that the plaintiff required the assistance of counsel to argue his Employment Insurance appeal and I award him $1,000.00 for this. Had the Local Executive not been so hasty in writing to the employer (Exhibit 1, Tab 12), it is quite possible that the plaintiff would not have required an Employment Insurance appeal and the assistance of counsel.
[76] In summary, on the issue of damages I find that Local 3264 is liable for a total amount of $31,000.00 in damages plus pre-judgment interest.
[77] The plaintiff shall have its costs as against Local 3264 and the defendant CUPE shall have its costs as against the plaintiff.
[78] The Court recognizes that Local 3264 is no longer in existence, however, there is evidence before the Court that the assets of Local 3264 are presently being held in trust by CUPE National and it would seem that those assets should be used to satisfy this judgment.
[79] Should counsel be unable to agree on costs I am prepared to hear them at some mutually convenient time.
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Felix A. Cacchione
Halifax, Nova Scotia