Award Number 09-10

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Award Date: 2009-09-27
Arbitrator: Starkman, D
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Municipality: North Bay
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Region: North East
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Classifications: Duty of Fair Representation
Appearances: Nini Jones Counsel Aaron Northrup President Sandy Allary Vice-President, for the Association
David Migicovsky Counsel Deputy Chief Williams, for the Employer
Length of Award:30 pp
Collective Agreements Cit. Art. 19
Statutory Cit. Police Services Act Part V, s. 56(2) Canada Labour Code s. 37 Ontario Labour Relations Act s. 74


Duty of Fair Representation   Duty of Fair Representation


In a preliminary award (OPAC #09-001, reported 180 L.A.C. (4th) 385) the board of arbitration determined that it had jurisdiction to consider Ms. Lafrance’s complaint that the Association violated its duty of fair representation with respect to her claim for indemnification of legal expenses. This decision dealt with the merits of the complaint. Ms. Lafrance joined the North Bay police service on April 22, 2002, having previously worked as a police officer in the City of Toronto. In April 2004 Ms. Lafrance was charged with assault under the Criminal Code in connection with an on-duty incident that occurred in October 2002. She was also charged with discreditable conduct under the Police Services Act. On December 14, 2005 Ms. Lafrance was acquitted of the criminal charge. She incurred legal expenses of approximately $58,000.00 in defending herself against the criminal charge. She sought indemnification of her legal expenses from the Board pursuant to Art. 19.01 of the collective agreement. The Board denied her request, relying on Art. 19.03, which provided that indemnification may be refused where the actions of the officer “…amounted to a gross dereliction of duty or deliberate abuse of powers as a police officer.” On April 12, 2005 Ms. Lafrance resigned her employment with the service. As a result of her resignation, charges under the Police Services Act were not pursued, including both the discreditable conduct charge and a Chief’s complaint which had been filed against her pursuant to s. 56(2) of the Act concerning Ms. Lafrance’s alleged secondary employment. Ms. Lafrance testified that almost immediately upon joining the service, she was subjected to harassment from both fellow and senior officers. She claimed that in vain she sought assistance in dealing with the harassment from both management and the Association. She testified that she tried to get a copy of the collective agreement but could not obtain one. In November 2003 she went off work on a combination of sick leave and vacation. She filed a claim with the Workplace Safety and Insurance Board (WSIB) alleging workplace harassment. That claim was denied. No appeal was filed. Ms. Lafrance remained off work. The Chief of Police wrote to her, directing that further contact with the service be made through an Inspector and that she was to cease contacting other members. Ms. Lafrance retained legal counsel to represent her, and directed the Association president to contact her only through counsel. When she was charged with the criminal offence, Ms. Lafrance and her counsel wrote to the Association seeking funds to defend the charge. The Association president replied to the effect that it was not the Association’s responsibility or practice to finance the defence of criminal or PSA charges. After she was acquitted of the criminal charge the Complainant’s counsel wrote to the Association, seeking reimbursement of her legal expenses. The new Association president directed counsel’s attention to Art. 19 of the collective agreement. When Ms. Lafrance applied to the Board for indemnification her request was denied; and she attempted to file a civil suit. The Sergeant who was president of the Association until September 2006 denied that Ms. Lafrance ever asked the Association for assistance or advice. The president from 2006 to 2008 testified that he was aware of the original incident leading to the criminal charge and became involved when he advised two constables and another sergeant after they were charged under the PSA with failure to properly report and investigate the assault incident from October 2002. He stated that he was never contacted by Ms. Lafrance and was never asked to file a grievance. Nevertheless, the executive of the Association discussed the matter and decided that a grievance would not be successful as Ms. Lafrance had a “weak case”.


Ms. Lafrance alleged that the Association treated her unfairly: by not providing her with assistance, by not filing a grievance on her behalf when the Board refused to indemnify her for legal expenses, and by not properly investigating her harassment complaints. Ms. Lafrance complained that the Association’s conduct was discriminatory since it met with the two constables and the sergeant with respect to their PSA charges but did not meet with her. Ms. Lafrance alleged that the Association was motivated by malice or ill-will in its dealings with her. The Association denied the Complainant’s allegations and drew the arbitrator’s attention to case law concerning the duty of fair representation.

Award #

In contrast to labour relations statutes across Canada, the Police Services Act did not impose on police associations a duty of fair representation. However, such a duty existed at common law. The jurisprudence had established that the duty of fair representation applies only to those areas of the employment relationship for which the union is the exclusive bargaining agent. Under the PSA the Association had no involvement with Part V or disciplinary charges. To the extent that Ms. Lafrance’s complaints concerned the Association’s conduct in relation to the PSA charges or her WSIB claim, the Association owed her no duty of fair representation. That left the failure to file a grievance. As the case law established, a union was not obliged to take every grievance to arbitration, and an employee had no absolute right to have their grievance arbitrated. Honest mistakes or errors in judgment would not constitute a breach of the duty of fair representation. The test established by labour board case law was whether the union’s conduct was arbitrary, discriminatory or amounted to bad faith. The evidence in this case revealed that the relationship between Ms. Lafrance and the Association was fraught with miscommunication. Throughout her correspondence with the Association and the letters from her solicitors, there was no request to file a grievance on her behalf seeking indemnification. In fact, until at least December 2006 Ms. Lafrance and her solicitor apparently believed that the Association was responsible for advancing and/or paying her legal fees. According to the evidence, the executive of the Association considered the matter on several occasions and decided that a grievance claiming indemnification of legal expenses would have no merit. The Association might have been wrong in their assessment, but it was a decision they were entitled to reach. The allegation that the Association’s conduct was discriminatory because the president met with other members who were facing PSA charges could not succeed, since the Association’s duty of fair representation did not extend to those charges; and in any case the disciplinary charges were stayed when the Complainant resigned. The allegations of bad faith and malice were not corroborated by sufficient evidence. Given the relatively small size of the Association and their lack of any paid staff, their conduct was not unreasonable. The evidence did not permit a conclusion that the Association acted in a manner that was arbitrary, discriminatory or in bad faith. As such, the Association did not breach its duty of fair representation to Ms. Lafrance. Complaint dismissed.

Authorities Cited

• Ms. Dee Laljee v. O.S.S.T.F. v. Toronto District School Board, Intervenor [2002] O.L.R.D. No. 2560 (OLRB) • Ouellet v. Union of Canadian Correctional Officers [2007] PSLRB 112 (Nadeau) • Mabel Adams v. U.S.W.A. Loc. 13571-34 [2003] O.L.R.D. No. 72 (OLRB) • John Kohut v. C.A.W.-Canada, Loc. 303 v. General Motors of Canada, Intervenor • Canadian Merchant Service Guild v. Gagnon et al. [1984] 1 S.C.R. 509 (S.C.C.) • Christopher M. Sojka v. Massey-Ferguson Industries Ltd. and U.A.W., Loc. 439 [1979] O.L.R.B. Rep. No. 1005 • Isobel Northover, Linda Tower et al. v. American Federation of Grain Millers, Loc. 242 and Inter-Bake Foods Ltd. [1981] O.L.R.B. Rep. No. 1145 • Kesar Singy Riyait v. Loc. 1590, I.B.E.W. v. I.T.E. Industries Ltd., Intervenor [1980] O.L.R.B. Rep. 1001 • Sandra Hall v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, Loc. 1421 and Smith & Stone Inc. [1984] O.L.R.B. Rep. No. 1609 • William Gordon Switzer v. National Automobile, Aerospace, Transportation and General Workers Union of Canada and Chrysler Canada Ltd. [1997] O.L.R.D. No. 2605 (OLRB) • Donal Gebbie and J. Longmoore v. United Automobile, Aerospace and Agricultural Implement Workers of America, Loc. 200 and Ford Motor Co. of Canada Ltd. [1973] O.L.R.B. Rep. No. 519 • Henry Savale et al. v. I.A.M., Loc. 2113 v. Vistcon Automotive Systems, Intervenor [2000] O.L.R.D. No. 288 • Janey Kitgson v. C.E.P., Loc. 544 v. G.E. Canada, Intervenor [2006] O.L.R.D. No. 381 • Catherine Syme v. Graphic Arts International Union, Loc. 28-B [1983] O.L.R.B. Rep. No. 775 This award has been selected for publication in Labour Arbitration Cases.

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