Award Number 17-008

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Award Date: 2017-12-20
Arbitrator: Marcotte, W
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Municipality: Ottawa
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Region: East
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Classifications: Duty of Fair Representation
Grievor: M. VanderMeulen
Appearances: P. Machado and others, for the Association
R. MacCrimmon and M. VanderMeulen, for the Employer
Length of Award:45 pp
Collective Agreements Cit. Article 2
Statutory Cit. Police Services Act; Occupational Health and Safety Act,s. 50(a)


Duty of Fair Representation   Uniform members - Applicant alleged association failed to represent him fairly by failing to pursue his complaints against employer - Not established that association failed to properly investigate complaints or failed to communicate with applicant - Decision not to pursue a grievance was not unreasonable - Association did not act in an arbitrary manner in dealing with complaints - Breach of duty of fair representation not established - Complaint dismissed.


The applicant, Mr. VanderMeulen, alleged that the Ottawa Police Association failed to meet its duty of fair representation concerning complaints he had against his employer, the Ottawa Police Services Board. In a preliminary award [OPAC #17-001] the arbitrator dismissed the applicant’s motion for recusal. This award dealt with the merits of his duty of fair representation complaint. On February 6, 2015 the complainant, together with 9 other officers of the Airport Police Unit (APU), filed formal complaints against S/Sgt. Spirito, who was in charge of the APU, under the employer’s Respectful Workplace Policy (RWP). The complaints alleged the officers in question were forced to work in a toxic work environment. On February 10, 2015 an association labour relations officer informed the complainant that he was reviewing all the RWP complaints, stating that there appeared to be merit to the allegations of a toxic work environment. Although the association had no formal role to play in the RWP process, it nevertheless became involved, holding meetings with the complainants in February and April 2015 and again in May 2016. From February 2015 to June 2016 there were emails, communications and other exchanges between association representatives and the complainants, including Mr. VanderMeulen, regarding the processing of the complaints. The complainant indicated that he would not participate in the RWP process, because he did not regard the RWP manager as being impartial. The association urged him to do so, since a report would be generated which the association could then review in order to decide what steps it would take on his behalf. However, the complainant refused to participate in the RWP process. Nevertheless, management and the RWP manager met with the APU unit in April 2015, outlining steps that would be taken to deal with the acknowledged poisoned work environment. S/Sgt. Spirito was transferred out of the APU. Three of the complainants were transferred; Mr. VanderMeulen was not transferred. Later that month the association received a legal opinion concerning the transfers, advising that a grievance challenging same would likely not be successful. In June 2015 Mr. VanderMeulen and four other complainants received a separate legal opinion concerning the possibility of a civil action; they were told that given restrictions on the ability to sue outside the union environment, it would not be in their best interests to pursue a civil action, especially since their main objective had already been achieved, viz. the transfer of the S/Sgt. in question. In September 2015 the same group received yet another legal opinion; this time they paid for the opinion from their own private funds. The third opinion noted two potential courses of action: a reprisal complaint under s. 50(a) of the Occupational Health and Safety Act, or the filing of a policy grievance by the association contending that the RWP was inadequate. The opinion also noted that investigation by a third party might be helpful. Despite cautioning that the reprisal would be subject to jurisdictional challenges, the lawyer filed a reprisal complaint against the employer under the OHSA on behalf of the remaining five complainants. In December 2015 the association filed for conciliation, alleging the employer failed to provide a workplace free of harassment. The association did so with the intent of getting the employer to agree to appoint a third party investigator with respect to the complaints. The employer did appoint an investigator, and the association withdrew its application for conciliation. However, the complainant refused to deal with the investigator because he did not view him as neutral; at his urging, the association asked the employer to appoint a different investigator but the employer refused to do so. In May 2016 association representatives met with the complainants to review events since the filing of the RWP complaints, including the association’s involvement. In June 2016 the CAO of the association wrote to the complainants, indicating that the association would take no further action on behalf of the group. Mr. VanderMeulen then brought a duty of fair representation complaint against the association.


The complainant argued that the association failed to represent him fairly in three ways: by not conducting a proper investigation of his complaint; by failing to pursue a grievance to advance the process of conciliation and arbitration; and by failing to communicate with him properly throughout the process between the initial filing of the RWP complaint and the decision in June 2016 to take no further steps on his behalf. The complainant asserted that these failings indicated arbitrary conduct. In terms of remedy, the complainant sought: a declaration of breach; an order to pursue grievances on his behalf; damages for mental distress and loss of shifts; and reimbursement of his share of the costs of the third legal opinion. The association countered that it had no authority to investigate complaints filed under the RWP process, yet it urged the complainant to participate, which he refused to do. The association pointed out that while it invited him to provide individual facts for purposes of filing an individual grievance, the complainant did not do that; and as for filing a policy grievance, the association decided that there were no grounds for doing so. The third party investigation was not within the association’s control; and again, the complainant refused to participate. The association denied that it failed to communicate properly with the complainant, pointing to the extensive emails and information it sent to him and the meetings it held with him and other complainants. The association argued that there was thus no failure of its duty of fair representation, and no basis for any of the remedies sought.

Award #

Although the complainant did not contend that the association acted in bad faith or in a discriminatory manner, he did allege that the association acted arbitrarily in dealing with his complaints. The case law provided guidance with respect to the meaning of “arbitrary” conduct in this context; and in Canadian Merchant Service Guild v. Gagnon (infra) the Supreme Court of Canada provided guidance as to the scope of a union’s duty of fair representation. As was clear from the case law, a union was under a fundamental duty to properly investigate a member’s complaint in order to determine the merits. In this case, the association was well aware of the substance of the complaints and it did take proper steps to investigate. However, it was unable to proceed further with its investigation because of the complainant’s unwillingness to participate – first in the RWP process and then the third party investigation. With respect to the failure to file a grievance, unlike the three officers who were transferred out of the APU, the complainant was not transferred; and he did not provide additional facts that might have formed the basis for an individual grievance. As for a policy grievance, the association decided not to pursue one since the complainant was unwilling to participate in the RWP process and the association would have been in the position of challenging a policy in principle, not application; its decision not to do so was not unreasonable. There was considerable communication between the association and the complainant from February to December 2015. For the first three months of 2016 there was no apparent communication; but the employer had engaged a third party investigator – a process in which the association had no role to play. Under the circumstances, a three-month hiatus in communicating with the complainant was not evidence of arbitrariness. Moreover, the association also paid for the costs of the second legal opinion regarding the possibility of a civil suit against the employer on the same grounds as those cited in the RWP complaint. The advice was that it would not be useful to file a civil action, a process in which the association would also have no role to play. The association considered the third legal opinion regarding the filing of a complaint under the OHSA but reasonably took note of the jurisdictional obstacles associated therewith. Accordingly the association gave fair and objective consideration to the complaints, was fully engaged and took appropriate action in dealing with them. The association did not fail in its duty of fair representation. Complaint dismissed.

Authorities Cited

• Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509 (SCC) • Christopher Shaw and Windsor Police Assn. (2014), 244 L.A.C. (4th) 233 (Mackenzie) [OPAC #14-007] • Switzer v. CAW-Canada, Local 1459 [1999] OLRB Rep. July/August 757 (Surdykowski) • Rajonier Canada (B.C.) Ltd. and IWA, Local 1-217, [1975] 2 Can LRBR 196 (BCLRB) • McLeod v. Camco Inc., [1987] OLRB Rep. April 547 • Paul Roth v. CAW-Canada, Local 1256, 2002 CanLII 22724 (ON LRB) • Dwayne Lucyshyn v. ATU, Local 615, 2010 CanLII 15756 (SK LRB) • Candace Hartmier v. Saskatchewan Join Board RWDSU, Local 955, 2017 CanLII 20060 (SK LRB) • Clare Lenahan v. CAW, Local 222 et al., 2004 CanLII 23662 (ON LRB) [Further authorities as submitted by the parties may be found at pp. 21 and 24 of the award.]

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