Award Number 24-010

View full-text of this award in PDF or see Summary below

Award Date:	2024-07-12
Arbitrator:	Snow, H. View awards by Snow, H.
Municipality:	Thunder Bay View awards from Thunder Bay
Region:	North West View awards from North West
Classifications:	Associations, ARBITRABILITY - Collective agreement limitations
Grievor:	M. Dimini, Complainant
Appearances:	K. Niglas-Collins and M. Dimini, for the Complainant; J. Phillips and others, for the Association J. Dubois, for the Employer
Length of Award:	23 pp
Collective Agreements Cit.	----
Statutory Cit.	Police Services Act, ss. 25, 119 (3) and 26; O. Reg. 421/97; Human Rights Code

Summary

---

Associations   Duty of fair representation - Uniform members - Complaint alleging association violated its duty of fair representation by failing to file a grievance on behalf of complainant - Matter complained about related to conduct of police services board member - Subject matter of complaint outside collective agreement and did not fall within association’s

ARBITRABILITY - Collective agreement limitations   Matters outside agreement - Uniform members - Complaint alleging violation of duty of fair representation - Complainant contending public statements by board member defamed him - Conduct of board members governed by regulation - No link between alleged defamation and collective agreement - Association did not owe a duty of fair representation with respect to matters outside its exclusive bargaining agency - Complaint dismissed.

---

Facts

On March 31, 2022 Mike Dimini, a police officer with the Thunder Bay Police Service, brought a complaint against the Thunder Bay Police Association. The complainant alleged that the association violated its duty of fair representation by failing to file a grievance on his behalf. In his complaint Mr. Dimini asserted that a member of the Thunder Bay Police Services Board maliciously attacked his reputation and defamed him. The association brought a preliminary motion to dismiss the complaint on the ground that the facts in this case could not give rise to a breach of the duty of fair representation. At its request the employer, the Thunder Bay Police Services Board, was added as a party to the proceedings.

Argument

The association argued that its duty of fair representation applied only to matters over which it had the exclusive right to represent employees, and guarding a member’s reputation was not one of those matters. The association cited s. 119(3) of the Police Services Act, which limited the scope of bargaining to remuneration, pensions, sick leave, grievance procedures, and working conditions. The association pointed out that s. 126 further limited “working conditions”. The conduct of police service board members was governed by O. Reg. 421/97, and therefore the association could not regulate the conduct of board members. The matter complained of was not addressed in the collective agreement. Absent a connection with the collective agreement, the failure to grieve could not amount to a breach of the duty of fair representation. The complainant referred to arbitral authorities which support giving grievances a broad, liberal interpretation. The complainant pointed out that on a preliminary motion to dismiss, the standard for demonstrating a prima facie case is not high. The complainant referred to Weber v. Ontario Hydro (infra) and argued that, as in Weber, he was pleading the tort of defamation and this issue was part of the essential character of the dispute. The complainant contended that the arbitrator had jurisdiction over his complaint, notwithstanding the lack of an express connection between the alleged tort and a specific term of the collective agreement. The complainant noted that he was alleging harassment at the hands of a board member; and the Human Rights Code, deemed to be incorporated into all collective agreements, provided basic protections, such as the right to have a safe, harassment-free workplace. The employer made no submissions on the motion.

Award #

The duty of fair representation flowed from the association’s exclusive bargaining rights, and it applied to both the negotiation and the administration of the collective agreement. In Canadian Merchant Service Guild v. Gagnon (infra) the Supreme Court of Canada described the duty of fair representation with respect to grievances and expressly tied this duty to a union’s exclusive bargaining agency. Unlike other collective bargaining statutes, the Police Services Act limited the exclusive power of the association and limited matters about which the association could bargain. One such limitation in s. 126 was any matter determined by regulation. In this case, O. Reg. 421/97 governed the conduct of board members. Consequently, the association was prohibited from bargaining to regulate the conduct of board members. The complainant submitted that a grievance arbitrator would have jurisdiction over his complaint as a tort. However, in Weber and arbitration cases which followed Weber the alleged tort was related to and part of a larger collective agreement claim. In this case, there was no contractual anchor for the tort of defamation, no allegation that the collective agreement had been violated. The authorities relied upon by the complainant were distinguishable in this respect; they did not support the notion of arbitral jurisdiction based solely on a free-standing violation of a tort claim, unconnected to any foundation in the collective agreement. The Human Rights Code likewise did not provide a basis of arbitral jurisdiction in this case. Even assuming that the conduct complained of amounted to workplace harassment, no prohibited ground was identified, such as age, race, or colour. Moreover, the Regulation expressly governed the matter, including the requirement that board members act in accordance with the Code. The complainant was not left without a remedy. For example, he could sue for defamation, or make a complaint to the Ontario Civilian Police Commission about the board member’s statements. However, the substance of his complaint could not form the basis of a grievance. This was not a matter which the association could grieve; and thus, the association owed no duty of fair representation in this case. Motion upheld; complaint dismissed.

Authorities Cited

• Renaud v. La Salle (Town) Police Assn., [2006] O.J. No. 2842 • Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509 • Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 • Lafrance and North Bay Police Services Board (2009), 187 L.A.C. (4th) 381 [OPAAC #09-10] • John Kohut, [1991] O.L.R.B. Rep. January 35 • Adams v. USWA, Local 135-71-34, [2003] O.L.R.D. No. 72 • Toronto District School Board, [2002] O.L.R.D. No. 2560 • Toronto Police Services Board and Toronto Police Assn., 2006 CanLII 50481 • Durham Regional Police Assn. and Durham Regional Police Services Board, 2015 CanLII 60920 • Waterloo Regional Police Services Board and Waterloo Regional Police Assn., 2022 CanLII 35162 • Ontario Provincial Police Assn. and Ontario Provincial Police (unreported) Abramsky (Aug. 31, 2018) Further authorities as cited by the parties may be found at pp. 5, 6, 7, 9, 10 and 11 of the award.

View full-text of this award in PDF