Award Number 25-005
- and -
Waterloo Regional Police Services Board
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| Award Date: | 2025-03-20 |
| Arbitrator: |
Snow, H.
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| Municipality: |
Waterloo
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| Region: |
South West
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| Classifications: | Associations, Complaints, Jurisdiction |
| Grievor: | K. Donovan |
| Appearances: |
L. Pearce, N. Jones and others, for the Association
K. Donovan, self-represented Complainant C. Yiu, D. Jarvis and others, for the Employer |
| Length of Award: | 41 pp |
| Collective Agreements Cit. | --- |
| Statutory Cit. | Police Services Act; Human Rights Code; Ontario Labour Relations Act, 1995, s. 74 |
Summary
Associations Duty of fair representation - Denial by association of two requests to file grievances and failure to file grievances in the absence of a request - Association reasonably determined that essential character of dispute arose from complainant’s resignation agreement rather than collective agreement - Decision to decline requests not arbitrary, discriminatory, or made in bad faith - No basis for claim that association required to file grievances in the absence of any request - Association not violating duty of fair representation - Complaint dismissed.
Complaints Duty of fair representation - Decisions declining requests to file grievances on behalf of complainant - Clear that unions have discretion to decide which grievances to file and pursue - Complainant’s concerns involved resignation agreement she negotiated with employer - Concerns not based on violation of collective agreement and no such violation ever identified - Association determined dispute outside jurisdiction of a grievance arbitrator - Determination reasonable, not arbitrary, discriminatory, or made in bad faith - No violation of duty of fair representation - Complaint dismissed.
Jurisdiction Scope of arbitrator’s jurisdiction - Duty of fair representation complaint - Arbitrator’s jurisdiction limited to deciding whether association violated its duty of fair representation - Arbitrator had no jurisdiction to consider complainant’s underlying concerns about her treatment by employer - Complaint dismissed.
Facts
The complainant alleged that the Waterloo Regional Police Association violated its duty of fair representation by failing to file grievances on her behalf. The employer, the Waterloo Regional Police Services Board, sought to be added, and was added, as a party to the proceeding. The complainant was a police officer with the Waterloo Regional Police Service, employed by the service from December 2010 to June 26, 2017. In February 2017 she began a medical leave. The complainant was diagnosed with Post Traumatic Stress Disorder (PTSD), resulting from an incident at the Ontario Police College in 2011. She filed a claim with the Workplace Safety and Insurance Board for a work-related injury. In 2017 the complainant was the subject of an investigation for possible misconduct under the Police Services Act. She then filed a Human Rights Code complaint against the employer. The complainant hired her own lawyer and entered into negotiations with the employer. In June 2017 the complainant and the employer reached a resignation agreement, settling both the PSA investigation and the HRC claim. The resignation agreement contained confidentiality provisions. In June 2018 the employer filed its own HRC claim, alleging that the complainant violated the resignation agreement – in particular, the confidentiality provisions. In April 2018 the complainant wrote to the association, requesting that a grievance be filed on her behalf. The association declined to file a grievance. In his reply, the president of the association explained that the matter being contested – the alleged breach of the resignation settlement – was beyond the reach of a grievance arbitrator under the collective agreement, and the proper forum to advance her claim was the Human Rights Tribunal of Ontario (HRTO). The denial of this request led to the complainant’s first allegation that the association violated its duty of fair representation. In March 2023 the complainant again asked the association to file a grievance against the employer, concerning fraudulent or negligent misrepresentation. The complainant alleged that the employer obtained her resignation in bad faith, by being untruthful and misleading. Again, the association declined, explaining at length its reasons. The association restated its position outlined in its denial of the first request – viz. that the two disputes settled through the resignation agreement were within the chief’s exclusive jurisdiction under the PSA over the disciplinary process and, as such, the matter was beyond the jurisdictional reach of the association and of an arbitrator under the collective agreement. This led to the second allegation of a violation of the duty of fair representation. The complainant testified about the employer’s alleged harassment of her. The harassment, she asserted, included the employer’s June 2018 claim under the HRC, which she characterized as a bad faith abuse of process. The complainant testified that in 2015 she began to be involved in association meetings; however, the association objected to her making a presentation to a Police Services Board meeting. After this, she said, the association displayed hostility towards her and retaliated against her. The complainant also testified that during the negotiation of her resignation, she had been assured she would have the ability to speak out about her experience in policing, yet the employer then launched a surveillance campaign of her post-resignation advocacy. The president of the association testified that the complainant did not come to the association for assistance but instead hired her own lawyer, for both the PSA and HRC matters. He explained that the association usually did not assist members in HRC claims although it did typically intervene. The association did assist members facing investigation into misconduct under the PSA, and offered to do so in this instance; however, the complainant declined the association’s offer of support. The president testified about a grievance filed by the association concerning an affidavit from the chief. The association was alleging that the chief disclosed confidential information about some members. The complainant was invited to participate but declined to do so. The decision not to file grievances was based on the association’s view that the HRTO was the correct forum, because the matters complained of arose from the resignation agreement.
Argument
The complainant noted that there had been seven earlier decisions between her and the employer. Twice she asked the association to file grievances on her behalf, one claiming fraudulent misrepresentations designed to induce her to sign the resignation agreement, the other about abuse of process or retaliation. She argued that the association did not conduct a thorough investigation, and its decisions to deny her requests were arbitrary or made in bad faith. The complainant also argued that the association was aware of her concerns and it was therefore reasonable to expect it to file a grievance, even when no request was made. Instead, she submitted, the association did nothing to assist her in the face of her mistreatment by the employer. The association argued that it considered the written requests to file grievances, sought and received legal advice, decided that the grievances were outside the jurisdiction of a grievance arbitrator, and explained its reasoning in written replies to the complainant. Specifically, the association explained to her that a grievance arbitrator would have no jurisdiction over a matter which arose from the settlement of the PSA investigation and the HRC application. The association contended that this dispute in its essential character arose from the resignation agreement, not the collective agreement. The association contended that there was no basis for the allegation of bad faith or arbitrary conduct, and no reasonable basis for claiming that it should have filed a grievance in the absence of a request. The employer submitted that the issues raised by the complainant in her request to file grievances were already before the HRTO. The employer’s position was that the duty of fair representation complaint should be dismissed.
Award #
The arbitrator was appointed to hear a duty of fair representation complaint. As such, he had no authority to consider the complainant’s underlying concerns about her treatment by the employer – matters which might fall under the jurisdiction of an arbitrator appointed to interpret and enforce the collective agreement. As the exclusive bargaining agent for members of a bargaining unit, a union certified to negotiate the terms and conditions of employment had a duty to represent members fairly. In the usual course, part of a union’s exclusive bargaining agency included controlled access to the grievance and arbitration process. In other words, it was the union, not the individual employee, who had the discretion to decide which grievances to file and pursue. The content of the duty of fair representation was explained by the Supreme Court of Canada in Canadian Merchant Service Guild (infra), in which the Court underlined the discretionary nature of a union’s right to control the grievance procedure, saying: “…the employee does not have an absolute right to arbitration and the union enjoys considerable discretion”. The Court went on to identify constraints on the exercise of that discretion, including the requirements that the union must act in good faith and not exercise its power over grievance procedures in a manner that is arbitrary or discriminatory. In this case, the association declined to file grievances after examining the essential character of the dispute, in accordance with the framework laid out in another Supreme Court of Canada case, Weber v. Ontario Hydro (infra). In Weber the Court approved an exclusive jurisdiction model with respect to labour arbitrators but emphasized that, in order for a grievance arbitrator to have jurisdiction to decide a dispute between labour relations parties, two features must be present: the dispute must, in its essential character, arise from the interpretation, application, administration or violation of the collective agreement; and the dispute must fall within the ambit of the collective agreement. At no point did the complainant identify how or in what way employer actions violated the collective agreement. Neither the PSA disciplinary investigation nor the HRC claim involved the collective agreement. The association had no role in either process, no exclusive authority, and thus no duty of fair representation arose regarding either process. When disagreements arose about the resignation agreement, both the complainant and the employer brought their concerns before the HRTO, and there was no suggestion that the tribunal lacked jurisdiction to decide these disagreements. In the Weber analysis, identifying the proper forum involves an assessment of the essential character of the dispute, which, in turn, involves examining the factual matrix; it is the factual matrix that matters, not the legal characterization given to issues by the parties. Although, as Weber also held, a grievance arbitrator has jurisdiction over some torts as well as breaches of the Charter of Rights and Freedoms, the arbitrator has no independent jurisdiction over torts; instead, the torts must be related to a breach of the collective agreement. Here, despite her claims that the employer engaged in torts such as negligence, fraudulent misrepresentation, and misfeasance in public office, the primary factual concerns of the complainant were alleged violations of the resignation agreement rather than the collective agreement. Accordingly, it was reasonable for the association to conclude that there was no breach of the collective agreement to which the torts might relate. There were no grounds for finding the decisions of the association arbitrary, and no evidence of bad faith. The association’s responses to the complainant’s written requests were detailed, lengthy, and showed that it thoroughly investigated her concerns, gave careful consideration to the facts, and obtained legal advice. Similarly, there was no evidence of bad faith decision-making, i.e. no indication of hostility, malice or ill will. Moreover, the association asked the complainant whether she wished to be included in a group grievance which it filed, and she declined to participate. Regarding the failure to file a grievance in the absence of any request, it was unclear what sort of grievance the association could or should have anticipated; nor was it clear how the complainant’s multi-year litigation battle with the employer, arising out of her resignation agreement, would amount to a possible violation of the collective agreement. In short, there was no violation of the duty of fair representation, either in the association’s response to the complainant’s two requests to file grievances, or in its failure to file a grievance on its own initiative. Complaint dismissed.
Authorities Cited
• Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 • Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509 • Burns v. Sheet Metal Workers’ International Association, Local 540, 2005 CanLII 21427 (OLRB) • Ismail Oral v. UNITE HERE, Local 2161, 2022 CanLII 125609 (OLRB) [Further authorities as submitted by the parties may be found at pp. 22, 23, and 28 of the decision.]
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