Numéro de sentence arbitrale 25-002

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Award Date:	2025-01-17
Arbitre:	Marcotte, W Voir les prix par Marcotte, W
Municipalité:	Thunder Bay Voir les prix а partir de Thunder Bay
Région:	North West Voir les prix а partir de North West
Classifications:	ARBITRABILITY - Jurisdiction of arbitrator, Associations, Evidence
Plaignant:	M. Nordal
Comparutions:	K. Rowen and others, pour l'Association N/A - Individual grievor, pour l'employeur
Longueur:	8 pp
Référence conventions collective
Référence législative

Sommaire

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ARBITRABILITY - Jurisdiction of arbitrator   Uniform members - Duty of fair representation complaint - Alleged failure to provide financial assistance to complainant in legal proceedings not a matter between association and board concerning collective agreement - Evidence regarding such dealings between association and complainant not admissible - Interim award.

Associations   Duty of fair representation - Uniform members - Allegation of workplace harassment - Whether or not complainant was harassed was properly the subject of a grievance - Association willing to file a grievance on complainant’s behalf yet complainant declined - Complainant may lead evidence as to reasons for declining offer and any subsequent requests to file a harassment grievance - Interim award.

Evidence   Admissibility - Uniform members - Duty of fair representation complaint - Scope of duty defined by scope of association’s authority as exclusive bargaining agent - Matters outside collective agreement necessarily outside association’s exclusive authority and thus outside duty of fair representation - Evidence regarding internal association dealings inadmissible - Interim award.

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Réalités

Constable M. Nordal filed a complaint dated January 21, 2022, alleging that the association failed to meet its duty to represent him fairly. The association contended that certain of the allegations made by the complainant were not arbitrable. This interim award dealt with the association’s objection.

Argument

The association argued that the following allegations and issues were not within the scope of the DFR complaint: whether the complainant was in fact subject to workplace harassment; the association’s failure to represent the complainant in criminal court proceedings; internal association matters, including the association’s failure to provide financial and legal assistance as well as a failure to follow its constitution and by-laws. Both parties submitted case law on these issues.

# de sentence arbirale

As the case law emphasized, a union’s or association’s duty of fair representation extended only to those matters covered by the collective agreement - namely, matters falling within its exclusive bargaining agency. An association’s internal business was not a matter which concerned the relationship between the parties to a collective agreement. The association’s decision to provide or deny assistance to a member in legal proceedings was a matter exclusively between the association and the complainant. Therefore, evidence concerning dealings between the complainant and the association with respect to financial assistance for his legal proceedings was not admissible because the matter lay outside the arbitrator’s jurisdiction. An allegation of workplace harassment was proper subject-matter for a grievance; however, in this case no such grievance was filed. Correspondence between the parties showed that the association offered to file a grievance on behalf of the complainant, and he declined on February 21, 2022, saying that he was not going to proceed with any grievance “at this time”. The complainant contended that he had good reasons for not wanting the association to file a grievance on his behalf at the time and maintained that he asked the association multiple times to file a grievance. The complainant was permitted to lead evidence as to why he declined the association’s initial offer. In addition, if the complainant asked the association to file a grievance after February 21, 2022, evidence about those requests was likewise admissible. Interim award.

Autorités cité

• Fisher and Orangeville Police Assn. (2020), 312 L.A.C. (4th) 285, O.L.A.A. No. 101 [OPAAC #20-001] (Bendel) • Canadian Merchant Service Guild v. Gagnon, [1984] S.C.R. 509 • Re Muse [2015] O.L.R.D. No. 1167 (Nyman) • Re John Kobut [1991] O.L.R.B. Rep January 35 (Tacon) • Renaud v. LaSalle (Town) Police Assn., [2006] O.J. No. 2842 • Lafrance and North Bay Police Assn. (2009), 180 L.A.C. (4th) 385; O.L.A.A. No. 675 [OPAAC #09-001] (Starkman) • Re Windsor Airline Limousine Services Ltd. [2007] O.L.R.D. No. 781 (Anderson) • Re Luis Lopez, [1989] O.L.R.B. Rep. May 464 (Tacon) • Re Toronto District School Board, [2002] O.L.R.D. 2560 (Albertyn) • Re Hartimer v. Saskatchewan Joint Board RWDSU, 2017 CanLII 20060 (SKLRB) • Re Lynch, [2011] O.L.R.D. No. 805 (Silverman) • Re Bruce-Gray Catholic District School Board, [2003] O.L.R.D. No. 3081 (McKellar)

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