Award Number 26-024

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Award Date:	2026-06-22
Arbitrator:	Snow, H. View awards by Snow, H.
Municipality:	Durham Region View awards from Durham Region
Region:	Central View awards from Central
Classifications:	Associations
Grievor:	R. Elliott
Appearances:	K. Rowan, P. Ling, articling student and A. Tummonds , for the Association R. Elliott, for the Complainant, for the Employer
Length of Award:	11 pp
Collective Agreements Cit.	----
Statutory Cit.	Community Safety and Policing Act, 2019, ss. 191 and 219 Occupational Health and Safety Act, s. 50(8)

Summary

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Associations   Duty of fair representation - Uniform members - Two complaints alleging association breached its duty of fair representation with respect to unlawful reprisal claims - Duty of fair representation applies only where a union has exclusive right to represent employees - Police officers who allege retaliatory action by their employer have a right to pursue a reprisal claim on their own, using process under s. 219 of Community Safety and Policing Act - Association did not have exclusive right to represent complainant with respect to his reprisal claim - Complaints dismissed.

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Facts

Robert Elliott, the complainant, was a police officer with the Durham Regional Police Service until his retirement in January 2026. He brought a duty of fair representation (DFR) complaint against the Durham Regional Police Association, alleging the association violated its duty of fair representation with respect to two reprisal claims he made against the Durham Regional Police Service Board (employer). Initially, the complainant filed a reprisal claim with the Ontario Labour Relations Board, under the Occupational Health and Safety Act. Section 50 of the OHSA allows individual employees alleging unlawful reprisal to pursue their claims on their own before the OLRB, without involvement of their union. However, s. 50(8) states that a police officer’s reprisal claim must be pursued using the process set out in s. 191 of the Community Safety and Policing Act. Accordingly, the complainant filed a second reprisal claim under s. 191 of the CSPA. Like s. 50 of the OHSA, s. 191 of the CSPA allows police officers to pursue their claims of unlawful reprisal without the involvement of their association. The arbitrator had no involvement in the reprisal claims. He was appointed to hear a DFR complaint against the association with respect to its actions surrounding the complainant’s first reprisal application to the OLRB. The second DFR complaint alleged the association violated its duty of fair representation with respect to his pursuit of the second reprisal claim, under the CSPA. At the hearing, the parties agreed that the arbitrator should determine both DFR complaints relating to both reprisal applications. Section 219(1) of the CSPA sets out the duty of associations to represent their members, stating the association “shall not act in a manner that is arbitrary, discriminatory or in bad faith” in the representation of members.

Argument

The association contended that the DFR complaints should be dismissed because it did not represent the complainant exclusively in the matter of an alleged reprisal. The complainant agreed that the duty of fair representation arose from exclusive representational rights. Nevertheless, he submitted that where a union intervenes in a matter in which the individual employee has a right to proceed, and the union expresses a judgment about the matter, the union should be required to act fairly.

Award #

The content of the duty of fair representation was articulated in decisions of the Supreme Court of Canada, such as Canadian Merchant Service Guild (infra). In turn, these early decisions were applied in cases in the policing sector, such as Lafrance (infra). Originally a common law duty, many statutes regulating collective bargaining – including the CSPA – later included the duty expressly. Thus s. 219 of the CSPA imposed this duty as a statutory requirement, to be enforced through arbitration. As the Supreme Court emphasized, a union owes a duty of fair representation only in relation to matters in which the union has the exclusive power to act for the employee. The case law consistently concluded that there is no duty of fair representation when employees can proceed on their own, without union involvement. In this case, the complainant had a right to, and did, file reprisal complaints on his own. Neither the language of s. 219 nor the case law supported an expansion of the duty of fair representation to matters in which the union’s right to represent members is not exclusive. The association owed no duty of fair representation in either the initial reprisal claim filed with the OLRB or the reprisal claim filed under the CSPA. Complaints dismissed.

Authorities Cited

• Lafrance v. North Bay Police Services Board, [2009] O.L.A.A. No. 313 [OPAAC #09-001] • Lafrance v. North Bay Police Services Board, [2009] O.L.A.A. No. 675 [OPAAC #09-10] • Luis Lopez [1989] OLRB Rep. May 464 • Toronto District School Board, [2002] O.L.R.D. No. 2560 • Fisher v. Orangeville Police Assn., [2020] O.L.A.A. No. 101 (Bendel) [OPAAC #20-001] • Nordal v. Thunder Bay Police Assn., (Jan. 17, 2025) (Marcotte) [OPAAC#25-002] • Violet Shearer v. Elementary Teachers’ Federation of Ontario (May 1, 2026) CanLII 44332 (ON LRB) • Gabrielle Cassanova v. Unifor, Loc. 324-308 (Feb. 12, 2024) CanLII 16433 (ON LRB) • Canadian Merchant Service Guild, 1 SCR 509

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