Author: Grazia Hanea
July 30, 2021
In May 2021, the Federal Court of Appeal (the “FCA”) dismissed an Application for Judicial Review which alleged that the Federal Public Sector Labour Relations and Employment Board (the “FPSLREB” or the “Board”) unreasonably dismissed a duty of fair representation complaint without an oral hearing.
The Board’s decision to proceed in a more efficient manner coincided with the increasing use of remote hearings we have seen during the COVID-19 pandemic.
Facts
In July 2017, the Complainant was involved in a workplace incident at the Canada Border Services Agency (the “Agency”), which prompted the Agency to ask for the return of his defensive equipment, including his firearm. Prior to being terminated in October 2017, the Complainant had filed a grievance that the employer’s treatment was abusive and constituted an act of discrimination. He also made an access-to-information request to obtain video recordings of the workplace incident.
Unsatisfied with the incomplete recordings provided by the Agency, the Complainant filed a complaint under the Access to Information Act alleging a failure to disclose. The Information Commissioner dismissed the complaint.
Feeling that the recordings were essential in proving the abusive nature of his termination, the Complainant enlisted the help of his bargaining agent – the Public Service Alliance of Canada (PSAC) – to launch a judicial review of the employer’s disclosure decision. After disagreements with respect to legal strategy, he decided to hire a lawyer at his own expense to file the Application for Judicial Review with the Federal Court within the required deadline. At this same time, the union had already hired legal counsel and instructed them to file the Application on the Complainant’s behalf.
FPSLREB Decision
In 2019, the Complainant filed a complaint with the FPSLREB alleging that the union breached its duty of fair representation by violating section 187 of the Federal Public Sector Labour Relations Act.
In 2020, the Board decided the complaint by way of written submissions. The Board found that the alleged facts, even if proven, would not support an arguable case that the union had contravened its duty of fair representation. It was evident in reading the written submissions of the Complainant and PSAC that the union had not acted in an arbitrary, discriminatory, or bad faith manner in representing the Complainant.
As the Board’s jurisprudence confirms, a bargaining agent fulfils its duty of fair representation if it carefully reviews the case of an employee in the bargaining unit that it represents and makes a reasoned decision that is neither discriminatory nor arbitrary. Indeed, that is found in this case. Everything indicates that the respondent carefully reviewed the complainant’s file, sought a legal opinion, and ensured compliance with deadlines by filing a judicial review application on time. Therefore, it cannot be concluded that it acted discriminatorily, arbitrarily, or in bad faith.
FCA Decision
The FCA dismissed the Complainant’s Application for Judicial Review of the Board’s decision. The Complainant claimed that the Board’s decision was unreasonable on six grounds, two being that the Board did not grant an oral hearing allowing him to (1) cross-examine witnesses of the union and (2) have his credibility assessed in-person. The Complainant failed to convince the FCA that any of the Board’s findings were of an unreasonable nature.
One of the takeaways is that although the Complainant strongly opposed the dismissal of his complaint on a summary basis, the FPSLREB was not required to grant him an oral hearing. The Board relied on the parties’ written submissions to arrive at a procedurally fair decision, which was later upheld by the FCA.
If you have any questions regarding the duty of fair representation or applications for judicial review, we encourage you to contact Daria Strachan or any of the lawyers at Shields Hunt Duff Strachan.