FPSLREB Decisions

I. Complaint before the Board

1 On December 28, 2006, Jamie S. Elliott (“the complainant”) filed an unfair labour practice complaint under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the PSLRA” or “the Act”), enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, in which the Canadian Merchant Service Guild (“the Guild”), Michael Walton, Wally Fawkes, Guy Beaulieu and Captain Arnold Vingsnes are named as respondents (“the respondents”). Mr. Walton, Mr. Fawkes, Mr. Beaulieu and Captain Vingsnes all worked for the Guild at different times during the events that led to this complaint.

2 The complaint deals with the manner in which the Guild handled the complainant's workers’ compensation claim before the British Columbia Workers’ Compensation Board (“the WCB”). The complainant gave further explanations regarding his complaint in Supplemental Form 16 that was filed on January 2, 2007. In paragraphs 44 and 45, the complainant alleges that:

44. The respondents’ actions are clearly, arbitrary and in clear breach of s. 187 of the PSLRA.

45. The Respondents have been arbitrary, discriminatory and have acted in bad faith. They have also been negligent which is a component part of all three of these grounds.

3 The complainant stated that he has been employed as a marine engineer with the Canadian Coast Guard (“the CCG”) since 1987. The CCG is currently part of the Department of Fisheries and Oceans.

4 At all relevant times, the Guild has been the certified bargaining agent for the employees of the CCG, including the complainant, and a collective agreement has been in place between the Guild and the CCG.

5 The complainant then explained in detail the Guild’s role with respect to his workers’ compensation claim. On or about May 1999, the complainant experienced pain in the thoracic area of his back. He was working at the time. He filed a claim with the WCB regarding that injury. His claim was disallowed. He filed another claim for an injury sustained in July 1999, which was also denied, but the Workers’ Compensation Review Board (“the Review Board”) overturned the decision, and wage loss benefits were issued up to his return to work on September 14, 2001.

6 The complainant added that on November 22, 2001, the WCB issued a decision for wage-loss payments from August 23, 1999 to December 30, 1999. The WCB also issued decision letters dated December 18, 2001, concerning the implementation of the Review Board’s decision and two other decision letters, both dated December 19, 2001.

7 Shortly after December 19, 2001, the complainant approached the Guild to conduct an appeal of those decisions. The Guild and its representatives, as part of their collective agreement duties, represented CCG employees, such as the complainant, on WCB matters.

8 On January 23, 2002, Captain Vingsnes, business agent for the Guild, filed an appeal with the Review Board regarding the WCB decisions.

9 On May 18, 2002, the complainant met with Captain Vingsnes to discuss his WCB appeal.The complainant informed Captain Vingsnes that he wanted the Workers’ Advisory Board to represent him on further WCB matters. The complainant was of the opinion that the Workers’ Advisory Board was better equipped and more experienced to deal with WCB questions.

10 Captain Vingsnes emphatically told the complainant not to approach the Workers’ Advisory Board as the Guild would look after his WCB matters.

11 From that point forward, the Guild remained the complainant’s official representative with respect to his WCB appeals.

12 The complainant spoke with Mr. Walton who was then handling his appeals for the Guild on a number of occasions in 2002. He made Mr. Walton aware of existing wage-loss discrepancies on the matter under review with the WCB.

13 Mr. Walton and others at the Guild became frustrated by the complainant’s regular inquiries regarding the progress of his file. The Guild and its representative requested that the complainant not telephone the Guild and informed him that it was quite capable of filing the necessary paperwork within the allotted timeframe.

14 On October 15, 2002, Mr. Walton filed a Notice of Appeal on Part 1 form regarding the wage rate that the WCB had used to calculate the complainant’s wage-loss benefits. The complainant telephoned him about that appeal. Mr. Walton informed the complainant that the Part 2 form should be filed separately, that the Part 2 file was on his desk and that he was presently working on it.

15 On January 16, 2003, Mr. Walton sent the complainant a letter stating that he had only one open file with the WCB on the complainant’s behalf and that he was awaiting the Review Board’s response to and directions for filing the Part 2 appeal from the October 15, 2002, decision.

16 Immediately upon receipt of this letter, the complainant contacted Mr. Walton. He asked why the Guild only had one file open and what had happened regarding Captain Vingsnes’ work on the October 15, 2002, Part 2 appeal.

17 Mr. Walton told the complainant that he thought the second matter had been filed but that he was not sure. He informed the complainant that he would contact him if he found it. At about that time, the complainant received two telephone calls from Ms. Turpin, of the Guild, asking him to search his records regarding the Part 2 appeal. The complainant searched his records, found that he had no record of the matter and informed Mr. Walton accordingly.

18 Between August 18, 2003 and October 11, 2005, the complainant contacted the WCB on at least two occasions to determine the status of his appeals. The WCB informed him that they could not provide him with any information until the Deputy Registrar rendered a decision.

19 Each of the complainant’s attempts to deal with his file directly through the WCB was refused, as the Guild was his official representative for the purposes of his appeal.

20 On October 11, 2005, Douglas Strongitharm, Vice-Chair, Deputy Registrar, sent a letter to Mr. Fawkes, the new Guild’s representative for the complainant’s appeals, advising that he should review the appeals with the complainant and advise the WCB within 14 days if the complainant wished to proceed.

21 The complainant did not receive that letter until October 28, 2005, three days past the time limit. The complainant immediately called Mr. Fawkes who was then handling his appeals and asked him why he had not disclosed this matter earlier. He was informed that Mr. Fawkes did not understand what was being appealed. Mr. Fawkes indicated that he would contact the Deputy Registrar and ask for a time extension.

22 No update was ever given to the complainant regarding the status of the time extension request that the Guild made on his behalf.

23 On October 3, 2006, the complainant contacted the Review Board and inquired about the status of his appeals. The Review Board informed him that a decision had been made on January 11, 2006, denying the extension of time. The Review Board informed him that his representative, and at that time Mr. Fawkes of the Guild, should have provided him with a copy. He telephoned Mr. Fawkes and spoke with another of the respondents, Guy Beaulieu, who had taken over the complainant’s file.

24 The complainant was not aware until October 3, 2006, of the Review Board’s decision to dismiss his claim and deny the extension of time.

25 The complainant contacted Mr. Beaulieu on October 3, 2006, and Mr. Beaulieu informed him that his files had been archived and put in storage.

26 On October 4, 2006, the complainant sent a letter to the Review Board asking for a copy of the decision, which he received on or about October 4, 2006.

II. Summary of arguments regarding the Public Service Labour Relations Board’s jurisdiction

A. For the respondents

27 In a letter filed February 6, 2007, Captain Vingsnes replied on behalf of all of the respondents. The respondents raised two preliminary objections regarding the Board's jurisdiction regarding the complaint. The first related to the complaint’s subject matter and the second to its timeliness.

28 The representatives of the parties met on June 28, 2007, and following that meeting they agreed that the respondents’ objections on jurisdiction would be dealt with by way of written submissions.

29 The respondents filed their written submissions, with attachments, on August 13, 2007. The following sets out the main points made in those submissions which are on file with the Public Service Labour Relations Board (“the PSLRB” or “the Board”).

30 The respondents’ representative submitted that the PSLRB lacked jurisdiction to hear this matter since it has no jurisdiction to deal with a complaint concerning representation at other tribunals such as a workers’ compensation board. There is no requirement in the collective agreement between the Treasury Board and the Guild (covering Ships’ Officers) or in the PSLRA to represent the Guild's members at workers’ compensation tribunals.

31 The fact that the Guild assists its members in workers’ compensation claims does not transform the service into a matter covered by section 187 of the PSLRA. The provision of such a service is an internal union affair. The Guild provides many other non-collective agreement services such as retirement counselling, representation before transportation tribunals, assistance with Canada Pension Plan matters, referrals to drug and alcohol programs, assistance with Employment Insurance, and many other similar services. The respondents argued that it was preposterous to suggest that every service that a union offers is subject to an unfair representation proceeding since these are clearly internal union affairs. The PSLRB (and its predecessor the Public Service Staff Relations Board) has consistently dismissed complaints dealing with internal union matters. On that issue, the respondents referred me to the following cases: Bracciale v. Public Service Alliance of Canada (Union of Taxation Employees, Local 00048), 2000 PSSRB 88; Lai v. Professional Institute of the Public Service of Canada, 2000 PSSRB 33; and White v. Public Service Alliance of Canada, 2000 PSSRB 62.

32 The respondents added that other labour boards have also dismissed similar complaints and referred me to the following cases in support of that proposition: Barnard, [1997] B.C.L.R.B.D. No. 6 (QL); Dumontier, [2002] CIRB No. 165; and Buchanan, [2006] CIRB No. 348.

33 The respondents also submitted that the matters raised in the complaint are long out of date. In the attachment to Supplemental Form 16 filed January 2, 2007, the complainant describes interaction with the Guild beginning “On or about May 1999” (paragraph 4) and continuing into 2003 (paragraph 24). Between August 18, 2003 and October 11, 2005, the complainant dealt with the WCB himself (paragraph 25). Then in the latter part of 2005 the complainant dealt with the Guild again (paragraphs 27 to 33). The complaint was not filed until January 12, 2007 (see the PSLRB’s received date stamp on page 1 of Supplemental Form 16).

34 The complainant has provided no explanation for this lengthy delay other than bald statements that he was not aware of a workers’ compensation decision until October 4, 2006. However, that does not explain why he did nothing from the end of 2005, when he was clearly dissatisfied with his representation, until January 2007. His reliance, now, on a copy of a decision he received in October 2006 is no explanation for a delay of over a year. From the complainant’s own submissions, in December 2005 he concluded that there was a problem with the way he was being represented through his discussions with Mr. Fawkes, but he took no action until January 2007.

35 The respondents alleged that the 90-day time limit in subsection 190(2) of the PSLRA has long since expired. The respondents referred me to McConnell v. Professional Institute of the Public Service of Canada, 2005 PSLRB 140, and Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78, as authority for dismissing the complaint as untimely.

B. For the complainant

36 In written submissions filed on September 4, 2007, the complainant, through his representative, maintained that the respondents were his legal representatives. The WCB dealt only with them. They were obliged to receive copies of correspondence and documents from the WCB. They did not send that correspondence to the complainant.

37 Throughout the various changes in representation, the responsibility for the complainant’s file was not properly transferred among the Guild’s employees.

38 At all material times the complainant was not in control of the conduct of his file. The Guild denied him the right to control his file. The Guild, by its own words and actions, became the complainant’s sole representative before the WCB.

39 The complainant filed his PSLRA complaint with the PSLRB on January 2, 2007, within 90 days of when he became aware that the Review Board had dismissed his claim and denied his request for an extension of time.

40 The complainant maintained that each of the cases cited by the respondents in their submission is easily distinguishable from this complaint.

41 The Guild cited Bracciale to support the proposition that the PSLRB lacks jurisdiction to deal with this complaint as its subject matter is internal union business. The complainant in Bracciale asked the Board to remedy irregularities regarding a union’s internal electoral practices. This dispute has nothing to do with the Guild’s internal electoral mechanisms.

42 The Guild, on its own accord, took on the complainant’s WCB appeal under its mandate as his exclusive bargaining agent. This is not an “internal union affair” as referred to in Bracciale and other similar cases.

43 The White case dealt with the internal matter of placing the entire bargaining unit under trusteeship. Its facts are not remotely related to the current dispute, which involves  the complainant’s individual rights.

44 The complainant approached the Guild regarding an individual employment issue, and the Guild assumed the conduct of the file. The Guild was approached after the subject matter crystallized.

45 Lai dealt with a union’s refusal to file for judicial review with respect to the Board’s decision. The complainant conceded that the union has no duty to bring a case that it believes has no chance of success to judicial review. Those are not the facts in this case.

46 The Guild took carriage of the complainant’s file. The Guild and the other representatives told the complainant not to seek representation through others on his own or through the Workers’ Advisory System. The Guild and their representatives negligently failed to properly file the appeal within the required time limits. The Guild did not make a decision that the complainant’s file contained no merit. In fact, it agreed to pursue the merits of the WCB appeal.

47 This complaint does not deal with a union’s refusal to pursue a grievance. It deals with a union’s absolute lack of diligence and bad faith, in pursuing a matter that it undertook on behalf of a bargaining unit member.

48 In Barnard,the union carried the matter through arbitration and decided not to appeal it. Here, the respondents took control of the file and then abandoned it. To use the facts of Barnard in an analogous manner, the respondents’ actions are akin to taking the matter to arbitration, not showing up at the arbitration hearing and then failing to inform the complainant about their negligent oversight.

49 In Buchanan, the respondent union refused to undertake the complainant’s individual complaint. Before the complaint, the union and the employer had negotiated and had agreed to abandon a number of outstanding individual complaints. The complainant wished to proceed with her individual complaint. The union declined. The Canada Industrial Relations Board (CIRB) defended the union’s position in that regard.

50 In this complaint the respondents undertook to file the complainant’s WCB appeal. They cannot now say that they had no duty to complete the file once they started it.

51 In Dumontier, the union did not breach its duty of fair representation after declining to represent the complainant before an administrative tribunal, as such a duty was not set out in the collective agreement. However, the complainant in that case notified the union that he did not want to be represented by the counsel provided for free by the union and told the union that he had $100,000 to take care of his defence. That was clearly not the case here.

52 The Guild insisted that it have conduct of the complainant’s file. The Guild is now asking the Board to refuse jurisdiction and thus relieve it from the duty it brought upon itself, and was entrusted with by the complainant.

53 The respondents stated in their submission that the authorities noted “… all specifically conclude that representation at workers’ compensation tribunals is not something that is reviewable through a duty of fair representation complaint.” That statement has absolutely no legal merit. In any event, the facts of this dispute distinguish it from any of the authorities cited by the respondents.

54 When the Guild intentionally and purposefully took control of the WCB complaint, it lost the ability to argue that the subject matter of this dispute was not its responsibility under the collective agreement.

55 The Guild is estopped from arguing that it had no duty to attend to the complainant’s WCB appeal. The complainant relied on the Guild’s assurances that his matter was being looked after. The complainant should not suffer a detriment because of his reliance on the Guild’s assurances.

56 Over the course of the Guild’s handling of the complainant’s file, no less than four individuals were entrusted with ensuring its proper conduct. None of them exercised due diligence in ensuring that it was properly looked after. The Guild and its representatives have shown unquestionable negligence in their conduct of this file. They now ask the PSLRB to excuse that conduct on a jurisdictional basis.

57 The respondents maintained that the PSLRB should refuse jurisdiction of this matter since it deals with internal union business. Captain Vingsnes’ letter to the PSLRB on February 6, 2007, also argues that assistance with the complainant’s WCB file is one of many “non-collective agreement services” provided by the Guild. That paradox cannot stand. Either this matter is Guild business or it is not.

58 The respondents have not, at any point, denied that they offered their assistance with the complainant’s file. Once offered and accepted, that assistance had to be properly performed by the Guild.

59 In Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, the Supreme Court of Canada established the test to determine whether a matter falls within the exclusive jurisdiction of a specialized tribunal such as the PSLRB. The Court held that disputes that arise from the “. . . interpretation, application, administration or violation of the collective agreement” should not be pursued through the courts.

60 In that case, McLachlin, J., as she then was, also indicated that an arbitrator could seize jurisdiction even when the factual context of a dispute extends beyond the strict terms of the collective agreement. If this matter is deemed to fall outside of the collective agreement, the PSLRB should seize jurisdiction of it as per McLachlin, J.’s comments.

61 The subject matter of the complaint is within the ambit of the Guild’s duties, which flow either expressly or inferentially from the collective agreement. In any event, it adopted this duty of its own accord. The PSLRB has clear and specialized jurisdiction to consider the subject matter of this dispute.

62 Denial of jurisdiction by the PSLRB would be a breach of natural justice. Due to the constraints placed on the complainant’s potential standing by the Weber line of cases, the PSLRB may be the only venue where his complaint can be pursued.

63 The Guild must not be allowed to usurp the complainant’s rights regarding his file, seize them as its own, handle them negligently and then deny any responsibility for the prejudice it has caused the complainant.

64 The respondents were clearly the representatives of the complainant with respect to his file before the WCB. The Workers’ Compensation Appeal Tribunal’s Code of Conduct for Representatives is particularly instructive in this regard. The applicable portions of that document state the following:

…

24.10 General

Parties appearing before WCAT are not required to have representation. However, many are represented by agents such as friends or family members, union representatives, human resources managers, advisers from the Workers’ or Employers’ Advisers’ Offices, private consultants, or lawyers.

…

24.20 Duties of a representative

…

(c) A representative must observe WCAT’s rules, practices and procedures. In particular, a representative must be familiar with the timelines permitted for providing written submissions and for scheduling oral hearings. Representatives should not undertake to represent clients unless they will be able to provide such representation within the statutory time frames, as required by s. 253 of the Act.

…

[Emphasis made by the complainant]

65 Turning to the issue of timeliness, the respondents submitted that the limitation period is 90 days as per subsection 190(2) of the PSLRA, which states the following:

    190(2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

[Emphasis added]

66 The complainant was not aware of the Review Board’s decision to dismiss his claim and deny the extension of time until October 3, 2006. He filed his complaint with the Board on January 2, 2007. By a letter dated January 22, 2007, the PSLRB acknowledged receiving his complaint on December 28, 2006, within the 90-day time limit that began October 3, 2006.

67 January 1, 2007, was a statutory holiday and the offices of the Board were closed. Should the Board determine that the time limit expired on the weekend before January 2, 2007, the complainant met the timeline as per subsection 25(2) of the Interpretation Act, R.S.B.C. 1996, c. 238.

68 Subsection 6(3) of the Limitation Act, R.S.B.C. 1996, c. 266 states the following:

 (3) The running of time with respect to the limitation periods set by this Act for any of the following actions is postponed as provided in subsection (4):

…

(c) for professional negligence;

…

(e) in which material facts relating to the cause of action have been willfully concealed;

…

69 That provision of the Limitation Act recognizes that a complainant’s relative knowledge of his circumstances is often effected by the persons whom he entrusts to handle his complaint. In such situations, the running of time is suspended.

70 The complainant argued that any deficiency in meeting time limits was a result of professional negligence or willful concealment of the material facts by the respondents. As such, in keeping with the statutory intent of the Limitation Act, the complainant must not be penalized for the negligence shown by the respondents.

71 In their submissions filed February 6, 2007, the respondents state the following:

…

… Much of [the complainant’s] displeasure is actually the result of his dealing with the Workers Compensation Board of BC, which has undergone massive disruption in the past four years, leaving many employees without proper coverage; this is not a result of the assistance he received; but is a political issue.

…

72 The respondents would have the Board believe that everyone is to blame other than the Guild, which actually took control of the file. The Guild, on its own request, was the only party that had direct contact with the WCB regarding the complainant’s file.

73 The complainant made numerous and extensive inquiries with the respondents regarding the status of the file. The Guild left him completely in the dark. He could not possibly have known about the status of his file before October 3, 2006. The time limit should run from that date.

74 In conclusion, the complainant contended that it is preposterous for the respondents to now argue that he is out of time, when the basis for the timeliness argument is the respondents' own failure to keep him informed of the status of his WCB file. Time limits run from the date the complainant becomes aware of the breach, in this case October 3, 2006, and not before. He was unaware of the breach before that time.

75 In summary, the complainant alleged that there is no merit to the respondents’ jurisdictional or time limits preliminary application and that they must be dismissed.

C. Rebuttal submissions of the respondents

76 In their rebuttal submissions filed September 12, 2007, the respondents started by pointing out that the complainant’s representative repeated numerous “relevant facts” in support of the complainant's position on the preliminary objections. The respondents note that most of the “relevant facts” do not deal with the preliminary objections but deal with the merits of the complaint. The following is a summary of the respondents’ full submissions which are on file with the Board.

77 The respondents pointed out that the complainant neglected to mention that the Review Board’s overturning of the original WCB decision and of granting wage-loss benefits was due to Captain Vingsnes, of the Guild, representing him in the WCB appeal process. They referred me to the copy of the Review Board decision dated August 23, 2001, attached to the submissions.

78 The respondents stated that they disagreed with the complainant’s wild assertion that “… the Guild and its representatives aspart of their Collective Agreement duties … [emphasis in the original]” represented employees such as the complainant on WCB matters. There is nothing in the collective agreement dealing with representing Guild members in WCB matters. Nor are matters such as other services including retirement counselling, representation before transportation tribunals, assistance with Canada Pension Plan matters, referrals to drug and alcohol programs, assistance with Employment Insurance, and many other similar services covered by the collective agreement. The Guild offers these services to its members but not because of anything arising out of the collective agreement. The respondents attached to their submission a copy of the Ships’ Officers’ collective agreement (which covers the complainant) as confirmation.

79 There is no “Workers’ Advisory Board” in British Columbia, as the complainant asserts. There is a Workers’ Advisers Office within the British Columbia Ministry of Labour. The respondents disagreed that the complainant stated that the “Workers’ Advisory Board” (or the Workers’ Advisers Office) was better equipped and more experienced to deal with the WCB questions.

80 Captain Vingsnes did not tell the complainant emphatically or otherwise to not approach the “Workers’ Advisory Board” (or the Workers’ Advisers Office) as the complainant asserted. Captain Vingsnes did explain that the complainant could go to the Workers’ Advisers Office but that they may refer him back to his union as Captain Vingsnes was aware that they often did.

81 The respondents do not dispute that from that point forward, the Guild remained the complainant’s official representative with regard to his WCB appeals.

82 The respondents denied that Mr. Walton and others at the Guild became frustrated by the complainant’s regular inquiries regarding the progress of his file, that the Guild and its representatives requested that the complainant not telephone them, and that they informed him that they were quite capable of filing the necessary paperwork within the allotted timeframe.

83 Mr. Walton filed the Notice on October 15, 2002, as indicated in the copy that was attached to the submission. The procedure followed by the Review Board was that many months after a Part 1 was filed, the Review Board would send a Part 2 form to the representative. The complainant’s statement “… that the Part 2 file was on his desk and that he was presently working on it …” makes no sense as there is no “Part 2 file.” Furthermore, the complainant received a letter dated January 13, 2003, from Mr. Walton explaining that he was awaiting the Part 2 form.

84 The respondents denied that immediately upon receipt of the letter the complainant contacted Mr. Walton and that the complainant asked why the Guild only had one file open. The respondents denied this occurred and have no idea what the complainant’s counsel is referring to.

85 The respondents were not aware of any occasion when the WCB denied information for an appeal to a worker because that worker had a representative. In fact the complainant was dealing directly with the WCB throughout the period of the complaint. The complainant provided the respondents with information from time to time about these contacts he had with the WCB. At no time did the complainant raise an issue  of having difficulty in dealing directly with the WCB.

86 The respondents stated that the Guild obtained an extension of time and submitted the documents that the complainant provided to the Deputy Registrar.

87 In response to the complainant's assertion that he never received an update regarding the status of the time extension request that the Guild made on his behalf, the respondents maintained that Mr. Fawkes did inform the complainant of the progress of the extension request and did copy him on correspondence. The respondents referred me to a copy of a letter dated November 22, 2005.

88 The respondents doubted that the WCB Review Division (erroneously referred to as the Review Board) would have informed the complainant that his representative should have provided him with a copy of the decision for the reason that the Review Division sends the decision directly to the worker with a copy to his representative. The respondents attached a copy of a letter dated January 17, 2006 to their submission.

89 The January 17, 2006, letter enclosing the decision indicates that the complainant was aware of it long before October 2006.

90 The respondents disagreed with the complainant's assertion that they were his legal representatives and that they did not send that correspondence to the complainant. The respondents maintain that the Guild never told the complainant that it was providing legal representation. Also, the complainant was copied on the respondents’ and the WCB’s correspondence.

91 The respondents maintained that the Guild at no time denied the complainant control of his file.

92 Contrary to the submissions made by the complainant, the copy of the complaint provided to the respondents by the PSLRB shows that it was filed on January 12, 2007, as indicated in the PSLRB received date stamp on each page of the supplemental Form 16.

93 The respondents submitted that the cases referred to in their August 13, 2007, submission are not distinguishable.

94 The respondents pointed out that they are clearly not referring to the facts of the Bracciale case but rather that they are referring to the principles set out in that decision that the PSLRB does not entertain complaints dealing with internal union matters.

95 The respondents denied the bald, unsupported assertion of the complainant’s counsel that they “… took on the complainant’s WCB appeal under their mandate as his exclusive bargaining agent … .” The WCB appeal system is an external tribunal in the provincial jurisdiction of British Columbia. There is nothing in the collective agreement or the PSLRA to support the complainant’s theory that the Guild has exclusive authority for WCB appeals. In fact, the complainant was free to retain whomever he wanted to represent him or to represent himself.

96 The respondents referred to the White case for the principles set out in that decision.

97 The respondents referred to Lai because of a statement made in its “Reasons for Decision” section at paragraph 49:

…

I should start out by saying that I have reservations with regard to the proposition that a bargaining agent’s duty of fair representation extends to matters which are outside the scope of the PSSRA and which, as in the present case, arise out of matters coming under the PSEA. Rather, I am inclined to think that the duty is limited to rights arising out of the PSSRA.

…

98 There is no substance to the complainant’s submission that he was told not to seek representation through others or on his own. With respect to the submissions about the Workers’ Advisers Office, the respondents contended that the complainant was mistaken in his recollection and that he was free to retain whomever he wanted to represent him. The Guild did pursue his appeal but was unsuccessful.

99 The reason the respondents referred to the Barnard case was not for the grievance to which the complainant’s counsel refers, but rather the allegation that a human rights matter was not pursued. As in this case, the complainant was free to retain whomever he wanted to represent him or to represent himself.

100 The reference to the Buchanan case was made regarding paragraphs 109 and 110 of that decision, which state that a failure to communicate does not in itself constitute a violation of the duty of fair representation provisions of the Canada Labour Code. The respondents submitted, similarly, that if the PSLRB were to find any failure to communicate in their case, it would be of no assistance to the complainant.

101 The Dumontier case is very relevant. The respondents referred in particular to paragraphs 20 to 26 of that decision that deal with the workers’ compensation issue.

102 The respondents argued that the evidence does not disclose the elements of estoppel. For the application of estoppel in a labour board matter, they rely on Maple Ridge (District), [2001] B.C.L.R.B.D. No. 209 (QL), a decision of the British Columbia Labour Relations Board that exhaustively reviews the criteria necessary to succeed. They submitted that the submissions of the complainant do not come close to supporting an estoppel. In any event a party cannot use an estoppel argument to gain jurisdiction. If the PSLRB has no jurisdiction to hear this matter, an estoppel does not grant it.

103 The complainant's submission entirely misses the point of all of the cases that the respondents cited in their submissions. The thrust of those cases is that there are all sorts of matters that are “Guild business” but that are not subject to a duty of fair representation review by the PSLRB.

104 The respondents agreed that any assistance should be properly given to a union member and submitted that they did so in this case. However, if assistance was not properly given, it does not mean that the Guild is subject to a duty of fair representation review by the PSLRB.

105 The reliance on Weber is entirely misplaced. That case dealt with the jurisdiction of an arbitrator involving a collective agreement. Nobody, including the complainant’s counsel, has suggested that this case flows from an arbitrator’s jurisdiction.

106 The respondents argued that it is difficult to imagine how the PSLRB could “seize jurisdiction” of a matter that is clearly under the jurisdiction of the British Columbia workers’ compensation system. The PSLRB would have no jurisdiction to order the British Columbia Workers’ Compensation Board to hear an appeal, which is a normal remedy in a complaint dealing with a grievance.

107 The respondents disagreed that this complaint arises within the ambit of the collective agreement; it is a workers’ compensation matter only.

108 The respondents disagreed that the PSLRB is the only venue where this complaint may be pursued. For example, the complainant’s submissions suggest that the appropriate forum to pursue a complaint of this sort is through the workers’ compensation system.

109 The respondents submitted that it is difficult to understand how the PSLRB has any jurisdiction to apply policy of the British Columbia workers’ compensation system. If anyone is to deal with this, it is the British Columbia workers’ compensation system.

110 Turning to the issue of timeliness, the respondents agreed that subsection 190(2) is the appropriate section of the PSLRA; however, they disagreed that the focus should be on the October 3, 2006 date. The complainant’s counsel provided numerous submissions that the complainant was unhappy with the representation the Guild provided long before October 3, 2006. The very latest the 90-day time limit should begin to run is December 2005, when the complainant claimed to have disagreed with the manner his claim was being handled by Mr. Fawkes.

111 The respondents see nothing significant about October 3, 2006, since the Review Division decision was sent to the complainant on January 17, 2006. In any event, the complaint was not received until January 12, 2007, as evidenced by the PSLRB date stamp on each page of the complaint.

112 The respondents submitted that the British Columbia Interpretation Act has no application to the PSLRB.

113 The respondents submitted that the British Columbia Limitation Act has no application to the PSLRB.

114 The respondents disagreed that they were blaming others, and to support that assertion they attached an excerpt from the British Columbia Ombudsman’s 2004 report outlining numerous problems with the WCB appeal system. They also disagreed with the repetitive characterization that only the Guild had direct contact with the WCB.

115 In conclusion, the respondents submitted that nothing in the complainant’s submissions refuted their submission that the complaint should be dismissed on the preliminary matters of jurisdiction and timeliness.The respondents therefore ask that the complaint be dismissed on a preliminary basis.

D. Other submissions made by the complainant

116 On October 22, 2007, the complainant’s representative filed further submissions because the respondents in their rebuttal submissions had included documents that were previously only in the possession of the Guild. I have accepted to consider those submissions and gave the respondents the opportunity to respond to them. The following sets out most of the points made in those submissions which are on file with the Board.

117 The complainant stated that his submissions to the Board of September 4, 2007 were based on the best information available at the time of drafting. Much of those submissions were drawn from the complainant’s personal recollection of events and the minimal documentation made available to him by the Guild.

118 By way of example, the letter of January 17, 2006 from Nick Attewell contained in the respondents’ submission was only obtained by the complainant when he wrote directly to the WCB for it. This was despite the fact that the Guild was representing the complainant before the WCB and had a copy of the letter in his file.

119 The Guild consistently failed to communicate with the complainant or provide him with the proper documentation regarding the status of his file. The majority of the documents disclosed in the respondents’ submission to the Board on September 12, 2007, was never previously in the possession of the complainant or his counsel.

120 The documents disclosed in the respondents' submissions of September 12, 2007 have clarified a number of issues with regard to the timing of events and the actions of the Guild.

121 Additional submissions, as stated herein, are required in order to illustrate how the documents recently acquired from the respondents introduce new evidence that is directly material to this dispute, and supportive of the complainant’s position.

122 The respondents are correct in stating that the Workers’ Advisers Office was erroneously referred to as the Workers’ Advisory Board. It was not the intention of the complainant to mislead the Board.

123 The complainant contacted the Workers’ Advisers Office due to his ongoing concerns with the handling of his matter by the Guild. He was informed that the Office could not assist him until they were informed by the Guild that it would allow them to assume control of his file. The request for approval of the Workers’ Advisers Office was made to Captain Vingsnes and subsequently refused by him.

124 The collective agreement grants exclusive bargaining authority to the Guild. It does not contain specific language regarding the Guild’s ability to assume control of WCB matters for unit members.

125 Despite the lack of express language assigning the conduct of WCB matters to the Guild, it did assume control of the complainant’s matter. The ability to assume such control is inextricably linked to the Guild’s functions under the collective agreement. Furthermore, it resisted attempts by the complainant to remove from them control of his file.

126 For the sake of clarity, the appeals that should have been pursued by the Guild were Parts I and 2 regarding the proper wage rate to be used for the calculation of the complainant’s lost wages, and Parts 1 and 2 regarding the recovery of the complainant’s expenses for medication and physiotherapy. In addition, and concurrent to these appeals, was the main portion of the complainant’s appeal, regarding wage loss benefits for the period November 2001 to July 2005.

127 The amount of money owed to the complainant with regard to lost wages and benefits for the period November 2001 to July 2005 is substantial. The Guild caused the complainant extreme financial hardship due to its mismanagement of these appeals. It left the complainant without a salary, and without recourse, for a period of nearly four years.

128 Captain Vingsnes filed Part 1 of the wage rate calculation appeal on January 23, 2002. The complainant was informed that this appeal would also address the recovery of medication and physiotherapy expenses. Part 2 of this appeal was never filed by the Guild. This appeal was never properly filed or completed.

129 On October 15, 2002, Mr. Walton, of the Guild, filed a further Part 1 appeal regarding the wage rate calculation. Although the complainant voiced concerns that this did not address all of his issues, Mr. Walton assured him that the Guild would address each of his concerns before the Review Division. Part 2 of this appeal was never filed by the Guild. This appeal was never properly filed or completed.

130 Neither of the Part 2 appeals required of the Guild were filed by the Guild. The proper documents required to complete the complainant’s file were never placed before the Review Division.

131 The respondents’ reply indicated that the Guild followed the Workers’ Compensation Review Division procedure by waiting for the appropriate Part 2 form to be sent to them. The complainant is unaware of such a procedure. This submission concedes that the Guild had control of the matter and intended to file the appropriate Part 2 documents.

132 When the Review Division did not send the Part 2 documents, the Guild made no further inquiries about the forms they clearly anticipated filing. These forms were readily available online, but never obtained.

133 The complainant pointed out that the Guild’s submission indicated that:

… The Complainant’s counsel’s statement ‘… that the Part 2 file was on his desk and that he was presently working on it” makes no sense as there was no “Part 2 file” to be working on.

The complainant argued that this is precisely the nature of the complaint. The Guild was entrusted with pursuing this matter, yet its representative, Mr. Walton, utterly failed to file the proper documents. The Guild did not file the proper Part 2 documents for the complainant yet the respondents continually maintain that such documents were filed on his behalf. As the above statement indicates, they now admit that this claim was false.

134 The respondents deny the communications referred to in the complainant’s submissions between Mr. Walton and Ms. Turpin, of the Guild, took place. They did take place. Captain Vingsnes was not privy to those communications.

135 It was not until the October 11, 2005 letter of Mr. Strongitharm, Deputy Registrar of the Workers’ Compensation Appeals Tribunal, advising Mr. Fawkes, of the Guild that he should review the appeals with the complainant within 14 days to determine if the complainant wished to proceed, that the Guild made proper inquiries regarding Part 2 of the appeals.

136 Upon completing these inquiries, Mr. Fawkes, of the Guild, wrote two letters regarding the complainant’s file on November 22, 2005. These letters are contained in the respondents' submissions. The first was to the Tribunal, withdrawing the complainant’s claim. The second was to the WCB Review Division requesting a review of the complainant’s claim although some time had passed since the decision letter was issued.

137 The November 22, 2005 letter from Mr. Fawkes to the Review Division also stated that: “It is, I believe, agreed that a Part Two was filed but somehow possibly misplaced by the former Review Division, thus creating this problem.” Curiously missing from any of the respondents' submissions to date, is a copy of any Part 2 filed by the Guild. Presumably no copies of these official documents were retained by the Guild in its file concerning the complainant’s claims. They have yet to be produced.

138 The letters of November 22, 2005 were to correct the improper filing of the complainant’s file before the improper WCB level of tribunal. The Guild erroneously filed documents with the Tribunal when it should have filed them with the Review Division. When this error was finally detected by the Guild, the time limits at the Review Division level had expired.

139 The complainant contacted Mr. Fawkes, of the Guild, on December 5, 2005 and again on December 7, 2005, to inquire about his November 22, 2005, letter withdrawing the complaint. The complainant was informed by Mr. Fawkes that he had been in touch with the Deputy Registrar of the Tribunal and that all of the complainant’s matters were indeed before the Review Division.

140 The Tribunal is an independent body from the Review Division. The Tribunal had no jurisdiction to deal with the claims that should have been before the Review Division.

141 By letter of January 17, 2006, Mr. Attewell, of the Review Division, denied the extension of time requested by the Guild. This letter is contained in the Guild’s own submissions.

142 The respondents’ reply to the complainant’s submissions indicated that Mr. Fawkes obtained an extension to submit the complainant’s Part 2 documents with the WCB Review Division. The Guild has not produced any evidence that such an extension was granted.

143 The letter of January 17, 2006 was addressed to the complainant’s previous address in Victoria. The complainant was then living in Courtney, British Columbia, and had been for approximately four years. The complainant had never seen this letter prior to the receipt of the respondents’ submissions of September 12, 2007.

144 The Guild was well aware of the complainant’s change of address as they had been sending the complainant various correspondence, including receipts for his union dues, and monthly Guild newsletters.

145 The complainant only learned of the denial of his application for review when he wrote directly to the Review Division to inquire about the status of his file. The Guild never communicated to the complainant the result of this application, and he was never provided with a copy of the Review Division’s decision.

146 The Guild demonstrated a pattern of failure to clearly communicate with complainant about the progress of his file. If such failure came about due to the complainant’s change of address, this was an error that the Guild had four years to correct.

E. Other submissions made by the respondents

147 The respondents filed their response to those further submissions on November 10, 2007. The following sets out the main points of those submissions, which are on file with the Board.

148 The respondents stated that the complaint’s assertion that he did not have a number of documents they submitted on September 12, 2007, is specious and that argument should be dismissed. Most of the documents referred to were simply the respondents' copies of documents originally addressed or copied to the complainant. This applies to the following documents:

• the Workers’ Compensation Review Board’s findings of August 23, 2001 (the distribution list on page 8 of that document shows the name of the complainant);

• Mr. Walton’s hiring letter dated December 14, 1998 (it was provided to complainant’s counsel at his request during mediation);

• the letter from the Guild to the complainant dated July 11, 2002;

• the WCRB Part 1 form dated October 15, 2002 (it was provided to the complainant as an attachment to the November 22, 2005 letter);

• the letter from the Guild to the complainant dated January 16, 2003;

• the email from the complainant to the WCB sent February 13, 2003, at 1:50 pm (it was copied to the Guild) ;

• the letter from the WCB to the complainant dated February 20, 2003 (it was copied to the Guild);

• the letter from the Workers’ Compensation Appeal Tribunal dated November 22, 2005 (it was copied to the complainant);

• the letter from the WCB Review Division to the complainant dated January 17, 2006 (it was copied to the Guild).

149 The only two documents not of this nature are the collective agreement (which, clearly from earlier submissions, the complainant has a copy of) and the annual report of the British Columbia Ombudsman which is a public document freely available on the Ombudsman’s website.

150 Regarding the January 17, 2006 letter to which the complainant refers to, it is on its face addressed to him.  The Guild would not know that the complainant did not change his address with the WCB.  The complainant, as indicated in his complaint and submissions, did not contact the Guild until October 2006.

151 The respondents deny that the events the complainant described in paragraph 123 above ever occurred. There is no documentary evidence to support these purported requests and denial.

152 The respondents do not agree that WCB matters or their control are ‘’inextricably linked’’ to the Guild’s functions under the collective agreement as the complainant contends. Nowhere in his submissions has the complainant been able to point to any connection, express or otherwise, linking WCB appeals to the collective agreement.

153 Regarding the filing of the appeals, the respondents explained that an appeal was filed by the Guild but was misplaced by one of the government agencies in the conversion of the WCB appeal system from the Workers’ Compensation Review Board to the Workers’ Compensation Review Division. The Guild attempted to have the appeal dealt with by the new appeal system, but was unsuccessful.

154 The respondents further explained that the procedure of the former Workers’ Compensation Review Board was to generate a personalized Part 2 form and sent it to the complainant and his representative. They were signed and returned, beginning the next stage of the appeal process. This process stopped in March 2003. It is explained at page 34 of the excerpts from the Ombudsman’s annual report, which the respondents joined to their previous submissions. As a result of this change, the complainant’s appeals were lost by the WCB appeal system.

155 The respondents argued that the complainant is confused about the appeal procedures.  The Part 2 form was used by the WC Review Board not Review Division.  The new Review Division does not have a comparable procedure. In any event, the Guild attempted to rectify the misplaced appeals as explained above.

156 The respondents have no idea to what the complainant is referring to in paragraph 133 of this decision, as Mr. Walton did not claim a Part 2 was filed. His January 16, 2003 letter stated that he was awaiting the Part 2 document.

157 The respondents asserted that the complainant received copies of letters and was updated whenever he called.

158 Regarding the complainant's comments regarding the October 11, 2005, letter in paragraph 135 above, the respondents stated that the complainant ignores the basic problem, which was that the Part 1 forms had been misplaced by the Workers’ Compensation Review Board or not transmitted to the Workers’ Compensation Appeal Tribunal. The lack of a Part 2 form is really a side issue, because under the old Workers’ Compensation Review Board system this was not generated by the Review Board due to the misplaced Part 1 forms.

159 The respondents stated that the reference in the letter of November 22, 2005, from Mr. Fawkes to the Review Division contains a typographical error as the issue was clearly about the missing Part 1 forms, not the Part 2 form.

160 Regarding the complainant's comments that the Guild let the time limits expire without filing the appeals, the respondents argued that the complainant is confused about the appeal procedures. The newly created Workers Compensation Appeal Tribunal received an inherited backlog of appeals. The respondents referred me to the explanation provided at page 34 of the British Columbia Ombudsman annual report filed with their submissions. The complainant’s appeals were not processed in the inherited backlog because the Part 1 forms had been misplaced by the Workers’ Compensation Review Board or not transmitted to the Workers’ Compensation Appeal Tribunal.  There was nothing erroneously done by the Guild. The Guild withdrew the appeals to the Workers’ Compensation Appeal Tribunal because it would not process them because of the misplaced Part 1 forms.

161 While the respondents disagree with the Review Division’s decision of January 17, 2006, denying the extension of time requested by the Guild, as it does not provide any avenue for the complainant to pursue his appeals, that is the decision that was made. That decision precludes hearing the workers’ compensation appeals on their merits.

162 Regarding the complainant's comments that the respondents have not produced the request for the extension of time limits for the Part 2 appeal, the respondents submitted that the complainant is confused about the appeal procedures. The Part 2 form was used by the Workers’ Compensation Review Board not the Review Division.  The new Review Division does not have a comparable procedure.  The request for an extension to file was not to file any Part 2 form, but to file the submissions that were filed.

163 Regarding the complainant’s change of address, the respondents stated that the Guild does not notify the WCB about changes in members’ addresses. This is the responsibility of the members, including the complainant. 

164 In conclusion, the respondents submit that nothing in the complainant’s further submissions of October 22, 2007 refutes their submissions that the complaint should be dismissed on the preliminary matters of jurisdiction and timelines.

III. Reasons

165 This is an unfair labour practice complaint in which the complainant alleged that the respondents breached their duty of fair representation in the manner in which they handled his workers’ compensation claim before the WCB. The complainant’s claim was first denied, but the decision was reviewed and he was granted wage-loss benefits. The complainant then filed appeals regarding the amount of those wage benefits and related benefits. The manner in which the Guild handled those appeals is the subject of this complaint. More specifically, the complainant alleged that the respondents “… have been arbitrary, discriminatory and have acted in bad faith …”and that they “… have also been negligent …” in representing him before the WCB.

166 The relevant provisions of the PSLRA read as follows:

…

Complaints

190.(1) The Board must examine and inquire into any complaint made to it that

…

(g) the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.

…

Meaning of “unfair labour practice”

185. In this Division, "unfair labour practice" means anything that is prohibited by subsection 186(1) or (2), section 187 or 188 or subsection 189(1).

…

Unfair representation by bargaining agent

187. No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.

…

167 The duty of fair representation set out in section 187 of the PSLRA requires that bargaining agents and their representatives represent employees in the bargaining unit in a manner that is not “ … arbitrary or discriminatory or that is in bad faith … .” In dealing with a complaint of unfair representation, the Board must assess the impugned conduct to determine whether it constitutes a violation of the provisions of section 187.

168 The respondents raised two preliminary objections regarding my jurisdiction to hear this complaint. The first related to the complaint's subject matter, and the second concerned its timeliness. They agreed to submit written submissions on those two issues. This decision therefore deals only with these preliminary issues. I have reviewed all the evidence, submissions, arguments and cases cited by the parties and have decided to dismiss this complaint for the reasons that follow.

A. Subject matter of the complaint

169 The respondents contended that I could not hear this matter since it did not arise out of the collective agreement or the PSLRA. The complainant, on the other hand, argued that the duty of fair representation applies, especially in light of the fact that the Guild took charge of his case before the WCB.

170 I would like to point out at the outset that the first preliminary objection is not a matter of jurisdiction per se. I have jurisdiction to hear a complaint regarding the duty of fair representation as set out in section 187 of the PSLRA. The issue is more whether that duty as set out in the Act applies to matters before the WCB.

171 Before addressing the specific issues raised in this complaint, I believe it would be useful to review the genesis of the duty of fair representation, its basis and scope in other sectors, and its scope under the PSLRA.

172 The duty of fair representation was enacted as a counterweight to the restrictions on individual rights inherent in the creation of a collective bargaining regime in which the bargaining agent was granted exclusive rights to bargain on behalf of all of the employees in the bargaining unit. As the Ontario Labour Relations Board pointed out in Luis Lopez, [1989] OLRB Rep. 464 at paragraph 12:

…

… The duty of fair representation was enacted as a counterweight to the restrictions on individual employee rights inherent in the creation of a collective bargaining regime in which the bargaining agent was granted exclusive rights to bargain on behalf of all employees in the bargaining unit, whether or not union members. The duty of fair representation serves to protect the individual from decisions of the bargaining agent which could be characterized as arbitrary, discriminatory or in bad faith. In effect, given that the trade union would likely be more responsive to the wishes of the majority, the individual was afforded some protection against the "tyranny of the majority" since the advent of a collective bargaining regime had, for all intents and purposes, eliminated the individual's common law right to negotiate an individual contract of employment … .

…

173 Because the duty of fair representation stemmed from this grant of exclusive representation, it followed that its scope was limited to matters covered by that right. The duty was coextensive with the extent of the union’s authority as the exclusive bargaining agent, as the Ontario Labour Relations Board explained in Lopez (at paragraph 12):

…

… the Board regards the duty of fair representation as restricted so that the extent of the duty is coextensive with the extent of the union's authority as exclusive bargaining agent ... Thus, the context in which the section 68 duty arises and its purpose constitute the rationale for defining the ambit of the trade union's statutory obligation to fairly represent the employees in the bargaining unit.

…

174 Since the union’s exclusive representation right under labour relations legislation covering the private sector usually concerns the negotiation of the collective agreement, labour relations tribunals have limited the scope of the duty to matters arising out of the collective agreement or the collective agreement relationship. For example, the British Columbia Labour Relations Tribunal in Gonske v. Canadian Union of Public Employees, Local 606, [1993] B.C.L.R.B.D. No. 270 (QL), has stated that:

…

The duty of fair representation under the Section 12 is a corollary of a union's exclusive authority under Section 27 of the Code to represent employees in an appropriate bargaining unit. A union's grant of exclusive authority to act on behalf of employees is counterbalanced by a duty to exercise that authority without discrimination, bad faith or in an arbitrary manner. The duty arises in the union's representation of employees vis a vis their employer. It is confined to matters arising out of the collective agreement and out of the collective bargaining relationship with the employer (the areas over which the union has been granted exclusive authority and in which employees cannot act independently). If a union does not serve as the exclusive bargaining agent with respect to a particular matter, there is no corresponding duty of fair representation flowing from Section 12: Lopez and Canadian Union of Public Employees, (1988), 2 CLRBR (2d) 183 (OLRB), pp. 189-190. Where Section 12 speaks of "representation" it means representation in the negotiation and administration of collective agreements … .

…

[Emphasis added]

175 As George Adams points out in Canadian Labour Law, 2d ed., at paragraph 13.210, the duty of fair representation is concerned with the actions of a bargaining agent as they relate to the dealings that an employee in the bargaining unit may have with the employer:

…

… The duty applies only to a trade union in the representation of its members in terms of their relations vis-à-vis their employer. Accordingly, labour relations boards have been unwilling to interfere with: the conduct of ratification votes, the suspension of an employee from membership in the trade union, the exclusion of non-members from votes on contract matters during collective bargaining … .

…

[Emphasis added]

[Footnotes omitted]

176 It follows that labour relations boards have refused to apply the duty of fair representation to matters that are outside the ambit of the collective agreement relationship. In the Dumontier case cited above, the CIRB held that the bargaining agent did not breach its duty of fair representation in refusing to represent an employee in the bargaining unit before an administrative tribunal in a work injury case. It stressed that that the duty of fair representation does not include the obligation for a bargaining agent to represent its members before forums other than labour relations boards (at paragraph 22):

…

[22] The Board's case law shows that a union's duty of fair representation does not include the obligation to represent its members before other forums or administrative tribunals like the CSST or the CLP if this obligation is not clearly set out in the collective agreement.

…

177 Several cases have dealt specifically with the matter of representation before workers’ compensation boards. The British Columbia Labour Relations Board, for example, in the Gonske case, held that the duty of fair representation does not extend to the representation of an employee before the WCB:

…

The Board does not have jurisdiction to supervise the duty of fair representation set out in the Code where an individual is not affected in his or her capacity as an "employee": Vancouver General Hospital, BCLRB No. 31/78; H.D. Jakumeit, IRC No. C296/88; Gordi Minshull, IRC No. C184/92. As a result, the Board does not have jurisdiction to enquire into the representation of a worker under the Workers Compensation Act … .

…

[Emphasis added]

178 The British Columbia Labour Relations Board ruled so in spite of the very broad terms of section 12 of the British Columbia Labour Relations Code, which provided that “a trade union shall not act in a manner that is arbitrary, discriminatory or in bad faith …  in the representation of any of the employees in an appropriate bargaining unit”.

179 In the Lopez case, the complainant had filed a duty of fair representation complaint against his union because it refused to represent him in an appeal before the Ontario Workers’ Compensation Appeals Tribunal, even though the union had accepted to represent him at the first level before the Workers’ Compensation Board. The Ontario Labour Relations Board ruled that the duty of fair representation does not apply to claims before WCBs (at paragraphs 21 and 22):

…

The issue of the ambit of the union's obligation under section 68 is squarely raised in the instant case. The Board concludes, for the reasons already expressed, that the duty of fair representation must be commensurate with the reach of the union's statutory authority to represent the employees in the bargaining unit. Although, in a sense, the WCB intimately affects the relationship of employer and employee, the relevant statute, the Workers' Compensation Act, R.S.O. 1980, c. 539 (as am) effectively removes the adjustment of compensation for work-related injuries from the collective agreement arena by interposing an administrative agency between the worker and the employer. All claims for compensation are to be heard and determined by the WCB and, once compensation is awarded, it is paid out of an accident fund in accordance with a pre-determined scale. The trade union has no statutory role in the scheme. Hence, the union's representational duty in section 68 of the Labour Relations Act as exclusive bargaining agent is unrelated to the statutory scheme for workers' compensation and cannot apply to such claims: see Eason v. Frontier Airlines, supra, to the same effect. Accordingly, the Board finds that the union's decision not to represent the complainant at the WCAT proceeding falls outside the scope of the section 68 duty. Its decision in that regard may not be scrutinized by the Board by virtue of the duty of fair representation.

The fact that the WCB process has an "employment" aspect is insufficient to clothe the Board with jurisdiction under section 68 … .

…

[Emphasis added]

180 It should be noted that section 68 of the Ontario Labour Relations Act, R.S.O. 1980, c. 228, as it read at that time (now section 74 of the Labour Relations Act, S.O. 1995, c. 1, Sch. A), did not, like the PSLRA, specify the scope of the duty of fair representation. It read as follows:

68. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

181 Despite those broad terms, the Ontario Labour Relations Board held that the duty of fair representation did not apply to the representation of employees in a workers’ compensation claim.

182 Although the scheme of the PSLRA is somewhat different from most private sector labour legislations, I believe that the scope of the duty of fair representation does not extend to WCB matters. It may be useful at this point to examine that scheme.

183 As a statutory tribunal, the PSLRB’s authority to act in this regard is derived exclusively from the PSLRA. Section 187 of the PSLRA, much like the provisions regarding the duty of fair representation in the British Columbia Labour Relations Code and the Ontario Labour Relations Act cited above, does not specify the ambit of the duty of fair representation. In my view, since that duty is set out in the PSLRA, it relates to rights, obligations and matters set out in that Act. Since one of the main objectives of the PSLRA is to regulate the relationship between employees and their employer, in my view the ambit of the duty of fair representation relates to that matter.

184 As in the private sector, the PSLRA gives unions important representation powers. For example, a bargaining agent certified under the PSLRA has the exclusive right to bargain for members in its unit (paragraph 67(a)). An employee cannot present an individual grievance relating to the interpretation or application of a provision of a collective agreement unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit (subsection 208(4)). In my view, the duty of fair representation applies to those matters since they are set out in the PSLRA and they concern the relationship of employees vis-à-vis their employer. Also, in light of the genesis of the duty of fair representation, the fact that the union has exclusive representation rights in the negotiation of a collective agreement and has exclusive approval rights for those grievances gives greater support to the conclusion that the duty of fair representation applies to those matters.

185 However, the duty of fair representation in the federal public service is not entirely based, as in the private sector, on the exclusive character of union representation. For example, in my view (and this is an obiter since I do not have to decide that matter) that duty would apply to grievances related to disciplinary action resulting in termination, demotion, suspension or financial penalty under paragraph 209(1)(b) of the Act, even though the bargaining agent does not have veto powers over those grievances. The employee does not need union approval to present his or her grievance to the employer, and he or she may represent himself or herself or chose whomever he or she wishes as a representative. Again, in my view, the duty of fair representation covers those types of grievances because, as explained above, they relate to an aspect of the employee/employer relationship regulated by the PSLRA. In these matters, the union must, in my view, act in a manner that conforms to section 187 of the PSLRA.

186 Even though I know of no cases that have discussed the issue of whether the duty of fair representation applies to disciplinary matters, this Board has in fact in the past applied the duty of fair representation to such matters. For example, the decisions Pavlic v. Professional Institute of the Public Service of Canada, PSSRB File No. 161-02-792 (19970324) and Ruda v. Public Service Alliance of Canada, PSSRB File No. 161-02-821 (19971007) both dealt with disciplinary discharge, and in both cases the PSSRB examined whether the duty of fair representation had been breached by the union in the manner they represented the grievor at adjudication.

187 It cannot be said that the ambit of the duty of fair representation as set out in the PSLRA is limited to collective agreement matters as in the private sector. As explained above, the duty of fair representation applies, in my view, to the adjudication of disciplinary matters under paragraph 209(1)(b) of the Act, even though those matters are not usually dealt with in collective agreements in the federal public service because they are dealt with in the PSLRA itself. That is why, in my view, section 187 does not refer to the collective agreement. To do so would have prevented the duty of fair representation from operating in disciplinary matters.

188 To summarize the above, I am of the view that the duty of fair representation as set out in section 187 of the PSLRA relates to rights, obligations and matters set out in the PSLRA, that are related to the relationship between employees and their employer. In other words, the “representation” to which that section refers to is representation of employees in matters related to the collective agreement relationship or the PSLRA, such are representation in collective bargaining and the presentation of grievances under that Act.

189 That was also the view of the predecessor to this Board in the Lai decision. In that case, the issue was whether the union breached its duty of fair representation in refusing to represent the complainant in a judicial review proceeding of an appeal decision issued under the Public Service Employment Act. The Board did not decide that preliminary issue because it dismissed the complaint on its merits. The Board stated, however, that (at paragraph 49):

…

I should start out by saying that I have reservations with regard to the proposition that a bargaining agent’s duty of fair representation extends to matters which are outside the scope of the PSSRA and which, as in the present case, arise out of matters coming under the PSEA. Rather, I am inclined to think that the duty is limited to rights arising out of the PSSRA.

…

[Emphasis added]

190 I need not decide whether the duty of fair representation applies to proceedings and processes pertaining to the Public Service Employment Act. I find, however, that the general reasoning in the above obiter is sound and is the right approach in determining the ambit of the duty of fair representation under the PSLRA.

191 Turning to the case at hand, I see no explicit or implicit obligation in the collective agreement on the bargaining agent to represent employees before the WCB. This is not surprising since collective agreements usually deal with matters relating to the relationship of the employees or their union with the employer, not the relationship between unions and their members. As the respondents indicated, that service was given voluntarily to the complainant.

192 Nor do I see in the PSLRA any provision or indication that Parliament intended that the duty of fair representation extend to workers’ compensation claims before provincial workers’ compensation boards. Each province has workers’ compensation legislation, and there is no link between those legislative schemes and the PSLRA.

193 To accept the argument put forth by the complainant would mean that the duty of fair representation would apply to all services a union decides to offer to its members, whether or not it is obliged to offer that service and whether or not the service is related to the PSLRA or the collective agreement relationship. It would also mean that Parliament intended to give this Board the broad mandate to supervise the provision of representation services offered voluntarily by a union in relation to claims before workers’ compensation tribunals, disciplinary matters before professional organizations, claims relating to the Canada Pension Plan, matters relating to unemployment insurance, matters before transportation tribunals, actions before courts of law, etc., all areas over which this Board has no special expertise. In my view, if Parliament had intended to give this Board such a broad jurisdiction over matters unrelated to the PSLRA or the collective agreement relationship, it would have given an indication to that effect. In this case, there is no such indication.

194 Where Parliament wanted to impose obligations on unions vis-à-vis their members in the PSLRA, other than matters relating to the employee/employer relationship, it did so expressly. For example, subsection 188(b) of the PSLRA provides that a bargaining agent may not expel or suspend an employee from membership in the employee organisation by applying rules in a discriminatory manner.

195 The services that a union decides to offer to its members that are not linked to the PSLRA or the collective agreement relationship are matters between the union and its members. If the union fails to properly represent its members in those matters, there may be some relief in another forum (possibly on a contractual basis as expressed in the union’s constitution), but that matter is not within the jurisdiction of this Board.

196 It is true that in the Buchanan case, the CIRB did entertain the merits of a duty of fair representation complaint against a union regarding its representation of the grievor’s interests before another administrative tribunal. That case dealt with a wage-discrimination matter before the Canadian Human Rights Commission.  Although section 37 of the Canada Labour Code, Part I, provided that the duty of fair representation applied to employees with respect “... to their rights under the collective agreement ...” and there was no direct link with the collective agreement, the CIRB did consider the merits of the case. The CIRB did not elaborate much on why it accepted to intervene,  but in my view that case can be distinguished because of the very specific nature of the facts of that case as the CIRB pointed out, and the fact that the matter, i.e., pay equity, is a collective matter (at paragraphs 96 and 97):

…

The complaints filed by the union were collective in nature and it is this element that the Board was concerned with.

Nevertheless, the Board has considered all the arguments presented by the parties in this matter. It is of the opinion that, due to the particular and unusual circumstances of this case, it is preferable to consider the merit of the complaint without placing any limitations on the scope of section 37 of the Code in a definitive manner. It is possible that this issue will resurface in the near future. At such time, the Board will need to consider a broader range of questions in light of the specifics of the case at issue. A comprehensive analysis by the Board in this regard should be conducted with a view to

finding a balance of consistency between all the applicable legislation and the collective labour relations system established by the Code.

…

[Emphasis added]

197 The complainant also argued that the respondents are estopped from arguing that they had no duty to handle his WCB appeal because he relied on the assurances of the Guild that his matter was being looked after. In my view, that argument cannot serve to give me jurisdiction over this matter. Estoppel cannot operate to give an administrative tribunal a jurisdiction it does not have through its enabling legislation.  If there was a duty for the Guild to properly handle the complainant’s appeal, then that duty did not flow from the collective agreement or the PSLRA, and it could not form the basis of a duty of fair representation complaint under that Act. In the Lopez case, the Ontario Labour Relations Board rejected an argument of estoppel on the basis that the union had represented the complainant at the first level of a workers’ compensation claim. It held that representation that arises outside the union’s role as exclusive bargaining agent cannot generate a duty of fair representation, and the fact that the union had represented the claimant at the first level had no effect on the existence of such a duty (at paragraph 24):

…

The Board's conclusion is not affected by the fact that the union initially represented the complainant before the WCB. That is, representation which arises outside the union's role as exclusive bargaining agent cannot generate a duty to represent pursuant to the Labour Relations Act. It may be that, in another forum, the union or its officers could be compelled to continue representing the complainant (or to have initially represented him at the WCB if they had declined to do so) based on the contractual relationship between a union and its members as expressed in its constitution or arising out of its conduct: see, for example, Orchard v.Tunney (1957), 8 D.L.R. (2d) 273 Astgen v. Smith,[1969] 1 O.R. 129 Foran v. Kottmeier, [1973] 3 O.R. 102 (C.A.); and see paragraph 18 above. Whether or not an enforceable right may be established elsewhere, it is clear the union's conduct in representing the complainant at the WCB stage cannot subject a decision not to do so at the WCAT level to review by the Board by virtue of section 68 of the Labour Relations Act as such an obligation would not be coextensive with the union's exclusive bargaining authority conferred by the Labour Relations Act and to which section 68 scrutiny must be limited. In other words, without statutory or inherent jurisdiction to review the contractual relationship between a union and its members, as expressed in the union's constitution and bylaws, the Board cannot enforce that relationship. Nor can the Board rely on a doctrine akin to estoppel to require the union to continue its representation as a matter of equity because of the union's conduct in initially representing the complainant, when the Board lacks the jurisdiction to supervise the relationship between the union and its members beyond the confines of the collective agreement, its negotiation and administration: see Registered Psychiatric Nurses' Association, supra, in the passage cited in paragraph 22 above.

…

[Emphasis added]

198 The fact that the bargaining agent voluntarily offered to represent the complainant does not change the fact that the duty of fair representation as set out in section 187 of the PSLRA does not cover union representation in WCB matters, and consequently the provision of that voluntary service does not fall under the scrutiny of this Board. In Smith, [2004] B.C.L.R.B.D. No. 15 (QL), the British Columbia Labour Relations Board addressed the issue of whether the duty of fair representation applied where the union voluntarily acted in matters outside its exclusive bargaining agency. In that case, the union had agreed to represent the complainant in a court proceeding, but only on certain conditions. That Board was of the view that even though the union offered a service it was not obliged to offer, the duty of fair representation did not apply (at paragraph 28 and 29):

…

We acknowledge that in some cases, like the present one, the union may offer to fund an employee's case in a matter outside its exclusive bargaining agency, but only on certain conditions. Those conditions may allow the union effective control of the litigation. The employee may also be unable to afford legal representation on his or her own. Thus, an argument might be made that the situation is, practically speaking, little different than a matter arising within the union's exclusive bargaining agency, and Section 12 should therefore apply. Smith has not made such an argument in this reconsideration application, though there are some suggestions to that effect in the material.

In any event, we would reject such an argument. Employees in these circumstances are no different from other British Columbians, except that they have a union that is offering to provide them with representation on certain conditions. The fact that they have this additional option, and that it may be markedly better than their other options, does not deprive them of their self-agency to choose. Under the Code, a union has absolute control over matters within its exclusive bargaining agency (subject to the duty of fair representation). By contrast, in the case at hand, the Union will have only as much control over Smith's litigation as Smith has agreed to give it.

…

[Emphasis added]

199 Thompson, [2003] B.C.L.R.B.D. No. 227 (QL), is also a case in point. In that case, the complainant's duty of fair representation complaint related in part to the union's handling of a complaint that the employer filed against her with the Registered Nurses' Association of British Columbia. Even though the union had voluntarily accepted to represent the employee before that association, the British Columbia Labour Relations Board held that the bargaining agent’s handling of the complaint could not fall under the scrutiny of that Board under a duty of fair representation complaint (at paragraph 5):

…

… Much of what she has submitted is irrelevant because it falls outside the Board's authority under Section 12 of the Code … Nor can the Board address the conduct of the Union and the lawyer it retained to represent Ms. Thompson in connection with the RNABC complaint. That complaint is admittedly connected to the employment relationship in one sense; however, it concerns her professional conduct and is not a collective bargaining concern covered by the Union's role as exclusive bargaining agent … .

…

[Emphasis added]

200 The complainant referred to Weber for the proposition that a specialized tribunal such as the PSLRB has exclusive jurisdiction over a matter when the dispute arises from the “… interpretation, application, administration or violation of the collective agreement.” In my view, that case does not apply to this situation. The dispute in this case does not arise or flow from the interpretation, application, administration or violation of the collective agreement as was the case in Weber.  There simply is no link with the collective agreement. Weber dealt with the relationship between the employee and the employer, while this complaint deals with the relationship between the employee and his union.

201 The complainant further argued that in Weber the Supreme Court of Canada indicated that an arbitrator could seize jurisdiction even when the factual context of the dispute extends beyond the strict terms of the collective agreement. Again, the situations in both cases are quite different as to the object of the dispute and the nature of the relationships involved. The factual context in this complaint does not “extend” beyond the collective agreement; it simply does not arise from the collective agreement, or the PSLRA.

202 For all of the above reasons, I conclude that the duty of fair representation does not extend to the handling of the complainant’s workers’ compensation claim before the WCB.

B. Timeliness of the complaint

203 Since I have concluded that the duty of fair representation does not extend to the handling of the complainant's workers’ compensation claim, there is no need to address the timeliness issue.

204 For all of the above reasons, the Board makes the following order:

IV. Order

205 The complaint is dismissed.

January 9, 2008.

John A. Mooney,
Board Member