FPSLREB Decisions

Complaint before the Board

1 On April 10, 2007, Alain Laferrière (“the complainant”), a Canadian Space Agency (“the employer” or “the Agency”) employee until November 28, 2006, filed a complaint with the Public Service Labour Relations Board (“the Board under paragraph 190(1)(g) of the Public Service Labour Relations Act, S.C. 2003, c. 22(“the Act”) against Stanislaus Hogan and Lucie Baillairgé (“the respondents”), representatives of the Professional Institute of the Public Service of Canada (“the Institute”). In his complaint Mr. Laferrière alleges that Mr. Hogan acted in bad faith by failing to inform him, during a conversation on March 19, 2007, of the existence of the right to refer a grievance to adjudication. The complainant also alleges that Ms. Baillairgé acted in an arbitrary manner by siding with the employer when the complainant requested assistance from her on March 21, 2007.

2 The employer hired Mr. Laferrière on October 2, 2000 as an engineer, classified EN-ENG-05. His substantive position was Manager, Hardware Safety and Mission Assurance. In July 2006, while acting in a position classified EN-ENG-06, Mr. Laferrière found himself in a very serious situation of conflict with the employer. Because of that conflict, he was on paid leave from July 19 to November 24, 2006.

3 On November 22, 2006, Carole Lacombe, Acting President, Canadian Space Agency, called Mr. Laferrière to a meeting for November 24, 2006 at 13:30; the purpose of the meeting was to discuss Mr. Laferrière’s return to work on November 27, 2006. Mr. Hogan, one of the respondents, accompanied Mr. Laferrière to the meeting. Instead of reporting to work on November 27, 2006, Mr. Laferrière sent a resignation letter to Ms. Lacombe on that day. On November 30, 2006, Ms. Lacombe wrote to Mr. Laferrière, informing him that she accepted his resignation, effective at the close of business on November 28, 2006.

4 Even before the hearing began, both parties raised preliminary objections with the Board. At the hearing, I reserved my decisions on those objections and heard the case on its merits. I will first deal with the preliminary objections and then consider the merits of the case.

Preliminary objections raised by the complainant

5 On May 1, 2007, Erik Mackay, a labour relations officer at the Institute’s Montreal office, sent two sworn statements, which the respondents had made in response to the complainant’s complaint, to the Board’s acting case management officer. On May 4, 2007, the complainant objected to the fact that the documents were not sent to the Board’s executive director. At the hearing, the complainant stated that he maintained that objection.

6 The essence of that objection reads as follows:

[Translation]

…

I wish to bring to your attention the fact that the respondents’ submission, consisting of Mr. Erik Mackay’s letter … was sent directly to … the PSLRB’s acting case management officer and is thus non-compliant with the provisions of subsection 7(1) of the Public Service Labour Relations Board Regulations.

Subsection 7(1) of the Regulations provides the following: “Subject to section 8, any document submitted subsequently to an initiating document shall be filed with the Executive Director.” The respondents’ submission  … therefore contravenes the provisions of subsection 7(1) of the Regulations.

Based on the non-compliance of the respondents’ submission with the provisions of subsection 7(1) of the Public Service Labour Relations Board Regulations, I ask the Board, in continuing the hearing into the above-cited complaint, not to consider the respondents’ non-compliant submission.

…

[Emphasis in the original]

7 On July 17, 2007, the Executive Director of the Board responded to the complainant. I have reproduced certain portions of that response, as follows:

[Translation]

…

It is appropriate to place the practice and this demand in a broader context, which is to ensure both efficient case processing and procedural fairness for the parties. Section 7 of the Regulations must be understood in that context. That section has two main objectives: good management of filed documents and giving notice to the other parties that documents were filed. The reference in subsection (1) to the Executive Director provides a general address for filing documents. The subsection refers to the Executive Director as the person responsible for the Board’s operations and not to the Executive Director personally. In practice, all correspondence sent to the executive director about a pending case is routed to the registry.

…

The practice of considering correspondence addressed to a registry officer as being addressed to the executive director, for the purposes of compliance with subsection 7(1), has developed to ensure that cases before the Board are processed smoothly. Here again, having the parties deal directly with decision makers must be avoided. Instead, the parties must deal with the registry, whose ultimate head is the executive director, given that the operations director reports directly to the executive director. Thus, the registry receives correspondence on behalf of the executive director. Over the years this practice has been, and continues to be, advantageous to all concerned — employees, unions, employers and intervenors — since it allows cases to be processed more expeditiously.

…

We might also point out that under subsection 241(1) of the Public Service Labour Relations Act, no proceeding under the Act is invalid by reason only of a defect in form or a technical irregularity. Of course, the Act takes precedence over the Regulations, which are adopted under the Act and simply serve to prescribe forms and procedures. Sending correspondence directly to the registry and not to the executive director could be, at the very most, a defect in form, which cannot invalidate a given proceeding.

…

8 I share the Executive Director’s opinion and consider the Board’s practice of treating correspondence addressed to a registry officer as being addressed to the executive director to be fully compliant with the spirit of the Public Service Labour Relations Board Regulations (“the Regulations”). The Regulations indicate that the executive director’s office is the sole reception point for filed documentation, which is meant to simplify the parties’ efforts. During subsequent exchanges of correspondence as part of the case management process, various Board employees contact the parties. From then on, the parties respond directly to those employees and not to the executive director. In fact, it could hardly be otherwise since the Board processes thousands of cases each year, and each case generates several exchanges of correspondence. Whatever the case, allowing the complainant’s objection would not have changed anything in this case because the respondents would have been fully entitled to adduce the sworn statements in evidence at the hearing.

9 The complainant raised a second preliminary objection, alleging that the respondents failed to comply with subsection 7(2) of the Regulations by failing to provide him with a copy of their October 30, 2007 letter to the Board. Note that subsection 7(2) of the Regulations provides, among other things, that a party filing documents with the Board shall provide a copy of the documents to the other party. In a November 12, 2007 email Gaston Nadeau, counsel for the respondents, states that he both emailed and mailed a copy of the October 30, 2007 letter to the complainant. The complainant states that he never received either copy. On November 12, 2007, Mr. Nadeau again sent the complainant a copy of the October 30, 2007 letter. The complainant acknowledges receiving that copy on November 12, 2007.

10 Based on the evidence adduced, it is difficult to determine whether the respondents failed to fulfill their obligations under the Regulations. Although they state that they sent a copy of the October 30, 2007 letter to the complainant at the same time that they sent the letter to the Board, no evidence to that effect was adduced at the hearing. For reasons that have not been explained, the complainant did not receive the copy of the letter. Immediately after realizing that fact, he pointed it out, and the respondents again sent him a copy of the letter. That incident, then, did not infringe on the complainant’s right to procedural fairness in any way, because even if I found that there was a failure to provide the information, the error was corrected well before the hearing, a fact that gave the complainant time to prepare himself and his reply. In other words, the alleged failure had no surprise effect of preventing the complainant from replying to the objection raised on October 30, 2007.

Preliminary objection raised by the respondents

11 In an October 30, 2007 letter to the Board, the respondents raised a preliminary objection alleging that the complainant was no longer an employee when he filed his complaint. At the hearing, the respondents reiterated the objection. First raised on October 30, 2007, it reads as follows:

[Translation]

…

The preliminary point of law that we intend to raise is relatively simple. Following the events that occurred in March 2007, the complainant, Mr. Laferrière, criticized the representatives of the Professional Institute of the Public Service of Canada for failing to fulfill their duty of representation. At that time, however, for several months the complainant had no longer been an employee within the meaning of the Public Service Labour Relations Act, having resigned as an employee of the Canadian Space Agency in November 2006. Consequently, in March 2007, the complainant was no longer an employee or a member of the bargaining unit for which the Institute is the bargaining agent. That being the case, section 187 of the Act is not applicable to this case.

…

12 In support of his statement regarding the objection, counsel for the respondents adduced section 63 of the Public Service Employment Act, S.C. 2003, c. 22, and the following case law: Murray, Bews, Young and Boyko v. Brotherhood of Railway Carmen of America and Canada and Canadian National Railway Company, [1986] CLRB no. 545; Palmer v. Canadian Security Intelligence Service Employees Association, 2005 PSLRB 41; Downer v. Public Service Alliance of Canada et al., PSSRB Files Nos. 161-02-846 to 848 (19980604); Haley v. International Longshoremen’s Association, Local 269, 1999 CIRB Letter Decision no. 77 (19990528); Bouchard et al. v. Canadian Union of Public Employees, Local 687 et al., [2003] CIRB no. 259; and Powell v. Teamsters Local Union 938 et al., [2000] CIRB no. 97.

13 Replying to the preliminary objection raised by the respondents, the complainant states that in his opinion the objection is unfounded because it is based on a presumption of the true nature of his wishes. On December 6, 2006, the complainant asked the employer to re-hire him, but the employer refused. According to the complainant, it was a disguised dismissal. The complainant also states that in his opinion the objection is inaccurate because the events concerned occurred from July 26, 2006 to March 21, 2007, and he was an employee of the employer for nearly half of that period. Some of the contraventions of section 187 of the Act occurred while he was an employee, and all of the facts and actions, whether they occurred before or after November 28, 2006, form an indivisible whole. According to the complainant, therefore, the objection should be dismissed.

14 In ruling on that preliminary objection, I will first note the provisions of the Act to be considered:

       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.

…

       2. (1) …“employee”, except in Part 2, means a person employed in the public service, other than …

       (2) A person does not cease to be employed in the public service by reason only that the person ceases to work as a result of a strike or by reason only of the termination of the person’s employment contrary to this Act or any other Act of Parliament.

…

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

(a) the employer has failed to comply with section 56 (duty to observe terms and conditions);

(b) the employer or a bargaining agent has failed to comply with section 106 (duty to bargain in good faith);

(c) the employer, a bargaining agent or an employee has failed to comply with section 107 (duty to observe terms and conditions);

(d) the employer, a bargaining agent or a deputy head has failed to comply with subsection 110(3) (duty to bargain in good faith);

(e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) or 157 (duty to implement provisions of the arbitral award);

(f) the employer, a bargaining agent or an employee has failed to comply with section 132 (duty to observe terms and conditions); or

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

       (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.

…

15 Section 63 of the Public Service Employment Act, which the respondents quoted to support their argument, reads as follows:

       63. An employee may resign from the public service by giving the deputy head notice in writing of his or her intention to resign, and the employee ceases to be an employee on the date specified by the deputy head in writing on accepting the resignation, regardless of the date of the acceptance.

16 The evidence submitted in writing and adduced at the hearing is unanimous: the complainant resigned from his position at the employer on November 24, 2006. Under section 63 of the Public Service Employment Act and for the purposes of that Act, the complainant lost his employee status on November 28, 2006, the date on which the deputy head, in this case the President of the Canadian Space Agency, accepted his resignation. On that basis, counsel for the respondents concluded that on April 10, 2007, when the complainant filed his complaint, he was no longer an employee within the meaning of section 187 of the Act. That argument does not suffice for the objection to be allowed since my task is, instead, to establish the time at which the complainant would have lost his employee status for the purposes of the remedies available to him under the Act.

17 The evidence establishes that on January 22, 2007 the complainant contacted his former employer and requested that it change its decision to refuse to reconsider his resignation. On March 12, 2007, the Human Resources Director responded, informing him that the employer considered his file “closed”; in other words, that his resignation would not be reconsidered. Then, on March 19, 2007, the complainant contacted the union and asked what remedies were available to him following the employer’s March 12, 2007 decision. In response, Mr. Hogan, on March 19, 2007, and then Ms. Baillairgé, on March 21, 2007, informed the complainant that there was no remedy against the employer’s decision.

18 Following those responses by Mr. Hogan and Ms. Baillairgé, on April 10, 2007 the complainant filed this complaint. Thus it is clear that the complaint was filed within the 90-day time limit set out in subsection 190(2) of the Act. It remains to be determined whether the complainant was still an employee within the meaning of section 187 of the Act when he filed his complaint on April 10, 2007.

19 In ruling on this point, I must consider the scope of subsection 2(2) of the Act in relation to the evidence adduced and the complainant’s specific situation. The purpose of that provision of the Act is to maintain entitlement to remedies for an employee who was dismissed, for example. Under that provision, then, no objection could be raised against a grievance or a referral to adjudication solely because the dismissed employee was no longer an employee when the grievance was filed. It would be nonsensical for matters to be otherwise since an employee could not contest the dismissal before it occurred, while still an employee. Apparently that situation differs from the complainant’s because he resigned from his position. At the hearing, however, the complainant alleged in his testimony and in written documents that his resignation was, instead, a disguised dismissal — even though his complaint makes no mention of that allegation.

20 Given the purpose of the March 17 and 18, 2008 hearing and the scope of this case, I cannot rule on that allegation. In March 2007, when the complainant contacted his union to inquire about existing remedies, the time limit for filing a grievance contesting his November 28, 2006 resignation had expired. Nevertheless, at that time the complainant, or the union on his behalf, could have contacted the president of the Board to request an extension of the time limit under section 61 of the Regulations. The point here is not to speculate on the chances of success or the merits of such a request but simply to note that its possibility exists. In March 2007, although the complainant was no longer paying union dues, the union’s obligations toward him were not extinguished. In March 2007, the complainant was still entitled to ask the union for assistance and, in that regard, the union still had obligations toward him.

21 The facts in this case differ substantially from those in some of the case law adduced by the respondents. In Palmer, the complainant’s classification meant that he could not be unionized. In Downer, the complainant occupied a management position. She was therefore subject to a statutory exclusion from the unit for which the union was certified at the time the incidents giving rise to her complaint occurred. Powell is comparable to Downer, since the complainant’s duties did not fall within the types of duties of the bargaining unit members.

22 In Murray, the tribunal dismissed the complaint against the union because the complainants were no longer members of the bargaining unit when the events giving rise to the complaint occurred. On the other hand, the tribunal was careful to distinguish between the point at issue and the duty of fair representation, which “must continue to apply to employees after they have been dismissed.” In Haley, the tribunal also dismisses the complaint on the ground that the complainant was no longer a member of the bargaining unit. However, the complaint in that case involved rights recognized in a collective agreement and not rights related to a dismissal or a disguised dismissal, as may be the case here.

23 In Bouchard, the tribunal does not rule on the preliminary objection raised by the union that the complainants, who in that case were retired, were no longer members of the bargaining unit when they filed their complaint. However, the tribunal notes the Supreme Court of Canada decision in Tremblay v. Syndicat des employés et employées professionnels-les et de bureau, section locale 57, [2002] 2 S.C.R. 627, in which the Court writes in part as follows:

…

21 That duty arises from a legal mandate of representation that applies to an entire bargaining unit, the composition of which necessarily varies over time. Given the ongoing nature of that duty to all of the units, which may be in a constant state of change, it cannot be concluded that an employee's departure cancels out all consequences of the manner in which the duty of representation was carried out in respect of that employee. A legal situation may have been created such that a union will have to continue working and representing the employee in order to resolve it. …

…

24 Tremblay differs from this case, since that case had to do with negotiating back pay for an employee who had left her employment when a new collective agreement was signed. Nevertheless, the principle remains the same: the duty of representation is not necessarily extinguished by an employee’s departure and the cessation of the employer-employee relationship. In this case, the complainant alleges that his resignation was actually a disguised dismissal. He contacted the union in March 2007 after management refused to reconsider his resignation. Starting at that time, the union had a duty to consider the complainant’s situation and to do so with diligence, without discrimination and in good faith, even if the complainant was no longer an employee. I therefore dismiss the preliminary objection raised by the respondents.

Summary of the evidence

25 In addition to the sworn statements and documents submitted before the hearing, the parties adduced a great many documents at the hearing. The complainant adduced 5 binders, each containing between 3 and 16 documents, and the respondents adduced 1 binder containing 7 documents as well as 8 additional documents adduced separately. The complainant and the two respondents, Mr. Hogan and Ms. Baillairgé, testified. I will limit myself to summarizing the evidence required to rule on the complaint.

26 The complainant criticizes Mr. Hogan, an Institute union representative, for failing to inform him in March 2007 of the existence of the right to refer a grievance to adjudication. The complainant also criticizes Ms. Baillairgé, an Institute labour relations officer, for siding with the employer when, in March 2007, he asked what remedies were available to him.

27 First, I note that starting in July 2006, the complainant found himself in a very serious situation of conflict with the employer. As a result, he was on paid leave from July 19 to November 24, 2006. On November 24, 2006, at a meeting between the complainant and Agency senior management that Mr. Hogan also attended, agreement was reached on the terms and conditions of the complainant’s return to work on November 27, 2006. Instead of reporting to work on that date, the complainant submitted his resignation to management, which accepted the resignation, effective at the close of business on November 28, 2006. Then, on December 6, 2006, the complainant asked Agency management to reconsider his resignation and to reinstate him in his position. On January 12, 2007, management responded to the complainant, refusing his request for reinstatement. On January 22, 2007, the complainant once again wrote to management about reinstatement. Finally, on March 12, 2007, management informed the complainant that it considered the file closed, noting that the resignation had been accepted effective November 28, 2006.

28 Following that final response by the employer, on March 19, 2007 the complainant contacted the union and requested information about remedies available to him. Dissatisfied with the responses he received from the union representatives at that time, he filed this complaint. I will therefore limit my analysis of the evidence to the documents and testimony on the respondents’ actions in March 2007, the point at issue being whether the respondents properly fulfilled their duty of representation at that time. Although at the hearing the complainant referred to his conversations with the respondents and the representation he received from July 2006 to early March 2007, the complaint is not about those incidents but about the incidents following management’s March 12, 2007 response.

29 On March 19, 2007, Mr. Hogan informed the complainant by email that following the employer’s March 12, 2007 refusal to reconsider the November 2006 resignation, no remedy was available to him. According to Mr. Hogan, the complainant was no longer an Agency employee and nothing could be done to force management to reinstate him in his former position. After receiving that email, the complainant did not contact Mr. Hogan again to discuss his March 19, 2007 response.

30 On March 21, 2007, Ms. Baillairgé responded by email to the complainant and informed him that if he filed grievances or complaints against his former employer, they would be ineffective. After reminding the complainant that he had resigned from his position and that no disciplinary action had been involved, Ms. Baillairgé wrote the following (see the appendix to the complaint):

[Translation]

…

You also asked the Agency to reconsider your decision to resign. The Agency responded that it would not undertake that reconsideration. Here again, this is not a matter that can be brought before the PSLRB.

In analyzing the situation in which you made a decision to resign, I see no remedy available to you that would force the CSA to reinstate you in your position.

You were declared fit to perform your duties by your attending physician, the PIPSC medical specialist and the Health Canada physician. In the presence of your union representative, the employer offered you a plan to return to work. You were to return to work the following week. You did not report to work as planned since you had made a decision to send a resignation letter.

…

31 After receiving Ms. Baillairgé’s email, the complainant did not contact her again to discuss her March 21, 2007 response. As well, at no time before the hearing began on March 17, 2008 did the complainant discuss with Ms. Baillairgé the possibility of a disguised dismissal or specifically state that he had felt threatened at the November 24, 2006 meeting about the terms and conditions of his return to work. Before sending her response to the complainant, Ms. Baillairgé researched the case law and, based on the information she had, saw no remedy available to him. Furthermore, she had in her possession the medical certificates that had been prepared shortly before November 24, 2006, confirming that the complainant was of sound mind.

Summary of the arguments

32 At the hearing, the complainant presented arguments in writing. I will summarize his arguments, limiting myself to the respondents’ actions that are criticized in the complaint, meaning the actions following the complainant’s March 19, 2007 request to the respondents. To support his arguments, the complainant adduced the Supreme Court of Canada decision in Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R 509, noting the principles it sets out.

33 The complainant criticizes Mr. Hogan for “[translation] representation in bad faith,” referring to Mr. Hogan’s March 19, 2007 response indicating that no remedy was available to the complainant. The complainant also criticizes Mr. Hogan for acting in an arbitrary manner, like a “[translation] free agent,” by signing a sworn statement on April 19, 2007 stating that the complainant had resigned of his own free will on November 27, 2006.

34 The complainant criticizes Ms. Baillairgé for acting in an arbitrary manner by siding with the employer in her March 21, 2007 written response to him. He also criticizes her for “[translation] acting presumptuously,” as a “[translation] free agent,” by signing a sworn statement on May 1, 2007 stating that the complainant had resigned voluntarily and of his own free will on November 27, 2006.

35 Finally, the complainant accuses the respondents of lacking integrity after they adduced in evidence two medical opinions prepared by a Health Canada physician and bearing the notation “[translation] HEALTH CANADA-PROTECTED.” Since the employer provided those medical opinions to the respondents, the complainant alleges that the respondents “[translation] benefited from the complicit favour” of the employer.

36    After general comments on the complaint being unfounded, the respondents argue that the complainant’s allegations about the union representation provided around the time of his resignation should be dismissed, given the wording of the complaint and the fact that when the complaint was filed in April 2007, the 90-day time limit had expired.

37    The respondents reject the complainant’s allegations. When the complainant contacted the respondents on March 19, 2007, he had already resigned on November 27, 2006. In response, Mr. Hogan informed the complainant that no remedy was available to him at that time. Ms. Baillairgé considered the complainant’s file, reviewed the case law and came to the same conclusion as Mr. Hogan. At no time from the complainant’s resignation until the hearing did he inform the union that he had felt threatened when he resigned in November 2006. The union was therefore unable to explore that possibility to determine whether it entitled the complainant to any remedy. There is a well-established rule that an employee seeking representation or criticizing the union is obliged to cooperate with the union and to provide it with information. However, the union not only was unaware that the complainant had felt threatened, but also had no reason to suspect that that was the case.

38    The respondents adduced the following decisions to support their arguments: Griffiths v. United Steelworkers of America, CAW-Canada, Local 101, [2002] CIRB no. 208; TY VO v. Canadian Auto Workers, Local 444 (2006), 129 CLRBR (2d) 276; Norris v. IWA-Canada, Local 1-424 (1994), 23 CLRBR (2d) 52; and Lemi v. CAW-Canada, Local 4351, [1999] CIRB no. 24.

Reasons

39    In ruling on this complaint, I will take into account only evidence related to the complaint itself and to the respondents’ actions following the complainant’s March 19, 2007 request for assistance. Although, as the complainant has argued, the events that occurred from July 2006 to March 2007 are related because they have to do with the same situation, which arose from a conflict between the complainant and the employer, resulted in a resignation and became the present dispute between the complainant and the union, that is not the point. If the complainant believed that his union treated him unfairly in summer 2006 or in November 2006, he should have filed a complaint within 90 days. He did not do so; he waited until April 10, 2007 to file a complaint specifically about the respondents’ actions in March 2007. Accordingly, only those actions will be considered.

40    The facts of the complaint are as follows: on March 19, 2007, the complainant asked the respondents what remedies were available to him; they replied that no remedy was available. In his March 19, 2007 response, Mr. Hogan provided no explanation. Ms. Baillairgé explained that in light of her analysis of the situation, she was of the opinion that “[translation] grievances or complaints” against the former employer would be ineffective. Based on those responses, the complainant concluded that the respondents acted in bad faith or in an arbitrary manner, thus contravening section 187 of the Act.

41    Section 187 of the Act does not impose on the union a duty of representation in all cases; rather, it prohibits the union from acting in a manner that is arbitrary, discriminatory or in bad faith. In exercising its discretion, therefore, the union must respect those criteria. In Gagnon, at page 510, the Supreme Court of Canada writes as follows:

…

… This discretion however must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other. In short, the union's decision must not be arbitrary, capricious, discriminatory or wrongful.

42    On March 19, 2007, when the complainant contacted the respondents, they did not know that he had felt threatened at the November 24, 2006 meeting, which was about his return to work, that preceded his resignation. They were convinced that everything had gone well. According to them, the complainant’s resignation on November 27, 2006 was voluntary and free of coercion. In responding to the complainant, then, the respondents could not take that information into account. A union cannot take action in a situation of which it is unaware and then be criticized for not acting by a member who has not provided it with information. This view is essentially that expressed in Griffiths at paragraph 37.

43    Ms. Baillairgé took the trouble to consult the case law to ascertain whether there was a possible remedy. Based on the information she had, she could not presume that the complainant had felt threatened at the November 24, 2006 meeting. However, she considered the complainant’s mental health status at the time of his resignation. She had in her possession three medical opinions prepared shortly before that time that confirmed that the complainant was of sound mind. In her analysis, therefore, Ms. Baillairgé concluded that no remedy was available to the complainant.

44    As the complainant alleges, it is true that the employer forwarded two medical opinions about him to the union. Indeed, the complainant already knew in November 2006 that one of the two medical opinions had been forwarded to the union, since a copy of the covering letter was sent to him on November 6, 2006. Based on the evidence adduced, I cannot say whether the complainant knew in November 2006 that the second medical opinion had been forwarded to the union. Whatever the case, based on the forwarding of those documents, it cannot be concluded, as the complainant did, that there was any sort of collusion or complicity between the employer and the union against the complainant. The medical opinions were used solely to establish that the complainant was fit to be reinstated to his position in November 2006. On that point, the forwarding of those documents to the union could even be considered desirable, given the union’s duty to represent the complainant.

45    In light of the evidence adduced, section 187 of the Act and the relevant case law, I find that the complainant has not discharged the onus resting on him. The respondents did not act in a manner that was arbitrary, discriminatory or in bad faith. After serious consideration of the case and in light of the information in their possession, the respondents informed the complainant that in their opinion no remedy was available to him. They were fully entitled to do so.

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

Order

47    I dismiss the two preliminary objections raised by the complainant.

48    I dismiss the preliminary objection raised by the respondents.

49    I dismiss the complaint.

April 24, 2008.

PSLRB Translation

Renaud Paquet,
Board Member