FPSLREB Decisions

Heard at Montreal, Quebec,
January 20 and 21, March 30, and April 1, 2015.
(Written submissions filed April 27 and May 19 and 25, 2015.)
(PSLREB Translation)

REASONS FOR DECISION

I. Complaint before the Board

1        On March 24, 2014, Stéphane Gariépy (“the complainant”) made a complaint against the Association of Canadian Financial Officers (ACFO); Milt Isaacs, ACFO president; Danielle Viel, an ACFO labour relations advisor; Scott Chamberlain, ACFO director of labour relations and senior counsel; and Nicolas Brunette-D’Souza, an ACFO labour relations advisor (from this point, “the respondents”). The complaint was dated March 19, 2014, but the Public Service Labour Relations Board (“the Board”) received and stamped it on March 24, 2014. On April 2, 2014, the complainant filed an additional information form to clarify his complaint. Although it is difficult to precisely identify the nature of the complaint based on those documents, he seems to have alleged that the respondents failed their duty of fair representation in three ways, first, by representing him superficially with respect to his position being eliminated in September 2013 and with respect to two grievances about the National Joint Council’s Work Force Adjustment Directive (WFAD); second, by refusing to enter into an inter-union agreement in December 2013 and March 2014; and third, by refusing to represent him with respect to his suspension in February 2014.

2        The complaint was made under paragraph 190(1)(g) of the Public Service Labour Relations Act (“the Act”), which reads as follows:

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.

3        Section 185 of the Act defines an unfair labour practice as anything prohibited by subsection 186(1) or (2), section 187 or 188, or subsection 189(1). The provision of the Act referred to in section 185 that applies to this complaint is section 187, which reads as follows:

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.

4        Section 187 was essentially adopted to require a duty of fair representation by unions in their representations. According to the complainant, based on the grounds listed above, the respondents failed their duty of fair representation in his case.

5        At the start of the hearing, I reminded the parties that under subsection 190(2) of the Act, complaints must be made within a deadline that cannot be waived.

6        Under subsection 190(2) of the Act, a complaint cannot be made more than 90 days after the date on which the complainant knew or ought to have known of the action or circumstances that gave rise to it. Consequently, the event that triggered the breach as the complainant alleged must have taken place within the 90 days before the complaint was made. In this case, the deadline would be December 24, 2013. However, I indicated to the parties that I was prepared to consider evidence about actions or circumstances that took place outside the 90-day period, to obtain an overall contextual appreciation of all the evidence, as far as that evidence was relevant.

7        After the complainant’s evidence was adduced, the respondents motioned for nonsuit on the grounds that the complainant had been unable to establish a prima facie case of the merits of his complaint; namely, that the respondents had acted in an arbitrary, a discriminatory, or a bad-faith manner, contrary to section 187 of the Act. For the following reasons, I allow the respondents’ motion.

8        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Act before November 1, 2014, is to be taken up and continue under and in conformity with the Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary of the evidence

9        The complainant indicated that he had held a senior accounts receivable analyst position at the Department of National Defence (“the department” or “the employer”), beginning in November 2008. He was classified at the FI-02 group and level. In February 2011, he was transferred to the departmental division known as the Land Force Quebec Area (LFQA).

10        Starting in November 2011, the complainant noticed that he was being assigned fewer and fewer responsibilities and that he often had nothing to do. In January 2012, after he took certain steps, he was transferred to another division.

11        In January 2013, the complainant began a long sick leave, the cause of which was not related to his work. In April 2013, while he was still on sick leave, he was advised that several positions at the LFQA had been eliminated, including his. Given his state of health, the complainant did not follow up on that notice at that time.

12        The complainant returned to work in September 2013. He was then informed that he had 16 months’ notice, in which time he had to try to find a new position in another department. According to him, his name was then added to a priority list under the WFAD; i.e., he became entitled to a priority appointment under public service appointment processes and was therefore entitled to a reasonable job offer from the department.

13        During the months that followed, the complainant tried to have the department recognize his priority status for two appointment processes but was unsuccessful. According to him, the evaluation criteria the department used contravened the WFAD, and the department refused to appoint him. Although he consulted the ACFO on several occasions at that time, it was not prepared to represent him as witnessed by an email dated November 4, 2013, from Danielle Lafleur of the ACFO (Exhibit P-7), and the complainant’s response, dated December 9, 2013 (Exhibit P-8). It seems from the evidence that the complainant and the ACFO labour relations advisors did not agree on the interpretations of several WFAD provisions that applied to his case and that he wanted to be represented by a different bargaining agent via an inter-union agreement.

14        The complainant indicated that he contacted Mr. Isaacs on December 13, 2013, and that Mr. Isaacs agreed to enter into an inter-union agreement with the Union of National Defence Employees (UNDE). The complainant added that he reiterated the terms of the agreement in a letter to the UNDE on December 16, 2013 (Exhibit P-5). I note that the letter in question was not signed, that it did not include the UNDE’s mailing address, and that it was not addressed to a particular UNDE officer. And no evidence was adduced that that correspondence was delivered or received, and neither Mr. Isaacs nor the ACFO was copied on it.

15        In an email dated December 17, 2013, and sent to the UNDE’s president, John MacLennan, the complainant asked that the UNDE represent him through certain amendments to the terms indicated in his December 16, 2013, letter. Mr. MacLennan replied on December 18, 2013. He told the complainant that the UNDE would not represent him and that he was sure that the ACFO was able to provide him with adequate representation in the circumstances (Exhibit P-6).

16        On December 20, 2013, the complainant filed a grievance about an appointment process in which he had participated, alleging that the WFAD provisions that applied to him had not been respected. He represented himself in that grievance because, according to him, the ACFO did not share his position on the nature and scope of the benefits granted under the WFAD.

17        On January 23, 2014, the complainant filed a second grievance, about another appointment process in which he had participated, alleging that the WFAD provisions that applied to him had not been respected. He added that false allegations of harassment had been made against him to ensure that his application was rejected in that process and that the military police had had to intervene. He also represented himself in that grievance.

18        On January 24, 2014, the complainant received a long email from Mr. Brunette-D’Souza in which he provided detailed explanations of the ACFO’s position with respect to the relevant WFAD provisions. In it, Mr. Brunette-D’Souza also asked the complainant to carry out certain follow-ups and provided him with recommendations about the current appointment processes. Finally, Mr. Brunette-D’Souza expressed a desire to continue representing the complainant (Exhibit P-9).

19        According to emails that the complainant and Mr. Brunette-D’Souza exchanged on January 27, 2013, the complainant continued to refuse ACFO representation, did not agree with Mr. Brunette-D’Souza’s legal advice, and did not provide the documents Mr. Brunette-D’Souza requested. Those emails also show that the ACFO continued to provide the complainant with detailed explanations and with the possibility of benefiting from its support and representation. According to the complainant, he and the ACFO had divergent positions, and he was simply not prepared to consider Mr. Brunette-D’Souza’s erroneous positions (Exhibit P-10).

20        That precarious situation eventually ended badly. In an email to Mr. Isaacs dated January 15, 2014, the complainant presented a good number of complaints of allegations of misconduct by the respondents, and he threatened to “[translation] take [them] to the Canada Industrial Relations Board” if he was not granted certain corrective measures (Exhibit P-12). Mr. Isaacs allowed the ACFO’s attorneys to respond to the email (Exhibit P-14). They sent the complainant a long text, listing the many efforts the respondents had made as of then and the rational and objective standards that they had applied in their attempts to assist him. Despite his statements in his January 15, 2013, email, the ACFO continued to offer him its services (Exhibits P-9 and P-10). However, the complainant continued to refuse to use its services.

21        On February 13, 2014, the complainant received another letter from the ACFO’s attorneys about an anonymous and allegedly defamatory email that they believed he had written. They demanded a retraction and apology from him but never received either. On February 26, the respondents filed a defamation suit against the complainant. That same day, the department forced him to leave work because he had allegedly threatened a Sun Life insurance company representative, which eventually led to criminal proceedings. The department requested an assessment of the complainant’s fitness to work.

22        On March 3, 2014, the complainant received an email from Ms. Viel advising him that despite the conflict between the parties, the ACFO was still prepared to offer him representation with respect to the suspension the department imposed on February 26, 2014, on the following conditions:

[Translation]

1. that you have read the attached statement and that you have had the opportunity to seek independent legal advice (at your own cost) about our representation, in the circumstances;

2. that you acknowledge that you and the ACFO are in a conflict of interest;

3. that despite the preceding, you are asking the ACFO to represent you with respect to your suspension by the employer on February 26, 2014;

4. that you will respect the terms of representation sent to you in the attorneys’ letters, the most recent on January 22, 2014;

5. and that you give us permission to contact the employer in the context of this case.

23        The complainant replied to Ms. Viel on March 5, 2014. In his email, he did not clearly and precisely address the five conditions. Instead, he chose to impose his own conditions, including that he be communicated with by telephone, not email (Exhibit P-19). At that time, the complainant was still attempting to convince the ACFO to enter into an inter-union agreement with the UNDE, to allow that union to represent him.

24        On March 6, 2014, Ms. Viel reminded the complainant that the ACFO would not take any steps in his case until he confirmed that he wanted the ACFO to represent him. She added that their discussions would be in writing to avoid any misunderstandings. That same day, Mr. Isaacs advised Mr. MacLennan that the ACFO would not enter into an inter-union agreement with the UNDE and that it would address the complainant’s needs.

25        In an email dated March 18, 2014, the complainant expressed his objection to communicating by email and asked Ms. Viel to reconsider her position. On March 19, 2014, she attempted to reassure him by indicating that she frequently handled files similar to his, that she worked almost exclusively by email with all members, and that his file could be addressed effectively remotely. He did not respond to that email of March 19, 2014. He prepared and signed his complaint that same day. As indicated in the first paragraph, the Board received the complaint on March 24, 2014.

26        In cross-examination, the complainant confirmed the following facts:

(i)       He experienced similar representation problems in November 2011, and on December 7, 2011, he was advised in writing that his conduct (such as accusing ACFO labour relations advisors of acting in bad faith, negligently, or out of revenge; refusing to follow their advice; having unreasonable callback requirements; making threats; accusing a labour relations advisor of lying to the employer in his duties; etc.) was unacceptable and that although the ACFO agreed to continue offering him its representation, zero tolerance would be applied as of then (Exhibit D-4).

(ii)      He did not respond to the ACFO’s December 7, 2011, letter.

(iii)     On May 27, 2013, the department informed him that his services might no longer be needed and that he was being assigned affected employee status.

(iv)     On October 3, 2013, the department advised him that his services were no longer required and that under the WFAD, he had to choose one of three options (Exhibit D-5).

(v)      He consulted Ms. Viel shortly after that, and she provided him with information and advice beginning on October 17, 2013 (Exhibit D-6).

(vi)     His opinion was that the positions advanced by the department, Ms. Viel, or the ACFO were incorrect about his rights in certain staffing processes.

(vii)    He indicated to Ms. Viel that he would not allow her to communicate with the department without his prior approval and that he did not want the ACFO to represent him in this case. He preferred to be represented by another bargaining agent.

(viii)   In her December 3, 2013, email, Ms. Viel offered to meet with him the next day, December 4, 2013, to discuss his case, and he did not contact her to set up an appointment. Instead, he replied by email on December 9, 2013.

(ix)     In his January 15, 2014, email, he again made certain serious accusations against Ms. Viel, Mr. Chamberlain, and Mr. Isaacs (for example, he accused them of gross negligence in defending his interests, of acting arbitrarily and discriminatorily, of having superficial attitudes, of doing everything to hinder his case, of acting in bad faith, of behaving misleadingly, of lying, and of being dishonest), and he insisted on having a different bargaining agent represent him.

(x)      Despite the content of his January 15, 2014, email, the ACFO was still prepared to offer him representation, on certain conditions, such as forwarding certain key documents (Exhibit P-14).

(xi)     On January 24, 2014, he spoke twice with Mr. Brunette-D’Souza, who sent him a lengthy email the same day in which he requested certain documents, provided information and advice, and indicated the ACFO’s position on the WFAD grievances (Exhibit P-9).

(xii)    The transcripts of the two telephone messages that he left for Mr. Brunette-D’Souza on January 24, 2014, accurately reflect those messages (Exhibits D-9 and D-11).

(xiii)   On January 30, 2014, Mr. Brunette-D’Souza again asked the grievor for documents so that he could reassess the ACFO’s position.

27        The complainant called Philippe Turcq, the UNDE’s vice-president, Quebec Region, to testify. His testimony was very succinct. Essentially, he indicated that he discussed an inter-union agreement with the complainant a few times between November 2013 and February 2014. He stated that he was favourable to one and that he discussed it with Mr. MacLennan but that Mr. MacLennan refused to enter into one in December 2013 because he feared that the complainant would take legal action were the result unfavourable. Mr. Turcq also stated that the second attempt to enter into such an agreement failed because Mr. Isaacs refused to in March 2014. Mr. Turcq indicated that he was never involved in the discussions that Mr. MacLennan and Mr. Isaacs had and that he never had the mandate or authority to prepare or enter into such an agreement. The respondents did not cross-examine Mr. Turcq.

28        As indicated above, the respondents motioned for nonsuit after the complainant finished presenting his evidence. That motion was based on the fact that he was unable to establish a prima facie (at first glance) case on the merits of his complaint; namely, that the respondents acted in a manner that was arbitrary or discriminatory or in bad faith, contrary to section 187 of the Act. He was not prepared to respond to that motion at the hearing. In the interest of fairness, I asked the parties to file written submissions on the motion of nonsuit.

29        It must be noted that before adjourning the hearing, I invited the complainant to consider the possibility of presenting additional evidence that could support his case. I also mentioned that if he intended to present such evidence, he would be required to do it before the respondents filed their written submissions on the motion of nonsuit. I also reminded the complainant that were the motion of nonsuit allowed, it would end the hearing, and therefore, he would have no other opportunity to present additional evidence later.

III. Summary of the arguments

A. For the respondents

30        The respondents pointed out that after having had a fair opportunity to be heard and to present his evidence, the complainant did not establish a prima facie case of the merits of his complaint. According to them, the evidence is unsatisfactory or unreliable, and the complainant did not discharge his burden of proof. They stated that there is no reasonable possibility that he will win the case.

31        As for the applicable procedure and the justification for a motion of nonsuit, the respondents referred me to Martel v. Labourers’ International Union of North America, Local 493, [1996] O.LR.D. No. 1119 (QL), Saskatchewan Government and General Employees’ Union v. Mitchell’s Gourmet Foods Inc.,[1999] Sask. L.R.B.R. 577, and White v. Canadian Union of Shinglers & Allied Workers, 1996 CanLII 11216 (ON LRB). At paragraph 21 of White, the Ontario Labour Relations Board ruled as follows:

The Board’s approach in that respect is not inconsistent with fairness or natural justice. An application or complaint which appears to be going nowhere should be brought to an end, unless the Board can be persuaded that appearances notwithstanding there is some real possibility that the applicant/complainant may succeed, particularly in a time of scarce resources and in cir­cumstances where the Board has no costs jurisdiction pursuant to which a party responding to a fruitless case can be compensated accordingly ... The fact that the Board entertains or invites a nonsuit type of motion without an election does not mean that the Board has already decided the issue. What it indicates is that the Board is concerned that a party which bears the onus with respect to an issue which is dispositive of the application or complaint before the Board, and which has closed its case, has not made out a prima faciecase in that respect, and that the Board wants the benefit of the submissions of the parties in that regard. In effect, a party which finds itself in a position of responding to such motion must “show cause” why the matter should proceed further, or to put it more directly, why the matter in issue should not be decided against it. In that respect, I note that the Board will only entertain or invite such a motion where the party which bears the onus in the matter before the Board (or an issue which is determinative of it) has had a full opportunity to present its evidence. It should come as no surprise that the Board engages in a continuous assess­ment of evidence in the matter before it as the case is presented. Indeed, this is something which the Board must do in order to be able to conduct hearings properly. Having engaged in such an assessment, and bringing its labour relations expertise to bear upon it, the Board is in a position to consider whether it is appropriate to entertain or invite a nonsuit type of motion when the party bearing the onus has closed its case....

32        The respondents reminded me that the complainant’s evidence clearly established that he did not want the ACFO to represent him and that he emphasized many times that the ACFO was not to contact the employer on his behalf. Specifically, the respondents referred me to the complainant’s email to Mr. Isaacs on January 27, 2014.

33        The respondents added that the complainant’s continual refusal to accept ACFO representation was in considerable contrast to its willingness to represent him. According to the respondents, that willingness to continue representing him is omnipresent in much of the correspondence, including the ACFO’s email to him on March 5, 2014.

34        The respondents also pointed out that a statement to the effect that the representation was superficial was an insufficient basis for alleging that section 187 of the Act was violated. The complainant’s evidence in no way demonstrated gross negligence or bad faith by the respondents. On the contrary, it was demonstrated that the complainant was given clear and consistent advice on the WFAD grievances.

35        The respondents pointed out that the complainant’s allegations that the ACFO’s labour relations advisors had less knowledge and understanding than he did of placing employees affected by the WFAD could not base a conclusion that in this case, the Act was violated. According to the respondents, the applicable jurisprudence clearly states that the fact that the parties did not have the same position in a dispute did not constitute a failed representation or a violation of the Act.In support of that argument, they referred me to Cousineau v. Walker and Public Service Alliance of Canada, 2013 PSLRB 68.

36        The respondents also pointed out that the complainant was unable to establish a legal or other right with respect to the inter-union agreement. According to the respondents, it stemmed in part from bargaining agents’ exclusive authority and corresponding responsibility to offer representation to their members and not by definition or exclusion to those represented by other bargaining agents.

37        The respondents reminded me that even after his February 26, 2014, suspension, the complainant reiterated that he was not prepared to authorize the ACFO to contact his employer in any way and that he refused to allow it to represent him. Therefore, according to them, the complainant could not state that the ACFO failed to represent him fairly or that it contravened the Act.

38        The respondents pointed out that bargaining agents’ duty of fair representation applies to disciplinary issue disputes and to how the relevant collective agreement is applied but that it does not apply to representing their members in criminal proceedings (threats).

39        Finally, the respondents reminded me that the Board received the complaint on March 24, 2014, and that no incident that occurred more than 90 days before that, i.e., before December 24, 2013, could base a conclusion that the provisions of the Act were violated. They added that that was a theoretical question since the complainant did not present any evidence to establish a violation of the Act, whether or not the 90-day period is considered. According to the respondents, the complainant did not establish a prima facie case of the merits of the remedy he sought, regardless of whether the period before or after December 24, 2013, is considered. The respondents asked that I exercise my authority to allow the motion of nonsuit.

B. For the complainant

40        A priori, I must emphasize that it was difficult, even almost impossible, for me to summarize the complainant’s arguments. Although he was motivated to express his discontent with his bargaining agent, most of his arguments, particularly those on pages 1, 2, and 7 to 16 of his written response, are not relevant as they in no way address the motion of nonsuit.

41        In the passages of his arguments that seem to address the issue in dispute, the complainant essentially tried to point out that he had clearly established in his testimony and via his adduced evidence that the respondents acted arbitrarily, superficially, discriminatorily, and in bad faith whether in the case of his grievances about the vacant positions for which he thought he was eligible under the WFAD, his February 26, 2014, suspension, or the inter-union agreement that he had hoped to reach.

42        As for the positions for which he had certain rights under the WFAD, the complainant submitted that the ACFO’s systematic imposition of meaningless solutions and its refusal to consider his more innovative approach amounted to arbitrary and superficial conduct.

43        As for the February 26, 2014, suspension, the complainant submitted that the fact that the ACFO accepted without question the employer’s position on the matter and that it continued to communicate with him solely by email amounted to bad faith.

44        As for the allegation that the respondents discriminated against him, the complainant simply indicated that he had no flagrant evidence to show that Mr. Chamberlain “[translation] does not like Francophone employees from Quebec or federal government employees who come from the private sector.”

C. Respondents’ rebuttal

45        The respondents submitted that according to the Board’s jurisprudence, it is clearly established that bargaining agents have considerable discretionary authority to determine whether and how they will provide representation to their members. And if they conduct in-depth investigations into grievances or other matters and carefully study the questions raised, then they have fulfilled their duty of fair representation under the Act. In support of that position, they referred me to Cox v. Vezina, 2007 PSLRB 100, and Mangat v. Public Service Alliance of Canada,2010 PSLRB 52.

46        The respondents also reminded me that the duty of fair representation does not require that a bargaining agent comply with individual members’ requirements when deciding if it will support a grievance or the approach it will adopt and that the right to fair representation from a bargaining agent is not unlimited. According to the respondents, as long as the bargaining agent exercises its judgement fairly and does not act discriminatorily or arbitrarily, it is entitled to decide how to deploy its resources and is not required to share the same opinion as its members. They referred me to Bahniuk v. Public Service Alliance of Canada,2007 PSLRB 13, Gabris v. D’Souza and Burt, 2013 PSLRB 47, and Cousineau.

47        The respondents pointed out that contrary to the complainant’s allegation that communications limited to emails between the bargaining agent and the member was a gesture of bad faith, the duty of fair representation does not dictate the means of communication to be used between a bargaining agent and a member. They added that it is not unusual to communicate with a member by email, and they referred me to several ACFO communications in which its representatives requested additional information from the complainant, sought his consent to contact the employer, and informed him of the ACFO’s positions.

48        Finally, the respondents submitted that the complainant was unable to establish a prima facie case of discrimination by Mr. Chamberlain or the ACFO, given the concession made on page 4 of his response.

IV. Reasons

49        As this Board has already confirmed, the power to hear a motion of nonsuit is discretionary and is incidental to the powers that a panel of the Board has to establish its practices and procedures. Although such a motion is not often or readily granted, nothing stops a party from using it to claim that the case before the Board is not defendable and that the party that bears the burden of proof has not established a prima facie case; see Hall and Association of Canadian Financial Officers v. Treasury Board, 2015 PSLREB 56 at para. 57.

50        The respondents cited decisions from several provincial labour relations boards about the applicable test for this type of motion; namely, Martel, Saskatchewan Government and General Employees’ Union, and White. Those decisions reiterate what several other tribunals have confirmed many times, which is that the issue in the case of a motion of nonsuit is to determine whether there is evidence that when given maximum weight, establishes or gives rise to a reasonable inference in the complainant’s interest. In a case in which a complainant is unable to present sufficient evidence in support of his or her allegations, it is then just and fair to terminate the complaint without requiring that the respondent incur needless costs to mount a defence against an unfounded complaint. In effect, a motion of nonsuit is nothing more than a motion to discontinue a procedure for lack of evidence.

51        In my opinion, this case is appropriate for exercising the discretionary power to examine the respondents’ motion of nonsuit, given that several additional days of hearing are planned, which would result in significant expenses for the parties. The appropriate test under the circumstances is as follows: if there is no reasonable possibility that the respondent party to the motion, i.e., the complainant, will be successful once he has finished presenting his evidence and has had a fair opportunity to present it, it is appropriate to end the proceedings. A complaint that appears to be going nowhere must be abandoned. See White,at paras. 25 and 33.

52        In his response to the motion of nonsuit, the complainant did not present any convincing evidence, any relevant facts, or any questions of law that would justify continuing the proceedings. His arguments consisted of multiple accusations against Mr. Hunt, which were both false and unfounded, and against me, and statements that the positions the ACFO advanced were erroneous and that it had refused to represent him or “[translation] release” him, whatever that means in this case.

53        According to the complainant, a position cannot be imposed upon him with which he does not agree. He stated that that was a flagrant representation failure. However, the jurisprudence on that issued does not support his perception. On many occasions, the Board has confirmed that a bargaining agent is not required to advance one of its members’ grievances until the member obtains a response that satisfies him or her (see Gabris v. D’Souza and Burt, 2013 PSLRB 47, at para. 27, and Mangat v. Public Service Alliance of Canada, at para. 44). Neither the Act nor the Board’s decisions impose such an obligation on a bargaining agent.

54        I am unable to accept the complainant’s argument that the ACFO systematically imposed meaningless solutions on him about the scope or meaning to be assigned to the WFAD’s provisions. The evidence established otherwise. The documentary evidence clearly demonstrated that the respondents, specifically Mr. Brunette-D’Souza and Ms. Viel, conducted the necessary investigations, considered the issues raised, asked the right questions, and provided reasonable information and advice. Even by giving the complainant’s evidence maximum weight, there is still simply no basis to support a conclusion that section 187 of the Act was violated because the ACFO and the complainant had divergent opinions about the WFAD’s application or scope. The respondents fulfilled their duty of fair representation when they inquired about the issue and communicated their advice to the complainant. Neither the Act nor the jurisprudence on this issue supports the complainant’s argument that a difference of opinion on that issue amounted to arbitrary or superficial conduct or required that the ACFO “release” him.

55        And the complainant’s evidence, specifically the supporting documents adduced during his testimony, clearly established that he did not intend to accept the representation the ACFO offered him. His refusal to let it contact his employer, which he reiterated many times, and to provide it with information or documents that it requested of him, and the fact that he believed that he could proceed with his grievance and represent himself, despite the fact that under subsection 208(4) of the Act, an employee may not present an individual grievance relating to the interpretation or application of a collective agreement without first obtaining the approval of and being represented by the bargaining agent, speaks very loudly of his refusal to accept the ACFO’s representation. I also noted that despite his refusals and the conflict that arose between the parties in February 2014, the ACFO continued to express a willingness to offer him representation, under certain reasonable conditions. The complainant could have confirmed his willingness to comply with those conditions and accepted ACFO representation, which he did not do. Instead, he chose to file this complaint.

56        As the respondents suggested, the scope of the duty of fair representation has never been broadened to the point to include an obligation for a bargaining agent to enter into an inter-union agreement to authorize another union to represent its member, while agreeing to pay the costs associated with that representation, when a member is unsatisfied with the representation provided or refuses it. The complainant was unable to demonstrate a legal or other basis on which to establish such an obligation or right. Whether a bargaining agent must enter into such an agreement is part of its exclusive power.

57        As for the complainant’s arguments about his suspension on February 26, 2014, I concluded that he did not present any credible or convincing evidence that his employer fabricated false criminal allegations to terminate him or that the ACFO accepted without question the employer’s position with respect to the motives for the suspension or refused to represent him in this case. On that point, it must be noted that I am not seized of any other case involving the complainant and that the grievance against his termination was assigned to a different Board adjudicator.

58        Even if maximum weight is assigned to the complainant’s evidence, there is simply no basis for concluding that the respondents violated section 187 of the Act, whether with respect to his WFAD grievances, his suspension on February 26, 2014, or the ACFO’s refusal to enter into an inter-union agreement in March 2014. The complainant did not present any credible or convincing evidence that could support an allegation of arbitrary or bad faith conduct or discrimination by one or more of the respondents, either during the period at issue or at any other time.

59        Taking the complainant’s evidence literally, I can conclude only that a prima facie case was not established in this case. The evidence he presented was unsatisfactory and in some cases, not very credible. He did not discharge his burden of proof. As there is no reasonable possibility that he will be successful, therefore, my opinion is that it is just and fair to dismiss the complaint without requiring the respondents to incur needless costs to mount a defence against an unfounded complaint. In short, there are grounds to dismiss this complaint, which appears to be going nowhere.

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

V. Order

61        The complaint is dismissed. I order file 561-02-677 closed.

April 4, 2016.
PSLREB Translation