FPSLREB Decisions
Decision Information
The complainant challenged his bargaining agent’s decision not to represent him in the judicial review of a decision dismissing his termination grievance: Iammarrone v. Canada Revenue Agency, 2016 PSLREB 20 – the Board found that the Act did not impose any unconditional obligation on an employee organization to represent an employee in a bargaining unit for which it is certified as the bargaining agent – the Board found that the evidence established that the decision not to represent the complainant in the judicial review was made carefully – the Board found that the complainant failed to establish that his bargaining agent made that decision in an arbitrary or discriminatory manner or in bad faith.
Complaint dismissed.
Decision Content
File: 561-34-815
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Employment Board
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and
Professional Institute of the Public Service of Canada
Iammarrone v. Professional Institute of the Public Service of Canada
In the matter of a complaint under section 190 of the Federal Public Sector Labour Relations Act
Before: Renaud Paquet, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Himself and Guy Bouthillette
For the Respondent: Benjamin Piper, counsel
June 28, 2022.
(Written submissions filed July 15 and 28 and August 5, 2022.)
[FPSLREB Translation]
REASONS FOR DECISION
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FPSLREB TRANSLATION
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I.
Complaint before the Board
[1]
Nick Iammarrone (“the complainant”) made a complaint against the Professional Institute of the Public Service of Canada (“the respondent” or “the Institute”) in which he alleged that it failed its duty of fair representation.
[2] Between 1988 and 2009, the complainant was employed by the Canada Revenue Agency (“the Agency”) as an auditor. He was part of the Audit, Financial and Scientific (AFS) bargaining unit for which the respondent is the duly certified bargaining agent.
[3] The Agency terminated the complainant on November 10, 2009. He filed a grievance against it, with the respondent’s support. His grievance was referred to adjudication on July 28, 2010. The adjudication hearing for the grievance, and another grievance that the complainant had filed earlier, took place over 21 days before an adjudicator between April 17, 2012, and February 26, 2014. Frederic Durso, an employee of the respondent, represented him throughout the hearing.
[4] On March 11, 2016, the adjudicator dismissed the complainant’s grievances; see Iammarrone v. Canada Revenue Agency, 2016 PSLREB 20. The complainant disagreed with that decision for reasons that I will return to later. He met with Mr. Durso and discussed it with him. To protect the applicable time limits and allow time to analyze the decision in 2016 PSLREB 20, the respondent, on the complainant’s behalf, filed a judicial review application with the Federal Court of Appeal on April 8, 2016.
[6] On April 26, 2016, the complainant appealed the respondent’s decision to withdraw its support for his judicial review application under its internal dispute resolution policy. On May 10, 2016, Isabelle Roy, its chief of labour relations services, informed the complainant of the decision of the Institute’s president, Debbie Daviau, to deny his appeal.
[7] The complainant contested that refusal to support his judicial review application before the Federal Court of Appeal in his complaint, which he made on August 2, 2016. He claimed that by doing so, the respondent failed its duty of fair representation and thus acted in bad faith or in an arbitrary or discriminatory manner, in contravention of s. 187 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2).
[9] The Board scheduled the complaint for a hearing from June 28 to 30, 2022. The parties presented their evidence on June 28. At the end of that day, the Board granted the complainant’s request to submit his arguments in writing according to a schedule that it would decide.
II.
Summary of the evidence
[10] The parties adduced into evidence a joint book of documents. They also agreed to a joint statement of certain facts, which they also submitted. The complainant called Guy Bouthillette as a witness, who worked for the Agency for 32 years. He was also an Institute representative and, as such, helped the complainant after his grievances were filed and throughout their adjudication process. The complainant also testified. The respondent called Ms. Roy as a witness. Among other duties, her role is to determine whether to seek judicial review of adjudication decisions.
[11] The adjudication of the complainant’s grievances took place over almost two years. After the adjudication hearing ended on February 26, 2014, but before the decision in 2016 PSLREB 20 dated March 11, 2016, Ms. Flavia Longo, which was her title at the time, asked the adjudicator, on December 30, 2015, on the complainant’s behalf, to consider the Court of Québec’s decision in Agence du revenue du Québec v. BT Céramiques inc., 2015 QCCQ 14534 (“BT Céramiques”). According to Ms. Longo, the decision directly impacted the admissibility of part of the Agency’s evidence adduced during the adjudication of the complainant’s grievances. Apparently, the evidence was obtained illegally by the abuse of enforcement powers and would be inadmissible. Ms. Longo asked the adjudicator to consider BT Céramiques. Without going into detail, note that the complainant had already been associated with BT Céramiques inc.’s tax audit and that his name is mentioned several times in BT Céramiques.
[12] According to the complainant, neither the adjudicator nor the Board responded to his December 30, 2015, request. In addition, the decision in 2016 PSLREB 20 makes no mention of it and does not refer to or comment on BT Céramiques.
[13] Mr. Durso met with the complainant shortly after the decision in 2016 PSLREB 20 was issued and apparently explained to him that the Agency’s criticisms against him were too serious and numerous to expect the Federal Court of Appeal to overturn the decision. However, nevertheless, on March 28, 2016, Mr. Durso recommended that Ms. Roy seek judicial review of the decision, considering BT Céramiques, which could have meant that certain evidence adduced at the adjudication would be inadmissible. Mr. Durso also suggested that the Institute obtain a legal opinion on the applicability and impact of BT Céramiques with respect to the decision in 2016 PSLREB 20.
[14] On April 8, 2016, the respondent called on external counsel, who filed, on the complainant’s behalf, a judicial review application with the Federal Court of Appeal of the decision in 2016 PSLREB 20. Then, on April 10, 2016, Mr. Durso wrote to Ms. Roy to reiterate his suggestion to seek a legal opinion on the possible impact of BT Céramiques on the evidence that the Agency used at the adjudication of the complainant’s grievances and on the obligation to consider BT Céramiques in the decision in 2016 PSLREB 20. Mr. Durso was concerned that the Agency could obtain information illegally while exercising its tax authority powers and then use that information against its employees. That seemed abusive to him.
[15] Ms. Roy testified that after obtaining a labour relations officer’s opinion, her office determines whether to seek judicial review of an adjudication decision. In case of doubt, the application is filed with the Federal Court of Appeal to meet the 30-day time limit. That allows then reviewing the file more in depth.
[16] Ms. Roy testified that between March 28 and April 19, 2016, she had telephone conversations with Jean-Michel Corbeil to better understand the position to take with respect to the judicial review of the decision in 2016 PSLREB 20. According to her, the decision in 2016 PSLREB 20 appeared to have no “[translation] flaw”. However, she wanted to ensure that she had a good understanding of the potential impact of BT Céramiques on the admissibility of the evidence that the Agency adduced at the adjudication of the complainant’s grievances. The respondent received Mr. Corbeil’s written legal opinion on May 6, 2016. According to him, the judicial review application was unlikely to succeed.
[17] On April 19, 2016, Mr. Durso wrote to the complainant to inform him that after assessing his file, the respondent’s legal services office refused to support his judicial review application since it considered that that recourse had a very low chance of success, even considering BT Céramiques. Mr. Durso then also informed the complainant that he could pursue that recourse with the Federal Court of Appeal on his own.
[18] On April 26, 2016, under the respondent’s Dispute Resolution Policy, the complainant filed an appeal of its decision to refuse to support his judicial review application. The policy enables Institute members to appeal to the president decisions affecting them. To support his appeal, the complainant submitted a legal opinion from Jean Denis Boucher. According to Mr. Boucher, the decision in 2016 PSLREB 20 included a significant legal defect as the adjudicator did not convene the parties to adjudication to reappear before him based on BT Céramiques after Ms. Longo informed him of it. His failure to address that in the decision in 2016 PSLREB 20 significantly breached the rules of natural justice, which could have led the Federal Court of Appeal to overturn the decision.
[19] On May 10, 2016, Ms. Roy, on Ms. Daviau’s behalf, wrote to the complainant to inform him that the respondent’s decision was upheld not to support his judicial review application. According to her, the application’s chances of success were too slim. She testified that earlier, she shared Mr. Boucher’s legal opinion with Mr. Corbeil. In her May 10, 2016, letter, she also informed the complainant that he could pursue the application alone, at his expense.
[20] On May 13, 2016, the complainant informed Ms. Roy that he would go ahead alone with the judicial review and asked for the relevant documents to that end. On May 17, 2016, Mr. Corbeil, acting on the respondent’s behalf, forwarded the complainant those documents. On May 20, 2016, Mr. Corbeil also informed the Federal Court of Appeal that the complainant would act on his own behalf. Finally, on May 25, 2016, Mr. Corbeil provided the complainant a list of law firms that he could contact in Montréal or Ottawa to help him pursue his judicial review application.
[21] The complainant and Mr. Bouthillette questioned the logic behind the decision that led the respondent to refuse to pursue the judicial review application. To them, it was as if everything had been decided in advance, before even reviewing the case and receiving Mr. Corbeil’s legal opinion.
[22] Mr. Bouthillette testified that Ms. Daviau refused to meet with them, being the complainant and him, to discuss the complainant’s case. Mr. Bouthillette testified that he had known Ms. Daviau for several years. He said that he tried unsuccessfully to contact her several times in the days following May 10, 2016. A meeting with her was scheduled for June 14, 2016, but she cancelled it. Mr. Bouthillette did not understand why she refused to meet with them, being him and the complainant. He would have liked to discuss with her what led to the complainant’s termination and the decision in 2016 PSLREB 20, but he was never able to. He would have liked to explain to her that the complainant was terminated for his involvement in BT Céramiques inc.’s tax audit and because he is of Italian descent. He could also have discussed Ms. Longo’s and Mr. Boucher’s legal opinions as well as BT Céramiques. The discussion never took place.
[24] The complainant also testified that he regretted that the respondent did not share with him Mr. Corbeil’s legal opinion of May 6, 2016. He received it only after he made this complaint. On that point, Ms. Roy testified that the respondent usually does not share with its members the legal opinions it obtains with respect to their cases.
III.
The complainant’s arguments
[25] The complainant submitted that his grievances were very complex and that the respondent failed to ensure that he had all the required tools to decide to apply for the judicial review of the decision in 2016 PSLREB 20. By doing so, the respondent acted in bad faith in that it gave him the impression that it would support his judicial review application.
[26] The complainant reiterated several of the historical and contextual factors that led the Agency to terminate him. I will not repeat them because they primarily involve the Agency and the Royal Canadian Mounted Police, which are not parties to this complaint, and because the complainant was not called to testify about the different statements that concern them.
[27] According to the Act, an employee organization, along with its representatives, is prohibited from acting in an arbitrary or discriminatory manner toward any employee for which it is the bargaining agent. According to the complainant, the evidence demonstrated that the respondent failed its duty of fair representation and that it acted in bad faith.
[28] Ms. Daviau refused to meet with the complainant on June 14, 2016, contrary to what had been agreed. Therefore, the respondent did not conduct itself as one would expect with respect to the services that a bargaining agent should normally provide to its members.
[29] The respondent failed to share with the complainant a legal opinion that it obtained about the judicial review application of the decision in 2016 PSLREB 20. In addition, the respondent revealed its existence only in response to this complaint.
[30] The respondent did not act impartially toward the complainant with respect to the Agency’s concerns about him. Then, he was discriminated against based on being part of the Italian community and for carrying out the 2002-2003 tax audit of BT Céramiques inc., a company owned by a member of the Italian community. According to him, the Italian community is too often associated, at least in part, with the Italian mafia, which was one of the reasons behind the respondent’s position not to support his judicial review application.
[31] No one from the respondent’s legal services office inquired about or attended the adjudication of the complainant’s grievances, which took place over 2 years and required 21 days of hearings. He and his technical advisor, Mr. Bouthillette, were left on their own. Given all the media coverage of the events at the Agency’s Montréal office, Ms. Daviau should have been more proactive. As the Institute’s president, she did not fulfil her obligations to the complainant.
[32] The respondent demonstrated a complete lack of professionalism, respect, and transparency. It is quite obvious that it arbitrarily abandoned the complainant, for no valid reason. It is clear that it was anxious to rid itself of him and his technical advisor.
IV.
The respondent’s arguments
[33] The complainant was an Agency employee and a member of the bargaining unit represented by the respondent from 1988 to 2009. He was suspended from his duties in April 2009 and then terminated the following month. The hearing challenging the suspension and termination took 21 days between 2012 and 2014, and throughout it, the respondent represented him. Despite its best efforts, the decision in 2016 PSLREB 20 dismissed his grievances.
[34] This complaint mainly concerns the respondent’s decision to refuse to support a judicial review application with the Federal Court of Appeal of the decision in 2016 PSLREB 20. On this central point, the respondent’s actions were fully consistent with the duty of fair representation imposed on it by the Act.
[36] The complainant sought judicial review, and the respondent filed an application notice in the interim to preserve his rights. Then, after making an analysis and consulting external counsel, the respondent decided not to support the judicial review application, given its low chances of success. According to the respondent, by obtaining an external legal opinion and by filing a judicial review application in the interim to preserve his rights, it went well beyond its duty of fair representation.
[37] It is well established that a bargaining agent has considerable discretion with respect to its representation of employees in grievances, provided that the discretion is exercised in good faith and that the bargaining agent does not act in an arbitrary or discriminatory manner. The burden is high of proving that the bargaining agent’s conduct was arbitrary, discriminatory, or in bad faith.
[38] The complainant claimed that the respondent acted in a discriminatory manner in relation to his Italian descent. No evidence was presented at the hearing to prove that allegation. It appears that instead, the allegation is about the Agency’s actions during the investigation that led to the complainant’s termination.
V.
The complainant’s reply
[41] The complainant reiterated that he had neither the skill nor the financial capacity to seek judicial review of the decision in 2016 PSLREB 20 without the respondent’s support, which is why he abandoned the judicial review application.
[42] The complainant’s view is that Mr. Corbeil’s legal opinion on the appropriateness of seeking judicial review of the decision in 2016 PSLREB 20 was not a neutral legal opinion in that Mr. Corbeil is part of the same law firm as Mr. Piper, who represented the respondent in this complaint. The complainant’s view is that it is troubling that the respondent used the same firm to obtain both an independent opinion and representation in unfair-labour-practice complaints.
[43] The complainant returned to the meeting that Ms. Daviau cancelled. He also condemned the respondent’s lack of communication as to the justification for refusing to support the judicial review application. Finally, in his view, the fact that the respondent did not share in May 2016 the legal opinion it obtained then demonstrated a complete lack of transparency and proves that it acted in an arbitrary and discriminatory manner.
VI.
Analysis and reasons
[45] The complaint cited s. 190(1)(g) of the Act, which refers to s. 185. Among the unfair labour practices that section refers to, s. 187 is of interest in this complaint. Those provisions read as follows:
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[46] Section 187 of the Act does not require an employee organization to represent an employee in any dispute of the employee and his or her employer or in any proceeding. Rather, it prohibits the employee organization from acting in an arbitrary or discriminatory manner or in bad faith when representing an employee or when it decides whether to represent one. On that point, the Supreme Court of Canada states the following in Gagnon (SCC), at 527:
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4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.
…
[47] In this case, the complainant had the burden of proof. He had to prove that on a balance of probabilities, the respondent’s decision not to support the judicial review application of the decision in 2016 PSLREB 20 before the Federal Court of Appeal was made in an arbitrary or discriminatory manner or in bad faith.
[48] Although Noël was rendered under the provisions of the Quebec Labour Code (RSQ, c C-27), the principles underlying it are equally applicable in the context of the Act. In Noël, at para. 62, the Supreme Court of Canada notes as follows that the decision to exercise judicial review should generally be reserved for exceptional cases:
62 Given the day-to-day reality of managing collective agreements, the interpretation of arbitration awards, and the abundance of litigation in this area, a union cannot be placed under a duty to challenge each and every arbitration award at the behest of the employee in question on the ground of unreasonableness of the decision, even in dismissal cases. The rule is that the employer and the union are entitled to the stability that results from s. 101 L.C., which provides: “The arbitration award is without appeal, binds the parties and, where such is the case, any employee concerned…”. Judicial review must therefore not be seen as a routine way of challenging awards or as a right of appeal. Accordingly, even in discipline and dismissal cases, the normal process provided by the Act ends with arbitration….
[49] The respondent had no unconditional obligation to support the complainant, who sought judicial review of the decision in 2016 PSLREB 20. Nevertheless, its decision not to support him at that stage had to be based on criteria and logic that were not arbitrary, discriminatory, or in bad faith.
[50] Now to examine the facts of this complaint.
[51] Throughout the adjudication of the complainant’s grievances, which required 21 hearing days, the respondent represented the complainant. He submitted no evidence that questioned the quality of the representation he received at that time. Then, during the adjudicator’s deliberation, the Court of Québec issued BT Céramiques, which could be interpreted as rendering inadmissible part of the evidence that the Agency adduced during the adjudication of the complainant’s grievances. He obtained a legal opinion on the matter and submitted it to the adjudicator, who did not refer to it in the decision in 2016 PSLREB 20. In fact, there is no mention of BT Céramiques and its implications in the decision in 2016 PSLREB 20.
[52] According to the complainant, and according to the legal opinion that he obtained, it was a denial of justice and grounds for judicial review. Initially, the respondent cooperated with him by filing the judicial review application within 30 days of the decision in 2016 PSLREB 20, to meet the applicable time limits. Then, after carrying out an analysis, it withdrew its support.
[53] Ms. Roy’s testimony and the filing of the legal opinion that the respondent obtained about the chances of success of the judicial review of the decision in 2016 PSLREB 20 convince me that the respondent’s decision was not made lightly. It was very well reasoned, and nothing in the evidence before me could persuade me that it was arbitrary.
[54] My role is not to assess the merits of Mr. Corbeil’s legal opinion for the respondent or to question the respondent’s decision in this case to determine whether there were grounds for judicial review or whether the evidence that the Agency adduced at adjudication should have been found inadmissible due to BT Céramiques. Rather, my role is to review the respondent’s decision‑making process. On that point, the Board wrote the following at paragraph 17 of Halfacree:
[17] The respondent, as a bargaining agent, has the right to refuse to represent a member, and a complaint to the Board is not an appeal mechanism against such a refusal. The Board will not second-guess the bargaining agent’s decision. The Board’s role is to rule on the bargaining agent’s decision-making process and not on the merits of its decision. For the Board to intervene, a complainant should first, at a minimum, establish a violation of section 187 of the Act.
[55] The complainant argued that he was discriminated against based on being part of the Italian community and because he carried out the 2002-2003 tax audit of BT Céramiques inc., a company that a member of the Italian community owned. According to him, the Italian community is often associated, at least in part, with the Italian mafia, which is one of the reasons the respondent did not support his judicial review application.
[56] The complainant did not submit to me any evidence to support his discrimination allegation. A simple such allegation, without more, is insufficient to meet a complainant’s burden of proof. On the other hand, the respondent submitted credible evidence to demonstrate that its decision not to support the judicial review application was not discriminatory.
[57] The complainant also criticized the perhaps not always transparent way in which the respondent communicated with him at the stage of deciding whether it would support the judicial review application. He also criticized the fact that Ms. Daviau refused to meet with him after saying that she would.
[58] That is not grounds for a complaint under s. 187 of the Act. Clearly, at that stage, the respondent could have communicated better with the complainant; however, as a result, the evidence adduced does not lead me to conclude that it failed its duty of fair representation. Additionally, the respondent had no legal obligation to disclose to the complainant Mr. Corbeil’s legal analysis, made at the respondent’s request. That matter falls under the respondent’s internal policies and practices.
[59] Finally, in reply, the complainant alleged that Mr. Corbeil’s legal opinion on the appropriateness of applying for judicial review of the decision in 2016 PSLREB 20 was not a neutral legal opinion as Mr. Corbeil was part of the same law firm as Mr. Piper, who represented the respondent’s interests in this case. That did not breach the respondent’s duty of fair representation. Rather, it was a matter of the respondent’s internal management. On that point, it is perfectly normal and logical for the respondent to seek legal opinions from a law firm and to have that firm represent it in litigation, to defend itself. It does not necessarily affect the value or quality of the legal opinions received on matters relating to the representation that the respondent offers its members.
[60] To sum up, the complainant did not demonstrate to me that on a balance of probabilities, the respondent failed its duty of fair representation. He did not present me with a preponderance of evidence to that effect.
[61] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
VII.
Order
[62] The complaint is dismissed.
FPSLREB Translation
a panel of the Federal Public Sector
Labour Relations and Employment Board