Date: 20230215

File: 561-02-44946

 

Citation: 2023 FPSLREB 16

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Anca Corneau

Complainant

 

and

 

Association of Justice Counsel

 

Respondent

Indexed as

Corneau v. Association of Justice Counsel

In the matter of a complaint made under section 190 of the Federal Public Sector Labour Relations Act

Before: David Orfald, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Herself

For the Respondent: Christopher Rootham, counsel

Decided on the basis of written submissions,
filed June 8 and 28, July 13, and November 23, 2022.

REASONS FOR DECISION

I. Complaint before the Board

[1] On June 8, 2022, Anca Corneau (“the complainant”) made an unfair-labour-practice complaint with the Federal Public Sector Labour Relations and Employment Board (“the Board”) against her bargaining agent, the Association of Justice Counsel (“the respondent” or “AJC”). The complainant is an employee of the Treasury Board (“the employer”), working at the Department of Justice. As an employee in the Law Practitioner (LP) bargaining unit, she is represented by the AJC.

[2] The complainant alleged that the respondent failed its duty of fair representation, in violation of s. 187 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). Specifically, she said that the AJC refused to represent her on a grievance with respect to the Treasury Board’s “Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police” (“the COVID-19 Policy”). She complained that its decision not to represent her was arbitrary, discriminatory, and made in bad faith.

[3] On June 28, 2022, the respondent made a preliminary objection about the complaint, submitting that it was untimely as it was not made within the mandatory 90-day period for making such complaints set out at s. 190(2) of the Act. Second, it denied that its decision not to represent the complainant was arbitrary, discriminatory, or made in bad faith.

[4] On July 13, 2022, the complainant responded to the AJC’s submissions. She provided additional details with respect to the complaint. She argued that she had made it in accordance with the timelines set out in the Act and provided additional information and arguments with respect to her allegations that the AJC had violated its duty of fair representation.

[5] In accordance with s. 22 of the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365), the Board may decide any matter before it without holding an oral hearing.

[6] In this case, the Board decided to invite the parties to make any additional written submissions with respect to the timeliness of the complaint and to whether the complainant had made out an arguable case that the respondent violated s. 187 of the Act. In its invitation, the Board also sought the parties’ submissions on three of its recent decisions involving the duty of fair representation and the COVID-19 Policy: Musolino v. Professional Institute of the Public Service of Canada, 2022 FPSLREB 46, Fortin v. Public Service Alliance of Canada, 2022 FPSLREB 67, and Tohidy v. Public Service Alliance of Canada, 2022 FPSLREB 69.

[7] Both parties made their additional submissions on November 23, 2022.

[8] Following my review of the complaint, the initial replies, and the written submissions, I am satisfied that I can render a decision about this complaint without holding an oral hearing.

[9] In this decision, I first set out the legislative provisions governing this complaint and the legal tests for considering whether a complaint is timely and whether an arguable case has been made out. I then summarize the facts provided or confirmed by the complainant. Finally, I consider the parties’ arguments and apply the legal tests to those facts.

[10] For the reasons that follow, I find that the complainant made a timely complaint. However, I find that she has not made out an arguable case that the AJC violated s. 187 of the Act, and I dismiss the complaint.

[11] On February 3, 2023, Christopher Rootham, counsel for the respondent in this matter, was appointed as a full-time member of the Board, effective April 3, 2023. There has been no discussion between this panel of the Board and him about this matter.

II. Legislative provisions

[12] The statutory provision for making a complaint alleging a breach of a bargaining agent’s duty of fair representation is set out at s. 190(1) of the Act. The 90-day time limit for the making of such a complaint is set out at s. 190(2). These provisions read as follows:

 

[13] Among the unfair labour practices listed in s. 185 of the Act is s. 187, which places the duty of fair representation on bargaining agents by setting out the following prohibition:

 

[14] With respect to the timeliness objection made by the AJC, it is well established that the wording in s. 190(2) is mandatory, and the Board does not have the discretion to extend the 90-day period; see Myles v. Professional Institute of the Public Service of Canada, 2017 FPSLREB 31 at para. 42, Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78 at para. 55, and Paquette v. Public Service Alliance of Canada, 2018 FPSLREB 20 at para. 36.

[15] The Board’s only discretion when interpreting the 90-day time limit in s. 190(2) is determining when the complainant knew or ought to have known of the matter giving rise to the complaint; see Esam v. Public Service Alliance of Canada (Union of National Employees), 2014 PSLRB 90 at para. 33, Éthier v. Correctional Service of Canada and Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN, 2010 PSLRB 7 at para. 18, and Tohidy, at para. 45.

[16] I will assess later in this decision whether the complaint was made within 90 days of when the complainant knew, or ought to have known, of the matter giving rise to the complaint.

III. The use of an arguable-case analysis in duty-of-fair-representation complaints

[17] In rendering decisions on duty-of-fair-representation complaints, the Board has often applied an arguable-case analysis; see, for example, Burns v. Unifor, Local 2182, 2020 FPSLREB 119 at paras. 82 to 84, Abi-Mansour v. Public Service Alliance of Canada, 2022 FPSLREB 48 at paras. 48 and 49, Musolino at para. 36, and Fortin, at para. 26. In applying an arguable-case analysis, the Board is to consider all the facts alleged by the complainant as true and then determine whether the complainant has made out an arguable case that the Act has been violated (see also Hughes v. Department of Human Resources and Skills Development, 2012 PSLRB 2 at para. 86).

A. The parties’ submissions

[18] Both parties agreed that the Board should be cautious in using an arguable-case analysis to dismiss a complaint.

[19] The complainant argued that the threshold for establishing an arguable case is low. For this principle, she cited the following excerpt from the Ontario Labour Relations Board (OLRB) in Akwasi Agyeman v. SEIU Healthcare, 2021 CanLII 27347 (ON LRB, “Agyeman”) (in that case, the OLRB uses the term “prima facie case” in place of “arguable case”):

…

13. The [OLRB] has held, repeatedly, that the threshold for pleading a prima facie case is not particularly high. Conversely, the threshold is high on a party seeking to have an application dismissed for failing to plead a prima facie case. In J. Paiva Foods Ltd., [1985] OLRB Rep. May 690, the [OLRB] held, at page 691, as follows:

The [OLRB]’s discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the [OLRB] is satisfied that there is no reasonable likelihood that a violation of the [Ontario Labour Relations] Act can be established on the facts as alleged.

…

 

[20] The respondent took the position that the Board should assess whether the complainant has made out an arguable case that her complaint was timely, as well as whether the AJC acted in a way that is arbitrary, discriminatory, or in bad faith.

[21] The respondent noted that in Sganos v. Association of Canadian Financial Officers, 2022 FPSLREB 30, the Board drew an analogy between the arguable-case framework and that applied by courts in civil actions in preliminary motions to strike pleadings. In such a case, the facts pleaded must be taken as true unless they are manifestly incapable of being proven, the AJC argued. The complainant must clearly plead facts that form the basis of the claim, and if there is any doubt about what the facts reveal, then the Board must err on the side of finding that there is an arguable case and hear the case (see Sganos, at paras. 81 to 84).

[22] The respondent noted that the Board applied an arguable-case analysis in its recent dismissal of three duty-of-fair-representation complaints involving the COVID-19 Policy; see Musolino, Fortin, and Tohidy. It argued that the Board erred in those cases by considering facts pled by the bargaining agents. For example, in Musolino (at para. 37), it said that the Board relied upon the fact that the bargaining agent had sought a legal opinion from several sources to demonstrate that it had not acted in an arbitrary fashion. In Tohidy (at para. 36), the Board relied upon the bargaining agent’s chronology of the steps it took and took those factors into account in its decision making. The AJC said that the analysis must rely solely on the pleadings of the complainant (see also Hunt v. Carey Canada Inc., [1990] 2 SCR 959 at 986).

[23] The respondent acknowledged that its submissions about the arguable-case standard are unhelpful to its case, as therefore, the Board should not rely on facts provided in its reply to the complaint, filed on June 28, 2022. This approach means that for example, the Board should not consider the AJC’s “Frequently Asked Questions” document released about the COVID-19 Policy, it said. The Board should restrict itself to considering the pleadings made in the complaint and in the complainant’s reply of July 13, 2022, including the seven attachments (Appendices A to G) to those submissions, it argued.

[24] Despite these cautions, the AJC took the position that the Board can apply an arguable-case analysis and use it to dismiss this complaint as untimely or, alternatively, for failing to make out an arguable case that it acted in a way that was arbitrary, discriminatory, or in bad faith. It also acknowledged that even if the Board finds that the complainant has made out an arguable case, the Board is not bound to hold an oral hearing. The Board has other options open to it to resolve factual disputes; for example, through written submissions.

B. Analysis

[25] I agree that when conducting an arguable-case analysis of a complaint, the Board should exercise caution, and if in doubt, it should preserve the right to have complaints considered in a proceeding (see Hughes, at para. 105, and Quadrini v. Canada Revenue Agency, 2008 PSLRB 37 at para. 33).

[26] However, I think that the AJC overstates the restriction on the Board’s reference to facts pled by the respondent. In a complaint such as this, the exchange of particulars following the making of a complaint is an essential part of the intake process. This exchange, which has been an established part of the Board’s practice for many years, assists the Board in understanding the issues giving rise to the complaint. This can assist the Board in resolving complaints in the most expeditious way possible.

[27] Through this exchange, the respondent is invited to provide its version of events, and the complainant is invited to respond to those assertions. As was the case here, the parties often provide documents in support of their version of events. Through this exchange, the Board can be satisfied that certain facts are not in dispute. This is particularly so if the facts have been mentioned by both parties or are supported in uncontested documentation supplied by the parties.

[28] In this case, the existence of the respondent’s frequently-asked-questions document was not only mentioned by the complainant, but she also quoted from it in the process of making her arguments about the AJC’s actions.

[29] If the facts are in dispute, or the Board has doubt about the facts, then the Board must rely only on those facts pled by the complainant in assessing whether an arguable case has been made out.

[30] To analyze whether a complainant has made out an arguable case in a duty-of-fair-representation complaint, the Board must consider the principles underlying the duty. In 1984, the Supreme Court of Canada set out as follows five principles underlying any union’s duty of fair representation in Canadian Merchant Service Guild v. Gagnon, [1984] 1 SCR 509. Although the second principle requires some modification, given the individual-grievance framework set out in the Act, the other four principles have been used by the Board on many occasions to define the scope of the duty of fair representation under the Act:

…

1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit.

2. When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion.

3. This discretion 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.

4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful.

5. The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

…

 

[31] I also find that the Canada Industrial Relations Board (CIRB) provided useful guidance in assessing duty-of fair representation complaints in McRaeJackson v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), 2004 CIRB 290. Section 37 of the Canada Labour Code (R.S.C., 1985, c. L-2; “the Code”), a provision very similar to s. 187 of the Act, sets out the duty of fair representation for unions certified under the Code. At paragraph 54 of McRaeJackson, the CIRB summarized the principles as follows:

[54] Ultimately, if the union has directed its mind to the employee’s complaint, gathered the information relevant to making a decision, attempted to resolve the situation and reasonably exercised its discretion not to pursue a grievance or refer it to arbitration according to the criteria stated earlier, and informed the employee of its reasons for doing so, an employee will have little cause for complaint.

 

[32] In Noël v. Société d’énergie de la Baie James, 2001 SCC 39, the Supreme Court of Canada wrote about arbitrary conduct by unions at paragraph 50, as follows:

50. The concepts of arbitrary conduct and serious negligence, which are closely related, refer to the quality of the union representation. The inclusion of arbitrary conduct means that even where there is no intent to harm, the union may not process an employee’s complaint in a superficial or careless manner. It must investigate the complaint, review the relevant facts or seek whatever advice may be necessary … The association’s resources, as well as the interests of the unit as a whole, should also be taken into account. The association thus has considerable discretion as to the type and extent of the efforts it will undertake in a specific case.…

 

[33] In Sganos, the Board emphasized that a complainant’s disagreement with a union’s representation decisions does not establish a breach of s. 187. At paragraph 102, it said this:

[102] The Board’s jurisprudence has firmly established that a complainant’s dissatisfaction or disagreement with the quality or nature of the union’s representation is not the standard to use when assessing whether s. 187 has been contravened. The mere fact that a complainant disagrees with the union representative’s strategy or decision in processing a grievance will not establish a breach of s. 187 ….

 

[34] In considering whether an arguable case has been made out, it is not merely a matter of accepting the complainant’s pleadings as true: as is often the case, the complainant in this case cites certain facts and then pleads (or argues) that certain actions or inactions on the part of the respondent were arbitrary, discriminatory, or in bad faith. The fact that the complainant argues that the AJC acted in an arbitrary or discriminatory manner, or demonstrated bad faith, does not mean that there is an arguable case. The issue for the Board is whether the facts provided or confirmed by the complainant rise to the level of a complaint that hasa reasonable chance of success. Put another way, as the OLRB put it in Agyeman, a case can be dismissed for lack of an arguable case if it has no reasonable prospect of success.

IV. The complaint

[35] It is important to start with the content of the complaint. The complainant stated the following as the matter giving rise to the complaint:

…

… AJC refused to represent me in my grievances against the Employer’s unreasonable, unjustified and arbitrary decisions to mandate COVID-19 vaccination, require my vaccination status and suspend me indefinitely without pay while I was working remotely. AJC failed to exercise its discretion in good faith, objectively and honestly. AJC provided template responses that contained no objective or reasonable explanation for refusing to represent me. AJC’s March 10, 2022 decision to not represent me in my grievance against my suspension is wholly unreasonable and arbitrarily [sic].

AJC further failed in their duty of fair representation by not taking any action and/or not communicating any information to me and other members when the Employer failed to complete the review of its Policy on COVID-19 Vaccination within the six-month period as required by the Policy and when the Employer failed to put an end to my suspension given the changed circumstances surrounding the COVID-19 pandemic. The AJC’s continued failure to act and advocate for its members has facilitated the employer’s efforts to violate my legal and constitutional rights.

…

 

[36] In her complaint, the complainant said that she took these steps to resolve the issue with the respondent:

…

Despite several attempts, AJC provided no real answer to my legitimate questions. It became evident to me on March 10, 2022, that because AJC blindly supports the Policy it had no real intention of responding to my questions and concerns. AJC has prioritized its efforts to ensure members comply with the Employer’s unreasonable, arbitrary, discriminatory, disciplinary and punitive Policy over its obligation to protect the legal and constitutional rights of its members. This is further demonstrated by its inaction following the Employer’s failure to complete the review of the Policy by April 6th, 2022 and the changed circumstances surrounding the COVID-19 pandemic.

…

 

[37] She requested the following corrective actions:

…

A declaration that AJC is in breach of its duty of fair representation.

A make-whole remedial order, including damages and compensation for any pay and benefits lost, retroactively to November 15, 2021.

An order requiring AJC to pursue a grievance for the Employer’s failure to complete the review of its Policy on COVID-19 Vaccination within the six-month period required by the Policy.

Any other order deemed appropriate in the circumstances.

…

 

V. Summary of facts

[38] The following summary of facts includes those provided or confirmed in the complainant’s complaint, her written submissions of July 13, 2022 (including seven appendices), or her final submissions of November 23, 2022. Many of these facts were also confirmed in the respondent’s summary of facts.

[39] The COVID-19 Policy was issued on October 6, 2021. It required mandatory completion of a COVID-19 vaccination attestation form before October 29, 2021. It said that employees who refused to attest to having been vaccinated could be placed on leave without pay.

[40] On October 13, 2021, the complainant discussed the grievance process with Kate Terroux, legal counsel for the respondent. She stated that she discussed with Ms. Terroux the possibility and timelines for two grievances, one to challenge the policy, and one to challenge her probable suspension. She stated that the conversation with Ms. Terroux confirmed her understanding that if she wanted to grieve the COVID-19 Policy, she would have to present the grievance to her manager by November 12, 2021.

[41] On November 3, 2021, via email, the complainant requested representation from the AJC for a grievance against the COVID-19 Policy. In her request, she said that she wanted the employer to immediately cease applying the policy on a mandatory basis and that it stop pressuring her to disclose her vaccination status. She cited as grounds for the grievance that the policy violated the Canadian Charter of Rights and Freedoms (The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11; “the Charter”) and her right to privacy and that the policy was unreasonable, unethical, and overly broad and punitive.

[42] On November 11, 2021, the complainant sent another email to Ms. Terroux, asking for an update with respect to her request for representation. As she had still heard nothing by November 12, 2021, the complainant filed a grievance against the COVID-19 Policy with her manager.

[43] On November 15, 2021, the complainant received the AJC’s email response to her request for representation. The AJC said it had considered her request and that after careful consideration had determined that it was inconsistent with its governing council resolution on the mandatory vaccine policy. Referring to the AJC’s frequently-asked-questions document on the policy, Ms. Terroux’s email said that the AJC supported the broadest possible vaccination of Canadians, and that it was not satisfied that the policy violated the Charter. It said that it did not believe that the policy violated the relevant collective agreement, including its management-rights provision. The email also stated that the AJC would support members seeking accommodations for medical and religious reasons.

[44] On that same day, November 15, 2021, the complainant was placed on leave without pay for an indefinite period under the COVID-19 Policy.

[45] On November 26, 2021, the complainant sent Ms. Terroux a request for a reconsideration of the AJC’s November 15 decision. She asked four specific questions about the decision not to represent her. Among the questions were these two: “How is it reasonable to impose these new conditions of employment on employees who work from home?” [emphasis in the original], and, “How can an involuntary leave without pay not be punitive?” [emphasis in the original].

[46] On December 15, 2021, the complainant requested an update from Ms. Terroux on her request for reconsideration. In this email, she told the AJC that on November 15, 2021, she had been placed on involuntary and indefinite leave without pay for not disclosing her vaccination status and that she intended to grieve that action as she felt that it was an unjust disciplinary action resulting in termination or suspension and a financial penalty. She asked if the AJC would support that grievance.

[47] On December 16, 2021, Ms. Terroux responded and explained that requests for reconsideration under the AJC’s internal representation policies require a material change in facts. Since no such facts were provided, the representation committee of the AJC did not consider her request for reconsideration admissible. The complainant’s specific questions were acknowledged, and Ms. Terroux said that they might be helpful in informing the AJC’s frequently-asked-questions document on the COVID-19 Policy. The complainant was informed that she could make an individual complaint with the Canadian Human Rights Commission.

[48] In her email of that day, Ms. Terroux also said this: “I’m sorry to hear you’ve been placed on leave without pay, you can always make a request for representation, however AJC views the leave under the Employer’s policy to be administrative and not disciplinary.”

[49] On January 24, 2022, the complainant wrote to Ms. Terroux to request representation by the AJC for a grievance reading as follows: “I grieve the Employer’s unilateral decision to place me on leave without pay (LWOP).” In her arguments as to why the AJC should agree to represent her, she said that the employer did not have the authority to require disclosure of her vaccination status or to impose leave without pay for failing to do so. She also said that she had worked remotely for the employer since March 2020, and that no parts of her job required her to work from the office. She posed no health-and-safety risk to others by working at home without having declared her vaccination status, and she asserted that the employer’s actions were disciplinary, retaliatory, and coercive.

[50] The complainant and Ms. Terroux had a further exchange of emails on January 24, 2022. Ms. Terroux asked the complainant for clarification about the request, stating that it appeared that a request for reconsideration had already been made and answered. The complainant wrote back to Ms. Terroux and explained that although her requests for representation were related, they were for separate grievances. She said that the first request (on November 3) was for representation in a grievance against the COVID-19 Policy. At that time, she had not yet been placed on leave without pay, and a grievance about that would have been premature. The request for reconsideration (on November 15) was made with respect to that first grievance. She said that she was now requesting representation for a second grievance, concerning the employer’s decision to put her on leave without pay.

[51] I note that when the complainant made this request for representation on January 24, 2022, she had already filed an individual grievance against the employer’s decision to place her on leave without pay. According to an email attached to the complainant’s submissions, that second grievance was presented to the employer on December 20, 2021. It is not clear from the complainant’s submissions that she disclosed that information to the AJC when making her request for representation on this second grievance.

[52] On February 28, 2022, the complainant sent Ms. Terroux a follow-up email, requesting an update on her January 24 request for representation.

[53] On March 10, 2022, Ms. Terroux wrote back to the complainant. The email characterized the complainant’s request as a “… second request for representation to pursue an individual grievance challenging the employer’s unilateral decision to place [her] on leave without pay….” The email said that the AJC had “… once again reviewed and carefully considered [her] request …” and determined that the request for representation was not consistent with the AJC’s governing council resolution on the COVID-19 Policy. The email acknowledged the complainant’s submissions that she had been working from home since the beginning of the pandemic in March of 2020 and her submission that she posed no health-and-safety risk to the workplace. The email noted that the COVID-19 Policy explained why the mandatory vaccination policy applied to all employees. The email also explained why the AJC supported the broadest possible vaccination of Canadians, including public servants.

[54] This complaint was made to the Board on June 8, 2022.

[55] Attached to the complainant’s submissions were two member newsletters authored by the respondent. The first, dated November 25, 2021, explained the AJC’s position on the COVID-19 Policy. The second, dated June 10, 2022, provided an update on the AJC’s position on the vaccination policy, including that it urged the employer to complete its six-month review of it.

[56] In the respondent’s summary of events, it noted that the COVID-19 Policy was rescinded effective June 20, 2022. This fact is a matter of public record. The respondent also stated that it understood that the complainant returned to active employment on that date. That fact was not confirmed in the complainant’s submissions, although in her arguments, she did note that her period of leave without pay lasted seven months.

VI. Issues

[57] The written submissions of the parties raise these two issues for the Board to consider:

· Has the complainant made out an arguable case that the complaint was timely (i.e., made in accordance with s. 190(2) of the Act?)

· Has the complainant made out an arguable case that the AJC violated s. 187 of the Act?

 

VII. Has the complainant made out an arguable case that the complaint was timely?

A. The respondent’s arguments

[58] The respondent argued that this complaint was not made within the 90-day period set out in s. 190(2) of the Act. It said that it had clearly communicated its decision not to represent the complainant on November 15, 2021. When it answered the complainant’s first request for reconsideration, on December 16, 2021, all it did was reiterate its previous decision. The same was true of its March 10, 2022, email to the complainant, the respondent argued. The request for representation made by the complainant on January 24, 2022, was on the same grounds as the complainant’s earlier request: the COVID-19 Policy was unreasonable because the complainant was working from home and because it did not account for an employee’s individual circumstances. Both requests refer to the fact that employees who do not comply with the policy will be placed on leave without pay and describe that action as “disciplinary” and “punitive”, it said.

[59] The AJC’s March 10, 2022, email to the complainant merely reiterated the decision not to provide representation to her that had already been communicated in November and December 2021, the respondent argued. The AJC was being courteous by providing its March 2022 response to the complainant, and that courtesy should not have created a new opportunity to make a duty-of-fair representation complaint; see Tohidy, at para. 51.

B. The complainant’s arguments

[60] The complainant argued that she made two distinct requests for representation. The one made in November 2021 was with respect to a grievance about the COVID-19 Policy, and the one made in January 2022 was with respect to a grievance about being placed on leave without pay. She noted that in Tohidy, the Board made a distinction between three different grievances filed by the complainant, and the decision addressed only one of the three (see paragraph 19). In so doing, the Board recognized a difference between a grievance about the policy and a personal grievance (see also paragraph 54).

[61] The complainant argued that in this complaint, the only request for representation at issue is the one made on January 24, 2022, about being involuntarily placed on leave without pay. That request was not for reconsideration; it was a new request for representation for a different grievance. The complainant argued that she did not learn that the AJC would not represent her on this grievance until she received Ms. Terroux’s email of March 10, 2022. This complaint was made on June 8, 2022, which was within the 90-day period outlined in the Act.

C. Reasons

[62] I am skeptical of the complainant’s argument that there is a significant distinction between her request to the AJC for representation for a general individual grievance about the COVID-19 Policy and for representation for being placed on leave without pay as a result of the policy’s implementation. Her first request, made on November 3, 2021, cited privacy concerns related to the policy, complained about the requirement for employees working from home to complete a vaccination attestation, and, significantly, complained about the policy implications of being placed on leave without pay. That request asserted that the COVID-19 Policy coerced employees into taking an experimental vaccine by threatening them with a disciplinary measure if they did not and alleged that the policy violated the Charter. Her request for reconsideration, made on November 26, 2021, also specifically raised two questions about the portions of the policy that authorized the employer to place an employee on leave without pay.

[63] What the complainant described as her second request for representation, made on January 24, 2022, covered essentially the same ground. She asserted that the employer did not have the authority to require her vaccination status, that she was able to perform all her work duties from home, that she posted no health-and-safety risk to other employees, and that the employer’s decision to place her on leave without pay was unjustified, nonsensical, and not in accordance with the relevant collective agreement. She asserted that the employer’s decision to place her on leave without pay was disguised discipline, retaliatory, coercive, and punitive.

[64] Furthermore, the wording of the complaint itself addresses not only her request for representation for a grievance about being placed on leave without pay but also the COVID-19 Policy itself. In her complaint, the complainant stated as follows: “AJC refused to represent me in my grievances against the Employer’s unreasonable, unjustified and arbitrary decisions to mandate COVID-19 vaccination, require my vaccination status and suspend me indefinitely without pay while I was working remotely” [emphasis added]. The complaint stated her view that the AJC “blindly” supported the employer’s adoption of the policy, a sentiment also clearly expressed in her request for reconsideration of November 26, 2021. The remedy sought in the complaint included a request that the Board order the AJC to pursue a grievance against the employer because it failed to complete a review of the COVID-19 Policy within the six-month period required by the policy.

[65] In her reconsideration request of November 26, 2021, the complainant said that she viewed the AJC’s decision not to represent her as arbitrary, discriminatory, and in bad faith. In so doing, she made specific reference to the Act. This clearly suggests that by that date the complainant knew that the respondent would not be providing her with the representation she was seeking, and that she was considering a challenge to that decision under the Act.

[66] In light of the significant similarities between the two requests for representation and the wording of the complaint, I do not think that it was unreasonable for the AJC to argue that the complaint was untimely. Its decision not to provide representation to the complainant was clearly communicated to her on November 15, 2021, and again on December 16, 2021. The complaint was made well more than 90 days after either of those dates.

[67] However, some of the communications from the AJC to the complainant did make a distinction between the two requests for representation.

[68] In her email of December 16, 2021, Ms. Terroux wrote to the complainant as follows: “I’m sorry to hear you’ve been placed on leave without pay, you can always make a request for representation, however AJC views the leave under the Employer’s policy to be administrative and not disciplinary.” This reinforces the idea that a distinction was being made by the AJC between the two requests for representation.

[69] In Ms. Terroux’s email of March 10, 2022, she does not describe the AJC’s decision as a reconsideration; she describes it as a “second request for representation”. This also reinforces the idea that a distinction could be made between the two requests.

[70] It is also important to note that under the Act, there is a clear distinction to be made between policy grievances (as set out at sections 220 and 221), and individual grievances (as set out at sections 208 to 214). The former may only be made by a bargaining agent (or employer), not by an individual employee. Ms. Corneau could not have presented a policy grievance to her employer under s. 220, nor referred it for adjudication under s. 221. She could file an individual grievance about being placed on leave without pay, and did, on December 20, 2021. She has, in fact, referred that grievance to adjudication under the provision of s. 209(1)(b) of the Act (board file 566-02-45389), and was able to do so without support of her bargaining agent.

[71] The complainant said that she relied on the communications from the AJC that made a distinction between her two requests for representation. She argued that only on March 10, 2022, did she know that the AJC refused to represent her on her leave-without-pay grievance. The complaint was made on June 8, 2022, exactly 90 days later. Based on these facts, I conclude that the complaint is timely, but only with respect to the complainant’s request for representation on the grievance about being placed on leave without pay.

VIII. Has the complainant made out an arguable case that the AJC violated s. 187 of the Act?

A. The complainant’s arguments

[72] The complainant argued that the respondent gave no real consideration to representing her on the grievance against being placed on leave without pay, or what she sometimes referred to as her “suspension grievance”. She said that the respondent demonstrated a non-caring attitude. Its representation was merely apparent, and the respondent did not truly consider the possibility of supporting her grievance. It failed to investigate her personal circumstances, do a proper assessment, and make a reasoned judgement as to the possible outcome of the grievance. It failed to provide any valid reasons for not representing her. From that, she inferred that the respondent did not have a reasonable justification for its decision. The fact that the respondent now refers to the email of March 10, 2022, as a “courtesy letter” is further evidence that the AJC did not review the merits of her suspension grievance or that any such review was purely superficial, the complainant said.

[73] The complainant argued that the only reasons provided by the respondent for not supporting her grievance was that it supported the broadest possible vaccination of Canadians. The respondent simply echoed the employer’s reasons for implementing the COVID-19 Policy. The employer acted in a manner that was arbitrary, unreasonable, and in bad faith, and the AJC merely repeated the employer’s positions, without further inquiry or analysis.

[74] As evidence of the respondent’s personal views, the complainant quoted as follows from a statement made by its president in its fall 2021 newsletter to members:

…

As you know, the AJC supports [the] broadest possible vaccination of Canadians, including public servants, to combat the COVID-19 pandemic and ensure health and safety in the workplace. Speaking from a personal perspective, I think Canadians should unite behind a national mission to eradicate COVID-19. This is a situation where we, as Canadians, need to reflect on our duty as citizens and what we can do for the public good – namely, the health and safety of our country, our communities, our workplaces, our schools, our families, and our friends.

In this short message, I can’t fully explore or possibly resolve the debate – legally and otherwise – about health and safety measures such as vaccination. That said, the public health benefit of the broadest possible vaccination of Canadians appears to me to be overwhelming. In my position, I think I’ve heard most of the arguments against vaccination, particularly mandatory vaccination. I’m mindful of all of the interests at play. However, I keep coming back to a simple point: vaccination, though not 100% effective, will eventually choke off COVID-19’s ability to infect, to grow, to mutate, to overwhelm our health care system, to restrict our lifestyles, to harm our economy, and to kill people.

…

 

[75] In effect, the respondent’s personal views affected its assessment of her grievance, the complainant argued. Despite saying in its frequently-asked-questions document that it would “… consider individual grievance support requests relating to unreasonable, unfair and bad faith implementation of the policy …”, the AJC refused to support her grievance, she argued.

[76] Furthermore, in making its assessment, the AJC failed to consider relevant arbitral case law, the complainant argued. For example, in Watson v. Canadian Union of Public Employees, 2022 CIRB 1002, although the CIRB dismissed a duty-of-fair-representation complaint concerning Air Canada’s implementation of a mandatory vaccination policy, the circumstances involved an employee’s request for a policy grievance in a context in which employees could not work from home. She argued that since her grievance was about her personal circumstances and she could continue to work from home, that the AJC should not rely on Watson to justify its decision not to represent her. Furthermore, the employer in that case was under a government order to establish a vaccination policy, while the complainant’s employer was not, she argued.

[77] The complainant argued that the AJC should also have considered a case that dealt specifically with employees who were working remotely and in which an arbitrator found that the employer’s mandatory vaccination policy was unreasonable; see Electrical Safety Authority v. Power Workers’ Union, 2022 CanLII 343 (ON LA). In that case, which was decided via an interim award in November 2021 but released in writing on January 4, 2022, the arbitrator found that it was unreasonable to place employees who worked remotely on leave without pay. It was capricious and arbitrary for the AJC to not provide an explanation as to why it did not consider that case.

[78] The complainant argued that the Board’s decisions in Fortin and Musolino are distinguishable from her case. In those matters, the complainants challenged their bargaining agents’ decisions not to challenge the COVID-19 Policy itself, and the Board did not have to rule on a respondent’s decision to not support a grievance challenging the application of the policy to an individual employee. In Musolino, the bargaining agent had said that it would consider an individual grievance, but the complainant had wanted a policy grievance. In Fortin, the bargaining agent said that it would support a request for a personal grievance, but the complainant did not seek that form of representation, she argued.

[79] The complainant argued that the respondent acted in an arbitrary and capricious manner when it did not take into consideration the evolution of the pandemic. She asserted as fact that “…the COVID-19 vaccines have failed to stop transmissions of, and infection from, the virus…” and provided several references to that effect. Her requests for representation from the AJC asserted that COVID-19 vaccines are dangerous and experimental. She noted that many provinces started removing vaccine mandates in February and March of 2022. She also noted that in March of 2022, the Public Service Alliance of Canada (PSAC), another federal public sector bargaining agent, filed a policy grievance challenging the COIVD-19 Policy under which members had been put on leave without pay by their employers. Unlike the PSAC, which took a critical look at the policy, the AJC decided to do nothing, the complainant argued.

[80] Finally, the complainant argued that the respondent violated its duty of fair representation by referring to its frequently-asked-questions document on the COVID-19 Policy in its replies to her requests for representation. In that document, the respondent expressed its support for the broadest possible vaccination of Canadians. The complainant argued that this was not a relevant factor to consider in deciding not to represent her. It was neither the employer’s nor the respondent’s role to improve vaccination rates across Canada or to protect her from serious illness in situations that were not related to her employment, she argued. When a bargaining agent is influenced by personal feelings or opinions or makes decisions based on considerations that are not relevant to the representation of its members, it violates its duty of fair representation, she argued.

[81] The complainant argued that for all those reasons, she has made out an arguable case that the respondent acted in a way that was arbitrary, discriminatory, or in bad faith. She said that she was unjustly suspended without pay for over seven months and that the respondent provided none of the support or advocacy that one might expect when faced with such serious discipline.

B. The respondent’s arguments

[82] The respondent denied that the complainant has made out an arguable case that its representation was arbitrary, in bad faith, or discriminatory. It addressed each of these allegations in turn.

[83] The respondent referred to the definition of “arbitrary conduct” provided by the Supreme Court of Canada in Noël (at para. 50), cited earlier. Arbitrary conduct is that which is superficial, careless, or made without reviewing the relevant facts.

[84] The complainant alleged that the AJC did not consider or understand her personal circumstances, but in its email of March 10, 2022, the AJC made specific reference to the fact that she had been working from home and had not been asked to return to in-person work. This demonstrated that it considered and understood her personal circumstances, it argued.

[85] Second, the complainant said that the AJC did not consider relevant case law, and she made specific reference to Electrical Safety Authority. The respondent argued that the written decision in that case was issued only in January 2022, long after the AJC first told the complainant that it would not provide representation for grievances against the COVID-19 Policy. Even if that one case might be helpful to the complainant, it is distinguishable as the arbitrator only carved out employees who worked exclusively from home. In the case of the complainant, the employer maintained that lawyers would, periodically, have to return to the office for short periods.

[86] The respondent noted that the vast majority of arbitral awards have upheld the right of employers to implement mandatory COVID-19 vaccination policies, particularly when the consequence of being unvaccinated is an unpaid leave of absence instead of a termination (see, for example, Toronto District School Board v. CUPE, Local 4400, 2022 CanLII 22110 (ON LA); Elementary Teachers’ Federation of Ontario v. Ottawa-Carleton District School Board, 2022 CanLII 53799 (ON LA); Toronto Professional Fire Fighters’ Association, I.A.A.F. Local 3888 v. Toronto (City), 2022 CanLII 78809 (ON LA); and Coast Mountain Bus Company v. Unifor, Local 111, 2022 CanLII 94447 (BC LA)). None of this case law was available to the AJC at the time it decided not to challenge the COVID-19 Policy (in November 2021), it noted.

[87] In any case, in this matter, the Board is not sitting in appeal of the AJC’s decision, the respondent argued. It is not required to provide case references or to debate the legality of a particular grievance with a member. In its communication with the complainant, the AJC told her that it continued to assess the situation but that it was satisfied that the employer had a strong argument to uphold the COVID-19 Policy. The communications quoted by the complainant state that the AJC considered the legal questions raised in the case, and the complainant has provided nothing to substantiate an allegation otherwise.

[88] The AJC argued that in her submissions to the Board, the complainant spent considerable time arguing that the employer acted in a way that was arbitrary, unreasonable, and in bad faith. The reasonableness of the employer’s actions are not the issue in this case; see Musolino, at para. 35, and Bloomfield v. Service Employee International Union, 2022 CanLII 2453(ON LRB) at paras. 18 and 19. At best, the complainant argued that since the AJC agrees with the employer, it must also be acting arbitrarily. The duty of fair representation does not require a bargaining agent to disagree with every single thing an employer does, the respondent argued. The fact that they agreed at least in part on this issue is not evidence that the AJC acted arbitrarily, it said.

[89] As for an allegation of discrimination, the complainant has alleged no facts that would support a claim that she was treated any differently from other employees represented by the AJC in similar circumstances. As such, no arguable case of discrimination has been made out, the respondent argued.

[90] As for an allegation of bad faith, the complainant would have to plead facts disclosing some form of personal hostility toward her or “… behaviour on the part of the respondent that was oppressive, dishonest, malicious or spiteful” (see Sganos, at para. 97). The complainant has not alleged any facts that would support a finding that the AJC acted in bad faith, it argued.

[91] Finally, the respondent noted that the complaint form included an allegation that the AJC failed its duty of fair representation by not communicating to its members in April 2022 when the employer did not complete its review of the COVID-19 Policy within a six-month period. This does not demonstrate that the AJC acted in a way that was arbitrary, discriminatory, or in bad faith, it argued. In any case, as confirmed by the complainant, the AJC did address this issue in its communiqué to members on June 10, 2022, which amounts to a timely update.

[92] In short, the respondent argued that the complainant has not made out an arguable case that its decision not to represent her was arbitrary, discriminatory, or made in bad faith, and the Board should dismiss the complaint.

C. Analysis and reasons

[93] As discussed, the Board should dismiss a duty-of-fair-representation complaint on the basis that the complainant has failed to make out an arguable case only if it concludes that the complaint has no reasonable chance of success.

[94] As also discussed, the Board’s assessment of a complaint’s possible success must consider the principles underlying a union’s duty of fair representation, as outlined in the jurisprudence. The cited case law (Canadian Merchant Service Guild, McRaeJackson, Noël, and Sganos) concludes that a union is to be given considerable discretion when it comes to making a decision on whether to provide representation to a member on a particular grievance. A duty-of-fair representation complaint is not an appeal of a union’s representation decision. It is not the Board’s role to decide whether the union’s decision was the right, best, or fairest decision. The Board’s role is to determine if the union’s decision-making rose to the level of being arbitrary, discriminatory, or in bad faith.

[95] Nor is a duty-of-fair-representation complaint to serve as a proxy for challenging a decision or policy of the employer; see McRaeJackson, at para. 47, or Burns, at para. 164. Therefore, this is not a case about whether COVID-19 vaccinations are safe, effective, or reasonable or whether the employer’s COVID-19 Policy was reasonable, arbitrary, discriminatory, or in bad faith. Therefore, I have not referenced several non-case-law external sources on vaccine safety and efficacy cited by the complainant as they simply are not relevant to the question before me. Nor, for that matter, is it required or appropriate for me to assess whether the complainant’s grievance against the employer has a reasonable chance of success. For that reason, I put little weight on the many cases cited by the respondent in which employers’ mandatory vaccination policies have been found reasonable by adjudicators or arbitrators. Those cases are relevant only to the extent that they demonstrate whether the respondent in this case turned its mind to the complainant’s request for representation.

[96] I emphasize all this at the outset of my analysis, as it is clear from the complainant’s submissions that she strongly disagreed with the COVID-19 Policy and that she wanted her bargaining agent to challenge it. Furthermore, she strongly disagreed with its decision not to challenge the policy, and in particular not to support her grievance against the fact that she was placed on leave without pay as a result of it.

[97] The question is whether the respondent’s decision has a reasonable chance of being found to be arbitrary, discriminatory, or in bad faith.

[98] In considering this, I believe it is appropriate to examine the totality of the respondent’s communications with the complainant, from the time she first approached it to discuss the possibility of filing grievances against the COVID-19 Policy in November 2021 through to the content of the email of March 10, 2022, which responded to the second request for representation.

[99] As I have already found, there is very little light between the complainant’s desire to challenge the COVID-19 Policy and her desire for the AJC to provide representation for her leave without pay grievance. Her complaint, her requests for representation, and her submissions to the Board indicate that the two forms of requested representation were very closely related. The essence of the complainant’s opposition to the policy indicates that her opposition included both the requirement to provide an attestation and the consequences of refusing to (being placed on leave without pay). This is evident in the two requests for representation made to the AJC, in particular the request for reconsideration she made on November 26, 2021, and throughout the complaint and her submissions.

[100] For the respondent’s representation decisions to be found arbitrary, the complainant would have to demonstrate that the AJC was essentially negligent; see Noël, at para. 50. As the Supreme Court of Canada ruled in that case, “… the union may not process an employee’s complaint in a superficial or careless manner.”

[101] The facts provided by the complainant demonstrate to me that the respondent did not act in an arbitrary way. Its responses to the complainant’s requests for representation were thorough and consistent and demonstrated that it considered her personal circumstances when rendering its decision. The respondent did not ignore the questions raised by the complainant in her emails. Ms. Terroux’s email of December 16, 2021, took the time to explain that while the AJC would consider representation on a leave-without-pay grievance, it viewed the employer’s decision as administrative, not disciplinary. Ms. Terroux’s email of March 10, 2022, specifically addressed the fact that the complainant worked from home and that she had not yet been required to attend the workplace, but explained that it understood the employer could require lawyers to report to the office.

[102] The respondent also did not shut the door to assisting the complainant with other avenues of recourse. In the emails of December 16, 2021, and March 10, 2022, it said that the complainant could make a complaint with the Canadian Human Rights Commission and offered to provide her with a letter to the Commission as proof that it was refusing to support her grievance, “… as this is often a precondition to the filing of a CHRC complaint”, it explained. Several times, the AJC also explained to the complainant that it would support members seeking accommodations for medical or religious reasons. However, the complainant did not provide any information suggesting that she made such a request.

[103] I find nothing arbitrary in the respondent’s reference, in its communications with the complainant, to the AJC’s overall position and approach on the COVID-19 Policy, on the pandemic as a whole, and the health-and-safety concerns associated with both the workplace and broader society. From the complainant’s own submissions, the AJC clearly communicated its position on these matters to its membership through both newsletters and a frequently-asked-questions document on the policy. The content of those communications demonstrates that the respondent examined the policy, considered its options, assessed the implications for its members, and made what it felt was a reasoned decision with respect to how and when it would provide representation with respect to members’ complaints about the policy. I find nothing arbitrary about the fact the union used various forms of mass communication to provide its members, including the complainant, with information about its position on the policy; see Fortin at para. 47 and Tohidy at para. 54.

[104] The complainant clearly disagreed with the AJC’s decisions, but she has not demonstrated to me that she has an arguable case that its position was arbitrary, negligent, superficial, or careless. It is not irresponsible or arbitrary for a union to make decisions about representation that strike a balance between an individual member’s wishes and broader issues involving workplace and social health and safety.

[105] I wish to note that in the context of the arguable case analysis and its application to this case, I have not accepted as fact the complainant’s assertions that COVID-19 vaccines are ineffective, dangerous, and experimental because those assertions are not relevant to the issue before me. The issue before the Board is whether the respondent’s decision not to represent the complainant was arbitrary. This point was clearly reinforced by the CIRB in Watson at paragraph 73, (which as noted earlier, was cited by the complainant in support of her case):

[73] The Board accepts that the union has the ultimate responsibility to decide on the interpretation of the collective agreement … and, as such, in this case, that it retains the discretion to determine whether it should challenge the vaccination policy as a proper exercise of management rights. The fact that the complainant disagrees with the union’s interpretation of the collective agreement is not sufficient to establish a breach of the union’s duty.

 

[106] Even the arbitrator in Electrical Safety Authority, cited by the complainant as evidence that an employer’s vaccination policy could be found to be unreasonable, took care to emphasize that his decision should not be taken as a “victory” for those opposed to vaccine mandates. The arbitrator in that case stated as follows, at paragraph 102:

[102] As I stated at the beginning, this award should not be taken as a vindication for those who choose, without a legal exemption, not to get vaccinated. Those individuals are in my view misguided and acting against their own and society’s best interests. These individuals may also be placing their ability to earn a living in jeopardy. These individuals should not construe this award as a victory.

 

[107] The complainant had also argued that the respondent ought to have made the same decision that another federal bargaining agent made (the PSAC, in March 2022) to file a policy grievance about employees being placed on leave without pay under the COVID-19 Policy. I do not find it arbitrary that the AJC did not make the same decision. Overall, its communication with its members demonstrated that it was monitoring the pandemic and communicating its position to them. Its submissions on this complaint demonstrate that it closely monitored the case law on mandatory vaccination policies.

[108] In short, for the reasons noted earlier, I find that the complainant has not made out an arguable case that the AJC acted in an arbitrary manner when it decided not to represent her on her leave-without-pay grievance.

[109] As for the allegation that the respondent’s representation was discriminatory, the complainant has not asserted any facts that would indicate that she was treated any differently than were other members of the AJC. Nor has she asserted that any of the respondent’s decision making on her grievance was tainted by discrimination on the basis of any prohibited ground. As such, I find that the complainant has not made out an arguable case that the AJC acted in a discriminatory manner when it decided not to represent her on her leave-without-pay grievance.

[110] As for the allegation that the respondent’s representation decisions were made in bad faith, I agree with the respondent that the complainant would have to be able to demonstrate that it acted out of personal hostility toward her or that there was “… behaviour on the part of the respondent that was oppressive, dishonest, malicious or spiteful” (see Sganos, at para. 97). The complainant has not done so. All the email communications between the respondent and the complainant were, on their face, polite and direct, without evidence of any malice. As already noted, the respondent offered alternative strategies for recourse and offered to provide what assistance it could with those. Also as noted, the complainant decided to independently file a grievance with her employer against its decision to place her on leave without pay and so was not left with no avenue of recourse in her effort to challenge the employer’s COVID-19 Policy and the fact she was placed on leave without pay.

[111] As I find that the complainant has not made out an arguable case that the AJC’s decision not to provide representation on her grievances was arbitrary, discriminatory, or made in bad faith, I have decided to dismiss this complaint.

[112] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

IX. Order

[113] The complaint is dismissed.

February 15, 2023.

David Orfald,

a panel of the Federal Public Sector

Labour Relations and Employment Board