In Watson v CUPE and Air Canada ( 2022 CIRB 1002) an unanimous decision of the Canada Industrial Relations Board dealt with a complaint by a member of the bargaining unit who claimed that the unions’ refusal to advance policy grievance against Air Canada’s mandatory vaccine policy was arbitrary .

Here is the Tribunal’s rationale

3. Balancing the Interests of Members

[62] The Board has repeatedly stated that it is not necessarily a breach of the DFR when a union makes a decision that favours one group of employees over another (see McRaeJackson; and Crispo, 2010 CIRB 527). Unions routinely make difficult decisions that require balancing the interests of various groups amongst its membership. This is true in collective bargaining and in the decisions to present grievances.

[63] The complainant asserts that the union ignored the concerns and interests of approximately 10 percent of the members in the bargaining unit, who will bear the consequences of the policy. She maintains that the union acted in bad faith as it adopted a dismissive attitude and did not inquire sufficiently or communicate with those members who raised questions or concerns with respect to the mandatory vaccination policy.

[64] In the context of this policy, there is no doubt that those members who choose not to be vaccinated or not to disclose their vaccination status will be impacted differently than those who comply with the policy. However, the duty that is imposed on the union does not mean that it has the obligation to pursue every grievance or to intervene in every situation where an individual employee’s interests are affected; it means that the union must consider the interests of all members of the bargaining unit and act fairly. The Supreme Court of Canada made the following comments in Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298:

The principles set out in Gagnon clearly contemplate a balancing process. As is illustrated by the situation here, a union must in certain circumstances choose between conflicting interests in order to resolve a dispute. Here the union’s choice was clear due to the obvious error made in the selection process. The union had no choice but to adopt that position that would ensure the proper interpretation of the collective agreement. In a situation of conflicting employee interests, the union may pursue one set of interests to the detriment of another as long as its decision to do so is not actuated by any of the improper motives described above, and as long as it turns its mind to all the relevant considerations. The choice of one claim over another is not in and of itself objectionable. Rather, it is the underlying motivation and method used to make this choice that may be objectionable.

(pages 1328–1329)

[65] In this case, the union supported vaccination generally as an effective means of ensuring the health and safety of its members. Even if this position by the union is in opposition to certain members’ views, this, in and of itself, is not sufficient to find the union in breach of its DFR. In the current pandemic, there is overwhelming scientific evidence of the effectiveness of vaccines in the effort to eradicate COVID-19. Health authorities across Canada have stated that vaccination is one of the most effective ways to prevent severe illness, hospitalization and death from COVID‑19.

[66] As Arbitrator Stout stated in Electrical Safety Authority:

[6] I note that this case is not about the merits of being vaccinated or the effectiveness of COVID‑19 vaccines. The science is clear that the COVID-19 vaccines currently being used are safe and effective at reducing the likelihood of becoming seriously ill or dying from this horrible disease. Moreover, vaccinating the population is necessary in order to secure the fragile healthcare system and eventually put this pandemic behind us.

[67] The complainant and other members may be opposed to vaccination, but the scientific evidence overwhelmingly points to vaccination as the most effective tool to get us past these unprecedented global circumstances. The union took a stance that is aligned with this evidence. A large majority of the membership supports the vaccination policy, as is demonstrated by the high vaccination rate amongst the employees in the bargaining unit. There is simply no evidence to suggest that the union acted in bad faith in adopting a position that supports and favours vaccination for its members.

[68] The complainant suggests that the union failed to consult with those members that opposed the policy and that it did not provide a rationale for not advancing their concerns through the grievance procedure. However, the union is not obliged to consult each and every member when assessing whether to challenge an employer policy that impacts the membership in different ways. In a case involving a mandatory Hepatitis A vaccination policy, the British Columbia Labour Relations Board dismissed an employee’s allegation that the union had acted arbitrarily or in bad faith because it had not consulted with the membership prior to engaging in discussions with the employer. The Board agrees with the following reasoning in Gordon v. Hotel, Restaurant & Culinary Employees & Bartenders Union, Local 40, BCLRB No. B138/2004; 2004 CanLII 65459 (Gordon):

Gordon also suggests that the Union discussions with the Employer about the mandatory inoculation program were improper because employees were not consulted. As the exclusive bargaining agent, part of the Union’s job in representing employees is to engage in discussions with the Employer regarding workplace issues: see, for instance, Section 53 of the Code. While consultation with employees over changes in working conditions such as occurred at the Capri is encouraged, it is not necessarily a requirement under the Code. As long as the Union does not act in a way that is arbitrary, discriminatory or in bad faith the duty of fair representation is not breached. In this case, the Union satisfied itself that the Employer’s actions were reasonable and legally permissible, and it ensured that employees were permitted the exceptions available to them by law. In the circumstances, I do not find that the Union’s agreement to the program or its failure to consult employees beforehand supports a breach of Section 12.

(page 9)

[69] Although CUPE ACC did not engage in individual discussions with the complainant, it did communicate regularly with the membership to provide status updates in what was and continues to be a rapidly changing environment. Through these communications, the union made it clear that it was aware of the different views on the issue of vaccination. It was also aware of the complainant’s specific concerns communicated to it through Ms. Perrin’s letter of August 30, 2021. As this matter concerned a policy grievance, it concerned the membership as a whole. The union had to make a decision in the interest of all the employees in the bargaining unit. As in Gordon, the union satisfied itself that the policy was within the parameters allowed by the legislative framework and provided for exceptions based on human rights grounds. Further, the union made clear that it would pursue individual grievances to seek accommodations where those were possible. An individual grievance is in fact proceeding with respect to Ms. Watson’s particular circumstances. The Board notes that it would be premature at this stage to pronounce on the union’s approach in that process.

[70] The Board is satisfied that the union did not act in an arbitrary or discriminatory manner or in bad faith in its approach and communication with the membership as it relates to its decision not to pursue a policy grievance regarding the employer’s vaccination policy.

4. Management Rights Clause in the Collective Agreement

[71] The complainant also argues that the collective agreement does not contemplate a vaccination policy and that the employer has no management right to implement such an invasive medical procedure as a condition of employment. In her view, the union should have grieved the policy or demanded that the employer negotiate the terms of the policy. Failure to do so, in her view, is a breach of the union’s duty to represent her fairly.

[72] The union’s interpretation of the collective agreement differs from that of the complainant. The union is of the view that the absence of specific language in the collective agreement does not mean that the employer’s vaccination policy is invalid. Although the union recognizes that it can challenge a new policy through a grievance, it is of the view that the management rights clause in the collective agreement does not prevent the employer from introducing new policies, as long as these are not inconsistent with terms of the collective agreement or other applicable legislation, such as the CHRA.

[73] The Board accepts that the union has the ultimate responsibility to decide on the interpretation of the collective agreement (see Crispo) 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.

IV. Conclusion

[74] After careful consideration of the complainant’s allegations and the written submissions of the parties, the Board is not persuaded that the union’s approach and its decision not to pursue a policy grievance challenging the employer’s COVID-19 vaccination policy was arbitrary, discriminatory or made in bad faith. The DFR complaint is dismissed.

[75] This is a unanimous decision of the Board.

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In Nader v. University Health Network, 2022 ONSC 447 Justice Black had a situation where the employee was hired under an indefinite term with a 12 month termination clause. During the course of his employment he was seconded to another institution under a two year secondment agreement between the employer and another health care entity. The secondment agreement was terminated by the non employer entity and since the employer had no vacancies they terminated him and eventually paid out his 12 month termination pay.

The balance remaining in the two year secondment agreement exceeded 12 months so the Plaintiff claimed that the Secondment Agreement prevailed.

In finding that the employment contract prevailed the Judge said :

[57] These cases appear to confirm that, against the backdrop of a continuing employment agreement, pursuant to which the original employer evinces an intention to remain the employer and retain responsibility for salary and benefits, a secondment agreement is not itself an employment agreement, but something other, and in its own category.

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Arbitrator John Stout in a recent award held that it was reasonable for Hydro One to suspend without pay workers who refused to comply with the COVID policy of either being vaccinated or subject to regular testing.

Here is what he said :

[11] I am also of the view that prohibiting employees from attending work if they do not provide proof of vaccination or a negative COVID-19 RAT is fair and reasonable in the circumstances of this pandemic. Hydro One is complying with their obligations under the Occupational Health & Safety Act, to take reasonable precautions to protect the health and safety of their employees and the public that they serve. The Policy is a reasonable compromise that respects employee rights and balances the various important interests.

[12] In terms of accommodating the Grievors with remote work, I agree with Hydro One that such an accommodation is not necessary or required in these circumstances. Most of the Grievors could not perform their work remotely in any event. It is also not necessary to provide remote work where a reasonable alternative has already been provided to those employees who refuse to disclose their vaccinated status (i.e., RAT). If employees refuse the reasonable alternative, then that is their free choice but Hydro One has no further obligation to accommodate such individuals.

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In  Karolidis v. Orthotic Holdings Inc., Justice Chalmers was assessing costs after the acceptance of a Rule 49 offer which was accepted prior to a summary judgement motion .

In discussing what various offers were made during the course of the litigation, the Judge said the following :

“At the mediation on March 24, 2021, the Defendant made an offer, which was 7.7 months’ notice, which was less than the 12 months’ notice offered at the time of termination. ”

Rule 24.1.14 of the Rules of Civil Procedure reads as follows:

“All communications at a mediation session and the mediator’s notes and records shall be deemed to be without prejudice discussions .”

Questions to ponder;

1. Does Rule 24.1.14 mean that the Judge ought not to have considered any offer made at the mediation ?

2. Or, because the Rule only makes the contents of the mediation into a without prejudice discussion and does not explicitly bar it from being revealed to the Court, the Court can consider the contents of the mediation offer just like it can consider any offers made outside the mediation?

3. If the parties signed a mediation agreement where they agreed to keep the contents of the mediation strictly confidential, would that have made a difference ?

I look forward to your thoughts .

In Nahum v Honeycomb Hospitality ( no citation ) Justice Sossin denied the defendant’s motion to stay the enforcement of a summary trial decision which had been upheld by the Divisional Court which stood for the proposition that the reasonable notice period could be extended where the plaintiff was pregnant at the time of termination even when the employer was unaware of the pregnancy.

The Court found that there was a serious issue to be determined but that there was no evidence that to have to pay the judgement of $56,000 at this time would result in the defendant suffering irreparable harm.

Th Court ordered the Defendant to pay the monies into the trust account of its own lawyer pending the outcome of the appeal and ordered costs to the plaintiff in the sum of $5,000. This means that so far the Defendant has been ordered to pay costs of approximately $36,000 on a judgement of $34,000.

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In Flack v Whiteoak Ford Lincoln Sales, ( 20121 ONSC 7176 ) Justice Dunphy gives a very thorough analysis of how to weigh the various Bardal Factors of age, length of service, character of employment and COVID in relation to this short service employee.

He also said this about my very own Wrongful Dismissal Database ( WDD) available through Thomson Reuters:

[31] The defendant for its part relied quite heavily on statistical tables comparing large numbers of broadly similar cases suggesting a range about 2.24 months’ notice for salespeople in the 58-70 age bracket with less than one year of service.

[32] In my view, the range suggested by databases such as the “Fisher Database” can provide a useful view of the general range applicable, but this is only a starting point and not an end point.

Having said that a detailed analysis is required for each case on its own merits , he then awards a notice period in line with statistical average as determined by the WDD , or as he calls it the “Fisher Database”.

If you want to find out more about the WDD go to :

www.wrongfuldismissaldatabase.com

If you wish a copy of this case email me at barry@barryfisher.ca

In AG Growth International Inc v Dupont ( 2021 ABQB) Justice Little, sitting on appeal from a decision of the Provincial Court found that the trial judge had made a error of law when he failed to begin his analysis of the actions of the Plaintiff by starting with the premise that a sexual assault is automatically at the high end misconduct.

This is a brief summary of the incident:

a) before January 9 RT ( a female coworker)  and Mr. Dupont were workplace acquaintances, but they were not good friends;

(b) at about 8:00 a.m. on January 9 Mr. Dupont asked RT to go on a date with him and in reply she said “maybe”;

(c) at about 9:25 a.m. on January 9 Mr. Dupont approached RT while they were both working at the Westeel facility in Olds, Alberta and asked her if she was chilly and said “Now that you’re single we can go on a date”;

(d) Mr. Dupont then reached over and lifted RT’s hoodie and Tshirt, exposing the area of her body extending from her bellybutton to her bra, including her bra;

(e) Mr. Dupont did this because he wanted to flirt with and “hit on” RT, and he wanted to show her that he “liked her a lot”;

(f) Mr. Dupont did not intend to lift RT’s T-shirt when he lifted her hoodie;

(g) Mr. Dupont did not intend expose any part of RT’s body when he lifted her hoodie;

(h) Mr. Dupont’s actions caught RT by surprise, and caused her to be anxious, distressed and embarrassed, and caused her to fear Mr. Dupont;

(i) RT immediately swore at Mr. Dupont and slapped his hand away;

This what the Court said about the correct way to start the analysis in a case of this nature :

IV. Analysis

Ground One: Level of Seriousness of Misconduct

[8] Determination as to whether summary dismissal is justified requires an analysis of the proportionality of the employer’s response to the misconduct. That analysis begins with a determination of the seriousness of the misconduct.

[9] Consideration of the following excerpt from the trial decision suffices to dispose of the appeal on this first ground:

[87] In the present case, Mr. Dupont’s action constituted a single, brief and isolated incident of unwanted touching of RT, for the purpose of flirting with RT in order to pursue a romantic relationship with her. Upon realizing that his advances were not welcome he did not persist, but immediately desisted and walked away.

   [88] While I do not discount the effect that his actions had upon RT, they fall at the low end of the “spectrum of seriousness” referred to at para 205 of Foederer and cited at para 90 in Willow Park Golf Course Ltd.

[10] A finding that intentional and unwanted touching for a sexual purpose (Trial decision para 83) constitutes sexual harassment at the low end of the spectrum of seriousness ignores our Court of Appeal’s determination that sexual assault is at the high end of that spectrum:

Sexual assault, by its very definition, is serious misconduct: Calgary (City) v CUPE Local 37, 2019 ABCA 388 at para 11)

[11] Recognizing that Calgary v CUPE dealt with the standard of review of an arbitrator’s decision, it nevertheless stands for the proposition that in this case, the trial judge’s starting point in the proportionality analysis should have been that the impugned conduct was on the high end of the spectrum of seriousness.

…

[15] Since a sexual assault is what occurred, the whole analysis ought to have been conducted with that finding in mind: Calgary v CUPE para 33

[16] Having commenced the correct analysis but from the incorrect starting point, the trial judge’s decision cannot survive review on a correctness standard.

My Comments :

Presumably the analysis should have been as follows

1) Did the conduct amount to sexual assault ?

2) If yes, then this is serious misconduct .

3) Are there any mitigating factors which would indicate that termination for just cause  was  a disproportionate  response ?

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