Case information

Labour relations — Union’s duty of fair representation — Grievance — Arbitral award contested by employee — Conflict of interest — Interest — Whether courts below erred in holding that union retains its monopoly on representation even where it is in real, personal and substantial conflict of interest with member — Canada Labour Code, R.S.C. 1985, c. L 2, ss. 37 and 99.

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After being suspended and then terminated by his employer, the applicant, represented by his union, filed two grievances with the Canada Industrial Relations Board (“CIRB”) to contest those penalties. The union then reached a settlement with the employer for the suspension and withdrew the grievance against the termination. The CIRB allowed the applicant’s complaint on the basis that his union had breached its duty of fair representation in respect of both grievances, and referred both grievances to arbitration, authorizing the applicant to retain counsel of his choice at the union’s expense. An arbitrator ultimately dismissed those grievances. The applicant, unhappy with this result, sought leave from the CIRB to apply for judicial review in his own name, which the CIRB denied on the ground that it did not have jurisdiction to consider this request and because the applicant had not first asked the union to present the application for judicial review. In the meantime, the applicant had personally filed his application for judicial review of the arbitral award. The Superior Court granted the union’s motion to dismiss and dismissed the applicant’s application for judicial review, finding that he lacked a sufficient interest to bring the proceeding. A majority of the Court of Appeal dismissed the appeal.