Can members of staff associations sue their empl0yers for wrongful dismissal?  According to the B.C. Court of Appeal, the answer is no if there is a valid employment agreement in place and a recognized association.

In the case of Ferrari v. University of British Columbia, the employee had been an Asset and Material Management Supervisor, working for the University of British Columbia.  At the time he was promoted to this supervisory position, he signed an employment agreement.  The agreement included a term that the employee must become a member of the AAPS (Association of Administrative and Professional Staff), which would be the bargaining agent for certain managerial level employees.  AAPS had grievance and arbitration agreements in place with UBC.

In 2010, Mr. Ferrari’s employment was terminated, allegedly for just cause as a result of “fraudulent use and sale of University vehicles.”  Mr. Ferrari denied these allegations and contacted AAPS to file a grievance.  AAPS decided that it would not proceed with a grievance or take the matter to arbitration.  AAPS felt that there was no reasonable prospect of success.  Mr. Ferrari was therefore left without a remedy.  So he filed a wrongful dismissal lawsuit against UBC in the B.C. Supreme Court.

B.C. Supreme Court Decision

UBC brought a motion to stay the proceedings, which would effectively terminate Mr. Ferrari’s lawsuit.  UBC was successful.  The B.C. court held that there was a valid arbitration agreement in place, and Mr. Ferrari was stuck with it even if the association (AAPS) did not take the matter through the process.  The court recognized that since the association was not actually a union, Mr. Ferrari could not complaint to the Labour Relations Board about unfair representation.  Nevertheless, the B.C. court stayed the action and noted that Mr. Ferrari would have the option of bringing a lawsuit against the association for failing in its duty to represent or for breach of fiduciary duty.  The court did not comment on the likelihood of success of either of these types of actions, which would probably be very slim.

B.C. Court of Appeal

Mr. Ferrari appealed to the B.C. Court of Appeal.  He argued that he should not have been treated as a “party” to an arbitration agreement since he had no control over the process and his case was never taken to arbitration.  He also argued that it would run counter to the interests of justice to deny him any kind of remedy.

The Court of Appeal dismissed the appeal for the following reasons:

1.  It held that Mr. Ferrari was a party to the arbitration agreement since his employment agreement incorporated the arbitration agreement by reference.  In other words, this was similar to the situation involving a collective agreement in a unionized context.  Mr. Ferrari had turned over all of his rights of representation to AAPS when he signed the employment agreement.  Ouch!.

2.  While the Court of Appeal speculated that there may be a deficiency int he AAPS by-laws, that would be a matter between Mr. Ferrari and AAPS and would not involve UBC.  In other words, Mr. Ferrari was stuck with the arbitration clause even though AAPS decided not to take the case to arbitration.  The B.C. Court of Appeal reviewed numerous cases in this area, primarily in the unionized context, and concluded that an employee who is represented by an exclusive bargaining unit in this type of situation is simply out of luck if the association will not proceed.  The only remedy is a claim for unfair representation against the association, where the employee must prove that the association has acted in a manner that is “arbitrary, discriminatory or in bad faith.”    Here is the court’s conclusion on this point:

“By accepting employment in an AAPS position, Mr. Ferrari agreed to appoint AAPS his exclusive bargaining agent with the power to decide whether to advance, settle or arbitrate grievances….”

and

“As between Mr. Ferrari and AAPS, it may well be that the Association’s bylaws are inadequate to ensure the necessary scrutiny of the decision not to proceed with his grievance.  However, that is not an issue that arises between Mr. Ferrari and UBC such that Mr. Ferrari should cease to be bound by the arbitration clause.”

Finally the court concluded that “it is well recognized in the history of labour relations that the model of exclusive representation of employees by their association or union carries with it a correlative transfer of authority over the grievance process subject only to the association’s duty of fair representation.”

Conclusion:

This case illustrates the problems with the “exclusive jurisdiction model” of labour relations in Canada in unionized workplaces.  When the union or association is supportive of the employee, the employee has a chance to be reinstated and is provided with representation at no charge.  This can be great and it can sometimes provide a much better remedy than an employee would have had under Canadian common law.

If, however, the union or association chooses not to proceed with a grievance, the employee is left without any real remedy.

The argument that an employee has the alternative of suing the association for “failure to represent” or for “breach of fiduciary duty” is quite unconvincing.  Employees have a very low rate of success in these types of cases, whether at common law or brought as “unfair representation” cases in labour boards across the country.  More often than not, these types of proceedings simply cause the dismissed employee to incur legal fees without getting anywhere.

A dismissed employee should have the right to file a wrongful dismissal lawsuit if the union or association will not proceed or if the employee would prefer this approach.  Given the huge significance of a person’s employment, people should have the right to fight a dismissal decision and to decide how far they wish to go in that fight.  There are many countries in the world in which unionization does not deprive employees of the right to advance their case, even without union backing.

Employers argue that this subjects them to the potential of a multiplicity of proceedings.  While that is true, the Canadian legal system has cost sanctions for lawsuits that are unsuccessful.  There is a balance here between the employer’s right to avoid inconvenience and the fact that employee is left without a remedy when dismissed from a long service position.

Unions and associations also oppose this approach, since they wish to have exclusive control over the bargaining process, relations with the employer and their own costs.  But if the union is not obligated to take the case forward and will not permit the employee to take it forward, this exclusive jurisdiction is useless to some employees, at a time when they most need this support and representation.

The B.C. Court of Appeal decision likely reflects the law as it exists in Canada today.  But maybe it is time for the Supreme Court to revisit this matter and look at other alternatives to “exclusive representation,” particularly in situations involving employees left without real remedies.

I reviewed the Federal Court decision of AG Canada v. Johnstone in this blog.  The Federal Court of Appeal (FCA) has now upheld that decision and provided a review of the law relating to family status and child care responsibilities.  This is the decision I would like to address, since the other decision is simply a further example of an application of the Johnstone decision by the FCA.

This article is not a recap of the facts, some of which are described in the previous blog article.  Rather this blog sets out the key rulings of the FCA.  The full text of the decision can be found here.

The Court made a number of key determinations.  First of all, it defined childcare obligations that are included under “family status”:

When is Family Status Engaged?

“The child care obligations that are contemplated under family status should be those that have immutable or constructively immutable characteristics, such as those that form an integral component of the legal relationship between a parent and a child.  As a result, the childcare obligations at issue are those which a parent cannot neglect without engaging his or her legal liability.”

The FCA expressly noted that voluntary obligations such as “family activities…extracurricular sports events, etc.,…” are not included.  In other words, according to the FCA, if a person faces “legal obligations” as opposed to “personal choices,” that is when protection on the grounds of family status will be engaged.    This may well be an overly restrictive definition.  A person may feel compelled to take care of a child (or a parent) in certain circumstances where the “legal requirement” is murky.  This contrasts with the manner in which other types of discrimination are engaged, according to the Supreme Court.  For example, to request accommodation of a religious practice, a person is not required to prove that he or she is obligated to perform the particular practice, only that the religious practice is being observed in good faith.  This is the decision of the Supreme Court of Canada in Amselem.

The FCA has defined included childcare obligations in a much narrower fashion for purposes of family status than some of the other rights that are protected, including religion and gender.  Nevertheless, it has likely done so in an effort to restrict the number and types of claims that might be made if family status were to be defined more broadly.

Steps in Claiming Family Status Discrimination

In its decision, the FCA then proceeds to review the specific requirements for making a claim of family status accommodation.

The person must show that the issue is one of “substance and the complainant must have tried to reconcile family obligations with work obligations.”  The employee must be able to show that she or he has “sought out reasonable alternative childcare arrangements unsuccessfully, and remains unable to fulfill her or his parental obligations.”  That is the first hurdle – demonstrating “prima facie” discrimination.

The FCA then sets out a test to be applied to determine if there has been discrimination.  It involves four factors:

a.  The child must be under the care and supervision of the parent;  (In most cases, this will be automatically proven by the very status of the parents as parents, according to the court);

b.  The childcare obligation engages legal responsibility as opposed to personal choice;  This means that the age of the child is taken into account as well as the type of activity at issue.  As the court mentioned – going on a class trip would not be covered.  Being at home to look after a toddler would.

c.  The parent has made reasonable efforts to meet those obligations but has not been able to come up with an alternative solution;  The complainant must show that neither parent can meet their enforceable obligations while working and that there is no accessible solution.  In other words, the complainant must demonstrate a “bona fide childcare problem.”

d.  The workplace rule that is being questioned interferes with the parent’s obligations in a way that is more than “trivial or insubstantial.”

Johnstone Conclusion

In the Johnstone case, the FCA went on to conclude that each of these factors had been demonstrated and that discrimination on the basis of child care status had been demonstrated.

Most of the orders of the Tribunal were upheld, including a significant award of $15,000 for “pain and suffering.”

Conclusion

This is the type of case that the Supreme Court of Canada may well choose to hear if leave to appeal is sought.  That is not to say that the Supreme Court will substantially alter the decision.  That seems unlikely.  However, the Supreme Court may well determine that it would be appropriate for it to set out its own test for reviewing and assessing family status discrimination cases.  As well, it may view it as an opportunity to review the definition adopted by the FCA and consider whether access to family status protection should be broader.

Alternatively, the Supreme Court may simply choose not to grant leave (i.e. not to hear the case), which would give this FCA decision even greater weight as a Canadian legal precedent.

For now, and quite possibly, for good, it is clear that “family status” under Canadian human rights law includes child care obligations.  Employers are required to take requests for accommodation very seriously and to make significant efforts to work with employees who require accommodations to deal with childcare challenges.