Centre Hospitalier Régina Ltée v. Labour Court

(a) Sources of the Duty of Fair Representation

Even before the amendments to the Labour Code, including ss. 47.2 to 47.6, were introduced in 1977, an employee association had a duty of fair representation in respect of its members. This duty emerged in the decisions of the U.S. Supreme Court in mid‑century, first in Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192 (1944), and culminating in Vaca v. Sipes, 386 U.S. 171 (1967). In these decisions, the Court set out the principle that an employee association's duty of fair representation is the necessary corollary of its right to exclusive representation of the employees comprised in the bargaining unit. The admission of this theory into Canadian labour law was the subject of a more detailed review in Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 000, (appeal heard on the same day), and it is therefore unnecessary to repeat the analysis here. Suffice it to say that the existence of such a duty imposed on unions was recognized and applied by Canadian courts before its codification, inter alia by this Court in Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509.

(b) Codification in Labour Code

The Quebec Labour Code brings together all or most of the principles and rules applicable to collective labour relations in Quebec, such as the formation and certification of unions, the principle of exclusive representation, the procedure for negotiating collective agreements, the settlement of grievances, and finally, available recourses to specialized administrative tribunals. This Code is in fact an exhaustive document which, when it was adopted, replaced a heterogeneous collection of legislation and which has anchored the collective agreements containing most of the substantive rights of employees (see F. Morin, Rapports collectifs du travail (1982), at pp. 19‑26).

In 1977 the Quebec legislator undertook a significant reorganization of collective labour relations, giving increased rights both to unions ‑- for example, prohibiting strikebreakers (ss. 109.1 et seq. L.C.) and introducing a system of compulsory check‑off of union dues by source deductions (s. 47 L.C.) -‑ and to employees individually -‑ for example, the right to see the union's financial statements (s. 47.1 L.C.) and the guarantee of employment for an employee who is not a member of the union when a closed shop clause comes into effect (s. 63(a) L.C.) One of the major changes, which is of particular importance here, was the introduction of ss. 47.2 to 47.6 L.C., codifying the union's duty of fair representation and in return giving the employee a remedy in certain situations when this duty is breached.

The duty of fair representation as codified in s. 47.2 L.C. does not differ greatly from that formulated by the courts prior to 1977. In Gagnon, supra, Chouinard J. analyzed the duty of fair representation as it had developed at common law, and the duty as it was later codified in the Canada Labour Code, R.S.C. 1970, c. L‑1 (s. 136.1), the British Columbia Labour Code, R.S.B.C. 1979, c. 212 (s. 7(1)), the Ontario Labour Relations Act, R.S.O. 1980, c. 228 (s. 68) and finally s. 47.2 L.C. of Quebec. He concluded that s. 47.2 L.C. is identical in content to what the courts and authors had developed before its codification in various Canadian statutes. As Robert P. Gagnon wrote in his recent work (Droit du travail (1988), in Cours de la formation professionnelle du Barreau du Québec, 1988‑1989, vol. 6, at p. 104:

[TRANSLATION] By adopting s. 47.2 of the Labour Code in 1977 the Quebec legislator finally, after several others had done so, codified the law resulting from court judgments regarding a certified union's legal duty of representation.

In my opinion the scheme established by ss. 47.3 to 47.6 L.C. provides the method which the legislator felt was necessary to enforce a union's duty of fair representation, thereby ensuring a proper balance of reciprocal obligations and rights. While the Canada Labour Relations Board enjoys some leeway regarding remedies when a union breaches its duty of fair representation (ss. 187 to 189 of the Canada Labour Code), the Quebec legislator has established a specific structure setting out the stages in any remedy based on such a breach. The first stage consists of a complaint to the Minister of Labour, who then appoints an investigator to try to settle the dispute between employee and union by mutual agreement (s. 47.3 L.C.) It should be noted that the legislator has limited the use of this procedure to cases of dismissal or disciplinary sanction, in other words the most serious interferences with an employee's rights. In the second stage, if no agreement is reached within fifteen days of the investigator's appointment (a period increased to thirty days by S.Q. 1983, c. 22, s. 24), the employee may file an application with the Labour Court asking that his claim be referred to arbitration (s. 47.4 L.C.) Finally, if on reviewing this application the Court finds that the union has acted in an arbitrary or discriminatory manner, been seriously negligent or acted in bad faith, the burden of proof of which is on the employee, it may authorize arbitration of the claim (s. 47.5 L.C.) A finding that the duty of fair representation has been breached is thus the central feature of such a remedy. Section 47.6 L.C. provides that in such a case an employer cannot invoke against the employee the failure to observe the time limits provided for in the collective agreement.

(c) Fair Representation and Settlement of Grievances

The duty of fair representation raises thorny problems when, as here, by its very function the union has an obligation to defend the interests of members of the bargaining unit as a whole, as well as those of an individual employee. These interests can be and often are indeed divergent.

In this connection I should say at the outset that a union's duty of fair representation does not cease in relation to a grievance proceeding once the grievance has gone to arbitration. It may continue even after the arbitrator's final decision (for example, in Asselin v. Travailleurs amalgamés du vêtement et du textile, local 1838, [1985] T.T. 74, at p. 93, where the Labour Court concluded the union had a duty to evoke the arbitrator's erroneous decision), subject to Gendron v. Municipalité de la Baie‑James, supra, which held that in such a case the s. 47.5 L.C. procedure could not be applied. As Gagnon, LeBel and Verge point out, this duty of fair representation, as a corollary of the exclusive right of representation, must inform all the union's action throughout (Robert P. Gagnon, Louis LeBel and Pierre Verge, Droit du travail (1987), at p. 311):

[TRANSLATION] The duty of representation will end with the loss of certification. Until that happens, the union will be held to it at all stages of the collective representation, both in negotiating the content of the collective agreement and in its implementation as it affects one or other of the employees.

There is thus no question that at the stage the grievance was at in the case at bar, that is, set for hearing but not yet heard by the arbitrator, the union's duty of diligence still existed.

In Gagnon, supra, this Court announced the general principles that should govern an employee association (or union) when it is acting as the representative of an employee in a grievance proceeding. The case involved the Canada Labour Code (before the introduction of s. 136.1 expressly imposing a duty of fair representation on unions). As we have seen, however, there is no difference between this duty and the one codified in s. 47.2 L.C. Examining the rules applicable to the duty of fair representation, Chouinard J. wrote for the Court (at p. 527):

The following principles, concerning a union's duty of representation in respect of a grievance, emerge from the case law and academic opinion consulted.

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.