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HomeMy WebLinkAbout3786-04-U - Bouchard 05-04-05 BQ.uchard v. Ontario Public Service Employees Union, 2005 CanLII 10359 (ON L.R.B.) Page 1 of2 CanLII COaruKban Legill [nCi:lnJ'!1!llon [nsliruie (~Dc)~ ) ~~~ O~~. QIlt9riQ >> Qllt9riQl,.9t:>QLJrRE:l19tiQI1?S9?rQ>> This document: 2005 CanLll10359 (ON L.R.B.) Citation: Bouchard v. Ontario Public Service Employees Union, 2005 CanLll10359 (ON L.R.B.) Date: 2005-04-05 Docket: 3786-04-U [Cit~qQ~c;i1)iQI1?9nql,.?gi?l?tiQI1] 3786-04-U Michael Bouchard, Applicant v. Ontario Public Service Employees Union, Responding Party v. The Ministry of the Environment and Energy, Intervenor. BEFORE: David A. McKee, Vice-Chair. DECISION OF THE BOARD; April 5, 2005 1. This is an application made pursuant to section 96 of the Labour Relations Act, 1995, s.o. 1995 ch. 1 (the "Act"), in which the applicant Michael Bouchard complains that his bargaining agent Ontario Public Service Employees Union ("OPSEU") has treated him in a manner contrary to section 74 of the Act in his employment relationship with the Ministry of Environment and Energy (the "Ministry"). He seeks certain alternative types of remedies as a result of this alleged breach. 2. OPSEU and the Ministry have filed responses that raise a number of preliminary issues, and seek to have the matter dismissed on the basis of those issues. 3. The first is the issue of delay. The application was filed seven months after the issuance of an arbitration award which is the subject of Mr. Bouchard's complaint. In my view, that is not so excessive a delay that in the absence of some specific prejudice (none of which is alleged here) it would cause the Board to dismiss the application. The motion to dismiss the motion for delay fails. 4. The Ministry raises the issue of the remedy sought, particularly those connected with a new arbitration of the grievance. In light of the decision of the Divisional Court in Re Windsor Western Hospital Centre Inc. and Mordowanec et al. ~~tr~.fl:~.)(., (1986) 56 O.R. (2d) 297 (application for leave to appeal dismissed) and the Supreme Court of Canada in Gendron v. Municipalite de Baie-James }h?~?..<;:l:ll~l::.ll.~?j?.:.~:':.~;), [1986] 1 S.C.R. 401, the relief sought in paragraphs 7 (b) to (t) seem not to be available. The Board directs Mr. Bouchard to make written submissions as to why these heads of relief ought not to be struck from the application. 5. Finally, OPSEU asks that this application be dismissed for failing to plead a prima facie case. Rule 46 of the Board's rules provides: Dismissal Without A Hearing or Consultation 46. Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, http://www.canlii.org/onlcas/onlrb/2005/20050nlrb 11879 .html 9/3012005 BOJlchard v. Ontario Public Service Employees Union, 2005 CanLII 10359 (ON L.R.B.) Page 2 of2 the Board will set out its reasons. That is, the Board has the jurisdiction to respond to such a motion if appropriate. 6. In this case the complaint centres on decisions made by counsel during the course of calling the case at arbitration. While arbitrariness under section 74 is different from the legal issue of barrister's negligence, the Board, for reasons similar to that of a court in such a case, is reluctant to second guess the decision made by a lawyer in the middle of a case. That is not to say that the fact that a lawyer has been retained to handle a matter is a sufficient answer to an allegation of a violation of section 74. Rather, it is simply that the Board will always be cautious about second-guessing the correctness of a decision. In any event, a mere error is not evidence of arbitrary behaviour on the part of a trade union. 7. The response of OPSEU sets out a number of facts that are not dealt with in the application. Before deciding on the motion to dismiss, I wish to give Mr. Bouchard the opportunity to respond to it. Specifically, I direct him to file submissions with the Board stating what statements contained in OPSEU's response he agrees with and which he disagrees with. Specifically, does he challenge the authenticity of the two letters attached to OPSED's response? I further direct him to file any further submissions as to why the facts he alleges constitute a violation of section 74. 8. These submissions on remedy, the facts of the conduct of the grievance, and the issue of whether they constitute a violation of section 74, are to be filed on or before Wednesday, April 27, 2005. The responding parties are directed not to respond to the submissions unless directed to by the Board. 9. Mr. Bouchard should be aware that I may choose to deal with these motions to dismiss some of the relief or all of the claim on the basis of the submissions filed. Submissions on his behalf should contain all submissions he wishes the Board to consider. 10. I will remain seized to deal with the motion to dismiss only. "David A. McKee" -_-"for the Board [8J:lQQtCqnLJl] [CQDOiliQD$....Qf.l,)$e] [AovqQCeQ$eQIch] [Help] [EmngqJ$] LPIiYQGy...PQli.CY] [Mq.il.in9....Li.$J$] [Tech.nicql..li.p.[qIY] [CQnJqctCqoLJI] by ~M wIthe fOederalion of law Sbcie1it<s of Canada ,. http://www.canlii.org/on/cas/onlrb/200512005onlrb 11879.html 9/30/2005