Court of Appeal Upholds Cumming Dismissal

In March, I made an entry about a police officer, Mr. Cumming, going to Court with a "Duty of Fair Representation" complaint against the police association.  The Superior Court, following a Court of Appeal decision in the prior Renaud case, dismissed the action, concluding that he should have grieved the alleged DFR instead.  I expressed some concerns with the doctrine.

Mr. Cumming brought an appeal to the Court of Appeal for Ontario, and the appeal was recently dismissed.  The primary basis is that the Court felt that Mr. Cumming was attempting to argue that Renaud was wrongly decided, and had not met the procedural requirements for mounting such a challenge:  Put simply, the appellant should have requested a five-judge panel, and failed to do so, and therefore the court was unable to consider whether or not Renaud should be disregarded.

However, the decision also hints that they doubt the merits of Cumming's argument in the first place:

We would add that this collective agreement gives the respondent the exclusive power to bargain on behalf of the members, of which the appellant is one. The Supreme Court of Canada in Canadian Merchant Service Guild v. Gagnon, 1984 CanLII 18 (SCC), [1984] 1 S.C.R. 509, held that this type of exclusive power includes a corresponding obligation on the union of fair representation of all employees in the bargaining unit. We therefore reject the appellant’s submission that the duty of fair representation is not encompassed in this bargaining relationship.

This is something of an oversimplification of the principles at issue, and the language of 'bargaining relationship' is imprecise.  I would agree that the DFR is encompassed in the bargaining relationship.  I take no objection to the proposition from Gagnon that the exclusive power to represent comes tied with a corresponding obligation to represent fairly.  But neither one of those propositions leads to the conclusion that arbitrators have jurisdiction, under the collective agreement, to hear grievances filed by individual employees.

Here's the core issue:  The exclusive power of the Association to bargain on behalf of its members does not arise from the collective agreement, but rather arises by operation of statute.  This, fundamentally, is the point which I made in my earlier entry:  The Duty of Fair Representation is prior to and supercedes the terms of the collective agreement; otherwise, a collective agreement could be negotiated with utter disregard to the DFR.  It is the very right to enter into an agreement on behalf of the employees that gives rise to the DFR in the first place.  (Hence why, under the Labour Relations Act, a DFR is nearly the only employee remedy that doesn't proceed by way of grievance.)

The decision in Renaud has created an anomaly:  See, for example, the Mauro grievance, where Arbitrator Snow sums up Renaud, explains why it has caused confusion, notes in passing that it was "an oral decision, released the day of the hearing", and highlights some of the intuitive problems with the Court of Appeal's interpretation:

The difficulty with conciliating and arbitrating a complaint about a violation of a union's duty of fair representation is this - the language of the Police Services Act does not appear to permit it.  The Act speaks of the parties - that is, an employer and a union - conciliating and arbitrating grievances which have arisen under a collective agreement.  So the Court...concluded that "party" had to be given a "broad and liberal interpretation" and that an individual can be a "party" in an arbitration in which the issue would be whether the union breached the implicit statutory requirement to provide fair representation.

In light of Renaud, therefore, arbitrators now have to see themselves as having jurisdiction to hear individual grievances based on allegations that a police association has violated the DFR.  It's awkward, it's unusual, there is virtually no question that they would have refused jurisdiction had Mr. Renaud gone that way instead of to the courts, and most importantly it's incoherent, because the subject matter of the DFR clearly extends beyond the statutory jurisdiction of arbitrators.

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