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UNIONS - Duties - Failure to refer grievance

Monday, August 26, 2019 @ 9:53 AM  


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Appeal by Robson from an order striking certain paragraphs from her statement of claim. Cross-appeal by the Union from the refusal to strike two other paragraphs from the statement of claim and to stay the action pending the results of an inquiry before the Human Rights Commission. The appellant was a member of the Union, whose collective agreement with the University of New Brunswick provided for mandatory retirement at the age of 65. After being forced to retire, the appellant filed a complaint with the Human Rights Commission against the University and the Union asserting they discriminated against her on the basis of age. After the Union refused to file a grievance on the appellant’s behalf to challenge her mandatory retirement, the appellant commenced an action against the Union claiming damages for breach of its duty of fair representation. The motion judge struck the appellant’s claim for breach of duty of fair representation based on the Union’s failure to file a grievance but allowed the claim to continue based on the Union’s negotiation of the collective agreement.

HELD: Appeal and cross-appeal dismissed. There was no evidence before the motion judge to support the appellant’s assertion that the Union had a duty to file a grievance on her behalf. The appellant’s claim did not arise from the fact the employer’s actions in terminating her violated a provision of the collective agreement but because the employer terminated her in accordance with the collective agreement. The motion judge properly exercised his discretion to strike the claim after finding the appellant failed to plead the material facts necessary to prove on what basis her grievance would have been successful. The motion judge correctly found there was a sufficient factual and arguable basis for a trial with respect to the appellant’s claim for damages arising from the Union’s actions in negotiating the collective agreement. There was no error in the motion judge’s conclusion that there was a sufficient causal link between the appellant’s loss of employment and the alleged breach of the duty of fair representation in negotiating the collective agreement to raise a triable cause of action. The motion judge correctly determined the basis of the appellant’s civil action could be distinguished from the nature of her complaint before the Human Rights Commission.

Robson v. Canadian Union of Public Employees, Local 3339, [2019] N.B.J. No. 189, New Brunswick Court of Appeal, M.E.L. Larlee, B.L. Baird and L.A. LaVigne JJ.A., July 11, 2019. Digest No. TLD-August26019003