- June 9, 2021
- Duty of Fair Representation
Background
Adam Shadbolt filed a complaint against the Union alleging a violation of s.10 of the Labour Relations Code for charging him under their Constitution and By-Laws. Shadbolt became Union President in February 2014 and was temporarily suspended from his elected office pending the outcome of his charges on February 6, 2015. He was informed by affidavit that he was charged under Articles 11.1 (Impeachment of Officers) and 12.1 (Discipline of Members) pursuant to the Constitution & Bylaws.
Kevin McCloy, another Union member, agreed to act as Shadbolt’s representative at the Trial. Eventually McCloy became unable to represent him for health reasons. Shadbolt obtained an adjournment from the Union’s Trial Board on February 28, 2015, rescheduling the date to March 6, 2015.
Due to the tight timeline Shadbolt decided he would need legal representation from a lawyer. Shadbolt retained legal counsel at Banister & Company on March 4, 2015. On that day legal counsel wrote advising the Trial Board of the retention of counsel.
Josef Chung responded for the Trial Board. According to Chung only a member of the Alliance can act as counsel according to the Union’s Constitution & Bylaws. Legal counsel responded by letter stating that s. 10 of the Labour Code protected the right to legal counsel of choice. Another adjournment was requested until the board could adjudicate the issue. Chung responded on March 5, 2015, stating that the adjournment had not been granted and all internal remedies had been exhausted. The trial went ahead on March 6, 2015.
The position of Shadbolt is that he was entitled to legal counsel of choice. He submits that he has been denied his right to natural justice by being denied legal counsel and another adjournment. He seeks a declaration that his right to natural justice was violated, that the section of the Constitution and Bylaws are in violation of s.10 of the Code, costs, and a declaration that the Union Trial is invalid.
The Union submits that the complainant must exhaust internal appeal mechanisms before seeking recourse from the Board. In the alternative if their position is incorrect the Union agrees to set aside the Trial Board decision and conduct a trial de novo. The Union argues that the alternative position makes the current proceedings moot.
DECISION
The Labour Board held that the proceedings before the Trial Board constituted a serious disciplinary matter to which there is a right to legal counsel. Article 12.7 of the Constitution & Bylaws is a breach of s.10 (1) rights under the Code. The Labour Board declared that the Trial Board decision is invalid. The Labour Board also held that the threshold of violation of natural justice committed in this case does not warrant costs.
ANALYSIS
Pursuant to s.10 (1) of the Code every person has a right to natural justice in respect of disputes relating to matters in the constitution of the trade Union, and discipline by a trade Union. This provision is directly related to the impeachment and potential expulsion of Shadbolt. As a result, the Board held that it has jurisdiction over the matter.
It is general Board policy to encourage the development of internal procedures to deal with internal union complaints and to require employees to exhaust internal mechanisms before the Board will entertain such complaints. However, the Board has held that where the internal mechanism available to the employee would be impractical, unfair or uneconomic, the Board will depart from its usual policy. In this case, the Board held the denial of the right to counsel by the Trial Board subject to internal appeals would be an extraordinary delay that would fall under the general exception. The Trial Board’s internal appeal procedure would not conclude until the International Union’s convention in July 2017 under article 13.1 of the bylaws. The Board held that this makes the internal mechanisms impractical, unfair and uneconomic.
The Union argued that it has offered to provide a trial de novo and therefore the matter before the Labour Board is moot. . Applying the principles from Health Employee’s Association of British Columbia (Fraser Health Authority and Burnaby Hospital), the Board noted that the case at hand has an adversarial context, a finding of mootness would not conserve resources, and that this is an issue of a reoccurring nature before the Union. The breach of natural justice is not an exceptional occurrence, and arises directly out of a provision of the constitution which the Board inferred would apply to subsequent proceedings. In light of these facts, the Board exercisded its discretion to hear the merits of the case.
Article 12.17 of the Constitution & Bylaws is clear that a member of the Alliance in good standing as counsel, cannot be legal counsel. The Board restated principles first articulated in Marilyn Coleman BCLRB No. B282/95 28 CLRBR, which considered the nature of natural justice in the context of s.10 of the Code. According to the board in Marilyn Coleman, “in regard to serious matters, such as a suspension, expulsion or removal from office there is a right to counsel”. The Board quoted the British Columbia Court of Appeal in Boe v Hamilton (1988) BCLR (2d) 49, stating that “where the potential consequences are serious enough there is a right to counsel”. The possible penalty according to the Constitution & Bylaws Article 11.13, includes expulsion, suspension and/or fine. The Board held that these proceedings concern a serious disciplinary matter, and therefore, that the Trial Board’s decision to deny the complainant legal counsel based on Article 12.17 of the Constitution is a breach of Section 10(1) of the Labour Code.
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