Davidson v. Nova Scotia (Government and General Employees Union)

Davidson v. Nova Scotia (Government and General Employees Union) Court Supreme Court Date 2024-10-16 Citation 2024 NSSC 352 Docket 527602 Judge/Registrar/Adjudicator Smith, Ann E. (Honourable Justice) Document Type Decision Decision Content SUPREME COURT OF Nova Scotia Citation: Davidson v. Nova Scotia (Government and General Employees Union), 2024 NSSC 352 Date: 20241016 Docket: 527602 Registry: Halifax Between: Jennifer Davidson Applicant v. Nova Scotia Government and General Employees Union, NSGEU Defendant DECISION Judge: The Honourable Justice Ann E. Smith Heard: April 11, 22 and 23, 2024, in Halifax, Nova Scotia Counsel: Jennifer Davidson, on her own behalf William Mahody, K.C and Christine Murray for the Defendant By the Court: Background [1] In what circumstances can a member of a union sue that union in Supreme Court? [2] It depends. It depends on the essential character of the dispute and not necessarily how the union member frames their claim. That is what the jurisprudence, including decisions of the Supreme Court of Canada instructs. [3] A determination of the essential character of the dispute leads to its jurisdictional outcome. [4] In this case the employee is the Plaintiff, Jennifer Davidson. In an action filed in Supreme Court naming the Nova Scotia Government and General Employees Union (NSGEU) as defendant, Ms. Davidson claims against her union, the NSGEU for various alleged wrongs done to her by her union. [5] The NSGEU brought a motion before this Court requesting that Ms. Davidson’s action against it be dismissed on the basis that the Court does not have jurisdiction to hear this claim. Introduction [6] A review of the evidence before the Court situates the NSGEU’s challenge to this Court’s jurisdiction to hear and determine Ms. Davidson’s claims against it. [7] Ms. Davidson states in her Statement of Claim that she paid union dues to the NSGEU for services she claims she did not receive. Ms. Davidson says that the NSGEU breached various provisions of the collective agreement between the NSGEU and her employer, the Province of Nova Scotia. Ms. Davidson estimates that she paid $22,106 in union dues during the course of her employment from 2008 to 2022. Her claim also seeks the payment of $11,000 for legal fees and $50,000 in “emotional damages”. [8] The difficulty with Ms. Davidson’s claim is that an employee who says that their union did not fairly represent them, which is another way of saying failed in their duties to a union member, generally must bring a claim to the Nova Scotia Labour Board. That Board is a specialized tribunal established by, and tasked under the Nova Scotia Trade Union Act R.S.N.S. 1989, c. 475 to deal with the very kind of claim which Ms. Davidson attempts to have heard in Supreme Court. [9] Ms. Davidson represented herself before this Court. It is clear that she is very concerned about certain matters which unfolded while she was employed as a social worker with the Province. Ms. Davidson cross-examined Odette McLeod, one of the NSGEU representatives who dealt with her as a result of those matters and whose affidavit NSGEU filed in support of its motion to dismiss Ms. Davidson’s claim. [10] It was abundantly clear to this Court as a result of that cross-examination, the content of Ms. Davidson’s own affidavit and her submissions to the Court, that Ms. Davidson has real concerns about how her union dealt with her as a result of a workplace incident which occurred in December 2019. As described to this Court, that incident had a severe impact on Ms. Davidson. [11] Ms. Davidson says that in 2019 she was employed by the Nova Scotia Department of Community Services as a casework supervisor for Child Welfare, Long Term Protection in the Kings District Office. Ms. Davidson states that she was stalked and followed by three men who were clients, as a result of a child welfare referral that she made during the course of her work as a social worker. Ms. Davidson says that she was threatened and blocked by these individuals from leaving her office and was followed and had photographs and videos taken of her without her consent. She feared for her safety and that of her family. [12] In early January 2020, as a result of actions taken by Ms. Davidson, which I understand she feels arose from those workplace events, she was charged with, and found guilty of mischief, assault and uttering a threat by decision of a judge of the Nova Scotia Provincial Court. [13] Part of the relief which she seeks in the within claim is to have NSGEU reimburse her legal fees, or part of those fees, arising from her retainer to a criminal defence lawyer to represent her in connection with those criminal charges. Ms. Davidson sought similar relief, i.e., that her employer reimburse her for lost wages and her legal fees to defend herself against the criminal charges together with other forms of redress in a grievance she filed against her employer on November 16, 2020 (the “Grievance”). [14] Ms. Davidson appealed her conviction by the Provincial Court to the Nova Scotia Supreme Court. Her appeal was denied by decision dated October 7, 2022. [15] Based upon a legal opinion on the elements of the Grievance, the NSGEU decided to withdraw the Grievance on the basis that the union stood little chance of succeeding with it. This withdrawal was communicated to Ms. Davidson by Odette MacLeod in a letter dated July 24, 2023. [16] In that same letter Ms. MacLeod advised Ms. Davidson that she could appeal the union’s decision not to proceed further with the Grievance, but she had to submit a notice of appeal within 15 calendar days of the date of the letter, i.e. by August 8, 2023. The NSGEU did not hear from Ms. Davidson until September 10, 2023 at which time Ms. Davidson wrote a letter to Ms. MacLeod stating that she wished to appeal the decision of the NSGEU to withdraw the Grievance. The NSGEU took the position that it would not proceed with an appeal as Ms. Davidson’s request was outside the 15 day deadline. On September 28, 2023 the Executive Director of NSGEU, Sean Fuller, so advised Ms. Davidson in a letter to her dated September 28, 2023. [17] Ms. Davidson commenced the within action on October 19, 2023. [18] The NSGEU moves pursuant to Civil Procedure Rule 4.07 to have the action dismissed. Issue [19] Although Ms. Davidson in many ways argued the merits of her claim before this Court, the only issue for the Court to decide on this motion is whether the Supreme Court has jurisdiction to adjudicate it. The Civil Procedure Rules - Resolving Questions of Jurisdiction [20] Rule 4.07(1) allows a party to bring a motion to determine an issue before trial. NSGEU relies on Rule 4.07(1) which provides: Lack of Jurisdiction 4.07(1) A defendant who maintains that the court does not have jurisdiction over the subject of an action, or over the defendant, may make a motion to dismiss the action for want of jurisdiction. Law and Analysis The Duty of Fair Representation Generally [21] Earlier I referred to the duty a union has to its members called the duty of fair representation. The duty of fair representation arises from the union’s exclusive bargaining rights. A union must represent all employees within the bargaining unit fairly and without discrimination. The union must act in good faith and avoid arbitrary conduct. [22] In Gendron v. Supply & Services Union of the Public Service Alliance of Canada, [1990] 1 SCR 1298 (SCC), the Court provided an overview of the origin of the duty of fair representation: 26 The duty place on unions, as exclusive bargaining agents, to fairly represent the employees in their unit has its origin in American case law. The duty was originally applied and defined in the context of suits by employees alleging that their unions had engaged in discriminatory practices. The first cases to recognize such a duty and offer a [page 1310] rationale for its imposition are the companion cases of Steele v. Louisville & Nashville Railroad Co., 323 U.S. 192 (1944) and, Tunstall v. Brotherhood of Locomotive Firemen & Enginemen, 323 U.S. 210 (1944). The governing legislation in both of these cases was the Railway Labor Act. In Steele, the trade union had negotiated a number of terms that discriminated against black employees, including a ceiling on the number of blacks hired and a seniority clause that favoured white workers. The United States Supreme Court, in striking down the offending clauses, reasoned that as the union was the exclusive bargaining agent of the employees, it had a duty to ensure that is power was exercised fairly and that it represented all members of the bargaining unit… [Emphasis added] [23] In Gendron, the Supreme Court held that the common law duty of fair representation was ousted by a statutory process for addressing that duty before a labour board. Where the relevant statute applies, the court’s jurisdiction is limited to the review of the labour board’s decision, within the parameters contemplated by the relevant privative clause. However, the Supreme Court also said in Gendron there may be exceptions, including instances, such as in the context of human rights violations, where, “while the statute may apply, the breach may not be properly characterized as exclusively a labour relations matter. In these circumstances, the jurisdiction may be grounded elsewhere”: Gendron, at para 47. [24] There are important reasons why the legislature has established a system where the labour board has exclusive jurisdiction. The established system has been said to be faster, provides for resolution by arbitrators who are experts in the field of labour relations, and overall provides significant advantages to employees. In Gendron, at para. 50 L’Heureux-Dubé J., provided an important discussion of these underlying important policy objectives: In his text, Canadian Labour Law, Adams examines the rationale underlying the deference accorded the decisions and jurisdiction of labour boards and states at p. 154: Such privative clauses [contained in most legislation which establishes labour relations boards] reflect the rationale for administrative agencies and the importance of finality and speed in labour relations dispute resolution. While courts of superior jurisdiction have historically assumed the duty of supervising tribunals of inferior jurisdiction with the purpose of maintaining the integrity of legal rules, the distinctive characteristics of labour relations warrant a high degree of judicial restraint and self-control. …Labour relations boards represent greater specialization and expertise. And because of their relative familiarity with the problems before them, labour boards are better able to fashion and monitor workable new policies. Activity before them is also more informal, less costly and expeditious. [25] Justice L’Heureux-Dubé in Gendron also spoke about the broad remedial powers of labour boards to fashion remedies (para 43): The remedial provisions improve significantly the position at common law of an aggrieved person. At common law, courts were restricted to an award of damages, whereas under the Canada Labour Code a broad range of remedies designed to “make whole” are available… Parliament has substituted a broad, comprehensive, remedial scheme much superior to an award of damages available at common law… [26] In Gendron, the respondent union member brought an action in court against his union, alleging the union breached its duty of fair representation to him. [27] The Court in Gendron identified a two-step approach to determine the jurisdictional issue: 25 In resolving the issue of jurisdiction a good point of departure is to review the duty of fair representation at common law in order to decide whether or not the statutory duty, as embodied in the Canada Labour Code, ousts the common law in situations where the statute applies. The second step of the inquiry will examine whether the Code contemplates any jurisdiction in the ordinary courts to entertain claims based upon the statutory duty. [Emphasis added] [28] In considering whether a claim is captured by the duty of fair representation, a court must look at the essential character of the claim, not the way the claim has been framed: Weber v. Ontario Hydro (1995), 1995 CanLII 108 (SCC) at para 52. Are the Allegations in the Statement of Claim Properly Characterized as Alleged Breaches by NSGEU of the Duty of Fair Representation? [29] The Notice of Action alleges breach of contract, breach of occupational health and safety laws and human rights violations. [30] In the Statement of Claim, Ms. Davidson’s allegations include: I paid for services, union services, since 2008 to 2022 for an agreed upon services that I never received. My union failed to meet the agreed upon terms of our contract and violated trust as well as Occupational Health and Safety (OHS)s laws. In addition, there are human rights violations as to medical accommodations and duties to accommodate. These violations created significant hardship for me and my family. [31] A large portion of the Statement of Claim provides a narrative of the events of 2019 whereby Ms. Davidson states that she was stalked and followed by three men as a result of a child welfare referral she made as part of her duties as a social work. She recounts how she was criminally charged and convicted as a result of certain actions she took in relation to these events. She also states that “early on in this process the NSGEU started and supported a grievance for my legal fees. To date, I am currently receiving WCB support for the injuries I endured throughout this process”. [32] Ms. Davidson then sets forth in the Statement of Claim various allegations against both her employer and the NSGEU: My employer failed to keep me safe and this was acknowledged and supported early on by the NSGEU as per the contract and several representatives. In addition, my grievance to have my legal fees covered was not denied by my employer, adding weight to my claim. My initial representative declined free legal services for me, offered by employer, via the Department of Justice, without consulting and or advising me, eliminating that as an option for me. My criminal charges/conviction do not cancel what I experienced, prior to the charges. It does not cancel the pattern of violence I experienced. It does not cancel that my employer failed to keep me safe on government time and soil and as direct result contributed to the situation I experienced, AS PREVIOUSLY SUPPORTED by the NSGEU. The pattern of violence I experienced cannot be canceled by my guilty finding. A finding that I would never have had to face if my employer responded appropriately to in the initial stages. This was supported, numerous times in writing and in conversation with various lawyers and NSGEU reps. [Emphasis that of the Court, capitalization that of the Plaintiff] [33] In terms of the Grievance, the Statement of Claim provides: …however, recently without my knowledge or consent this grievance was canceled. I have a right to be involved in the process, be involved and informed. Decisions cannot be made in my interest, without my knowledge or input. This violates several rules in our contract as well as OHS laws. [Emphasis added] [34] The Court will now review each of the claims to situate them within the jurisdictional issue. (a) Breach of Contract [35] Ms. Davidson alleges that the NSGEU “failed to meet the agreed upon terms of our contract”. NSGEU sought, and obtained, particulars to this allegation. In the Answer to Demand for Particulars, Ms. Davidson stated that the “contract” she references in the Statement of Claim is the Collective Agreement and the allegations of breach of contract occurred between December 2019 to present. [36] Ms. Davidson also identified the following sections of the Collective Agreement that she alleges that NSGEU breached: • Section 3.01 – No Discrimination • Section 3.02 – Equity and Diversity Initiatives • Section 7.02 – Safety Regulations • Section 7.03 – Consistent Application • Section 16.04 – Servicing of Grievances • Section 27.03- Grievances • Section 29.01 – Grievances • Section 29.03- Grievance Procedure • Section 31 – Joint Consultation • Section 36.01 – Health and Safety Provisions • Section 36.02 – Occupational Health and Safety • Section 36.09 – Discrimination, Harassment and Workplace Safety (b) Breaches of Trust and “Violated Trust” [37] In the Answer to Demand for Particulars, Ms. Davidson provided particulars of the alleged breaches of trust and violated trust: The Contract, the Collective Agreement binds us, both myself and the NSGEU to a specific set of duties, hence the agreement part of the Collective agreement. The NSGEU breeched (sic) trust when they violated the agreement and the sections listed above. The NSGEU has an obligation to the Collective agreement as do the employees. Decisions that violate the agreement are a breech (sic) of trust. [Emphasis added] (c) Breach of OHS laws [38] The Answer to Demand for Particulars provides particulars of alleged breaches of “Occupational Health and Safety (OHS) laws: The Union to [sic] not use the powers within the Collective Agreement to support and represent me fairly or justly and in doing so violated numerous sections of the Collective Agreement as well as NS OHS laws. (d) Human Rights Violations [39] The Statement of Claim alleges NSGEU committed “human rights violations as to medical accommodations and duties to accommodate”. The Answer to Demand for Particulars provides: Violations in human rights in health. My mental illness, specifically Post Traumatic Stress Disorder (PTSD), does not cancel the NSGEU’s obligations to provide services that offer dignity and autonomy and accommodation. My condition isn’t a permission card to disregard my legal capacity to make decisions. This type of exclusion exacerbated my condition and violated my opportunity for equal opportunity to services I paid for. I experienced these violations multiple times from Dec. 2019 to current. For example, when my union representative made an irreversible decision for me, without consulting me, declining free criminal legal services offered by the Department of Community Services. Prior to this, my request to move forward with a grievance was denied, without any reasonable grounds. When the NSGEU declined my grievance appeal because I missed a 15-day deadline. A deadline that my capacity wasn’t able to accommodate due to the triggering nature of the content. There are more examples, such as, that NSGEU assigning 4 union repress and 5 different lawyers in less than four years. This is not the inclusive, accommodating service that is outlined on the Collective Agreement to support someone with a diagnosis of PTSD. [Emphasis added] [40] When this Court considers the essential character of the dispute Ms. Davidson has with the NSGEU, I look to the factual context in which it arose. [41] The dispute started as a result of events which took place in 2019 when Ms. Davidson was performing her duties as a social worker employed by the Province. At that time until the present, she was represented by the NSGEU. Those events included criminal charges against Ms. Davidson and her retention of a criminal defence lawyer. [42] The allegations against the NSGEU in the Statement of Claim all flow from its various dealings with Ms. Davidson in the aftermath of the events of December 2019, including its ultimate decision not to move forward with the Grievance. She feels that the NSGEU failed her in various ways in how it, and its representatives, dealt with her. In particular, Ms. Davidson takes issue with the decision of the NSGEU to withdraw the Grievance. That is the nub of the dispute that she has with the NSGEU. [43] Here it is noted that Ms. Davidson, as a union member, is not herself a party to the Collective Agreement. She has no legal right to claim in this Court that the NSGEU breached that Collective Agreement. Rather, her right to claim against the NSGEU is limited to the complaint provisions of the Trade Union Act and specifically, section 54A(3). [44] I find that the essential character of this dispute, despite how Ms. Davidson has legally characterized it, is properly one of an alleged breach of the NSGEU’s duty of fair representation. [45] The question which follows from Gendron, is whether this Court has jurisdiction to hear Ms. Davidson’s claim. Does the Nova Scotia Supreme Court have jurisdiction to hear the Plaintiff’s Claim? [46] The answer to this question is “no”. [47] As noted earlier in the introduction to this decision, in Nova Scotia, as in other provinces and territories and at the federal level in Canada, the Legislature has codified the common law duty of fair representation in the Nova Scotia Trade Union Act. The common law duty is ousted and Ms. Davidson cannot base her claims against the NSGEU on it. Rather, her recourse is to the statute, i.e., the Trade Union Act. [48] In Pleau v. Canada (Attorney General), 1999 NSCA 159, the Nova Scotia Court of Appeal considered whether a plaintiff dismissed from the federal service and his family members, could bring an action against other civil servants for conspiracy to cause injury, breach of fiduciary duty and abuse of office. The Court of Appeal summarized the Gendron analysis into a consideration of four main factors: [38] In Gendron v. Supply and Services Union of the Public Service Alliance of Canada, (supra), the Court faced the question of whether the courts have jurisdiction in an action based on a breach of a union’s duty of fair representation. In answering this question in the negative, the Court considered four matters. First, the Court concluded that the substance of the union’s duty of fair representation was codified in the Canada Labour Code so as to “necessarily oust the common law duty of fair representation in most situations where the terms of the statute apply.” (at 1320). Second, the Court reviewed the legislative scheme and the place of the Canada Labour Relations Board in it. The Court concluded that, while the legislation did not expressly confer exclusive jurisdiction on the Board, the legislation showed that “...Parliament envisioned a fairly autonomous and specialized Board whose decisions and orders were to be accorded deference by the ordinary courts ...”. (at 1321). Third, the Court examined the remedial capacity of the Board and found that the provisions of the statute conferring remedial power on the Board “... improve[d] significantly the position at common law of an aggrieved person.” (at 1318). Finally, the Court noted that the Board was protected by a privative clause and that permitting actions in the courts for alleged breaches of the duty of fair representation would “... endanger the special role of the Labour Board and the policy underlying the [legislation].” (at 1321). Summing up its conclusions the Court stated: ..... Parliament envisioned a fairly autonomous and specialized Board whose decisions and orders were to be accorded deference by the ordinary courts, subject only to review within the confines of the privative clause. As noted earlier, Parliament has provided the duty, the procedure for adjudicating an alleged breach, a wide array of remedies and a privative clause protecting the Board. It can be therefore assumed to have intended that the ordinary courts would have but a small role if any to play in the determination of disputes covered by the statute. [39] In my view, Gendron strengthens the conclusion that an express grant of exclusive jurisdiction is not necessary to sustain judicial deference to the statutory dispute resolution process. In Gendron, deference arose from consideration of the four factors mentioned in the passage just quoted: that the scheme addressed the substantive rights in issue, set up a process for adjudicating alleged breaches, gave that process extensive remedial powers and protected the scheme from judicial intervention by a privative clause. [40] The Court also added two important caveats: A necessary caveat to this conclusion is that, while the common law duty will be inoperative in a situation where the terms of the statute apply, a different conclusion may be warranted in a case where the statute is silent or by its terms cannot apply. Such may be the case where the statutory duty is, by its terms, applicable only in circumstances where the breach of the duty arises out of contract administration. ..... A different conclusion may also be warranted where it is not clear that the statute exclusively covers the breach. In other instances, such as in the context of human rights violations, while the statute may apply, the breach may not be properly characterized exclusively as a labour relations matter. [Emphasis added] [49] The duty of fair representation is codified in the Trade Union Act, as follows at section 54A: Prohibition respecting employee 54A (1) In this Section, “employee” includes an employees within the meaning of the Civil Service Collective Bargaining Act, Schedule A to the Corrections Act and the Highway Workers Collective Bargaining Act. (2) In this Section and subsection (3) of Section 55, “trade union” includes: (a) the Nova Scotia Government Employees Union acting under the Civil Service Collective Bargaining Act; (b) the Union determined pursuant to Part I of the Corrections Act; and (c) the Nova Scotia Highway Workers Union, CUPE Local 1867, or a successor union determined pursuant to the Highway Workers Collective Bargaining Act. (3) No trade union and no person acting on behalf of a trade union shall act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in a bargaining unit for which that trade union is the bargaining agent with respect to the employee’s rights under a collective agreement. [50] Section 55 of the Trade Union Act provides a procedure whereby a member of a trade union who feels they have been treated in a manner which contravenes Section 54 may have their claim for unfair treatment against their union heard and adjudicated: Complaint of failure to comply with Section 53 or 54 55 (1) Subject to subsections (2) to (5), any person or organization may make a complaint in writing to the Board that an employer, a person acting on behalf of an employer, a trade union, a person acting on behalf of a trade union or an employee has failed to comply with Section 53 or 54 of subsection (3) of Section 54A. [51] The “Board” referred to in subsection 55(1) is the Labour Board established under the Labour Board Act, R.S.N.S. 1989, c. 21 (subsection 2(1)(b) of the Trade Union Act). Subsection 9(2) of the Labour Board Act states that the Labour Board shall perform the duties and functions required or authorized to be performed by it pursuant, inter alia, the Trade Union Act. [52] The duty of fair representation does not mean that an employee has a right to demand that a grievance they have against their employer be taken to arbitration. That is because a union has a considerable discretion to decide which cases it will take to arbitration. These matters were noted by the Federal Court of Appeal in Watson v. Canadian Union of Public Employees, 2023 FCA 48: [19] This duty under section 37 of the Code does not encompass a requirement to file a grievance on behalf of every employee who requests one; an employee does not have an absolute right to arbitration and the union enjoys considerable discretion when deciding whether to proceed with a grievance (Canadian Merchant Service Guild v. Gagnon et al., [1984] 1 S.C.R. 509, 1984 CanLII 18 (SCC) at 527 [Gagnon]; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, 1990 CanLII 110 (SCC) at 1328 [Gendron]). This discretion “must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other” (Gagnon at 527; Gendron at 1328). When faced with conflicting employee interests, the union does not breach its duty of fair representation by pursuing one set of interests to the detriment of another. “Rather, it is the underlying motivation and method used to make this choice that may be objectionable” (Gendron at 1329). [Emphasis added] [53] The language of section 54A(3) of the Trade Union Act is similar to the language of section 136.1 of the Canada Labour Code considered in Gendron (“the trade union shall represent, fairly and without discrimination, all employees…”. These sections require unions to act fairly and in a non-arbitrary manner when representing members of the union. As in Gendron, by choosing the language of section 54A(3) the Nova Scotia Legislature clearly intended to codify the common law duty of fair representation. [54] Further, the Trade Union Act provides a process for adjudicating an alleged breach of the duty of fair representation. Sections 55 to 57 of the Trade Union Act provide a comprehensive scheme for the adjudication of a complaint alleging a breach of the duty of fair representation at section 54A(3). [55] Referring again to Gendron, this Court finds that the fact that the Legislature created a comprehensive and complete framework for the adjudication of whether a union has breached the duty of fair representation, is a “strong indication” of the Legislature’s intention that the Trade Union Act “occupy the whole field in terms of a determination of whether or not a union has acted fairly.” (Gendron, at para 42). [56] The Trade Union Act also provides a wide variety of remedies for a breach of the duty of fair representation: Order to comply with Section 53 or 54 57 Where, under Section 56, the Board determines that a party to a complaint has failed to comply with Section 53 or 54, the Board may, by order, require the party to comply with the said appropriate Section and may, (e) in respect of a failure to comply with Section 54A, by order, require a trade union to rectify any act or omission complained of and refer the matter to arbitration and may order that time limits in a collective agreement be abridged or extended in respect of the arbitration. [57] Section 78 of the Trade Union Act provides for further remedies against a union which has breached the duty of fair representation: Order when Act contravened 78 Notwithstanding any other provision of this Act, where the Board is satisfied that an employer, employers’ organization, trade union, council of trade unions, person or employee has acted contrary to this Act, it shall determine what, if anything, the employer, employers’ organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing, may include, notwithstanding the provisions of any collective agreement, any one or more of (a) an order directing the employer, employers’ organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of; (b) an order directing the employer, employers’ organization, trade union, council of trade unions, employee or other person to rectify the act or omission complained of; or (c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers’ organization, trade union, council of trade unions, employee or other person jointly or severally. [Emphasis added] [58] Further, the Trade Union Act contains a privative clause at section 19(1)(k) Determination of question arising before Board 19 (1) If in any proceeding before the Board a question arises under this Act as to whether … (k) an employer, employers’ organization, trade union or other person is doing or has done any act prohibited by Section 47, 48, 49, 50 or 54A, the Board shall decide the question and the decision or order of the Board is final and conclusive and not open to question, or review, but the Board may, if it considers it advisable to do so, reconsider any decision or order made by it under this Act, and may vary or revoke any decision or order made by it under this Act. [59] The Nova Scotia Court of Appeal in Adams v. Cusack, 2006 NSCA 9 clearly stated that courts should give deference to matters falling within labour relations legislation: [13] Since at least the mid 1980's, the Supreme Court of Canada has recognized that the courts should be cautious not to undermine “ ... a comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting.”: St. Anne Nackawic Pulp & Paper v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704 at 721. To avoid doing “violence” to such a scheme, the courts ought to show “judicial deference” by not routinely hearing cases that fall within it: St. Anne at 721. This hands-off policy applies not only where there are clear legislative provisions which expressly oust court jurisdiction. It also applies where the scheme as a whole makes it clear that the courts were intended to have “... but a small role if any to play in the determination of disputes covered by the statute.”: Gendron v. Supply & Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298 at 1321. [60] The analysis of the factors in Pleau, together with the guidance and principles established in Gendron all lead to the same conclusion: the Trade Union Act has exclusive jurisdiction over allegations that a union failed a member in its duty of fair representation. Conclusions [61] Although Ms. Davidson frames her claims in breach of contract, breach of occupational health and safety laws and human rights violations, this dispute is properly characterized as an alleged breach of the duty of fair representation. [62] This dispute arose in a context that the Nova Scotia Legislature has assigned exclusively to the Nova Scotia Labour Relations Board. The alleged misconduct of the NSGEU is to be assessed exclusively by that Board in accordance with its expertise in dealing with labour matters. [63] The action is dismissed for want of jurisdiction, pursuant to Civil Procedure Rule 4.07(1). [64] The NSGEU is entitled to costs, if it seeks them, in an amount to be either agreed upon by the parties, or set by the Court, if there is no agreement. Smith, J.