Kiame v. Union of National Employees (Public Service Alliance of Canada)

Kiame v. Union of National Employees (Public Service Alliance of Canada) Court (s) Database Federal Court of Appeal Decisions Date 2024-06-27 Neutral citation 2024 FCA 103 File numbers A-166-23 Decision Content Date: 20240627 Docket: A-166-23 Citation: 2024 FCA 103 [ENGLISH TRANSLATION] CORAM: GLEASON J.A. LOCKE J.A. WALKER J.A. BETWEEN: MONA KIAME Applicant and UNION OF NATIONAL EMPLOYEES/PSAC Respondent Hearing held at Ottawa, Ontario, on June 3, 2024. Judgment delivered at Ottawa, Ontario, on June 27, 2024. REASONS FOR JUDGMENT BY: GLEASON J.A. CONCURRED IN BY: LOCKE J.A. WALKER J.A. Date: 20240627 Docket: A-166-23 Citation: 2024 FCA 103 CORAM: GLEASON J.A. LOCKE J.A. WALKER J.A. BETWEEN: MONA KIAME Applicant and UNION OF NATIONAL EMPLOYEES/PSAC Respondent REASONS FOR JUDGMENT GLEASON J.A. [1] This is an application for judicial review of the decision of the Canada Industrial Relations Board (the Board) dated May 25, 2023 (2023 CIRB LD 5019). [2] In that decision, the Board dismissed the complaint filed by the applicant under section 37 and subsection 97(1) of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code) against the Union of National Employees / Public Service Alliance of Canada (the Union) on the grounds that the applicant had failed to make out a prima facie case that there had been a breach of the duty of fair representation on the part of the Union. [3] In her complaint, the applicant alleged that the Union had breached its duty of fair representation under section 37 of the Code because the Union had not filed an individual grievance, worded as the applicant wanted, challenging the COVID‑19 vaccination policy that her employer had adopted. Her employer, the Canada Council for the Arts (the CCA), had been following the Treasury Board’s COVID‑19 vaccination policy, which applied to most federal public servants. [4] The applicant wanted the Union to challenge the appropriateness of that policy since she believed that COVID‑19 vaccinations were experimental and possibly dangerous and that an employer could not place its employees on leave without pay if they refused to be vaccinated against COVID‑19. The applicant also argued that the Canadian Charter of Rights and Freedoms prohibited the adoption of this kind of policy by the CCA and wanted the Union to make that argument. She furthermore sought to be compensated for the period when she was put on leave because of her choice not to be vaccinated. [5] The applicant was placed on leave on November 15, 2021, because of her refusal to be vaccinated against COVID‑19, but did not ask the Union to file a grievance challenging the CCA’s COVID‑19 vaccination policy until April 11, 2022. [6] In email discussions with the applicant, the Union’s representatives informed the applicant that the Union would agree to file a grievance challenging the decision to place her on leave and her related losses, but would not agree to the amendments that the applicant wanted to make to the draft grievance prepared by counsel for the Union. The Union provided the applicant with reasons for the refusal. One of the Union’s representatives also informed the applicant that the Union had filed a policy grievance against the Treasury Board’s vaccination policy on March 22, 2022. As well, another representative of the Union explained to the applicant that she could not obtain damages for the period prior to the deadline for filing an individual grievance unless she could establish that she was unable to file a grievance earlier. Although the applicant claimed to have indeed been unable to do so, she provided no medical evidence to the Union and the record before the Board contained only two medical notes allowing the applicant to be absent from work only up to December 2021. [7] In her memorandum and before the Court, the applicant argued that the Board had erred in fact and law and had failed to comply with the principles of procedural fairness. More specifically, she submitted that: the Board stated, without evidence, that the Union had explained to her why the Union agreed that the vaccinations were necessary; the Board did not apply the relevant tests for determining whether the Union had acted in a manner that was arbitrary, discriminatory or in bad faith in the representation of an employee; the Board did not apply the tests set out in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653 (Vavilov); the Board denied her the right to make some of the arguments that she wanted to raise by rejecting the amended version of Exhibit P‑4 submitted on October 4, 2022; and the Board did not discharge its duty to take into consideration all of the relevant information in order to reach a fair and equitable decision. This last argument refers to the fact that the Board chose not to hold a hearing to consider the arguments set out in Exhibit P‑4. [8] The Board’s decision to dismiss the applicant’s complaint must be assessed on the reasonableness standard: Vavilov at para. 83; Watson v. Canadian Union of Public Employees, 2023 FCA 48 at para. 16 (Watson). On issues of procedural fairness, however, the role of the Court is to determine whether the procedure adopted by the Board in this case was fair having regard to all of the circumstances: Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121 at paras. 54–56. [9] In considering a complaint under section 37 of the Code, the Board’s role is not to substitute itself for the Union and reconsider the decision not to file a grievance or assess the merits of the grievance that a complainant wanted their union to file. Rather, the role of the Board is limited to determining whether the Union acted in a manner that was arbitrary, discriminatory or in bad faith. As the Board wrote at page 13 of its decision in this case, [translation] “the Board must ... focus on the conduct of the union; that is, whether it conducted an investigation and seriously examined the facts and arguments presented by the complainant”. [10] In its decision, the Board listed the relevant evidence and determined that the applicant had not made out a prima facie case to support her complaint. In reaching its conclusion, the Board followed its earlier similar decisions: Watson v. Canadian Union of Public Employees, 2022 CIRB 1002 and Stevenson v. Teamsters Canada Rail Conference, 2022 CIRB 1020. The Board added that this Court had upheld the Board’s decision in Watson. [11] The Board could reasonably dismiss the applicant’s complaint since the evidence introduced showed that the Union had examined the applicant’s arguments and explained to her why the Union would not file the grievance that the applicant wanted to pursue. Moreover, it was open to the Board to conclude that the Union had provided the applicant with a sufficient explanation. Contrary to the applicant’s contention, the Board followed the case law, applied the relevant tests for determining whether the Union had acted in a manner that was arbitrary, discriminatory or in bad faith in the representation of an employee, and made the findings of fact supported by the evidence. As well, the Board provided detailed reasons to support its decision. The decision of the Board is therefore reasonable. [12] There is also no merit to the applicant’s arguments regarding the breaches of procedural fairness. [13] The Board is not required to hold an oral hearing on every occasion that one is requested. Section 16.1 of the Code provides that the Board may decide any matter before it without holding an oral hearing. The Court has often recognized the Board’s power to decide cases without holding an oral hearing: Paris v. Syndicat des employés de Transports R.M.T. (Unifor‑Québec), 2022 FCA 173 at para. 6; Watson at paras. 50–52 (and the decisions cited in those paragraphs). [14] The Board refused to place the amended version of Exhibit P‑4 in the record because it was filed late, after a panel of the Board had taken the case under reserve. It was open to the Board to reject the filing, having regard to section 10 of the Canada Industrial Relations Board Regulations, 2012, SOR/2001‑520, which provides that an application to the Board must include full particulars of the facts and grounds for the application. [15] As well, amended Exhibit P‑4 simply added further references to the case law. Only one of the decisions added in the amended version of Exhibit P‑4 was relevant to the applicant’s complaint, that being the Board’s decision in McRaeJackson, 2004 CIRB 290. However, that decision merely summarizes the cases decided by the Board under section 37 of the Code, which are well known and were faithfully followed by the Board in the decision in this case. Exhibit P‑4 therefore would have added nothing to the record in any event. [16] During the hearing before this Court, the applicant raised a new argument that was not made in her memorandum: that the CCA’s decision should have been challenged by the Union since the Treasury Board’s COVID‑19 vaccination policy did not apply to the CCA. However, the applicant did not raise that argument before the Board or to the Union. She cannot make it in a judicial review proceeding before the Court, because our role is only to decide whether the Board’s decision was reasonable and determine whether the procedure was fair having regard to all of the circumstances: McMaster v. Canada (Attorney General), 2018 FCA 37 at para. 4; Andrews v. Public Service Alliance of Canada, 2022 FCA 159 at paras. 17–24; Kalonji v. Canada (Attorney General), 2018 FCA 8 at para. 7. [17] I would therefore dismiss the application for judicial review. Given that the Union is not seeking costs, I would not award them. “Mary J.L. Gleason” J.A. “I agree. George R. Locke J.A.” “I agree. Elizabeth Walker J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-166-23 STYLE OF CAUSE: MONA KIAME v. UNION OF NATIONAL EMPLOYEES/PSAC PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: june 3, 2024 REASONS FOR JUDGMENT BY: GLEASON j.a. CONCURRED IN BY: LOCKE j.a. WALKER J.A. DATED: JUNE 27, 2024 APPEARANCES: Mona Kiame ON HER OWN BEHALF Zéni Andrade FOR THE RESPONDENT SOLICITORS OF RECORD: Public Service Alliance of Canada Montréal, Quebec FOR THE RESPONDENT