CALL-ACAMS Newsletter - April 2005Case AlertsYellowknife - Fullowka V. Royal Oak Ventures Inc.; O’neil V. Witte The case involved a claim for damages by the families of nine miners who were killed in an explosion at the Giant Mine during the lockout/strike in 1992. Another miner who came upon the scene shortly after the blast also sued. Both actions were brought by the Workers’ Compensation Board as subrogated actions. The defendants included the CAW National and a number of union members. By the time the case came to trial, most of the union members were out of the lawsuit. Harry Seeton, the president of the local at the time of the explosion, remained in. Justice Lutz found a number of the defendants jointly and severally liable. The judge awarded $10.7 million to the families and $600,000 to the miner who came on the scene. He apportioned 20% of the responsibility to CAW National. Harry Seeton was held responsible for 2%. The judgment is a stinging rebuke of everything the union did. The judge vilifies Seeton. Seeton had been a long term employee and an active and vocal voice in the union. In the view of the judge, Seeton’s negligence included:
The formal judgment will be filed after the judge delivers his decision on costs. It is expected that a number of defendants will appeal. Submitted by Austin F. Marshall, who acted for Harry Seeton in this 10 year lawsuit. Ontario Labour Relations Board Rejects First Nations Labour Code The First Nation is a registered Indian Band under the Indian Act. The First Nation permits the operation of a casino on its reserve run by a private company. In January 2003 the CAW was certified as the bargaining agent for a bargaining unit of employees of the company managing the casino. The First Nation then approved a Labour Relations Code “the Code”) which purports to govern labour relations on the reserve. The Code, though largely modelled on the Canada Labour Code, included provisions which prevented strikes and lockouts, required a union wishing to enter the reserve to speak to workers to pay a fee of $3,000.00, and imposed a filing fee of $12,000.00 for the filing of an unfair labour practice, and prevented the casino from negotiating with any union not certified under the Code. The Board ruled that there was no ancestral practice, custom or tradition of regulation of labour relations on the territory of a first nation and that there was no treaty which granted the First Nation the right to regulate labour relations on its territory. As such, the Board found that the provisions of the OLRA governed. The decision is under judicial review and the application has been heard with judgement reserved. Great Blue Heron Gaming Co [2004] O.L.R.D. 4907; submitted by David Wright. Ontario Divisional Court Affirms Arbitrator Can Grant a Grievance Where Disclosure Destroyed. The grievor filed a number of grievances which were settled, on terms which include agreements that documentation related to the grievances would be destroyed and would not be relied upon in the future. The Employer retained a Workplace Review Consultant to interview staff and review complaints – both past and present - in the Grievor’s workplace. The Consultant recommended transferring the Grievor and the Employer unilaterally re-assigned the Grievor to another office. The Grievor filed grievances claiming a breach of the settlements. The Union immediately sought disclosure of all of the materials and information that was given to the Workplace Consultants. The Union was informed that the Consultant had destroyed the materials. The Union brought a motion before the Board asking that the grievances be granted on the basis that a fair hearing could no longer be held in the absence of these highly relevant materials as it could no longer be determined if the Consultant had relied on documents which ought to have been destroyed. The Board agreed and granted the grievances. The Ministry applied for Judicial Review of the decision. The Divisional Court upheld the Board’s decision with written reasons dated January 24, 2005. The Court found the Board’s reasons to be cogent and her decision to be reasonable, both on the impact of the absence of the documents on the hearing as well as on the remedy she awarded in granting the grievances. The Queen in Right of Ontario (Ministry of Community, Family and Children’s Services v. Ontario (Crown Employees Grievance Settlement Board) [2005] O.J. 221 Court File No. 511/03; submitted by David Wright. Alberta Court rejects CLAC’s attempt to circumvent the Open Period The ALRB has historically held that an open period can be closed by means of the negotiation of a new collective agreement and the early termination of an old agreement, but only if the new agreement is accepted by employees by way of a reasonable ratification procedure. CLAC and J. V. Driver had imported this device into the construction industry and there was an established pattern of truncation or elimination of open periods by new agreements ratified by a relatively small workforce. In the fall of 2000 a new tactic was employed – a project agreement was entered into with a duration that was inconsistent with the existing provincial agreement, which would not expire for another fifteen months. The Board had held that the project agreement (negotiated before any employees were employed on the project) was ratified through what it called “hiring hall ratification” – in essence as soon as a CLAC member went to work on the project pursuant to a dispatch slip from CLAC they were deemed to ratify the agreement on behalf of all employees in their particular trade. The Board appeared to accept that this “ratification” was sufficient to eliminate a statutory open period. The Court held that the Board’s view of the efficacy of “hiring hall ratification” to eliminate an open period was patently unreasonable. The Court found that the Board’s analysis deprived construction industry employees of the right to change bargaining agents, and that it “potentially locks them into a cycle in which they can protest neither the collective agreement nor the union who negotiated it for them”. Although the Court found that the case was moot, it exercised its discretion to determine the issues, applying the principles of Borowski v. Canada (Attorney General) ]1989] 1 S.C.R. 342. The reason the Court considered it moot was that it concluded that the Provincial Agreement that was specifically ousted by the Employer and CLAC in respect of the project to which the project agreement applied was “revived” by virtue of the lack of informed ratification of the project agreement. Accordingly the Court was of the view that to succeed, the application for certification would have had to have been made during the open period of the revived provincial agreement and it had not, in fact, been. Therefore, the Court denied the judicial review, but in terms of the issues raised by the union, the decision is a resounding win. It is not yet known whether the decision will be appealed by any party. CLAC and CLAC employers continue to attempt the elimination of open periods by way of early closing, so the issue is very much a live one. United Brotherhood of Carpenters and Joiners of America, Local 1325 and J. V. Driver Installations Ltd. and Christian Labour Association of Canada and Alberta Labour Relations Board, September 14th, 2004 (Alberta Court of Queens’ Bench); submitted by Bob Blair. CALL/ACAMS Affairs | Motion Briefs | Legislative/Political Changes | Case Alerts |
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