Blunder procedure and pay the price

Date: 2007
Author: Daniel A. Lublin
Publication: Metro

Union employees are without access to courts

When Garry and Mark Coleman heard that fellow employee Wayne Demers was planning to file a fraudulent insurance benefit claim, they blew the whistle to their employer.  Demers was immediately fired.  Then, in typical union fashion, hostility brewed among Demers’ former union brethren.  When that hostility escalated to fear, the Colemans resigned.  Months later, with their reputations questioned and their jobs long gone, they turned to the courts instead of their union to grieve their alleged wrongs.  Their decision proved fatal.
Likely reluctant to follow typical union protocol and grieve their alleged harassment with their union, the Colemans initiated their legal action in the courts – suing their former employer, their former union, a union representative, and Wayne Demers.
Presumably the Colemans were attracted to the notion of a lawsuit versus a typical union grievance – the potential monetary recovery seemed greater, the news media would surely report their case and the judge would sympathize with their story – or so they thought.
Rather than responding to the merits of the Colemans’ case, the defendants argued that, as unionized employees, the Plaintiffs had no right to sue in the courts.
Recently, a judge agreed, ruling that although the courts have some limited discretion to entertain the dispute, unionized employees generally must seek redress through grievance procedures in their collective agreements, or through labour tribunals.
The concept of preventing unionized employees from suing their employers in court is not novel.  Since 1995, when the Supreme Court ruled that disputes arising under a collective agreement can only be resolved by labour tribunals, unionized employees have been without the same access to the courts as their non-unionized peers.
Here is some advice for unionized employees seeking to bring their claims before the courts:

• Approach jurisdictional issues practically.  With the preponderance of case law stacked against you, you should only go  to court as a last resort or where unique circumstances are obvious.

• Review and exhaust available appeal routes promptly.  Most collective agreements require grievances to be brought within strict time limits.  Similarly, labour relations tribunals consistently turn away complaints that are brought in an untimely fashion.

• Obtain professional advice.  It is not always a smart idea to launch  an expensive lawsuit.  The jurisdictional maze of the Ontario court system is particularly complex – and the appropriate procedural route will differ depending on the facts and circumstances of the case.  Had the Colemans been able to successfully establish that their dispute fell outside of the scope of their collective agreement, they likely would have been arguing their case before the trial judge now rather than having to pick up the pieces and return to square one.