On April 6 the Quebec Court of Appeal ruled, in Cadieux c. Greyhound Canada Transportation Corp., 2020 QCCA 498, that a unionized employee, dismissed by his employer, did not have sufficient legal interest to personally and directly appeal an arbitral award, even in the context of significant and manifest conflict of interest on the part of the union. In other words, the employee could not bypass the union in order to challenge his dismissal himself.

This decision followed a dismissal that had occurred nine years earlier. Brian Cadieux, then a bus driver for Greyhound, was fired on April 20, 2011. His employer criticized him for not respecting minimum rest periods during his assignments and for not properly recording his hours of work in the “logbook”. It was, in short, a straightforward dismissal.

An employee who fought like the devil

Following a grievance for dismissal filed by the union, an agreement was reached between the employer and the union whereby the union withdrew the grievance. As it turned out, the employee had clearly not consented to such an agreement.

A long saga ensued before the courts. First, Mr. Cadieux fought at length over the union’s duty of fair representation, before finally reaching a decision in his favour on those grounds.

The union was ordered by the Canada Industrial Relations Board [CIRB] to pay the employee’s legal fees, but more importantly, it was ordered to pay a significant portion of the eventual compensation for loss of wages, should the employee win his case before the arbitration tribunal. This part of the indemnity to be paid by the union was approximately $350,000, corresponding to a period of more than four years’ salary.

Arbitration followed and the arbitrator ruled in favour of the employer by dismissing Mr. Cadieux’s two grievances.

The employer and union were not done yet

Among other proceedings, the Mr. Cadieux personally filed an application for judicial review before the Superior Court of Québec, without the consent of his union. The Superior Court declared that Mr. Cadieux did not have the legal interest required to personally contest the arbitral award, thus the appeal referred to in this commentary.

By a vote of two to one the Court of Appeal approved the judgment rendered by the Superior Court. In so doing, it relied on previous case law,¹ stating that, despite the CIRB’s decision on the union’s breach of its duty of fair representation prior to the arbitration hearing, at each stage, the employee must still start by asking their union to file a grievance or apply for judicial review of an arbitral award. If the union refuses, the employee can then apply to the CIRB for violation of the duty of fair representation. Everything must therefore go through the union first.

The outcome is a happy one for the employer and the union, but at what cost? In the words of the Honourable Justice Gascon in Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval,² although in a different context: “The mission of the grievance arbitration system to provide employers and employees with accessible, expeditious, and efficient justice has been forgotten.” (Our translation) It will be recalled that Mr. Cadieux’s dismissal had taken place nine years earlier.

A dissent that would have cut the process short

It is interesting to note Justice Hogue’s dissent. First, she recognized the clear principle that a unionized employee does not have sufficient legal interest to apply personally and directly for judicial review of an arbitral award. However, she found that there were special circumstances in this case making it appropriate to depart from the principle. The special circumstances were primarily the obvious and significant conflict of interest, making it unfair for a unionized employee wishing to assert his rights to have to rely them. Hogue J. also decried the very significant delays that had elapsed since the dismissal, and the numerous contested hearings that took place in the case, to justify her decision.

Important points for employers to keep in mind

The moral of the story for any employer is they must always try to anticipate the legal and financial risks that accompany a termination of employment. This should be done both before the end of employment in order to manage it properly and during the negotiation of a settlement following the termination. As the expression goes, you have to see the forest through the trees. Similarly, for an employer in a unionized environment, in order to avoid such a situation, it is to the employer’s advantage to ensure that an employee who is dismissed will consent to a settlement between the employer and the union in connection with a grievance following dismissal.

1 Cinq-Mars c. Montréal (Ville de), 2016 QCCA 1665, application for leave to appeal before the Supreme Court dismissed, March 16, 2017, n^o 37344 and Noël v. Société de l’énergie de la Baie James, 2001 SCC 39, [2001] 2 SCR 207.

2 Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 SCR 29.