The facts
In December 2013, three (3) employees of the Employer (the “Complainants”) were handed down administrative suspensions arising out of pressure tactics exercised during the course of renewing the collective agreement. The Employer and the Union agreed to meet with a view to settling this dispute. In order to create conditions conducive to discussions, they opted to defer certain deadlines governing disciplinary measures under the collective agreement. The Employer and the Union then held a meeting in order to resolve the matter.
After talks between the Employer and the Union broke down, the Employer ordered a disciplinary suspension against each of the Complainants. The Complainants then challenged each of the disciplinary suspensions by way of filing grievances.
The first hearing date was set down, and then adjourned. An unfruitful attempt at mediation between the parties ensued, and the matter was further delayed due to maternity leave taken by one of the Union representatives. The actual hearing only took place during Spring 2018, nearly four (3) years after the incidents involving the Complainants.
On the date of the hearing and without prior notice, the Union raised a preliminary motion for the first time, seeking dismissal of the disciplinary measures on the ground that they were time-barred.
As it had been taken by surprise, the Employer replied with the argument that the preliminary motion was ill-founded because an agreement had been entered into at the relevant time between management and the Union, specifically in order to defer the deadlines for imposing disciplinary measures! The Union denied the existence of any such agreement and reiterated its position.
Under these circumstances, the Employer announced the filing of a management grievance, seeking damages from the Union to compensate undue prejudice suffered due to these vexatious tactics.
On January 10, 2019, the Employer forwarded to the Arbitrator and to the Union a copy of the initial agreement to defer the deadline for levying disciplinary measures against the Complainants.
The Arbitrator reserved judgment on the preliminary objection raised by the Union.
Several weeks later, during deliberations of the Arbitrator, the Union withdrew its preliminary motion, explaining that during the interim, it had conducted more lengthy “investigations”.
A ruling by the Arbitrator on the Employer grievance was set down for hearing on March 16, 2021, to be heard concurrently with the hearing on the merits of the grievances challenging the disciplinary measures imposed. By this time, three years had passed since the controversial preliminary motion (subsequently discontinued by the Union). On the morning of this hearing, the tribunal learned that the parties had settled the three (3) outstanding grievances of the Complainants. Solely the Employer grievance remained as an issue to resolve between the parties.
In its grievance, the Employer claimed the following from the Union:
1) costs incurred in connection with the preparation of arbitration hearings set down for May 2, 2018 and January 10, 2019, including solicitor-and-client costs, costs, fees and disbursements related to the arbitration hearing, and remuneration and expenses incurred by witnesses summoned to appear;
2) damages in the amount of $5000.
The decision
The arbitrator ruled that the Union had committed an abuse of legal process.
Firstly, he criticized the Union for having raised a preliminary motion without serving prior notice, particularly in light of the fact that the motion would have brought the arbitration to an end. The arbitration ruled that this action significantly delayed a hearing of the matter on its merits, and imposed the hearing of a motion disclosing patently frivolous and vexatious grounds.
The arbitrator then pointed out that it was solely after the preliminary motion had been heard and reserved for several weeks that the Union casually announced that it was withdrawing its own preliminary motion.
In the arbitrator’s view, the conduct of the Union was reckless, and amounted to an abuse of process, giving the Employer the right to claim damages:
“[49] In the present matter, this is an abuse of legal process before the courts. This abuse of process was committed during a hearing. Making the case for such a claim requires proving that an act was made in bad faith or recklessly.
[50] Based upon the evidence, this is in fact what occurred in the present matter, i.e. reckless conduct.
(…)
[62] If we might paraphrase the Court of Appeal a contrario, this is a case where, in the absence of any reasonable or probable cause, a negligent party has recklessly caused prejudice to the other party during the course of a hearing by casually asserting rights that a minimum effort of diligence on its part would have disclosed as unfounded. The good faith binding upon parties who are signatories to a collective agreement is not compatible with such sharp practice.”
The arbitrator thus ordered the Employer to repay the Employer:
- Any and all legal costs of the January 10, 2019 hearing, including fees and disbursements of the arbitrator, all of which were needlessly incurred;
- Half of the judicial costs incurred by the Employer for the preparation and holding of the May 2, 2018 hearing, in addition to half of the arbitration costs of that arbitration hearing;
- Costs of witness preparation, including travel costs and expenses; and
- Any and all costs related to arbitration of the Employer grievance.
The arbitrator nevertheless dismissed the Employer claim for exemplary damages as there was insufficient evidence that the Union was acting in bad faith.
Case comment
This case makes clear that, wilful, negligent or reckless conduct of a party during the hearing of a grievance, whether or not in bad faith, could be qualified as abuse of process giving rise to damages in favour of the party injured by such conduct.
Régie intermunicipale de police Richelieu Saint-Laurent v. Fraternité des policiers et policières Richelieu Saint-Laurent (Employer grievance), 2021 QCTA 319
