The Saskatchewan Labour Relations Board has dismissed an application by a worker against the Regina Civic Middle Management Association (the Union) and the City of Regina, citing excessive delay that prejudiced the fairness of the hearing.
Chairperson Kyle McCreary concluded that the substantial delay from June 2021 to November 2023 was unjustified and impeded the possibility of achieving justice.
Background
In July 2020, A.B. received a one-day suspension from his employment with the City of Regina. The Union filed a grievance on his behalf, which was settled in September 2020. A.B. disputed the settlement, particularly certain terms within it.
In November 2023, A.B. filed an application under section 6-59 of The Saskatchewan Employment Act, alleging that the Union failed in its duty of fair representation. The Union sought a preliminary determination on the question of delay, arguing that the excessive lapse of time prejudiced their ability to have a fair hearing.
At the hearing on August 27, 2024, A.B. provided reasons for the delay: the impact of COVID-19 lockdowns, medical treatment he received, his lack of awareness of the Board’s processes, and involvement in a concurrent matter with the Human Rights Commission. The Union’s current president, I.C., testified about the Union’s structure, leadership turnover, loss of some of A.B.’s files, and the absence of an internal appeal process for grievance decisions.
The City of Regina did not take a position on the issue of delay.
Analysis and decision
Chairperson McCreary applied the test for delay as outlined in Hartmier v Saskatchewan Joint Board Retail Wholesale and Department Store Union and Retail, Wholesale and Department Store Union, Local 955. The key factors considered were:
Length of Delay: The Board determined that the delay from September 2020 to June 2021 was justified due to A.B.’s intensive medical treatment during that period. However, the subsequent delay of over two years was deemed significant and unacceptable. The Board stated, “Tolerable or acceptable delay is ‘measured in months, and not years.'”
Prejudice to the Respondent: The Board found that the Union was prejudiced by the delay due to leadership turnover, loss of contact with key witnesses, and loss of documents related to A.B.’s grievance. Chairperson McCreary noted, “The loss of documents combined with the presumed prejudice of fading memories establishes that the Union is prejudiced by delay in this case.”
Sophistication of the Applicant: While acknowledging that A.B. is an educated individual, the Board considered his access to legal counsel from February 2021 to October 2022. This access balanced against his lack of experience with the Board’s processes, rendering the sophistication factor neutral.
Nature of the Claim: The Board observed that the claim related to a one-day suspension. Although A.B. speculated on its impact on his career advancement, the Board found the nature of the claim to be on the lower end of the scale compared to cases involving termination or significant loss of employment rights.
Possibility of Achieving Justice: The Board concluded that justice could not be achieved due to the substantial delay and resulting prejudice. “Considering the above factors, justice cannot be achieved. There is evidence of actual prejudice in addition to the presumed prejudice caused by the substantial delay,” Chairperson McCreary stated.
The Board also emphasized that unions are not obligated to inform members of their rights under section 6-59 of the Act. Chairperson McCreary referenced a similar stance taken by the British Columbia Labour Relations Board, stating that “the Union owes no positive duty to inform him of his rights under s. 6-59.”
For more information, see ADAM BARAGAR v REGINA CIVIC MIDDLE MANAGEMENT ASSOCIATION, 2024 CanLII 104394 (SK LRB).
