Miller v. Alberta (Labour Relations Board), 2026 ABKB 695, is a recent judicial review application of an Alberta Labour Relations Board (the “ALRB”) decision surrounding a Duty of Fair Representation (“DFR”) complaint.
The Court of King’s Bench found that the Union’s handling of the internal appeal process breached its DFR, finding the ALRB decision to the contrary was unreasonable. However, the Court dismissed the judicial review application after concluding that remitting the case to the ALRB would serve no useful purpose, as it determined the outcome was inevitable.
Facts
The following were the pertinent facts of the case:
- The Complainant was a heavy-duty mechanic and a member of the International Association of Machinists and Aerospace Workers, Local Lodge Number 99 (the “Union”).
- In 2021, the Complainant began working for the Employer in Wood Buffalo at the Albian site. Canadian Natural Resources Limited (“CNRL”) owned the Albian site and retained discretion to remove an employee.
- On July 4, 2022, CNRL removed the Complainant from the Albian site due to concerns about his behaviour and attitude. The Union was unable to grieve his removal as CNRL was not a party to the Collective Agreement between the Union and the Employer.
- The Employer subsequently offered the Complainant a job at a site in Fort McKay. The Complainant refused, citing issues with BL, an employee he had worked with during his previous employment with the Employer in 2013.
- The Union filed a grievance alleging that the Employer had not given the Complainant sufficient warning about his performance issues nor had he been given the chance to correct them. The Employer reiterated its offer of a job at the Fort McKay site. The Complainant declined, and the Union’s District Grievance Committee decided to advance the grievance to arbitration.
- At a settlement meeting, the Employer offered the Complainant three different positions: one in Grande Prairie, one in Calgary, and one in Fort McKay. The Complainant rejected the Grand Prairie and Calgary positions as they would have required him to relocate. He maintained that he did not want to work at the Fort McKay site due to his concerns about BL. The Employer then made the following offer to resolve the grievance:
- The Complainant would take the Fort McKay job;
- The Employer would endeavour to ensure that the Complainant and BL worked on opposite shift patterns; and
- The Employer would waive the Article of the Collective Agreement which required the Complainant to stay in his position for one year before applying to another job, which would allow him to continue applying for positions elsewhere.
- The Union’s business representative and legal counsel recommended that the Complainant take the settlement proposal, however the Complainant rejected the offer.
- The business representative subsequently negotiated a later start date and secured the Employer’s agreement to use the Complainant’s 2021 start date for seniority purposes.
- The Union obtained a legal opinion regarding the revised offer, following which legal counsel recommended the Union and Complainant accept the offer. On June 16, 2023, the business representative forwarded the Complainant the legal opinion and summary of the Employer’s settlement proposal.
- On June 19, 2023, the Complainant rejected the offer. The business representative advised that he was recommending to the Union that the grievance be withdrawn and that the Complainant could appeal this decision at a Grievance committee meeting scheduled for June 30, 2023.
- On June 21, 2023, the Complainant responded that he wanted to appeal but did not know what had already been submitted to the Committee. He further stated that he was working a job in Nunavut and would not be able to attend a meeting on June 30th as there was no means to attend by Zoom or phone.
- On June 22, 2023, the business representative responded that the meeting could not be rescheduled and that if the Complainant could not attend, he could send in a written submission.
- On June 25 and 26, 2023, the Complainant advised that he did not have enough time to prepare a written submission and that he preferred to attend the meeting.
- The Union proceeded with the Grievance Committee meeting on June 30, 2023. The Complainant did not attend or make a written submission. The Union decided to withdraw the grievance and cancel the arbitration.
- The Complainant filed a DFR complaint against the Union, arguing that it had breached its DFR by withdrawing the grievance, failing to investigate and grieve his removal form the Albian worksite, and failing to properly handle the appeal process. The ALRB dismissed the complaint on all three grounds, and the Complainant filed an application for judicial review.
Analysis/Conclusion
The Court first stated that, following the Supreme Court’s decision in Vavilov, the applicable standard of review was reasonableness. Two fundamental flaws can render a decision unreasonable: 1) a failure of rationality internal to the reasoning process and 2) a decision may be untenable in light of the relevant factual and legal constraints that bear on it.
Withdrawal of the Grievance
The Court upheld the ALRB’s decision on this point as reasonable. In rejecting the Complainant’s argument that the ALRB ignored evidence of his mental health disability in deciding to withdraw the grievance, the Court noted that some of the assertions the Complainant was relying on were not admissible as they were not before the ALRB at the hearing. There was also no evidence before the ALRB that the Complainant had received any medical treatment in relation to the incidents with BL.
The Court further pointed to the fact that the ALRB had considered that the Complainant had begun seeing a registered psychologist and there were letters before the ALRB from that psychologist.
The Complainant had queried whether appropriate accommodation issues had been addressed, however the Court stated that the Complainant had not requested any accommodation during the Union’s processing of the grievance before it was withdrawn.
The Court further noted that in making its determination, the ALRB had considered the following:
- The Complainant’s reasoning for rejecting the Fort McKay job;
- The Complainant’s mental state and his concerns about BL as that evidence was presented at the hearing;
- The Union continued to search for alternate job options for the Complainant and explored settlement solutions; and
- The Union had obtained a legal opinion on the Employer’s settlement proposal as compared to possible arbitration outcomes.
Removal from the Albian Site
The Court also rejected the Complainant’s argument that the Union did not properly investigate and grieve his removal from the Albian site, noting that the Union had spoken with the Employer, Union, and Complainant regarding the Complainant’s work performance. There was no further evidence before the ALRB of what additional information the Union could have obtained through further investigation.
Additionally, the Court found that the ALRB’s decision that any claims the Complainant may have had against CNRL did not arise from the Collective Agreement and fell outside the Board’s review was a reasonable one.
Internal Appeal Process
The Court found the Union breached its DFR on this point, overturning the ALRB decision for being unreasonable.
The Court admonished the Union’s conduct as “egregious”, as it had failed to attempt to facilitate the Complainant’s attendance at the meeting, failed to provide him with the materials referred to by the Grievance Committee, and failed to provide him with adequate time to prepare submissions.
Where the ALRB found the Grievance Committee “had the full picture of the Union’s investigation and assessment of the Grievance”, the Court held that this may not have been the case. It was unclear to the Court how the ALRB had reached its decision as the record did not disclose what information the Grievance Committee had actually reviewed. Of particular concern to the Court was the business representative’s statement to the Complainant that “because of your choice to not participate in your own appeal, the District Grievance Committee can only make the decision to withdraw your grievance and cancel the upcoming arbitration.” The Court found that this suggested the Grievance Committee had made its decision due to the Complainant’s “choice” not to participate, rather than considering the appeal on its merits or with reference to the materials before it.
Despite the finding that the DFR had been breached respecting the internal appeal, the Court concluded that remitting the matter to the ALRB would serve no practical purpose. The only additional evidence the Complainant sought to bring forward related to his mental health, and this evidence was not available at the time of the appeal. The Complainant had been unable to provide the ALRB with any new information regarding the Union’s handling of the grievance or what further evidence he could have raised before the Grievance Committee related to the grievance or the Union’s investigation and assessment.
Since remitting the matter back to the ALRB would have served no practical purpose in this case, the Court dismissed the judicial review application.
My Take
It is challenging to establish a breach of the duty of fair representation due to the high level of discretion afforded to unions. In this case, even though the Court ruled in the Complainant’s favor on the internal appeal process point, it was still not really a “win” for the Complainant, as he ended up with the same result.
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Katherine Allen is an employment and labour lawyer at Bow River Law LLP in Calgary, Alberta.
Bow River Law is a team of knowledgeable, skilled and experienced employment lawyers handling employment law, human rights (discrimination) and labour law matters. Bow River Law is based in Calgary but we are Alberta’s Workforce Lawyers.
This blog post is an original work of Bow River Law LLP. The original publish of this article is on Bow River Law’s website blog.
