You cannot bring an actual lawsuit against a union. You instead must use the grievance procedures in the collective agreement. The government of Ontario recognizes, however, that unions have a duty to ensure that the workplace is free of harassment. Unions should have ample human rights education for their members. Moreover, section 37 of the Canada Labour Code ensures that unions cannot make decisions in bad faith, decisions that are arbitrary, or ones that are discriminatory. This is called a “duty of fair representation.”
“Bad faith” in the context of the Code refers to an improper purpose. For example, conduct cannot be motivated by personal feelings of ill-will, or dishonest conduct, towards an employee. “Arbitrary” in the context of the Code means that a union has not property investigated an employee’s grievance. This can include being negligent in representing their employee or not giving adequate consideration to their claims. “Discriminatory” in the context of the Code means that a union must not treat their employees differently on any illegal ground such as age, race, religion, sex, or disability. Moreover, it also ensures that unions do not treat their employees differently on any other unreasonable/irrational grounds.
Employees should keep in mind, however, that they do not possess an absolute right to have their grievances arbitrated. A union could decide to not arbitrate an employee’s grievances. As long as their decision is not made in bad faith, arbitrary, or discriminatory, this decision will stand.
How soon do I have to file a claim against a union?
Section 97 (2) of the Canada Labour Code requires you to file a complaint within 90 days of the date that you knew or should have known about an incident.
What happens if my collective agreement does not include clauses about preventing/resolving harassment?
As decided in the 2003 Supreme Court of Canada case, Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, the obligations of the Ontario Human Rights Code are inherent to any collective agreement that an arbitrator has jurisdiction over. This means that parties in a collective agreement cannot violate the provisions of the Human Rights Code. For example, s. 7 of the Human Rights Code states,
7 (1) Every person who occupies accommodation has a right to freedom from harassment because of sex, sexual orientation, gender identity or gender expression by the landlord or agent of the landlord or by an occupant of the same building.
Thus, a union cannot violate this even though its collective agreement does not explicitly include it.
What happens if my union fails to properly address my claims?
If you feel as if your union has not properly investigate a claim or arbitrate a grievance, as an employee you can file a “Duty of Fair Representation Claim” with the Labour Relations Board (http://www.olrb.gov.on.ca/english/homepage.htm) where a Tribunal can order a certain number of remedies.
What if the union I am a part of does not have a collective agreement?
The 2013 Ontario Superior Court case, Baker v. Navistar Canada Inc., ruled that unionized employees are still barred from bringing claims to court against their unions in the absence of a collective agreement. In the absence of a collective agreement, one could still use a bargaining process akin to a grievance/arbitration process set out in a collective agreement – so long as the union has representation rights. Moreover, because an employee and their union still have a relationship, the union still owes their employee a duty of good faith in addressing claims brought against them.