An Unreasonable Remedy: Court Affirms SLRB Decision on DFR Liability but Sets Aside Remedy
By Fraser Duncan and Shannon Whyley, K.C.
Under The Saskatchewan Employment Act (the “Act”), unions in Saskatchewan have a duty to provide fair representation to their members. This is commonly viewed as one of the trade-offs for the exclusive bargaining rights that unions exercise on behalf of their members. Once a union is certified by the Saskatchewan Labour Relations Board (the “Board”), the union has the right to bargain with the employer and to speak for in-scope employees in the workplace. In return, the union provides representation that is not arbitrary, discriminatory or in bad faith. If a union member feels that the union has breached its duty to provide fair representation to a member, they can apply to the Board for resolution.
Many duty of fair representation applicants attempt to challenge a union’s decision not to refer their grievance to arbitration. If the Board determines that the applicant’s claim has merit, the Board can order the union to refer the applicant’s grievance to arbitration. The Board’s power under subsection 6-60(1) of the Act allows a collective agreement’s time limits to be extended in order to complete the process.
When an application is made after a grievance arbitration process has been completed, the path forward is less clear. The applicant may wish to seek damages, but there is little case law in Saskatchewan to guide this process. The recent decision of the Court of King’s Bench for Saskatchewan in Saskatchewan Government and General Employees’ Union v Lapchuk offers guidance and insights into remedies in this scenario.¹ Justice Megaw’s decision confirms the nature of the duty of fair representation owed by unions and acknowledges that damages can be awarded, but with an important caution. The caution is that the applicant needs to actually prove damages when a trade union has not met its duty when preparing and/or during a labour grievance arbitration.
Judicial Review of Board Decisions regarding Liability and Remedy
In Lapchuk, the Saskatchewan Government and General Employees’ Union (the “Union”) sought judicial review of two linked Board decisions relating to the union’s duty of fair representation. In the first decision, focused solely on liability, the Board found that the Union had failed to uphold its duty for fair representation of a union member - Mr. Lapchuk (the “Applicant”). The Applicant had been suspended and eventually terminated by his employer, the Government of Saskatchewan. According to the Board, the Union’s handling of his grievances and treatment of the Applicant’s accommodation complaint contained “many examples of [an] arbitrary, discriminatory and bad faith approach to the representation” of the Applicant.¹
In the second decision, dealing with remedy, the Board faced the challenge of how to resolve the Applicant’s duty of fair representation complaint. The arbitrator had already dismissed both of the Applicant’s grievances. When an arbitrator has issued a decision, it is final and binding. The Board does not hear appeals or reconsiderations of grievances and cannot order a new arbitration. However, as the Board had determined that the Union’s handling of the Applicant’s grievances was arbitrary, discriminatory, and in bad faith, the Board then had to assess the damages to the Applicant caused by this wrongful conduct. In the second decision, the Board determined that substantial damages should be awarded to the Applicant amounting to just under $300,000.²
The Union applied for judicial review but was unsuccessful with respect to the first of the Board’s two decisions as Justice Megaw held that the Board’s central determination that the Union was liable was reasonable.
In relation to the Applicant’s accommodation complaint, the Board found that the Union had done “nothing to assist”³ the Applicant and this factual finding, as Justice Megaw noted, was based on the “clear and unequivocal evidence provided by the [Union] witnesses.⁴
In regard to the Applicant’s termination grievance, Justice Megaw also found the Board’s determination that the Union breached its duty to the Applicant to be reasonable based on the lack of effort by the Union “to investigate, discover, or properly consider, the availability of medical evidence.⁵ What the Union needed was evidence establishing both the Applicant’s medical condition, and a causal link between this medical condition and the incident which led to his termination. The arbitrator had alerted the Union to her concern that the Union’s evidence fell short in both respects. Despite this, the Union continued with the hearing rather than seek an adjournment. Justice Megaw held, therefore, that the Board’s decision that the Union failed to adhere to the duty of fair representation was transparent, intelligible, and justified.⁶
In other respects, however, Justice Megaw found that the Board’s conclusions lacked transparency and were not reasonable. It was not clear from the Board’s decision:
why the Union choosing to pursue arbitrator through a single arbitrator was arbitrary;
why the unexplained delay in advancing the arbitration to a hearing was arbitrary and in bad faith;
why the Union failing to ensure that its labour relations officers were trained on the basic rules of evidence was arbitrary; and
why the Union’s failure to act on the Applicant’s accommodation complaints was discriminatory.
More consequentially, the Union’s application for judicial review with respect to the Board’s remedy decision was successful. Justice Megaw ruled that the second decision was unreasonable and remitted the matter back to the Board.
The Board’s decision to award damages in this case seems to have been based on the principle that the difficulty in assessing damages should not preclude the award of damages. Justice Megaw points out, though, that the Board did not consider whether there was a causal connection between the Union’s conduct and the damages alleged by the Applicant. To do this, the Board would have needed to consider the chances of success if the Union had complied with its duty to provide fair representation to the Applicant. In other words, would the Applicant have been awarded damages if the Union represented him fairly in preparing and running the grievance arbitration?
The Board rejected that this was a necessary step when considering the question of damages. However, Justice Megaw found that the Board’s determination in this respect was unreasonable. By assuming the existence of damages, the Board’s decision on remedy was “not intelligible or justifiable on this central issue of the need to find causation, or better said, [the Applicant’s] loss of a chance”⁷ resultant from the Union’s breach. The Board also did not “meaningfully account for the central issues and concerns raised by the parties.”⁸ The Union had raised the issue of causation with the Board while there had been no evidence before the Board that the arbitration outcome could have been different if the Union had provided fair representation.
Key Takeaways
The decision in Lapchuk confirms the main principles found in duty of fair representation cases. While unions exercise discretion about which grievances are referred to arbitration, unions must use this discretion in good faith, objectively, and honestly, while considering the importance of each grievance and the union’s interests. This may mean evaluating the chances of success during arbitration, the overall cost of an arbitration proceeding, and other relevant factors.
When a union refers a grievance to arbitration, the representation of the union member must be performed fairly, reasonably, genuinely, without improper motive and competently. Unions are not expected to be perfect and mistakes can be made, as long as the mistakes are reasonable and not caused by totally unreasonable or grossly negligent conduct.
This case is mainly of interest for the issue of damages in the context of duty of fair representation cases. Justice Megaw’s decision clarifies that when a union has not fulfilled its duty of fair representation in preparing for and/or running an arbitration, damages must be proven and cannot just be assumed. In practical terms, this meant that the Applicant needed to show the Board that:
There was medical evidence available to the Union at the time of the arbitration;
This medical evidence established the Applicant’s medical condition; and
This medical evidence provided a link between the Applicant’s medical condition and the Applicant’s conduct which ultimately led to his termination.
The Applicant had not done this. Therefore, Justice Megaw sent the matter back to the Board to determine what remedy was appropriate for the Union’s failure to meet its duty of fair representation to the Applicant.
Lapchuk also underscores the need for appropriate evidence in arbitrations where a medical condition is relevant or may be relevant. The most serious breach found by the Board was the Union’s failure to consider both the limitations of the medical evidence it had and the medical evidence the Union would need to prove its case. With different medical evidence, it is possible that the arbitration outcome may have been different. The duty of fair representation, as stated above, does not require flawless representation. However, in preparing for, and running, an arbitration where a medical condition may play a central role, a union must take seriously its responsibility to gather relevant medical information and assess its strengths and weaknesses.
¹ Saskatchewan Government and General Employees’ Union v Lapchuk, 2025 SKKB 53 (CanLII) [Lapchuk].
² This included moral damages, out-of-pocket damages, legal expenses, and damages for the breach of the duty of fair representation reflecting the value of the loss of employment and the value of the loss of the benefit of being protected by a collective agreement: Lapchuk v Saskatchewan Government and General Employees’ Union, 2023 CanLII 10988 (SK LRB) at para 173. We have been unable to find another case in Saskatchewan where a duty of fair representation applicant was awarded a similar sum.
³ Lapchuk, supra note 1 at para 123.
⁴ Ibid at para 125.
⁵ Ibid at para 125.
⁶ Ibid at para 167.
⁷ Justice Megaw also held that two other aspects of the Board’s decision were reasonable: the Board’s determination that the application was not barred by The Workers’ Compensation Act, 2013 and the Board’s decision to dismiss the Union’s claim against the Government.
⁸ Lapchuk, supra note 1 at para 184 quoting Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 (CanLII).