Superior Court Justice Ruling - Barry Weisleder v. OSSTF

1. This is a motion by the plaintiff, in an action which there is yet no statement of claim, for a mandatory injunction restoring him to his position as president of a bargaining unit of the defendant and suspending the operation of the determination at a hearing by the defendant's Judicial Council and an appeal hearing by the Appeal Committee, that the plaintiff should be removed as presdent of the unit. There were several findings of some considerable importance made of misconduct on the part of the plaintiff in carrying out his duties. These findings came after a very long hearing into complaints lodged with the union by some of it's members, some from a "team" opposed to the plaintiff's "team" within the unit.

2. This has been categorized by both counsel as an urgent matter. I deal with it now, perhaps not in the most mellifluous language, and without any extra baggage of review of accepted legal principle, but in a way that conveys my views on the key issues presented. in fairness to counsel it should be emphasized that there was little or no dispute about applicable legal doctrine.

3. Dealing with the first and preliminary point taken by the defendant, it is urged that the plaintiff does not come to this court with "clean hands", as that phrase has come to be used to cover an amorphous and multitudinous group of sins in regard to requests for discretionary relief. It is put that the complaints were lodged against him and during and after the hearing referred to, the plaintiff continued in a course of improper behaviour. While it is conceded that any such conduct could not properly include the very activities which have been the subject of complaints, a hearing, a request for leave to appeal and an appeal, it is urged that what is relied on should be measured against the background of those activities found to have occurred or admitted as having occurred in the course of the union proceedings.

(a) The plaintiff arranged, with the cooperation of his supporting members on the executive of the bargaining until, to become its first administrative assistant, right after the appellate process confirmed, at the end of 2002, that he was to be removed as president, not to b be able to run for union office for 32 months. The job was to pay $40,000.00 out of an annual budget of $108,000.00 in which there was no reference to my such post, the amount to be contrasted with the president's salary of $35,000.00 The duties of the job, subject to presidential direction, were for the most part, those of a president.

(f) The plaintiff directed that there be a local levy against local union members to generate funds for the legal fees, which funds were sought by the plaintiff to be paid directly by the relevant school board to him. The union itself and the school board declined to support or follow this request. The matter ended up before the O.L.R.B. which ruled that the union was right in preventing this sort of use of obligatory union levies.

(g) After the bargaining unit was dispossessed by the union, the plaintiff arranged to move the local bargaining unit office to a room in his home, with phone, fax, files and other accoutrements of union business, the deal to be that the plaintiff would receive $15,000.00 in annual rent from the bargaining unit of which he was president. This made the conduct of business by other union representatives difficult. The rent has not been paid although at least the supporters of the plaintiff on the executive committee apparently endorsed this business deal with him.

(h) The plaintiff admitted, in the course of the appellate process with respect to the penalty aspect of the proceeding, which was the only facet of the matter on which leave appeal was granted, to certain misconduct of a not entirely dissimilar kingd or quality, in relation to some of the charges that came to be laid against him as a result of the complaints by some union members. These were recorded and relied on at the appellate level in the reasons given there.

5. It is easy to understand why it is the at the "clean hands"argument is advanced and why the defendant might well be troubled by what has occurred, but I do not think that the circumstances relied on are sufficiently related to the formal complaints dealt with at the hearing and appellate levels to enable me to bar the plaintiff's claim for relief out of hand. Some, or all, of the facts relied on, might properly by the subject matter of a new series of complaints, but they do not stand unchallenged ( and were sought be be explained or justified by reference to material before me) and they do not directly relate to the earlier charges.

6. I do accept that, this being a request for a mandatory order, a strong prima facie case must be made out by the plaintiff. Without meaning in any way to dimish or over-simply the submissions made by the plaintiff, it is said that the strong case lies in the denial to the plaintiff of natural justice in the conduct of the hearing and appeal processes in at least the following important ways. ( It should be added here that, in response to my challenge to plaintiff's counsel about the almost vituperative language used by him in regard to officials' conduct at the hearing and appellate levels, he made it clerk that he did not allege that there was any bad faith or deliberate misconduct on their part.

(a) The Judicial Council applied from time to time different standards to the permissible reach and propriety of cross-examination of witnesses, first deciding that there could be no cross-examinations of witnesses, first deciding that there could be no cross-examination on any matter that had not be en referred to in direct examination, then modestly altering that ruling, and then seemingly returning to it later on. It is put that this fundamental interference with the right fully to cross-examine witnesses may have had a real impact on the hearing and its result, granted that that is necessarily not capable off cogent demonstration.

(be) The Judicial Council understood that there could be no charge based on something that occurred more than 60 days before the complaint about it was made. They used the relevant by-law 8.2 limitation requirement to bar certain evidence about possibly relevant factual circumstances. The event about which a complaint could be made was limited by the by-law but that should not have been used as a relevance test in considering the admissibility of testimony or documents related to charges properly before the Council.

(e) The Appeal committee failed to grant leave to appeal on liability, an argument advanced despite the fact that there was determination, under by-law 9.2.3 that it was not satisfied that the appeal raised matters of importance to the Union involving the interpretation or application of its Constitution and or Bylaws ad that the plaintiff had demonstrated an arguable case.

7. In my view a strong prima facie case is entirely supportable, founded on the complaints made about the "60 day rule" and the restriction on cross-examination. It may very well be that at any trial it would be made clear that these procedural matters ought not to carry the day and that it is not necessarily the case that traditional practices and procedures in a court setting should be imported into the kind of hearing that is the subject of complaint in this action. But there is a case made out to the level required.

8. The appellate proceedings would not, for me standing alone, satisfy the required test. The complaints rest on procedural matters which, it is argued, carry the case far enough to support fundamental denial of natural justice, but the points raised do not attain this level. There are strong arguments that the steps followed were entirely supported by the relevant by-laws and that nothing done, or not done, by the appeal Committee had the dramatic effect claimed by the plaintiff.

9. As for how the matter of penalty handled by the Judicial Committee and the Appeal Committee, both groups presumably brought to the problem the wisdom of experience in active participation in union activity. There is substantial support for the proposition that the charges of which the plaintiff was found guilty were serious and even pervasive. The reasons for penalty given at both levels would seen to refect consideration of the proper principles to be applied.

10. Dealing with irreparable harm, recognizing that it is the nature of the harm and not its magnitude that must be considered, I an not satisfied that it exists in this case. The plaintiff is capable of being made whole by damages, and the reach of the impact upon him of the rulings about which he complains is not such as to bring me to the conclusion that only and immediate injunctive relief can provide the required remedy. He remains a union member, with full privileges apart from running for union office. He continues to practice as a teacher. He can, and presently so, in one way or anther, participating at the invitation of the executive of the bargaining agent, in administrative affairs. Loss of presidential power is a factor as is loss of presidential salary, but the former does not constitute irreparable harm to the plaintiff and the latter is capable of remedy by application of simple arithmetic. I should add that I quite recognize that the factors that play out here, both in regard to irreparable harm and in regard to balance of convenience, are in a union context are not simplistically to be analogized to the ordinary workplace situation.

11. As for the balance of convenience, or the balance of inconvenience test, as it has more recently been described, I an not of the view that the plaintiff is more ill-favoured by refusal of relief. The interest touched are fairly clear in this case. One must bear in mind that it is not the bargaining unit or its members who must be directly considered. There are strong argument to be made that there are, at the very least two strong and compatible views that might be taken from membership side, especially in light of the fact that the plaintiff, at the appeal committee hearing, conceded, seemingly as supportive of remorse, that he had done some of the things that were the subject matter of the charges he faced and of which he was found guilty ( I do bear in mind, with regard to this narrow aspect of the matter, the fact that concessions made by the plantiff on the appeal took place after leave to appeal liability had been denied, but also bear in mind the fact that, in the context of this motion, I should rightly assume that the concessions were proper and truthful and not simply intended to mislead the appeal Committee.) Although it must be acknowledged that the plaintiff was elected and re-elected to office, the union defendant could be placed in an extraordinary difficult position in regard to its continuing obligations to union members, if the plaintiff, after all that has occurred, were forced back in as president by interlocutory and discretionary court order. The balance of convenience favours maintenance of the most recent status quo and denial of relief.