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Yesterday, I posted about the CBC/Canadian Media Guild collective agreement and how in my view it precludes Jian Ghomeshi’s lawsuit from proceeding in court. Mr. Ghomeshi’s remedy for the termination of his employment rests with the grievance process provided for in the collective agreement.

As a Union member, Mr. Ghomeshi’s interests in the grievance process would be represented by the Canadian Media Guild. They are the party to the collective agreement, and are charged with making the decisions on: (1) whether to carry a grievance to arbitration; (2) if there is an arbitration, whether to settle it; and (3) if settled, on what terms. Throughout this decision making process, the Union is not in way bound to follow the instructions of Mr. Ghomeshi. While the Union must undoubtedly take his interests strongly into account, the Union is entitled to consider the wider implications of its decision making on the membership and organization as a whole. So long as it does not act “in a manner that is arbitrary, discriminatory or in bad faith” in its representation of Mr. Ghomeshi, (to use the language in the Canada Labour Code, section 37), its decisions are insulated from review.

What this means in practice was summarized by the Supreme Court of Canada in Gendron v. Supply and Services Union of the Public Service Alliance of Canada, [1990] 1 S.C.R. 1298:

(1) The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a corresponding obligation on the union to fairly represent all employees comprised in the unit;

(2) When the right to take a grievance to arbitration is reserved to the union, the employee does not have an absolute right to arbitration and the union enjoys considerable discretion;

(3) This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance, taking into account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests of the union on the other;

(4) The union’s decision must not be arbitrary, capricious, discriminatory or wrongful;

(5) The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, without serious or major negligence, and without hostility towards the employee.

It is inevitable that there will in some cases be conflicting interests between those of an individual grievor and other Union members. In those cases, “the union may pursue one set of interests to the detriment of another as long as its decision to do so is not actuated by any of the improper motives described above, and as long as it turns its mind to all the relevant considerations. The choice of one claim over another is not in and of itself objectionable. Rather, it is the underlying motivation and method used to make this choice that may be objectionable.”

In Mr. Ghomeshi’s case, the Canadian Media Guild will have a difficult decision to make. Does it carry the grievance to arbitration, having regard to the very serious consequences to Mr. Ghomeshi of the termination of his employment, or does it give primary emphasis to the interests of the wider membership?

While not clearly known at this point, other Union members may have been impacted by Mr. Ghomeshi’s conduct. It must be remembered that Mr. Ghomeshi has stated he will be seeking reinstatement, and thus the Union might decide that the interests of other employees deserved greater protection. Given the massive publicity, there also seems little doubt that a reinstatement would impact, perhaps negatively, on the perceptions of the CBC. The Union might decide this would be harmful to the interests of the rest of the membership.

So long as the Canadian Media Guild turns its mind to the relevant considerations, and reaches its decisions honestly and in good faith, Mr. Ghomeshi would have no grounds to complain if the Union were to decide not to pursue the matter. In that case, with a lawsuit barred from proceeding in court, and a grievance the Union decided not to pursue, Mr. Ghomeshi would be left without a remedy.