You’re Talking About Me, Right? When Employees Oppose Their Union
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Introduction
Third parties almost never get a seat at the arbitration table, but every so often an employee insists on weighing in against their own union – and is sometimes granted standing to speak or be represented, usually with respect to interests which may be against their union. However, the right to speak may (or may not) come with an obligation to pay arbitration costs.
In British Columbia Emergency Health Services v. Ambulance Paramedics of British Columbia – CUPE Local 873, 2026 CanLII 4944 (BC LA), Arbitrator Christopher Foy (the “Arbitrator”) granted an employee third‑party standing after the union grieved the employee’s promotion as a breach of the collective agreement’s probationary provisions. In a subsequent decision arising from the same dispute, 2026 CanLII 14836 (BC LA), the union unsuccessfully moved to have the employee pay a one-third portion of the arbitration costs.
What Happened?
In this decision, the Ambulance Paramedics of British Columbia – CUPE Local 873 (the “Union”) filed a grievance against the employer, British Columbia Emergency Health Services (the “Employer”), alleging that a member, Dr. Andrew McLaren (the “Applicant”), was improperly promoted prior to the completion of his probationary period in breach of the collective agreement. The Union sought removal of the Applicant from his new position.
The Applicant sought standing in the arbitration proceeding on the basis of natural justice, as the outcome of the proceeding would significantly affect his interests. “Standing” refers to whether or not a party to a proceeding has the legal right to represent their interests and seek a remedy.
After successfully being granted standing by the arbitrator, the Union sought to have the Applicant pay a third of the arbitration costs but was unsuccessful due to the Applicant’s limited participation.
The Decisions
The Arbitrator reaffirmed that third-party standing is granted only in “exceptional and limited circumstances,” requiring the applicant’s interests to be affected by the proceedings and diverge from the parties’ positions.
Nevertheless, the Arbitrator held that the Applicant had satisfied the strict test for standing, as the Applicant had an “important stake in the outcome” for the following reasons:
- The outcome of the proceeding had the potential for the Applicant to lose his current permanent employee status and be reverted to a probationary employee. The loss of permanent employment would have repercussions on the Applicant’s security of tenure and his eligibility for promotions.
- The Applicant’s interests diverged from the Union’s position as the Applicant maintained that he had completed his probationary period.
The Arbitrator granted the Applicant third-party standing in the arbitration and rights “to present relevant evidence and submissions concerning potential remedies that will directly impact him if the Union’s grievance is successful,” as per the Applicant’s request. However, the Arbitrator was mindful to remind parties that “the exercise of the right of participation and representation is subject to control so as to avoid abuses of process and a denial of a fair hearing to the Union” and that those granted standing may be required to pay costs of the arbitration.
As a result of the standing decision, the Union brought an application for the Applicant to pay a third of the fees and expenses of the arbitration. The Arbitrator deferred the costs decision until the resolution of the grievance. The Union subsequently moved to withdraw the grievance but not its application to have the Applicant share in the costs of the proceeding. Both the Employer and Applicant opposed the request to have the Applicant pay any costs.
The British Columbia Labour Relations Code (the “Code”) includes a discretionary provision permitting arbitrators to determine whether third parties permitted to participate in a hearing are to pay any fees or expenses. While the collective agreement had two provisions with respect to cost sharing, the Arbitrator determined that there was nothing which would oust his jurisdiction whether or not to exercise his discretion under the Code.
The extent of the third party’s participation was held to be the most significant factor. While the Applicant was granted standing, he had no input into the scheduling of the hearing, he only participated in submissions concerning potential remedies and his counsel attended one case management conference specifically as a “watching brief.” Accordingly, the Arbitrator declined to order any contribution from the Applicant, with the arbitration fees being split equally between the Employer and Union.
Conclusion
Arbitration is an expensive proposition. Tactically, unions often use the cost of arbitration (or the potential cost of going to arbitration) as leverage against employers. Third-party requests for standing are rare but are often brought when a union’s own member believes their interests are not being represented by the union.
This decision gives employers a sense of the criteria for when arbitrators may grant standing. An applicant must show that the outcome of the proceeding would impact their interests and that those interests diverge from those of the existing parties.
The Workplace Law Group at Aird & Berlis LLP provides strategic labour advice to help employers navigate union-related challenges, from resisting certification to managing collective bargaining and arbitration. Please contact the authors or a member of the team if you have any questions or require assistance.
