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Retirees Class Action Suit Letdown

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markus	Posted: Mon Jul 07, 2008 10:42 pm
Joined: 06 Jul 2008 Posts: 131 Location: Toronto	I just want to make some comments on the front page article titled, "A Legal Letdown in CCWIPP Class Action Suit. I too think that the retirees should get a second opinion. I noticed the article was written in 2007. Perhaps they have by now., I think they key to this is whether the Ontario Labour Relations Act considers retirees 'employees' Think about it for a moment. To get access to the grievance procedure under a collective agreement, the individual must be an employee in a bargaining unit. To be an employee in a bargaining unit, the person must be employed by an employer. Since retirees are no longer employed by an employer, they are not 'employees' and therefore would not have legal access to a grievance procedure. This would also mean an .,arbitrator would not have authority over the retirees as they are not employees in a bargaining unit and thus not governed under a collective agreement. This in turn would mean that the Ontario Labour Relations Board would not have authority over the retirees either. OLRA, Section 1, Definitions “bargaining unit” means a unit of employees appropriate for collective bargaining, whether it is an employer unit or a plant unit or a subdivision of either of them; (“unité de négociation”) “collective agreement” means an agreement in writing between an employer or an employers’ organization, on the one hand, and a trade union that, or a council of trade unions that, represents employees of the employer or employees of members of the employers’ organization, on the other hand, containing provisions respecting terms or conditions of employment or the rights, privileges or duties of the employer, the employers’ organization, the trade union or the employees, and includes a provincial agreement and does not include a project agreement under section 163.1; (“convention collective”) If a trade union is acting as a trustee does the Ontario Labour Relations Act provide the Ontario Labour Board with authority over the trade union when it is acting as a trustee as oppose to bargaining agent? because I would think for the retirees this would have an impact on whether their issue belongs in the courts or labour board as well. If the union is acting as a trustee perhaps some other law applies to the union in their capacity as Trustee. Bargaining agent we know is OLRA, but trustee of a pension plan? I would think another law besides the OLRA applies to the union in their capacity as Trustee. That law would allow the retiress in the courts “employee” includes a dependent contractor; (“emplo http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_95l01_e.htm#BK0
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SharynS	Posted: Tue Jul 08, 2008 4:31 am
Joined: 28 Jan 2006 Posts: 2939 Location: the 'puter	welcome to uncharted markus. Awesome portrait of a crack in the system. Far too logical. Part (or most) of the problem is trying to find a legal firm to take it on isn't it? If they can't see the money laying on the top, they won't touch it. That's not true, most seem to suck consulting fees before they give you the bad news. _________________ Free speech is the whole thing, the whole ball game. Free speech is life itself. - Salman Rushdie
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markus	Posted: Wed Jul 09, 2008 12:49 am
Joined: 06 Jul 2008 Posts: 131 Location: Toronto	Yes, I agree Siggy, that finding a law firm to take the retirees case can be difficult. While they are looking for a law firm to take their case (If that hasn't occurred as yet) the clock is ticking, as in the two year statute of limitation for filing a law suit. If the retirees find a lawyer to take their case they should assess first before spending thousands of dollars in legal fees if their case is likely barred by the statute of limitation. In other words has the time run out for filing a lawsuit. It would be a sin to have the retirees spend thousands of dollars in legals fees to find out from a judge that their case is barred by the statute of limitation. Better that a lawyer tells them right up front whether their case is statute barred or not.
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wm pasz	Posted: Wed Jul 09, 2008 8:55 pm
Joined: 29 Jan 2006 Posts: 1219 Location: Toronto	A statement of claim was filed in January 2007 so I'm not sure that there is going to be an issue about the limitation period. If there was, I'm not sure where the two year period would begin as - prior to 2005 - no information was available to members at all about their trustees' bizarre investments (in fact, the members were told everything was just great). Even in 2005 when the first of the two FSCO reports were issued, members would have been completely oblivious to the FSCO's findings unless they happened to read the Toronto Star articles that appeared about it in July of that year or found the copy that we posted on the old MFD web site. Since many members neither read the TO Star nor surf the Internet looking for FSCO reports that they don't know exist, how would they have known what the trustees were up to? On top of that the first FSCO report flatly stated that this was not the end of the pension regulator's enquiry into CCWIPP and that a follow-up report was coming. The 2nd report, released early in 2006, was not made public except by the Star and MFD. Yes, it's all going to be quite complicated on one level but on another is the question "were the trustees in breach of their fiduciary duty when they poured hundreds of millions of members' dollars into high risk ventures?" really that hard to answer? _________________ Time is on the side of the oppressed today, it's against the oppressor. Truth is on the side of the oppressed today, it's against the oppressor. You don't need anything else. - Malcolm X
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markus	Posted: Thu Jul 10, 2008 2:23 am
Joined: 06 Jul 2008 Posts: 131 Location: Toronto	A statement of claim was filed in 2007? Who was named as defendant(s). And did the defendant(s) file a statement of defense(s)? A defendant is going to try to get out of a lawsuit, especially when a plaintiff is asking for millions in damages. So a defendant will attempt to use every legal argument valid or not to get out of a lawsuit. One of the ways for a defendant to shutdown a suit before it starts is to argue that the statute of limitations has expired on a claim. And if the defendant is a trade union or union representative, lack of jurisdiction of the court is usually the other argument.
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markus	Posted: Thu Jul 10, 2008 2:43 pm
Joined: 06 Jul 2008 Posts: 131 Location: Toronto	Wm pasz - I read the post titled, " Trustees of CCWIPP Trial" I agree with you that the trustees are a fiduciary which makes the retirees beneficiaries. The problem I think with trade union trustees is that they wrongly apply the much lower standard of duty of fair representation under the Ontario Labour Relations Act, to their fiduciary role and responsibilities as a trustee. The standard of care of a trade union's duty of fair representation to bargaining unit employees under a collective agreement and a trade union trustee's fiduciary duty to beneficiaries (retirees) in the administration of a pension plan are polar opposite. The duty of fair representation standard is so low, that it is almost in reality non-existent. A fiduciary role and responsibility on the other hand legally requires the highest standard of care. This is what trade unions are not accustom to. And the fiasco with the pension plan is a prime example of duty of fair rep. standards being applied to a fiduciary role. It's a disaster. Lawsuits in the making.
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wm pasz	Posted: Thu Jul 10, 2008 4:54 pm
Joined: 29 Jan 2006 Posts: 1219 Location: Toronto	A union's duty of fair representation under the OLRA is nothing at all akin to a pension trustee's fiduciary duty (the union has no "duty of care" obligation at all - only a loosely enforced obligation to not be arbitrary, discriminatory or malicious in its representation of members). This notwithstanding I don't believe that the CCWIPP trustees confused one with the other. I think they knew fully well what it meant to be a fiduciary (especially the employer representatives on the board of trustees, who are all senior executives of their companies). The problem in this case was not that anyone misunderstood their obligations. The problem was they never dreamed they'd ever get caught. _________________ Time is on the side of the oppressed today, it's against the oppressor. Truth is on the side of the oppressed today, it's against the oppressor. You don't need anything else. - Malcolm X
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markus	Posted: Thu Jul 10, 2008 6:52 pm
Joined: 06 Jul 2008 Posts: 131 Location: Toronto	Wm pasz - I don't think that the union trustees were confused about their responsibilities either. I think they do know their responsibilities as a fiduciary. But the fact is a trade union is accustom to the low standard for meeting their duty of fair representation under the OLRA. Although a trade union knows its fiduciary responsibilities as a trustee, it may also have the mind and others too,that because the trustee is a trade union the standard relied on in determining if they breached their fiduciary duty to the retirees may be based on the the much lower standard for a trade union to meet its duty of fair representation under the OLRA, rather than the high standard a trustee is required to meet its fiduciary duty.
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wm pasz	Posted: Thu Jul 10, 2008 7:13 pm
Joined: 29 Jan 2006 Posts: 1219 Location: Toronto	I'm not sure that I understand what you mean. Are you saying that union officials in general may believe that they are held to a lesser standard in relation to their duties as fiduciaries or that they may be held to a lesser standard by the FSCO or the courts because of they are union officials? _________________ Time is on the side of the oppressed today, it's against the oppressor. Truth is on the side of the oppressed today, it's against the oppressor. You don't need anything else. - Malcolm X
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markus	Posted: Thu Jul 10, 2008 11:30 pm
Joined: 06 Jul 2008 Posts: 131 Location: Toronto	Wm pasz - "Yes", I believe that it's possible. Though it wouldn't be publicly admitted that the standard being applied is lower. It would just simply be stated that the retirees didn't prove their case in showing that the union officials failed to meet their fiduciary duty. That's the downside. The upside is if you take this into consideration going into the proceeding, that this may occur, then you can prepare to fight it of you sense that that this where they're heading. No point being naive or idealistic about our legal system. Prepare for the worst and hope for the best. And, "yes", I believe that union officials believe they will be held to a lower standard by the court and the FSCO.
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wm pasz	Posted: Thu Jul 10, 2008 11:54 pm
Joined: 29 Jan 2006 Posts: 1219 Location: Toronto	I don't doubt that when they are finally dragged up the courthouse steps the trustees will try every angle to beat the rap. Unfortunately for them, they can't shirk their fiduciary duty by pleading insanity or even stupidity. The OLRB has said in a number of cases that union officials who sit as fiduciaries on the boards of pension and benefit funds have responsibilities that are completely separate and distinct from their roles as union reps. The OLRB has ruled that it has no jurisdiction over pension funds and their trustees. Pension funds are not unions - they're completely separate entities and their trustees are all held to the same standards (regardless of whatever lower standards they may be subject to in their jobs as union reps). I have to say that it would be entertaining to watch the trustees make such an argument but I'm quite sure that it won't get them anywhere. _________________ Time is on the side of the oppressed today, it's against the oppressor. Truth is on the side of the oppressed today, it's against the oppressor. You don't need anything else. - Malcolm X
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markus	Posted: Fri Jul 11, 2008 2:25 am
Joined: 06 Jul 2008 Posts: 131 Location: Toronto	Wm pasz - You doubt that they will try to beat the rap? Why would they not? They'll try. They have influence (union members money) to help them escape accountabilty. It's up to the retirees to make sure they don't.
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wm pasz	Posted: Fri Jul 11, 2008 11:08 am
Joined: 29 Jan 2006 Posts: 1219 Location: Toronto	I said that I don't doubt that they will try to beat the rap. _________________ Time is on the side of the oppressed today, it's against the oppressor. Truth is on the side of the oppressed today, it's against the oppressor. You don't need anything else. - Malcolm X
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markus	Posted: Fri Jul 11, 2008 1:10 pm
Joined: 06 Jul 2008 Posts: 131 Location: Toronto	wm pasz wrote: I said that I don't doubt that they will try to beat the rap. You are right. Sorry.
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markus	Posted: Fri Jul 11, 2008 3:10 pm
Joined: 06 Jul 2008 Posts: 131 Location: Toronto	Wm pasz - Do you or anyone else know if the trustees are paying their own legal fees?
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