COURT OF APPEAL FOR ONTARIO
RE: STANLEY DWYER (Appellant/Plaintiff) –and-
CAVALLUZZO, HAYES, SHILTON, McINTYRE & CORNISH
and JAMES K.A. HAYES (Respondents/Defendants)
BEFORE: MORDEN, CATZMAN AND MOLDAVER JJ.A.
COUNSEL: E. Guiste, for the appellant/plaintiff
J. Murray and B. Hutchison, for the
respondents/defendants
HEARD: July 5 and 6, 2000
On appeal from the Order of Ground J. dated September 21, 1999.
E N D O R S E M E N T
1In our view, Ground J. was correct in dismissing the
appellant’s action against the respondents on the basis that the
court did not have jurisdiction to entertain the claim.
2The terms and conditions of the appellant’s employment were
governed by a collective agreement between the appellant’s
employer, Canada Post, and the Canadian Union of Postal Workers.
The agreement provided for final and binding arbitration of all
disputes arising out of its operation, including allegations of
unjust dismissal.
3Pursuant to Article 9.29 of the collective agreement, the
Union had the sole discretion to refer an employee grievance to
arbitration. The Union did just that in this case and it
retained the respondent Hayes to present the appellant’s
grievance.
4Against this backdrop, we are satisfied than in its essence,
the appellant’s dispute with Hayes arises from the administration
of the collective agreement. The processing of grievances is
clearly an aspect of the collective agreement and the appellant’s
contact and relationship with Hayes and his law firm came about
as a direct result of the terms of the collective agreement
governing the resolution of grievances.
5Given that Hayes was retained by the Union, the
solicitor/client relationship was between Hayes and the Union,
not between Hayes and the appellant. Accordingly, the only duty
owed to the appellant was that of the Union to provide him with
fair representation in accordance with s. 37 of the Canada Labour
Code. As the Union’s agent, Hayes bore the responsibility of
discharging that duty in the presentation of the appellant’s
grievance.
6In cases such as this, where an employee alleges that the
Union has breached its s. 37 duty, it is well established that
the Canada Labour Relations Board has the exclusive jurisdiction
to remedy the breach.
7In support of his position that Ground J. erred in
dismissing his action for want of jurisdiction, the appellant
relies on the Board’s policy which excludes simple negligence as
a basis for concluding that an employee’s right to fair
representation has been violated. Accordingly, he submits that
the court is the only forum available to obtain a remedy for
negligent representation.
8In our view, the appellant’s argument is misconceived. If
the Board’s test for unfair representation is either arbitrary or
too narrow, the remedy lies in an application for judicial review
to the Federal Court of Appeal. That is precisely the route the
appellant took, albeit unsuccessfully, after receiving the
decision of the Board dismissing his s. 37 “unfair
representation” complaint.
9In view of our conclusion on the issue of jurisdiction, we
find it unnecessary to decide whether Ground J.’s alternative
basis for dismissing the action (issue estoppel) was correct.
10Accordingly, the appeal is dismissed with costs.
