2354-00-U Vincent Riendeau, Applicant v. National Hockey League Players’ Association, Responding Party v. National Hockey League, Intervenor.
BEFORE: Stephen Raymond, Vice-Chair.
APPEARANCES: Gerard Riendeau for the applicant; C.M. Mitchell, A. Bowker and Ian Penny for the responding party; Michael Kennedy for National Hockey League.
DECISION OF THE BOARD; December 10, 2001
This is an application by Mr. Vincent Riendeau (“Mr. Riendeau”) that the National Hockey League Players’ Association (the “NHLPA”) violated the Labour Relations Act, 1995, as amended (the “Act”). Specifically, Mr. Riendeau alleges that the NHLPA violated its obligation to fairly represent him in relation to a grievance.
By decision dated June 4, 2001, I decided that this matter should proceed to a hearing and that notice ought to be provided to the National Hockey League (the “NHL”). Notice was provided. The NHL attended at the hearing on November 19, 2001. Prior to the hearing, the NHL advised the Board and the parties that it intended to make a preliminary objection to the jurisdiction of the Board to hear this matter. By decision dated November 8, 2001, I decided that the preliminary matter would be argued and decided prior to any consideration of the application on its merits.
Background Facts
Mr. Riendeau was a goaltender in the NHL. As of the 1994-95 hockey season, he tended goal for a club in the NHL, the Boston Bruins. That team played its home games (as one might expect) in Boston, Massachusetts. During the season, the Bruins played one hockey game in Ontario. Mr. Riendeau had a guaranteed contract with the Boston Bruins guaranteeing that he would receive his full salary during the 1994-95 season and 1995-96 season regardless of where he played. Towards the end of the 1994-95 season, Mr. Riendeau was sent down to the Bruins minor league affiliate, the Providence Bruins. They play their home games in Providence, Rhode Island.
The facts that gave rise to Mr. Riendeau’s grievance and subsequently to this application can be briefly summarized as follows. While playing in Providence, Mr. Riendeau may or may not have decided to retire and communicated that to the Providence Bruins. Having determined that he had retired, the Boston Bruins (the club that was paying Mr. Riendeau’s salary) decided that it would not pay Mr. Riendeau for the 1995-96 hockey season. Consequently, Mr. Riendeau filed a grievance arising out of the decision by the Boston Bruins not to pay the amount remaining on his guaranteed contract. The grievance was pursued by the NHLPA in 2000 before a mediator/arbitrator, in New York, N.Y., who advised the NHLPA that Mr. Riendeau’s grievance was without merit and that the NHLPA should withdraw it. The NHLPA did. Mr. Riendeau alleges that the decision not to pursue his grievance, and the fact that it took four years to get to an arbitration hearing, constituted a violation of the Act.
The NHLPA has its head office in Toronto, Ontario.
The Issue and Decision
The preliminary issue can be stated quite simply. Does the Ontario Labour Relations Board have jurisdiction to hear the application of a professional hockey player against the NHLPA for a failure to pursue a grievance where the elements of the grievance occurred in the United States of America? The NHL and the NHLPA take the position that the Ontario Labour Relations Board does not have the jurisdiction to do so, Mr. Riendeau takes the position that it does.
This Board does not have the jurisdiction to hear this application and accordingly, it is dismissed for the reasons set out below.
Mr. Riendeau’s employment was in the United States. The fact that he was employed in the National Hockey League and, as a result, would travel to Ontario for some of his employment does not give this Board jurisdiction to hear his application. The central and critical question is – where was he employed? The answer is in the United States and not in Ontario. Unless, when examining that employment, there is a substantial connection to the Province of Ontario, it is inappropriate for this Board to take jurisdiction. No substantial connection exists here. In fact, as was argued by the NHLPA, there is almost no connection at all.
The jurisprudence presented by the parties supports this view. In Otis Canada, Inc., [1997] 44 C.L.R.B.R. (2d) 68 it was found that it is appropriate for a labour board to assume jurisdiction over issues that arise in an employment relationship if the relationship is carried out to some small degree outside the province. Conversely, where the employment is substantially outside the province, the fact that the employee travelled regularly to Ontario and the head office of the employer was in Ontario, did not give the Labour Board jurisdiction (see, MacLeans Magazine, [1983] OLRB Rep. Mar. 401).
Mr. Riendeau argued that the decisions in National Basketball Association, [1995] OLRB Rep. Nov. 1389 and The American League and The National League of Professional Baseball Clubs, [1995] OLRB Rep. Apr. 540, make it clear that this Board does have jurisdiction. Those cases are very different from this case. In those cases, the professional leagues’ referees were locked out. Applications were brought in front of this Board arising out of those lock outs. In both situations there was a league-wide situation in which the professionals referees were not working. The Board found, in each situation, that it had jurisdiction to consider the legal implications of a lock out that was occurring in the Province of Ontario. The fact that the lock out may or may not be occurring elsewhere or that the majority of the work of the referees occurred elsewhere did not alter the Board’s jurisdiction to address the legal issues arising out of a lock out that was happening in Ontario.
Unlike the situation in the above cases where there was a lock out occurring in this province which the Board addressed, in Mr. Riendeau’s situation, nothing occurred in Ontario that gives this Board a nexus with which we can address this situation. The fact that the NHLPA has its head office in Ontario does not give this Board a nexus. It is the location of the employment that is at issue, not the location of the trade union’s head office. Just as a trade union could not escape the jurisdiction of this Board overseeing its obligations to members working in Ontario by moving its head office to New York an employee working in New York (or elsewhere in the United States) who is a member of a trade union with a head office in Ontario does not have the right to come before this Board with a complaint about that trade union.
I should address one final point. The NHLPA took the position in argument that the proper jurisdiction for Mr. Riendeau’s complaint is the National Labour Relations Board in the United States. Whatever Mr. Riendeau’s remedy may be there, if one ever or even still exists, one would hope that pursuing it in the wrong forum before the Ontario Labour Relations Board would not prejudice him there.
“Stephen Raymond”
for the Board