DATE: 20010118

DOCKET: C34365

COURT OF APPEAL FOR ONTARIO

RE: KEN GOUDIE, RON LABONTE, LLOYD LAFRAMBOISE,

CONRAD LIRETTE and REMI SEGUIN (Plaintiffs/Appellants)

v. THE CORPORATION OF THE CITY OF OTTAWA (Defendant/Respondent)

BEFORE: CARTHY, DOHERTY and ROSENBERG JJ.A.

COUNSEL: Emilio S. Binavince and Christopher Maguie,

for the appellants

Carey B. Thomson and Stuart J. Huxley,

for the respondent

HEARD: January 11, 2001

On appeal from the judgment of Justice Michel Z. Charbonneau dated May 5, 2000.

E N D O R S E M E N T

[1] The central claim by the appellants is that in September 1983 representatives of the respondent represented to them that they would have the same terms and conditions that they had enjoyed as civilian employees of the police force. They allege that they agreed to the transfer to the respondent’s Department of Physical Environment on the basis of this representation. They concede that this agreement was honoured until July 5, 1985. There is some evidence to support the view of the motions judge that during this period the appellants were covered by the Police Association collective agreement.

[2] On June 5, 1985, the appellants were informed that a core term of the “agreement” would not be honoured and that they would be required to work 40 rather than 35 hours per week. The motions judge found that at that point the appellants “could have exercised the rights they had under the existing agreement [the Police Association agreement] and asked an arbitrator to enforce their rights”. (As indicated, it was open to the motions judge to find that the appellants were still covered by the Police Association agreement at that time.) On this basis the motions judge held that Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929 applied and the court had no jurisdiction. He therefore dismissed the action.

[3] The appellants argue that Weber has no application because the appellants’ dispute is not with the Board of Commissioners of Police, the party to the Police Association agreement, but with their new employer, the respondent. Thus, they submit that the motions judge was in error in holding that they could have invoked the arbitration clause in the Police Association agreement. They also submit that the actual wrongful conduct did not occur until after July 5, 1985, by which time the appellants were no longer covered by the Police Association agreement.

[4] As is well known, in Weber the Supreme Court adopted the exclusive jurisdiction model, which McLachlin J. described as follows at p. 956:

On this approach, the task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether the dispute or difference between the parties arises out of the collective agreement. Two elements must be considered: the dispute and the ambit of the collective agreement.

In the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it did not. Some cases, however, may be less than obvious. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.

And at p. 957:

This approach does not preclude all actions in the courts between employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts… [Emphasis added.]

[5] Thus, however broad the reach of the Weber doctrine, it is founded upon the relationship of employer and employee as governed by the collective agreement. A pre-employment agreement would not be covered by Weber. Thus, in Weber at p. 956, McLachlin J. cited with approval the decision of the British Columbia Court of Appeal in Wainwright v. Vancouver Shipyards Co. (1987), 1987 166 (BC CA), 38 D.L.R. (4th) 760. In that case, the employer, anxious to attract skilled employees, promised the plaintiffs that if they agreed to move to Vancouver and accept employment at the shipyard they would be assured of a number of years’ full employment without lay-off. The trial judge heard evidence that this period of full employment ranged from three years to seven years. He held that they had been assured of at least three years’ full employment. The employees were required to become members of a union, which had a closed shop agreement with the shipyard. There was a collective agreement in force that provided that the most recent employees were to be first to be laid off in the event lay-offs occurred. After a year and a half of employment the plaintiffs were laid off because of a downturn in the work available to the shipyard.

[6] The employer argued that the court had no jurisdiction to entertain the claim for breach of contract, but rather that the matter must go to arbitration pursuant to the provisions of s. 93(2) of the Labour Code, R.S.B.C. 1979, c. 212. The appellant relied upon the pre-Weber cases of McGavin Toastmaster Ltd. v. Ainscough et al., 1975 9 (SCC), [1976] 1 S.C.R. 718 and St. Anne-Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, 1986 71 (SCC), [1986] 1 S.C.R. 704.

[7] Speaking for the court at p. 763, Hinkson J.A. held as follows:

In my opinion, if the claims of the plaintiffs in these proceedings were that because of the pre-employment contracts, they could not be laid off pursuant to the terms of the collective agreement, clearly that would be a matter for arbitration, but those are not the claims advanced here. The trial judge found upon the basis of the evidence of the plaintiffs that they were given to understand that they would not be laid off for three years. That finding supports a conclusion that there were pre-employment contracts. These claims do not arise out of the collective agreement. They are claims arising out of a contract governed by common law principles. In my opinion, the court did have jurisdiction. [Emphasis added.]

[8] Wainwright was followed by this court in Johnston v. Dresser Industries Canada Ltd. (1990), 1990 6808 (ON CA), 75 O.R. 609 and, as indicated, was cited with approval by McLachlin J.

[9] In our view, it would be open to a trial judge to find that the plaintiffs had a pre-employment agreement with the respondent. If so, their claims do not arise out of the collective agreement with the Police Association. Thus, at this stage in the proceedings, we cannot say that the courts have no jurisdiction under the Weber doctrine. The terms of this oral agreement have not yet been established and we should not be taken as precluding the respondent from arguing at trial, in light of the evidence, that the court has no jurisdiction once the true nature of the alleged agreement is established. Nor should we be taken as precluding an argument on the enforceability of any alleged agreement after the appellants were covered by the C.U.P.E. agreement.

[10] As an alternative basis to support the motions judge’s decision, the respondent argues that the appellants were really attempting to assert successor rights against the City and that as civilian members of the police force they were precluded from doing so. This issue was only briefly mentioned in argument and had not been dealt with by the motions judge. By its terms, the Labour Relations Act, R.S.O. 1990, c. L.2 does not apply to a member of a police force and the respondent submits that civilian members of the force are deemed to be members of the police force (Police Amendment Act, 1965, S.O. 1965, c. 99, s. 6(1)). Thus, the successor rights provisions in the Labour Relations Act, s. 63 would have no application. However, it is not apparent to us that this is a proper characterization of the appellants’ claim. In any event, this submission does not go to the court’s jurisdiction.

[11] Accordingly, the appeal is allowed and the order dismissing the action is set aside. The appellants are entitled to their costs of the appeal. The order of the motions judge that, due to the defendant’s delay in bringing the motion, the plaintiffs should have their costs of the motion will stand.

(signed) “J. J. Carthy J.A.”

(signed) “Doherty J.A.”

(signed) “M. Rosenberg J.A.”