DATE: 20010921
DOCKET: C35677

COURT OF APPEAL FOR ONTARIO

RE:

GLENN RATHWELL on his own behalf and on behalf of all other members and former members of the RETAIL WHOLESALE/CANADA CANADIAN SERVICES SECTOR DIVISION OF THE UNITED STEEL WORKERS OF AMERICA, LOCAL 416, UNIT 1 (Plaintiffs/Respondents) v. HERSHEY CANADA INC. (Defendant/Appellant)

BEFORE:

LASKIN, FELDMAN and SIMMONS JJ.A.

COUNSEL:

W.J. Hayter for the appellant

Judith Allen for the respondents

HEARD:

September 7, 2001

On appeal from the order of Justice Bernard Manton dated December 22, 2000

ENDORSEMENT Released Orally: September 7, 2001

[1] The appellant company contends that the respondent’s claim cannot be litigated because an arbitrator has exclusive jurisdiction over the dispute on the principles set out in Weber.

[2] The parties have changed their positions. In 1997 the union filed a grievance claiming that the dispute was arbitrable. The appellant then took the position that the arbitrator had no jurisdiction and that the Union had to seek relief before the Unemployment Insurance Commission. The arbitrator held that he had no jurisdiction over the grievance.

[3] The Union sought redress from the Commission but was denied relief. It then issued its statement of claim. The appellant brought an earlier motion contending first that the court had no jurisdiction over the Union’s claim because that jurisdiction resided solely with the Commission, and second that the Commission’s ruling raised an issue estoppel against the Union. This court disagreed with the appellant’s contention holding that the Commission did not have jurisdiction to make the decision it made and that the Union’s claim could go forward in the courts.

[4] The appellant now contends that the Union’s claim must be arbitrated and that the court has no jurisdiction over it. The appellant argues that the arbitrator’s decision is not binding because neither party put before him the provision of the earlier collective agreement that expressly spells out the trade off between the ongoing medical benefits and the waiver of the employees’ right to share in the premium reductions. The appellant submits that had the arbitrator been aware of this earlier provision he would have come to a different conclusion. The appellant says that issue estoppel cannot confer jurisdiction on the court, a jurisdiction precluded by the application of Weber.

[5] We do not need to reach Weber because the question whether the dispute should be arbitrated is res judicata. Issue estoppel applies to the arbitrator’s decision because the parties were the same, the issue was the same and the decision was final. The subsequently discovered evidence, the provision of the earlier collective agreement, cannot affect the application of issue estoppel at least absent the appellant showing that it could not have put their evidence before the arbitrator by the exercise of due diligence. The appellant has not met the due diligence requirement.

[6] Even however, if the arbitrator’s decision does not raise an issue estoppel, the earlier decision of this court operates to make the position now asserted by the appellant res judicata. Although the appellant, for its own reasons, may not have wanted to raise the Weber point on the earlier motion and appeal, the principle of res judicata requires it to have done so. A party cannot re-litigate a claim that it could have raised in an earlier proceeding. Finality demands no less. By the time of that earlier motion and appeal all the facts including the earlier provision of the collective agreement, were known to both parties. Res judicata therefore applies.

[7] For these reasons the appeal is dismissed with costs.