DATE: 20021106 DOCKET: C38193

COURT OF APPEAL FOR ONTARIO

RE: KELVIN J. HUGHES (Respondent) – and – WATERLOO REGION DISTRICT SCHOOL BOARD (Appellant)

BEFORE: AUSTIN, CHARRON and CRONK, JJ. A.

COUNSEL: Stephen F. Gleave, for the appellant

Kelvin J. Hughes, In Person

HEARD: October 30, 2002

On appeal from the judgment of Justice P.B. Hambly, sitting as a single judge of the Divisional Court, dated January 25, 2002.

E N D O R S E M E N T

Released Orally: October 30, 2002

[1] [1] In reliance on s. 48 (1) of the Ontario Labour Relations Act, the appellant submits that it was at least arguable that the respondent was a member of the O.S.S.T.F. at the relevant time, such that a stay of the respondent’s action should have been granted to permit the determination by an arbitrator of whether the collective agreement applied.

[2] [2] In an appropriate case it may be preferable for the court to defer in the first instance to an arbitrator to determine a preliminary question regarding the scope of a collective agreement, such as the issue of membership, and to stay the proceedings pending such determination. On the record in this case, however, we are not satisfied that the Divisional Court and the Small Claims Court judges erred in deciding the matter and in concluding that the respondent was not a member of the O.S.S.T.F. There was an evidentiary basis to support the conclusions of the Divisional Court and the Small Claims Court judges in that regard. The onus was on the appellant to establish otherwise. We are not satisfied that the appellant met that onus. Accordingly, the appeal is dismissed. On consent of the parties, our decision concerning costs is reserved pending receipt of the respondent’s written submissions on costs, which are to be filed with the court within one week from today’s date.

“Austin J.A.”

“Louise Charron J.A.”

“E.A. Cronk J.A.”