DATE: 20031007

DOCKET: C39358

COURT OF APPEAL FOR ONTARIO

ABELLA, MOLDAVER and SHARPE JJ.A.

B E T W E E N:

STUART CLAXTON

Graydon Sheppard,

for the respondent

Plaintiff (Respondent)

• and -

BML MULTI TRADES GROUP LTD.

Scott G. Thompson,

for the appellant

Defendant (Appellant)

Heard: September 25, 2003

On appeal from the order of Justice J.J. Cavarzan dated December 13, 2002.

ABELLA J.A.:

[1] This appeal is involves the scope of a motions judge’s jurisdiction to determine matters alleged to arise under a collective agreement.

[2] Stuart Claxton worked for BML Multi Trades Group Ltd. (“BML”) as a sprinkler fitter since 1983. He was a member of Local 853 of the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (“UA”).

[3] BML is a construction industry employer and is bound to the National Road Sprinkler Fitter Collective Agreement between the Canadian Automatic Sprinkler Association and several Local Unions of the UA, including Local 853.

[4] On May 6, 2002, Mr. Claxton was laid off when BML’s General Manager accused him of taking a company truck without permission and leaving a company meeting early.

[5] Mr. Claxton’s position is that he was unjustly terminated. Moreover, he asserts that at the time, he was a manager, not an employee in the bargaining unit, since, among other things, he had supervisory responsibilities over several sprinkler fitter employees. When he advised the union by letter dated May 9, 2002 of the circumstances surrounding his termination, he asked that it be dealt with “as a managerial position not a worker”.

[6] The union’s lawyer, in a letter dated June 18, 2002 to the lawyer Mr. Claxton retained to bring legal proceedings, agreed with Mr. Claxton’s position that he was managerial and therefore not covered by the collective agreement. He also indicated that in the construction industry, it was common for a person promoted to management to retain membership in the union.

[7] BML, on the other hand, claims that at the time of his lay off, Mr. Claxton was a sprinkler fitter foreman, employed and paid under the terms of the current Collective Agreement, and that union funds and dues were being deducted and remitted on his behalf to Local 853.

[8] BML also submitted that Mr. Claxton’s duties and responsibilities were the same as those of BML’s other unionized foremen.

[9] On July 16, 2002, Mr. Claxton started an action in the Superior Court of Justice seeking damages for wrongful dismissal.

[10] BML responded by bringing a motion pursuant to Rule 21.01 (3)(a) to have the action dismissed on the grounds that the Superior Court of Justice had no jurisdiction because Mr. Claxton, and the issues he was raising, were covered by the Collective Agreement.

[11] The motions judge dismissed BML’s motion. He examined the evidence before him and concluded that Mr. Claxton was exercising managerial functions. As a result, he found him not to be an “employee” within the meaning of that term in s. 1(3)(b) of the Labour Relations Act S.O. 1995 c. 1. Because Mr. Claxton was not covered by the Collective Agreement, the motions judge concluded that the court had jurisdiction to hear the wrongful dismissal claim.

[12] With respect, the motions judge lacked jurisdiction to embark on an inquiry into whether Mr. Claxton was exercising managerial functions. The only issue he ought to have considered was whether the core of the jurisdictional dispute before him was governed by the terms of the Collective Agreement. By assessing instead the merits of the dispute, namely, whether Mr. Claxton was an employee covered by the Collective Agreement, he was trespassing on arbitrable territory.

[13] McLachlin J., in adopting the ‘exclusive jurisdiction’ model for the resolution of labour disputes in Weber v. Ontario Hydro, [1995] 125 D.L.R. (4th) 583 (S.C.C.), stated, at p. 602, said:

“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.”

[14] This approach finds resonance in s. 48 (1)[^1] of the Labour Relations Act, as well as in s. 133 (1)[^2], which applies to the construction industry. Both provisions confirm that differences between the parties relating to the interpretation, application, administration or alleged violation of a collective agreement, including any question as to whether a matter is arbitrable, are to be determined in accordance with the Collective Agreement.

[15] The preliminary dispute between Mr. Claxton and BML is whether he is covered by the Collective Agreement. If he is, the dispute over his termination will be arbitrated. If he is not, it will proceed in the Superior Court of Justice as a wrongful dismissal action. But the issue whether the dispute is arbitrable, engages squarely the application and interpretation of the Collective Agreement and the motions judge, accordingly, had no jurisdiction to make that determination.

[16] I would expect that the parties – and the union – will co-operate in facilitating a timely, arbitrated determination on whether Mr. Claxton exercised managerial functions or was an “employee” included in the bargaining unit. Thereafter, the appropriate forum for scrutinizing Mr. Claxton’s termination can be identified and his remedies pursued. Until that determination is made, it seems to me to be more appropriate to stay, rather than dismiss the action.

[17] Accordingly, I would allow the appeal, set aside the order of Cavarzan J. dismissing the motion, and substitute a stay of the action.

[18] In all of the circumstances, I believe that the parties should bear their own costs of the motion and of the appeal. I would not award any costs of the appeal.

RELEASED: “OCT –7 2003”

“RSA” “R.S. Abella J.A.”

“I agree M. J. Moldaver J.A.”

“I agree Robert Sharpe J.A.”

[^1]: S. 48 (1): Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable [Emphasis added].

[^2]: S. 133 (1): Despite the grievance and arbitration provisions in a collective agreement or deemed to be included in a collective agreement under section 48, a party to a collective agreement between an employer or employers’ organization and a trade union or council of trade unions may refer a grievance concerning the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable, to the Board for final and binding determination [Emphasis added].