DATE: 20040513
DOCKET: C40680

COURT OF APPEAL FOR ONTARIO

RE:

MICHEL BRAZEAU and GAIL BRAZEAU (Plaintiffs/Respondents) v. FALCONBRIDGE LIMITED, MARTIN PARNELL, and ALISON DE LUISA (Defendants/Appellants)

BEFORE:

DOHERTY, FELDMAN and LANG JJ.A.

COUNSEL:

Michael J. Kennedy for the appellant

Rodney Lapointe for the respondent

HEARD:

May 7, 2004

RELEASED ORALLY:

May 7, 2004

On appeal from the order of Justice Del Frate of the Superior Court of Justice, dated September 3, 2003.

ENDORSEMENT

[1] The appellants/defendants moved for judgment under Rule 21 on the basis that:

The Court has no jurisdiction since the Plaintiff’s claim arises under the collective agreement and is in essence a claim for constructive dismissal or bad faith treatment of the Plaintiff or relates to the subject matter of the health or safety of the Plaintiff.

[2] The motion judge summarized the appellants’ argument in these terms:

The Defendants, relying on the Statement of Claim, submit that it discloses no cause of action. They argue that since the facts outlined in the Statement of Claim disclose that the essential character of the main of action arises from the Collective Bargaining Agreement, then the remedy against Falconbridge must be pursued through the grievance procedure outlined in that Agreement.

[3] In dismissing the motion, the trial judge said:

It is clear from the allegations in the Statement of Claim that this term of the Return to Work Agreement has been breached by the Union and its members. Likewise, the Defendants are alleged to have breached the Collateral Agreement. It would be open to the trial Judge to find that this breach is a separate cause of action not covered by the Collective Bargaining Agreement. This, in my opinion, raises a triable issue against all the Defendants and thus, the Motion, pursuant to Rule 21(3) fails [emphasis added].

[4] The formal order simply dismisses the defendants’ motion.

[5] Prior to the argument of the appeal, the court raised the question of its jurisdiction. The issue as to whether the order made was final or interlocutory was addressed by counsel prior to argument of the merits. We have concluded that the appeal is interlocutory. We do not reach the merits.

[6] It is common ground that the motion judge declined to decide whether a breach of the collateral agreement is covered by the collective agreement but instead left that issue to the trial judge. He did not make a final decision on that issue.

[7] Mr. Kennedy forcefully argued, however, that the order was final in that the question of who should decide whether the allegations were arbitrable under the collective agreement had been decided against him by the motion judge. Mr. Kennedy submitted that the order of the motion judge foreclosed an argument before the trial judge that an arbitrator and not the trial judge should decide whether the allegations were arbitrable and, therefore, not actionable in the Superior Court.

[8] If Mr. Kennedy’s interpretation of the decision of the motion judge was correct, we would agree with him that this is a final order as defined in the jurisprudence from this court. We cannot, however, agree with his interpretation.

[9] It is not clear whether the question of who should decide whether the claims were arbitrable was raised as a distinct issue before the motion judge. It would appear that he was asked to rule that the merits of the claims had to be decided by an arbitrator under the collective agreement. In any event, the decision of the motion judge in no way forecloses argument before the trial judge that an arbitrator and not a trial judge must decide whether these claims are arbitrable. Counsel for the respondents has agreed in this court that the appellants may raise this issue at trial, and that nothing said by the motion judge should be taken as having decided whether an arbitrator and not the trial judge should decide whether the claims are arbitrable.

[10] We are satisfied that the decision is therefore interlocutory, and that we therefore have no jurisdiction and the appeal must be quashed.

[11] No costs.

“Doherty J.A.” “K. Feldman J.A.” “S.E. Lang J.A.”