DATE: 20050920

DOCKET: C43068

COURT OF APPEAL FOR ONTARIO

RE:

THE CORPORATION OF THE TOWN OF KAPUSKASING (Appellant) – and – THE KAPUSKASING ASSOCIATION OF PROFESSIONAL FIRE FIGHTERS (Respondent)

BEFORE:

GOUDGE, FELDMAN AND MACFARLAND JJ.A.

COUNSEL:

John W. T. Judson and Leanna J. T. Simpson

for the appellant

Sean McManus and Jodi Hubler

for the respondent

HEARD:

September 6, 2005

On appeal from the judgment of the Divisional Court (Justice John O’Driscoll, Justice Dennis Lane and Justice John Jennings) dated October 22, 2004.

E N D O R S E M E N T

[1] In our view both the arbitrator and the Divisional Court were correct in finding that the collective agreement continued in effect beyond its expiry date of January 31, 2002, both by its own terms and because of the “freeze” provision in s. 56(1) of the Fire Protection and Fire Prevention Act, 1997, S.O. 1997, Chap. 4 (FPPA).

[2] The appellant argues that by deciding to stop having full-time firefighters and then passing a by-law effecting this and ending its collective agreement, it simply terminated its operation and therefore was entitled to annul the collective agreement.

[3] In our view the facts here cannot be properly described as the appellant terminating its operation. The appellant will continue to deliver firefighting services. Indeed it is prevented by legislation from getting out of this business. It simply proposes to deliver the service by means of “volunteers” rather than full-time employees.

[4] In s. 52(3) of FPPA, the legislature has prescribed the way in which the collective agreement can be terminated, namely with the consent of the Ontario Labour Relations Board on joint application of the parties. The appellant’s by-law purporting to terminate the collective agreement unilaterally is in conflict with this section and is therefore rendered of no effect by s. 14 of the Municipal Act.

[5] The appellant’s recourse to extricate itself from the staffing provision of the collective agreement is either through negotiations or interest arbitration under FPPA.

[6] The appeal must be dismissed. Costs of the appeal and the motion for leave fixed at $20,000 inclusive of disbursements and G.S.T.

“S. T. Goudge J.A.”

“K. Feldman J.A.”

“J. MacFarland J.A.”