Myrtezaj v. Cintas Canada Ltd.

90 O.R. (3d) 384

Court of Appeal for Ontario,

Doherty, Rosenberg and Blair JJ.A.

April 15, 2008

Employment -- Jurisdiction -- Plaintiff bringing action alleging that he was constructively dismissed when defendant unilaterally changed his working conditions and reduced his wages -- Defendant's impugned acts taking place after union was certified as bargaining agent for workplace -- Plaintiff leaving defendant's employ before union was decertified -- No collective agreement ever in effect -- Plaintiff's complaint within exclusive jurisdiction of Ontario Labour Relations Board -- Essential nature of plaintiff's allegations being that defendant breached statutory freeze in s. 86 of Labour Relations Act -- Fact that plaintiff could not personally have complained under s. 96 of Act of breach of statutory freeze not constituting reason for allowing action to proceed as exercise of Superior Court's residual discretionary power -- Plaintiff could have asked union to bring complaint before it was decertified and could have brought complaint of unfair registration had it refused to do so -- Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 86, 96.

The plaintiff brought an action alleging that he was constructively dismissed without cause when the defendant unilaterally changed his working conditions and reduced his wages. At the time of the alleged acts, a union had been certified for the defendant's employees and the plaintiff was in the bargaining unit, but no collective agreement was in effect. The union was decertified several months after the plaintiff left the defendant's employ. The defendant moved under rule 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to dismiss the action on the basis that the plaintiff's complaint was within the exclusive jurisdiction of the Ontario Labour Relations Board. The motion judge agreed and struck the action. The plaintiff appealed.

Held, the appeal should be dismissed.

The decision of the Supreme Court of Canada in Weber v. Ontario Hydro setting out the test for resolving competing jurisdictional claims in the labour law context applies even in the absence of a collective agreement. The Weber analysis applied in the circumstances of this case. In determining whether the plaintiff's complaints were within the exclusive jurisdiction of the Board, it was necessary to look at the essential character of the dispute rather than the legal label attached to it by one of the parties. The plaintiff's allegations essentially fell squarely within the prohibition in s. 86 of the Labour Relations Act, 1995 against altering wages or other terms or conditions of employment within the time frame set out in that section. The essential nature of the allegations placed them within the exclusive jurisdiction of the Board. The fact that the plaintiff could not personally have complained under s. 96 of the Act of an alleged breach of the statutory freeze provisions in s. 86 did not constitute a reason for allowing the claim to proceed as an exercise of the Superior Court's residual discretionary power. The plaintiff did not, in fact, ask the union to bring a s. 96 complaint before it was decertified, and it had to be assumed that the union would have exercised its duty of fair representation had he made that request. If it had refused to do so, the plaintiff could have brought a complaint before the Board under s. 96 alleging a breach of the duty of fair representation.

APPEAL from an order of Hoilett J., 2007 4299 (ON SC), [2007] O.J. No. 569, 56 C.C.E.L. (3d) 310 (S.C.J.) dismissing an action for lack of jurisdiction.

Cases referred to Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, [1995] S.C.J. No. 59, 125 D.L.R. (4th) 583, 183 N.R. 241, J.E. 95-1482, 82 O.A.C. 321, 30 Admin. L.R. (2d) 1, 12 C.C.E.L. (2d) 1, 24 C.C.L.T. (2d) 217, 95 CLLC Â210-027, 30 C.R.R. (2d) 1, 56 A.C.W.S. (3d) 94, apld [page385] Armitage v. ZCL Composites Inc., [1999] O.J. No. 3789 (S.C.J.), not folld Dagher v. McDonnell-Ronald Limousine Service Ltd. (1999), 1999 9305 (ON CA), 46 O.R. (3d) 97, [1999] O.J. No. 4145, 181 D.L.R. (4th) 751, 55 C.L.R.B.R. (2d) 56, 126 O.A.C. 146, [2000] CLLC Â220-029, 92 A.C.W.S. (3d) 264 (C.A.) [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 147]; Duncan v. Cadillac Fairview Corp., 1999 15032 (ON SC), [1999] O.J. No. 3099, 178 D.L.R. (4th) 530, 90 A.C.W.S. (3d) 402 (S.C.J.); Guenette v. Canada (Attorney General) (2002), 2002 45012 (ON CA), 60 O.R. (3d) 601, [2002] O.J. No. 3062, 216 D.L.R. (4th) 410, 162 O.A.C. 371, 19 C.C.E.L. (3d) 36, [2002] CLLC Â220-038, 115 A.C.W.S. (3d) 797 (C.A.); Roberts v. Serca Foodservice Inc., [2001] O.J. No. 4116, [2001] O.T.C. 776, 15 C.C.E.L. (3d) 92, 109 A.C.W.S. (3d) 85 (S.C.J.); Vaughan v. Canada, [2005] 1 S.C.R. 146, [2005] S.C.J. No. 12, 2005 SCC 11, 250 D.L.R. (4th) 385, 331 N.R. 64, J.E. 2005-597, 41 C.C.E.L. (3d) 159, 137 A.C.W.S. (3d) 942, consd Other cases referred to Allen v. Alberta, [2003] 1 S.C.R. 128, [2002] S.C.J. No. 80, 2003 SCC 13, 223 D.L.R. (4th) 385, 301 N.R. 174, J.E. 2003-634, 11 Alta. L.R. (4th) 1, 327 A.R. 1, 24 C.C.E.L. (3d) 161, [2003] CLLC Â220-027, 30 C.P.C. (5th) 228, 120 A.C.W.S. (3d) 786; Gendron v. Supply & Services Union of the Public Service Alliance of Canada, Local 50057, 1990 110 (SCC), [1990] 1 S.C.R. 1298, [1990] S.C.J. No. 55, 109 N.R. 321, [1990] 4 W.W.R. 385, J.E. 90-925, 66 Man. R. (2d) 81, 44 Admin. L.R. 149, 90 CLLC 12172; Miller Transit Ltd., [2004] O.L.R.D. No. 275, [2004] O.L.R.B. Rep. January/February 115; Peralta Foods, [1987] O.L.R.B. Rep. September 1162; Ready Bake Foods Inc., [2007] O.L.R.D. No. 159, [2007] O.L.R.B. Rep. January/ February 166; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, [2000] S.C.J. No. 15, 2000 SCC 14, 183 D.L.R. (4th) 14, 251 N.R. 16, [2000] 4 W.W.R. 149, J.E. 2000-539, 189 Sask. R. 23, 50 C.C.E.L. (2d) 1; Vernon v. General Motors of Canada Ltd., 2005 3323 (ON CA), [2005] O.J. No. 486, 250 D.L.R. (4th) 259, 195 O.A.C. 165, 46 C.C.P.B. 268, 5 C.P.C. (6th) 209, 137 A.C.W.S. (3d) 98, 138 L.A.C. (4th) 225 (C.A.) [Leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 182] Statutes referred to Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, ss. 16, 48(1), 72, 74, 76, 86, 96 [as am.], 110(16), 114(1) Public Service Staff Relations Act, R.S.C. 1985, c. P-35 [repealed] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(3) (a) Authorities referred to Randazzo, Daniel P., Annotated Labour Relations Act 2008 (Toronto: Thomson Carswell, 2007)

Kenneth Alexander, for appellant. George Avraam and Mark Mendl, for respondent. [page386]

The judgment of the court was delivered by

[1] DOHERTY J.A.: -- The appellant alleges that he was constructively dismissed by his employer without cause. This appeal concerns the proper forum in which to litigate that claim. The appellant submits that he is entitled to have his claim decided in the Superior Court. The respondent asserts that the claim is within the exclusive jurisdiction of the Ontario Labour Relations Board.

[2] Two fundamental principles frame this jurisdictional dispute. On the one side stands the imperative that legislative pronouncements must be respected by the courts. The legislature has put in place a comprehensive statutory scheme requiring employers and employees to take certain disputes to specialized tribunals where these disputes can be resolved in a timely, cost-effective way that minimizes the disruption in the workplace. This scheme can only work if the courts, except when exercising their supervisory powers through judicial review, stay out of these disputes.

[3] On the other side of the jurisdictional dispute stands the individual's right to access to justice. Those individuals alleged to have been wronged in the context of the employer/ employee relationship, but whose allegations are either not caught by the legislative scheme or cannot be remedied under that scheme must, like any other litigant, have access to the ordinary courts.

I Overview

[4] The appellant sued his employer, Cintas Canada Limited ("Cintas"), in Superior Court for wrongful dismissal. He claimed that Cintas had constructively dismissed him by substantially reducing his wages, increasing his workload, unilaterally altering other terms of his employment and harassing him in the workplace.

[5] Cintas moved under rule 21.01(3)(a) [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] to dismiss the action arguing that the appellant's complaint was within the exclusive jurisdiction of the Ontario Labour Relations Board (the "Board"). The motion judge accepted Cintas' submission, held that the court had no jurisdiction to hear the wrongful dismissal claim, and struck the action.

[6] On appeal, the appellant submits that his claim does not fall within the purview of the scheme created by the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the "Act"). He [page387] submits that his claim does not give rise to any right of arbitration, since there was no collective agreement in effect, nor to any right to claim relief against Cintas before the Board pursuant to s. 96 of the Act. Alternatively, the appellant submits that even if the Act can be read to give the Board jurisdiction over his complaints, he could not hope to obtain effective redress before the Board. On the appellant's submission, only the Union could properly take the complaints before the Board. He contends that as the Union has been decertified, there is no reasonable prospect that it would pursue any complaint on his behalf.

[7] I would dismiss the appeal. I accept Cintas' submission that the appellant's claim is in essence a claim that Cintas changed his working conditions unilaterally at a time when s. 86 of the Act prohibited Cintas from doing so. Under the Act, the Board had exclusive jurisdiction to determine whether Cintas had unilaterally changed the appellant's working conditions and if so what remedy should be imposed against Cintas.

II The Facts

[8] The appellant commenced work for Cadet Uniform Services ("Cadet") as a Sales Service Representative in May 1989. Cintas purchased Cadet in February 1995. Like Cadet before it, Cintas provided customized garment supply services and facility cleaning services through numerous stores across Ontario. The appellant worked at Cintas' plant on Dundas Street in Toronto.

[9] In November 2003, the United Food and Commercial Workers, Local 207 (the "Union") applied to the Board for certification in respect of Cintas' Dundas Street operation. Eventually, in September 2005, the Union was certified as the exclusive bargaining agent for all Cintas employees working at the Dundas Street location. The appellant was in the bargaining unit described in the certification.

[10] In September 2005, the Union served notice on Cintas of its intention to commence negotiations towards a collective bargaining agreement. The appellant served as one of the Union representatives on the bargaining committee. Bargaining sessions were held in January 2006.

[11] As of June 12, 2006, the parties were unable to arrive at a collective bargaining agreement and a June 29 strike date was set. On June 28, 2006, with the help of a mediator, the negotiators reached a tentative collective agreement. On July 6, 2006, the employees voted against acceptance of the proposed agreement. [page388]

[12] In September 2006, a group of the employees filed an application with the Board to decertify the Union. On September 29, 2006, following a vote by the members of the bargaining unit, the Union was decertified. No collective agreement was ever in effect at the Dundas Street operation.

[13] According to the appellant's statement of claim and the material he filed on the motion, his difficulties with Cintas started in the latter part of 2003 when the efforts to unionize the workforce at the Dundas Street facility first started. The appellant contends that he was seen by Cintas as one of the Union organizers, although he was not in fact an organizer.

[14] The appellant alleges that beginning in 2004, Cintas significantly reduced his wages without cause. This reduction continued through 2004, 2005 and 2006. In addition to reducing his wages, Cintas increased the appellant's workload and subjected him to constant abuse and harassment.

[15] The appellant's lawyer wrote to Cintas in December 2004 outlining the appellant's complaints and suggesting that Cintas was trying to pressure the appellant to quit his job. The letter connected the attempts to unionize the Cintas workplace on Dundas Street and the mistreatment of the appellant. The letter specifically referred to sections of the Act which address anti-union conduct by an employer.

[16] In May 2006, the appellant's lawyer (not the lawyer who wrote the earlier letter) wrote a further letter to Cintas. He complained that since the application for union certification in November 2003, the appellant had been the victim of ongoing abuse by Cintas resulting in a significant loss of wages and the creation of an intolerable working environment. Counsel described Cintas' treatment of the appellant as constituting constructive dismissal. He suggested a severance package that included payment of the equivalent of 18 months' salary to the appellant. Cintas did not respond.

[17] On July 6, 2006, the appellant's lawyer wrote another letter to Cintas indicating that for the reasons set out in the previous correspondence, the appellant regarded his contract of employment as repudiated and that he would not be returning to work. The appellant started his wrongful dismissal claim about five days later.

[18] As outlined above, the Union and Cintas attempted to negotiate a collective bargaining agreement early in 2006. During those bargaining sessions, a Union representative (not the appellant) complained that Cintas was unilaterally altering the working conditions and wages of some of its employees, including the appellant. The Union representative took the position that in [page389] doing so, Cintas was violating the statutory freeze provisions set out in s. 86 of the Act. Cintas responded to these allegations claiming that any alterations to the wages and working conditions were consistent with the historical pattern within Cintas' operation and did not violate s. 86. The Union was apparently satisfied with this explanation and did not pursue the matter any further. At no time did the appellant ask the Union to pursue any claim against Cintas for altering his working conditions.

[19] Two important points emerge from the summary of the relevant facts. First, the appellant's claim is in substance a claim of wrongful dismissal based on changes to his employment that were so fundamental as to constitute a constructive dismissal. These changes include a significant reduction in his wages and an increase in his workload.

[20] Second, all of Cintas' alleged misconduct said to constitute constructive dismissal occurred between November 2003, when the Union applied for certification and July 6, 2006, when the appellant left the employment of Cintas. The Union was not decertified until September 2006.

III The Statutory Framework

[21] Counsel for Cintas submits that the substance of the appellant's allegations described conduct that is addressed in ss. 72 and 76 of the Act. These sections proscribe various kinds of employer misconduct that is animated, in part at least, by anti-union bias. Certainly, the appellant's allegations, if not in the statement of claim then certainly in his lawyers' letters, have that tone. However, and apart from any allegation that Cintas was motivated by anti-union bias, the substance of the appellant's allegations relate to changes in his working conditions, including changes in his wages. These allegations fall four square within the prohibition described in s. 86 of the Act. I think the jurisdictional point can be determined without reference to ss. 72 and 76.

[22] Cintas submits that the substance of the appellant's allegations amount to the assertion that Cintas violated the statutory freeze period created by s. 86 of the Act. Section 86 reads:

86(1) Working conditions may not be altered -- Where notice has been given under section 16 or section 59 and no collective agreement is in operation, no employer shall, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty, of the employer, the trade union or the employees, and no trade union shall, except with the consent of the employer, alter any term or condition of employment or any right, privilege or duty of the employer, the trade union or the employees, [page390] (a) until the Minister has appointed a conciliation officer or a mediator under this Act, and, (i) seven days have elapsed after the Minister has released to the parties the report of a conciliation board or mediator, or (ii) 14 days have elapsed after the Minister has released to the parties a notice that he or she does not consider it advisable to appoint a conciliation board,

as the case may be; or (b) until the right of the trade union to represent the employees has been terminated,

whichever occurs first.

(2) Same -- Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until, (a) the trade union has given notice under section 16, in which case subsection (1) applies; or (b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union.

(3) Differences may be arbitrated -- Where notice has been given under section 59 and no collective agreement is in operation, any difference between the parties as to whether or not subsection (1) of this section was complied with may be referred to arbitration by either of the parties as if the collective agreement was still in operation and section 48 applies with necessary modifications thereto.

[23] Section 86 prohibits, without the consent of the Union, any alteration of the employee's "wages or other terms or conditions of employment" during the periods described in the subsections. Sometimes referred to as the "business as before" requirement, the section has received a generous interpretation from the Board: see e.g., Peralta Foods, [1987] O.L.R.B. Rep. September 1162, at para. 26. The time period covered by the section is fixed by the combined reading of ss. 86(1) and 86(2). The section is best understood by reading s. 86(2) first as it refers to the earlier part of the time period covered by the entire section.

[24] On the facts of this case, the freeze imposed under s. 86(2) started in November 2003, when Cintas received notice of the Union's application for certification. Section 86(2) continued to operate until September 26, 2005, when, pursuant to s. 16 of the Act, the Union gave Cintas notice of its intention to try and reach a collective agreement. That notice triggered the freeze period described in s. 86(1). That freeze period began with the aforementioned notice in September 2005 and continued [page391] through September 2006 when the Union was decertified. Consequently, any alteration in the appellant's wages or working conditions between November 2003 and September 2006 contravened s. 86 of the Act unless the Union agreed to those alterations. All of the allegations advanced by the appellant fall within that timeframe. The Union did not consent to any alterations. Cintas could only avoid liability under the Act by showing that in the context of the historical operation of Cintas, the changes did not constitute alterations in the working conditions of the employees.

[25] Section 96 of the Act is a general remedial provision governing complaints brought under the Act. These complaints can include allegations of a breach of the statutory freeze provision in s. 86. The relevant parts of s. 96 are set out below:

96(1) Inquiry, alleged contravention -- The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act. . . . . .

(4) Remedy for discrimination -- Where a labour relations officer is unable to effect a settlement of the matter complained of or where the Board in its discretion considers it advisable to dispense with an inquiry by a labour relations officer, the Board may inquire into the complaint of a contravention of this Act and where the Board is satisfied that an employer, employers' organization, trade union, council of trade unions, person or employee has acted contrary to this Act it shall determine what, if anything, the employer, employers' organization, trade union, council of trade unions, person or employee shall do or refrain from doing with respect thereto and such determination, without limiting the generality of the foregoing may include, despite the provisions of any collective agreement, any one or more of, (a) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to cease doing the act or acts complained of; (b) an order directing the employer, employers' organization, trade union, council of trade unions, employee or other person to rectify the act or acts complained of; or (c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer, employers' organization, trade union, council of trade unions, employee or other person jointly or severally.

(5) Burden of proof -- On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to the person's employment, opportunity for [page392] employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.

(6) Filing in court -- A trade union, council of trade unions, employer, employers' organization or person affected by the determination may file the determination, excluding the reasons, in the prescribed form in the Superior Court of Justice and it shall be entered in the same way as an order of that court and is enforceable as such.

[26] Section 96 provides that the Board may inquire into a complaint of non-compliance of any section of the Act, and determine whether the employer has acted in contravention of the Act. That inquiry takes place before a one or three-person panel of the Board. The Board has set out a relatively detailed set of procedural rules governing proceedings before the Board. These rules reflect the Board's statutory obligation to give the parties to a hearing a full opportunity to present evidence and make submissions: see s. 110(16); see also "Rules of Procedure of the Ontario Labour Relations Board" in Daniel P. Randazzo, Annotated Labour Relations Act 2008 (Toronto: Thomson Carswell, 2007), at p.535.

[27] If the Board finds a breach of the Act, s. 96(4) gives it very broad remedial powers. These include the authority to compensate an employee for loss of earnings or other employment benefits.

[28] An alleged breach of s. 86 can be brought before the Board under s. 96. It has, however, been repeatedly held by the Board that only the Union and not an individual employee has standing to bring a complaint based on an alleged breach of s. 86: see e.g., Miller Transit Ltd., [2004] O.L.R.D. No. 275, [2004] O.L.R.B. Rep. January/February 115; Ready Bake Foods Inc., [2007] O.L.R.D. No. 159, [2007] O.L.R.B. Rep. January/ February 166.

[29] On these authorities, which are not questioned, the appellant could bring his complaints about Cintas' treatment of him before the Board under s. 86 only if the Union made the complaint. The Union was not asked by the appellant to do so, and it cannot be said with certainty what the Union's reaction would have been had the request been made. The Union did, however, raise concerns about the apparent change in the working conditions of employees, including the appellant, and was apparently satisfied with Cintas' explanation.

[30] An employee like the appellant is not without his or her remedy should a Union refuse the employee's request that it pursue a complaint based on an allegation of a breach of s. 86. Section 74 of the Act provides: [page393]

74. Duty of fair representation by trade Union, etc. -- A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

[31] Had the appellant asked the Union to bring a complaint alleging a breach of s. 86 and had the Union refused, the appellant could have brought a complaint before the Board under s. 96 alleging a breach of duty of fair representation described in s. 74 of the Act. This is the same remedy that an employee has where his or her union refuses to proceed with a grievance arising out of an alleged breach of a collective agreement: see Vernon v. General Motors of Canada Ltd., 2005 3323 (ON CA), [2005] O.J. No. 486, 250 D.L.R. (4th) 259 (C.A.), at para. 30, leave to appeal to S.C.C. refused [2005] S.C.C.A. No. 182.

[32] The legislative picture relevant to this appeal is completed by reference to s. 114(1):

114(1) Jurisdiction -- The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

[33] This section gives the Board exclusive jurisdiction to exercise the powers granted to it under the Act, which includes the powers conferred by s. 96. The Board's jurisdiction extends to all questions of fact or law and the decision of the Board is declared to be "final and conclusive for all purposes". It is hard to think of language that could speak more strongly in support of the finality of the Board's decisions and the exclusivity of its jurisdiction.

IV The Authorities

[34] A review of the case law governing the resolution of competing jurisdictional claims in the labour law context can begin with Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, [1995] S.C.J. No. 59. Weber was receiving sick benefits pursuant to a collective agreement. His employer, Ontario Hydro, suspected that Weber was malingering. It conducted certain surveillance and eventually suspended Weber. His union grieved the suspension and Ontario Hydro's use of surveillance against Mr. Weber. The grievance was settled. [page394]

[35] While the grievance was outstanding, Weber sued Ontario Hydro alleging various torts and Canadian Charter of Rights and Freedoms breaches. Ontario Hydro sought an order dismissing the lawsuit on the basis that the dispute arose out of the collective agreement and was therefore within the exclusive jurisdiction of the grievance procedures established by the Act and the collective agreement. The Supreme Court of Canada concluded that the court had no jurisdiction to entertain Weber's lawsuit. McLachlin J. stated at para. 67:

I conclude that mandatory arbitration clauses such as s. 45(1) of the Ontario Labour Relations Act generally confer exclusive jurisdiction on labour tribunals to deal with all disputes between the parties arising from the collective agreement. The question in each case is whether the dispute, viewed with an eye to its essential character, arises from the collective agreement. . . . The exclusive jurisdiction of the arbitrator is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal. (Emphasis added)

[36] In reaching the conclusion that the Act gave arbitrators exclusive jurisdiction over disputes arising out of the collective agreement, McLachlin J. was influenced by three consideration[s] (Weber, at paras. 41-46). First, s. 45(1) of the Act, an exclusive jurisdiction provision, constituted a clear expression of the legislature's intent to make arbitrators the exclusive and final decision makers in disputes arising out of the collective agreement. Second, like other Canadian labour statutes, the Act put a premium on the quick and economic resolution of labour disputes in a manner that would minimize the disruption in the workplace and the ongoing relationship between the employer and its employees. An interpretation that gave the courts concurrent jurisdiction with arbitrators would undermine those policy objectives. Finally, the existing case law favoured the view that mandatory arbitration clauses in labour statutes deprived the courts of jurisdiction in matters covered by those clauses.

[37] The right to arbitrate in Weber arose out of a collective agreement. There was never a collective agreement in place between the Union and the employees at Cintas' Dundas Street facility. Counsel for the appellant submits that this single fact renders both the ratio and the analytical approach taken in Weber inapplicable to this case.

[38] The analysis favoured in Weber is not restricted to circumstances where the dispute arises out of matters that are the subject of a collective agreement requiring mandatory arbitration. Even before Weber, the Supreme Court of Canada had held in [page395] Gendron v. Supply & Services Union of the Public Service Alliance of Canada, Local 50057, 1990 110 (SCC), [1990] 1 S.C.R. 1298, [1990] S.C.J. No. 55 that an employee's complaint against his union for unfair representation could not be brought by way of an action in civil court because the relevant labour legislation gave the Labour Board exclusive jurisdiction to hear statutory claims of unfair representation. L'Heureux-Dubé J. said at pp. 1326-27 S.C.R.:

Allowing parties to disputes which, by their very nature, are those contemplated and regulated by labour legislation, to have recourse to the ordinary courts would fly in the face of the demonstrated intention of Parliament to provide an exclusive and comprehensive mechanism for labour dispute resolution, particularly in the context of the present case.

I concluded earlier that the common law duty of fair representation was by necessary implication ousted in situations where the statute applies. As the statute is applicable in the present case, the respondent in this case cannot base his claim on the common law but must instead have recourse to the statute. (Emphasis added)

[39] Subsequent to Weber, this court applied the jurisdictional analysis to a dispute that arose after the expiration of a collective agreement. In Dagher v. McDonnell- Ronald Limousine Services Ltd. (1999), 1999 9305 (ON CA), 46 O.R. (3d) 97, [1999] O.J. No. 4145 (C.A.), leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 147, certain individuals sued their employer for breach of contract in the course of an ongoing labour dispute. These employees claimed that certain brokerage fees charged to them pursuant to an agreement were improperly increased by the employer in the course of negotiations towards a new collective agreement. A similar claim had been advanced before the Labour Board where the union argued that the unwarranted increase in the fees constituted a breach of the employer's obligation to bargain towards a new collective agreement in good faith. The proceedings before the Board had not been completed when some of the employees commenced a lawsuit in the Superior Court. The employer argued that the Board had exclusive jurisdiction.

[40] Finlayson J.A. began his analysis by noting that although there was no collective agreement in place, the Board's jurisdiction extended to allegations of unfair labour practices where those allegations were made in the context of negotiations for a new collective agreement. He concluded that the allegation that the employer had improperly increased the brokerage fees was an allegation of a failure to bargain in good faith, which fell within the exclusive jurisdiction of the Board.

[41] After a careful review of Weber, Finlayson J.A. said at para. 22: [page396]

[T]he principles of deference apply equally to the decision- making structure under the collective agreement and to the decision-making structure created by statute, namely, the OLRB The Act grants jurisdiction to the OLRB to address violations of the Act that occur after the expiry of the collective agreement: s. 96(1) and (4). Section 114(1) of the Act provides that this jurisdiction is exclusive to the Board. (Emphasis added)

[42] The motion judge relied on Dagher in holding that the Board had exclusive jurisdiction over the appellant's allegations. Like the employee in Dagher, the appellant's complaints relate to events that occurred when there was no collective agreement in place but negotiations towards achieving a collective agreement were underway.

[43] More recent case law from the Supreme Court of Canada has reaffirmed the application of the Weber analysis to all forms of decision-making embedded in labour legislation that provides a comprehensive scheme for the resolution of labour disputes: see Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, [2000] S.C.J. No. 15, at paras. 34-35; Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146, [2005] S.C.J. No. 12, at paras. 13-14.

[44] In the face of this jurisprudence, the appellant relies on two decisions in the Superior Court. Armitage v. Z.C.L. Composites Inc., [1999] O.J. No. 3789 (S.C.J.) is factually indistinguishable from this case insofar as the jurisdictional point is concerned. The employees in Armitage were laid off while the union and the employer were engaged in negotiations aimed at producing the first collective agreement. The employees sued for wrongful dismissal. In holding that the lawsuit could proceed, the motion judge said at para. 15:

There was no collective agreement and no grievance procedure, or provision for binding arbitration in force when the facts complained of arose in this case. As the plaintiffs' layoffs or dismissals occurred during a period [when] there was no collective agreement in force, therefore I am satisfied that the claim can proceed through the courts. (Emphasis added)

[45] The motion judge made no reference to s. 86 of the Act and its application to the time period during which the union and the employer are attempting to negotiate the initial collective agreement. The motion judge also made no reference to the possibility of a claim to the Board under s. 96 alleging a wrongful variation of the employee's terms of employment during the statutory freeze period set out in s. 86.

[46] The failure to advert to s. 86 and to consider a possible complaint under that section led the motion judge into error. [page397] I think Armitage was wrongly decided. I prefer the analysis, in similar facts, found in Roberts v. Serca Foodservice Inc., [2001] O.J. No. 4116, 15 C.C.E.L. (3d) 92 (S.C.J.). In that case, the motion judge held that the Board had exclusive jurisdiction to consider allegations of wrongful dismissal arising between the date on which the union was certified and the date on which the first collective agreement took effect.

[47] The second case from the Superior Court relied on by the appellant is Duncan v. Cadillac Fairview Corp., 1999 15032 (ON SC), [1999] O.J. No. 3099, 178 D.L.R. (4th ) 530 (S.C.J.). In Duncan, the employee sued the employer alleging various torts. The facts underlying the employee's claim were somewhat unusual and, like the motion judge, I think it is arguable that at least some of the claims did not fall within the ambit of matters that were the subject of the collective agreement. The motion judge could have decided the jurisdictional issue in favour of the employee on that basis alone. However, in the course of analyzing the employer's argument that the Superior Court had no jurisdiction to hear the lawsuit, the motion judge said at para. 31:

The principles approved in Weber have no application unless the particular dispute arises out a collective agreement.

[48] To the extent that the motion judge's decision depends on his interpretation of Weber, I think he reads that case too narrowly. There is also no analysis of the potential application of s. 86 to the complaint put forward in Duncan. On the facts as I understand them, the employee's alleged wrongful dismissal occurred after certification and before a collective agreement was reached. The statutory freeze requirements in s. 86 were applicable and, in my view, could have supported a complaint under s. 96.

[49] The appellant also relies on Guenette v. Canada (Attorney General) (2002), 2002 45012 (ON CA), 60 O.R. (3d) 601, [2002] O.J. No. 3062 (C.A.). That case required an examination of several grievance and arbitration provisions in the Public Service Staff Relations Act, R.S.C. 1985, c. P-35. This court ultimately held that those provisions did not exclude the jurisdiction of the Superior Court. The same sections that were examined in Guenette, were subsequently examined by the Supreme Court of Canada in Vaughan, supra. The analysis of the legislation and the result reached in Guenette must be read in light of the subsequent analysis in Vaughan.

[50] Guenette did, however, use the analysis developed in Weber. Applying that analysis, Laskin J.A., for the court, concluded at paras. 49-50 that the grievance mechanism in the legislation was [page398] not intended by Parliament to oust the jurisdiction of the ordinary courts. In reaching that conclusion, he stressed, among other factors, the limited nature of the finality clause in issue and the lack of any recourse to a specialized autonomous decision-making body under the operable grievance provisions. I take no issue with the analysis in Guenette, but note that this case, of course, involves a very different statute and a very different decision-making mechanism.

V The Application of the Weber Analysis

[51] At its core, the analysis used in Weber to determine whether the relevant legislation has given the tribunal exclusive jurisdiction over a dispute is an exercise in statutory interpretation. The court must determine whether the applicable legislation precludes access to the court in favour of the grant of exclusive jurisdiction to the specialized tribunal. Weber looked at three factors, the existence and scope of a finality clause, policy considerations and the prevailing jurisprudence.

[52] In Weber, at para. 45, the court referred to s. 45(1) of the Act (now s. 48(1)) which required that all disputes arising under a collective agreement be resolved by "final and binding" arbitration. McLachlin J. read that provision as leaving no room for concurrent jurisdiction in the ordinary courts over disputes arising out of the collective agreement. Section 114(1) of the Act cloaks decisions made by the Board under s. 96 in the same exclusivity and finality as is provided to arbitrators' decisions by s. 48(1) of the Act. The language of s. 114(1) strongly suggests the same conclusion with respect to the jurisdictional issue as was reached in Weber, where, as in this case, the disputes fall under s. 96 of the Act: see Daghar, supra, at paras. 21-22.

[53] The policy considerations evoked in Weber, supra, at para. 46, to assist in the resolution of the jurisdictional question have full application here and point towards the exclusive jurisdiction of the Board. Allowing individual employees access to the court to litigate what are in their factual essence claims of a breach of the statutory freeze period can only complicate ongoing union-employer relations, increase costs, delay resolutions and undercut the values inherent in the collective bargaining process.

[54] The prevailing jurisprudence, the third consideration referred to in Weber, supra, at paras. 41-44, also points to the exclusive jurisdiction of the Board in this case. The motion judge relied on Daghar, supra, at para. 7 of his reasons. Although Daghar addressed breaches of sections of the Act other than [page399] s. 86, it ultimately held that where complaints fell within the jurisdiction of the Board under s. 96, that jurisdiction was exclusive. That ratio has direct application to this case.

[55] Having concluded that the Weber analysis applies, it remains to determine whether on that analysis the appellant's complaints are within the exclusive jurisdiction of the Board. Weber commands at para. 52 that the court look at "the essential character" of the dispute and not the legal label one of the parties may choose to place on that dispute. The "essential character" of the dispute is determined by reference to the factual matrix of that dispute: see Vaughan, supra, at para. 11.

[56] The factual essence of the appellant's claim is that Cintas significantly reduced his wages, increased his workload and made it impossible for him to carry on at his job. The appellant characterizes this conduct as constructive dismissal and a breach of the contract of employment with Cintas which preceded any union certification. That classification does not, however, change the essential factual nature of the appellant's allegations. These allegations fall squarely within the prohibition in s. 86(2) against altering "the rates of wages or any other term or condition of employment".

[57] The essential nature of the appellant's allegations would appear to place them within the exclusive jurisdiction of the Board on a Weber analysis. There remains the question of whether there is anything that would justify allowing the claim to proceed as an exercise of the Superior Court's residual discretionary power: see Weber, supra, at para. 67.

[58] Weber indicates that the court may invoke its inherent jurisdiction where the remedy sought cannot be granted by the statutory tribunal that has jurisdiction. That is not a concern in this case. Section 96(4)(c) expressly contemplates an order by the Board compensating an employee for "loss of earnings or other employment benefits". That award, if made, may ultimately be enforced as if it were an order of the Superior Court: see s. 96(6) of the Act.

[59] Counsel for the appellant, however, submits that the appellant does not have an effective remedy under the Act because he cannot personally make a complaint under s. 96 of an alleged breach of the statutory freeze provisions in s. 86. That complaint can only be brought by the union. Counsel is correct in his assertion that only the union can bring a complaint alleging a breach of s. 86. However, this fact provides no basis for invoking the court's inherent jurisdiction as an "end around" the Board's exclusive jurisdiction. As observed by Binnie J. in Vaughan, supra, at para. 25, employees must also count on their union to [page400] carry forward grievances brought under the terms of a collective agreement. The individual employee cannot invoke the mandatory arbitration provisions referable to such grievances. If the union refuses to do so, the employee's recourse is by way of a complaint alleging unfair representation by the union in contravention of s. 74 of the Act. The appellant has exactly the same remedy. Were I to accept the submission that the appellant's inability to personally mount a claim under s. 86 should take him out of the exclusive jurisdiction of the Board, it would follow that employees should also be able to sue in respect of grievances clearly covered by the collective agreement. To so hold, would be to turn the current jurisprudence inside out.

[60] Counsel for the appellant also submits that his lawsuit should be allowed to proceed because there is no realistic chance that the union will bring a s. 96 complaint in reference to the allegations made by the appellant. In making this submission, counsel stresses that the union has been decertified.

[61] I have no way of knowing what the union would or would not do if asked to bring the complaint. The appellant has never asked the union to do so. I cannot assume that the union would not comply with any obligations that it has with respect to the fair representation of the appellant. The union raised the matter with Cintas in the course of negotiations. It received certain responses from Cintas and did not pursue the matter. I can only assume that it would have exercised its duty of fair representation to the appellant had he taken the opportunity which he clearly had then to put his case before the union and ask it to advance a claim before the Board: see Allen v. Alberta, 2003 SCC 13, [2003] 1 S.C.R. 128, [2002] S.C.J. No. 80, at para. 17.

VI Conclusion

[62] I would dismiss the appeal and award costs to Cintas on a partial indemnity basis in the amount of $12,000, inclusive of disbursements and GST.

Appeal dismissed.