DiCienzo v. McQuillan, 2008 ONCA 472

DATE: 20080613

DOCKET: C47632

COURT OF APPEAL FOR ONTARIO

BORINS, MACPHERSON and GILLESE JJ.A.

BETWEEN:

DINO DICIENZO, DINO A. DICIENZO, ANNA DICIENZO, MICHAEL DICIENZO, ANTHONY DICIENZO and CANADIAN NIAGARA HOTELS INC.

Plaintiffs (Appellants)

and

KIM MCQUILLAN, PAUL CLIFFORD and LANA RABKIN

Defendants (Respondents)

Roy Fillion, Q.C. and Mark Stone for the appellants

Sean Dewart for the respondents

Heard and released orally: June 10, 2008

On appeal from the judgment of Justice Thomas R. Lederer of the Superior Court of Justice dated July 27, 2007.

BY THE COURT:

[1] The appellants, who are the owners and operators of several hotels, a conference centre, and various stores and restaurants in Niagara Falls, appeal the judgment of Lederer J. dated 27 July 2007. In the judgment, the judge granted the respondents’ motion under Rule 21.01(3)(a) of the Rules of Civil Procedure to dismiss the appellants’ action for defamation, interference with economic relations, and conspiracy to injure.

[2] The respondent Kim McQuillan was an employee of the appellant corporation Canadian Niagara Hotels Inc. She was also a departmental shop steward representing employees at the conference centre.

[3] In October 2003, Ms. McQuillan delivered a speech to customers of Canadian Niagara at a conference held at the conference centre. The appellants allege that she made comments in the speech that defamed them. Eventually, after first embarking on a series of disciplinary steps pursuant to the collective agreement governing the parties’ employment relationship, the appellants launched their civil action.

[4] The motion judge dismissed the action. Relying on the leading case Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, he held:

The dispute is a workplace dispute. Everything that happened took place in the context of the employment relationship. The Ontario Labour Relations Act and the Collective Agreement provide a complete code. The jurisdiction of the Court is ousted.

[5] The appellants’ principal ground of appeal is that the motion judge misapplied Weber. The appellants maintain that the essential character of this dispute does not fall within the parameters of the collective agreement.

[6] We disagree. The case law is clear: all “differences” covered by the collective agreement must be dealt with exclusively by arbitration, regardless of how the legal issues are or can be framed. In determining if a matter is in the exclusive jurisdiction of the labour arbitrator, a judge must define “the essential character” of the dispute. This is done by considering the facts and context of the dispute, rather than its legal characterization. That is, the legislation encompasses any and all “differences” between the parties, regardless of the legal characterization of the claim or the name of the cause of action. Parties cannot avoid arbitration simply by pleading a common law tort: see Weber, especially at paras. 43 and 45.

[7] The motion judge was faithful to the Weber analytical framework and applied it correctly. Indeed, the facts and context of this dispute are overwhelmingly employment related. Ms. McQuillan’s speech was delivered in the workplace, described working conditions in the workplace, addressed workplace and labour relations issues, described the employer-union relationship in the workplace, was delivered by an employee and union steward to a union audience, and focused on the appellants’ conduct as employers, not in their personal capacities.

[8] In addition, and of crucial significance, as the motion judge recognized, the appellants initially, and for a fairly long period of time, took disciplinary steps pursuant to the collective agreement and treated Ms. McQuillan’s speech as a workplace incident. Indeed, they embarked immediately on a constellation of disciplinary steps – layoff, interview with senior management, request to retract the speech, suspension without pay, issuance of a formal Employee Disciplinary Notice, and demand for an apology linked to reinstatement.

[9] It is true that in one of their disciplinary notices, the appellants stated that they reserved their civil remedies. Five months after the speech, and after taking all of the steps described in the previous paragraph, they launched their action. In our view, the purported reservation concerning a civil action counts for little. The ultimate question remains the same – applying the Weber analysis, what is the true nature of the dispute? The motion judge answered this question correctly – the essence of the dispute was workplace related and inferentially governed by the collective agreement. Therefore, as the motion judge held, the jurisdiction of the court was ousted.

[10] The appeal is dismissed. The respondents are entitled to costs of the appeal fixed at $22,000 inclusive of disbursements and G.S.T.

RELEASED: June 13, 2008 (“S.B.”)

“S. Borins J.A.”

“J.C. MacPherson J.A.”

“E.E. Gillese J.A.”