Court File and Parties

CITATION: Kelly v. Georgia-Pacific Canada Inc., 2009 ONCA 232

DATE: 2009-03-16

DOCKET: C49439

COURT OF APPEAL FOR ONTARIO

Moldaver, Armstrong and Gillese JJ.A.

BETWEEN

Connie Kelly, Brandon Kelly and Brittany Kelly

Plaintiffs (Appellant)

and

Georgia-Pacific Canada Inc.

Defendant (Respondent)

Counsel: Paul J. Osier, for the appellant Michael J. Kennedy and Frank Cesario, for the respondent

Heard: March 13, 2009

On appeal from the order of Justice T.D. Marshall of the Superior Court of Justice dated September 3, 2008.

APPEAL BOOK ENDORSEMENT

[1] The appellant commenced an action against her Husband’s employer, Georgia-Pacific Canada Inc., the respondent in this appeal. The claim is in negligence for damages arising out of the alleged wrongful dismissal of the Husband from his employment. The appellant’s husband was a member of a collective bargaining unit of Georgia-Pacific and submitted a grievance under the collective agreement. The grievance was settled.

[2] Georgia-Pacific moved to strike out the appellants’ statement of claim as disclosing no cause of action and for dismissal of the action on the basis that the claims alleged by the appellant arise from the collective agreement and are within the exclusive jurisdiction of an arbitrator provided for in the collective agreement. The respondent relied upon the much cited case of Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929.

[3] The motion judge struck the statement of claim and dismissed her action on the basis of the principles articulated in Weber.

[4] We would dismiss the appeal. We agree with the motion judge, at least to the extent that any claim against Georgia-Pacific related to the husband’s employment should have been pursued by her husband under the collective agreement.

[5] Consequently, and more importantly, in these circumstances, the appellant simply has no cause of action for her husband’s alleged wrongful dismissal. The appeal is therefore dismissed. The Respondent shall have its costs, payable by the appellant, fixed in the amount of $5,000 inclusive of disbursements and GST.