Court of Appeal for Ontario

Citation: O'Loan v. Risinger, 2009 ONCA 842

Date: 20091130

Docket: C50686

MacPherson, Simmons and LaForme JJ.A.

BETWEEN:

Michael O’Loan

Plaintiff (Respondent)

and

Leslie Risinger, Jennifer Rock and Jennifer Beauregard-White

Defendants (Appellants)

Counsel:

Roy C. Filion and Roslyn E. McGilvery, for the appellants

Michael Simaan, for the respondent

Heard and released orally: November 27, 2009

On appeal from the judgment of Justice David Aston of the Superior Court of Justice dated May 27, 2009.

ENDORSEMENT

[1] The appellants, a school principal, teacher and secretary, appeal the judgment of Aston J. dated 27 May 2009 dismissing their motion to dismiss the action brought by the respondent, also a teacher, on the basis that the court has no jurisdiction over the subject matter of the action. The basis for the motion was that the essential character of the respondent’s action was covered by a collective agreement between Peel Elementary Teachers Local and Peel District School Board, thereby limiting the respondent to remedies under the agreement.

[2] The motion judge dismissed the motion. He pointed out that the respondent was making “no claim whatsoever” against his school board. He concluded that the respondent’s action established “a connection to the workplace that is peripheral but not central to the allegations and claims he is advancing.” Hence the respondent’s action could proceed in the court.

[3] The appellant contends that the motion judge erred in finding that the essential character of the dispute did not arise out of the interpretation, application, administration or alleged violation of the collective agreement.

[4] We disagree. As a preliminary point, I observe that for the purposes of the motion and this appeal, the facts alleged in the statement of claim are to be accepted as true. In our view, the puzzling and troubling events that give rise to this law suit are not anchored in the performance of the respondent’s duties as a teacher. As the motion judge pointed out, this reality is especially confirmed by the appellants’ own conduct. They made no attempt to invoke the collective agreement in their alleged dispute with the respondent. Instead, they took initiatives in a large number of fora not connected to the school or the collective agreement – for example, their attempt to have the respondent’s former girlfriend make false allegations against him unrelated to his work as a teacher, the complaints to police, the Children’s Aid Society and the Ontario Human Rights Commission, and the dissemination of false information to the community at large. In light of these activities, it does not lie in the appellants’ mouths to say now that the only forum for the respondent’s response to their conduct is the collective agreement.

[5] The appellants also submit that the motion judge erred by not ruling on their motion to strike the respondent’s affidavit.

[6] A judge need not deal with every issue raised in a proceeding. Here, the motion judge did not rely on the affidavit in his reasons for judgment. Moreover, the very brief affidavit traversed essentially the same ground as the Statement of Claim. Accordingly, the absence of any reference to the motion to strike in the reasons for judgment is of no moment.

[7] The appeal is dismissed. The respondent is entitled to its costs which are fixed at $3500 inclusive of disbursements and GST.