Court File and Parties

CITATION: Walters v. Toronto Transit Commission, 2010 ONCA 119

DATE: 20100211

DOCKET: C51138

COURT OF APPEAL FOR ONTARIO

Goudge, Feldman and Armstrong JJ.A.

BETWEEN:

Marlon Walters

Plaintiff (Appellant)

and

Toronto Transit Commission

Defendant (Respondent)

Counsel: Eric Polten and Robert Rastorp, for the appellant Steve Lavender and Douglas Burns, for the respondent

Heard: February 3, 2010

On appeal from the judgment of Justice Allison Harvison Young of the Superior Court of Justice dated September 23, 2009.

APPEAL BOOK ENDORSEMENT

[1] We agree with the motion judge that the court’s task here is to determine whether, viewed as a whole, the essential character of the dispute raised by the employee’s statement of claim arises from the interpretation, application, administration or violation of the collective agreement. We disagree with the appellant’s argument that this test is displaced when malicious prosecution is one of the claims advanced by an employee.

[2] In this case, the employer is alleged to have instigated a traffic charge against the employee arising out of the performance of his duties, but the statement of claim is about much more than an alleged malicious prosecution. It attacks a wide array of employer conduct in managing the workplace that could have been the subject of grievance. Viewed as a whole, there can be no doubt that the essential character of this dispute prevents it being advanced in the courts through this statement of claim.

[3] The appeal must be dismissed. Costs to the respondent fixed at $3500 inclusive of disbursements and GST.