Court of Appeal for Ontario

Citation: Cumming v. Peterborough Police Association, 2013 ONCA 670

Date: 2013-11-04

Docket: C56906

Before: Cronk, Rouleau and Tulloch JJ.A.

Between

Matthew Cumming

Plaintiff (Appellant)

and

Peterborough Police Association

Defendant (Respondent)

Counsel:

Richard Taylor, for the appellant

Caroline Jones and Debra Newell, for the respondent

Heard and released orally: October 18, 2013

On appeal from the order of Justice D.S. Gunsolus of the Superior Court of Justice, dated March 12, 2013.

ENDORSEMENT

[1] The appellant police officer issued a claim against the respondent police association asserting that the association had breached its duty of fair representation.

[2] The respondent brought a motion pursuant to rule 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for an order dismissing the claim on the basis that the court lacked jurisdiction. Relying on this court’s decision in Renaud v. LaSalle (Town of) Police Assn. (2006), 2006 CanLII 23904 (ON CA), 216 O.A.C. 1 (C.A.), the motion judge concluded that because the claim was for breach of the duty of fair representation by a police association it fell within the exclusive jurisdiction of a labour arbitrator. As a result, the motion judge struck the claim for want of jurisdiction.

[3] On appeal, the appellant argues in effect that we should overturn Renaud. As we indicated to counsel, this court is bound by Renaud. In order to reconsider it, the appellant needs to request that the Chief Justice strike a five-judge panel to consider whether Renaud remains good law. That was not done. As found by the motion judge, Renaud stands for the proposition that an alleged breach of a police association’s duty of fair representation falls within the exclusive jurisdiction of an arbitrator appointed pursuant to ss. 123 and 124 of the Police Services Act, R.S.O. 1990, c. P.15. Renaud, therefore, is a complete answer to the appellant’s appeal.

[4] We would add that this collective agreement gives the respondent the exclusive power to bargain on behalf of the members, of which the appellant is one. The Supreme Court of Canada in Canadian Merchant Service Guild v. Gagnon, 1984 CanLII 18 (SCC), [1984] 1 S.C.R. 509, held that this type of exclusive power includes a corresponding obligation on the union of fair representation of all employees in the bargaining unit. We therefore reject the appellant’s submission that the duty of fair representation is not encompassed in this bargaining relationship.

[5] For these reasons, the appeal is dismissed.

[6] Costs are awarded to the respondent fixed in the amount of $5,000 plus H.S.T.

“E.A. Cronk J.A.”

“Paul Rouleau J.A.”

“M.H. Tulloch J.A.”