ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-53468
DATE: 2012/12/19
BETWEEN:
City of Ottawa Plaintiff/Responding Party – and – Stephen Girard Defendant/Moving Party
Iain Aspenlieder, for the Plaintiff/ Responding Party
Paul Champ and Matthew Létourneau, for the Defendant/Moving Party
HEARD: December 13, 2012
REASONS FOR Decision
Métivier J.
[ 1 ] This motion involves a question as to the jurisdiction of this court in a matter which it is alleged falls under the exclusive jurisdiction of an administrative tribunal.
[ 2 ] The main action deal with an alleged inadvertent overpayment to the defendant, Mr. Girard, while he was employed by the City.
[ 3 ] The moving party was terminated for cause by the City in 2010. His termination was grieved and an arbitration arranged.
[ 4 ] The overpayment of some $48,000.00 was discovered as the City prepared for the arbitration. The overpayment arose when, despite an arrangement arising out of an earlier discipline process, pursuant to which the employee was to be “red-circled” and receive no negotiated increases, these had been paid to him by administrative inadvertence.
[ 5 ] The arbitration procedure began but is not yet complete, in part because Mr. Girard failed to attend. A new date, in February 2013, has been set.
[ 6 ] In the meanwhile, the Union stated that such a grievance by the employer was unrelated factually and legally to the termination issue; further it was said to be “outside the time limits” of the Collective Agreement; and, in any case, was “not a claim over which an Arbitrator has jurisdiction under the terms of the Collective Agreement.” Thus, they refused to consent for the overpayment issue to be dealt with by the arbitrator at the same time as the termination issue.
[ 7 ] The City then began this action.
[ 8 ] Mr. Girard brings this motion to dismiss the City’s lawsuit on the basis that the Court’s jurisdiction is ousted by the exclusive jurisdiction of labour arbitration as this dispute arises from a Collective Agreement.
[ 9 ] Where it is clear that a dispute arises from a Collective Agreement governing an employee and employer, the exclusive jurisdiction over the matter lies with a labour arbitrator. As stated in Dinunzio v. Hamilton (City), 2010 ONSC 3631 , [2010] O.J. No. 2953 at para 14 :
The courts have long held that where a dispute between an employee and an employer is governed expressly or inferentially by a collective agreement, the courts have no jurisdiction to entertain an action in respect of the dispute and the matter must be dealt with by arbitration under the collective agreement.
[ 10 ] If clarification of the nature of the dispute is necessary, a factual analysis must be employed to determine whether the dispute, in its essential character, arises “from the interpretation, application, administration or violation of the collective agreement.”
[ 11 ] The relevant legislative provisions relating to the Collective Agreement are at subsection 3(3) of the Rights of Labour Act, R.S.O. 1990, c. R. 33 (“ RLA ”), as well as subsection 48(1) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (“ LRA ”).
[ 12 ] Subsection 3(3) of the RLA states the following:
- (3) A collective bargaining agreement shall not be the subject of any action in any court unless it may be the subject of such action irrespective of this Act or of the Labour Relations Act .
[ 13 ] Subsection 48(1) of the LRA states the following:
- (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable. 1995, c. 1, Sched. A, s. 48 (1).
[ 14 ] On an interim motion to dismiss for lack of jurisdiction there is a high burden on the moving party. The dismissal of an action should occur only if it is clear and obvious that the administrative tribunal has exclusive jurisdiction as the moving party submits as is the case here.
[ 15 ] Mr. Girard submits that an overpayment of salary is clearly within the parameters of a collective agreement and its “essential character” brings it within labour legislation. Thus any labour dispute resolution is outside the jurisdiction of the courts.
Position of the Parties
Mr. Girard
[ 16 ] The moving party relies on jurisprudence such as Sudbury Board of Education v. Flaherty, [1986] O.J. No. 2750 (Ont. Sup. Ct.) where, in a case involving an overpayment to an employee where an employer sought to sue the employee – it was held that the matter fell within the ambit of the collective agreement and therefore was properly the subject of the grievance and arbitration provisions.
[ 17 ] Similarly, in another overpayment case, Sudbury Board of Education v. Talpianinen, [1986] O.J. No. 2096 (Ont. Sup. Ct.) , the court’s jurisdiction was ousted because there was a need to determine the employee’s salary category through interpretation of the Collective Agreement.
[ 18 ] It is submitted that the Memorandum of the Agreement, the source of the alleged overpayment, arises directly or indirectly from the Collective Agreement as an employment matter and the court’s jurisdiction is ousted. Thus, the City’s action should be dismissed.
City of Ottawa
[ 19 ] The position of the City of Ottawa is that matters in the case at bar are not “clear and obvious” as required by rule 21.01 in order to dismiss the action.
[ 20 ] It is submitted that the issue in the main action arose, not from a simple application or interpretation of the collective agreement, but from an Agreement arrived at after disciplinary proceedings against Mr. Girard, several years before he was terminated for cause.
[ 21 ] That Agreement is separate and distinct from the Collective Agreement, says the City.
[ 22 ] Mr. Girard is no longer an employee and is no longer governed by the Collective Agreement.
[ 23 ] The City points out that even the Union says that this issue does not fall within the jurisdiction of an arbitrator. Their interest in pursuing a grievance for a grievor who no longer pays dues, may be seriously questioned.
[ 24 ] The City relies on jurisprudence where pre-employment contracts have been found to be distinct from the Collective Agreement and could properly be before a Court. (See Goodie v. Ottawa (City) , 2003 SCC 14 , 1 S.C.R. 141 and Bennett v. British Columbia, 2007 BCCA 5 , [2007] B.C.J. No. 4.
[ 25 ] It submits that there is no nexus, connection or interdependence between the Agreement entered into and the Collective Agreement and the “essential character’ of this dispute is a contractual one involving the Memorandum of Agreement.
Analysis
[ 26 ] I agree with the principles set out by the moving party with respect to the jurisprudential emphasis on the exclusive jurisdiction of the grievance and arbitration proceedings in cases where parties to a Collective Agreement have a dispute relating to that Collective Agreement. Continuing disagreements between the employer and employee need to be dealt with in accordance with the specific legislation concerning labour law.
[ 27 ] This particular fact situation involves issues which are absent from cases relied on by the moving party:
(a) Mr. Girard is no longer an employee.
(b) He is no longer a party to, nor governed by, the Collective Agreement.
(c) The Memorandum of Agreement was not incorporated in any way into the Collective Agreement.
(d) The Union takes the position that the City’s claim is “not a claim over which Arbitration has jurisdiction under the terms of the Collective Agreement.”
(e) Mr. Girard has failed to attend at previous arbitration dates and his co-operation in even that process is questionable.
(f) While the courts can order the repayment of money paid by reason of mistake of fact, an arbitrator could not do so.
[ 28 ] Given all of the above, I agree that the Plaintiff will be without remedial recourse if the jurisdiction of this Court is ousted.
[ 29 ] Weber v. Ontario Hydro , 1995 108 (SCC) , [1995] 2 S.C.R. 929 (S.C.C.) and St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, [1986] 1. S.C.R. 704 (S.C.C) both involved employees still employed and, therefore, still subject to a Collective Agreement. The rulings therein are distinguishable on that fact.
[ 30 ] In Jackson v. Ontario Power Generation Inc. , [2002] O.J. No. 1972 , the employee had been dismissed for cause. He grieved his dismissal and as a result, an agreement was entered into which provided for his resignation. The Minutes of Settlement contained a clause that any dispute stemming from the agreement or alleged violation of the agreement would be determined by an arbitrator who remained seized of the matter. The former employee had been barred from the premises but subsequently had employment which required his attendance at the Ontario Power Generation site. His new employers received information from his former employers which led to the cancellation of his employment contract. He then sued for breach of contract. The defendants moved to dismiss his action on the basis that the arbitrator specifically remained seized.
[ 31 ] Justice MacDougall of the Ontario Superior Court of Justice held that the “factual matrix in which the dispute arose could not be said to have arisen from the interpretation, application, administration or violation of a collective agreement,” and he dismissed the motion.
[ 32 ] In Weber , supra , although the Court upheld the exclusive jurisdiction of arbitrators Justice McLachlin (as she then was) did comment that this approach did “not preclude all actions in the courts between employer and employee” (para. 54). She had earlier stated that the “question in each case is whether the dispute in its essential character, arises from the interpretation, application, administration or violation of the Collective Agreement” (para. 52).
[ 33 ] In this case, I find that a close examination of the facts of the dispute leads me to conclude that they do not fall in the ambit of the Collective Agreement.
[ 34 ] I dismiss the motion of the Defendant, Mr. Girard.
[ 35 ] Although the factum speaks of abuse of process, this issue was not dealt with in argument. Given my finding above, it is not necessary to do so.
[ 36 ] The plaintiff will file written submissions on costs (maximum of three pages) within ten days of the date of issue of these Reasons and the defendant within ten days thereafter (same maximum length). Any reply, if necessary, will be served and filed three days thereafter.
Métivier J.
Released: December 19, 2012
COURT FILE NO.: 12-53468
DATE: 2012/12/19
ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: City of Ottawa Plaintiff/Respondent Party – and – Stephen Girard Defendant/Moving Party REASONS FOR Decision Métivier J.
Released: December 19, 2012