Lee v. Ontario Lottery and Gaming, 2015 ONSC 1621
COURT FILE NO.: CV-14-61521
DATE: 2015/03/11
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Byeongheon Lee, Plaintiff
AND
Ontario Lottery and Gaming, Rideau Carleton Raceway, and Union of National Employees, Defendants
BEFORE: Mr. Justice Patrick Smith
COUNSEL: Mr. Lee, self-represented
Morgan Rowe, for the Defendant, Union of National Employees
HEARD: March 6, 2015
ENDORSEMENT
[1] The Defendant, Union of National Employees (“UNE”), brings this motion for dismissal of the Statement of Claim of the Plaintiff based on two grounds:
UNE is not a legal entity and lacks the legal capacity to be sued.
The basis of the Plaintiff’s action is the allegation that UNE breached its duty of fair representation to the Plaintiff – a matter that falls exclusively within the jurisdiction of the Ontario Labour Relations Board.
[2] The affidavit of Jim McDonald, filed in support of the motion, states that UNE is an unincorporated, voluntary association and is a component of the Public Service Alliance of Canada (“PSAC”) – the certified bargaining agent employees of the Defendants, Ontario Lottery and Gaming at Rideau Carleton Raceways.
[3] The Plaintiff was a member of the bargaining unit represented by PSAC.
[4] The Plaintiff’s employment was terminated on April 20, 2014. PSAC filed a grievance on behalf of the Plaintiff and represented him during the internal grievance procedure.
[5] On July 11, 2014 PSAC declined to refer the Plaintiff’s grievance to arbitration.
[6] The Plaintiff alleges in para. 12 of his Statement of Claim that “[t]he Union UNE failed to [sic] legal duty of proper grievance handling”.
[7] Rule 21.01(3) (a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, provide for the dismissal of an action on the basis that the court has no jurisdiction to hear the matter.
[8] The Ontario Court of Appeal in the case of Vernon v. General Motors of Canada Ltd., 2005 3323 (ON CA), 195 O.A.C. 165, has held that Rule 21.01(3)(a) applies in cases where the essence of a Plaintiff’s claim concerns an employee alleging that his bargaining agent violated the duty of fair representation.
[9] Section 74 of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“O.L.R.A.”), codifies the duty of fair representation for unions and bargaining agents.
[10] In Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 110 (SCC), [1990] 1 S.C.R. 1298, the Supreme Court of Canada held that, where the duty of fair representation has been codified in labour legislation, an employee alleging a breach of the duty must apply to the specialized tribunal designated to hear the dispute and is restricted from applying for a remedy elsewhere.
[11] Where an employee believes that his union or representatives have breached their duty to represent him fairly, the proper remedy is to apply to the Ontario Labour Relations Board (“OLRB”) alleging a contravention of section 74 of the O.L.R.A.
Conclusion
[12] The provisions of Rule 21.01(3)(a) clearly apply. Accordingly, it is my finding that this Court has no jurisdiction to hear the claim against UNE since it is a matter within the exclusive jurisdiction of the OLRB.
[13] There is therefore no need to address the issue of whether Rule 21.01(3)(b) applies.
[14] The motion is granted. An order shall issue striking the Plaintiff’s Statement of Claim as it relates to UNE.
[15] Costs are awarded to UNE fixed in the amount of $1,500.00 payable forthwith.
Mr. Justice Patrick Smith
Date: March 11, 2015
CITATION: Lee v. Ontario Lottery and Gaming, 2015 ONSC 1621
COURT FILE NO.: CV-14-61521
DATE: 2015/03/11
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Byeongheon Lee, Plaintiff
AND
Ontario Lottery and Gaming, Rideau Carleton Raceway, and Union of National Employees, Defendants
BEFORE: Mr. Justice Patrick Smith
COUNSEL: Mr. Lee, self-represented
Morgan Rowe, for the Defendant, Union of National Employees
ENDORSEMENT
P. Smith J.
Released: March 11, 2015