CITATION: Morelli v. Resolute Forest Products, 2015 ONSC 2756
COURT FILE NO.: CV-14-015
DATE: 2015-04-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tony Morelli,
Tony Morelli, being self-represented
Plaintiff
- and -
Resolute Forest Products, Andre Bernier, Sabino Rossi, Bill Smeltzer, Dave Berry, Ryan Ellard, Peter Thorup, International Association of Machinists and Aerospace Workers, Bran short, Tony Marques,
Casey M. Dockendorff, for the Defendants, Resolute Forest Products, Andre Bernier, Sabino Rossi, Bill Smeltzer, Dave Berry and Ryan Ellard
Elichai Shaffir, for the Defendants, International Association of Machinists and Aerospace Workers and Brian Short
Michael R. Kestenberg, for the Defendant Peter Thorup
Laird S.S. Scrimshaw, for the Defendant Tony Marques
Defendants
HEARD: April 7, 2015, at Thunder Bay, Ontario
Mr. Justice F. B. Fitzpatrick
Decision On Motions
[1] Tony Morelli has sued ten different parties. All defendants now move to have the action dismissed for a variety of reasons. There were four separate motions that were all heard before me on April 7, 2015.
[2] In very broad terms, Mr. Morelli’s claim arises from activities that took place at a kraft paper mill owned and operated by the defendant, Resolute Forest Products (“Resolute”). The mill is located in Fort Frances, Ontario, and the material events happened at times leading up to June 2012. Mr. Morelli was terminated from his employment at the mill on March 23, 2012, allegedly for just cause. At all times material to this action, the terms and conditions of his employment were governed by a collective agreement. Mr. Morelli was represented by a trade union, the defendant, International Association of Machinists and Aerospace Workers Union, Local 771 the (“Union”). The Union grieved his dismissal.
[3] An arbitration hearing was scheduled for June 11, 2012. On the morning the actual hearing was to take place, the grievance was settled. Mr. Morelli, the Union, and the employer executed a document entitled “Agreement”. It contained a paragraph that was in the nature of a release which, among other things, released Resolute, and all current, former, or future employees from any claims, grievances, complaints, demands, or other alleged liabilities arising out of Mr. Morelli’s employment, termination of employment, or the operation of the collective agreement. Mr. Morelli received monies further to that agreement and it was agreed he resigned his employment. Mr. Morelli agreed in writing that he was signing the document voluntarily.
[4] Mr. Morelli commenced the within action on September 15, 2014. There are four distinct groups of defendants. First, Peter Thorup (“Thorup”), a lawyer who acted for Resolute on the grievance arbitration. Second, Tony Marques (“Marques”), a lawyer who acted for the Union on the grievance arbitration. Third, Resolute and five management employees Andre Bernier, Sabino Rossi, Bill Smeltzer, Dave Berry, and Ryan Ellard. Fourth and finally, the Union and its local representative Brian Short.
[5] I will deal with each individual motion in turn. Mr. Morelli only filed one set of responding materials which, by agreement, were deemed to be applied to all motions brought. Many of the arguments of the defendants overlapped and they relied on many of the same legal principles in support of their motions.
The Motion by Thorup
[6] Thorup moves to strike the statement of claim on the basis that it discloses no reasonable cause of action against him. He relies on rule 21.01(1)(b) of the Rules of Civil Procedure. Accordingly, no evidence was admissible on this particular motion. The motion relied on the pleadings, which were taken to be true. The claim against Thorup is for $100,000.00, plus interest for “professional misconduct”. The statement of claim contains 211 paragraphs. Only four paragraphs that relate to Thorup are as follows:
(a) Dave Berry (who was at all material times the Human Resource Manager at Resolute) sent an e-mail to Thorup stating that he did not want to do anything to help Morelli and also an e-mail that Morelli was irrational (Statement of Claim, para. 165);
(b) Dave Berry and Thorup used unsubstantiated claims to compose a letter containing libelous statements that not only was used to support a fraudulent insubordination claim but also used to further threaten Morelli’s constitutional rights (Statement of Claim, para. 180); and,
(c) Thorup was well aware of what was contained in Volumes I, II, and III of the Employer’s documents used for the arbitration (Statement of Claim, paras. 152 & 186).
[7] It is Thorup’s position that:
(a) he did not owe Morelli, who was a non-client, a duty of care;
(b) Morelli did not rely upon Thorup’s skill and judgment;
(c) to require that a solicitor owe a duty to both his client and the opposing party, would place the solicitor in a conflict position vis a vis his own client;
(d) the documents referred to in the allegations against Thorup were documents filed on behalf of and/or in support of Thorup’s client, Resolute, on the arbitration; and,
(e) Morelli’s claim as against Thorup discloses no reasonable cause of action.
[8] In the alternative, Thorup argues the claim against him is statute-barred as the claim was commenced more than two years after any facts that form the basis of the claim were known to Mr. Morelli.
[9] Mr. Morelli’s argument in response to the motion was difficult to comprehend. He did not expressly address the issue of the alleged lack of privity or a duty of care between himself and the company’s lawyer Thorup. He did not make any direct submissions on the limitation issue. He did speak about “facts”, which he did not particularize, about which he claims he was unaware at the time of his dismissal and the date of the arbitration. He referenced emails that he located in the company’s brief of documents. He admitted he had these documents on the day of the arbitration and he looked at more carefully at them within a week or so of the hearing, meaning sometime in June 2012. He indicated the only reason Thorup was added to the claim was because Mr. Morelli wanted to “know what he (Thorup) knew, and what he was told.”
The Applicable Law on Thorup’s Motion
[10] Rule 21.01(1)(b) of the Rules of Civil Procedure provides that a party may move before a judge to strike out a pleading on the ground that it discloses no reasonable cause of action. The test for striking out a statement of claim is whether, assuming all facts pleaded can be proven, it is plain and obvious that the claim cannot succeed. It must be read generously with allowance for inadequacies due to drafting deficiencies. See: Hartmann v. Amourgis, [2008] O.J. No. 2388 (S.C.), Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42, and Richards v. Media Experts M.H.S. Inc., 2012 ONSC 3518, aff’d 2012 ONCA 769, leave to appeal to SCC refused, 35617 (July 4, 2013). This law also applies to motions that are brought pursuant to rules 21.01(1)(a) and 21.01(3)(a).
[11] No evidence is admissible on a motion under rule 21.01(1)(b) and the Court must decide the motion on the pleadings alone. No evidence is admissible on a motion under rule 21.01(1)(a) except with leave or on consent.
[12] A lawyer can be found liable to a non-client where the following three preconditions are met:
(a) the non-client actually relies on the lawyer;
(b) the reliance is reasonable; and,
(c) the solicitor is aware that the non-client is relying on him or her.
[13] In respect of this law, I was referred to CIBC v. Rencar Construction Ltd., 1999 CarswellOnt 1825 (Ont. S.C.); Banzon v. Madsen, [2001] O.J. No. 2216 (S.C.); Budrewicz v. Stojanowski, 1998 14688 (ON SC), [1998] O.J. No. 2986 (S.C.). I was also referred to a recent endorsement from the Ontario Court of Appeal in Biron v. Aviva Insurance Company, 2014 ONCA 558, where the court indicated at para. 6:
The motion judge held that the appellant’s claim was blocked by the legal principle that, in litigation, opposing counsel owes no duty of care to the opposing party. This proposition is well known and was expressed by Karakatsanis J., as she then was, in Admassu v. Pantel, 2009 CarswellOnt 4047, at para. 5:
I am satisfied that it is plain and obvious that the pleading discloses no cause of action. Opposing counsel owes no general duty of care to the opposite party. As the court of appeal held in Diamond Drilling contracting Ltd. v. MacDearmid, 24444, at para. 3, to hold otherwise would place solicitors in an untenable conflict between their duty to their client and their need to protect themselves against their client’s adversary.
[14] In terms of the limitations defence, a limitation period begins to run when the claim is discovered. A claim is discovered when the person with the claim either knew they had a claim or a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known that they had a claim against someone whose identity is known, whichever occurs earlier. A claim for solicitor’s negligence must be commenced within two years from the discovery of the cause of action (s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24, Sch. B).
Analysis Regarding the Thorup Motion
[15] With respect to the four paragraphs of the statement of claim where Thorup is mentioned or referenced, only one, para. 180, contains any allegation. If proven, that could perhaps reasonably support a claim against Thorup. However, the “letter containing libelous statements” was not produced to the court on this motion. Such evidence could have been admitted on this Rule 21 motion by virtue of the provisions of rule 25.06(7) (Montreal Trust Co. of Canada v. Toronto Dominion Bank, [1992] O.J. No. 1274 (Gen. Div.)). However, no request to admit this evidence, if in fact it exists, was made at the hearing of the motion.
[16] There was an email from Dave Berry to Peter Thorup produced in an affidavit of Terea Hazel filed on behalf of Mr. Morelli. In my experience, an email is different from a letter. The email was dated March 26, 2012. It advises of Mr. Morelli’s termination and seeks Mr. Thorup’s legal advice. If this indeed is the “letter” referred to in para. 180, it is not defamatory in my view.
[17] Ultimately, the allegation of insubordination was resolved by way of the settlement of the grievance, and the reversal of Mr. Morelli’s termination to treat it as a resignation. The “constitutional rights” allegedly threatened are not particularized at least in so far as it would apply to Mr. Thorup. There is nothing further in the statement of claim regarding publication of the alleged libelous statements or letter and no damages related to this letter alleged.
[18] The email referred to in para. 165 is not alleged to have been sent by Thorup. Also, nothing in the claim illuminates the cause of action arising for the company document brief that was referred to in paragraphs 152 and 186.
[19] In my view, it is plain and obvious that the statement of claim contains no reasonable cause of action against Thorup. No reliance by Mr. Morelli on Thorup’s advice is plead. It is clear Thorup was acting for a party that was, initially at least, taking the position that Mr. Morelli’s should be terminated. This was contrary to Mr. Morelli’s interest. In the pleading, Mr. Morelli made it clear he had declared to all parties at the arbitration he was acting on his own behalf. Obviously, Thorup was adverse to Mr. Morelli.
[20] I agree with the submission of counsel for Thorup that it is a rare case where opposing counsel will be found to owe a duty of care to an opposing party. No such duty is alleged in this case. No reliance on Thorup by Morelli is alleged in this case.
[21] There are occasions where a court will exercise its discretion to allow a party to amend its pleading where it has been subject of a successful motion to strike the claim for it failing to disclose a reasonable cause of action against a party. In this case, I am not prepared to exercise my discretion to allow leave to amend. The reason I decline to do this is because of the limitation argument raised by Thorup.
[22] Rule 21.01(1)(a) is relied upon by Thorup to seek a determination of this limitation issue before trial. I accept that the claim is statute-barred as against Thorup. Any incident or cause of action arose before the date set for the arbitration in June 2012, including the alleged letter as Mr. Morelli asserts it was used to support his termination. Mr. Morelli commenced the within action in September 2014, beyond the two year limitation period calculated from June 2012. Nothing is plead that Mr. Morelli was not aware of any alleged actions by Thorup that occurred or were discovered by him after June 2012.
[23] Accordingly, the claim against Thorup is dismissed with costs. The mechanism of the disposition of the costs award will be dealt at the end of this decision.
The Motion by Marques
[24] Like Thorup, Marques moves to strike the claim relying on Rule 21 and the assertion the claim discloses no reasonable cause of action against him. In the alternative, Marques argues this court has no jurisdiction to entertain the claim against him as it arises solely from a claim for negligence against a union lawyer acting in a grievance process, which falls under the exclusive jurisdiction of the Ontario Labour Relations Board. Also, Marques argues the claim is an abuse of process as its essence is a claim that Marques, in his capacity as counsel to the Union, failed to have the Union fairly represent Mr. Morelli. Mr. Morelli has already asserted two duty of fair representation claims to the Ontario Labour Relations Board, both of which were dismissed. Lastly, like Thorup, Marques submits the claim is statute-barred.
[25] Mr. Morelli asserts a claim for $100,000.00 against Marques for “professional misconduct”. Thirty-one paragraphs of the claim possibly relate to actions by Marques. These paragraphs are 1, 3, 123 through 125, 127, 129 through 152, and 159.
[26] Mr. Morelli’s submissions respecting Marques motion were not particularly clear. He plainly acknowledged that on the day of the arbitration he was acting for himself. Despite this, he did reference some “directions” given to himself by Marques at the arbitration (for example as referred to in paragraphs 143 and 146) but he did not plead that he relied on these directions or advice or that he believed Marques was actually acting for him. In argument, Mr. Morelli referenced a desire to “get behind the facts of what happened to him at the mill”.
[27] I agree with the characterization of Mr. Morelli’s argument made by counsel for Marques. He indicates in his factum that, at its best, it appears Mr. Morelli theorizes that he was fired for raising safety concerns at the mill, rather than insubordination as alleged by the Employer, and that the Union was complicit with the Employer in attempting to minimize these safety concerns.
The Applicable Law for the Marques’ Motion
[28] The law regarding Rule 21 motions, the duties of a lawyer to a non-client, and the law regarding the operation of the Limitations Act have been set out earlier and were relied upon by Marques in arguing this motion. In addition, counsel for Marques argued this court lacked jurisdiction to deal with Mr. Morelli’s claim against Marques as it involves matters that fall exclusively under the jurisdiction of the Ontario Labour Relations Board.
[29] In this regard, Marques relied on a decision of Hennessy J., of the Ontario Superior Court of Justice, in Berlinguette v. O’Ryan, 2010 ONSC 4266. In that case, the defendant union lawyer was sued by a union member for negligence in the course of a termination grievance brought by the union member against his employer. The defendant union lawyer brought a motion pursuant to rules 21.01(1)(a),(b) and 21.01(3)(a) striking out the statement of claim for want of jurisdiction, asserting that a claim for negligence against a union lawyer in a grievance process falls under the exclusive jurisdiction of the Ontario Labour Relations Board. Hennessey J. accepted the argument of the moving party and stated at paras. 8 through 10:
The Ontario Labour Relations Act confers exclusive power on a union to act as spokesperson for the employees in bargaining units, and that the union enjoys considerable discretion in exercising this role including for example the decision whether to take a grievance to arbitration. The unionized employee does not have an absolute right to arbitration. Acting within the statutory constraints and subject to a duty of fair representation, the union enjoys considerable discretion (Gendron v. Supply & Services Union of the PSAC Local 50057 1990 110 (SCC), [1990] 1 S.C.R. 1298 (S.C.C.) at para 64).
This discretion enjoyed by the union is subject to a duty of fair representation pursuant to s. 74 of the Labour Relations Act.
Courts have no original jurisdiction over disputes surrounding whether or not there was a breach of fair representation. Such disputes must be heard by the decision making body assigned to hear them. In Ontario, the OLRA assigns this jurisdiction to the Ontario Labour Relations Board.
Analysis Regarding the Marques Motion
[30] In my view, the main thrust of Mr. Morelli’s claim has little to do with Marques acting in his capacity as counsel for a trade union. It relates to Mr. Morelli’s complaints that Resolute, with the complicity of the Union, were operating the kraft mill in a manner contrary to regulations under the Ontario Technical Standards and Safety Act, 2000 S.O. 2000 c. 19 (the “TSSA”). I agree with the submission of counsel for Marques that the claims as plead against him in the statement of claim relate to his representation of the Union in the Plaintiff’s grievance process against the Employer, and, therefore, could only constitute a claim for breach of fair representation. Mr. Morelli has already made two unsuccessful applications to the Ontario Labour Relations Board alleging a breach by the Union. In addition, the Plaintiff has admitted in the statement of claim that he was representing himself at the arbitration. He does not plead that he relied on the professional advice of Marques.
[31] In my view, at least as far as Marques goes, Mr. Morelli’s claim at best is a claim for unfair representation. This would fall exclusively under the jurisdiction of the Ontario Labour Relations Board. On that basis, I am going to dismiss Mr. Morelli’s claim against Marques. The dismissal is with costs and will be addressed below.
[32] In addition, I agree that Mr. Morelli’s claim against Marques would be statute-barred. Even given a generous reading of his pleadings, any claim he asserts arose on or before the end of June 2012. The usual two year limitation period from s. 4 of the Limitations Act would apply in respect of any claims he could possibly assert. Marques relies on the provisions of Rule 21.01(1)(a) for a determination of this issue before trial. This too is a basis for dismissing his claim against Marques with costs.
The Motion by Resolute, Andre Bernier, Sabino Rossi, Bill Smeltzer, Dave Berry and Ryan Ellard
[33] The defendant Resolute Forest Products was Mr. Morelli’s former employer. The five named individuals were management employees at Resolute’s Kraft mill in Fort Frances. I will collectively refer to all these defendants as the “Company defendants”.
[34] The Company defendants move to strike Mr. Morelli’s claim on the following basis:
(a) The subject matter of the action has been settled as between the parties and is the subject of a full and final release executed by the Plaintiff and therefore there is no genuine issue for trial;
(b) This Honourable Court has no jurisdiction over the subject matters set out in the Statement of Claim;
(c) The claim is barred by virtue of s. 4 of the Limitations Act, 2002;
(d) The claim as against the Defendants is frivolous, vexatious, an abuse of process and an attempt by the Plaintiff to re-litigate matters;
(e) There is no reasonable cause of action as against the Defendants; and
(f) In the alternative, the claim against Bernier, Rossi, Smeltzer, Berry and Ellard ought to be dismissed on the basis that at all material times they were employees of Resolute and were acting within their capacity as employees, therefore making Resolute vicariously liable for all of their actions.
[35] The Company defendants rely on Rule 20 in respect of the relief claimed regarding the execution of the alleged release. The balance of the relief they claim relies on the provisions of rule 21.01(1)(a) and (b).
[36] The settlement agreement or release relied upon by the Company defendants was referred to earlier in this judgment. The specific terms of the document relied upon are as follows:
- In recognition of the foregoing, the Individual hereby releases the Company, including any predecessor, successor or affiliated entities such as Abitibi Inc., and all of their current, former or future employees, officers, directors, insurers, agents or service providers from all claims, grievances, complaints, applications, demands or other alleged liabilities arising out of the Individual’s employment with and permanent cessation of employment under the Collective Agreement, at law or under any statute including the Employment Standards Act, Occupational Health & Safety Act and Human Rights Code and Labour Relations Act, recognizing that the foregoing payments satisfy and exceed any statutory entitlement, and the Individual agrees to discontinue any watching/besetting type of conduct involving the Company’s current for former employees and their families and domiciles. This Agreement and the Award is an enforceable prohibition against the filing of any complaint or application under any statute including the Human Rights Code.
[37] Mr. Morelli did not file his own affidavit on this motion. The affidavit of Ms. Hazel did not deal with the settlement agreement. At paragraph 193 of the claim, it states that Mr. Morelli was “coerced, manipulated and threatened into signing an agreement”. The agreement referred to was the settlement agreement relied upon by the Company defendants.
[38] Even with a broad and generous reading of the statement of claim, all allegations (save one) against the Company defendants arose out of incidents that occurred in the workplace. There is one allegation referred to in paragraphs 98 through 106 that involved some interactions between Dave Berry and Mr. Morelli outside the workplace.
[39] The other allegations against the individual Company defendants concern interactions between themselves and Mr. Morelli, largely in connections with matters that led to Mr. Morelli’s termination and the grounds relied upon by the Company to attempt to uphold his discharge at arbitration.
[40] Mr. Morelli in argument admitted that he did not return the funds he received pursuant to the agreement that settled his grievance. He also admitted that to the extent his claim alleged a breach of the settlement agreement, the breach was that it was published despite containing a confidentiality clause. It was agreed by all parties that this publication was not as the result of any action by any of the parties involved in this action.
[41] Much of Mr. Morelli’s argument referred to complaints he had made about safety compliance issues within the mill while he was still employed. He was clear however that none of his complaints arose out of any alleged breaches of the Occupational Health and Safety Act. Mr. Morelli’s concerns all relate to compliance with the TSSA. I did not hear anything in Mr. Morelli’s argument or in his materials that assisted me in making a finding that the terms of the settlement agreement should not be given a great deal of weight in determining matters on this motion.
The Applicable Law for the Company Defendants’ Motion
[42] The law regarding Rule 21 motions and the law regarding the operation of the Limitations Act have been set out earlier and were relied upon by Company defendants in arguing this motion. In addition, I was provided authorities relating to the argument that this court has no jurisdiction with respect to matters arising out of the interpretation, application, administration, or alleged violation of a collective agreement that contains a binding arbitration clause. See: Weber v. Ontario Hydro, 1995 108 (SCC), [1995] S.C.J. No. 59 (S.C.C.) at para. 52, and St. Anne-Nackawic Pulp & Paper Co. v. C.P.U., Local 219, 1986 71 (SCC), [1986] S.C.J. No. 34 (S.C.C.) at para 19. Further, I was provided with the very well-known law concerning motions for summary judgment as stated by the Supreme Court of Canada in the relatively recent decision, Combined Air Mechanical Services Inc. v. Flesch, 2014 SCC 7, (sub nom Hryniak v. Mauldin).
Analysis Regarding the Company Defendants’ Motion
[43] I am of the view that the Company defendants’ motion can be disposed of further to the provisions of rule 21.01(1)(a). It is plain and obvious, even with a generous reading of the statement of claim, that all of the allegations made against the Company defendants were known and discovered by Mr. Morelli by the end of June 2012. He did not start his claim within two years of that date. The Company defendants assert his claims are all statute-barred by the operation of s. 4 of the Limitations Act. I agree. His claim against these Company defendants will be dismissed with costs.
[44] I am also of the view that there was a great deal of merit in both the Company defendants’ arguments for an order for summary judgment or, in that alternative, that this court lacked the jurisdiction to deal with the majority of claims by Mr. Morelli as they arose out of circumstances where a collective agreement governed the relationship. In light of the settlement agreement, I could not see how there would be a genuine issue for trial. However, in light of my view that the entirety of Mr. Morelli’s claims are statute-barred, it is not necessary to comment further on these particular grounds advanced by the Company defendants.
The Motion by the Union and Brian Short
[45] These party defendants have been “introduced” earlier in this judgment. They move to strike Mr. Morelli’s claims for the following reasons:
a) The plaintiff’s statement of claim pertains to allegations concerning the defendants’ representation of him, a matter which falls within the exclusive jurisdiction of the Ontario Labour Relations Board (“OLRB”). Accordingly, these defendants submit that the court has no jurisdiction over the action;
b) In the alternative, these defendants submit that the claim against them ought to be dismissed on the grounds that:
(i) the claim is statute-barred by the Limitations Act, 2002;
(ii) there is no reasonable cause of action disclosed in the statement of claim; and
(iii) the claim is an abuse of process as the plaintiff raised the very same allegations in two duty of fair representation complaints against the Union, both of which were dismissed by the OLRB.
[46] The arguments of counsel for the Union and Mr. Short mirrored those made by the other defendants on the other motions heard this day. Counsel for the Union and Mr. Short was most efficient in his presentation. These defendants were called upon last and by then the facts which related to these defendants had been fully canvassed both by the other parties and Mr. Morelli. Counsel for the Union and Mr. Short emphasized that the complaints made in this action against his clients, mirrored those made by Mr. Morelli in the two duty of fair representation complaints that were made by Mr. Morelli and dismissed by the OLRB.
[47] Mr. Morelli made no new representations when responding to this particular motion.
The Applicable Law for the Union’s and Mr. Short’s Motion
[48] These moving party defendants relied on rule 21.01(3)(a) as the main basis for their motion. As noted above, the law regarding Rule 21 motions, and the law regarding the operation of the Limitations Act have been set out earlier and were relied upon by these defendants in arguing this motion. They also relied on case law, introduced during the argument made by the Company defendants, that this court has no jurisdiction with respect to matters arising out of the interpretation, application, administration, or alleged violation of a collective agreement that contains a binding arbitration clause: See: Weber v. Ontario Hydro, supra at para 52 and St. Anne-Nackawic Pulp & Paper Co. v. C.P.U. Local 219, supra at para 19.
[49] Counsel also referred to a line of decisions commencing with the decision of the Supreme Court of Canada in Gendron v. Supply & Services Union of the P.S.A.C., Local 50057, 1990 110 (SCC), [1990] 1 S.C.R. 1298 at pp. 1326-1327 and continuing with a number of authorities from the Ontario Court of Appeal and the Ontario Superior Court of Justice which have clearly and repeatedly recognized the exclusive jurisdiction of the OLRB over duty of fair representation matters. See: Vernon v. General Motors of Canada Ltd., 2005 3323 (ON CA), [2005] O.J. No. 486 (C.A.) at para. 8, Minalu v. Sims, [2006] O.J. No. 603 (S.C.) at paras. 23, 24, 26 and 30, and Coleman v. Demers, [2007] O.J. No. 922 (S.C.) at para. 44.
[50] Counsel argued the manner in which a civil claim has been framed, whether in tort or contract or otherwise, is not determinative of the issue of jurisdiction. Rather, where the claim essentially concerns the manner in which the litigant was represented by a union or one of its members, courts are definitive in finding that they do not have jurisdiction. The statutory scheme effectively ousts the jurisdiction of the courts over such matter.
[51] With respect to the claim against Mr. Short in his personal capacity, counsel argued the issue of the fair representation of bargaining unit members by officers or agents of trade unions is also within the exclusive jurisdiction of the OLRB. Subsection 107(2) of the Labour Relations Act, S.O. 1995, c. 1, Sch. A, provides:
107(2) Any act or thing done or omitted by an officer, official or agent of a trade Union or council of trade Unions or Employer’s organization within the scope of the officer, official or agent’s authority to act on behalf of the Union, council or organization shall be deemed to be an act or thing done or omitted by the Union, council or organization.
[52] Therefore, if the matter involves the Union and matters of collective bargaining, the statutory regime of the Labour Relations Act ousts the jurisdiction of the Superior Court.
Analysis Regarding the Union’s and Mr. Short’s Motion
[53] In my view, it is plain and obvious that the matters alleged against the Union and Mr. Short by Mr. Morelli arose exclusively out of circumstances covered by the collective agreement by which Mr. Morelli’s employment was governed, and from duties and obligations, primarily the duty of fair representation, imposed on the Union as the result of the operation of the Labour Relations Act. It is clear Mr. Morelli raises issues that arise expressly or inferentially from the operation of the collective agreement to which his employment was subject. I agree that the authorities such a Weber, St. Anne-Nackawic Pulp & Paper Company and Gendron apply. Accordingly, I find there is no jurisdiction for this court to entertain Mr. Morelli’s claim as framed in this matter.
[54] Further, I would not be prepared to exercise my jurisdiction to allow Mr. Morelli to amend his claim for two reasons. First, he has already made two attempts to have his complaints with the Union and Mr. Short adjudicated by the very body, the OLRB, who are tasked with dealing with the specialized questions of fact and law that arise from collective bargaining relationships. Those complaints were dismissed. Second, as noted above, I am of the view that the entirety of Mr. Morelli’s claim relates to matters that occurred prior to the end of June 2012 and he failed to commence his action in a timely manner.
[55] For all of these reasons, Mr. Morelli’s claim against the Union and Mr. Short is dismissed with costs.
Costs
[56] At the commencement of each segment of argument, I asked the parties to indicate what quantum of costs they would be seeking if they were successful. There was an interesting range of costs proposed.
[57] In my view, absent any offers to settle, costs should be payable by Mr. Morelli to each particular set of defendants on a partial indemnity basis. I invite the parties to attempt to resolve the matter of costs without the need for a further attendance. If costs cannot be resolved by May 11, 2015, the parties may submit written submissions of no more than two pages (exclusive of the bill of costs) on or before May 15, 2015. Mr. Morelli will then have 15 days, to respond in writing. His submissions shall be limited to two pages double spaced for each defendant who have not settled the issue of costs with him.
[58] By way of direction, in these circumstances I would not be inclined to award costs for more than one counsel for each set of defendants, and I would not expect counsel to be seeking to have costs awarded for “research” as the legal principles put forward on these motions are well-known, particularly for those counsel who regularly practice in the area of labour relations.
_________”original signed by”
The Hon. Mr. Justice F.B. Fitzpatrick
Released: April 27, 2015
CITATION: Morelli v. Resolute Forest Products, 2015 ONSC 2756
COURT FILE NO.: CV-14-015
DATE: 2015-04-27
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Tony Morelli,
Plaintiff
- and -
Resolute Forest Products, Andre Bernier, Sabino Rossi, Bill Smeltzer, Dave Berry, Ryan Ellard, Peter Thorup, International Association of Machinists and Aerospace Workers, Bran short, Tony Marques,
Defendants
DECISION ON MOTION
Fitzpatrick J.
Released: April 27, 2015
/mls