SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CV-15-00519729

DATE: 20150630

RE: Fernando Santos, Plaintiff

AND:

Crawford Roofing Corporation, Defendant

BEFORE: Carole J. Brown, J.

COUNSEL:
Howard Markowitz, for the Plaintiff/Responding Party

Nicole Simes, for the Defendant/Moving Party

HEARD: June 29, 2015

ENDORSEMENT

[1] The defendant seeks to strike the plaintiff's claim or to permanently stay the action on the ground that this Court does not have jurisdiction over the subject matter of the action.

[2] The plaintiff, Mr. Santos, was a member of the Sheet Metal Workers’ International Association Local 30, the exclusive certified bargaining agent for employees of the defendant, Crawford Roofing, the plaintiff's employer. Mr. Santos was terminated from his employment on June 28, 2013.

[3] The defendant submits that at the material times, the unionized employees at the defendant were subject to the Provincial Collective Agreement between the Labour Relations Section of the Ontario Industrial Roofing Contractors' Association and the Ontario Sheet Metal Workers and Roofers' Conference of the Sheet Metal Workers’ International Association. The plaintiff was a member of this Union and the bargaining unit covered by the Collective Agreement during his employment and at the time of his termination. As such, the terms and conditions of employment were determined by the Collective Agreement, which provides for a comprehensive Grievance and Arbitration procedure: s.48(1) of the Collective Agreement, as required by the OLRA, s.48 (1). A broad range of remedies is available pursuant to OLRA, s. 48(17).

[4] The plaintiff denies that he was a member of the bargaining unit and maintains that, accordingly, the Collective Agreement does not apply to him. He submits that because a part or a principal percentage of his duties were mechanic shop duties, he was not covered by the Collective Agreement and not represented by the bargaining unit.

[5] I am satisfied that the issues involved are to be determined pursuant to the Grievance and Arbitration procedures. The jurisdiction of the labour relations tribunals is exclusive, without concurring or overlapping jurisdiction in the courts. This has been long recognized by the Supreme Court of Canada: St. Anne Nackawic Pulp & Paper Company Limited v Canadian Paperworkers Union Local 219 1986 71 (SCC), [1986] 1 SCR 704: Weber v Ontario Hydro, 1995 108 (SCC), [1995] 2 SCR 929. This same deference is accorded to specialized labour tribunals and decision-making structures under a Collective Agreement: Myrtezaj v Cintas Canada Limited, 2008 ONCA 277; Regina Police Association Inc. v Regina (City) Board Of Police Commissioners, 2000 FCC 14; Vaughn v Canada, 2005 SCC 11. And see: Ontario Rights of Labour Act, RSO 1990 c R 33,s 3(3).

[6] The plaintiff's dispute against the defendant concerns the applicability of the Collective Agreement to him and involves the termination of his employment with the defendant. The claim brought in this Court is, in substance, a wrongful dismissal claim. Exclusive jurisdiction for these issues resides in the arbitration process: Weber v Ontario Hydro, supra; Myrtezaj v Cintas Canada Limited, supra.

[7] The determination of whether the Collective Agreement applies to the plaintiff, given his work, is a question that arises explicitly from the interpretation of the Collective Agreement and is therefore within the sole jurisdiction of the labour arbitrator. Where a dispute arises explicitly or implicitly from the interpretation, application, administration or violation of a collective agreement, the dispute is within the sole jurisdiction of the labour arbitrator: Regina Police Association Inc. v Regina (City) Board of Police Commissioners, supra; Weber v Ontario Hydro, supra.

[8] Mr. Santos takes the position that this action was his only recourse as the Union would not pursue the grievance on his behalf. However, he had recourse within the grievance process to a duty of fair representation complaint to the OLRB. There is no evidence to establish that this was pursued by him. See: OLRA s 74; Hills v Local 210 Staff Association, 2001CanLll 18 293; Coleman v Demers, [2007] O.J. No. 922.

[9] Based on all the evidence before this Court, and on the caselaw presented to me, I am of the view that this Court does not have jurisdiction. Accordingly, I order that this action be stayed pending further order of the court.

[10] I award total costs to the defendant, which was wholly successful, in the amount of $7,906.37.

Carole J. Brown

Date: June 30, 2015