CITATION: Brown v. University of Windsor, 2015 ONSC 4416
COURT FILE NO.: CV-110-14757
DATE: 20150827
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brian E. Brown, on his own behalf and on behalf of all affected members of the University of Windsor Faculty Association
James A. Renaud and Matthew R. Todd, for the Plaintiff
Plaintiff
- and -
The University of Windsor
Michael J. Kennedy, for the Defendant
Defendant
HEARD: June 5, 2015
S.K. CAMPBELL J.:
Introduction
[1] The defendant, The University of Windsor, seeks an order dismissing the plaintiff's action. It submits that this court lacks jurisdiction over the subject matter of the dispute and alleges that the subject matter is probably within the jurisdiction of the labour arbitrator. The plaintiff argues that no jurisdiction rests with an arbitrator and the action is properly before the court.
Background
[2] The plaintiff commenced this action as a representative action May 13, 2010. In the statement of claim he seeks a variety of orders. The relief sought includes authorization for him to bring the proceeding on behalf of all affected past and present members of the University Faculty Association pursuant to rule 12.08.
[3] The crux of the plaintiff's claim is that the defendant has failed to satisfy the requirements of the Employment Insurance Premium Reduction Program ("EIPRP"). The plaintiff alleges that the university has enjoyed the benefit of remitting reduced premiums, but has failed to share the savings with the employees. As a result, the plaintiff and those he represents have suffered damages.
[4] At the core of this action is the EIPRP. It was established in 1973. The program is managed by the Canadian Employment Insurance Commission ("EI Commission") and governed by the Employment Insurance Act, S.C. 1996, c. 23, and regulations. Employees of the Department of Employment and Social Development Canada ("ESDC") conduct the business of the commission.
[5] The EIPRP is administered by the El Commission. It allows an employer to reduce its employment insurance premiums if the employer has an acceptable wage loss plan in place. The El Commission, Human Resources and Development Skills Canada ("HRDSC"), or ESDC do not receive or retain any funds that are saved.
[6] Employers receive a reduction in employment insurance payable if they can demonstrate they have a wage loss plan in place equal to the protection provided by El and if the plan will assume the first payor position for benefits thereby reducing costs to the EI program. El premiums are paid by the employers and employees at a rate of seven-twelfths and five-twelfths respectively. The employer must certify or undertake to remit back to the employees their share (five-twelfths) of the premiums saved.
[7] The EIPRP offers savings to both employer and employee using the same ratios. If a premium reduction is approved by the EI Commission, it reduces the employer's premium rate savings. That includes both the employers and employees portion of the savings. Neither the El Commission or any government department or agency receives or retains any savings from the employer's participation in the program. It is the employer's responsibility to ensure that all the employees for which the reduction applies receive their portion of the savings. This may be done by remitting to employees cash remittances or increase employee benefits or new employee benefits.
[8] The EIPRP has evolved over time. The current legislative framework is set out in s. 69 of the Employment Insurance Act and the regulations thereunder. There is no statutory requirement in the employment insurance plan that the commission monitor or ensure compliance with the employer's undertaking.
[9] The plaintiff's allegations in the statement of claim, stated simply, are that the defendant has failed to provide to affected employees cash rebate, entered into an agreement for the use of premium reductions, failed to provide new employee benefits or upgraded benefits and has used the savings to their own benefit. The plaintiff alleges that this has occurred since approximately 1970.
[10] The plaintiff commenced this action in 2010, after first becoming aware of the program in 2008. The action is brought as a representative action. The plaintiff asserts entitlement on behalf of a group which includes both present and former employees of the defendant who were also members of the University of Windsor Faculty Association.
[11] There is no provision in any collective agreement between the parties that deals with the program. There have been numerous collective agreements between the parties from the date the defendant began participating in the program. There has been no grievance commenced by the plaintiff. The plaintiff states that is because there is no basis to allege a violation of the collective agreement or foundation upon which an arbitrator could make a determination related to the program.
Issues
[12] The issues to be determined by the court on this motion are:
Should the action be dismissed on the basis that the court has no jurisdiction to deal with the matter?
Does an arbitrator's exclusive jurisdiction include interpreting where the university violated the Employment Insurance Act?
Does an arbitrator's exclusive jurisdiction include the ability to address the portion of the claim made on behalf of the retirees?
It is trite to say that a determination of the first issue significantly impacts the court's decision on the other issues.
Position of the Parties
[13] Both parties filed thorough facta. In those facta, both parties reviewed the issues fully and here I will only summarize those positions.
[14] The defendant argues the action should be dismissed because the essential character of the dispute arises out of the administration of the collective agreement. Therefore, exclusive jurisdiction lies with a labour arbitrator. Section 48(1) of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2 ("Ontario LRA"), compels all differences between parties to a collective agreement to proceed to arbitration.
[15] In support of that proposition, the defendant refers to two Supreme Court of Canada decisions: St. Anne Nackawic Pulp & Paper Co. v. Canadian Paperworkers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704, 28 D.L.R. (4th)1 and Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995], 2 S.C.R. 929, 125 D.L.R. (4th) 583 (S.C.C.). The first decision, St. Anne, was released in 1986. In 1995 the Supreme Court of Canada revisited the issue in Weber. The plaintiff agrees that those cases and their prodigy remain the law in Canada.
[16] Weber provides in determining whether the courts have jurisdiction the essential character of the dispute must be determined. In determining the essential character of the dispute it is important to consider whether the facts giving rise to the dispute emerge from the employer/employee relationship under the collective agreement. The defendant asserts that that is the case in this matter and the plaintiff cannot avoid the result by commencing a representative action.
[17] The defendant specifically argued that the plaintiff's claim arises from the administration of the collective agreement. The essential character of the dispute is a claim that members of the bargaining unit are owed money by the defendant. This claim, the defendant argues, must be pursued in labour arbitration and not through the courts.
[18] With respect to the second issue, the defendant argues that although the alleged breach is not a direct violation of the collective agreement, it does not make the claim inarbitrable under the agreement. Interpreting employment-related statutes such as the Employment Insurance Act forms part of an arbitrator's exclusive jurisdiction. That jurisdiction is set out in s. 48(12) of the Ontario LRA.
[19] The defendant points to para. 21 of the collective agreement in support of their position. That article deals with employment insurance and how it interacts with other employment rights such as maternity benefits.
[20] The defendant states that since the Supreme Court of Canada's decision in Parry Sound (District) Social Services Administration Board v. O.P.S E. U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, labour arbitrators have found that a number of statutes, including the Employment Insurance Act, are employment related. On that basis, arbitrators have retained jurisdiction in disputes related to a breach of those statutes.
[21] With respect to the third issue, the Supreme Court of Canada has confirmed the right of a union to enforce rights under collective agreements, including the rights of retirees under an expired collective agreement. Therefore, determination of whether the claim of retirees is arbitrable is also within the exclusive jurisdiction of labour arbitrators and not the courts.
[22] The plaintiff argues that the court should not relinquish its jurisdiction in this action because the subject matter of dispute does not arise from the interpretation, application, administration or violation of the collective agreement. The plaintiff accepts that the defendant has recited in paras. 13 and 19 of its factum the law outlining the approach enunciated in Weber and subsequent decisions and the rationale for granting jurisdiction in labour disputes arising out of a collective agreement to labour arbitrators.
[23] Primarily, the plaintiff argues that the essential character of the dispute does not arise out of the terms and conditions of the employment relationship and/or collective agreement. The essential character of the dispute is the defendant's failure to comply with the provisions of the program as it relates to passing benefits on to the defendant's employees.
[24] In support of his position, the plaintiff emphasizes the fact that he and those he represents were not aware of the program. The defendant never involved or informed its employees of the program. Therefore, at this point, the defendant cannot state that the essential character of the dispute arises from the interpretation, application, administration or alleged violation of the collective agreement.
[25] The plaintiff argues that the essence of the claim is that the defendant failed to comply with the program in returning premium reductions of five-twelfths to the employees. The plaintiffs are not seeking a return of funds, but damages for the defendant's breaches of its obligation.
[26] The plaintiff further argues that it is not necessary that a determination of damages require an interpretation of the relevant collective agreement or agreements. There are no terms in any agreements that relate to this issue and a calculation of the savings obtained by the defendant is not in any related to wages.
[27] The plaintiff further argues that entitlement is not based on an employee being a member of the faculty association. Therefore, the entitlement does not arise out of any collective agreement, the entitlement arises out of the existence and non-compliance with the program of all employees of the defendant.
[28] The plaintiff refers to a line of decisions in Hershey Canada inc. v. United Steelworkers of Canada, Local 461, [1997] O.L.A.A. No. 1001. These cases, he argues provide the court with clear direction involving the precise question of jurisdiction.
[29] The plaintiff also referred to decisions where claims by employees were not considered within the jurisdiction of a labour arbitrator. These cases, the plaintiff submits, illustrate it is only in circumstances where the essential character of the dispute arises from the interpretation, application, administration or violation of the collective agreement that jurisdiction should be deferred.
[30] The plaintiff further argues that the courts have recognized that a party cannot be left without a remedy where there is a right. Here, if the court does not accept that it has jurisdiction, the plaintiff will be left without a remedy, notwithstanding their right to receive a portion of the benefits that should have accrued to them pursuant to the program.
[31] With respect to the second issue, the plaintiff does not disagree with the proposition that, in appropriate cases, an arbitrator would have the power to interpret and apply provisions of the Employment Insurance Act. However, an arbitrator can only reach that point if the arbitrator has jurisdiction. Ancillary to that position, the plaintiff argues that a mere reference to the Employment Insurance Act in the collective agreement does not give the arbitrator jurisdiction over all aspects of the act.
[32] With respect to the third issue, the plaintiff takes a similar position. That is, if the court has jurisdiction over the plaintiff's claim, it has jurisdiction with respect to the rights of retirees. The plaintiff argues that the retirees or other affected employees do not have entitlement under the collective agreement. The position of the court in Dayco (Canada) Ltd. v. National Automobile, Aerospace & Agricultural Implement Workers Union of Canada, 1993 CanLII 144 (SCC), [1993] 2 S.C.R. 230, 13 O.R. (3d) 164, is not applicable for that reason.
Analysis
Issue 1 - Does this court have jurisdiction to deal with this matter?
[33] In its factum, the plaintiff accepts that the defendant has recited at paras. 13 and 19 of its factum "the law outlining the approach annunciated in Weber and other cases and the rationale for granting jurisdiction in labour dispute arising out of the collective agreement to labour arbitrators". Here, the plaintiff argues the matter in dispute does not fall within the jurisdiction of an arbitrator because the dispute does not arise out of the collective agreement.
[34] Section 48(1) of the Ontario LRA compels all the differences between parties to a collective agreement to proceed to arbitration. It states:
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.
[35] In St. Anne, the trial judge raised a preliminary question at trial as to whether the court had jurisdiction to hear a claim arising out of a collective agreement given the comprehensive provisions of the Industrial Relations Act, R.S.N.B. 1973, c. I-4, of New Brunswick. That question was raised in the context of an employer's claim for damages against a union for losses flowing from the shutdown of its plant when employees struck in sympathy with other employees. At trial, the question was answered in the negative and that conclusion was upheld on appeal. At p. 718 of the Supreme Court of Canada's decision, the court stated:
The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the Legislature has not assigned these tasks.
[36] The court continued at p. 720:
The courts have no jurisdiction to consider claims arising out of rights created by a collective agreement. Nor can the courts properly decide questions which might have arisen under the common law of master and servant in the absence of a collective agreement regime if the collective agreement by which the parties to the action are bound make provision for the matters in issue, whether or not it explicitly provides a procedure and forum for enforcement.
[37] In 1995, the Supreme Court of Canada in Weber considered what the court in St. Anne had referred to as a modern approach. At para. 43 of its decision, the court set out the test for determining whether a dispute was governed by the collective agreement as follows:
The issue is not whether the action, defined legally, is independent of the collective agreement, but rather whether the dispute is one "arising under the collective agreement". Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it.
[38] The parties agree that two factors govern the determination of whether the dispute arise under the collective agreement. Those factors are:
a) The nature of the dispute; and
b) The ambit of the collective agreement.
Disputes may be found to arise expressly or inferentially from the collective agreement.
[39] The parties also agree that the court in Weber rejected the overlapping or concurrent jurisdiction approach. In Regina Police Assn. inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, at para. 34, the Supreme Court considered the rationale for granting exclusive jurisdiction.
[40] The Ontario Court of Appeal in Giorno v. Pappas (1999), 1999 CanLII 1161 (ON CA), 42 O.R. (3d) 626, 117 O.A.C. 187 (ONCA), referenced Laskin J.A.'s decision in Piko v. Hudson's Bay Co. (1998), 1998 CanLII 6874 (ON CA), 41 O.R. (3d) 729, 116 O.A.C. 92 (ONCA), and stated at para. 18:
Whether a dispute can be litigated or must be arbitrated turns on the nature of the dispute and the terms of the collective agreement, not on the legal characterization of the wrong alleged. The court must examine the facts of the dispute to determine if the essential character of the alleged conduct is covered by the terms of the collective agreement.
[41] I accept the defendant's position that in determining the central character of the dispute, it is irrelevant whether the action is a representative action or a class action: see Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666. In para. 2 of the statement of claim, the plaintiff states he is bringing this action "on his own behalf and on behalf of all affected members, past and present, of the University of Windsor Faculty Association".
[42] A review of the statement of claim leads to the conclusion that the essential character of the claim is that the defendant university misappropriated or failed to account for employment insurance premiums to its employees, including those in the bargaining unit on whose behalf this action is commenced, contrary to the provisions of the Employment Insurance Act. The plaintiff says the defendant failed to remit the savings to the employees or in any other way compensate them as required by the legislation.
[43] The plaintiff argues that the accounting or reimbursement wasn't dealt with in the collective agreement simply because the defendant did not disclose the existence of the program to the employees. The plaintiff also argues that the claim is not about misappropriation and that no such allegation has been made. Rather, the allegation is a failure to comply with the program. In my view, if it is found that the defendant failed to comply with the program, the logical remedy is likely to be damages. In determining those damages, a review of the collective agreements will have to be undertaken.
[44] The collective agreements between the university and the faculty association during the relevant time period included a provision essentially in the terms of article 39.01 of the agreement in effect from July 1, 2008 to June 30, 2011 (exhibit C to the affidavit of Edward Bruce Tucker sworn the 25th of November of 2010). That article provide that the grievance and arbitration procedure in the collective agreement is the sole method for resolution of complaints or grievances. Regard to that section can be made only after it has been determined the essential character of the dispute arises under the collective agreement.
[45] In Weber a unionized employee had been on a period of extended absence because of work related injury. The employer suspected the employee of malingering and hired a private investigator to conduct surveillance of him. When the employee became aware of the surveillance, he filed grievances under the collective agreement, which were settled. The employee also brought action against the employer in tort and under the Canadian Charter or Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, alleging violation of his rights under ss. 7 and 8.
[46] The action was dismissed on the motion of the employer on the grounds that the existence of the grievance procedure ousted the jurisdiction of the court. The Court of Appeal upheld the dismissal of the tort action but allowed the Charter claims to stand. The employee appealed to the Supreme Court of Canada seeking reinstatement of its action in its entirety. The employer cross-appealed the decision to allow the Charter claims to stand.
[47] The Supreme Court of Canada held that the appeal should be dismissed and that the cross-appealed allowed. In the result both the employee's tort and Charter claims were found to be outside of the jurisdiction of the court. Paragraph 67 of the Court's decision states:
I conclude that mandatory arbitration clauses such as s. 45(1) of the Ontario Labour Relations Act generally confer exclusive jurisdiction on labour tribunals to deal with all disputes between the parties arising from the collective agreement. The question in each case is whether the dispute, viewed with an eye to its essential character, arises from the collective agreement.
[48] The court concluded that the wide language of the collective agreement combined with the other items in the collective agreement included the conduct the employee alleged against the employer. It could be argued that aspects of the alleged conduct extended beyond the agreement but that did not affect the essential character of the conduct.
[49] Since Weber, there have been many instances where the court has accepted jurisdiction over disputes where the employer has sought to establish the action is barred by the principles of Weber. In the course of argument, the defendant sought to distinguish the cases referred to by the plaintiff as supporting that proposition. However, what those cases do establish is that it is not correct to assume that simply because there is a dispute between an employer and employee where a collective agreement exists, the court does not have jurisdiction.
Hershey/Rathwell Decisions
[50] Counsel for the plaintiff argued that the Hershey/Rathwell decisions provide the court with a "direct line" for a decision in this motion. Given the similarity in the facts and the issues dealt with by the arbitrator and the courts in those decisions, I find that a detailed consideration of these decisions is appropriate.
[51] The first decision was that of Arbitrator I.G. Thorne on December 12, 1997. The matter before Arbitrator Thorne was a policy grievance brought by the union (United Steel Workers of Canada Local 461). The grievance dealt with a premium reduction granted to the employer (Hershey Canada Inc.) in accordance with the provisions of the Employment Insurance Act. The premium reduction in that matter was in accordance with the program which lies at the heart of this litigation.
[52] Arbitrator Thorne considered the preliminary objection by the employer that the arbitrator did not have jurisdiction to consider the grievance. The arbitrator reviewed the Employment Insurance Act and the premium reduction program thoroughly. The arbitrator also considered article 30.01 of the collective agreement which dealt with a number of benefits, including a short term sick leave plan and long term disability plan. The union did not have access to the particulars of the employer's application for premium reduction through the undertakings given by the employer to the commission.
[53] Arbitrator Thorne reviewed the St. Anne and Weber decisions at length. That review was in the context of submissions made by counsel and in the course of analyzing the issues. The arbitrator was fully aware of the factors he needed to consider in determining whether or not he had jurisdiction. The arbitrator concluded by stating:
I am not persuaded that the claim in this case arises under the collective agreement, even inferentially. The collective agreement makes no reference to the possibility for reduction and employment insurance premiums for the employer or a possible entitlement to a share ... reduction by the employees.
[54] One factual difference in Hershey was that in collective agreements prior to 1987, the rate reduction plan was mentioned and specific benefits in the collective agreements were stated to be in lieu of a rebate. After 1987, the collective agreements were silent on the rate reduction plan it would appear that the arbitrator was not aware of the pre 1987 provisions. The action that followed the arbitrator's decision sought only to recover payments post 1987, when the collective agreement no longer made specific reference to the reduction/rebate.
[55] After the arbitrator declined jurisdiction, the plaintiff Rathwell commenced an action against his employer Hershey Canada Inc. The defendant employer brought a motion to have the statement of claim struck alleging it disclosed no reasonable cause of action. Manton J. in Rathwell v. Hershey Canada Inc., [1999] O.J. No. 5725 denied that motion. In brief reasons he stated:
[3] I find that the statement of claim discloses reasonable of action.
[4] I also find that this Court has jurisdiction to hear this action because of the Employment Insurance Act requires that part of the reduction given to the employer (Hershey) must benefit the employee. The regulations under the E.I.A. require only that the employer is meeting his under-taking. The employees allege that they did not receive the benefits they are entitled to. A trial of the issues will determine this.
[5] I also find that the Plaintiffs are not estopped from going ahead with their claim and that the doctrine of res judicata cannot be invoked by the Defendant because the parties in this action are not the same parties who communicated with Human Resources Development Canada.
[56] The reference in para. 5 to issue estoppel appears to be a response to the defendant's argument that the union had communicated with HRDSC. Presumably, that was in the form of a complaint by the union about the employer's failure to rebate or otherwise account for the premium reduction.
[57] Manton J.'s decision was appealed to the Ontario Court of Appeal. In Rathwell v. Hershey Canada Inc. (2000), 2000 CanLII 2071 (ON CA), 133 O.A.C. 397, [2000] O.J. No. 2553 (ONCA), (Rathwell 1), the Court of Appeal dismissed the employer's appeal. The Court of Appeal noted that prior to 1987 the collective agreement contained a particular benefits clause that was in recognition of the unemployment insurance premium reduction prior to 1987. They also noted that the union wrote to the premium reduction program complaining about the employer's failure to comply with this undertaking.
[58] The Court of Appeal considered the hearing officer's ruling about the union's complaint. The Court concluded that the question that had risen in the action, as to compliance with the undertaking or legal obligation arising from that undertaking, is not a question that could be decided by a commission. The court therefore concluded at para. 14:
Thus, there is no ruling or decision extant that has been made within the jurisdiction established by the Act and its regulations and, if there be legitimacy in the plaintiff's plea, it would constitute a right which should not stand without a remedy. I conclude that the motions judge was right and the appeal should be dismissed with costs.
[59] In reviewing the decisions of Manton J. and the Court of Appeal decisions, it becomes obvious that neither undertook a full analysis of the applicability of St. Anne and Weber.
[60] The employer launched another appeal of the decision of Manton J. That decision can be found at Rathwell v. Hershey Canada Inc. (2001), 2001 CanLII 8598 (ON CA), 152 O.A.C. 1, [2001] O.J. No. 3730 (ONCA), (Rathwell 2), where the court delivered an oral endorsement. The court observed that the appellant (Hershey Canada Inc.) contented that the union could not litigate its claim because an arbitrator has exclusive jurisdiction over disputes based on the principles set out in Weber. The court noted that the parties had changed their position since the 1997 grievance. The court also noted that the union sought redress from the Unemployment Insurance Commission but was denied relief. It was thereafter that the union issued a statement of claim.
[61] The court referred to the employer's earlier appeal contending that the court had no jurisdiction over the plaintiffs claim because jurisdiction rested solely with the commission and the commission's ruling on the issue amounted to issue estoppel. It appears that the appellant argued before the Court of Appeal that the arbitrator's decision was not "binding because neither party put before him the provisions of the earlier collective agreement that expressly spells out the trade-off between the ongoing medical benefits and the waiver of the employee's right to share in the premium reductions". The appellant's position seems to have been that issue estoppel cannot confer jurisdiction on the court since the jurisdiction is precluded by the application of Weber.
[62] The Court of Appeal concluded that they did not need to reach Weber because the question whether the dispute should be arbitrated was res judicata. That is, the issue estoppel to the arbitrator's decision and the subsequently discovered evidence did not affect its applicability.
[63] However, the court went on to say at para. 6 that even if the arbitrator's decision does not raise issue estoppel, the earlier decision of the court operates to make the appellant's new position "res judicata". They found "although the appellant for its own reasons may not have wanted to raise the Weber point on the earlier motion and appeal, the principle of Res Judicata requires it to have done so".
[64] Hershey Canada Inc. sought to appeal the Ontario Court of Appeal decision to the Supreme Court of Canada but leave for appeal was dismissed on March 14, 2002: see Rathwell v. Hershey Canada Inc., [2001] S.C.C.A. No. 581, 164 O.A.C. 279.
[65] Therefore, while Manton J. made a finding, without reference to Weber, that the court has jurisdiction, the Court of Appeal does not appear to have dealt with the matter on the basis of the principles set out in St. Anne's and Weber. That is, the Court of Appeal resolved the matter by relying on the principles of res judicata and issue estoppel.
Stare Decisis
[66] In Michelle Fuerst and Mary Anne Sanderson, Ontario Courtroom Procedure, 3rd ed. (Markham: Lexis Nexis, 2012), at p.1141, the authors stated:
Technically, stare decisis is a "rule" that dictates that every court is bound to follow any case decided by a court above it in the hierarchy. It also implies that cases must be decided the same way when their material facts are the same, the goal being to provide for certainty, predictability and consistency in the law: Holmes v. Jarrett, 1993 CanLII 8479 (ON SC), [1993] O.J. No. 679, 68 O.R. (3d) 667 (Gen. Div.)
[67] The text also refers to the question whether trial judges are bound by decisions of other trial judges. The conclusion is that they are not but they should nonetheless give considerable weight to decisions of other judges unless there are cogent reasons to depart from their decisions.
[68] I have already noted that none of the decisions in the Hershey/Rathwell line undertook a Weber analysis. Indeed, in Rathwell 2, the Ontario Court of Appeal stated it did not need to do so.
[69] Nevertheless, the origin of the Hershey/Rathwell decisions is on all fours with the case before me. Manton J. determined that this court had jurisdiction to determine the employee's claim. The Court of Appeal agreed. That jurisprudence does not disappear simply because neither court undertook a full Weber analysis. It is not my role to question whether, had the courts undertaken a fill Weber analysis, they would have reached a different conclusion. The Court of Appeal ruled that this court had jurisdiction and I see no reason to question that ruling.
Summary
[70] It might be considered that I am not bound by the Hershey/Rathwell decisions because they were not determined by reference to the principles of Weber. However, I conclude that they should be given considerable weight. Firstly, the fact situation is very similar. Secondly, Manton J. made a finding with respect to his jurisdiction and the Ontario Court of Appeal agreed with that decision. I conclude simply because they did not avert to Weber in their decision I cannot ignore the court's conclusions. That is, l cannot say that had they gone through a Weber analysis their decision would have been different.
[71] The defendants argued that the Rathwell/Hershey line of cases was effectively overruled in Parry Sound (District) Social Services Administration Board v. OPSEU Local 324 (2003), 2003 SCC 42, 230 D.L.R. (4th) 257 (S.C.C.). I respectfully disagree. I find nothing in the factual background of that decision or in the legal analysis in the Supreme Court Canada that implicitly rejects the Ontario Court of Appeal's decision and Rathwell 1 and Rathwell 2.
[72] I have determined that the dispute does not arise either expressly or inferentially from the collective agreement. The dispute would have been present between the parties even if there was no collective agreement in place. I find that the essential character of the claim does not arise out of the terms and conditions of the employment relationship and/or collective agreement. The essential character is the defendant's failure to comply with the provisions of the EIPRP.
173] Further, those provisions of the collective agreement that refer to unemployment insurance do not result in my concluding that this action is within the ambit of the collective agreement. There are many actions by employees against employers, the jurisdiction of which remains with the court. The material facts that form the basis of this action were considered by the Manton J. and the Court of Appeal. I can find nothing in those decisions or those that follow that lead me to a different conclusion.
Issue 2 – Does an arbitrator's exclusive jurisdiction include interpreting where the university violated the Employment Insurance Act?
[74] In an appropriate case, an arbitrator would have the power to interpret and apply provisions of the Employment Insurance Act. That can occur only where an arbitrator has jurisdiction. In my view, I have concluded that the court has jurisdiction and, therefore, a determination of that issue is not necessary.
Issue 3 – Does an arbitrator’s exclusive jurisdiction include the ability to address the portion of the claim made on behalf of the retirees?
[75] Similarly, a determination of that issue depends on the arbitrator having jurisdiction. I conclude that the court has jurisdiction and, therefore, it follows that a determination of that issue is not necessary.
Conclusion
[76] This court has jurisdiction and I therefore deny the motion to dismiss the action.
Costs
[77] If the parties are unable to agree on the issue of costs, I will receive submissions from the plaintiff within 30 days and from the defendant within 15 days thereafter.
Scott K. Campbell
Justice
Released: August 27, 2015
CITATION: Brown v. University of Windsor, 2015 ONSC 4416
COURT FILE NO.: CV-I0-14757
DATE: 20150827
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Brian E. Brown, on his own behalf and on behalf of all affected members of the University of Windsor Faculty Association
Plaintiff
– and –
The University of Windsor
Defendant
REASONS FOR JUDGMENT
S.K. Campbell
Justice
Released: August 27, 2015