Court File and Parties

COURT FILE NO.: 27550/17 DATE: 2018-06-12

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

KEN FRASER Plaintiff

– and –

UNITED STEEL WORKERS UNION LOCAL 2004 Defendant

Counsel: Donald Orazietti Q.C., Counsel for the Plaintiff Charles Sinclair, Counsel for the Defendant

HEARD: May 17, 2018

REASONS ON motion

GAREAU J.

[1] The court heard a motion dated September 20, 2017 brought by the defendant.

[2] In that motion the defendant asks that the action brought by the plaintiff be dismissed pursuant to Rules 21.01(1)(a), (b), 3(a), 3(b) and 3(d) of the Rules of Civil Procedure.

[3] Rule 21.01 of the Rules of Civil Procedure provides as follows:

To Any Party on a Question of Law

21.01 (1) A party may move before a judge,

(a) for the determination, before trial, of a question of law raised by a pleading in an action where the determination of the question may dispose of all or part of the action, substantially shorten the trial or result in a substantial savings of costs; or

(b) to strike out a pleading on the ground that is discloses no reasonable cause of action or defence,

and the judge may make an order or grant judgment accordingly. R.R.O 1990, Reg, 194, r. 21.01 (1).

(2) No evidence is admissible on a motion,

(a) under clause (1) (a), except with leave of a judge or on consent of the parties;

(b) under clause (1) (b). R.R.O, 1990 Reg. 194, r. 21.01 (2).

To Defendant

(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

Jurisdiction

(a) the court has no jurisdiction over the subject matter of the action;

Capacity

(b) the plaintiff is without legal capacity to commence or continue the action or the defendant does not have the legal capacity to be sued;

Another Proceeding Pending

(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or

Action Frivolous, Vexatious or Abuse of Process

(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,

and the judge may make an order or grant judgment accordingly.

[4] The action brought by the plaintiff was commenced by statement of claim dated July 5, 2017. In it the plaintiff claims as follows:

a) The defendant, United Steelworkers Union Local 2004, unlawfully dismissed the plaintiff from his elected position of Vice President of the National Executive, Local 2004, and was not offered his right of due process;

b) Pecuniary damages and out of pocket expenses resulting from the unlawful dismissal totalling $30,000.00. Particulars will be quantified and provided prior to trial;

c) Costs on a substantial indemnity basis and interest from the date of this action according to the Courts of Justice Act R.S.O. 1990, c.4; and

d) Such further and other relief as to this Honourable court seems just.

[5] Further relief sought is particularized under the heading “Relief Sought” in paragraph 29 of the amended statement of claim. Paragraph 29 of the amended statement of claim reads as follows:

The Plaintiff seeks:

(a) an order that the Executive of the United Steel Workers Union Local 2004 strictly adhere to the International Constitution which requires by-laws be amended only by special resolution entailing approval of two thirds of the majority of the membership;

(b) an order reinstating the Plaintiff to his former position of Vice President of the National Executive, Local 2004 and to position of President, Unit Chairperson and Health and Safety representative for his local unit of USW, unit 592;

(c) an order requiring the Defendant to re-instate the Plaintiff as a member in good standing with the Union;

(d) an order for pecuniary damages to be paid in to the Plaintiff in the amount of $35, 000.000;

(e) costs on a substantial indemnity basis and interest from the date of this action in accordance to the Courts of Justice Act R.S.O. 1990, c. 43; and

(f) such further and other relief this honourable court deems just.

[6] The essence of the action before the court involves a dispute between the plaintiff and the Union. The factum filed by the defendant sets out in paragraphs 6 to 15 inclusive the relevant factual background and chronology of events between the parties. I repeat those paragraphs contained in the factum of the defendant as follows:

The Plaintiff, Ken Fraser, was an employee of Canadian National Railway (“CNR”) and a member of USW, Local 2004 (the “Union”). He was the part-time elected Vice President of the Union, which represented over 3,000 CNR employees across Canada.

The Executive of Local 2004 (the “Executive”) was comprised of five full-time salaried board members elected from various regions across Canada, as well as four part-time members, of which the Plaintiff was one. The Executive held quarterly meetings as well as full-membership meetings called “Tri-annuals” every three years.

Ken Neumann was the National Director of the Union. Neumann’s two Staff Representatives were Mike Piche and Randy Gatzka.

In February 2012, the Plaintiff filed a complaint with the National Director in respect of allegations that the Executive, among other things, “unilaterally and fraudulently amended the By-Laws, conveniently increasing their salaries”, which amendment was not “approved by the required 2/3 majority of the membership.

Following the complaint, Betty Bailey, USW International Auditor, conducted an audit investigation. On March 3, 2013, Neumann sent Fraser a letter enclosing the audit investigation findings and notifying him that the auditor “has not found any substance to the complaints raised in your letter of February 12.”

The Plaintiff refers in his Claim to “prosecutorial proceedings that were commenced against the plaintiff led by Pierre Jacques, Chief Steward Mountain Region and Grant Colli, Chief Steward Prairie Region.” The aforementioned disciplinary proceedings, which are incorporated by reference into the Statement of Claim, are summarized as follows.

The Proceedings Resulting in Disciplinary Measures against the Plaintiff

On March 9, 2015, Jacques and Colli brought a complaint against Fraser under Article XII (Discipline) of the USW Constitution. This is summarized in the International Commission Report dated May 20, 2015. Jacques and Colli accused Fraser of, among other things, distributing false information, slandering and humiliating them and wrongfully accusing them of theft.

On March 24, 2015, an International Commission was appointed to investigate. Conduct a hearing and issue a report in the case. The International Commission appended the following the documents to its report, each of which was considered in rendering its decision:

(a) a Facebook comment by Fraser accusing Jacques and Colli of stealing $45,000. The comment alleged that they were “over paying themselves in contravention of the Local Union By-Laws”;

(b) subsequent emails from Jacques and Colli to Fraser offering an opportunity to apologize, and Fraser’s refusal to apologize;

(c) audit reports of Betty Bailey, USW International Auditor, dated March 3, 2015, following a complete audit of the Union for January 1 to December 31, 2014. Bailey presented her findings with respect to the Plaintiff’s complaint and dismissing each of the allegations. With respect to the allegation of an unlawful increase in rate of pay, she found:

1. Wage increase in February 2012 increasing their rate of pay following the ratification of the 2012-2014 agreement and the inclusion of the Landing Field Maintainer rate of pay, thereby becoming the highest rate of pay in the agreement instead of the Extra Gang Forman Level 3 rate of pay.

The Executive of the local union are in compliance with their approved by laws. The approved by-laws of the local union show that the compensation foe services for the President [Neumann] and Regional Chief Stewards [Jacques and Colli] are 40% and 20% respectfully above the highest rate in the Collective Agreement.

Additionally at no time did any President or Regional Chief Steward receive their salary based upon the job call of Leading Field Maintainer until it became part of the Collective Agreement in January 2012.

(d) letter from Neumann to Fraser, dated March 3, 2015, enclosing the audit reports and notifying him that the auditor “has not found any substance to the complaints raised in your letter of February 12”;

(e) evidence submitted by Fraser, summarized by the International Commission as follows:

Brother Fraser in his defence stated that he believed that the executive were over paying themselves and believed the pay increases were more than what the Local Union By-Laws allowed. He stated that in order to change their pay they had to have the by-law changes at their Triennial Meeting which he stated, never happened. He stated that the by-laws gave a set amount for pay with annual pay increases the same as what the rest of their membership received. When I asked if their by-laws had been approved by the International all parties agreed, except Brother Fraser, that they had been approved.

Brother Fraser also defended his statements on Brother Colli’s office expenses by stating Brother Colli was receiving personal gain by taking this money. Even after receiving the Betty Bailey report he still believes this.

The International Commission concluded and recommended the following in its report:

CONCLUSION AND RECOMMENDATIONS

After consultation with Sister Bryan and myself have come to the conclusion that Brother Ken Fraser is guilty under Article XII Discipline and should be found a member not in good standing and removed from office immediately if this recommendation is approved by the Executive Board.

We support our recommendations for the following reasons:

1. Brother Ken Fraser did post the accusation that Brother Jacques and Colli had stolen the $45, 000 dollars. Which the commission believes justifies the charges against Brother Fraser.

2. Brother Fraser admitted he suggested that Brother Colli has a personal gain when the motion was approved for his office expenses. The Commission believes this also justifies the charges against Brother Fraser.

We support our recommendations by virtue of the evidence against him. Had Brother Fraser apologized, especially after the Baily [sic] audit and Brother Neumann’s letter to him, we believe this matter would have been put to bed. He failed to apologize even after given the chance and he believes today that he has done nothing wrong. The Commission believes Brother Fraser’s slanderous remarks went a long way, if not the cause, of Brother Jacques [sic] losing the elections and this [is] why we believe Brother Fraser should be removed from office. Had Brother Fraser apologized and that apology circulated amongst their members prior to the election the outcome may have been different.

On October 28, 2015, the International Executive Board Appeal Panel of the USW adopted the report and recommendations of the International Commission in the abovementioned matter. Addressing Fraser, it found:

After reviewing the Commission Report and receiving testimony from you [Fraser], the Appeal Panel concurs with the recommendation of the Commission removing you from the office of Vice President. You will not be allowed to hold any Executive Position within the Local Union for the remainder of this term of office.

The Commission also concurs with the Commission recommendation that you be found a member not in good standing. However, if you issue a letter of apology to the members of the Local Union 2004 Executive within thirty (30) days of your receipt of this letter your good standing will be reinstated as of December 1, 2015. If no acceptable letter of apology is received within the thirty (30) day period you will remain a member not in good standing for two years from the date of this Commission Report.

[7] At paragraph 4 of the plaintiffs factum the plaintiff accepts the chronology referred to above except that he alleges, as indicated in paragraph 5 of his factum that:

Ms. Bailey found no irregularities in her summary audit but it is clear that at no time did she did she find that a By-law passed by the general membership and approved by two thirds as required by the USW Constitution was passed. There is no evidence of such a By-law. The plaintiff submits that the audit by Ms. Bailey was flawed and incomplete.

[8] Although the defendant argued that the claim of the plaintiff discloses no cause of action and the action constitutes an abuse of process of the court, the primary argument advanced by the defendant on the Rule 21.01 motion was that the court has no jurisdiction over the subject matter of the action and therefore the action should be dismissed pursuant to Rule 21.01 (3) (a) of the Rules of Civil Procedure. In order to be successful in this argument, the defendant must demonstrate that it is “clear, or plain and obvious” that some other body or tribunal has exclusive jurisdiction over the subject matter of the plaintiff’s action.

[9] The position of the defendant is that the matter before the court does not involve an employee relationship or a collective bargaining dispute but rather a dispute between a union member and the union thereby giving the Canada Labour Code exclusive jurisdiction over this internal labour dispute.

[10] The defendant argues that the Canada Labour Code provides for a mechanism to launch complaints and to have those complaints adjudicated by the Canada Industrial Relations Board and that the jurisdiction conferred in that process ousts the jurisdiction of the court to deal with the issues raised by the plaintiff in his amended statement of claim.

[11] The position of the plaintiff is that what is before the court is a “whistleblower” case and in such cases courts have been hesitant to oust their jurisdiction where unlawful acts and acts of corruption are alleged. The plaintiff argues that would be unfair if the very people he has accused of wrongdoing are involved in the adjudication of the complaints against them. The plaintiff argues that there is a residual discretion of the court to hear and adjudicate on the type of claim advances by the Plaintiff in this action.

[12] The Plaintiff cited the case Guenette et al. v. Attorney General of Canada et al. 2002 45012 (ON CA), 60 OR (3d) 601 in which the Ontario Court of Appeal rejected the “exclusive jurisdiction” model set out by the Supreme Court of Canada in Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 SCR 929. The Guenette case dealt with the general procedure under the Public Service Staff Relations Act not the Canada Labour Code which is the statute at play in Mr. Fraser’s case. The court in Guenette indicated that the primary consideration as to whether the exclusive jurisdiction model applies is whether the legislature exhibits in the statutory sphere a strong preference for a particular resolution process to the exclusion of the Courts. In Guenette the plaintiff’s claim did not fall within the class of grievances referred to for adjudication under Section 92 of the Public Service Staff Relations Act. In other words, the claim advanced by the plaintiff fell outside the claim to be decided in the statutory provisions.

[13] The Nova Scotia Court of Appeal dealt with an employment issue governed by the same legislation in the Guenette case, namely, the Public Service Staff Relations Act in the case of Pleau v. Canada (Attorney General), 1999 NSCA 159. Cromwell J.A. (as he then was), speaking for the Nova Scotia Court of Appeal, indicated that the process for dispute resolution established by the legislation, the nature of the dispute and the capacity of the legislation to afford “effective redress” must be considered in deciding whether the legislative scheme governs to the exclusion of the courts.

First, consideration must be given to the process for dispute resolution established by the legislation and collective agreement. Relevant to this consideration are, of course, the provisions of the legislation and the collective agreement, particularly as regards the question of whether the process is expressly or implicitly regarded as an exclusive one. Language consistent with exclusive jurisdiction, the presence or absence of privative clauses and the relationship between the dispute resolution process and the overall legislative scheme should be considered.

Second, the nature of the dispute and its relation to the rights and obligations created by the overall scheme of the legislation and the collective agreement should be considered. In essence, this involves a determination of how closely the dispute in question resembles the sorts of matters which are, in substance, addressed by the legislation and collective agreement. What is required is an assessment of the “essential character” of the dispute, the extent to which it is, in substance, regulated by the legislative and contractual scheme and the extent to which the court’s assumption of jurisdiction would be consistent or inconsistent with that scheme.

Third, the capacity of the scheme to afford effective redress must be considered. Simply put, the concern is that where there is a right, there ought to be a remedy.

The court in Pleau held that the case before it was a case where the dispute was outside the adjudication provided for the Public Service Staff Relations Act and thereby providing the court with jurisdiction to adjudicate with respect to the dispute.

[14] Similarly, the case of Patriarcki v. Attorney General of Canada, 2011 ONSC 407, 104 OR (3d) 749, dealt with the Public Service Staff Relations Act. In the Patriarcki case, the plaintiff had commenced an action against the Government based on negligence and vicarious liability. The court in Patriarcki found that the essential nature of the dispute did not fall within the scope of the general procedure under Section 91 of the Public Service Staff Relations Act. The court stated at paragraph 73 of the decision that “I find that the purpose and objective of the PSSRA was not to provide a method to compensate employees who suffer damages due to the negligent actions of a co-worker or employer.” In Patriarcki the court goes on to state at paragraph 74 of the decision:

Moreover, the court in Vaughan and Weber, supra, was persuaded by the relative level of expertise held by labour and dispute boards. This expertise was a large factor supporting the large amount of deference paid to these particular administrative entities. However, I find that labour dispute boards are not experts in the area of negligence, in particular, duty of care, causation and damages analysis. Effective Redress. [Emphasis added.]

[15] The Guenette, Pleau and Patriarcki cases all dealt with whether the Public Service Staff Relations Act exclusively governed the very specific disputes before the court. The court held in those cases that the jurisdiction of the court was not ousted based on the very specific wording in the Public Service Staff Relations Act and the specific nature of the dispute before it. There are circumstances in labour relations matters where the court retains jurisdiction and where the statute in question does not provide “exclusive jurisdiction” for adjudication to the exclusion of the court.

[16] In my view, the claim before this court advanced by the Plaintiff Ken Fraser against the defendant, United Steelworkers Union Local 2004 is not one of those cases.

[17] The applicable statute in the dispute before this court is the Canada Labour Code. The court must consider the essential nature of Mr. Fraser’s claim and whether the Canada Labour Code provides a mechanism of adjudication and effective redress through remedies. In Weber v. Ontario Hydro, [1995] 2 R.S.C. the Supreme Court of Canada dealt with an employee of Ontario Hydro who was paid sick benefits under a collective agreement. Ontario Hydro suspended Mr. Weber for abusing his sick benefits and the matter was dealt with through a union grievance which was eventually resolved. Mr. Weber commenced court proceedings based on tort, a breach of Charter rights and damages resulting from being under surveillance. The court in Weber held that the court did not have jurisdiction to hear the dispute as section 45(1) of the Ontario Labour Relations Act provided a final and binding settlement process by arbitration pertaining to “all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement” as stated by the court at paragraph 67 of the Weber decision:

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. This extends to Charter remedies, provided that the legislation empowers the arbitrator to hear the dispute and grant the remedies claimed. The exclusive jurisdiction of the arbitrator is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal.

[18] The Superior Court of Justice dealt with the same statute as the case at bar, namely, the Canada Labour Code in the case of Pileggi v. Canadian Union of Postal Workers, 2005 14323 (ON SC). Pileggi was a Rule 21.03(a) motion in which the union argued that the court had no jurisdiction over the subject matter of the plaintiff’s action. The plaintiff argued that pursuant to the provisions of the Canada Labour Code that the Canada Industrial Relations Board did not have exclusive jurisdiction over internal union disputes and that the plaintiff is entitled to pursue her claim in the court.

[19] In Pileggi the plaintiff is an employee of Canada Post and a member of the Canadian Union of Postal Workers. The plaintiff was suspended from her union position. The suspension was the subject of a hearing before the regional disciplinary committee of the union from which an appeal led to the union’s national appeal board. The plaintiff commenced an action to the court on October 10, 2003. The nature of the plaintiff’s claim is set out in paragraph 17 of Pileggi as follows:

The plaintiff says the disciplinary process, as applied in this matter, is tainted, unfair and not in accordance with principles of fundamental justice. She says the Union's goal throughout the disciplinary process was to prolong it as much as possible to keep the plaintiff under suspension and out of the office to which she was elected. The plaintiff is seeking an order that she be reinstated to her position as REOO, a declaration that she was wrongfully suspended, an order that the Union pay the plaintiff for lost wages during the period in which she was suspended without pay, an order that the Union pay the plaintiff's legal costs, on a full indemnity basis, arising out of the plaintiff's suspension, damages for mental distress and punitive, aggravated and exemplary damages

[20] The claim brought by the plaintiff in the Pileggi case is remarkably similar to the claim brought by Ken Fraser against the United Steelworkers Union Local 2004 in the case at bar.

[21] In the Pileggi decision Mr. Justice Siegel reviews in detail the statutory scheme set out in the Canada Labour Code and the tribunal, the Canada Industrial Relations Board, which administers the Code, which Siegel J. describes at paragraph 18 of his decision as “a specialized tribunal created by Parliament which administers the Code, a comprehensive labour relations scheme, in the context of federal undertakings. The Board has the power to adjudicate disputes in this context and is protected by a strong privative clause.”

[22] In his decision in Pileggi, Mr. Justice Siegel extensively reviews the applicable provisions of the Canada Labour Code. Paragraphs 21 and 22 of the Canada Labour Code set out the powers of the Canada Industrial Relations Board which include the Board to make orders requiring compliance with the provisions of the Canada Labour Code. In particular paragraph 22(2) of the code provides that:

Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall

(a) be questioned, reviewed, prohibited or restrained, or

(b) be made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise,

on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.

[23] In Pileggi the court went on to review the provisions in the Canada Labour Code which deals with the discipline by a trade union against a member including a prohibition against unlawful discipline as set out in paragraphs 95(f) and (g) of the Canada Labour Code and the provision in section 99 which set out the remedies available to the Canada Industrial Relations Board with respect to allegations of improper discipline against a union member including an order of reinstatement (section 99(e) ) and an order requiring a trade union to rescind any disciplinary action (section 99(f) ).

[24] The court held in Pileggi that the “essential character” of the plaintiff’s action was an allegation of breach of the rules of natural justice arising out of improper considerations being taken into account in the actions and decisions of the members of the union executive. The court held that the statutory duty in the Canada Labour Code provisions embraces these allegations.

I believe that the “essential character” of the plaintiff’s action is an allegation of breach of the rules of natural justice arising out of improper considerations being taken into account in the actions and decisions of the members of the Union executive. I also agree with the defendant that the statutory duty in the Code provisions embraces these allegations: see, for example, Pilette at paras. 18, 19 and 43, which confirms the wide ambit of the duty based on claims of discriminatory application of the union standards of discipline.

[25] In respect to the issue as to whether the Board had exclusive jurisdiction in respect to the plaintiff’s claim in Pileggi, it is useful to repeat paragraphs 57 to 61 inclusive of the Pileggi decision which reads as follows:

In the context of collective agreements, courts have dismissed actions where the matters at issue arose in a labour relations context and there existed a comprehensive legislative scheme which provided a statutory framework for dealing with the matters in dispute: Roberts v. Serca Foodservice Inc. (2001), 15 C.C.E.L. (3d) 92 (S.C.J.) at para. 16: Maynard v. Arvin Ride Control Products, [2000] O.J. No. 937 (S.C.J.) at para. 51; and Bhaduria v. Toronto Board of Education (1999), 1999 4745 (ON CA), 30 C.P.C. (4th) 227 (Ont. C.A.) application for leave to appeal to the S.C.C. dismissed [1999] S.C.C.A. No. 212.

In Gendron, the Supreme Court addressed the issue of whether the legislation also provides the Board with exclusive jurisdiction to hear any action the plaintiff may wish to pursue under the Code provisions based on the allegations made in the Statement of Claim. I have concluded that the reasoning in Gendron is equally applicable on this motion. In that decision, the Supreme Court held that the Court should accord deference to the statutory dispute resolution process established in comprehensive labour relations legislation. The conclusion of the Supreme Court was summarized by L’Heureux-Dubé J. at 1321 and 1326 as follows:

While the legislation does not expressly provide that the Board has exclusive jurisdiction, it indicates that Parliament envisioned a fairly autonomous and specialized Board whose decisions and orders were to be accorded deference by the ordinary courts, subject only to review within the confines of the privative clause. As noted earlier, Parliament has provided the duty, the procedure for adjudicating an alleged breach, a wide array of remedies and a privative clause protecting the Board. It can be therefore assumed to have intended that the ordinary courts would have but a small role if any to play in the determination of disputes covered by the statute. An analysis of the legislative scheme would not seem to permit any alternative as any other interpretation would endanger the special role of the Labour Board and the policy underlying the Code. An examination of this particular legislation and its policy objectives would not seem to permit an action in the ordinary courts for a breach of the statutory duty. That, of course, may not be the case for other legislation differently drafted. …

It is clear then that this Court has enunciated a principle of deference, not only to decision-making structures under the collective agreement but as well to structures set up by labour legislation and in general, to specialized tribunals operating within their fields of expertise. When the relevant statute requires collective agreements to provide for the final and binding settlement of disputes, it becomes difficult if not impossible to distinguish St. Anne, supra, and similarly reasoned cases on the basis that the issue in those cases concerned the relationship between contractual dispute resolution and the jurisdiction of the ordinary courts, not the relationship between statutory dispute resolution and the courts. The concern that recourse to the ordinary courts may jeopardize the comprehensive dispute resolution process contained in labour relations legislation is one that arises in this latter situation as well. Allowing parties to disputes which, by their very nature, are those contemplated and regulated by labour legislation, to have recourse to the ordinary courts would fly in the face of the demonstrated intention of Parliament to provide an exclusive and comprehensive mechanism for labour dispute resolution, particularly in the context of the present case.

I concluded earlier that the common law duty of fair representation was by necessary implication ousted in situations where the statute applies. As the statute is applicable in the present case, the respondent in this case cannot base his claim on the common law but must instead have recourse to the statute. For the above reasons, I would also conclude that the statutory duty owed the respondent was one that must first proceed to the decision-making structure assigned this task under the legislation, the Canada Labour Relations Board. There is no original jurisdiction in the ordinary courts to decide the matter, only the ability to review Board decisions in the very limited parameters contemplated by the privative clause. (emphasis added)

I note that this reasoning in Gendron was applied in Pilette at para. 49. In that decision, Lyse Lemieux J. held that there is no original jurisdiction in the ordinary courts to decide a disciplinary matter involving the application of the rules of natural justice and that a court only has the ability to review the Board’s decisions within the limited parameters contemplated by the privative clause.

I am in agreement with the conclusion in Pilette and adopt the reasoning of Lyse Lemieux J. in that decision. The approach in Pilette is also consistent with the principle articulated by Estey J. in St. Anne. In assessing whether the Courts should give deference to another decision-making scheme established as part of a comprehensive scheme for labour relations, I see no meaningful distinction between contractual dispute resolution and statutory dispute resolution. Similarly, I can see no basis for drawing a distinction in this context between claims for breach of the duty of fair representation, as in Gendron, and claims based on a denial of the principles of natural justice arising out of an internal union dispute.

Conclusion

For the foregoing reasons, the defendant’s motion is granted and the plaintiff’s action is dismissed under Rule 21.01(3)(a) on the basis that this Court has no jurisdiction over the subject matter of the action.

[26] The case of Pileggi v. Canadian Union of Postal Workers clearly indicates that there is no inherent jurisdiction in the court to adjudicate on an internal union dispute even if that dispute includes a claim based on a denial of the principles of natural justice arising out of an internal union dispute.

[27] The claim advanced by Ken Fraser against the United Steelworkers Union Local 2004 is strikingly similar to the claim advanced by Raylene Pileggi against the Canadian Union of Postal Workers. In both actions, the plaintiffs seek a reinstatement to their former union position and pecuniary damages. Both claims allege a denial of due process and a breach of natural justice. Both claims involve internal union disputes. In both cases the Canada Labour Code is the legislative scheme and statute in which claims are made and disputes are adjudicated. In fact, in Mr. Fraser’s claim he alleges at paragraph 27 in the amended statement of claim that “the prosecutorial process including the trial violated the rules of due process and fundamental justice. The action was unlawful in breach of the Union’s Constitution, the USW Amalgamated Local’s own By-Laws, and was in violation of section 95(g) of the Canadian Labour Code.” [Emphasis added.]

[28] Although I am not bound by the decision in Pileggi v. Canadian Union of Postal Workrs, I find it well reasoned and persuasive. This case reviews and applies the same labour statute that applies to Mr. Fraser, namely, the Canada Labour Code. The cases relied on by the plaintiff, and in particular, the Guenett, Pleau, and Patriarcki cases consider the Public Service Staff Relations Act and come to a different conclusion than reached in Pileggi due to the statutory scheme set out in that legislation, which did not govern the dispute of the parties thereby leaving residual jurisdiction in the court to adjudicate on those matters. In Mr. Fraser’s case, the Canada Labour Code provisions are designed to deal with the very internal dispute between union workers and the union which he raises and provides an adjudication process through the Canada Industrial Relations Board and remedy provisions.

[29] On the facts I am persuaded that the cases referred to as “whistleblower cases” result in a different outcome than that indicated in the Pileggi decision. Those “whistleblower” cases involve the consideration and application of a different statute and a dispute between employees against employers. The facts in Pileggi are similar to those in the case at bar and apply the same statutory scheme in an internal dispute between a union member and the union to which he belongs.

[30] As to whether the Ontario Superior Court of Justice has jurisdiction to hear the action commenced by Ken Fraser against the United Steelworkers Union Local 2004, my view is that this court does not have jurisdiction to hear that claim given the “essential character” of the claim and the statutory scheme in place under the provisions of the Canadian Labour Code.

[31] The jurisdiction of the court is not completely ousted in that there is a process of judicial review to the Federal Court after the proceedings under the Canada Labour Code has been completed and a remedy is appropriate.

[32] Accordingly, the motion brought by the defendant for a dismissal of the plaintiff’s action is granted and the action is dismissed under Rule 21.01(3)(a) of the Rules of Civil Procedure on the basis that this court has no jurisdiction over the subject matter of the action.

[33] Having arrived at this decision, it is unnecessary for the court to consider whether the plaintiff’s claim discloses no reasonable cause of action or is an abuse of process.

[34] If costs of the motion is in dispute, the parties are at liberty to serve and file written submissions, no longer that 5 typed pages, excluding offers to settle and bills of costs, by 4:00 p.m. on July 12, 2018.

Gareau J.

Released: June 12, 2018