Court File and Parties

COURT FILE NO.: CV-20-643587

DATE: 2021-05-10

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Maciej Krecisz Plaintiff/Responding Party

AND: Cascades Recovery Plus a Division of Cascades Canada ULC and Metro Waste Paper Recovery Inc. Defendant/Moving Party

BEFORE: Pollak J.

COUNSEL: Miguel Mangalindan & Andrew H. Monkhouse, for the Plaintiff/Responding Party Porter Heffernan, for the Defendant/Moving Party

HEARD: February 11, 2021

Endorsement

[1] In this wrongful dismissal Action, the Plaintiff, Maciej Krecisz (“Mr. Krecisz”), claims damages for unpaid overtime, unpaid vacation and holiday pay and unpaid CPP and EI deductions, against the Defendant Cascades Recovery Plus a Division of Cascades Canada ULC and Metro Waste Paper Recovery Inc. (“Cascades”). Cascades moves pursuant to Rule 21.01(3)(a) of the Rules of Civil Procedure, which provides that:

A defendant may move before a judge to have an action stayed or dismissed on the ground that, (…) the court has no jurisdiction over the subject matter of the action

[2] It submits that in accordance with our jurisprudence, this court has no jurisdiction to determine matters which arise out of the interpretation, application, administration or alleged violation of a collective agreement where the parties have negotiated a binding arbitration clause.

[3] The Plaintiff submits that the true nature of this claim arises out of his misclassification as an independent contractor, rather than an employee, during his 20-year employment with the Defendant. His claim is based on a pre-employment contract (an independent contractor agreement), (the “Agreement”), which should be dealt with in the courts pursuant to the common law rather than through labour arbitration.

[4] On or about April 16, 2019, the Labourers’ International Union of North America, Local 506 (the “Union”) was certified as the exclusive bargaining agent for all drivers and drivers’ helpers employed by Cascades working in and out of the City of Toronto, Ontario, save and except supervisors, persons above the rank of supervisors, dispatchers and office and clerical employees.

[5] Mr. Krecisz’s evidence is that he was hired as an Owner Operator Truck Driver, pursuant to the “Agreement”, approximately 20 years ago. Mr. Krecisz’s compensation was approximately $96,096.00 per year. His primary duty was to perform delivery-related services. Further, his evidence is that although he was classified as a “contractor”, he worked exclusively for Cascades for 20 years and was economically dependent on the Defendant.

[6] Further, he was not able to set his own schedule, was told when and where to make deliveries and was monitored by a GPS. He had to seek approval from Cascades to take vacation time and was unable to refuse work or negotiate his pay. He wore a Cascades uniform, and Cascades decals were applied to his truck. The Plaintiff’s work was supervised by Cascades and he had no opportunity for profit or to sub-contract out his duties. He therefore claims that he was an employee of Cascades, that he was wrongfully dismissed and that he is entitled to overtime pay, unpaid holiday and vacation pay. He submits that the conduct in issue in this case – the misclassification of his employment – is conduct that falls outside the scope of the collective agreement. This action should be permitted to proceed as this court has jurisdiction to hear the case.

[7] The Defendant argues that his claims should be grieved under the Collective Agreement.

[8] Cascades, however, submits that the Plaintiff was an independent contractor who provided truck driving services using his own truck and that he paid for all of his expenses, and submitted invoices for his services.

[9] The Defendant’s main argument on this motion is that if the Plaintiff’s claim that he was an employee or a dependent contractor in his pleading is accepted, he would be included in the Union’s bargaining unit. The Union would have the right and duty to represent him in respect of all matters related to his employment and the termination thereof. All disputes arising from his employment are subject to a grievance and arbitration procedure in accordance with the Ontario Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A (the “Labour Relations Act”). Most importantly, the issue of whether the Plaintiff was an employee and therefore included within the bargaining unit is within the exclusive jurisdiction of an Arbitrator appointed under the Labour Relations Act and the Collective Agreement.

[10] The Defendant relies on Subsection 1(1) of the Ontario Labour Relations Act, 1995, which includes dependent contractor in its definition of employee:

1(1) […] “dependent contractor” means a person, whether or not employed under a contract of employment, and whether or not furnishing tools, vehicles, equipment, machinery, material, or any other thing owned by the dependent contractor, who performs work or services for another person for compensation or reward on such terms and conditions that the dependent contractor is in a position of economic dependence upon, and under an obligation to perform duties for, that person more closely resembling the relationship of an employee than that of an independent contractor; […]

“employee” includes a dependent contractor;

[11] The Defendant’s position is that the Plaintiff was an independent contractor at all times. The Plaintiff alleges that he was an employee and claims various remedies in respect of his employment and the termination thereof.

[12] The Ontario Court of Appeal has held that the determination of whether or not a plaintiff is an “employee” within the meaning of a collective agreement is also within the exclusive jurisdiction of a labour arbitrator. In Claxton v. BML Multi Trades Group Ltd., 2003 34634 (ON CA).

[13] The Defendant argues that as the Plaintiff claims he was an employee or dependent contractor, he would have to file a grievance to be brought by the Union. The question of whether he was an employee, is properly within the jurisdiction of an Arbitrator. All of the issues raised by the Plaintiff in this Action, including whether or not he was an employee of the Defendant or an independent contractor, should be the subject of a grievance and are not subject to the jurisdiction of the Court. It is submitted that this exclusive jurisdiction of a labour arbitrator leaves no residual jurisdiction for the Court to consider whether the Plaintiff is an employee of the Defendant. As a result, the Claim should be stayed or dismissed in its entirety as a result.

[14] The Plaintiff submits that his claim is not covered by the collective agreement. He was not a “driver” but an “owner-operator” who was misclassified as an independent contractor by the Defendant.

[15] He submits that “owner-operators” are not included in the Defendant’s collective agreement, only “drivers” or “driver’s helpers” are included in the bargaining unit. Owner-operators are a unique category of worker, as they own and operate their own truck.

[16] The parties agree that this Court must determine the essential character of Mr. Krecisz’s Claim. The Plaintiff argues that his claim exclusively involves his pre-employment Agreement, and does not arise from the interpretation, application, administration, or violation of any collective agreement. His relationship with Cascades was governed solely by his pre-employment agreement. Mr. Krecisz was treated as an independent contractor and never as a unionized employee for 20 years. Therefore, this dispute is not under the exclusive jurisdiction of a labour arbitrator but is solely within the jurisdiction of this Court, or in the alternative, this Court would have concurrent jurisdiction.

[17] The applicable test for determining whether an issue falls within the exclusive jurisdiction of a labour arbitrator was set out in the Supreme Court of Canada decision of Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R 929. The Court held at para. 52 that: “The question, in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration, or violation of the collective agreement.”

[18] The Plaintiff relies heavily on the Supreme Court of Canada decision in Goudie v. Ottawa (City), 2003 SCC 14, 2003 S.C.C 14, [2003] 1 S.C.R. 141. In that case, it was held that the dispute arose out of a pre-employment contract, when the Plaintiffs were not employees and were not members of the bargaining unit and that the essential character of the claim was not rooted in a collective agreement, the Court at paras. 3-5 held that:

It is true that the respondents’ complaint about reduced wages and benefits was asserted against their employer, the City of Ottawa, at a time when the respondents were covered by a collective agreement between the appellant and the Canadian Union of Public Employees, Local 503 (“CUPE”).

The essential character of the dispute, however, is a claim under an alleged pre-employment contract. The respondents’ entitlement, if any, did not arise out of the interpretation, application, administration or violation of the CUPE agreement. On the contrary, the respondents’ complaint is precisely that they were paid according to the CUPE contract rather than under the more advantageous terms of the alleged pre-employment contract.

Whether or not there actually was a pre-employment contract is a hotly disputed fact that is not amenable to resolution on a preliminary motion. I think the Court of Appeal was correct to set aside the judgment of the motions court and to allow the action to proceed. The appeal from that court should be dismissed.

And further at para 15:

that all of these claims are rooted in the alleged pre-employment contract.

And at para. 19:

The Court of Appeal for Ontario reversed that dismissal on the basis that “it would be open to a trial judge to find that the plaintiffs had a pre-employment agreement with the respondent. If so, their claims do not arise out of the collective agreement with the Police Association” ((2001), 2001 24028 (ON CA), 197 D.L.R. (4^th) 543, at para. 9). However, the court added, it would be open to the City to argue at trial, in light of the evidence, that “the court has no jurisdiction once the true nature of the alleged [pre-employment] agreement is established” (para. 9).

At paras. 23-24:

Subsequent cases have confirmed that if the dispute between the parties in its “essential character” arises from the interpretation, application, administration or violation of the collective agreement, it is to be determined by an arbitrator appointed in accordance with the collective agreement, and not by the courts. See Weber v. Ontario Hydro, [1995] 2 S.C.R., at paras. 41 and 52, and Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R., 360, 2000 SCC 14, at paras. 23 and 25.

None of these cases purported to deny access to the courts by plaintiffs who allege a cause of action outside the collective agreement. The appellants complains that the decision in the courts below undermines “the sanctity of agreed arbitration clauses in collective agreements” and permits unionized employees to “get out of collective agreements and litigate labour relations issues, instead of going through regular grievance arbitration process”, and says the issue here is “whether the approximately 4 million unionized workers in Canada should each, individually, by given the opportunity to forum shop” (appellant’s factum, at para. 1). In my view, with respect, this case raises no such issues. In Wainwright v. Vancouver Shipyards Co. (1987), 1987 166 (BC CA), 38 D.L.R. (4^th) 760 (B.C.C.A.), it was held that the courts have jurisdiction over contracts predating the collective agreement. See also Johnston v. Dresser Industries Canada Ltd. (1990), 1990 6808 (ON CA), 75 O.R. (2d) 609 (C.A.). Both of these cases were cited with approval by this Court in Weber, supra, at para. 52. Such disputes are foreign to the collective agreement and are not embraced by the legislative intent favouring arbitration.

At para. 26-27:

If a pre-employment agreement was made in September 1983, as alleged, a claim for its enforcement cannot be said to arise from the interpretation, application, administration or violation of the CUPE collective agreement.

The appellant complains that it is being put to the trouble and expense of a law suit merely on the bare allegation of a pre-employment contract. This is true, but of course the courts are open to any litigant who “merely” alleges a cause of action. Procedures exist under the rules of practice to obtain particulars or to bring frivolous or unsupportable claims to an early resolution. The losing litigant may, depending on the view taken of the matter by the motions judge, find itself burdened with costs.

At para. 30:

In the present case, the principal difficulty confronting the appellant was not legal but factual. To meet the allegation of a pre-employment contract, the appellant felt it necessary to file the affidavit of Rosemarie Leclair, Commissioner of Corporate Services of the City of Ottawa. The affidavit, according to the appellant, showed that there was no such pre-employment contract. Yet it confirmed, at the same time, the existence of a serious factual dispute. That being the case, I do not think that the appellant could avoid the exigencies of a summary judgment motion (rule 20) by framing its attack as a jurisdictional challenge under clause 21.01(3)(a). As Borins J.A. pointed out in Dawson v. Rexcraft Storage and Warehouse Inc. (1998), 1998 4831 (ON CA), 164 D.L.R. (4^th) 257 (Ont C.A.), a pleadings motion generally “offers no assistance in weeding out cases where a substantively adequate claim, or defence, has been pleaded, but cannot be proved” (para. 14).

And at paras. 32-34:

It is the practice in Ontario for the motions court to receive evidence pertinent to the jurisdictional issue, such as a copy of the collective agreement (see the cases cited in para. 29), or other affidavit evidence (Leufkens v. Alba Tours International Inc. (2001), 2001 28038 (ON SC), 53 O.R. (3d) 112 (S.C.J.), and, on the issue of capacity, S. (J.R.) v. Glendinning (2000), 2000 22641 (ON SC), 191 D.L.R. (4th) 750 (S.C.J. Ont.)), but it was not appropriate for the appellant to attempt to turn a jurisdictional challenge under clause 21.01(3)(a) into a mini-trial on a disputed, central question of fact. If the appellant was of the view that the pleading of a pre-employment contract was a sham and raised no genuine issue for trial, it ought to have moved for summary judgment pursuant to rule 20.01. In that case, while the onus would have been on the appellant as the moving party to establish the absence of a genuine issue for trial, each side would have been required to “put its best foot forward” (Transamerica Life Insurance Co. of Canada v. Canada Life Assurance Co. (1996), 1996 7979 (ON SC), 28 O.R. (3d) 423 (Gen. Div.), at p. 434, per Sharpe J., as he then was), with respect to the existence or non-existence of the pre-employment contract, or, as Osborne J.A. put it in 1061590 Ontario Ltd. v. Ontario Jockey Club (1995), 1995 1686 (ON CA), 21 O.R. (3d) 547 (C.A.), at p. 557, “a respondent on a motion for summary judgment must lead trump or risk losing”. See also Aguonie v. Galion Solid Waste Material Inc. (1998), 1998 954 (ON CA), 156 D.L.R. (4th) 222 (Ont. C.A.), and Dawson, supra. Generally, if there is an issue of credibility which is material, summary judgment will be refused: Irving Ungerman Ltd. v. Galanis (1991), 1991 7275 (ON CA), 4 O.R. (3d) 545 (C.A.).

The respondents were under no evidentiary obligation at this stage to prove the existence of a pre-employment contract for the purposes of surviving a jurisdictional challenge under clause 21.01(3)(a). The pleadings themselves established that the central allegation of jurisdictional fact (the existence of a pre-employment contract) was also the central issue on liability in the law suit. This is not a jurisdictional issue that turns on uncontroverted or easily ascertainable facts. Clearly, credibility would very much be an issue.

I agree with the Ontario Court of Appeal that the appellant’s approach was misconceived. The disagreement between the parties was essentially factual, not legal. In light of the factual issues raised by the pleadings, the jurisdictional issue could not be determined on a preliminary motion. The motions judge should not therefore have driven the respondents so precipitously “from the judgment seat”, per Wilson J. in Hunt v. Carey Canada Inc., 1990 90 (SCC), [1990] 2 S.C.R. 959, at p. 973.

The Court of Appeal had stated in Goudie v. Ottawa (City), 2001 24028 (ON CA) at para. 9:

In our view, it would be open to a trial judge to find that the plaintiffs had a pre-employment agreement with the respondent. If so, their claims do not arise out of the collective agreement with the Police Association. Thus, at this stage in the proceedings, we cannot say that the courts have no jurisdiction under the Weber doctrine. The terms of this oral agreement have not yet been established and we should not be taken as preluding the respondent from arguing at trial, in light of the evidence, that the court has no jurisdiction once the true nature of the alleged agreement is established. Nor should we be taken as preluding as argument on the enforceability of any alleged agreement after the appellants were covered by the C.U.P.E. agreement.

[19] I find that this analysis is very applicable to the facts of this case and the issues raised on this motion. It is open to a trial judge to find that there did exist a pre-employment agreement. As a consequence, this motion is pre-mature. The Defendant chose to bring a pleadings motion, rather than a summary judgment motion. I conclude that this motion must be dismissed on the basis of such reasoning. This is not a motion for summary judgment. As the terms of the alleged pre-employment agreement have not been determined, the Plaintiff cannot, on this pleadings motion, be precluded from arguing at trial that this court does have jurisdiction. I therefore dismiss this motion.

Costs

[20] As the successful party on this motion, the Plaintiff is entitled to be awarded his costs of $13,045 on a partial indemnity scale, which I find that in accordance with the factors set out in our Rules of Civil Procedure and in the Boucher v. Public Accountants Council (Ontario), (2004) 2004 14579 (ON CA), 71 O.R. (3d) 291 (C.A.)case are reasonable.

Pollak J.

Date: May 10, 2021