Focus On

Process and procedure - Arbitration - when available - Legislation, impact

Thursday, August 11, 2016 @ 8:00 PM  


Appeal by the defendant, the University of Windsor, from a jurisdictional ruling in respect of the action by the plaintiff, Brown on behalf of the Faculty Association. The plaintiff was president of the union. In 2010, he commenced an action alleging the defendant failed to provide him and other affected employees with cash rebates in respect of employment insurance premium reductions the plaintiff received under the Employment Insurance Act. The defendant moved to dismiss the action on the basis the court lacked jurisdiction, as the dispute arose out of administration of the collective agreement. The motion judge considered the essential character of the dispute as misappropriation or a failure to account for employment insurance premiums under the premium reduction program, unrelated to the employment relationship or collective agreement, inferentially or expressly. The judge rejected the argument that exclusive jurisdiction lay with an arbitrator and allowed the action to proceed. The defendant appealed.

HELD: Appeal allowed. The motion judge erred by relying on the Hershey/Rathwell line of jurisprudence. The conclusion that the essential character of the dispute was the defendant’s failure to comply with the premium reduction program, and the conclusion that the dispute was not within the ambit of the collective agreement, was heavily informed by the Hershey/Rathwell decisions and was erroneous. In addition, the motion judge erred in failing to consider the full import of s. 48(12)(j) of the Labour Relations Act, which granted a labour arbitrator jurisdiction to interpret and apply the substantive rights and obligations of employment-related statutes. Here, there was a real contextual connection between the statute and the collective agreement such that a violation of the statute gave rise, in the context, to a violation of the pay and benefit provisions of the collective agreement. The combined effect of ss. 48(1) and 48(12)(j) of the Labour Relations Act gave an arbitrator exclusive jurisdiction over the dispute. The plaintiff’s action was accordingly stayed.