If you take the dispute outside of the collective agreement, you will find it difficult to subsequently argue the other side is stuck with the collective agreement's dispute resolution process
By Stuart Rudner
Many folks use the terms “labour law” and “employment law” interchangeably.
However, to those of us who practice in the field, there is an understanding that “labour law” refers, generally speaking, to the law as it applies to unionized workplaces. Conversely, “employment law” would apply to non-unionized workplaces.
Regardless of the terms used, however, most people assume if there is a dispute regarding a unionized employee, then they must file a grievance rather than commence an action in civil court. However, that is not always the case.
In O’Loan vs. Risinger, the parties involved were all employed at Dorset Drive Public School; most were teachers, though they also included the acting principal and school secretary. The plaintiff brought an action against the defendants in which it was alleged that they had:
•attempted to have the plaintiff’s girlfriend make false allegations against him unrelated to his work as a teacher
•engaged the police through false allegations
•engaged the Children’s Aid Society through false allegations
•made unfounded complaints to the Ontario Human Rights Commission
•directly and indirectly disseminated false information to the community.
Clearly, there were issues between the various parties involved. However, when the plaintiff commenced a legal action against the defendants, they brought a motion to dismiss or stay the action on the basis it should have been dealt with through the procedure set out in the collective agreement and the plaintiff could not pursue a civil action.
In response, the plaintiff pointed out the defendants did not bring a grievance or choose to enforce their rights pursuant to the collective agreement, but rather engaged other processes including human rights complaints and complaints to the authorities. He made no claim against his employer, the school board. In short, the plaintiff took the position he was not bound to bring his claim as a grievance, as the actions of the defendants were not sufficiently connected to the workplace.
In reviewing the law, Justice Aston of the Ontario Superior Court of Justice confirmed section 48(1) of the Labour Relations Act provides all differences arising from the interpretation, application, administration or alleged violation of a collective agreement must be resolved by the process set out in the collective agreement and ultimately by arbitration. However, the court agreed with the plaintiff that the facts as alleged (and not proven as yet, as this decision was made based upon a preliminary motion) “establish a connection to the workplace that is peripheral but not central to the allegations and claims he is advancing.”\
As a result, the motion to dismiss or stay the claim was rejected.
The matter was appealed to the Ontario Court of Appeal. The Court of Appeal held as follows:
The puzzling and troubling events that gave rise to the lawsuit are not anchored in the performance of the respondent’s duties as teacher. As the motion judge pointed out, this reality is especially confirmed by the appellant’s own conduct. They made no attempt to invoke the collective agreement in their alleged dispute with the respondent. Instead, they took initiatives in a large number of fora not connected to the school or the collective agreement – for example, their attempt to have the respondent’s former girlfriend make false allegations against him unrelated to his work as a teacher… In light of these activities, it does not lie in the appellants’ mouths to say now that the only forum for the respondent’s response to their conduct is the collective agreement.
The case is a helpful reminder that not all disputes involving members of a bargaining unit must be pursued in accordance with the collective agreement. Although the employer was not involved in this particular case, it is also a reminder to employers that if they choose to take actions outside of the dispute resolution process provided by the applicable collective agreement — such as involving police or other authorities — they may find it difficult to subsequently argue that a plaintiff is restricted to the remedies provided by that collective agreement.
Stuart Rudner is a leading HR Lawyer and a partner in the Labour & Employment Law Group of Miller Thomson LLP, a national law firm. He provides clients with strategic advice regarding all aspects of the employment relationship, and represents them before courts, mediators and tribunals. He is author of You’re Fired: Just Cause for Dismissal in Canada, published by Carswell. He can be reached at 416.595.8672 or firstname.lastname@example.org. You can also follow him on Twitter @CanadianHRLaw and join his Canadian HR Law Group on LinkedIn.