Mean Nortel workers not a matter for the courts

McConnell v. Altenburg (2001), 109 A.C.W.S. (3d) 913 (Ont. S.C.J.)

The plaintiff, a refrigeration mechanic at Nortel since July 1991, brought actions against Nortel and her union. Against Nortel the plaintiff sought damages for mental pain and distress, suffering, assault and harassment. Against the union she claimed damages for a breach of contract, breach of fiduciary duty and breach of the duty of fair representation.

The plaintiff alleged a number of Nortel employees engaged in a continuing pattern of abusive and harassing behaviour towards her and that neither her employer or her union took steps to protect her from such treatment or remedy the situation.

The defendants brought a motion to have the plaintiff’s action dismissed on the basis that the matters were not within the jurisdiction of the court. In particular, the defendants argued that the matters complained of by the plaintiff were subject to the terms of the collective agreement and any dispute arising under the collective agreement had to be resolved by arbitration before the Labour Relations Board.

The court therefore had to determine whether the dispute, in its essential character, arose from the interpretation, application, administration or violation of the relevant collective agreement which governed the relationship among the parties.

The Labour Relations Act of Ontario provides that once a matter comes within the ambit of a collective agreement, whether expressly or by implication, it must be resolved by arbitration and not through the courts. However, there have been cases where causes of action have been found to fall outside the provisions of the applicable collective agreement and the courts have assumed jurisdiction. In this case, the collective agreement in question contained broad substantive and procedural provisions relating to the protection of employees, and therefore the plaintiff’s claims were found to come within its terms.

Accordingly the plaintiff’s claim against Nortel was dismissed for lack of jurisdiction. Similarly, the court held that it had no jurisdiction over an action against the union based on a duty of fair representation as this issue was properly before the Labour Relations Board.

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