The Court of Appeal had occasion to again discuss the Supreme Court of Canada decision of Weber v. Ontario Hydro and, specifically, whether a court had jurisdiction to hear and decide upon a claim by a unionized employee against (a) his employer and (b) his union. The case is General Motors of Canada Limited, Basil Hargrove et al (February 15, 2005, Ont. C.A.).
In this case, the employee commenced a class action against GM and executives of his union (the CAW), including Buzz Hargrove, alleging that GM and the CAW misrepresented the terms of an early retirement agreement, causing him and other employees to retire early and suffer monetary loss.
The issue was whether the court had jurisdiction to hear the claim. A motions judge said "no", the employee appealed to the Court of Appeal who, ultimately, upheld the motions judges decision and concluded that a court did not have jurisdiction over the complaint.
The early retirement arrangement was contained in ancillary documents and the employee argued, these did not form part of the collective agreement and, therefore, an arbitrator had no jurisdiction to interpret them (under the collective agreement and the Labour Relations Act, 1995). The Court stated the test as follows:
Ancillary documents, such as company statements, memoranda of understanding, supplementary agreements, and miscellaneous agreements are considered part of a collective agreement if they were so intended by the parties and incorporated in some way into the collective agreement. See D.J.M. Brown and D.M. Beatty, Canadian Labour Arbitration, 3d ed. looseleaf (Aurora: Canada Law Book Inc., 2003) at 4:1210.
The Court concluded that the document in question was part of the collective agreement and that the arbitrator, not the court, had the exclusive jurisdiction over the matter.
Further, the fact that a "separate" dispute resolution procedure was negotiated between GM and the CAW with respect to the early retirement program, and that the employee would not have access to usual arbitration, did not change the court's views. Specifically, they held that "parties to a collective agreement may negotiate different dispute resolution procedures for different kinds of disputes." It would be wrong to assume that the collective agreement may only contain one arbitration procedure (i.e. the "standard process"). The Court notes that:
Here, these two sophisticated parties have negotiated a simplified and expeditious procedure to resolve disputes over pension and retirement benefits. I have no reason to think that this procedure runs afoul of s. 48(1). Natural justice does not always require an oral hearing. For these disputes over benefits, GM and CAW have agreed that a written hearing will satisfy the requirements of procedural fairness. See D.J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at pp. 244-250. In my opinion, the decision of the seven-person board amounts to a “final and binding settlement by arbitration”, as the Act requires.
The claim against GM was dismissed as the Court had no jurisdiction to deal with it.
With respect to the claim against the CAW, the court held that "Vernon’s [the appellant] dispute with his union centres on whether the CAW fairly represented him on a matter arising from the collective agreement and is rooted in his employment relationship with GM." and that the Ontario Labour Board has the exclusive jurisdiction to decide "duty of fair representation" complaints. According to the Court:
A union’s duty of fair representation arises from its exclusive power to act as a spokesperson for all employees in a bargaining unit. See Société d’énergie de la Baie James v. Noël, [2001] 2 S.C.R. 207. This duty extends beyond the negotiation of a collective agreement and arbitration under the agreement. It encompasses all aspects of the employer-employee relationship. See Great Lakes Forest Limited (1979), O.L.R.B. Rep. 651 at 661; Jeffrey Sack, C. Michael Mitchell & Sandy Price, Ontario Labour Relations Board Law and Practice, 3d ed. looseleaf (Toronto: Butterworths Canada Ltd., 1997) at 8:348. Vernon’s allegation that the CAW misrepresented the terms of his retirement allowance falls squarely within the union’s duty. Thus, the Board had exclusive jurisdiction to hear Vernon’s complaint against his union. And, had the Board found merit in the complaint, it would have had remedial power to grant Vernon the monetary relief he sought. See Leonard Murphy (1977), O.L.R.B. Rep. 146.
The Court dismissed this aspect of the employee's appeal.
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