The Court of Appeal in Walters v. TTC (February 11, 2010, Ont. C.A.) recently confirmed that, in deciding whether to allow a unionized employee to sue his or her employer in Court, rather than file a grievance under a collective agreement, the task of the Court "is to determine whether, viewed as a whole, the essential character of the dispute raised by the employee’s statement of claim arises from the interpretation, application, administration or violation of the collective agreement." This test comes from a long line of cases since Weber.
The test has been expansively interpreted by subsequent decisions, with the effect that very few lawsuits brought by a unionized employee against their employer will withstand a motion to strike by the employer. That said there are some that will or can. In most cases, though, the employee's recourse against the employer is under the collective agreement.
In the face of Weber, and for a host of reasons, employees, former employees and their lawyers, will sometimes try to to find creative ways of pleading their case to avoid having to pursue a remedy under the collective agreement before an arbitrator.
The claim in Walters was, in part, framed as "malicious prosecution" and, the plaintiff argued, this "displaced" the usual jurisdictional test. The Court disagreed:
"In this case, the employer is alleged to have instigated a traffic charge against the employee arising out of the performance of his duties, but the statement of claim is about much more than an alleged malicious prosecution. It attacks a wide array of employer conduct in managing the workplace that could have been the subject of grievance. Viewed as a whole, there can be no doubt that the essential character of this dispute prevents it being advanced in the courts through this statement of claim."
The motion court judgment is here. Of significance and importance, is that it's not a simple matter of pleading that transforms the case so as to allow the Court to assume jurisdiction. According to the motions judge:
".... it is clear as a matter of law that an employee may not avoid the exclusive jurisdiction of the dispute resolution process, established pursuant to the statutory scheme and the collective agreement, by repackaging or labeling an act complained of as a tort not specifically addressed in the collective agreement. .... In short, the application of the label “malicious prosecution” cannot transform the present case from one subject to the exclusive jurisdiction of the arbitration process where, as here, it is clear that the dispute, viewed as a whole, “arises from the interpretation, application, administration or violation” of this collective agreement."
Again, this is one more case in a long line of cases on this issue.