) ) JOAN McKEOWN Plaintiff – v. –, 2014 ONSC 4159

CITATION : McKeown v. Toronto Star Newspapers Limited, 2014 ONSC 4159 COURT FILE NO.: CV-12-5041-00 DATE: 2014 07 10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) JOAN McKEOWN Plaintiff – and – TORONTO STAR NEWSPAPERS LIMITED Defendant ) ) )) ) )) ) ) ) )))) H. Scher, for the Plaintiff T. Weisberg, for the Defendant ) ) ) ) HEARD: April 10, 2014 REASONS FOR DECISION daley j.

Introduction [ 1 ] This action as originally instituted was framed as a claim by the plaintiff for damages for wrongful dismissal as against her employer the defendant the Toronto Star Newspapers Limited. [ 2 ] Following service of the statement of claim the defendant brought a motion to dismiss the plaintiff’s action on the basis that the plaintiff was at all material times a member of and represented by the Communications, Energy and Paperworkers Union of Canada, Local 87 – M, Southern Ontario Newsmedia Guild (the “Union”) and the claims asserted by her in the action were within the exclusive jurisdiction of a labour arbitrator and outside the jurisdiction of this court in accordance with s. 48 of the Labour Relations Act , 1995, S.

O. 1995, c. 1, Sched. A (the “ Act”). [ 3 ] The defendant also asserted in its motion that the plaintiff’s action should be dismissed on the basis that the statement of claim was served more than six months after its issuance. The statement of claim was served four days beyond the time provided for service. [ 4 ] Following service of the defendant’s motion to dismiss the plaintiff’s action, counsel for the plaintiff brought a motion seeking leave to allow the plaintiff to file a fresh as amended statement of claim.

Prior to the bringing of that motion, counsel for the plaintiff advised the defendant that the plaintiff consented to the removal of all infringing paragraphs in the original statement of claim except for a claim to entitlement of certain health benefits under what is referred to as the Legacy Program, under which retirees of the defendant may be entitled to claim benefits. [ 5 ] Notably, the original statement of claim did not expressly assert any claim for benefits pursuant to the Legacy Program nor was it asserted that the plaintiff had entitlement to any such benefits as a retiree. [ 6 ] The proposed fresh as amended statement of claim calls for the action, if the amendment is allowed, to continue under Simplified Procedure as provided for in rule 76 of the Rules of Civil Procedure (the “ Rules ”).

No submissions were made by counsel regarding this. [ 7 ] Both the defendant’s motion to dismiss the plaintiff’s action pursuant to rule 21 of the Rules and the plaintiff’s motion for leave to file the fresh as amended statement acclaim were heard together. Factual Background [ 8 ] Many of the underlying facts on these motions are not in dispute.

[ 9 ] The plaintiff was an employee of the defendant from 1978 until December 11, 2010 and worked in the editorial department and was a member of and represented by the Union. [ 10 ] The Union is the exclusive collective-bargaining agent representing certain employees of the defendant, including the plaintiff.

Members of the bargaining unit to which the plaintiff belonged are subject to the terms and conditions of the collective agreement entered into between the Union and the defendant ,which was in place during the period January 1, 2008 to December 31, 2010. [ 11 ] In the original statement of claim the plaintiff asserts that she was wrongfully dismissed from her employment by the defendant on December 11, 2010.

It is the position of the defendant, as set out in its statement of defence, that the plaintiff voluntarily resigned from her employment on that date. [ 12 ] Prior to that time, in the fall of 2009, the defendant considered outsourcing certain work done within the bargaining unit, including its editorial department to a third-party.

At that time the plaintiff’s position as a part-time editor was one of the positions that the defendant was considering outsourcing. [ 13 ] In November 2009 the defendant, entered into a Memorandum of Agreement with the Union, dated November 3, 2009 providing for a Voluntary Separation Package (“VSP”) that would be available to employees. The VSP provided certain pension enhancements to those employees who would leave the employee of the defendant under the terms of the package.

The plaintiff applied for the VSP. [ 14 ] Although initially the plaintiff’s position was one that was to be outsourced, it was ultimately agreed between the defendant and the Union that the plaintiff’s position was one of the positions that would not be outsourced and this was reflected in a Memorandum of Agreement entered into between the Union and the defendant on January 18, 2010. [ 15 ] The plaintiff had applied for the VSP and related enhancements and benefits, in spite of the fact that her position was not going to be outsourced.

Upon being denied her claim for the benefits in this package by the defendant, she filed a grievance on February 22, 2011 in accordance with the collective agreement, stating that she had been wrongly denied the entitlements under the VSP.

The plaintiff also filed an application with the Ontario Labour Relations Board on October 27, 2011 under s. 74 of the Act (Union’s Duty of Fair Representation). [ 16 ] On August 31, 2012, the Ontario Labour Relations Board released its decision with respect to the plaintiff’s application regarding the Union’s alleged failure to provide fair representation to her and the board concluded that the plaintiff had not established that the Union had contravened the provisions of s. 74 of the Act. [ 17 ] On April 11, 2013, the plaintiff filed a second application with the Ontario Labour Relations Board under s. 74 of the Act as against the Union. [ 18 ] As of the date of the hearing of these motions, the plaintiff’s grievance with respect to the alleged denial of her claim in respect of the VSP and pension enhancements and medical benefits was still pending and outstanding. [ 19 ] It is acknowledged by the defendant that the plaintiff applied for and was approved for participation in the VSP , however as the plaintiff’s position was not outsourced, as was initially planned, it was the defendant’s position that the plaintiff was not entitled to any pension supplements or benefits as provided for in the VSP.

This was established by the Memorandum of Agreement executed by the defendant and the Union on January 18, 2010. [ 20 ] The VSP provided for health and dental benefits to continue until the end of an employee’s salary continuation period or 85 weeks, whichever was earlier. The VSP offered retiree benefits in accordance with the terms of the Legacy Program only for approved employees who were eligible to retire and who retired.

Although not expressly stated in the evidentiary record, counsel advised that the benefits payable under the Legacy Program were to be administered by Sun Life and funded by the defendant under the terms of an Administrative Services Only contract between the defendant and Sun Life. [ 21 ] In its statement of defence filed, the defendant acknowledges that the VSP was not provided for under the terms of the collective agreement between the Union and the defendant.

The Legacy Program benefits were incorporated in the terms and conditions of the VSP, which was established by the Memorandum of Agreement dated November 3, 2009 between the defendant and the Union (Exhibit “A” of the supplementary affidavit of Alan Bower sworn April 3, 2014).

Positions of the Parties [ 22 ] It is the position of the plaintiff that her claims as proposed in the fresh as amended statement of claim are fully within the jurisdiction of this court as the Legacy Program is a benefit program outside the terms of the collective agreement and her claims relate to post termination entitlement to lost retiree health benefits which are not expressly or impliedly incorporated in the collective agreement.

It is further submitted that the court’s jurisdiction arises from the fact that the plaintiff is no longer an employee who is a member of a bargaining unit governed by the collective agreement as between the Union and the defendant. [ 23 ] It must be remembered that the plaintiff’s status has not yet been determined. It is asserted on behalf of plaintiff that she was wrongfully dismissed from her employment with the defendant and on the other hand the employer asserts that she resigned.

It is stated by the plaintiff in her affidavit sworn on March 1, 2014, that she is entitled to “pension benefits” payable by the defendant pursuant to a determination made by the Financial Services Commission of Ontario (“FSCO”). The plaintiff has offered no evidence with respect to the reasons for decision of FSCO nor any evidence as to the context in which this determination was made.

Further, no evidence was offered as to what constitutes “pension benefits” within the determination by FSCO. [ 24 ] Further, there is no evidence to suggest that the determination by FSCO is binding on a labour arbitrator, who may consider the plaintiff’s claim for benefits under the VSP or the Legacy Program.

[25] It is the position of the defendant that claims asserted by the plaintiff both in the original statement of claim and in theproposed fresh as amended statement of claim all fall outside the jurisdiction of this court as her claims arise solely out of theinterpretation, application, administration or alleged violations of the collective agreement. Analysis [26] Rule 21.01 (3) (

a) of the Rules provides that a defendant may move before judge to have an action dismissed on the groundthe court has no jurisdiction over the subject matter of the action. In determining whether the court has jurisdiction to hear a dispute, theintention of the legislation governing the parties must be considered: Regina Police Assn. Inc. v. Regina (City) Board of PoliceCommissioners, 2000 SCC 14 , [2000] 1 S.C.R. 360, para. 23 [27] S. 3 (3) of the Rights of Labour Act, R.S.O. 1990, c.

R. 33, provides that a collective bargaining agreement shall not be thesubject of any action in any court unless it may be the subject of such action irrespective of this legislation or of the Labour RelationsAct. [28] S. 48 (1) of the Act requires that every collective agreement shall provide for the final and binding settlement by arbitration ofall differences between the parties arising from the

interpretation, application, administration or alleged violation of the agreement,including any question as to whether a matter is arbitrable. [29] In the decision Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929, the plaintiff Weber had been in receiptof sick benefits pursuant to a collective agreement, however a dispute arose as to his ongoing entitlement to those benefits and his unionfiled a grievance with respect to the suspension of his benefits.

The grievance was resolved, however Weber also instituted a civil actionin tort against Ontario Hydro. [30] In this decision, McLachlan J. stated as follows at paras. 51 to 53: On this approach, the task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether thedispute or difference between the parties arises out of the collective agreement. Two elements must be considered: the dispute and theambit of the collective agreement.

In considering the dispute, the decision-maker must attempt to define its "essential character", to use the phrase of La Forest J.A. inEnergy & Chemical Workers Union, Local 691 v. Irving Oil Ltd. (1983), (NB CA), 148 D.L.R. (3d) 398 (N.B.C.A.).The fact that the parties are employer and employee may not be determinative.

Similarly, the place of the conduct giving rise to thedispute may not be conclusive; matters arising from the collective agreement may occur off the workplace and conversely, noteverything that happens on the workplace may arise from the collective agreement: Energy & Chemical Workers Union, supra, per LaForest J.A. Sometimes the time when the claim originated may be important, as in Wainwright v. Vancouver Shipyards Co. (1987), (BC CA), 38 D.L.R. (4th) 760 (B.C.C.A.), where it was held that the court had jurisdiction over contracts pre-dating thecollective agreement. See also Johnston v.

Dresser Industries Canada Ltd. (1990), (ON CA), 75 O.R. (2d) 609 (C.A.).In the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it did not. Some cases,however, may be less than obvious. The question in each case is whether the dispute, in its essential character, arises from theinterpretation, application, administration or violation of the collective agreement.

Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize theclasses of case that will fall within the exclusive jurisdiction of the arbitrator. However, a review of decisions over the past few yearsreveals the following claims among those over which the courts have been found to lack jurisdiction: wrongful dismissal; bad faith onthe part of the union; conspiracy and constructive dismissal; and damage to reputation (Bartello v. Canada Post Corp. (1987), (ON SC), 46 D.L.R. (4th) 129 (Ont. H.C.); Bourne v.

Otis Elevator Co. (1984), 45 O.R. (2d) 321 (H.C.); Butt v. UnitedSteelworkers of America (1993), (NL SC), 106 Nfld. & P.E.I.R. 181 (Nfld. T.D.); Forster v. Canadian AirlinesInternational Ltd. (1993), (BC SC), 3 C.C.E.L. (2d) 272 (B.C.S.C.); Bell Canada v. Foisy (1989), (QC CA), 26 C.C.E.L. 234 (Que. C.A.); Ne-Nsoko Ndungidi v. Centre Hospitalier Douglas, (QC CS), [1993] R.J.Q.536). [31] McLachlan J. also continued and stated at paragraph 58 as follows: To summarize, the exclusive jurisdiction model gives full credit to the language of s. 45(1) of the Labour Relations Act.

It accords withthis Court's approach in St. Anne Nackawic. It satisfies the concern that the dispute resolution process which the various labour statutesof this country have established should not be duplicated and undermined by concurrent actions. It conforms to a pattern of growingjudicial deference for the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel oroverlapping litigation in the courts: see Ontario (Attorney-General) v. Bowie (1993), (ON SC), 110 D.L.R. (4th) 444(Ont. Div.

Ct.), per O'Brien J. [32] Labour relations legislation provides a code governing all of the aspects of labour relations as it would offend the legislativescheme to permit the parties to a collective agreement or the employees on whose behalf it was negotiated, to have recourse to theordinary courts which are in the circumstances a duplicative forum to which the legislation has not assigned these tasks: St. AnneNackawic Pope & Paper Co. Ltd. v.

Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 S.C.R. 704 at para.16. [33] I disagree with the position put forward on behalf of plaintiff that as the Legacy Program is not expressly and impliedlyreferred to in the collective agreement, it is open to the plaintiff to pursue a civil action in the circumstances. The law in this regard isclear as it was reviewed by Doherty J.A. in Myrtezaj v. Cintas Canada Ltd. 2008 ONCA 277 , [2008] O.J.

No. 1384 at para. 38where he stated: “The analysis favoured in Weber is not restricted to circumstances where the dispute arises out of matters that are thesubject of a collective agreement requiring mandatory mediation.” [34] The Court of Appeal further examined the court’s jurisdiction in applying the Weber considerations in DiCienzo v.

McQuinllan [2008] O.J. No. 2341 at para. 6 where the court stated: “The case law is clear: all “differences” covered by the collective agreement must be dealt with exclusively by arbitration, regardless ofhow the legal issues are or can be framed. In determining if the matter is in the exclusive jurisdiction of the labor arbitrator, the judgemust define “essential character” of the dispute. This is done by considering the facts and context of the dispute, rather than its legalcharacterization.

That is, the legislation encompasses any and all “differences” between the parties, regardless of the legalcharacterization of the claim or the name of the cause of action.

Parties cannot avoid arbitration simply by pleading a common law tort:see Weber, especially at paras. 43 and 45.” [35] On examining the present facts and evidence and applying the Weber analysis, in order to define the essential character of thedispute between these parties, I have concluded that the plaintiff’s claims in both the original statement claim and in the proposed freshas amended statement claim are clearly employment related. [36] It is most notable that the plaintiff has acknowledged that her claims in respect of the VSP and the pension enhancement andmedical and benefits related to that program are entirely connected with her employment with the defendant.

Upon the denial of herclaim with respect to this package and related benefits, the plaintiff filed a grievance on February 22, 2011 pursuant to the collectiveagreement and remained outstanding as of the return date of these motions.

It is thus open to the plaintiff to pursue her remedies relatedto this grievance without recourse to pursuing this action. [37] The plaintiff’s action in filing the grievance is entirely consistent with the commercial reality of her relationship with thedefendant within the terms of both the collective agreement and the labour relations legislation. [38] Further, I find that the plaintiff’s claims in the proposed fresh as amended statement claim flow directly from her employmentwith the defendant, although the VSP and Legacy Program are not expressly referred to in the collective agreement. [39] The essence and the true nature of the dispute between the parties relates to the plaintiff’s claim to entitlement to LegacyProgram health benefits, which are provided for within the VSP terms and conditions for retirees or employees who are eligible to retirefrom their employment with the defendant. [40] The determination of the plaintiff’s entitlement to claim benefits under the Legacy Program will necessarily require adetermination as to whether the plaintiff is or was an eligible retiree, or whether she was wrongfully dismissed or resigned from herposition with the defendant. [41] All of her claims in both versions of the statement of claim are fully within the orbit of her relationship with the defendantwithin a collective bargaining context as between employee and employer. [42] The pith and substance of the plaintiff’s claim in the original statement of claim is in the nature of a wrongful dismissal actionand as such the plaintiff has now rightly acknowledged that the court has no jurisdiction to consider the claims asserted in that pleading. [43] It is asserted on behalf of the plaintiff that her claims with respect to the Legacy Program entitlement, which although notexpressly made in the original statement of claim, have survived the attack by the defendant on the original pleading.

I disagree with thissubmission. The original statement claim does not include any claim by the plaintiff in her status as a retired pensioner and there is noclaim advanced with respect to the Legacy Program. [44] The proposed fresh as amended statement of claim contains an entirely new factual basis, not previously pleaded, in supportof plaintiff’s entitlement to Legacy Benefits as a retired pensioner. [45] In the result, I have concluded that the plaintiff’s motion seeking leave to file the fresh as amended statement of claim, in theform proposed, must be dismissed.

The proposed claims are legally untenable in this action as this court has no jurisdiction to entertainthese claims: Chinook Group Ltd. v.

Foamex International Inc. (2004) (ON SC), 72 O.R. (3d) 381. [46] In the circumstances, having determined that the court has no jurisdiction, I have concluded that it is unnecessary to determinewhether the claims asserted in the proposed fresh as amended statement of claim are statute barred by the passage of time. [47] Having dismissed the plaintiff’s motion for leave to file the fresh as amended statement claim, and given my conclusion thatthe claims as asserted in the original statement of claim are outside the jurisdiction of this court and must proceed in accordance with theterms of the collective agreement and the labour relations legislation, the defendant’s motion is granted and the plaintiff’s action isdismissed. [48] Counsel for the defendant shall serve and file costs submissions of no longer than three pages plus a bill of costs within 15days from the release of these reasons.

Counsel for the plaintiff shall file submissions of a similar length within 15 days thereafter. Daley J. Released: July 10, 2014

CITATION : McKeown v. Toronto Star Newspapers Limited, 2014 ONSC 4159 COURT FILE NO.: CV-12-5041-00 DATE: 2014 07 10 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: JOAN McKEOWN Plaintiff – and – TORONTO STAR NEWSPAPERS LIMITED Defendant REASONS FOR decision Daley J. Released: July 10, 2014