) ) Mathew Cumming Plaintiff/Respondent – v. –, 2013 ONSC 1544

CITATION : Cumming v. Peterborough Police Association, 2013 ONSC 1544 PETERBOROUGH COURT FILE NO.: 292/09 DATE: 20130312 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Mathew Cumming Plaintiff/Respondent – and – Peterborough Police Association Defendant/Moving Party ) ) ) ) ) ) ) ) ) Richard J. Taylor, for the Plaintiff/Respondent Caroline V. (Nini) Jones, for the Defendant/Moving Party ) ) ) HEARD: March 11, 2013 gunsolus, j. reasons for judgment Nature Of The Motion [ 1 ] This is a motion under Rule 21.01(3)(

a) in which the defendant Police Association seeks an order dismissing the plaintiff’s claim, on the basis that this court has no jurisdiction over the subject matter of the action. [ 2 ] The plaintiff is a police officer.

In his Statement of Claim, he asserts, in essence, a breach of the Police Association’s Duty of Fair Representation. [ 3 ] In paragraph 3 of the plaintiff’s Statement of Claim, dated the 1 st of December 2009, the plaintiff alleges the defendant Association owed to him a duty of care, and duty of fair representation, in reference to matters pertaining to his employment, possible discipline, or actual discipline. [ 4 ] At paragraph 6, the plaintiff alleges that he was owed a duty of care by the Police Association to represent him in a proper and complete and fair manner.

He further alleges that the Association failed to fulfil and discharge that specific duty and obligations as owed to him and failed to comply or fulfill their duty of fair representation.

He feels that the Association was discriminatory, unfair, thus depriving him of his rights to fully answer charges under the Police Services Act (Ontario) in order to have these charges properly and fairly adjudicated. [ 5 ] The Association and the Peterborough-Lakefield Community Police Services Board (“Employer”) are parties to two Collective Agreements that cover the terms and conditions of employment for uniformed and for civilian members of the Association.

The relevant Collective Agreement recognizes the defendant Association as exclusive bargaining agent for its uniformed members, which includes the plaintiff. Issues [ 6 ] The sole issue raised on this motion is whether the court has jurisdiction to adjudicate the plaintiff’s claim.

It is the Association’s position that the allegations in the Statement of Claim relate to the Association’s duty of fair representation and therefore fall within the exclusive jurisdiction of a labour arbitrator for adjudication. [ 7 ] The plaintiff takes issue with the “exclusive” jurisdiction of an arbitrator to deal with the legal and factual issues that he has set out in his Statement of Claim.

In essence, he argues that sections 123 and 124 of the Police Services Act ultimately relate to an agreement or an award or an arbitrator’s decision and thus the circumstances of his case do not fall within the exclusive jurisdiction of an arbitrator. [ 8 ] In the alternative, the plaintiff takes the position that this court should stay the action until arbitration has determined whether or not this matter is properly the subject of arbitration; whether or not an arbitrator can award punitive and/or exemplary damages; and finally, whether or not the arbitration would be barred as being beyond statutory time limitations.

The Law [ 9 ] As stated, the sole issue raised on this motion is whether the court has jurisdiction to adjudicate the plaintiff’s claim? [ 10 ] In Canadian Merchant Service Guild v. Gagnon [1] , the Supreme Court of Canada determined that a union’s duty of fair representation exists, even in the absence of explicit statutory language, because it is inferred from the statutory grant of exclusive bargaining authority. [ 11 ] The question to be determined is whether the dispute in its “essential character” arises from the

interpretation, application, administration or violation of the Collective Agreement and or the legislation the Collective Agreement incorporates as part of the Collective Agreement. [2] [ 12 ] In order to determine the “essential character”, reference must be made to the wording set out in the pleadings, which in this case is the Statement of Claim. [3] [ 13 ] If the “essential character” of the dispute arises explicitly or implicitly, from the

interpretation, application, administration or violation of the Collective Agreement, the dispute is within the sole jurisdiction of an arbitrator to decide. [4] [ 14 ] This analysis must proceed on the basis of the facts surrounding the dispute between the parties and not necessarily on the basis of the way the legal issues may be framed or pled. [5] Whether an arbitrator can hear the dispute and grant the remedies as claimed by the plaintiff, the appropriate form is for the matter to proceed by way of arbitration. [6] [ 15 ] The principle of exclusive jurisdiction recognized in Weber [7] is well established law in Ontario and has been interpreted broadly in the Superior Court of Justice, the Divisional Court and the Ontario Court of Appeal.

As well, the Supreme Court of Canada has affirmed that this exclusive principle applies in respect of the duty of fair representation. [8] [ 16 ] It is clear from a reading of the plaintiff’s Statement of Claim, that the basis of his claim is the alleged breach of the Association’s duty to fairly represent him in relation to charges under the Police Services Act . [9] [ 17 ] The court does not have jurisdiction to deal with disputes that arise within the context of a Collective Agreement or question the Police Association’s duty of fair representation.

Rather, both of these issues are properly brought before a duly appointed arbitrator. [10] [ 18 ] The Police Services Act , and the Collective Agreement to which this matter relates, provides for a complete and comprehensive adjudicative process to be used by police officers in matters relating to their employment relationship. [11] What is the essential character of this dispute? [ 19 ] As set out above, in answering this question, I can only have regard to the wording set out in the Statement of Claim, as filed by the plaintiff in this matter. [ 20 ] A careful reading of the Statement of Claim results in a conclusion that the damages and relief sought by the plaintiff relate to his allegation that the defendant Police Association did not fully discharge their duty to provide him with fair representation.

Thus, the “essential character” of the dispute relates to whether or not the defendant Association provided the plaintiff with fair representation within the context of his employment.

In that regard, this court does not have jurisdiction to determine whether or not the Association fulfilled its duty of fair representation in favour of the plaintiff, which rather, is within the exclusive jurisdiction of an arbitrator. [12] Was the conduct or misconduct alleged against the defendant Association covered by the Collective Agreement? [ 21 ] Again, in determining whether a matter falls within the exclusive arbitration clause of a Collective Agreement, one must have regard to the facts surrounding the dispute between the parties and not in relation as to how the legal issues may be framed in the Statement of Claim. [ 22 ] The Collective Agreement in question is broadly drafted for the purposes of defining, determining and providing for, amongst other things, grievance procedures or complaints under the Agreement, including legal indemnification, disciplinary matters including misconduct and misbehaviour and so on.

The provisions are very broad and would appear to regulate the conduct or misconduct at the heart of the dispute set out in the plaintiff’s Statement of Claim. [ 23 ] I am therefore satisfied that the provisions of the Collective Agreement and the plaintiff’s claim for damages and other relief in relation to alleged breach of the Association’s duty to provide fair representation are provided for within the Collective Agreement and are to be determined by an arbitrator.

Summary [ 24 ] Mathew Cumming’s claims are based on allegations that the defendant Association breached its duty to provide him with fair representation in relation to charges he faced under the Police Services Act .

[ 25 ] The allegations as set out in his Statement of Claim all related to his employment. The essential character of the dispute ultimately concerns an

interpretation, application, administration or alleged violation of the provisions of the Collective Agreement, and in particular the duty which Mr. Cumming claims was owed to him, to represent him in a proper and complete and fair manner. This would include his concerns as to whether or not the duly appointed arbitrator will assume jurisdiction in relation to punitive and/or exemplary damages and in the face of any possible issues concerning statutory time limitations. [ 26 ] Counsel for the plaintiff acknowledged that the plaintiff is a “party” to the Collective Agreement in question.

Given that, the legislation and the Collective Agreement provide for a complete and comprehensive scheme for the plaintiff to pursue issues involving his employment, and in particular, his claim against the defendant Police Association. [ 27 ] I therefore am led to the conclusion that this court lacks the jurisdiction to hear the plaintiff’s case. [ 28 ] The motion sought by the defendant, Peterborough Police Association, is granted and the plaintiff’s action, in its entirety, is dismissed. [ 29 ] Should the parties be unable to agree as to the costs of this matter, they may provide written submissions to me, being no more than 3 written pages, together with relevant dockets and written Offers to Settle, if any.

The defendant shall provide its written request for costs within 10 days of the date of this order. The plaintiff will then have 10 days thereafter to provide his written submissions. The moving party will then have 5 days to reply to the plaintiff’s submissions. “Mr. Justice D.S. Gunsolus” Released: March 13, 2013 Cumming v. Peterborough Police Association, 2013 ONSC ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: Mathew Cumming Plaintiff/Respondent – and – Peterborough Police Association Defendant/Moving Party REASONS FOR JUDGMENT Justice D.S. Gunsolus Released: March 12, 2013