2013 ONSC 501, 2013 ONSC 501

CITATION : Moro v. Thames Valley District School Board et al, 2013, ONSC 501 COURT FILE NO.: 4994-11 DATE: 2013/01/22 SUPERIOR COURT OF JUSTICE – ONTARIO RE: TAMARA MORO (Plaintiff) - and - THAMES VALLEY DISTRICT SCHOOL BOARD, BILL TUCKER, MIKE SEREDA, PAUL TUFTS, LINDA BROWN, ONTARIO SECONDARY SCHOOL TEACHER’S FEDERATION, JANE PINCOMBE, KEN CORAN, KARL DEAN, RON KELLER, VALORIE POOLEY and MARY MEANWELL (Defendants) BEFORE: Justice J. N. Morissette COUNSEL: Frank A. Angeletti, Casey M.

Dockendorff, for the Defendants, Bill Tucker, Mike Sereda, Paul Tufts, Linda Brown, Ron Keller, Valerie Pooley and Mary Meanwell (individual defendants) Lorraine J.

Por, for the Defendant, Thames Valley District School Board (TVDSB) Vaino Poysa, for the Defendants, Ontario Secondary School Teacher’s Federation (OSSTF), Jane Pincombe, Ken Coran and Karl Dean Tamara Moro, self-represented HEARD: January 21 st , 2013 ENDORSEMENT [ 1 ] Three motions by the various group of defendants are seeking an order dismissing the plaintiff’s action on the ground that the claims made by the plaintiff are barred by reason of the Labour Relations Act , 1995, S.O. 1995, c. 1, Sched.

A, as amended ( LRA ) [ 2 ] For the purpose of this motion, I will assume, without making findings of facts, that the claims alleged in the Statement of Claim are truthful. The 245 paragraphs in the statement of claim refer to essentially two components: “harassment and/or bullying in the workplace” and constructive dismissal. [ 3 ] The plaintiff is a former teacher with the Thames Valley District School Board (“Board”). The Board was and is bound by a collective agreement with the Ontario Secondary School Teachers’ Federation (“OSSTF”).

The plaintiff was at all material times, a member of the bargaining unit covered by the terms and conditions of the collective agreement between the Board and the OSSTF. The individual defendants, Tucker, Sereda, Tufts, Brown, Keller and Pooley are and were, employees of the Board. [ 4 ] The plaintiff left her work on or around April 27 th , 2007.

She resigned her employment with the Board on or about August 31s, 2009. [ 5 ] In May of 2007 the plaintiff submitted a complaint to the Board alleging various types of harassment over a period of six years. [ 6 ] The defendant, Meanwell, was acting as agent for the Board to investigate harassment complaints made by the plaintiff. The investigation was conducted between June of 2007 and November of 2007. A report was prepared in December of 2007 and released to the plaintiff in January of 2008.

The report did not make any findings of harassment by any individuals. [ 7 ] After the Meanwell report, the Board attempted to have the plaintiff return to work in 2008, but the plaintiff refused the various offers. [ 8 ] The plaintiff sought Long Term Disability benefits (LTD) but was denied same. [ 9 ] The plaintiff filed a complaint with the Human Rights Tribunal which complaint was dismissed. [ 10 ] The plaintiff issued her statement of claim on September 25 th , 2011.

Issue: [ 11 ] Does the Court have jurisdiction to deal with the Plaintiff’s claim given that the plaintiff was a member of the bargaining unit whose terms and conditions of employment were governed by a collective agreement? The Law and analysis: [ 12 ] The Collective Agreement established a comprehensive grievance and arbitration procedure to address complaints relating to the

interpretation, application, administration or alleged violation of the Collective Agreement. [1] [ 13 ] The Supreme Court of Canada has enunciated the following principle long ago: Disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts…To summarize, the exclusive jurisdiction model gives full credit to the language of s. 45(1) [now s. 48(1)] of the Labour Relations Act . It accords with this Court’s approach in St. Anne Nackawic.

It satisfies the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions.

It conforms to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlapping litigation in the courts. [2] [ 14 ] At para. 67 of the Weber case, the Supreme Court of Canada concluded by stating the following: I conclude that mandatory arbitration clauses such as s. 45(1) [now s. 48 (1)] of the Ontario Labour Relations Act generally confer exclusive jurisdiction on labour tribunals to deal with all disputes between the parties arising from the collective agreement.

The question in each case is whether the dispute, viewed with an eye to its essential character, arises from the collective agreement. This extends to Charter remedies, provided that the legislation empowers the arbitrator to hear the dispute and grant the remedies claimed.

The exclusive jurisdiction of the arbitrator is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal. [ 15 ] The plaintiff asks this Court to take inherent jurisdiction because she says that her case is unique and is not a dispute about the collective agreement. She says that it is in the public’s interest to allow this Court to hear the dispute in question which rises above the collective agreement. [ 16 ] In order for me to determine if this Court can take jurisdiction, I must attempt to define its “essential character”.

The question is whether the dispute arises from the

interpretation, application, administration or violation of the collective agreement. A review of the case law over the years reveals the following claims have been found to lack jurisdiction: wrongful dismissal; bad faith on the part of the union; conspiracy and constructive dismissal; and damage to one’s reputation. [ 17 ] The claims in the statement of claim at its core, involve disputes arising between the plaintiff and the defendants of whether she was harassed and/or constructively dismissed.

The claims are entirely within the context of the employment relationship the plaintiff had as a teacher and member of the Teacher’s Federation. [ 18 ] The collective agreement governing the plaintiff and the other employees or representatives of the defendants (TVDSB) and (OSSTF) sets out a detailed grievance and arbitration procedure to address complaints such as the ones claimed by the plaintiff.

I note that no grievance was ever lodged on behalf of the plaintiff and this is at the core of her issues with respect to her claim of unfair representation by the OSSTF. [ 19 ] Is the concern of the quality of representation offered by her “trade union” an issue for this Court? The OLRA imposes on trade unions a duty of fair representation that prohibits arbitrary, discriminatory or bad faith conduct of unions in the course of their representation of bargaining unit members. [ 20 ]

Section 74 of the OLRA states: 74. A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be. [3] [ 21 ] A breach of

section 74 is a question for the OLRB and not this court. [ 22 ] Although the plaintiff may see her case as unique, most plaintiffs have that very perception. Applying the principles set forth by the Supreme Court of Canada, I find that the court has no jurisdiction over the subject matter of the plaintiff’s claim and accordingly, I must grant the three motions and dismiss the action for lack of jurisdiction. [ 23 ] I invite the parties to agree on the issue of costs; should they be unable to agree, I shall review brief written submissions on cots within 30 days hereof. Justice J.N. Morissette

Justice J. N. Morissette Date: January 22, 2013