Federal Court Decisions

     T-929-96

     T-969-96

BETWEEN:

     LINTON ROBERTS

     Plaintiff

     - and -

     CANADA POST CORPORATION

     Defendant

     REASONS FOR ORDER

JEROME, A.C.J.:

     This is an application for an order striking out the plaintiff's Statement of Claim in each of the above-noted actions on the grounds that they do not lie within the jurisdiction of this Court or, in the alternative, that they disclose no reasonable cause of action against the defendant Canada Post Corporation.

     At the hearing of this matter, I granted the defendant's applications for the following reasons.

     The claims asserted by the plaintiff against the defendant are not based on any federal law, but rather in contract or tort and are accordingly, governed by provincial laws. Furthermore, this Court does not have jurisdiction to consider claims arising out of rights created or governed by a collective agreement. Here, the Canada Labour Code, R.S.C. 1985, c. L-2, rendered the collective agreement between the defendant, Canada Post Corporation and the Association of Postal Officials of Canada, binding upon them and all employees in the bargaining unit represented by the Association. The plaintiff was, at all relevant times, an employee in the bargaining unit and therefore bound by the Collective Agreement. Articles 9 and 10 of the Agreement provide for a grievance procedure and arbitration and as such, are the provisions for final settlement of all disputes or differences between the parties.

     As I explained to Mr. Roberts, cases of this nature are governed by the principles set out in the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, wherein McLachlin J. stated as follows:

I agree with the Court of Appeal that the tort action cannot stand. I would go further, however, and hold that the action for charter claims is also precluded by the Ontario Labour Relations Act and the terms 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 the classes of cases that will fall within the exclusive jurisdiction of the arbitrator. However, a review of decisions over the past few years reveals the following claims among those over which the courts have been found to lack jurisdiction: wrongful dismissal; bad faith on the part of the union; conspiracy and constructive dismissal; and damage to reputation. . .

This approach does not preclude all action in the courts between employer and employee. Only those disputes which expressly or inferentially arise out of the collective violation of the collective agreement.

. . . the appellant Weber argues that jurisdiction over torts and Charter claims should not be conferred on arbitrators because they lack expertise on the legal questions such claims raise. The answer to this concern is that arbitrators are subject to judicial review. Within the parameters of that review, their errors may be corrected by the courts. The procedural inconvenience of an occasional application for judicial review is outweighed by the advantages of having a single tribunal deciding all issues arising from the dispute in the first instance. This does not mean that the arbitrator will consider separate "cases" of tort, contract or Charter. Rather, in dealing with the dispute under the collective agreement and fashioning an appropriate remedy, the arbitrator will have regard to whether the breach of the collective agreement also constitutes a breach of a common law duty, or of the Charter.

The appellant Weber also argues that arbitrators may lack the legal power to consider the issues before them. This concern is answered by the power and duty of arbitrators to apply the law of the land to the disputes before them. To this end, arbitrators may refer to both the common law and statutes. (emphasis added)

     That reasoning is applicable to the case at bar. For these reasons, the defendant's application in both actions is granted.

OTTAWA, ONTARIO

October 31, 1997                      "James A. Jerome"

                             A.C.J.