"3(3) A collective bargaining agreement shall not be the subject of any action in any court unless it may be the subject of such action irrespective of this Act or of the Labour Relations Act."
The scope of that restriction was made clear in the recent Superior Court decision in A.C. Concrete Forming Ltd. v. Residential Low Rise Forming Contractors Association of Metropolitan Toronto, 2008 CanLII 5106. The case arose in a curious fact pattern.
An employer member of an employers' organization accredited under the Ontario Labour Relations Act, 1995 as a bargaining agent bound to the collective agreement sued the organization for breach of contract, fiduciary duty and various economic torts. The alleged breach was based on a claim that monies collected as part of an industry fund and related to the collective bargaining process were misused.
The argument, which seems attractive at first, was that the misuse of monies was unrelated to the bargaining process -- just because monies were collected as part of the process does not mean their misuse is a matter for a labour tribunal. After considerable discussion the Court found otherwise. The Court said the forms of pleading did not make a difference and the real question is what, factually, was being claimed. Since the claim was related to bargaining the Courts were excluded. The Court writes:
"ARGUMENTS AND ANALYSIS
[13] There is no dispute that the relationship between the Plaintiff and Association is governed by the labour relations legislation. The dispute is over whether the pleadings in the Plaintiff's Statement of Claim are of such a nature that they fall outside the jurisdiction of the Board.
[14] The Plaintiff frames its Statement of Claim in terms of breach of contract and breach of fiduciary duty alleging that when it became a member of the Association it entered into a contractual relationship with the Association containing certain express and implied terms. Among those terms are the obligations the Association undertook with respect to the Industry Fund, being to provide an accounting of the Industry Fund; to act honestly and in good faith; and to discharge its duties and obligations faithfully. The Plaintiff alleges the Association knowingly acted in such a manner with respect to the Industry Fund so as to interfere with its economic interests.
[15] The Plaintiff argues the substance of its complaint against the Association arises from its contractual relationship with the Association and its breach of the terms of that contract in the manner in which it managed the Industry Fund. It does not arise under the Collective Agreement, which the Plaintiff accepts would fall under the Board's jurisdiction. The Plaintiff says it is therefore entitled at common law to bring allegations of breach of contract and bad faith in an action against the Association. For the following reasons, I do not accept the Plaintiff's position.
[16] The Association argues, and I agree, the substance of the Plaintiff's claim with respect to the Association's alleged mishandling of the Industry Fund falls clearly within the exclusive jurisdiction of the Board. The court in Myrtezaj held if the claim arises expressly or inferentially out of the labour relations scheme, the jurisdiction of the Board is engaged. Hoilett J., for the Ontario Superior Court states:The law seems clear that in determining whether or not the court has jurisdiction the true character of the issue or issues has to be determined and viewed in the context of the relevant legislative framework [Myrtezaj v. Cintas Canada Ltd., [2007] O.J. No. 569 (Ont. S.C.J.), at para.7; [see also Dagher et al. v. McDonnell-Ronald Limousine Service Limited 1999 CanLII 9305 (ON C.A.), (1999), 46 O.R. (3d) 97 (Ont.C.A.), at para. 18].
[17] The Association points out the courts have cautioned against plaintiffs attempting to characterize pleadings so as to make them appear to fall outside the scope of the Board's authority. Pomerance J., for the Ontario Superior Court, expressed that concern clearly:
However, jurisdiction does not depend on the semantics of the debate. The analysis must hinge on the "essential character" of the claim. Creative language cannot confer jurisdiction. Labels aside, the core question is whether, on objective analysis of the facts, the dispute arises either expressly or inferentially out of the terms of the collective agreement.
[Coleman v. Demers, [2007] O.J. No. 922 (Ont. S.C.J.), at para. 22].
[18] Courts have found, even where the words used in the Statement of Claim sound in contract and tort, if the essence of the pleadings actually constitute complaints concerning matters covered by the labour relations scheme, the Board has exclusive jurisdiction. Judicial deference has been extended to legislative structures established under labour relations an employers' organization accredited under the Ontario Labour Relations Act, 1995 as a bargaining agent for all employees bound to the collective agreement"
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