Llano v. Royal Shirt Co.
Myriam Llano, plaintiff, and
Royal Shirt Company Ltd., Mary D'Abondanza and Luigi
Court File No. 96-CU-116229
Ontario Court of Justice (General Division)
Heard: December 30, 1997.
Judgment: December 31, 1997.
S. Shields, for the plaintiff.
H. Levitt, for the defendants.
1 ????BELLAMY J.:-- The plaintiff was an employee of the defendant, Royal Shirt
Company Ltd. from 1987 until 1995. In November 1993, the workplace was unionized
by order of the Ontario Labour Relations Board and then decertified in January,
1996. During the time that the employer was unionized, the plaintiff was a
member of the Union and was represented by it.
2 ????The personal defendants were employees of the Royal Shirt Company Ltd. The
plaintiff alleges that they constructively, wrongfully, and without notice,
terminated her employment through demotion, persecution, reduction of hours
worked, and false allegations of misconduct. She seeks damages for constructive
dismissal and for intentional infliction of mental distress.
3 ????For purposes of this motion, I assume that all the allegations made by the
plaintiff in her Statement of Claim are true. The plaintiff asserts that timing
in a constructive dismissal action is a somewhat fluid concept, and here, could
have occurred sometime after decertification. I have no difficulty in finding
that the actions referred to in the Statement of Claim occurred precisely during
the time when the plaintiff was represented by the Union.
4 ????This is really a dispute between the parties which arose during the
existence of the collective agreement and which is, therefore, covered by the
provisions of the collective agreement. At all times material to the plaintiff's
action, she was employed by the defendant, Royal Shirt Company Limited, and was
represented by the Amalgamated Clothing and Textile Workers' Union. As such, she
was subject to the terms of its collective agreement. While she may have been
reluctant under the circumstances to avail herself of the protection of the
arbitration provisions covering that agreement, she did have rights under that
agreement. Her recourse was to use the arbitration provisions.
5 ????The clear trend over the last number of years, which has received
favourable comment from the Supreme Court of Canada in St. Anne-Nackawic Pulp &
Paper v. CPWU (1986), 28 D.L.R. (4th) 1, and in Weber v. Ontario Hydro (1995),
125 D.L.R. (4th) 583 is as follows:
1.? labour relations legislation provides an all-encompassing
code governing all aspects of labour relations;
2.? parties should use that code to resolve their disputes and
should not resort to the courts; and
3.? if the parties do commence an action in the court, the
courts increasingly will defer to the arbitration and
6 ????This is a case in which a labour relations code did exist. Specifically,
section 48(1) of the Ontario Labour Relations Act, 1995 R.S.O., as amended,
Every collective agreement shall provide for the final and
binding settlement by arbitration, without stoppage of work, of
all differences between the parties arising from the
interpretation, application, administration or alleged violation
of the agreement, including any question as to whether the matter
The plaintiff cannot, simply by disguising her claim as one of constructive
dismissal or mental distress get around the reality that the essential character
of the facts on which she relies to support her claim occurred as an incidence
of her employment, and occurred precisely during the time that she was governed
by a collective agreement and had recourse to the procedures there.
8 ????Indeed, the Supreme Court of Canada in Weber has provided clear direction
to the courts to analyse the facts which give rise to the wrong and not simply
to the manner in which a creative legal argument can be crafted. McLachlin, J.
stated at p. 599:
The issue is not whether the action, defined legally, is
independent of the collective agreement, but rather whether the
dispute is one arising under [the] collective agreement'. Where
the dispute, regardless of how it may be characterized legally,
arises under the collective agreement, then the jurisdiction to
resolve it lies exclusively with the labour tribunal, and the
courts cannot try it. (my underlining)
and further at p. 600 "what matters is not the legal characterization of the
claim, but whether the facts of the dispute fall within the ambit of the
9 ????I am satisfied that the court has no jurisdiction over the subject matter
of this action. The plaintiff cannot maintain her action. The defendants' motion
to dismiss the plaintiff's action is allowed and the plaintiff's action is
10 ????Costs payable to the defendants by the plaintiff in the amount of $2,000
+ GST, payable forthwith.