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Llano v. Royal Shirt Co. Between Myriam Llano, plaintiff, and Royal Shirt Company Ltd., Mary D'Abondanza and Luigi D'Abondanza, defendants Court File No. 96-CU-116229 Ontario Court of Justice (General Division) Motions Court Bellamy J. Heard: December 30, 1997. Judgment: December 31, 1997. Counsel: 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 grievance process. 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, provides: 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 is arbitrable. 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 collective agreement". 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 dismissed. 10 ????Costs payable to the defendants by the plaintiff in the amount of $2,000 + GST, payable forthwith. BELLAMY J. |
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