The Ontario Superior Court of Justice has dismissed a lawsuit filed by a union member who alleged that his union failed to represent him adequately after his layoff. Justice MacNeil ruled that the court lacks jurisdiction over the matter, which falls exclusively under the purview of the Ontario Labour Relations Board (OLRB) and the grievance arbitration process outlined in the collective agreement.
The case centres on P.K., a member of the Labourers’ International Union of North America Local 837 (LIUNA), who was employed by Empire Homes. P.K. worked at the Calderwood jobsite in Thorold until his layoff on Jan. 10, 2022.
Due to medical conditions, P.K. had restrictions that prevented him from working outdoors during winter months and from driving. The Employer offered to transfer him to the Avalon jobsite, where indoor work was available. However, P.K. was unable to accept the transfer because he could not drive to the new location and was unwilling to accept a suggested alternative of getting a ride from his brother, who worked at the Avalon site.
The Employer laid off P.K., citing a lack of suitable work at Calderwood that met his functional abilities. P.K. alleged that the union failed in its duty to represent him by not initiating a grievance regarding his layoff. He filed a Duty of Fair Representation Application with the OLRB under section 96 of the Labour Relations Act.
The union argued that it had fulfilled its obligations, stating that it had considered the merits of a grievance but decided not to pursue it because:
- There was no work at Calderwood within P.K.’s functional abilities.
- The only suitable work was at Avalon, which P.K. refused or was unable to accept due to his medical driving restriction.
- The collective agreement allowed the Employer to transfer employees to different jobsites within its geographical jurisdiction.
On Sept. 21, 2022, the OLRB dismissed P.K.’s application without a hearing, stating that he failed to establish a prima facie case. The Board concluded that the union had not acted in a manner that was arbitrary, discriminatory, or in bad faith. “While [P.K.] clearly does not agree with the Union’s ultimate conclusion, it arrived at this conclusion in a manner that fulfilled its obligations under section 74 of the Act,” the OLRB wrote.
P.K. did not seek judicial review of the OLRB’s decision. Instead, he initiated a civil action against the union on Nov. 22, 2023, alleging causes of action including discrimination on the basis of disability, wrongful dismissal, defamation, unfair representation, coercion, breach of contract, and conspiracy.
Union’s motion to dismiss
The union filed a motion to dismiss the action, arguing that the court lacks jurisdiction and that the issues raised are within the exclusive domain of the OLRB and labour arbitrators under the collective agreement. The union cited the Supreme Court of Canada’s decision in Weber v. Ontario Hydro, which establishes that disputes arising from a collective agreement must be resolved through the mechanisms provided within that agreement.
Justice MacNeil agreed with the union, stating that the “essential character of the dispute between the parties arises out of the interpretation, application, administration or violation of the collective agreement and the fairness of the Defendant’s representation of a union member.” The court found that it lacks jurisdiction to hear the case because the Labour Relations Act provides exclusive authority to labour arbitrators and the OLRB for such matters.
Addressing P.K.’s argument that his claims of discrimination and human rights violations fall outside the OLRB’s jurisdiction, Justice MacNeil noted that the OLRB has the discretion to consider human rights issues. “In considering that issue, the OLRB clearly has the discretion to consider human rights issues,” the judge wrote, citing section 48(12)(j) of the Labour Relations Act, which empowers arbitrators to interpret and apply human rights and other employment-related statutes.
The court also deemed the lawsuit an abuse of process, as it attempts to relitigate issues already decided by the OLRB. “To allow [P.K.] to advance the same claims now in this civil action and require the Defendant to defend itself again from those claims would not promote judicial economy, consistency or finality,” Justice MacNeil stated.
Request to amend statement of claim rejected
P.K. requested leave to amend his statement of claim, but the court denied this request. Justice MacNeil concluded that any amendments would be futile because the matters alleged arise from the collective agreement and the union’s statutory duties under the Labour Relations Act. “There are no amendments which [P.K.] could plead that would bring the allegations set out in the statement of claim within the jurisdiction of the court,” the judge wrote.
The court dismissed the action and urged the parties to agree on costs. If they cannot agree, a schedule for submitting costs was outlined, with deadlines extending to Dec. 30, 2024.
For more information, see Kolacz v. Labourers International Union of North America Local 837, 2024 ONSC 6391 (CanLII).
