Court affirms not every dispute in a unionized workplace must go to labour arbitration, says lawyer
A dispute between the Ottawa police union president and the city’s former police chief can proceed in Superior Court, as the Court of Appeal rejected the latter’s claim that the matter ought to be dealt with under the police service’s collective agreement.
Paul Champ, who acted for Ottawa Police Association president Matthew Skof, says the ruling “is another judgment that chips away at the monolithic Weber principle.”
“For too many years, many lower courts and tribunals have seen [Weber v. Ontario Hydro] as establishing an iron rule that every sort of dispute under the sun in a unionized workplace must necessarily go to labour arbitration,” he says. “But that myth of exclusive jurisdiction for labour arbitration does not always prevail, nor should it. Courts must fulfill their proper constitutional role to resolve more legal disputes.”
Many actions brought by police officers can slip through the jurisdictional cracks, says Champ. The Court in Skof v. Bordeleau, 2020 ONCA 729 found that those wishing to challenge an administrative decision can do so both by way of action and application for judicial review, he says.
“That’s an important clarification of the law, procedurally, for all kinds of different disputes,” says Champ.
The decision by Court of Appeal Justices Grant Huscroft, Ian Nordheimer and Alison Harvison Young was released Nov. 17.
The Court of Appeal ruled similarly in September, finding the Superior Court had jurisdiction in a dispute arising out of an injury during police training – also involving the Ottawa Police Service. In Rukavina v. Ottawa (Police Services Board), 2020 ONCA 533, a tactical commander deemed by the Special Investigations Unit to be responsible for the incident had sued certain police officers, the police chief and the Ottawa Police Services Board for malicious prosecution and misfeasance in public office. The respondents filed for dismissal, arguing want of jurisdiction because a collective agreement was in place. As in Skof, the Court found the dispute properly belonged to the Superior Court.
The dispute in Skof began after an OPP investigation into allegations he shared sensitive details on an ongoing police investigation. Skof was charged with breach of trust and obstructing justice. The investigation had been initiated at the direction of Ottawa Police Service Chief Charles Bordeleau, who then suspended Skof with pay.
Skof and the Police Association launched an action, under r. 21.01(3)(a) of the Rules of Civil Procedure, against Bordeleau and the Ottawa Police Services Board (OPSB). The action accused Bordeleau of misfeasance in public office and of breaching Skof’s Charter rights. Skof argued the suspension had arisen from a “long history of animosity” between himself and Bordeleau.
The respondents sought to have the action dismissed on the basis the dispute belonged to the police service’s collective agreement, not Superior Court.
Superior Court Justice Marc Labrosse agreed with Bordeleau and the OPSB and dismissed the action.
In its decision, the Court of Appeal states that, as a court of inherent jurisdiction, the Superior Court has jurisdiction “over every conceivable claim” unless it lacks a reasonable cause of action or jurisdiction has been removed by legislation or an arbitral agreement. As demonstrated in TeleZone Inc. v. Canada (Attorney General), 2008 ONCA 892, to find the Superior Court lacks jurisdiction, it must be “clear and unequivocal” that jurisdiction was ousted, said the decision.
When Skof became President of the OPA, the OPA and the Ottawa Police Services signed a Memorandum of Agreement which states that, aside from benefits, no provisions of the collective agreement would apply to Skof during his time with the OPA. Justice Labrosse had found the collective agreement and memorandum were in conflict. The Court of Appeal disagreed and said the memorandum “made it even clearer” that the collective agreement did not apply to Skof’s dispute.
Bordeleau and the OPSB argued, using the principles in Weber, that the “essential character” of Skof’s claim lay within the collective agreement. The Court pointed to former Justice Beverley McLachlin’s statement in Weber, a point reiterated in Piko v. Hudson's Bay Co.: Courts may legitimately take jurisdiction where disputes between employees and employers do not arise under the collective agreement or involve a remedy the arbitrator lacks the power to grant. As Skof’s claim originates from Bordeleau’s disciplinary action as Police Chief, it concerns the regulatory context and falls outside of the collective agreement or arbitrator’s jurisdiction, said the Court. As in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, the Court found the Legislature intended that disciplinary matters be governed by the Police Services Act.
Under the PSA, the collective agreement’s grievance procedure cannot challenge a suspension made under s. 89 of the legislation, and the “only remedy” for an officer hit with an unlawful suspension is the courts, said the decision.
The Court of Appeal also rejected Labrosse’s finding that, to address Skof’s issues outside of the collective agreement, he could only apply for judicial review at the Divisional Court. Labrosse had struck Skof’s action on that basis.