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Dec 18, 2020
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The Ontario Court of Appeal recently revisited the issue of judicial deference to labour arbitration and other specialized bodies over disputes related to the workplace.

In Skof v. Bordeleau, the Court of Appeal reinstated an Action by a Plaintiff that the lower court had struck out.  The Court held that the dispute between the parties, namely a police officer (who had been on a leave of duties) and his employer and former Chief of Police, arose out of disciplinary action (a suspension with pay) in a regulatory context, as opposed to a workplace dispute in the collective agreement context.

The panel unanimously found that the collective agreement governing the plaintiff's employment with his police service had no application whatsoever to the case and the Court rejected the motion judge's finding that the plaintiff had an alternative route to remedy his suspension under the Police Service Act (PSA).  Instead, the only viable remedy that was open to the plaintiff to challenge his suspension, the Court held, was for him to seek relief through the court process.

Background

Mr. Skof joined the Ottawa Police Services Board in 1977 and had been on full-time leave from his duties as a police officer since December 15, 2011 when he was elected to serve as President of the Ottawa Police Association for a three-year term.  Mr. Skoff was re-elected in 2014 and again in 2017.

Mr. Skof, the Union and the Police Service had agreed that, aside from benefits, the collective agreement that normally governed Mr. Skof's employment with the Police Service would not apply to Mr. Skof during his term as Union President.  This agreement was set out in a formal Memorandum of Agreement.

On January 23, 2019, the Ontario Provincial Police charged Mr. Skof with certain offences under the Criminal Code. On the same day, the defendant Mr. Bordeleau, who was then the Chief of Police, suspended Mr. Skof pursuant to his statutory authority under section 89 of the PSA.  It also turned out that it was Mr. Bordeleau who had prompted the OPP to investigate Mr. Skof.

On March 22, 2019, Mr. Skof and the Union issued a Statement of Claim which accused Mr. Bordeleau and the Police Service of misfeasance in public office and of breaching Mr. Skof's Charter rights, among other things.

Unsurprisingly, Mr. Bordeleau and the Police Service brought a motion to strike the Statement of Claim, on the basis that the court lacked jurisdiction to entertain it (more commonly referred to as a "Weber Motion").

Summary of Lower Court Decision

Mr. Skof and the Union argued that the collective agreement at issue did not apply to Mr. Skof during his term as Union President, as per the Memorandum of Agreement.  They also argued that the PSA did not oust the jurisdiction of the Court when challenging the legality of administrative suspensions and the abusive exercise of statutory power by a Chief of police.

In response, Mr. Bordeleau and the Police Service conceded the existence of the Memorandum of Agreement.  However, they took the position that the issues raised were issues for determination under the collective agreement. In the alternative, they argued that Mr. Skof had to seek relief under the PSA or by way of judicial review.

The motion judge agreed with Mr. Bordeleau and the Police Service and dismissed the Statement of Claim.

Mr. Skof and the Union appealed to the Ontario Court of Appeal.

Court of Appeal Decision

On appeal, the Court of Appeal overturned the motion judge's ruling and reinstated the Action, entitling Skof and the Union to continue their claims through the court process.

In coming to its decision, the Court referred to the often-cited "Weber" principles which state that, if a dispute in reality is something a labour arbitrator should be dealing with under a collective agreement, the court should not rule on it.

In applying these principles, the Court found that the essential character of the claim was not related to the employment relationship but the disciplinary action Mr. Bordeleau had taken under his authority as Chief of Police.

In particular, the Court reasoned that:

  1. The collective agreement had no application to the case because Mr. Skof was expressly not subject to the collective agreement during his term as Union President.  Consequently, Mr. Skof had no right to invoke the grievance procedure under the collective agreement to address his suspension, assuming he otherwise had a right to do so.
  2. Even if Mr. Skof was subject to the collective agreement, the grievance procedure under the collective agreement could not have been used to challenge a suspension made under s. 89 of the PSA, by virtue of s. 126 of the PSA.
  3. A police officer had no right under the PSA to challenge a s. 89 suspension ordered by a Chief of Police. Consequently, the only available remedy for a police officer seeking to challenge a s. 89 suspension was to seek relief through the court process.

Predictably, the Court noted the motion judge's errors flowed largely from his finding that Mr. Skof continued to be an employee of the Police Service during his term as Union President.

Finally, the Court addressed the motion judge's finding that the issues between the parties could only be addressed by judicial review to the Divisional Court.  Apart from pointing out that nothing in the Judicial Review Procedure Act precluded a party from seeking relief by way of Action – assuming the court action constituted a claim for judicial review – the panel found the Action to be for different heads of relief, not simply an application for judicial review quashing an administrative decision.

Key Takeaways

The decision confirms the application of Weber and subsequent decisions by the Supreme Court and courts and boards across the country.  By taking jurisdiction in this case, the Court of Appeal has not announced a shift towards allowing parties to evade deference to arbitral resolution of labour disputes.  To the contrary, the decision reinforces that where arbitrators or other specialized bodies lack power to provide an appropriate remedy, courts may legitimately take jurisdiction over these disputes.

Skof v. Bordeleau is a helpful example of the type of seemingly workplace-related dispute that might escape into the court's jurisdiction.  If the PSA had some sort of dispute resolution process to allow police officers to challenge s. 89 suspensions, the Court of Appeal may have reached a different result.  Similarly, had the parties agreed that the collective agreement would continue to apply to Mr. Skof during his term as Union President and had the PSA granted police officers a right to challenge section 89 suspensions under the grievance procedure provided for in the collective agreement, the appellate Court may have decided the appeal differently.

As this case demonstrates, it is not always clear when an employee in a unionized work environment has a right to apply to the court to remedy issues that arise in the workplace.  And, in fact, very few unionized employees will have a right to apply to the court for a remedy. For these reasons, we strongly encourage unionized employees to seek legal advice before filing a claim against their employer or co-worker.

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