January 28, 2025
You might think that courts have wrestled with the question of whether a dispute must be submitted to arbitration or may proceed to litigation often enough that there would no longer be doubts.
Kolacz v. Labourers International Union of North America Local 837 shows that judges still must wrestle with different fact situations.
In this case, the Plaintiff employee sued his union, not his employer . The typical “arbitrate or litigate” case involves the employer, and the existence of a collective agreement governing the employment relationship is often a good clue that arbitration is the correct path.
This lawsuit was initiated after the Plaintiff had already applied to the Ontario Labour Relations Board complaining that his union had failed in its duty of fair representation by not advancing his claim that he needed accommodation to arbitration. The OLRB had dismissed the complaint.
The lawsuit was a second kick at the can.
Courts do not favour attempts to relitigate issues, even where the initial decision was in a different forum. Especially where the complaint was decided by a specialized tribunal like the OLRB with exclusive and final jurisdiction subject to judicial review.
The Plaintiff had not sought judicial review of the OLRB decision. That was his proper avenue to get a different result, if possible.
In response to the union’s motion to dismiss the action, the Plaintiff maintained that the action was not about the duty of fair representation, but rather was about a breach of human rights. However, he went on to complain to the court about the manner in which the OLRB had handled the complaint to it.
The Plaintiff had missed the limitation to commence a complain under the Ontario Human Rights Code.
The judge applied the “essential character of the dispute” test and ruled that the lawsuit did arise from the interpretation, application, administration or violation of the collective agreement. This put the dispute within the exclusive jurisdiction of the OLRB. The same principles apply to the OLRB jurisdiction as apply to an arbitrator’s jurisdiction.
The action was dismissed for lack or jurisdiction and as an abuse of process.
WHAT WEILERS LLP CAN DO TO HELP YOU
At Weilers LLP, our litigation lawyers and our labour law lawyers are an overlapping group who work closely together and understand how to identify the appropriate forum to focus on your end goal.
If you are an employer faced with an employee or union complaint, give us a call. We may be the right lawyers for you.
We also act selectively for employees with complaints against their union, or human rights complaints against their employer.