Date: 20020814
Docket: T-872-02
Neutral citation: 2002 FCT 863
In the Matter of an action pursuant to s. 17(1), (2)(b) & 48 of the Federal Court Act, arising from a complaint pursuant to s. 29(1)(a) of the Privacy Act, R.S., 1985, c. P-21, against Canada Post Corporation for contravening s. 7 of the Privacy Act;
In the Matter of an action pursuant to s. 17(1), (2)(b) & 48 of the Federal Court Act arising from the illegality of parts of the Collective Agreement signed by Canada Post Corporation on February 28, 2000, contravening article 5.01 regarding the age discrimination provisions of said Collective Agreement;
In the Matter of an action pursuant to s. 17(1), (2)(b) & 48 of the Federal Court Act arising from the illegality of parts of the Collective Agreement signed by Canada Post Corporation on February 28, 2000, contravening s. 15 of the Canadian Charter of Rights and Freedoms;
In the Matter of an action pursuant to s. 17(1), 17(2)(d) & 48 of the Federal Court Act arising from contravening s. 7 of the Privacy Act by Canada Post Corporation and therefore contravening sections 3(a) & 10 of the Crown Liability and Proceedings Act S.C. 1990, c. 8, s. 21, by Canada Post Corporation;
BETWEEN:
ROBERT LAVIGNE
Plaintiff
and
CANADA POST CORPORATION
Defendant
RICHARD MORNEAU, ESQ., PROTHONOTARY:
[1] This is a motion by the Defendant under Rules 208 and 221 of the Federal Court Rules, 1998 (the Rules) for an order striking out the Plaintiff's statement of claim filed on June 6, 2002 and dismissing the Plaintiff's action on the basis, essentially, of lack of jurisdiction rationae materiae on the part of this Court to entertain it.
Context
[2] The Plaintiff is suing the Defendant for damages and interest.
[3] The Plaintiff is an employee of the Defendant. He is represented by the Canadian Union of Postal Workers pursuant to the Canada Labour Code, R.S.C., c. L-2 (the Code).
[4] Pursuant to section 37 of the Code, the parties are bound by the collective agreement mentioned in section 6 of the declaration.
[5] I am satisfied that the wording of the Plaintiff's statement of claim (the Claim) and the exhibits produced in support thereof reveal that the present dispute arose from the application of the provisions governing seniority contained in the collective agreement.
[6] Specifically, this dispute between the parties results from the application of an agreement reached by the Defendant and the Canadian Union of Postal Workers as part of the said collective agreement to break a tie when two people have the same seniority date in the same office.
[7] As stated in paragraph 7 of the Claim, the seventh and eighth criteria of the seniority tie breaking agreement use the day and month of the plaintiff's birth for ranking purposes on both the overall temporary employee list and the night shift call in list for every day work.
Analysis
[8] Contrary to the Plaintiff's central contention, I am clearly satisfied that the Plaintiff's action is not under the Privacy Act, R.S.C., c. P-21, as amended, for use by the Defendant of Plaintiff's personal information in contravention with section 7 of the said Act.
[9] It is clear and obvious in my mind that the very basis and essence of the dispute between the Plaintiff and the Defendant result from the collective agreement and the Code since they are a direct result of the application of the provisions of the collective agreement.
[10] As stated in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at 953:
Underlying both the Court of Appeal and Supreme Court of Canada decisions in St. Anne Nackawic is the insistence that the analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed. 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.)
[11] Whereas the dispute, in the present case, arises from the collective agreement, the Plaintiff was required to submit his disagreement to a grievance arbitrator pursuant to the Code under the process stipulated in article 9 of the collective agreement.
[12] It is trite law that the grievance arbitrator has exclusive authority to rule on any dispute resulting expressly or implicitly from the collective agreement.
[13] Since the grievance arbitrator had exclusive jurisdiction to determine the instant dispute, this Court therefore lacks jurisdiction rationae materiae to hear the Plaintiff's action.
[14] The fact that the Plaintiff may be outside the deadline to file a grievance under the collective agreement is not a ground to sustain jurisdiction of this Court over a matter that in essence is not within said jurisdiction. In addition, the Plaintiff has not clearly demonstrated that he has tried in time to file such a grievance and that his union has refused to follow up on it. No evidence of collusion between the union and the Defendant has been demonstrated here either.
[15] Therefore, an order shall go granting the instant motion, ordering the Plaintiff's statement of claim to be struck out and dismissing the Plaintiff's action, the whole with costs.
Richard Morneau
Prothonotary
Montreal, Quebec
August 14, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date : 20020814
Docket : T-872-02
Between :
ROBERT LAVIGNE
Plaintiff
AND
CANADA POST CORPORATION
Defendant
REASONS FOR ORDER
FEDERAL COURT OF CANADA
COUNSEL AND SOLICITORS OF RECORD
COURT NO.:
STYLE OF CAUSE:
T-872-02
ROBERT LAVIGNE
Plaintiff
AND
CANADA POST CORPORATION
Defendant
PLACE OF HEARING:Montreal, Quebec
DATE OF HEARING:August 12, 2002
REASONS FOR ORDER: BY RICHARD MORNEAU, ESQ., PROTHONOTARY
DATE OF REASONS FOR ORDER:August 14, 2002
APPEARANCES:
| Mr. Robert Lavigne |
|
for the Plaintiff |
|
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| Mr. Marc Santerre |
|
for the Defendant |
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SOLICITORS OF RECORD:
| Jodoin Santerre Montreal, Quebec |
|
for the Defendant |
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