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Courts aren’t always an option for union workers

When Air Canada learned it had wrongly accused employee Troy Andrews of setting off a fake fire

When Air Canada learned it had wrongly accused employee Troy Andrews of setting off a fake fire alarm at Pearson International Airport in Toronto, it did what many employers wouldn’t have done: It apologized.

But Air Canada’s apology fell on deaf ears. Claiming he was mistreated during the course of the investigation into the incident, Andrews filed a grievance under the collective agreement, where an arbitrator ultimately dismissed his claims.

Presumably dissatisfied with the arbitrator’s decision, Andrews struck again: This time he initiated a lawsuit in the Ontario Superior Court — suing Air Canada and its representatives for alleged wrongs they had committed during the ordeal.

In bringing a court action, I suspect Andrews was attracted to the perceived advantages of a lawsuit over a typical union grievance — the potential monetary recovery seemed greater, the news media would surely report his case and the judge would sympathize with his story, whereas the arbitrator may have got it wrong — or so he thought.

Rather than responding to the merits of Andrews’ case, however, the defendants contested the jurisdiction of the judge, arguing that, as a unionized employee, Andrews had no right to sue in court.

Recently, the Ontario Court of Appeal agreed, ruling the alleged dispute fell within the exclusive jurisdiction of an arbitrator appointed under the collective agreement, rather than that of the courts.

Although courts have some limited discretion to entertain workplace disputes between unionized employees and their employer, these employees generally must seek any redress through grievance procedures in their collective agreements, or through labour tribunals.

This approach is not novel: Since 1995, when the Supreme Court ruled that disputes arising under a collective agreement should only be resolved by labour arbitrators, unionized employees have been without the same access to the courts as their non-unionized peers.

Here is some advice for unionized employees seeking to bring their claims before the courts:

  • Approach jurisdictional issues realistically. A lawsuit should be commenced only as a last resort.
  • Review and exhaust available appeal routes promptly.
  • Obtain professional advice. It is not always a smart idea to launch an expensive lawsuit. The jurisdictional maze of the court system is particularly complex — and the appropriate procedural route will differ depending on the facts and circumstances of the case.

 
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