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Labour - Remedial LRA Exclusivity (Weber) - Exception: Waiver. Skof v. Bordeleau
In Skof v. Bordeleau (Ont CA, 2020) the Court of Appeal cited limitations to Weber v Ontario Hydro, the (otherwise) exclusive collective agreement jurisdiction case:[16] I have already set out why the collective agreement does not have any application to this case, the principal reason being that the parties agreed that it would not. I would also note that McLachlin J. made it clear in Weber, at para. 67, that the “exclusive jurisdiction of the arbitrator is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal”. This point was reiterated in Piko v. Hudson's Bay Co. (1998), 1998 CanLII 6874 (ON CA), 167 D.L.R. (4th) 479 (Ont. C.A.), leave to appeal refused, [1999] S.C.C.A. No. 23, where Laskin J.A. said, at para. 11:Some disputes between employers and employees may not arise under the collective agreement; others may call for a remedy that the arbitrator has no power to grant. The courts may legitimately take jurisdiction over these disputes. [17] In any event, I do not agree with the respondents that the essential character of the claim is related to the employment relationship. To the contrary, the essential character of the claim relates to disciplinary action taken by Bordeleau under his authority as Chief of Police. In Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, Bastarache J. explained that just because a person is an employee does not per se bring a given dispute within the collective agreement. Rather, if the dispute arises out of disciplinary action in a regulatory context, the dispute does not fall within the collective agreement or the jurisdiction of an arbitrator. In this case, as was the case in Regina Police Assn. Inc., it is clear that the Legislature intended that matters of discipline would be governed by the PSA, as I shall explain.[2]
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