Poplawski c. McGill University						2014 QCCS 3725
JM1838    SUPERIOR COURT
CANADA
PROVINCE OF QUEBEC
DISTRICT OF			MONTREAL
No:		500-17-079672-138
DATE:	August 5, 2014
______________________________________________________________________
UNDER THE PRESIDENCY OF:				THE HONOURABLE	ROBERT MONGEON, J.S.C.
______________________________________________________________________
SLAWOMIR POPLAWSKI
Plaintiff
vs
McGILL UNIVERSITY
Defendant
______________________________________________________________________
JUDGMENT
______________________________________________________________________

[1]            Plaintiff Slawomir Poplawski (“Poplawski”) is suing McGill University (“McGill”) for wrongful dismissal from his employment, allegedly without just and sufficient cause.

[2]            Poplawski alleges that he was employed by McGill from 1988 to 2010, a duration of some 22 years.  The date of his dismissal in November 15, 2010.

[3]            Poplawski seeks damages in the amount of $999 000.00 in his Statement of Claim dated October 31 ^st , 2013, served on November 1 ^st , 2010.

[4]            McGill seeks, by way of an Exception to Dismiss pursuant to Section 165 (4) C.C.P., the dismissal of Plaintiff’s action on the basis of total absence of jurisdiction of the Superior Court.

[5]            McGill alleges more specifically that:

a)             Poplawski is a unionized employee, protected by a collective agreement (see Exhibits R-1, R-2 and R-3);

b)             As a unionized employee, Poplawski is bound by an arbitration clause contained in the collective agreement (see section 10.04 of R-3) which grants exclusive jurisdiction to the arbitrator in all matters touching upon disciplinary measures, which include termination for just and sufficient cause.  Section 10.04 of the Collective Agreement reads in part as follows:

10.04      Arbitrator’s Jurisdiction

(a)     In rendering a decision on any grievance or disagreement, the arbitrator must consider the letter and the spirit of the collective agreement.  In the case of disagreements on working conditions not covered by this collective agreement, the arbitrator must consider the principles of justice and fairness as well as the general labour relations’ policies which emerge from this collective agreement.

 

(b)     In rendering a decision on a grievance, the arbitrator may not remove, amend, or modify anything contained in this collective agreement.

 

(c)     In rendering a decision on a grievance concerning disciplinary measures, the arbitrator may confirm, modify or annul the disciplinary measure.  The arbitrator may substitute for such a decision, a measure which, given the circumstances of the case, the arbitrator considers reasonable and just.

 

(d)     The arbitrator may render any other decision which is fair and just under the circumstances, as well as determine, if applicable, the amount of compensation or damages to which an employee may be entitled, including the payment of interest in accordance with the provisions of the Labour Code.

 

(e)     In the case of a resignation, the arbitrator may evaluate the circumstances surrounding the resignation of any employee and the value of said resignation.

[6]            Article 100.12 of the Labour Code reads as follows:

100.12 [Powers of the arbitrator]  In the exercise of his duties the arbitrator may

    (a)  interpret and apply any Act or regulation to the extent necessary to settle a grievance;

    (b)  fix the terms and conditions of reimbursement of an overpayment by an employer to an employee;

    (c)  order the payment of interest at the legal rate, from the filing of the grievance, on any amount due under an award he has made.

There must be added to that amount an indemnity computed by applying to that amount, from the same date, a percentage equal to the amount by which the rate of interest fixed according to section 28 of the Tax Administration Act (chapter A-6.002) exceeds the legal rate of interest;

    (d)  upon request of a party, fix the amount due under an award he has made;

    (e)  correct at any time a decision in which there is an error in writing or calculation or any other clerical error;

    (f)  in disciplinary matters, confirm, amend or set aside the decision of the employer and, if such is the case, substitute therefor the decision he deems fair and reasonable, taking into account the circumstances concerning the matter. However, where the collective agreement provides for a specific sanction for the fault alleged against the employee in the case submitted to arbitration, the arbitrator shall only confirm or set aside the decision of the employer, or, if such is the case, amend it to bring it into conformity with the sanction provided for in the collective agreement;

    (g)  render any other decision, including a provisional order, intended to protect the rights of the parties.

[7]            Accordingly, McGill alleges the issues raised by Poplawski escape the jurisdiction of the Superior Court, the entire issue being of the competence of a grievance arbitrator.

[8]            In addition, it should be noted that prior to the institution of the present proceedings, Poplawski has been confronted with the Union’s refusal to file a grievance on his behalf.  Poplawski then exercised his rights under the Labour Code, sections 47.2 and 47.3, with a view to seeking an Order from the Commission des Relations du Travail declaring that his Union had failed to properly represent him in not filing a grievance contesting his dismissal.  This application was dismissed by the CRT on September 13, 2012 (see 2012 QCCRT 0430 , Exhibit R-4).

[9]            On 25 July 2013, Poplawski’s application for judicial review of the CRT’s decision was dismissed by the Superior Court (500-17-072324-125, 25 July 2013, Exhibit R-6).

[10]         The law is well settled on the question of the exclusive jurisdiction given to the grievance arbitrator in similar circumstances.  See General Motors of Canada Ltd vs Pierre Brunet et al. [1977] 2 SCR 537 .

[11]         In the absence of bad faith on the part of the Union which is not an issue here, an employee may not exercise any right without the support of his Union and even then, he could only seek an arbitrator award and not a recourse before the Courts to remedy the alleged wrong.

[12]         See also Murray Weber vs Ontario Hydro [1995] 2 SCR 929 .

[13]         More recently in Concordia University vs Bisaillon et al . [2006] 1 SCR 666 , the Supreme Court of Canada dismissed an application for certification of a Class Action by a salaried unionized employee on issues dealing with past service contribution holidays within the Concordia Pension Plan.

[14]         The Supreme Court, once again, confirmed the exclusive jurisdiction of the grievance arbitrator in these matters.  See Noël c. Société d’Énergie de la Baie James [2001] 2 SCR 207 .

[15]         In short, the jurisprudence is unanimous on the question :  a unionized employee protected by a collective agreement subjecting all questions of wrongful dismissal for disciplinary measures or for lack of sufficient or just cause to a grievance arbitrator, as it is the case here, eliminates the jurisdiction of the Superior Court.

[16]         In addition to the foregoing, the Plaintiff does not convince the Court that only the Superior Court would have jurisdiction to consider an argument based upon either the Canadian Charter of Rights and Freedoms or the Quebec Charter of Human Rights and Freedoms .  It is well settled law that a grievance arbitrator has this power.

[17]          See Weber v. Ontario Hydro [1995] 2 S.C.R. 929 at paragraphs 61 and 63:

“61.  This brings us to the question of whether a labour arbitrator in this case has the power to grand Charter remedies.  The remedies claimed are damages and a declaration.  The power and duty of arbitrators to apply the law extends to the Charter, an essential part of the law of Canada :  Douglas/Kwantlen, Faculty Assn. v. Douglas College , supra; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board ), [1991] 2 S.C.R. 5 ; Re Ontario Council of Regents for Colleges of Applied Arts & Technology and Ontario Public Service Employees Union (1986), 24 L.A.C. (3d) 144.  […] If an arbitrator can find a law violative of the Charter, it would seem he or she can determine whether conduct in the administration of the collective agreement violated the Charter and likewise grant remedies.

[…]

63. […] The Task in determining whether a tribunal is a court of competent jurisdiction is to “fit the application into the existing jurisdictional scheme of the court in an effort to provide a direct remedy”.  A tribunal will be a court of competent jurisdiction, McIntyre J. concluded, if its constituent legislation give it power over the parties, the issue in litigation and power to grant the remedy which is sought under the Charter.”

[18]         See also Quebec (Procureur Général) c. Désir , 2008 Q.C.C.A. 1755  :

ii.       Dans la mesure où il s’agit d’un litige dont l’essence relève du rapport de travail et du contenu explicite ou implicite de la convention collective, l’arbitre de griefs s’impose comme le mode de recours exclusif de toute mésentente employeur-salarié (sauf si le législateur a confié une mission concurrente à un autre tribunal, ce qui n’est pas ici le cas).

iii.      L’arbitre, en raison des articles 110.12 paragr. a C.t. et 49 de la Charte, a tous les pouvoirs nécessaires pour interpréter et appliquer les dispositions d’une convention, les déclarer nulles ou inopérantes si elles contreviennent à la Charte ou à une autre norme d’ordre public compatible avec le régime collectif de travail, et accorder en conséquence les mesures réparatrices appropriées, y inclus au chapitre des dommages compensatoires et punitifs. »

FOR THESE REASONS , the Court

[19]         GRANTS Defendant McGill University’s Motion to Dismiss Plaintiff’s action;

[20]         DISMISSES Plaintiff Slawomir Poplawski’s Introductory Motion as well as all amendments thereof, by reason of lack of jurisdiction of the Superior Court

[21]         WITHOUT COSTS .

		__________________________________ ROBERT MONGEON, J.S.C.
Mr. Slawomir Poplawski
Self-represented
Me André Sasseville
Me Annie Bourgeois
Langlois Kronstrôm Desjardins
Date of hearing:	March 27, 2014