Phillips et al. v. Communications, Energy and Paperworkers Union, Local 146 et al., (1999) 223 N.B.R.(2d) 104 (TD)

• Judge: Young, J.
• Court: Court of Queen's Bench of New Brunswick (Canada)
• Case Date: January 29, 1999
• Jurisdiction: New Brunswick
• Citations: (1999), 223 N.B.R.(2d) 104 (TD)

Phillips v. CEPU (1999), 223 N.B.R.(2d) 104 (TD);

    223 R.N.-B.(2e) 104; 572 A.P.R. 104

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [2000] N.B.R.(2d) TBEd. FE.045

Ronald Phillips, Karl Arsenault, René Bernard, Gary Bernatchley, Jacques Cormier, Michel Desrosier, Rhéal Diotte, Ken Gallie, Jim Guitard, Keith Guitard, John Grenier, Laurie Hickey, Warry Jones, Claude LeClair, Réal Levesque, Roger Levesque, Réal Mallais, Lance Myles, Philip Nadeau, Billy Oulette, Roland Pitre, James Ross, Ivon Savoie, Tommy Vienneau, Larry Williams, David Young, Mike McDonald, Randy Read, Yvon Bujold, Ronald Landry, Georges Desrosiers, Jacques Landry, Claude Girard, Léo Bernard, Roger Phillip, David Dickson, Bruno LeCouffe, Claude Arsenault, Benoit Savoie, Lloyd Larsen, Roland Desrosiers (plaintiffs/moving party) v. Communications, Energy and Paperworkers Union, Local 146 (defendant/responding party) and Avenor Maritimes Inc. (intervenor)

(C/C/09/98)

Indexed As: Phillips et al. v. Communications, Energy and Paperworkers Union, Local 146 et al.

New Brunswick Court of Queen's Bench

Trial Division

Judicial District of Campbellton

Young, J.

April 15, 1999.

Summary:

An employer advised Local 164 of its employees' union that it was proceeding with a massive lay-off and intended to downsize "by jurisdiction" and that any members of Local 164 for which there was no work within the jurisdiction would be laid-off and not allowed to "bump" em­ployees into Local 146 unless the Local 146 agreed. Local 164 filed a grievance, asserting that article 5 of the collective agreement gave its members the right to bump in Local 146. The arbitra­tor dismissed the grievance. Local 164 applied for judicial review. Local 146 inter­vened.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 192 N.B.R.(2d) 310; 489 A.P.R. 310, dismissed the application. Members of Local 164 who had been members of Local 146 (the plaintiffs) sued Local 146 for breach of the duty of fair representation and fiduciary duty, breach of contract and/or negligent misrepresentation. Alternatively, the plain­tiffs asserted that Local 146's conduct gave rise to an estoppel. Local 146 applied for summary judgment, to have the statement of claim struck out and to have the action dismissed or stayed on the basis that the court lacked jurisdiction. Local 146 pleaded res judicata, the Statute of Frauds and the Limitation of Actions Act.

The New Brunswick Court of Queen's Bench, Trial Division, struck portions of the statement of claim on the basis of res judi­cata and lack of jurisdiction. The court denied summary judgment and refused to strike the statement of claim. The court held that it was not appropriate to consider the availability of the Statute of Frauds and the Limitation of Actions Act as a defence on this motion where they involved questions of mixed law and fact.

Labour Law - Topic 7201

Industrial relations - Collective agreement -Enforcement - Civil action - When avail­able - Local 146 and Local 164 were signatories to the same collective agree­ment - The employer advised Local 164 of downsizing and that laid-off members would not be allowed to "bump" into Local 146 unless Local 146 agreed - Local 164 grieved, asserting that the col­lective agreement gave its members the right to bump into Local 146 - Local 146 partici­pated as an interested party - The griev­ance's dismissal was affirmed on judicial review - Local 164 members (the plain­tiffs) sued Local 146, claiming, inter alia, breach of contract, negligent misrep­resenta­tion and estoppel and seeking an order requiring Local 146 to agree to allow the bumping - The New Brunswick Court of Queen's Bench, Trial Division, held that it lacked jurisdiction to hear the claims where the facts giving rise to them were essentially the same as those surrounding the collective agreement dispute - Also, the court lacked jurisdiction to grant the re­quested remedy - See paragraphs 20 to 46.

Labour Law - Topic 7201

Industrial relations - Collective agreement -Enforcement - Civil action - When avail­able - Local 146 and Local 164 were signatories to the same collective agree­ment - The employer advised Local 164 of downsizing and that laid-off members would not be allowed to "bump" into Local 146 unless Local 146 agreed - Local 164 grieved, asserting that the col­lective agreement gave its members the right to bump in Local 146 - Local 146 partici­pated as an interested party - The griev­ance's dismissal was affirmed on judicial review - Local 164 members who were former Local 146 members (the plaintiffs) sued Local 146, claiming, inter alia, breach of the duty of fair representa­tion and a fiduciary duty - The New Brunswick Court of Queen's Bench, Trial Division, held that it had jurisdiction to hear these claims where they did not arise out of the rights created by the collective agreement - See paragraphs 47 to 49.

Cases Noticed:

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321; 125 D.L.R.(4th) 583, appld. [para. 21].

St. Anne Nackawic Pulp & Paper Co. v. Canadian Paperworkers Union, Local 219, [1986] 1 S.C.R. 704; 68 N.R. 112; 73 N.B.R.(2d) 236; 184 A.P.R. 236; 28 D.L.R.(4th) 1, appld. [para. 25].

United Brotherhood of Carpenters and Joiners of America, Local 1023 et al. v. Laviolette et al. (1998), 199 N.B.R.(2d) 270; 510 A.P.R. 270 (C.A.), refd to. [para. 48].

Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248; 2 N.R. 397, refd to. [para. 53].

McCain et al. v. McCain Foods Group Inc. et al. (1995), 157 N.B.R.(2d) 321; 404 A.P.R. 321 (T.D.), refd to. [para. 54].

Price (H.) v. Shediac (Town) and Poirier (1992), 123 N.B.R.(2d) 291; 310 A.P.R. 291 (T.D.), refd to. [para. 55].

Comeau et al. v. Breau et al. (1994), 145 N.B.R.(2d) 329; 372 A.P.R. 329 (C.A.), refd to. [para. 56].

Gagnon v. Canadian Merchant Service Guild and Laurentian Pilotage Authority, [1984] 1 S.C.R. 509; 53 N.R. 100; 9 D.L.R.(4th) 641, refd to. [para. 62]

Cannon v. Lange et al. (1998), 203 N.B.R.(2d) 121; 518 A.P.R. 121 (C.A.), refd to. [para. 65].

Ripulone v. Pontecorvo (1989), 104 N.B.R.(2d) 56; 261 A.P.R. 56 (C.A.), refd to. [para. 65].

Hunt v. Carey Canada Inc. - see Hunt v. T & N plc et al.

Hunt v. T & N plc et al., [1990] 2 S.C.R. 959; 117 N.R. 321; 74 D.L.R.(4th) 321, refd to. [para. 67].

Mott v. Trott, [1943] S.C.R. 256, refd to. [para. 69].

Agnew et al. v. Dow Chemical Co. et al. (1991), 116 N.B.R.(2d) 1; 293 A.P.R. 1 (C.A.), refd to. [para. 72].

Counsel:

Lynn M. Walsworth, for the plaintiffs;

Cleveland Allaby, for the defendant.

Richard Petrie, for the intervenor.

Young, J., of the New Brunswick Court of Queen's Bench, Trial Division, heard this motion at Campbellton, New Brunswick, on January 29, 1999, and delivered the fol­lowing decision on April 15, 1999.