Rathwell v. Hershey Canada Inc., (2001) 152 O.A.C. 1 (CA)

• Judge: Laskin, Feldman and Simmons, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: September 07, 2001
• Jurisdiction: Ontario
• Citations: (2001), 152 O.A.C. 1 (CA)

Rathwell v. Hershey Can. Inc. (2001), 152 O.A.C. 1 (CA)

MLB headnote and full text

Temp. Cite: [2001] O.A.C. TBEd. SE.031

Glenn Rathwell on his own behalf and on behalf of all other members and former members of the Retail Wholesale/Canada Canadian Services Sector Division of the United Steel Workers of America, Local 416, Unit 1 (plaintiffs/respondents) v. Hershey Canada Inc. (defendant/appellant)

(C35677)

Indexed As: Rathwell v. Hershey Canada Inc.

Ontario Court of Appeal

Laskin, Feldman and Simmons, JJ.A.

September 7, 2001.

Summary:

Hershey Canada Inc. contended that an arbitrator had no jurisdiction over a grievance filed by the union and that the union had to seek relief before the Unemployment Insurance Commission. The arbitrator held that he had no jurisdiction. The union was denied relief by the Commission and issued a statement of claim. Hershey filed a motion contending that the court had no jurisdiction because jurisdiction resided with the Commission and the Commission's decision raised an issue estoppel. The motion was dismissed. Hershey appealed.

The Ontario Court of Appeal, in a decision reported at 133 O.A.C. 397, dismissed the appeal holding that the union's claim could proceed in the courts. Hershey then contended that an arbitrator had exclusive jurisdiction over the dispute based on Weber v. Ontario Hydro (S.C.C.).

The Ontario Court of Appeal held that the question of whether the dispute should be arbitrated was res judicata.

Estoppel - Topic 376

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - General principles - The Ontario Court of Appeal held that issue estoppel applied with respect to an arbitrator's decision - Although the appellant had argued that the arbitrator's decision was not binding because his decision would have been different if he had been aware of a provision of an earlier collective agreement, the court held that the subsequently discovered evidence could not affect the application of issue estoppel at least absent the appellant showing that it could not have put the evidence before the arbitrator by the exercise of due diligence - See paragraph 5.

Estoppel - Topic 386

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Issues decided in prior proceedings - [See Estoppel - Topic 387 ].

Estoppel - Topic 387

Estoppel by record (res judicata) - Res judicata as a bar to subsequent proceedings - Matters or claims available in prior proceedings - Hershey Canada contended that an arbitrator had no jurisdiction over a grievance and that the union had to seek relief before the Unemployment Insurance Commission - The arbitrator held that he had no jurisdiction - The union was denied relief by the Commission and issued a statement of claim - Hershey filed a motion contending that the court had no jurisdiction because jurisdiction resided with the Commission and the Commission's decision raised an issue estoppel - The motion was dismissed - Hershey then contended that an arbitrator had exclusive jurisdiction over the dispute based on Weber v. Ontario Hydro (S.C.C.) - The Ontario Court of Appeal held that the question of whether the dispute should be arbitrated was res judicata - Issue estoppel applied to the arbitrator's decision because the parties were the same, the issue was the same and the decision was final - The earlier court decision also operated to make Hershey's argument res judicata as a party could not relitigate a claim that it could have raised in an earlier proceeding.

Counsel:

W.J. Hayter, for the appellant;

Judith Allen, for the respondents.

This appeal was heard on September 7, 2001, before Laskin, Feldman and Simmons, JJ.A., of the Ontario Court of Appeal. The following endorsement of the Court of Appeal was delivered orally on September 7, 2001, and was filed on September 21, 2001.