3.68: Court options to deal with significant deficiencies

Case Summary

This was an Appeal from a Master’s Decision to strike an Originating Notice for Judicial Review, as well as to strike an Action for defamation. Both were struck pursuant to Rule 3.68.

The Appellant was an employee of Telus and a member of the Telecommunications Workers Union (the “Union”). Following the Appellant’s termination, the Union brought a grievance on his behalf against Telus for wrongful termination. An Arbitrator found that the Appellant was not wrongfully terminated. The Union did not seek Judicial Review of this Decision.

The Appellant sought Judicial Review of the Arbitrator's Decision on his own behalf. Telus applied for an Order pursuant to Rule 3.68 to strike out the Originating Notice on the basis that the Appellant had no standing to seek Judicial Review of the Arbitrator's Decision. The Master granted the Order.

The Appellant Appealed again, this time arguing that he had not received fair representation by the Union. MacLeod J. concluded that the Master was correct in striking the Originating Notice, stating:

…The [Canadian Industrial Relations Board] has the exclusive jurisdiction to determine whether Mr. Kniss received fair representation, and it found that he did. Had it found otherwise, the panel could have ordered the [Union] to seek judicial review of the decision […] Mr. Kniss cannot now ask this Court to make a new finding on essentially the same issue…

The Defendants to the Appellant’s defamation Action also filed an Application pursuant to Rule 3.68 for an Order striking out the Statement of Claim. They claimed the comments were made in the course of employment, and thus the allegations constituted employment grievances and fell within the sole jurisdiction of the Arbitrator under the terms of the collective agreement. The Master granted the Order. MacLeod J. dismissed the Appeal of the Master’s Order.

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