



COURT OF APPEAL FOR ONTARIO

CITATION: Morriseau v. Sun Life Assurance Company of Canada, 2017 ONCA 567

DATE: 20170704

DOCKET: C63365

LaForme, Hourigan and Paciocco JJ.A.

BETWEEN

Krista Leigh Morriseau

Plaintiff (Appellant)

and

Sun Life Assurance Company of Canada

Defendant (Respondent)

Robert E. Somerleigh and Vlad Popescu, for the appellant

Stephen Simpson and Elizabeth Bennett-Martin, for the
    respondent

Heard: Friday, June 30, 2017

On appeal from the judgment of Justice W. Danial Newton
    of the Superior Court of Justice, dated January 27, 2017, with reasons reported
    at 2017 ONSC 686, 65 C.C.L.I. (5th) 163.

REASONS FOR DECISION

[1]

This is an appeal of the motion judges judgment
    dismissing the within action for want of jurisdiction.

[2]

The appellant is a unionized employee of
    Lakehead District School Board (LDSB). Her employment is subject to a
    collective agreement that provides for certain long-term disability (LTD)
    benefits. The LDSB is self-insured with respect to LTD benefits under the
    collective agreement.

[3]

The respondent Sun Life Assurance Company of
    Canada (Sun Life) has a contract with the LDSB whereby it provides
    administrative services with respect to LTD benefits. Pursuant to that
    contract, Sun Life acts as agent for the LDSB and the LDSB has ultimate final
    decision-making power for the payment of LTD benefits.

[4]

The appellant sought LTD coverage following a
    motor vehicle accident she was involved in on November 2, 2015. That request
    was denied in a letter sent to her by Sun Life. She commenced the within action
    seeking, among other things, a declaration that she is totally disabled within
    the definition in the contract between Sun Life and LDSB and an order requiring
    Sun Life to approve the payment of LTD benefits.

[5]

The motion judge found that the court did not
    have jurisdiction because the dispute arises from the interpretation, application
    or administration of a collective agreement. Accordingly, he struck the appellants
    statement of claim.

[6]

On appeal, three primary arguments are advanced:
    (i) Sun Life is not a party to the collective agreement and, therefore, does
    not have standing to challenge the jurisdiction of the court; (ii) the motion
    judge erred in finding that the essential character of the dispute involves a
    subject matter that is covered by the collective agreement; and (iii) the
    result of the motion judges order is that the appellant is left without a
    remedy.

[7]

We would not give effect to these submissions.

[8]

First, pursuant to r. 21.01(3)(a) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, the respondent
    had standing to have the action dismissed on the basis that the court lacked
    jurisdiction. The respondent was named as the defendant in the within action,
    and r. 21.01(3)(a) provides that [a] defendant may move to have an action
    dismissed on the ground that the court has no jurisdiction over the subject
    matter of the action.

[9]

Second, as the appellant concedes, the standard
    of review of the motion judges finding that the subject matter of the dispute
    is covered by the collective agreement is palpable and overriding error:
Barber
    v. The Manufacturers Life Insurance Company (Manulife Financial)
, 2017 ONCA 164, 65 C.C.L.I. (5th) 1, at para. 7. We are not satisfied
    that the motion judge made any such error in concluding that the subject matter
    falls within Brown and Beatty category 2: see
Hamilton v. ICI
    Canada Inc. (c.o.b. ICI Autocolor)
, [2001] O.J. No. 3916
    (S.C.), at para. 9. The language of the collective agreement supported a
    finding that the LDSB was required to pay benefits under that agreement, even
    though the Benefits Booklet is not explicitly incorporated into the collective
    agreement. As the respondent points out, under Article C7.00 of the collective
    agreement, LDSB is required to continue to provide benefits in accordance with
    the existing benefits plans and collective agreement in effect as of August 31,
    2104. The local terms in the collective agreement also reference and describe
    LTD benefits in the Appendix A - Benefits Summary. LDSBs obligation under the
    collective agreement therefore goes beyond the mere payment of premiums, as the
    appellant suggests.

[10]

Moreover, the motion judges analysis was
    supported by the analysis of comparable collective agreements in
Morris
    v. Manufacturers Life Assurance Co
. (2005), C.C.L.I.
    (3d) 65 (Ont. S.C.), affd, (2005), 26 C.C.L.I. (4th) 66, O.J. (Ont. C.A.) and
Duke
    v. Toronto District School Board
, [2006] O.J. No. 1983
    (S.C.). We cannot discern any palpable and overriding error in the motion
    judges finding that the arrangement whereby Sun Life handles administrative
    aspects of LTD payments by LDSB, leaving final decision-making power with LDSB,
    was likely made to remove any doubt concerning the arbitrability of benefits
    disputes and thereby avoid the situation in
Hamilton
.

[11]

Third, we are satisfied that the real dispute is
    between the appellant and the LDSB, against whom the appellant may seek an
    appropriate remedy through arbitration. There is no contract between the
    appellant and Sun Life, and there is no legal basis upon which to order that
    benefits be paid by Sun Life. It is simply the agent of the LDSB. The
    entitlement to LTD benefits is a product of collective bargaining, and any
    dispute is therefore arbitrable under the collective agreement. The appellant
    has not advanced any convincing grounds for concluding that an arbitrator would
    decline jurisdiction over a claim for those benefits.

[12]

The appeal is dismissed. The respondent is
    entitled to its costs of the appeal, which we fix at $5,000, inclusive of fees,
    disbursements and taxes.

H.S.
    LaForme J.A.

C.W.
    Hourigan J.A.

David
    M. Paciocco J.A.


