



COURT OF APPEAL FOR ONTARIO

CITATION: Cumming v. Peterborough Police
    Association, 2013 ONCA 670

DATE: 20131104

DOCKET: C56906

Cronk, Rouleau and Tulloch JJ.A.

BETWEEN

Matthew Cumming

Plaintiff (Appellant)

and

Peterborough Police Association

Defendant (Respondent)

Richard Taylor, for the
    appellant

Caroline Jones and Debra
    Newell, for the respondent

Heard and released
    orally: October 18, 2013

On appeal from the order of
    Justice D.S. Gunsolus of the Superior Court of Justice, dated March 12, 2013.

ENDORSEMENT

[1]

The appellant police officer issued a claim against the respondent
    police association asserting that the association had breached its duty of fair
    representation.

[2]

The respondent brought a motion pursuant to rule 21.01(3)(a) of the
Rules
    of Civil Procedure
, R.R.O. 1990, Reg. 194, for an order dismissing the
    claim on the basis that the court lacked jurisdiction. Relying on this courts
    decision in
Renaud v. LaSalle (Town of) Police Assn.
(2006), 216
    O.A.C. 1 (C.A.), the motion judge concluded that because the claim was for
    breach of the duty of fair representation by a police association it fell
    within the exclusive jurisdiction of a labour arbitrator. As a result, the
    motion judge struck the claim for want of jurisdiction.

[3]

On appeal, the appellant argues in effect that we should overturn
Renaud
.
    As we indicated to counsel, this court is bound by
Renaud
. In order to
    reconsider it, the appellant needs to request that the Chief Justice strike a
    five-judge panel to consider whether
Renaud
remains good law. That was
    not done. As found by the motion judge,
Renaud
stands for the
    proposition that an alleged breach of a police associations duty of fair
    representation falls within the exclusive jurisdiction of an arbitrator
    appointed pursuant to ss. 123 and 124 of the
Police Services Act
, R.S.O. 1990, c. P.15
.
Renaud
,
    therefore, is a complete answer to the appellants appeal.

[4]

We would add that this collective agreement gives the respondent the
    exclusive power to bargain on behalf of the members, of which the appellant is
    one. The Supreme Court of Canada in
Canadian Merchant Service Guild v. Gagnon
,
    [1984] 1 S.C.R. 509, held that this type of exclusive power includes a
    corresponding obligation on the union of fair representation of all employees
    in the bargaining unit. We therefore reject the appellants submission that the
    duty of fair representation is not encompassed in this bargaining relationship.

[5]

For these reasons, the appeal is dismissed.

[6]

Costs are awarded to the respondent fixed in the amount of $5,000 plus
    H.S.T.

E.A.
    Cronk J.A.

Paul
    Rouleau J.A.

M.H. Tulloch J.A.


