



COURT OF APPEAL FOR ONTARIO

CITATION: Rivers v.
    Waterloo Regional Police Services Board, 2019 ONCA 267

DATE: 20190405

DOCKET: C65760

Simmons, Juriansz and
    Miller JJ.A.

BETWEEN

Angelina Rivers, Sharon Zehr and Barry
    Zehr

Plaintiffs (Appellants)

and

Waterloo Regional Police
    Services Board and Waterloo Regional Police
    Association

Defendants (Respondents)

R. Douglas Elliott and H. Scott Fairley, for the
    appellants

Elena Mamay and Eric Sheung Chi Cheng, for the
    appellants

James H. Bennett, for the respondent Waterloo Regional
    Police Services Board

Caroline (Nini) Jones, for the respondent Waterloo
    Regional Police Association

Jodi Martin and Glynnis Hawe, for the respondent Waterloo
    Regional Police Association

Heard: April 2, 2019

On appeal from the order of Justice Deena Baltman of the Superior Court
    of Justice, dated July 13, 2018

REASONS
    FOR DECISION

[1]

The appellants appeal from the motion judges order granting the
    respondents motions to dismiss their action for want of jurisdiction and also
    dismissing their motion for certification as a class action.

[2]

The appellants are current and former uniform members of the Waterloo
    Regional Police Service. They commenced a proposed class action against the
    Waterloo Regional Police Services Board and the Waterloo Regional Police
    Association asserting multiple claims relating to systemic gender-based
    workplace discrimination and harassment, including breach of s. 15
Charter
rights and, as against the Association, breach of the duty of fair
    representation.

[3]

The motion judge found that the police officers' and former police
    officers' employment is and was governed by collective agreements that not only
    prohibit discrimination but also contain comprehensive grievance procedures and
    ultimately provide for binding arbitration under Part VIII of the
Police
    Services Act
, RSO 1990, c. P.15 (PSA). Further, under the collective
    agreements, the Association has a duty of fair representation, enforceable under
    Part VIII. Police officers may also advance a claim of workplace discrimination
    or sexual harassment before the Human Rights Tribunal of Ontario (HRTO).

[4]

At paras. 25 through 42 of her reasons, the motion judge reviewed the
    governing jurisprudence and concluded that the legislative scheme and case law
    requires that the appellants claims be adjudicated before a labour arbitrator
    or at the HRTO and that the Superior Court lacks jurisdiction over their
    claims.

[5]

We agree with the motion judge that binding jurisprudence from this
    court applying
Weber v. Ontario Hydro
,
    [1995] 2 S.C.R. 929
(S.C.C.),
in the policing context dictates that the Superior Court lacks
    jurisdiction to entertain the proposed class action. See, for example,
Renaud
    v. LaSalle (Town) Police Assn
., [2006]
    O.J. No. 2842 (C.A.)
and
Cumming v. Peterborough Police
    Association
, 2013 ONCA 670
.
See also

K.A. v. Ottawa (City)
(2006), 80 O.R. (3d) 161.

[6]

In that regard, we observe that, contrary to the appellants
    submissions, the collective agreement permits group complaints or grievances.
    Moreover, arbitrators under Part VIII of the PSA have broad remedial powers
    sufficient, in our view, to remedy the wrongs alleged.

[7]

The appellants argue that the discriminatory environment in which they
    find themselves leaves them without an adequate remedy on a practical basis and
    that this requires that they be granted access to the courts. One fatal flaw in
    this argument is that the appellants have not attempted to avail themselves of
    the mandatory grievance/arbitration process or led evidence to demonstrate that
    it is practically unavailable.

[8]

The appellants appeal from the dismissal of their action is therefore
    dismissed. In the result, it is unnecessary that we address the appeal of the
    dismissal of the certification motion.

[9]

If the parties are unable to agree on costs within 21 days from the
    release of these reasons, the respondents may deliver brief written costs
    submissions within 10 days thereafter and the appellants and the Law Foundation
    may respond within a further 10 days.

Janet Simmons J.A.

R.G. Juriansz J.A.

B.W. Miller J.A.


