The Court granted the defendant university association’s motion to dismiss the plaintiff university professor’s action against it on the ground that the matter fell into the exclusive jurisdiction of the Manitoba Labour Board. The plaintiff’s action alleged that the UWFA failed to fairly represent him when it agreed to mandatory retirement provisions in the relevant collective agreement. The Labour Relations Act provides a procedure for adjudicating the plaintiff’s complaint. In addition, the dispute involved the negotiation of the collective agreement, which falls within the ambit of the legislation regarding UWFA’s duty of fair representation. Therefore, the exclusive jurisdiction to hear this matter rested with the Board and not with the Court.

Administrative law – Universities – Discrimination – Labour law – Collective agreements – Mandatory retirement

Tomchuk v. University of Winnipeg Faculty Assn., [2008] M.J. No. 229. Manitoba Court of Queen’s Bench, June 5, 2008, H.C. Beard J.

The applicant was the defendant University of Winnipeg Faculty Association (the “UWFA”) in an action brought against it by the respondent university professor and member of the UWFA (the “Respondent”). The Respondent alleged the UWFA breached its constitution when it agreed to mandatory retirement provisions in the relevant collective agreement negotiated with the University of Winnipeg. The UWFA brought this application alleging that, while the Respondent’s claim was framed as a breach of contract, it was really an allegation that the UWFA failed to represent him fairly in agreeing to the mandatory retirement provisions.

The UWFA constitution and bylaws prohibit discrimination of any member in regard to terms and conditions of employment based on several grounds, including age. In 1998, a provision in the University of Winnipeg Act, S.M. 1998, c. 50 permitted the university and the UWFA to negotiate a mandatory retirement provision for employees aged 65 or older. In 2002, the UWFA negotiated a collective agreement with the University, which included a mandatory retirement clause. Pursuant to the mandatory retirement provision of the collective agreement, the Respondent was required to retire when he turned 69. The decisions in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 and in Bisaillon v. Concordia University, [2006] S.C.J. No. 19, dealt with the jurisdiction of an arbitrator in relation to a grievance arbitration arising out of a collective agreement. The Court held these decisions to be different from the present case relating to the jurisdiction of a statutorily created labour board in relation to the renewal of a collective agreement, the union’s constitution and the duty of fair representation. The decision in Gendron v. Supply & Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, discussed the factors to be considered when determining jurisdiction over an employee’s allegation that his or her union acted unfairly in respect of his or her interests. The Act contains a duty of fair representation, a procedure for adjudicating an alleged breach, a wide array of remedies and a privative clause protecting the Board. Therefore, the scheme of adjudicating unfair representation claims fits the scheme referred to in Gendron vesting exclusive jurisdiction in the Board to the exclusion of the courts, except in very narrow circumstances.

There are two aspects to analyzing the essential character of the current dispute. First, the Respondent had characterized the issue as the adequacy of the UWFA’s negotiation and adoption of the mandatory retirement clause in the collective agreement. Second, the union contract is not a personal contract between the respondent and the UWFA but rather a contract that defines the rights of a group of individuals who work together and have a common interest in negotiating and maintaining the best possible working conditions with their employer. The constitution makes it clear that the primary purpose of the UWFA is to represent and promote the interests of all members. Therefore, the claim of a breach of contract must be considered together with the facts surrounding the negotiation of the renewal of the collective agreement, and cannot be treated as a separate and distinct event. Since the essential character of the dispute involved the negotiation of the collective agreement, which fell within the ambit of the legislation regarding the UWFA’s duty of fair representation, the court held that the exclusive jurisdiction to hear this matter rests with the Board.

This case was digested by Scott J. Marcinkow of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at [email protected] or review his biography at

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