In the case of Brown v. University of Windsor, involving the University of Windsor and the president of its unionized Faculty Association, the Ontario Court of Appeal had a chance to clarify the situations in which situations arbitrators would have exclusive jurisdiction over labour disputes. The claim involved allegations that the University failed to satisfy requirements of the Employment Insurance Premium Reduction Program (“EIPRP”) governed by the Employment Insurance Act, S.C. 1996, c. 23.

The requirements of the Act were not part of the collective agreement, which gave rise to the Faculty Association’s belief that an arbitrator had no place deciding the matter. The Court, on the other hand, found that if the facts of the dispute, and not the legal characterization, fell within the ambit of the collective agreement, this would be enough to place the matter firmly into the hands of the arbitrator.

In this case, the Act imposes an obligation on an employer to provide, and creates an entitlement for the employees to receive, cash or benefits. Accordingly, even though the collective agreement does not deal with the EIPRP specifically, the fact that it touches the pay and benefits portion of the collective agreement this is enough to trigger the jurisdiction of the arbitrator.

Written with the assistance of Alex Kokach, summer student.

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