Citation:
Ferreira v. Richmond (City),
2007 BCCA 131
Date: （略）
Docket: CA032524, CA032526
Docket: CA032524
Between:
Jose Mario Ferreira
Respondent
(Plaintiff)
And
City of Richmond, Chris Boyce, Ken Fawns, Dennis Minns,
Murray Sellers and Art Trinidad
Appellants
(Defendants)
Docket: CA032526
Between:
Jose Mario Ferreira
Respondent
(Plaintiff)
And
City of Richmond
Appellant
(Defendant)
And
Chris Boyce, Ken Fawns, Dennis Minns,
Murray Sellers and Art Trinidad
Respondents
(Defendants)
Before:
The Honourable Madam Justice Ryan
The Honourable Madam Justice Saunders
The Honourable Mr. Justice Smith
B. Laughton, Q.C.
Counsel for Chris Boyce, Ken Fawns, Dennis Minns, Murray Sellers
and Art Trinidad
N. Mitha
Counsel for the City of Richmond
L. Smeets
Counsel for Jose Mario Ferreira
Place and Date of Hearing:
Vancouver, British Columbia
30 November and 1 December 2005
Place and Date of Judgment:
Vancouver, British Columbia
28 February 2007
Written Reasons by:
The Honourable Madam Justice Ryan
Concurred in by:
The Honourable Mr. Justice Smith
Concurring Reasons by:
The Honourable Madam Justice Saunders
Reasons for Judgment of the Honourable Madam Justice Ryan:
Introduction
[1] The City of Richmond (“the City”) and five individuals, Chris Boyce, Ken Fawns, Dennis Minns, Murray Sellers and Art Trinidad (the "individual appellants") appeal the order of a Supreme Court Justice made December 3, 2004 dismissing their applications to strike the respondent’s claims under Rule 14(6) and Rule 19(24) of the British Columbia Supreme Court Rules, B.C. Reg. 221/90 (the “Supreme Court Rules”).
[2] In his statement of claim in the Supreme Court, the respondent, Jose Mario Ferreira, alleged that several City employees, the individual appellants, had harassed him to the point of personal injury and that the City did nothing about it. The City and the individual appellants argued, pursuant to Rule 14(6), that the Court was without jurisdiction to hear the suit and that it should be heard by a labour arbitrator pursuant to the collective agreement. Its Rule 19(24) argument was that Mr. Ferreira’s claim did not disclose any reasonable claim, or was an abuse of process, unnecessary, scandalous, frivolous or vexatious. The Chambers judge found that the Court had jurisdiction to hear the matter as it did not fall within the terms of the collective agreement.
[3] In this appeal, the appellants challenge the Chambers judge’s decision on jurisdiction. While the appellants break this broader challenge into a number of discrete grounds of appeal, the essence of the appeal turns on the essential character of the parties’ dispute and whether it arises from the interpretation, application, administration or violation of the collective agreement, either directly or inferentially, such that it is within the exclusive jurisdiction of an arbitrator.
[4] For the reasons set out below, I have concluded that this dispute falls within the ambit of the collective agreement, and that Mr. Ferreira's claim should have been struck by the Chambers judge.
Background
[5] Mr. Ferreira has been an employee of the City since 1978. He is a union member and his employment is governed by a collective agreement between the Canadian Union of Public Employees (“CUPE”) and the City. Mr. Ferreira worked in the City’s roads department between 1998 and 2002. In 2002, he suffered a knee injury and has been on sick leave since that time.
[6] During his tenure with the roads department, Mr. Ferreira claims that he observed irregular practices including double-billing, improper use of sick leave and overtime, the use of City credit cards by employees for personal expenses, and the conversion of City property. He claims that when he voiced his concerns about these practices he was harassed by fellow union employees and supervisors. Mr. Ferreira describes, among other affronts, racist comments such as “die nigger”, rude comments about his alleged sexual orientation, and threats such as, “I’m going to kill you”.
[7] Mr. Ferreira claims that as a result of this harassment he has experienced depression, anxiety, and a panic disorder. He seeks damages against the individual appellants for personal injury, infliction of nervous shock and/or mental anguish and mental distress, and pain and suffering. He seeks damages from the City for the same causes of action as he claims against the personal appellants, as well as damages for negligent supervision, breach of fiduciary duty, and breach of contract.
[8] The collective agreement that governs Mr. Ferreira’s work includes provisions regarding pay, overtime, meal breaks, first aid premiums, vacations and holidays, employee benefits, working conditions, a grievance procedure, and leaves of absence. It does not contain a specific provision against harassment other than sexual harassment.
[9] Grievances are dealt with in clause 15, which reads:
Any difference concerning the dismissal, discipline, or suspension of an employee or the interpretation, application, or operation of this Agreement or any alleged violation thereof, including any question as to whether any matter is arbitrable, shall without stoppage of work, be the subject of discussion between the Union and the Employer and shall be finally and conclusively settled in the following manner . . .
[10] The first step in the grievance procedure requires the complainant to submit the grievance to the Manager, including the particulars of the alleged violation, the clauses violated, the date and circumstances of the incident, and the remedy being sought. If the grievance cannot be resolved, the Union may refer it to a Board of Arbitration.
[11] The collective agreement also has a catch-all clause at s. 17(b) that provides:
17. GENERAL PROVISIONS
. . .
(b) Any working conditions, holiday benefits, welfare benefits or other conditions of employment at present in force and recognized by both parties which are not specifically mentioned in this Agreement and are not contrary to its intention, shall continue in full force and effect for the duration of this agreement.
[Emphasis added.]
[12] In a recent round of bargaining, the Union argued for “whistleblower protection” language that would protect persons from retribution who reported poor management, but this language was not agreed to. As I will develop, the respondent places great significance on the lack of “whistleblower protection” in the collective agreement.
[13] For its part, the City has a general anti-harassment policy providing a procedure through which individuals can raise their concerns. The key provision of that policy reads:
The decision under this process of the General Manager of Finance and Corporate Services and the Director of Human Resources is final. However a decision made under this process does not affect the rights of an individual to seek recourse through the collective agreement, if applicable, or through the BC Human Rights Commission.
The Chambers Decision
[14] In resisting the application to refuse jurisdiction, Mr. Ferreira argued that there was no provision in the collective agreement relating to the harassment he experienced as a “whistleblower” and, therefore, that the parties’ dispute is not one that arises from the interpretation, administration, or violation of the collective agreement. As a result, he said, the action is within the jurisdiction of the Court.
[15] The City argued that an arbitrator can adjudicate both complaints under the Human Rights Code, R.S.B.C. 1996, c. 210 (“Human Rights Code”) and tort claims. In the City’s view, an arbitrator could, therefore, properly address all of Mr. Ferreira’s concerns. The City further argued, but did not press, that the essence of Mr. Ferreira’s claim is that the harassment resulted in the termination of his employment and that if true, this constituted constructive dismissal which fell within the ambit of the collective agreement.
[16] The individual appellants relied on the City’s arguments and further argued that Mr. Ferreira’s claims were properly addressed by the City’s anti-harassment policy, which, they maintain, was incorporated into the collective agreement by clause 17(b). In this court, the individual appellants also submitted that the collective agreement could be interpreted to imply an obligation on the employer to act reasonably in administering the collective agreement and, thus, afford Mr. Ferreira the protection of a harassment-free workplace.
[17] At the urging of the parties, it seems the Chambers judge first addressed the considerations summed up in Pleau (Litigation Guardian of) v. Canada (Attorney General) (1999), 182 D.L.R. (4th) 373 (N.S.C.A) as to whether a court ought to decline jurisdiction in favour of the dispute resolution process set up under a collective agreement. The three elements set out in Pleau are: (1) the process favoured by the legislation; (2) whether the process will provide effective redress; and (3) the essential character of the dispute.
[18] The Chambers judge recognized that the British Columbia Labour Relations Code, R.S.B.C. 1996, c. 244 (the “Labour Relations Code”) gives exclusive jurisdiction to labour tribunals to determine disputes arising from a collective agreement. For that reason, there is a “strong preference” to resolve disputes that arise under a collective agreement according to the scheme of the Labour Relations Code.
[19] Next, the Chambers judge concluded that the broad powers given to labour tribunals would permit an arbitrator to provide effective redress for Mr. Ferreira’s complaints.
[20] It was the last consideration – the essential character of the dispute – that the Chambers judge found troubling. In examining whether Mr. Ferreira’s claims of tortious misconduct could be arbitrated under the collective agreement, the Chambers judge applied Fording Coal Ltd. v. U.S.W.A., Local 7884 (1999), 65 B.C.L.R. (3d) 1, 1999 BCCA 38 and Olsen v. Canada (Correctional Services) (2003), 13 B.C.L.R. (4th) 133, 2003 BCCA 209 and concluded that the tort claims against the City did not arise from the interpretation or application of the collective agreement. At paras. 33 and 34 the Chambers judge said:
Not all tort actions between employee and employer or between employees come within the jurisdiction of a labour arbitrator, even where these occur in the workplace. In Olsen [citation omitted] the plaintiff said that he had been harassed by other employees. He brought an action, pleading defamation, assault and intimidation. He sought damages for mental and economic distress, damage to reputation and punitive damages. The court concluded that his claims did not depend on the interpretation or application of the collective agreement, fell outside of the spectrum of typical employment disputes, and concluded that the court retained jurisdiction over the issue.
Similarly, in Fording Coal [citation omitted], the company claimed damages for libel against the union and its president. The union grieved the matter and sought the appointment of an arbitrator, who concluded that he had jurisdiction over the matter. The Court of Appeal said at paras. 14 and 27:
In my view, however, the dispute or difference between the parties was not about production or safety, which were clearly matters covered by the agreement, but was instead about the alleged false and harmful (defamatory) statements made by Mr. Takala. As will be seen, however, the fact that the company has framed its claim in terms of the tort of defamation is not determinative without further analysis. . . I believe this dispute falls well outside the normal scope of employer/employee relations, and the context of the Collective Agreement is not broad enough to exclude the Company’s right of recourse to the regular courts for this action of defamation.
[21] The Chambers judge had asked for further submissions from the parties as to whether the City’s harassment policy was incorporated into the collective agreement such that a breach of that policy would be a breach of the collective agreement. She concluded that it was not and held that the rejection of an anti-harassment provision for whistleblowers in the latest round of bargaining was evidence that neither the City nor CUPE considered the City’s harassment policy to be part of the collective agreement.
[22] In the result, the Chambers judge was not satisfied that the court’s jurisdiction had been ousted and concluded that Mr. Ferreira’s action did not, ”in its essential character, arise from the interpretation, application, administration or violation of the collective agreement.”
The Applicable Rules And Legislation
[23] Rule 14(6) of the Supreme Court Rules, supra provides:
(6) A party who has been served with an originating process in a proceeding, whether served with the originating process in that proceeding in or outside of British Columbia, may, after entering an appearance,
(a) apply to strike out a pleading or to dismiss or stay the proceeding on the ground that the originating process or other pleading does not allege facts that, if true, would establish that the court has jurisdiction over that party in respect of the claim made against that party in the proceeding,
(b) apply to dismiss or stay the proceeding on the ground that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding, or
(c) allege in a pleading that the court does not have jurisdiction over that party in respect of the claim made against that party in the proceeding.
[24] The relevant provisions of the Labour Relations Code, supra are:
Purpose of Part
82 (1) It is the purpose of this Part to constitute methods and procedures for determining grievances and resolving disputes under the provisions of a collective agreement without resort to stoppage of work.
(2) An arbitration board, to further the purpose expressed in subsection (1) must have regard to the real substance of the matters in dispute and the respective merit of the positions of the parties to it under the terms of the collective agreement, and must apply principles consistent with the industrial relations policy of this Code, and is not bound by a strict legal interpretation of the issue in dispute.
. . .
Dismissal or arbitration provision
84 (1) Every collective agreement must contain a provision governing dismissal or discipline of an employee bound by the agreement, and that or another provision must require that the employer have a just and reasonable cause for dismissal or discipline of an employee, but this section does not prohibit the parties to a collective agreement from including in it a different provision for employment of certain employees on a probationary basis.
(2) Every collective agreement must contain a provision for final and conclusive settlement without stoppage of work, by arbitration or another method agreed to by the parties, of all disputes between the persons bound by the agreement respecting its interpretation, application, operation or alleged violation, including a question as to whether a matter is arbitrable.
(3) If a collective agreement does not contain a provision referred to in subsections (1) and (2), the collective agreement is deemed to contain those of the following provisions it does not contain:
(a) the employer must not dismiss or discipline an employee bound by this agreement except for just and reasonable cause;
(b) if a difference arises between the parties relating to the dismissal or discipline of an employee, or to the interpretation, application, operation or alleged violation of this agreement, including a question as to whether a matter is arbitrable, either of the parties, without stoppage of work, may, after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference to arbitration, and the parties must agree on a single arbitrator, the arbitrator must hear and determine the difference and issue a decision, which is final and binding on the parties and any person affected by it.
. . .
Authority of arbitration board
89 For the purposes set out in section 82, an arbitration board has the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement, and without limitation, may
(a) make an order setting the monetary value of an injury or loss suffered by an employer, trade union or other person as a result of a contravention of a collective agreement, and directing a person to pay a person all or part of the amount of that monetary value,
(b) order an employer to reinstate an employee dismissed in contravention of a collective agreement,
(c) order an employer or trade union to rescind and rectify a disciplinary action that was taken in respect of an employee and that was imposed in contravention of a collective agreement,
(d) determine that a dismissal or discipline is excessive in all circumstances of the case and substitute other measures that appear just and equitable,
(e) relieve, on just and reasonable terms, against breaches of time limits or other procedural requirements set out in the collective agreement,
(f) dismiss or reject an application or grievance or refuse to settle a difference, if in the arbitration board's opinion, there has been unreasonable delay by the person bringing the application or grievance or requesting the settlement, and the delay has operated to the prejudice or detriment of the other party to the difference,
(g) interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement, even though the Act's provisions conflict with the terms of the collective agreement, and
(h) encourage settlement of the dispute and, with the agreement of the parties, the arbitration board may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.
. . .
Decision final
101 Except as provided in this Part, the decision or award of an arbitration board under this Code is final and conclusive and is not open to question or review in a court on any grounds whatsoever, and proceedings by or before an arbitration board must not be restrained by injunction, prohibition or other process or proceeding in a court and are not removable by certiorari or otherwise into a court.
Grounds Of Appeal
[25] At the outset, I wish to briefly remark on the Chambers judge’s and parties’ decision to apply the approach set out by Cromwell J.A. in Pleau. Although this was not raised by the parties to this appeal, I am not persuaded that the test in Pleau is apt in this case. As Mr. Justice Lambert, speaking for himself, noted in Ali v. Manufacturers Life Insurance Co. (2005), 41 B.C.L.R. (4th) 199, 2005 BCCA 294 at para. 21:
I add only that the decision of Mr. Justice Cromwell, concurred in by Chief Justice Glubé and Madam Justice Roscoe in Pleau v. Canada [citation omitted] and applied by Mr. Justice Binnie for five justices of the Supreme Court in Vaughan v. Canada was, like Vaughan, a case where there was a grievance procedure but no provision for exclusive adjudication; so the tests propounded by Mr. Justice Cromwell were tests for determining when the courts should decline a jurisdiction which they would have, rather than, as here, a case where the court’s jurisdiction is excluded by an applicable arbitration provision under the Labour Relations Code.
[Emphasis added.]
[26] As is clear from Lambert J.A.’s remarks, the approach set out in Pleau more clearly envisions circumstances where there is a weaker arbitration clause and it is unclear whether exclusive jurisdiction has been given to an arbitrator: also see Vaughn v. Canada, [2005] 1 S.C.R. 146 at paras. 21-23. While this court recently applied the Pleau test in Sulz v. Minister of Public Safety and Solicitor General, 2006 BCCA 582, I note that the unionized employee in that case was governed by the provisions of the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10, an act that contains a weaker arbitration clause than is found in the Labour Relations Code in s. 84(3)(b) as set out above.
[27] In any event, regardless of whether the approach taken in Pleau was correct, the issue here is whether the Chambers judge reached the proper conclusion as to “the essential character of the dispute.” In reaching that conclusion, she made key findings in Mr. Ferreira’s favour that are now challenged. Most importantly, the Chambers judge concluded that the complaints made by Mr. Ferreira were not covered by the Human Rights Code and at para. 29 said:
While some of the complaints made by Mr. Ferreira may be within the Human Rights Code, not all of the complaints are covered by the Human Rights Code. Further, the essence of Mr. Ferreira’s complaints is not that he was discriminated against based on his race, his sexual orientation or his place of origin. Rather, he says that these epithets were used to harass him because he was a “whistle blower”, that he raised issues of inappropriate conduct by other City employees and as a result was harassed by them. Therefore an arbitrator could not cover the full scope of the claim by reference to the Human Rights Code.
[28] As I mentioned earlier, the grounds, as stated by the appellants, come down to whether the Chambers judge correctly characterized the essential nature of the dispute and whether it is contained within the ambit of the collective agreement.
Position Of The Parties
[29] Mr. Ferreira took no issue with the position of the City and the individual appellants that their grounds amounted to questions of law that dealt with the jurisdiction of the Supreme Court to try the allegations in the respondent’s statement of claim. Nor did he disagree that the issues on this appeal could be resolved by an examination of the pleadings.
[30] The parties also agree that Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, as confirmed in Vaughn, supra, sets out the proper jurisdictional test. Those cases say that if the essential character of the dispute between the parties arises from the “interpretation, application, administration or violation of the collective agreement”, the dispute must be resolved by an arbitrator appointed in accordance with the collective agreement and not by the courts.
[31] Both parties cite Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360 as governing whether a dispute arises out of the collective agreement. In that case, Bastarache J. (at para. 25) wrote:
To determine whether a dispute arises out of the collective agreement, we must therefore consider two elements: the nature of the dispute and the ambit of the collective agreement. In considering the nature of the dispute, the goal is to determine its essential character. This determination must proceed on the basis of the facts surrounding the dispute between the parties, and not on the basis of how the legal issues may be framed: see Weber, supra, at para. 43. Simply, the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations. It is clear that the collective agreement need not provide for the subject matter of the dispute explicitly. If the essential character of the dispute arises either explicitly or implicitly from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide.
[Citations omitted; emphasis added.]
[32] Mr. Justice Bastarache then elaborated upon the meaning of “a dispute that arises inferentially from the collective agreement”. He said (at para. 35):
In Weber, McLachlin J. emphasized that disputes which either expressly or inferentially arise from the collective agreement should be heard by an arbitrator. As a result, an arbitrator may seize jurisdiction of a dispute even when the factual context of that dispute extends beyond what was expressly provided for in the collective agreement, to include what is inferentially provided. It is whether the subject matter of the dispute expressly or inferentially is governed by the collective agreement that is determinative.
[Emphasis added.]
Nature of the dispute – its essential character
[33] Mr. Ferreira describes the core of the dispute as “the Plaintiff’s whistle-blowing activities” and, in particular, “the role played by the Plaintiff in challenging and exposing to public view irregular practices in the affairs of the City . . . and the repercussions he suffered from becoming a whistleblower”. He further describes the essential character of the dispute as centering on “complaints about activities in the workplace many of which, on their face, appear to be criminal in nature”. He says that the court has jurisdiction over the dispute because it clearly does not arise out of the employer-employee relationship.
[34] By contrast, the individual complainants say that Mr. Ferreira’s claims arise out of the employer-employee relationship because the alleged incidents of harassment took place in the workplace. It does not matter, they say, that the motivation for the harassing behaviour on the part of the other employees is said to be Mr. Ferreira’s complaint about allegedly shady practices; it is enough that he says that their conduct takes place at the workplace and affects his ability to work. This must be characterized as a workplace complaint covered, at least inferentially, by the collective agreement.
[35] The City submits that the essential character of the dispute is Mr. Ferreira’s claim that he was “discriminated against based on various prohibited grounds set out in the Human Rights Code”. It points out that Mr. Ferreira’s claim is largely framed as a complaint of harassment and discrimination, and that shortly after his statement of claim was issued, he filed a complaint, based on the same facts, with the British Columbia Human Rights Tribunal.
Ambit of the collective agreement
[36] The City acknowledges that there is no express provision in the collective agreement that deals with harassment that is not of a sexual nature. However, it says that Mr. Ferreira’s experience falls implicitly within the collective agreement because cases such as Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (O.P.S.E.U.), [2003] 2 S.C.R. 157 have held that terms prohibiting discrimination and harassment must be incorporated into every collective agreement.
[37] The City also points to the broad scope of complaints that can be grieved under the collective agreement, namely, “any difference concerning the dismissal, discipline or suspension of an employee or the interpretation, application or operation of this agreement or any alleged violation thereof, including any question as to whether any matter is arbitrable.”
[38] Mr. Ferreira says that cases such as Parry Sound only ensure that rights under a collective agreement are exercised in accordance with the law. He says that before a labour arbitration board can apply the Human Rights Code, there must be a dispute under the collective agreement which requires its interpretation or application.
[39] Mr. Ferreira argues for the application of Pleau, Guenette v. Canada (Attorney General) (2002), 60 O.R. (3d) 601 and Olsen v. Canada (Correctional Services) (2003), 13 B.C.L.R. (4th) 133. These are cases in which employees brought suits against their employers and/or fellow employees for claims that were found to be outside the collective agreement and, thus, within the court’s jurisdiction.
[40] The City distinguishes Pleau, Guenette and Olsen on the grounds that those cases involved the application of the arbitration provisions of the Public Service Staff Relations Act, R.S.C. 1995, c. P-35, which, it says, are weaker than the provisions of the Labour Relations Code and which means that in those cases there was room for the court to take jurisdiction. It also distinguishes Fording Coal, the decision relied upon by the trial judge, on three grounds: first, the case did not involve events that took place at the workplace; second, the collective agreement did not contemplate the adjudication of free speech rights; and third, a defamation action raises unique concerns that could not be properly addressed by a labour arbitrator, including a plaintiff’s entitlement to trial by jury.
[41] The individual appellants take an expansive view of what may fall inferentially within the ambit of the collective agreement. They argue that disputes which arise inferentially under the collective agreement may or may not have a specific provision that can be referred to. They say that a broad set of disputes can be found to fall inferentially under the collective agreement and that this depends on their solid connection with the workplace, as well as on their consistency with the types of disputes that compulsory arbitration under the Labour Relations Code is intended to address. They say that because this dispute arises out of the employment relationship, it falls to be resolved under the collective agreement. Thus, in their view, the Chambers judge was wrong to focus her inquiry on the existence of a specific provision in the collective agreement that could inferentially address the dispute.
[42] The individual appellants begin by noting that in Weber the court was concerned with a claim that asserted trespass, nuisance, deceit and invasion of privacy on the part of the employer. In the companion case of New Brunswick v. O’Leary, [1995] 2 S.C.R. 967, the issue of jurisdiction arose over an employer suing for damages caused by the employee to the employer’s vehicle. In both cases, there was no explicit provision in the collective agreement dealing with employee negligence or employer invasion of privacy, yet the court held that both disputes ought to be dealt with under the collective agreement.
[43] As I understand the argument, the individual appellants say it is possible to anchor an implied or inferred term in a specific provision of the collective agreement (the court in both Weber and O’Leary found such provisions), but that it is not necessary to do so. They contend that the concept of drawing inferences has as its starting point a recognition that there is no express provision. Without such a provision, it would be sufficient to simply find that the dispute generally “arises out of the employment relationship.”
[44] While it is difficult to formulate a more precise test to analyze the question, the individual appellants say that it is only where the employer/employee relationship is incidental to the claim that the courts will take jurisdiction. They cite Piko v. Hudson’s Bay Co. (1998), 167 D.L.R. (4th) 479 (Ont. C.A.) as an example. In that case the employer not only dismissed the employee for an alleged theft, but also initiated criminal proceedings against her. When the employee filed a writ for malicious prosecution, the employer sought to strike out her statement of claim on the basis that the essential character of the dispute arose out of her employment relationship with it. The Ontario Court of Appeal held that the employee’s claim that her employer maliciously prosecuted her in the criminal courts lay outside the scope of the collective agreement. The defendant itself went outside the collective bargaining regime when it resorted to the criminal process.
Discussion
[45] As discussed above, the focus of this appeal is on the essential character of the dispute. What this determination requires is the application of the two part test originally set out in Weber, which involves, firstly, determining whether the “nature of the dispute” can be characterized as arising from an employment relationship; and secondly, whether that dispute, so characterized, involves circumstances that expressly or impliedly falls within the ambit of the collective agreement.
[46] I have concluded that the essential character of Mr. Ferreira’s dispute involves the interpretation, application or administration of the collective agreement.
The nature of Mr. Ferreira’s dispute
[47] The first question to resolve is the nature of the dispute and whether it can be factually characterized as being part of the employment relationship. Normally, the facts of a given dispute will link it either clearly to the employee-employer relationship or they will not. This was noted by McLachlin J. (as she then was) in Weber (at para. 52) when she stated that “in the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it did not”.
[48] In some cases a dispute can be clearly characterized as being employment related, such as when it involves salaries, benefits, or employee discipline. In other cases, the factual circumstances are more ambiguous. For example, a claim related to malicious prosecution (as in Piko, supra) or defamation at the work place (Fording Coal, supra; Phillips v. Harrison (2000), 196 D.L.R. (4th) 69, [2001] 3 W.W.R. 589) (Man. C.A.) may not automatically bring the dispute within the employment context: Sulz v. British Columbia (Minister of Public Safety and Solicitor General), 2006 BCCA 582, at para. 32. Thus, while such exceptions are rare, presumptive conclusions cannot be made about the nature of the dispute without an evaluation of the facts: Weber, supra, at para. 52.
[49] The importance of examining the nature of the dispute is underscored by the emphasis that courts have placed on the substance of the dispute, rather than its legal characterization. As stated by McLachlin J. at para. 43 of Weber, “the analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed.” [Emphasis added.]
[50] In my view, the respondent’s complaint is not unlike the complaint dealt with by the Supreme Court of Canada in Weber. Mr. Weber, an employee of Ontario Hydro, developed back problems and took an extended leave of absence. Over time, his employer, Ontario Hydro, suspected that he was malingering and hired private investigators who came onto his property and gained access to his home through a ruse. Acting on information obtained by the investigators, Ontario Hydro suspended Mr. Weber for abusing his sick benefits. Mr. Weber consequently commenced a court action based on the torts of trespass, nuisance, deceit, and invasion of privacy, and for breach of his ss. 7 and 8 Charter rights.
[51] At issue in Weber, then, was whether the Legislature through the Ontario Labour Relations Act had demonstrated an intention to confer exclusive jurisdiction to adjudicate claims arising from a collective agreement on a labour arbitrator. The relevant provision of the Ontario Labour Relations Act provided:
s. 45(1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.
[52] The equivalent section in the case at bar is s. 84(2) of the Labour Relations Code, as set out above.
[53] Mr. Weber argued that his dispute fell outside the collective agreement. He said that Ontario Hydro’s act of hiring private investigators who used deception to enter his family home and report on him did not relate to the interpretation, application, or administration of the collective agreement. He said that the essence of the dispute was the common law and his family’s constitutional rights. By contrast, Ontario Hydro argued that the dispute arose in response to a claim for sick benefits provided for in the collective agreement and argued that the way the employer monitored entitlement to the benefits was part of the administration of the agreement.
[54] In finding that the dispute was governed by the collective agreement, McLachlin J. held that Ontario Hydro’s actions “were directly related to a process which is expressly subject to the grievance procedure. While aspects of the alleged conduct may arguably have extended beyond what the parties contemplated, this does not alter the essential character of the conduct. In short, the difference between the parties relates to 'administration of the agreement' within s. 45(1) of the Labour Relations Act.”
[55] As McLachlin C.J.C. would later put it in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185 at para. 22, the dispute in Weber was "basically a dispute about sick-leave, which became encumbered with an incidental claim for trespass."
[56] In the case at bar, the respondent says that he made complaints to police and other authorities about his employer and several employees with respect to alleged questionable practices on the job. As a result of his complaints, he says he has been harassed in many abhorrent ways on the job. Because of the abuse, he has become ill and cannot work. He says that the employer allowed and perhaps even encouraged this to happen.
[57] Accepting Mr. Ferreira’s genuine conviction about his mistreatment, I nevertheless cannot escape the conclusion that at a basic level, his dispute is about how he has been treated at work and, in turn, how this treatment has escalated to claims of tortious and perhaps criminal behaviour. In other words, the heart of his complaint is about his employer’s failure to prevent or address allegedly shocking working conditions and to provide a safe work environment. All of these allegations are intrinsically linked to the employment relationship. Thus, while the claims are framed in relation to tortious conduct related to whistleblowing, this does not, as the Chambers judge found, mean that “the dispute is far outside of the spectrum of typical employment disputes.”
[58] What, then, should be made of the fact that these alleged tortious acts were taken in retaliation for whistleblowing? Whistleblowing is a matter of great public concern, which has been expressed recently by the Supreme Court of Canada: Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, [2005] 3 S.C.R. 425, 2005 SCC 70; Vaughan, supra. These concerns have also been reflected by the common law's willingness to afford measures of protection for whistleblowers in appropriate circumstances: Initial Services Ltd. v. Putternil et al., [1967] 3 All E.R. 145; Fraser v. Public Service Staff Relations Board, [1985] 2 S.C.R. 455; Read v. Canada (Attorney General), [2005] F.C.J. No. 990, 2005 FC 798 (QL).
[59] However, in my view, it does not follow that there is a “whistleblower” exception that transforms the nature of this dispute. As stated by Mr. Justice Binnie at para. 14 of Merk: “[w]histleblower laws create an exception to the usual duty of loyalty owed by employees to their employer.” [Emphasis added.] In other words, the underlying principle is that whistleblower protection is an “exception” to the duties that employees normally owe to their employer, in particular, the duty of loyalty. Employees are, in effect, exempted from their traditional contractual obligations on the public policy that there should be “no confidence as to the disclosure of iniquity”: Gartside v. Outram (1856), 26 L.J. Ch. 113 at 114-116 (per Wood V-C). This public character, however, does not remove whistleblowing from the factual matrix of the employee-employer relationship. Nor does it appear to create an independently actionable or hybrid tort.
[60] Furthermore, to the extent that other case law is relevant, I accept the appellants’ submissions that the courts were the proper place to litigate the employees’ complaints in Pleau, Guenette and Olsen because the alleged “whistleblowers” did not have access to independent, third-party arbitration. The significance of this was explained by Binnie J. in Vaughan, at para. 20:
The courts were understandably reluctant to hold that in such cases [Pleau and Guenette] the employees’ only recourse was to grieve in a procedure internal to the very department they blew the whistle on, with the final decision resting in the hands of the person ultimately responsible for the running of the department under attack, namely the Deputy Minister (or designate). The judges concluded that at some point their complaints should be dealt with by an adjudicator independent of the department but that the [legislation under which the grievances were brought] did not provide for it. In both cases it was pointed out that the “exclusivity” language [of the legislation in question] was weaker than the labour relations provision at issue in Weber. The legislative door had been left open enough for the judiciary to enter.
[61] A similar conclusion was reached more recently by Cromwell J.A. in Adams v. Cusack (2006), 242 N.S.R. (2d) 66, a case that involved an appeal from a Chambers judge’s decision to strike a statement of claim alleging the existence of a whistleblower exception. At para. 69, Mr. Justice Cromwell stated:
The appellant says that he falls within the whistleblower exception outlined in Vaughan. In my view, the whistleblower cases simply provide examples of situations in which a grievance process internal to management does not provide effective redress. As Binnie, J. put it in Vaughan, the courts are understandably reluctant to say that the whistleblowers ". . . only recourse [is] to grieve in a procedure internal to the very department they blew the whistle on, with the final decision resting in the hands of the person ultimately responsible for the running of the department under attack . . .": para. 20. As in my view the appellant had access to processes that were independent of management to address the substance of his complaints, the whistleblower exception does not apply to him even if he was a whistleblower.
[Emphasis added.]
[62] Like Mr. Justice Cromwell, I do not view Mr. Ferreira’s claim as falling within the circumstances outlined in Vaughan. Therefore, in spite of the important concerns his whistleblowing claim raises, the nature of Mr. Ferreira’s dispute still falls within the employment relationship. Thus characterized, the remaining question is whether his claims are within the ambit of the collective agreement.
The ambit of the collective agreement
[63] The next question, and I think the more difficult one, is whether this dispute, as characterized, involves a difference that arises under the collective agreement. As accepted by both parties, there is no specific provision in the collective agreement that mentions “whistleblowing” or a clause that states that the employer shall provide its employees with a harassment-free work environment. Therefore, what remains is whether such a clause or circumstance is implied in or contemplated by the collective agreement.
[64] The collective agreement is the core representation of the bargain struck between the employees and employer; as such, it defines both the extent and the limits of the arbitrator’s jurisdiction. Generally, evaluating these limits is an easy task, as its ambit is apparent from the express terms of the collective agreement. As McLachlin J. said in Weber, at para. 52:
In the majority of cases the nature of the dispute will be clear, either it had to do with the collective agreement or it did not. Some cases, however, may be less than obvious. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.
[65] As this passage suggests, there are other occasions, such as the case at bar, when the collective agreement is effectively silent with respect to the dispute. But this silence does not put an end to the matter. As emphasized by McLachlin J. in Weber (at paras. 53-54) the scope of a collective agreement cannot be determined by simple reference to categories of disputes found on its face:
Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator.
. . .
. . . Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts
[Citations omitted; emphasis added.]
[66] Indeed, courts in other decisions have acknowledged that a dispute may fall implicitly within the collective agreement and, therefore, the jurisdiction of the arbitrator. As stated by Bastarache J. in Regina Police Assn. Inc. v. Regina (City) Police Commissioners, [2000] 1 S.C.R. 350, at para. 35:
. . . an arbitrator may seize jurisdiction of a dispute even when the factual context of that dispute extends beyond what was expressly provided for in the collective agreement, to include what is inferentially provided. It is whether the subject matter of the dispute expressly or inferentially is governed by the collective agreement that is determinative.
[67] In my view, an evaluation of the collective agreement demonstrates that this dispute fell inferentially within its ambit. In particular, I agree with the City of Richmond and the individual appellants that the alleged harassment of Mr. Ferreira at the workplace, if proved, would constitute a human rights violation. As discussed above, it is common ground that Parry Sound has made it clear that human rights legislation is inferentially incorporated into every collective agreement in this Province. This is particularly true where, as with the Human Rights Code, the norm is compatible and supplements fundamental legislative protections: Isidore Garon Ltee v. Syndicat du bois ouvre de la region de Quebec Inc., [2006] 1 S.C.R. 27.
[68] As I read the statement of claim, Mr. Ferreira alleges a pattern of conduct directed toward him which utilized racial and homophobic epithets to marginalize and demean him. The Chambers judge agreed that this was so, but said that “while some of the complaints made by Mr. Ferreira may be within the Human Rights Code, not all of the complaints are covered by the Human Rights Code”.
[69] In my estimation, it does not matter that every instance of abuse did not include a reference to Mr. Ferreira’s ethnicity or sexuality, since such statements were part and parcel of the whole of the harassment. All of the conduct directed toward Mr. Ferreira could be dealt with as a human rights violation and cannot be parsed in the manner suggested by the Chambers judge. To parse the conduct in this manner might have the effect of striking at the heart of the exclusive arbitration by permitting concurrent or overlapping fields of jurisdiction between courts, the human rights commission and arbitrators when the dispute, fundamentally, arises out of a similar transaction: see Weber, supra at para. 46.
[70] More importantly, however, I cannot agree with the conclusions of the Chambers judge with respect to the relevance of the alleged harasser’s motivations. She said:
The essence of Mr. Ferreira’s complaints is not that he was discriminated against based on his race, his sexual orientation or his place of origin. Rather, he says that these epithets were used to harass him because he was a “whistle blower”, that he raised issues of inappropriate conduct by other City employees and as a result was harassed by them. Therefore an arbitrator could not cover the full scope of the claim by reference to the Human Rights Code.
[71] With respect, this analysis, though no doubt animated by genuine concern over whistleblowing, does not accord with the decision of this court in School District No. 44 (North Vancouver) v. Jubran (2005), 39 B.C.L.R. (4th) 153, 2005 BCCA 201. There, Jubran, the complainant high school student, was the subject of a series of homophobic taunts and physical assaults by fellow students. He did not identify himself as gay and the students taunting him claimed that they did not believe he was gay. Jubran relied upon s. 8 of the Human Rights Code, which provided:
8(1) A person must not, without a bona fide and reasonable justification,
. . .
(b) discriminate against a person or class of persons . . . because of the race, colour, ancestry, place of origin, religion, marital status, family status, physical or mental disability, sex or sexual orientation of that person or class of persons.
[72] The question, accordingly, was whether Jubran had standing to seek a remedy under the Human Rights Code against the School Board for allegedly permitting the abuse, despite the fact the perpetrators were not motivated by the complainant’s personal qualities or characteristics. In reversing the decision of the Chambers judge to deny Jubran standing, Levine J.A. (for the majority) (at para. 55) said this:
For all of the above reasons, I am of the opinion that the interpretation placed by the Chambers judge on s. 8 of the Code was too narrow. It was inconsistent with the directions of the Supreme Court of Canada that human rights legislation be given a broad interpretation that will advance its purposes and objects and that the "strict grammatical approach" is inappropriate. The words of s. 8, as they apply to discrimination on the ground of sexual orientation, do not require that a person complaining of discrimination identify himself as a homosexual or that his harassers believe that he is homosexual. By focusing on the purposes of the Code and the effects of the harassment on Mr. Jubran's dignity and equality, in addition to the words of s. 8, it is apparent that he had standing to bring a complaint of discrimination under the Code.
[Emphasis added.]
[73] This reasoning applies equally to complaints of harassment based on race, colour, ancestry or place of origin. Thus, the fact that the alleged harassment of Mr. Ferreira was motivated by his “whistleblowing” activity is immaterial to a complaint under the Human Rights Code.
Conclusion
[74] I have concluded that the essential character of Mr. Ferreira’s complaint, while cast in the language of tort and other related causes of action, must be seen as a workplace grievance that falls impliedly under the terms of the collective agreement. For that reason, the Chambers judge erred in failing to find that the Supreme Court did not have jurisdiction to try the matter.
[75] In my view, these conclusions resolve this appeal. There is no need, therefore, to deal with the other grounds raised by the appellants.
[76] I would allow the appeal, set aside the decision of the Chambers judge and strike out the claim for lack of jurisdiction pursuant to Rule 14(6) of the Supreme Court Rules.
Postscript
[77] Since concluding these reasons, I have had an opportunity to read the reasons for judgment of Madam Justice Saunders concurring with the analysis contained herein and providing additional reasons for setting aside the decision of the Chambers judge. I agree with the reasons of Madam Justice Saunders with respect to the additional grounds.
“The Honourable Madam Justice Ryan”
I agree:
“The Honourable Mr. Justice Smith”
Reasons for Judgment of the Honourable Madam Justice Saunders
[78] I have had the benefit of reading the reasons for judgment of Madam Justice Ryan concluding that the issue raised by Mr. Ferreira is an employment matter arising under the collective agreement. I agree for the reasons she has given. There is in my view an additional route to the conclusion that the essential character of the dispute is one under the collective agreement.
[79] The collective agreement includes a management rights clause:
Any rights of management which are not specifically mentioned in this Agreement and are not contrary to its intention shall continue in full force and effect for the duration of this Agreement.
[80] At its heart, Mr. Ferreira’s complaint is about the City’s response to his communications to it, and its failure to restrain the behaviour of co-workers, allegedly causing him depression, anxiety and a panic disorder. In my view, that complaint may be characterized as a complaint about the exercise of management rights and the managerial response to Mr. Ferreira’s communications with the City. An example of such a complaint is the decision of Arbitrator Shime in Toronto Transit Commission and A.T.U. (2004), 132 L.A.C. (4th) 225. Hemmings v. University of Saskatchewan (2002), 216 D.L.R. (4th) 343, 2002 SKCA 96, is another example of a case addressing a similar issue of management’s deficiency in providing a safe work environment, the result being that the appropriate forum for resolution of the dispute was arbitration and not the courts.
[81] It is not sufficient to say simply that a case concerns ‘whistle blowing’ to know the proper forum because that moniker may give rise to a plethora of issues, including freedom of speech, defamation, discipline, dismissal, harassment, and unsafe working environment. Thus while the context of this case may fit within the term ‘whistle blowing’, it is the essence of the case that must be examined to determine whether, at its heart, it is a matter of employment governed by the collective agreement.
[82] Although Mr. Ferreira contends that cases such as Olsen v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 483, 2003 BCCA 209, Guenette v. Canada (Attorney General) (2002), 60 O.R. (3d) 601, 216 D.L.R. (4th ) 410 (C.A.), and Pleau v. Canada (Attorney General) (1999), 181 N.S.R. (2d) 356, 1999 NSCA 159, leave to appeal refused, [2002] 2 S.C.R. v, foreclose the use of arbitration to deal with complaints arising from management’s handling of ‘whistle blowing’, those cases in my view are examples of a court taking jurisdiction where the only other recourse, unlike in this case, was a process in which the ultimate decision maker was not independent of the employer, see Vaughan v. Canada, [2005] 1 S.C.R. 146, 2005 SCC 11. Further, they do not raise issues of health and safety, as does this case. Here, while the context of the case is an allegation of retaliation for ‘whistle blowing’, the heart of the issue is the allegation of harm through inappropriate behaviour of supervisors and other employees in a situation in which the collective agreement provides for resolution by independent third party arbitration.
[83] That this is essentially an issue of the application of the collective agreement is apparent from the pleadings. Mr. Ferreira framed the action as one for negligent supervision, breach of fiduciary duty and breach of contract. The characterization of the complaint as one of negligent supervision directs the enquiry to management’s exercise of its rights in response to his communications. The same pleading also directs the enquiry to management’s obligation to foster a safe work environment, as well as the issues under the Human Rights Code discussed by Madam Justice Ryan. The allegation of breach of fiduciary duty, less obviously connected to the collective agreement, again focuses upon management’s obligation in response to his complaint to the City concerning the behaviour of his co-workers. As such it is a novel characterization of what is essentially an employment based dispute engaging the terms of employment. Last, the allegation of breach of contract engages the collective agreement because the terms and conditions of Mr. Ferreira’s employment contract are set out in the collective agreement. Just as the certificate of bargaining authority granted in favour of the Union disentitles the City from negotiating individual terms of employment with Mr. Ferreira, so too the role of the Union prevents Mr. Ferreira from suing for breach of a term of his employment contract.
[84] For these additional reasons, I agree that the claim should be struck for lack of jurisdiction.
“The Honourable Madam Justice Saunders”
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