CITATION: Thompson v. Kolotinsky, 2023 ONSC 1588
DIVISIONAL COURT FILE NO.: DC-22-2727
DATE: 20230315
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
(Firestone RSJ, Lederer, Morgan, JJ)
BETWEEN:
SCOTT THOMPSON
Plaintiff/Respondent
– and –
STEPHEN KOLOTINSKY
Defendant/Appellant
Kurt Pearson and Sarah Naughton, for the Plaintiff/Respondent
David Aaron, for the Defendant/Appellant
HEARD BY VIDEO: December 1, 2022
Lederer, J.
Introduction
[1] This action was commenced by a statement of claim dated July 13, 2021. It named only one defendant, Stephen Kolotinsky. A motion was brought by that defendant to dismiss or strike out the Statement of Claim or, in the alternative, to amend it by removing the defendant and naming the Attorney General of Canada as the only defendant. The order as made, continued the action as against Stephen Kolotinsky and added the Attorney General as a defendant. This is an appeal from that order. Leave to appeal to the Divisional Court was granted by order made on July 27, 2022. The appeal is founded on the understanding that the action references a workplace dispute and that, as such, it is barred by the Federal Public Service Labour Relations Act, s.236:
236 (1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.
(2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.
(3)...[^1]
[2] While the Notice of Appeal refers only to the initial defendant, it was apparent from the submissions made that the position taken was in furtherance of the interests of both Stephen Kolotinsky and the Attorney General. The defendant, as he has been throughout, was represented by the Attorney General of Canada, in particular by the Department of Justice, Civil Litigation Section.[^2] The appeal seeks an order setting aside the order of the motion judge and striking out or dismissing the Statement of Claim in its entirety with respect to both Stephen Kolotinsky and the Attorney General of Canada.
Background
[3] Scott Thompson is the plaintiff in the underlying action and the respondent in this appeal. As already noted, Stephen Kolotinsky is the named defendant in the action and the appellant in this appeal. Pursuant to the order being appealed the Attorney General of Canada is also a defendant. Both Scott Thompson and Stephen Kolotinsky were employed by the Correctional Service of Canada, Scott Thompson as the warden of Joyceville Institution, a federal penitentiary and Stephen Kolotinsky as an assistant warden. Scott Thompson was Stephen Kolotinsky’s supervisor. Scott Thompson says that he received complaints that Stephen Kolotinsky had engaged in intimidation and harassment of various staff members. As Scott Thompson saw it, he was required to and began an investigation of the conduct of Stephen Kolotinsky. Scott Thompson alleges that, in response to this investigation, Stephen Kolotinsky made unfounded statements that were untrue and reckless, not just to their employer, but broadly as rumours and gossip. These complaints suggested that Scott Thompson was in a conflict of interest in that he had failed to disclose a personal relationship with a subordinate employee.
[4] As a result, on December 11, 2020, the Correctional Service of Canada began a disciplinary investigation of Scott Thompson.[^3] An amended notice was apparently issued on August 18, 2021 indicating that the report dealing with that investigation “is now to be issued no later than September 30, 2021.”[^4] This is said to have been “at least the ninth time that an extension has been sought by [the Correctional Service of Canada] many of which were delivered after a previously imposed deadline for submission of a written report had passed.”[^5] I should point out that in a letter dated October 13, 2021 (which is to say two months after the notice of August 18, 2021) from counsel for Scott Thompson to the Department of Justice, in its capacity as counsel to Stephen Kolotinsky, referred to a further notice, this one dated September 29, 2021 stating that the written report was further delayed “…now to be submitted no later than October 28, 2021”. In this letter counsel for Scott Thompson complained that the “September 29, 2021 Notice does not recite the fact that the investigation of our client’s conduct was initiated back on December 11, 2020 and that there have been at least 7 separate extension Notices which were delivered after a previously imposed deadline for the submission of the written report had passed.”[^6] Evidently, the recipient of the letter, noted as “Canada Senior Counsel, Department of Justice, Civil Litigation Section, National Litigation Sector”, in a letter dated October 19, 2021 responded to the concern raised with respect to these delays, indicating that they “could not be addressed because the Correctional Service of Canada [was] not his client nor a party to the action.”[^7] The motion judge, in his “Ruling” noted that as of the day of the hearing of the motion, during January 2022, no written report had been received. There is no suggestion that it had been received by the date the judge rendered his decision, being March 18, 2022 or that it has been delivered at any time since then.
[5] In the meantime, over the same period of time, it would seem that no inquiry was made or investigation commenced as to the complaints and allegations concerning the actions of Stephen Kolotinsky, either those that had been brought to the attention of Scott Thompson or his expressed concerns as to the comments he alleges were made by Stephen Kotolinsky that he (Scott Thompson) was in a conflict of interest. During November 2020, Scott Thompson asked that such an inquiry be undertaken. He made this request on six separate occasions (November 6, and 10, 2020; December 11 and 14, 2020; January 6, 2021 and February 23, 2021).[^8] There is no suggestion in the record that any such investigation has been undertaken. If it has, seemingly, it too has not been completed.
[6] Confronted by the absence of any progress towards the resolution of these issues, on May 10, 2021, counsel for Scott Thompson wrote to Stephen Kolotinsky outlining the history, referring to the comments he is alleged to have made, the harm they had caused and advising that in the absence of an apology and a retraction a civil action would be commenced naming Stephen Kolotinsky as the defendant. No response was received.[^9]
[7] Instead on May 20, 2021, Scott Thompson attended a meeting with the Regional Deputy Commissioner of the Correctional Service of Canada responsible for Ontario who, relying on the letter that had been sent to Stephen Kolotinsky, advised Scott Thompson that he was being temporarily reassigned to a special project “reviewing various aspects and components of regional overtime utilization”. At that time Scott Thompson was instructed not to “have contact with employees from Joyceville Institution”:
This direction [was] given in order to ensure the integrity of the investigative processes currently underway at Joyceville Institution is maintained. I believe this action is required at this time, as it has come to my attention that you have served a principal party to the investigation with a letter from your legal counsel. This letter states that you wish this individual to retract claims he has made and are currently under investigation by the employer. Your letter further states that if these claims are not retracted a significant lawsuit will result.[^10]
[8] As it is, on May 21, 2021, Scott Thompson was placed on sick leave where he remained at least until the Ruling made by the motion judge.[^11]
[9] Scott Thompson submits that as a result of the statements made by Stephen Kolotinsky and the actions of those representing the Correctional Service of Canada that followed, he has suffered “significant adverse personal health and employment difficulties”[^12] Scott Thompson says he has “missed significant performance pay and pensionable earnings opportunities and that his family has been negatively affected.”[^13]
[10] On July 13, 2021, this action was commenced by statement of claim, naming only Stephen Kolotinsky as a defendant. The Statement of Claim alleges that through the actions of Stephen Kolotinsky, Scott Thompson has been the subject of a smear campaign made up of statements that were untrue, false and misleading. The statements alleged to have been made by Stephen Kolotinsky were intended to be disseminated, not just to those to he reported to, but to the entire Correctional Service of Canada community. They were intended to injure, discredit and damage the reputation and character of Scott Thompson. It is said that as a result, his professional opportunities may have been compromised and his relationship with his professional colleagues put at risk.[^14] The Statement of Claim seeks damages valued at $800,000.[^15]
Issues
[11] As described by the motion judge there was a series of three issues, each one an alternative to the issue or issues that preceded it:
Should the Statement of Claim be dismissed pursuant to rule 21.01(3)(a) on the grounds that the claim is barred by s. 236 of the Federal Public Service Labour Relations Act and that, accordingly, the court has no jurisdiction to consider it?
In the alternative, should the Statement of Claim be struck pursuant to rule 21.01(1)(b) because it is plain and obvious that the causes of action pleaded have no reasonable prospect of success?
And in the further alternative, whether the Attorney General of Canada is the proper defendant?[^16]
Standard of Review
[12] This is an appeal. By now, it is well known and accepted that the standard of review on an appeal is set by Housen v. Nikolaisen.[^17] For questions of law the standard of review is correctness. For findings of fact, the standard of review is of a palpable and overriding error. And for issues of mixed fact and law the standard of review falls on a spectrum between the two depending on the circumstances. Where the case depends on the particular circumstances the standard of review will tend to the palpable and overriding error end of the spectrum. Where the decision reaches beyond the particular case such that it will have a further and broader impact, the standard of review will tend towards the correctness end of the spectrum.[^18]
[13] The central question is whether the court has jurisdiction to proceed with the action that has been commenced, in particular whether, given s. 236 of the Federal Public Service Labour Relations, the court maintains any jurisdiction to continue. This is a question of law. To the extent that it could be argued to be a question of mixed fact and law it has precedential value and the standard of review would be correctness.
Analysis
[14] Does section 236 of the Federal Public Service Labour Relations Act bar the action in this case? The motion judge found that it does not. But on what basis?
[15] There can be little question but that on a simple reading of s. 236(1) and (2) the court’s jurisdiction to deal with workplace disputes is withdrawn and barred whether or not an aggrieved party exercised his or her right to grieve.[^19] The impact of this is made clear in the case of Bron v. Canada (Attorney General).[^20] It bears a considerable similarity to this one. The appellant was the acting chief of Marine Regulatory Projects within Transport Canada. As such, he received complaints of unethical and inappropriate management practices by a director within the section for which he was responsible. He approached the individual involved and, thereafter, became the target of retaliatory measures undertaken by that person (the respondent on the appeal). The appellant left Transport Canada, he said because the respondent’s retaliatory action had poisoned the workplace against him. As he withdrew, the appellant left behind an unsolicited report which included among other concerns “numerous allegations of managerial incompetence and misconduct involving the respondents”.[^21] Further retaliatory steps were taken against him. He commenced an action claiming “…significant emotional, physical and mental distress as a result of his treatment in the workplace at Transport Canada.”[^22] As in this case, the respondents moved under rule 21.01(3)(a) for an order striking out the Statement of Claim on the basis that the Superior Court had no jurisdiction to entertain the action. The motion judge agreed. The Court of Appeal dismissed the appeal. In doing so it adopted the observation found in Vaughan v. Canada[^23] that the terms and conditions of those employed in the federal civil service are governed by a comprehensive scheme that includes statutes, regulations, collective agreements and other governmental directives.[^24] It held that s. 208 of the Federal Public Service Labour Relations Act provided employees with a very broad right to grieve.[^25] The Court of Appeal recognized that “[t]he grievance process is internal. Management personnel determine the merits of the grievance”.[^26] From this foundation the court dismissed the appeal and accepted the holding of the motion judge that “...the grievance procedures set out in the applicable statutes and collective agreements provided the only forum in which the appellant could seek relief for mistreatment he allegedly suffered at the hands of his supervisors and employer.... The allegations advanced by the appellant in support of his claims in the Superior Court were all matters that he could have grieved under the grievance procedures set out in the statutes and the collective agreements.”[^27] The Court of Appeal determined that the door was firmly shut on the court taking up a case in the presence of an applicable grievance procedure.
[16] The Court of Appeal considered whether the inherent jurisdiction of the court could play a role in allowing it to move forward with an action in the face of an applicable grievance procedure. This spoke to the reliance, by the appellant, on Brotherhood of Maintenance of Way Employees Canadian Pacific System federation v. Canadian Pacific Ltd.[^28] where the following is said:
The employer further argues that the dispute resolution mechanism provided by the Code is exclusive, and bars any other remedies. The court, it says, disregarded the comprehensive contractual and statutory scheme designed to govern all aspects of the relationship of the parties in a labour dispute. The difficulty with this argument lies in the assumption that the Code covers all aspects of any labour dispute. In this case, the fact is that the Code did not cover all aspects of the dispute. No matter how comprehensive a statutory scheme for the regulation of disputes may be, the possibility always remains that events will produce a difficulty which the scheme has not foreseen. It is important in these circumstances that there be a tribunal capable of resolving the matter, if a legal, rather than extra-legal, solution is to be found. It is precisely for this reason that the common law developed the notion of courts of inherent jurisdiction. If the rule of law is not to be reduced to a patchwork, sometime thing, there must be a body to which disputants may turn where statutes and statutory schemes offer no relief.[^29]
[17] As understood by the Court of Appeal in Bron, this paragraph “stands for the proposition that a superior court has inherent jurisdiction to provide a remedy where the relevant statutory scheme does not speak to the circumstances at hand. In other words, the court’s inherent jurisdiction can fill a remedial lacunae in the legislation. There is no legislative gap here. Section 236 speaks directly to workplace complaints that are grievable under the legislation. For those complaints, even when there is no access to third-party adjudication, the grievance procedure operates ‘in lieu of any right of action’. Like the motion judge [the Court of Appeal] was satisfied that s. 236 of the [Federal Public Service Labour Relations Act] explicitly ousts the jurisdiction of the court over claims that could be the subject of a grievance under s. 208 of that Act.”[^30]
[18] In Bron the court did observe that in Vaughan the Supreme Court of Canada had recognized a residual discretion to entertain an action based on a grievable complaint but went on to note that this determination relied on legislation which had been displaced. The Court of Appeal determined that the change in legislation had an impact such that the court “no longer has any residual discretion to entertain a claim that is otherwise grievable under the legislation on the basis of an employee’s inability to access third-party adjudication.”[^31] It was only where the grievance process could not provide an appropriate remedy that a residual discretion “may exist”.^32 It was only this small and speculative shard of light that remained as a circumstance where resort to the courts might still be available
[19] Despite these findings the motion judge rejected Bron v. Canada (Attorney General) preferring instead the decision in Thomson v. Canada (Attorney General).[^33] The plaintiff, Ian Thomson was a Canadian consular employee stationed in Dubai. Unlike all of the other Canadians serving in Dubai he was required to pay for the maintenance of the swimming pool associated with his residence in Dubai. His request for reimbursement was denied. Ian Thomson sued Her Majesty the Queen, in Small Claims Court seeking $2,653.56 as reimbursement. As was required as a condition of occupancy of Crown-held accommodation, Ian Thomas had signed an Occupancy Agreement that, by its terms, required that he, as the employee, pay the costs of maintaining the pool and further required that where the employee disagreed with the employer as to the interpretation of any rights under the agreement “a grievance may be presented in accordance with the National Joint Council Redress Procedure”. In its Statement of Defence, the government took the position that sections 206, 208 and 236 of the Public Service Labour Relations Act required the parties to the dispute to pursue grievance procedures, rather than litigation. Ian Thomson had not commenced a grievance. He had requested reimbursement and, with it asked that if it was refused, he be advised of what further steps he should take. He was not so advised. At the appeal, counsel for the Crown acknowledged that the provisions regarding grievances for managerial employees, who are not members of any bargaining unit, were very confusing.[^34] As it transpired the National Joint Council Redress Procedure was not available to Ian Thomson because he was not a member of a bargaining unit.^35 The Occupancy Agreement was silent as to the grievance procedure to be followed by managerial employees.^36 The judge on the appeal determined that the legal doctrine that allowed the Superior Court to assume jurisdiction was estoppel.[^37] As the judge understood it the Crown was estopped from relying on s. 236 of the Public Service Labour Relations Act to challenge the court’s jurisdiction because it had not met its own obligations under the legislation to provide Ian Thomson with the information necessary to file a grievance. The judge saw this as an example of what had been recognized by the Court of Appeal in Bron, where it left open the possibility that in circumstances where the grievance could not provide an appropriate remedy under s. 208 of the Act, the Superior Court retained the jurisdiction to provide a remedy.[^38]
[20] As I see it, this is not a circumstance where estoppel can apply. Estoppel is an equitable doctrine. It applies in situations where, as a result of its own actions, a party is foreclosed from relying on a new or different premise that would otherwise have been available. This applied, albeit narrowly, in Thomson. In that case through the actions and advice of government officials Ian Thomson understood that he had followed what he had been told was the appropriate path in making his claim. It was only after he began the Small Claims Court proceeding that he was told that he had proceeded down the wrong path, that there was a grievance process in place, that he had failed to act on it and that an action in court was not available to him. As a result of having been misled by the responsible government officials, in concert with the passage of time, by the time he began his court action, Ian Thomson was no longer employed by the Crown and the grievance process, on which the government relied, was no longer open to him. Thus, as foreseen in Bron the grievance process could not, at that time, provide an “appropriate remedy”.
[21] The judge in Thomson understood the narrow nature of the understanding on which she relied:
Mr. Thomson was not afforded the benefit of the grievance procedure as out in the PSLRA and accompanying Regulations and, once he retired in January 2009, that grievance procedure was no longer available to him. As the Deputy Judge correctly concluded, without access to the Superior Court of Justice, Mr. Thomson would be left with no avenue to seek redress. These are unique circumstances – not contemplated by the PSLRA. That takes us back to the Ontario Court of Appeal’s decision in Bron. As noted above, the Ontario Court of Appeal left open the possibility that, in circumstances where the grievance procedure could not provide an appropriate remedy under s. 208 of the PSLRA, the Superior Court retains jurisdiction to provide a remedy. I conclude that this is one of those rare cases.^39
[22] It is this reasoning that the motion judge, in this case, adopted and applied to find that the court maintained jurisdiction and that the Attorney General should be added as a defendant. As I see it there is reason to question the reliance on the doctrine of estoppel in Thomson but, in any event, the rationale behind its application in that case cannot be made to apply to this one. In times past, as an equitable doctrine estoppel was limited in its use. It was commonly held that it could be used as a shield to defend against allegations made but not as a sword to advance a cause of action. As matters stand today the jurisprudence is less certain, the distinction less clear. However, in this case the doctrine is being used to step around the statutory imperative described in Bron. Section 236(1) makes it plain that the presence of a grievance process, where there is a workplace dispute, ousts the jurisdiction of the court. Section 236(2) clarifies that a failure to use the grievance process does not leave the court’s jurisdiction intact; it is still barred. In Thomson, it could be argued that the loss of resort to the grievance process, as a result of Ian Thomson leaving the employ of the Crown does not occasion the return of the court’s jurisdiction. He could have commenced a grievance but had not done so.
[23] In Hudson v. Canada[^40] two former employees of Correctional Service of Canada launched a lawsuit claiming they had been harassed and discriminated against in the course of their employment. They sought to have the action certified as a class action which was opposed, and a motion brought to strike the Statement of Claim on the basis that the court was without jurisdiction in the face of the available grievance process. In describing the grievance procedure, the court noted:
Grievance and harassment complaints are usually initiated at the local level, by an employee bringing a grievance or complaint to their immediate supervisor or manager. The right to file a grievance is extended to both unionized and non-unionized employees. Former employees may grieve any issue that arose during the course of their employment.[^41]
[Emphasis added]
[24] The fact remains that a grievance procedure was available and not made use of. Reliance on estoppel was used as a sword to give Ian Thomson a cause of action he would not otherwise have had. As such it was used by the court to void the impact of s. 236 of the Public Service Labour Relations Act. The court was not made aware of any other case where the doctrine of estoppel was used in this way, for this purpose:
Public law estoppel clearly requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped. The legislation is paramount. Circumstances that might otherwise create an estoppel may have to yield to an overriding public interest expressed in the legislative text. As stated in St. Ann’s Island Shooting and Fishing Club Ltd. v. The King, 1950 28 (SCC), [1950] S.C.R. 211, per Rand J., at p. 220: “there can be no estoppel in the face of an express provision of a statute” (emphasis added).[^42]
[Emphasis by italics added]
[25] In this case no submissions were made suggesting that the grievance procedure was not available or at any time ceased to be available to Scott Thompson. No time limit for the commencement of a grievance was put to the court by counsel. I point out that regulation SOR/2005-79 promulgated under the authority of the Public Service Labour Relations Act within “Part 2: Grievances”, under the heading “Individual Grievances” and the subheading “Deadline for presentation of grievance at first level” at s. 68(1) notes:
A grievor may present an individual grievance at the first level of the individual grievance process no later than 35 days after the earlier of the day on which the grievor received notification and the day on which the grievor had knowledge of the alleged violation or misinterpretation or any occurrence or matter affecting the grievor’s terms and conditions of employment.
[26] The substance of what constitutes presentation of a grievance is found at s. 68(3):
An individual grievance is deemed to have been presented within the time referred to in subsection (1) or (2) if, within that time, it is sent by courier or delivered to the grievor’s immediate supervisor or local officer-in-charge identified under subsection 65(1).
[27] And to whom a grievance is to be delivered is found at s 65(1):
An employer must notify, in accordance with subsection (2), each of its employees of the names or titles of the persons whose decision on a grievance constitutes a level in the individual grievance process and the name or title, as well as the contact information, of the employee’s immediate supervisor or local officer-in-charge to whom an individual grievance may be presented.
[28] In the circumstances, without these matters having been reviewed by counsel or referred to in the record, it is not possible to know when Scott Thompson should have been able to identify the substance of any grievance such that it could be presented. This is especially so when one considers that the written report as to the investigation of his conduct has yet to be presented. It is also possible that under closer examination, the concerns raised by Scott Thompson with those to whom he reported may constitute the presentation of a grievance at the first level, a grievance that has not yet been dealt with.
[29] Whether or not any potential grievance is out of time, I point out that, if it arises through regulation SOR/2005-79, it can be extended. Section 61 (Extension of Time) states:
61 Despite anything in this Part, the time prescribed by this Part or provided for in a grievance procedure contained in a collective agreement for the doing of any act, the presentation of a grievance at any level of the grievance process, the referral of a grievance to adjudication or the providing or filing of any notice, reply or document may be extended, either before or after the expiry of that time,
(a) by agreement between the parties; or
(b) in the interest of fairness, on the application of a party, by the Board or an adjudicator, as the case may be.
[Emphasis added]
[30] In the circumstances of this case the doctrine of estoppel cannot be relied on as a means by which to step past the clear direction provided by the legislation and recognize any jurisdiction in the court to deal with any workplace concern Scott Thompson may have with how he was treated by his employer, the Correctional Service of Canada. It should be observed that the Statement of Claim makes no mention of a cause of action against, and seeks no remedy from, the Crown. The motion judge observed:
[Scott Thompson] is not suggesting that the CSC or the Ministry of the Attorney General is responsible for Mr. Kolotinky’s actions or the damages which Mr. Thompson has suffered as a result of Mr. Kolotinsky’s conduct and actions.[^43]
[31] As it is, I find that the court is without jurisdiction to respond to this action insofar as it considers the actions of the Crown and its agents in its (or their) capacity as the employer of Scott Thompson.
[32] I turn now to the second issue which concerns the role of Stephen Kolotinsky and the ruling made by the motion judge allowing the action as against him to proceed. The question comes down to this, to the extent that the dispute between Scott Thompson is a workplace dispute, it is subject to s. 236 of the Public Service Labour Relations Act, the grievance procedure put in place through that Act and the Regulations promulgated under its authority and for the same reasons the action against the Crown as the employer could not succeed, so an action against Stephen Kolotinsky could not succeed. But is the action against Stephen Kolotinsky brought with respect to a workplace dispute or were the comments he made and the action he took removed from that arena.
[33] The motion judge was clear in his understanding of this question:
The statement of claim in this matter primarily involves a workplace and the issues that arise from there relate primarily to the workplace. The court rejects the plaintiff’s argument that this falls completely outside of the workplace. The court finds that, based on a review of the statement of claim, this is primarily a workplace-related issue.[^44]
[34] But the motion judge did not see this as absolute or comprehensive:
At the same time, the Court finds that some portion of the statement of claim may relate to Mr. Kolotinsky personally outside of the workplace.^45
[35] And from this acknowledgment the motion judge concluded:
The court finds that there’s not enough evidence based on what was before it, one way or another, to make such a determination at this stage. Therefore, in order to ensure that the plaintiff does not lose out on any potential rights of action based on the statement of claim, the court will allow the claim to continue against Mr. Kolotinsky as well.^46
[36] Based on the findings as determined by the motion judge, this conclusion would serve to have all of the claims being asserted by Scott Thompson, those directed at the Attorney General and those made against Stephen Kolotinsky, dealt with in one proceeding, being an action before the Superior Court. Understood from the perspective of the finding made in these reasons, in particular the determination that the court is without jurisdiction to hear the claims made against the Attorney-General, to find as the motion judge did that some part of the action against Stephen Kolotinsky can continue supposes that to resolve all the issues being raised would require two separate proceedings, a grievance and an action. This is not what was intended by legislating the removal of the court’s jurisdiction to deal with workplace disputes. This possibility necessitates some further consideration of the Ruling made by the motion judge.
[37] The breadth of the jurisdiction given over to the grievance process is broad. As already noted, it extends to any grievance that arises “as a result of any occurrence or matter affecting his or her terms and conditions of employment”:[^47]
• In Bron the Court of Appeal, relating the breadth of that jurisdiction to s.208 of the Public Service Labour Relations Act noted: “Almost all employment-related disputes can be grieved under s. 208 of the PSLRA...”[^48]
• In Vaughan v. Canadathe Supreme Court of Canada said the same thing: “Almost any workplace issue can be grieved...”[^49]
• In Ebadi v. Canada[^50] the court quotes from Nosistel v. Canada (Attorney General):[^51] “The case law teaches that the range of conflicts related to ‘conditions of employment’ that may be subject to the grievance process set out in section 208 of the PSLRA is vast.”[^52]
[38] It is clear that within the breadth of the claims that are included as occurrences that may affect the terms and conditions of employment, is harassment of the sort Scott Thompson alleges he suffered as a result of the statements made and the actions taken by Stephen Kolotinsky:
• In Ebadi v. Canada the court quotes from Nosistel v. Canada (Attorney General):“Thus, the Court of Appeal of Quebec found that the notion of grievance is very broad and includes any matter that the employee feels causes harm or damage to his or her conditions of employment or work, including, but not limited to, disputes related to harassment, threats, intimidation or harm to reputation.”[^53]
And
“In short, it is established that the internal grievance process applies to any circumstance or issue that affects the terms or “conditions” of employment, and that this may include cases of discrimination, bad faith or harassment based on labour relations.”[^54]
• In Hudson v. Canada: “Allegations of gender-based harassment, discrimination, and even assault may be grieved under s 208 of the FPSLRA.”[^55]
And
Jane Doe v. Canada (Attorney General)[^56] “... concerned a grievance brought by an employee of the Canada Border Services Agency who alleged that her employer had failed to provide her with a harassment-free workplace. The employee claimed she had endured prolonged sexual harassment, including an admitted sexual assault by a co-worker. The Board upheld the grievance...”[^57]
And
“Provincial superior courts have also recognized that sexual or gender-based harassment and discrimination are grievable, and have generally declined to exercise any residual jurisdiction they may have in favour of the applicable labour relations scheme.”[^58]
• In Bron v. Canada (Attorney General): “In July 2006, the appellant filed a harassment grievance, alleging that he had been improperly ordered to refrain from pursuing the complaints that other employees had made to him. The record is silent as to the result of that grievance.”[^59]
And
“He further contends that at least some of the misconduct and harassment directed at him was in response to his whistle- blowing.”[^60]
• In Vaughan v. Canada: “Subsequent to Weber, a number of actions were started in the provincial superior courts by federal government employees who complained of employer retaliation or harassment by their superiors allegedly arising out of blowing the whistle on government waste or abuse. For various reasons, these complaints were grievable under s. 91...”[^61]
[39] The allegations made against Scott Thompson that he was in a conflict of interest as a result of a relationship (he says friendship) with another employee is no less connected to the terms and conditions of his employment than is harassment, sexual or otherwise, by co-workers. This includes harassment by being ordered to refrain from pursuing the complaints of other employees. The same can be said for gender-based discrimination, misconduct and retaliation in response to whistle blowing and being improperly ordered to refrain from pursuing the complaints of other employees. If those actions are grievable, then so are the allegations made against Scott Thompson. The fact that those complaints are directed at an identified individual and that they were widely disseminated through the workplace does not change that analysis or the inevitable conclusion that the issues raised are of a type that would properly be the subject of a grievance. This being so the court is without jurisdiction to deal with any part of this proceeding and the statement of claim must be struck.
[40] It would appear that the concerns of Scott Thompson have not received appropriate attention. By failing to resolve these issues in a timely manner the problem has been exacerbated. It is hoped that, given the circumstances of this case, a process will be facilitated that will allow this matter to be resolved in a fashion that fairly accounts for the concerns of all involved.
Conclusion
[41] For the reasons given, the appeal is granted and the action is dismissed.
Costs
[42] The defendant was the successful party. Nonetheless, the issues which gave rise to this appeal have been ongoing for in excess of two years. They remain unresolved. In circumstances there will be no order as to costs.
Lederer, J
I agree _______________________________
Firestone, RSJ
I agree _______________________________
Morgan, J
Released: March 15, 2023
CITATION: Thompson v. Kolotinsky, 2023 ONSC 1588
DIVISIONAL COURT FILE NO.: DC-22-2727
DATE: 20230315
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Firestone RSJ, Lederer, Morgan, JJ
BETWEEN:
SCOTT THOMPSON
Plaintiff/Respondent
– and –
STEPHEN KOLOTINSKY
Defendant/Appellant
REASONS FOR JUDGMENT
Lederer, J
Released: March 15, 2023
[^1]: S.C. 2003, c. 22 s. 2
[^2]: Factum of the Appellant, Stephen Kolotinsky title page and p. 17 (Caselines A389 and A406)
[^3]: Affidavit of Scott Thompson, sworn January 10, 2022 at para. 16 and Exhibit A (Caselines A189 an A196)
[^4]: Ibid at para. 17: I say “apparently” because this further notice was not exhibited to the affidavit. (Caselines A189)
[^5]: Ibid at para.18 (Caselines A190)
[^6]: Ibid at para. 19 and Exhibit B (Caselines A190 and A198)
[^7]: Ibid at para. 20: I say “Evidently” because the letter is not an exhibit to the affidavit.
[^8]: Ibid at para. 25 (Caselines A191)
[^9]: Ibid at para. 30 and Exhibit H (Caselines A192 and A290)
[^10]: Ibid at Exhibit I (Caselines A294)
[^11]: Ibid at para. 14 (Caselines A189) repeated at Ruling, Thompson v. Kolotinsky, March 18, 2022 at p. 6 (Caselines A16)
[^12]: Affidavit of Scott Thompson, sworn January 10, 2022 at para. 10 (Caselines A188)
[^13]: Ibid at para. 12 (Caselines A189)
[^14]: Statement of Claim dated July 13, 2021 at paras. 9, 11, 14, 15 and 17 (Caselines A39 and A40)
[^15]: Ibid at para. 1 (Caselines A37)
[^16]: Ruling, Thompson v. Kolotinsky, March 18, 2022 at p. 10 (Caselines A20)
[^17]: 2002 SCC 33, [2002] SCC 33, [2002] 2 SCR 235
[^18]: Ibid at paras. 28 and 36
[^19]: Subsection 236(3) which is noted quoted above provides an exception which has no application in the circumstances of this case. It states:
Subsection (1) does not apply in respect of an employee of a separate agency that has not been designated under subsection 209(3) if the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct.
[^20]: 2010 ONCA 71
[^21]: Ibid at para. 8
[^22]: Ibid at para. 9
[^23]: 2005 SCC 11, [2005] 1SCR 146, [2005] SCJ No. 12
[^24]: Bron v. Canada (Attorney General, supra (fn. 20) at para. 13
[^25]: Section 208(1) of the Federal Public Service Labour Relations Act states:
Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award; or
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.
[Emphasis added]
[^26]: Bron v. Canada (Attorney General, supra (fn. 20) at para. 14
[^27]: Ibid at paras. 3, 4 and 19
[^28]: 1996 215 (SCC), 2 SCR 495, [1996] SCJ No. 42
[^29]: Ibid at para. 8
[^30]: Bron v. Canada (Attorney General, supra (fn. 20) at paras. 32 and 33
[^31]: Ibid at para. 29
[^33]: 2012 ONSC 484 (Div Ct.) referred to in Ruling, Thompson v. Kolotinsky, March 18, 2022 at pp. 15 and 16 (Caselines A25 and A26): “The court prefers and follows the reasoning in the Thompson [sic] case as opposed to the cases relied upon by the defendant.”
[^34]: Ibid at para. 42
[^37]: Ibid at paras. 41 and 42
[^38]: Ibid at paras. 43
[^40]: 2022 FC 694
[^41]: Ibid at para. 43
[^42]: Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 SCR 281 at para. 47 See also The King v. Dominion of Canada Postage Stamp Vending Co., 1930 87 (SCC), [1930] S.C.R. 500.
[^43]: Ruling, Thompson v. Kolotinsky, March 18, 2022 at p. 8 (Caselines A18):
[^44]: Ibid at p. 19 (Caselines A29)
[^47]: Federal Public Service Labour Relations Act, supra (fn. 1) at s. 208(1) which appears in full at fn. 25 herein
[^48]: Bron v. Canada (Attorney General), supra (fn. 20) at para. 15
[^49]: Vaughan v. Canada, supra (fn. 23) at para. 1
[^50]: 2022 FC 834,
[^51]: 2018 FC 618,
[^52]: Ebadi, supra (fn. 50) at para.39 quoting Nosistel, supra (fn. 51) at para. 66
[^53]: Ibid referencing (Cyr v Radermaker, 2010 QCCA 389 at para 20; Barber v JT, 2016 QCCA 1194 at para 38 and Goulet v Mondoux, 2010 QCCA 468 at para 6)
[^54]: Ibid quoting Nosistel at para. 67 referencing (Green v Canada (Border Services Agency), 2018 FC 414 at paras 11–16 and Gagnon v Canada (Attorney General), 2017 FC 373 at para 16)
[^55]: Supra (fn. 40) at para. 103
[^56]: 2018 FCA 183
[^57]: Hudson v. Canada, supra (fn. 40) at para. 103
[^58]: Ibid at para. 104 referencing as examples: A(K) v Ottawa (City) (2006), 2006 15128 (ON CA), 80 OR (3d) 161; Greenlaw v Scott, 2020 ONSC 2028).
[^59]: Bron v. Canada (Attorney General), supra (fn. 20) at para. 7
[^60]: Ibid at para. 10
[^61]: Vaughan v. Canada, supra (fn. 23) at para. 18