Court File and Parties
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Bobby Bala, Appellant (Plaintiff)
AND
Amy Vanrivong, Respondent (Defendant)
BEFORE: The Honourable Mr. Justice Marc Smith
COUNSEL: Self-represented Appellant (Plaintiff)
Yamen Fadel, Counsel for the Respondent (Defendant)
HEARD: July 9, 2025
REASONS FOR DECISION
M. SMITH J
OVERVIEW
1The Appellant served as a Parole Officer with Correctional Service of Canada (“CSC”) as well as another department within the federal public service. At all material times, the Appellant was employed as a Parole Officer with the Ottawa Parole Office (“OPO”).
2The Respondent was first employed as a Case Management Assistant at the OPO and then as a Security Intelligence Analyst at National Headquarters (“NHQ”).
3The parties had a conversation in the lobby of the NHQ. Shortly after this conversation, the Respondent had an online conversation with other federal public servants to provide them with details of her conversation with the Appellant.
4The Appellant alleges that she was subsequently notified by her manager that the Respondent claimed that the Appellant had made negative comments about her manager and co-workers.
5The Appellant started the underlying Small Claims Court action on March 17, 2020, alleging defamation against the Respondent.
6The Respondent brought a motion to strike the Appellant’s claim pursuant to r. 12.02(1) of the Small Claims Court Rules, O. Reg. 258/98, on the basis that the Small Claims Court does not have jurisdiction to hear the matter because the jurisdiction lies exclusively with the grievance procedures under s. 236 of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22 (the “Act”), and the collective agreements which govern the parties. Deputy Judge Iturregui granted the Respondent’s motion to strike the claim finding that the Act is clear in that the right to grieve is in lieu of the right to bring an action.
7The Appellant sought leave to introduce fresh evidence.
8For reasons that follow, the Appellant’s motion to admit fresh evidence and the appeal are dismissed.
MOTION TO ADMIT FRESH EVIDENCE
9The Appellant brings a motion to introduce fresh evidence. The evidence relates to the following categories of documents that were not before the Small Claims Court:
i. Various written submissions made by the Appellant;
ii. Doctor’s notes and reference letters dated 2022;
iii. Facebook chat transcript and annotated Facebook transcript;
iv. Email correspondence between the Appellant and the Respondent counsel;
v. Privileged settlement offers made by the Respondent to the Appellant;
vi. Emails between the Appellant and her union; and
vii. Affidavit of the Appellant dated September 9, 2024.
10The test for fresh evidence on appeal requires the court to consider four factors: (i) whether the fresh evidence could not have, by the exercise of due diligence, been available at trial; (ii) whether the fresh evidence is relevant in that it bears upon a decisive or potentially decisive issue; (iii) whether the fresh evidence is credible in the sense that it is reasonably capable of belief; and (iv) whether the fresh evidence, if believed, is such that it could reasonably, when taken with the other evidence adduced at trial, have affected the result: Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775; R. v. Ameyaw, 2025 ONCA 673, at para. 7.
11I am not persuaded that the fresh evidence could not have, by the exercise of due diligence, been available at trial. There are no compelling reasons why the documents proposed to be introduced by the Appellant as fresh evidence could not have been produced at trial.
12Much of the fresh evidence is not relevant as it does not deal with the issue of jurisdiction, which was the basis of the motion to strike the claim. Most documents filed in the Appeal Book, such as the various written submissions made by the Appellant, her annotations to the Facebook transcript, email correspondence between the parties, and the privileged settlement communications are inadmissible as they are not evidence.
13Other documents such as the doctor’s notes, reference letters, and other email communication may have been relevant on the hearing of the defamation claim, but they are not relevant on the question of jurisdiction.
14The only fresh evidence that could possibly be admissible is the Appellant’s affidavit dated September 9, 2024, where she alleges that she never filed a grievance against the Respondent because her union advised her that it was a civil matter. However, this evidence is contrary to the submissions and evidence that the Appellant brought before Deputy Judge Iturregui, namely that the Appellant had grieved the facts underlying her claim against the Respondent and that her grievance was determined to be unfounded. Furthermore, I am not in a position to determine if this proposed evidence is credible.
15Even if the Appellant’s affidavit dated September 9, 2024, is possibly admissible, which is questionable because it could have been produced at trial, I am of the view that it would not have affected the result of the motion to strike the claim. Section 236 of the Act operates irrespective of whether the Appellant grieved the facts underlying her claims against the Respondent. In Thompson v. Kolotinsky, 2023 ONSC 1588, at para. 22, the court noted that s. 236(2) of the Act clarifies that a failure to use the grievance process does not leave the court’s jurisdiction intact and any claim is still barred.
16In sum, the Appellant has failed to meet the test for fresh evidence on appeal. The Appellant’s motion is denied.
APPEAL
17The Appellant raises the following grounds of appeal:
i. Incorrect representation of grievance filing: the Appellant did not file a grievance or harassment against the Respondent;
ii. Erroneous conclusion regarding grievance outcome: Deputy Judge Iturregui incorrectly concluded that the Appellant filed a grievance;
iii. Misrepresentation of employment status: Deputy Judge Iturregui erroneously portrayed the Appellant's employment status as employed. The Appellant was retired;
iv. Misrepresentation of resolution: Deputy Judge Iturregui wrongfully assumed that the internal grievance procedures resolved the issue between the Appellant and the Respondent;
v. Legal representation errors: the Appellant's legal representative filed a responding motion record that contained significant errors, including the false claim that the Appellant had filed and lost a grievance against the Respondent;
vi. Failure to consider the Appellant's input during the hearing: Deputy Judge Iturregui relied upon inaccurate information and failed to consider the Appellant's submissions during the hearing;
vii. Improper introduction of contesting grievance: Deputy Judge Iturregui improperly considered a workplace investigation report which is currently under contest through the grievance process; and
viii. Mischaracterization of the claims: Deputy Judge Iturregui misrepresented the Appellant's decision to file a civil claim as a failure to follow the grievance procedures. The union recommended to the Appellant that she pursue the matter through the Small Claims Court.
STANDARD OF REVIEW
18The standard of review is set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
19On a question of law, the standard of review is correctness. An appellate court is free to replace the opinion of the trial judge with its own: Housen, at para. 8.
20On a question of fact, the standard of review is palpable and overriding error. A palpable error means an error that is plainly seen. Where the issue involves the application of the law to the facts as found, and there is an extricable error in law, the finding is subject to the standard of correctness: Housen, at paras. 10-11, 36-37.
21Questions of mixed fact and law involve applying a legal standard to a set of facts. The standard of review lies upon a spectrum: Housen, at paras. 26 and 36.
ANALYSIS
22Having considered the grounds of appeal, I am of the view that they can be dealt with in two categories: (i) factual and legal errors; and (ii) ineffective assistance of the legal representative.
Factual and legal errors
23The Appellant argues that Deputy Judge Iturregui incorrectly concluded that the Appellant made a grievance against the Respondent and that it was deemed to be unfounded. The Appellant submits that no grievance naming the Respondent was ever filed, but rather it was a complaint against the Appellant’s director for failure to accommodate and managerial harassment. In addition, a union representative advised the Appellant that a grievance could not be made against the Respondent because the alleged defamation occurred outside the employment relationship. As such, the union representative encouraged the Appellant to commence the Small Claims Court action.
24The Appellant then argues that Deputy Judge Iturregui erred in concluding that sections 208 and 236 of the Act oust the jurisdiction of the Small Claims Court. It is submitted by the Appellant that defamation is a common law tort that is actionable independently of any collective agreement.
25Based upon the Appellant’s submissions, I surmise that the alleged factual errors relied upon by Deputy Judge Iturregui are the following, as set out in her Reasons for Judgment:
i. According to the Plaintiff, she lodged a complaint against the Defendant in or around March of 2020;
ii. The Plaintiff advised the Court that the initial grievance she made against the Defendant was deemed unfounded in October of 2020 and that her grievance is now closed;
iii. The Plaintiff takes the position that she attempted to seek a remedy using the CSC’s internal grievance resources available to her and that this grievance process was not conducted in a professional and transparent manner;
iv. The Plaintiff submits that she is no longer employed by CSC, and therefore she is no longer able to seek a remedy using the internal grievance procedure;
v. The parties agree that the Plaintiff’s claim against the Defendant was grievable.
26Relying upon the foregoing facts, Deputy Judge Iturregui concluded that the Act is clear in that the right to grieve is in lieu of the right to bring an action.
27In my view, there is no palpable or overriding error. Deputy Judge Iturregui properly relied upon the Appellant’s own evidence filed and presented at the hearing of the motion to strike. I will address later in this decision the Appellant’s other ground of appeal regarding the ineffective assistance of her legal representation.
28Notwithstanding, if I accept the Appellant’s position in this appeal that her own evidence presented at the motion to strike before Deputy Judge Iturregui was wrong or filed in error by her legal representative and I accept the Appellant’s submission that she never filed a grievance against the Respondent, I conclude that it is nonetheless of no consequence.
29First, during the alleged defamation incident, and at all material times, the Appellant was not retired. Rather, she was an employee of the public service and as such, she had grievance rights under s. 208 of the Act.
30If the Appellant retired after the alleged defamation incident, the Federal Court has confirmed that former employees may grieve any issue that arose during the course of their employment: Hudson v. Canada, 2022 FC 694, at para. 43.
31Two, if an employee feels aggrieved because of any occurrence or matter affecting his or her terms and conditions of employment, s. 208(1)(b) of the Act provides that the employee is entitled to present an individual grievance.
32Conflicts related to an employee’s terms and conditions of employment have been found to include allegations of defamation, such as those alleged in the Appellant’s Small Claims Court action: Bron v. Canada (Attorney General), 2010 ONCA 71, 99 O.R. (3d) 749, at paras. 9, 14, 19 and 20; Thompson, at paras. 38-40.
33Three, I disagree with the Appellant’s assertion that the dispute with the Respondent arose outside the employment relationship, thereby not invoking the provisions of the collective agreement.
34The Appellant’s claim against the Respondent concerns a conversation that she had with the Respondent at the workplace about her managers and co-workers. In the Appellant’s Statement of Claim, she states that she met the Respondent in the lobby of the NHQ, and the discussion between them was about her manager and co-workers. The appellant alleges that the Respondent published on Facebook “false statements about me to others maliciously on social media, identifying me as the instigator and thereby destroying my reputation and created an environment where I could no longer work for the same employer.”
35There is no doubt that the essential character of the Appellant’s claim against the Respondent is employment related. The subject matter concerns statements made by and about colleagues and/or former colleagues. It happened at the workplace, and the alleged damages and/or consequences of these statements relate to her reputation in the workplace environment.
36Fourth, even if the Appellant did not exercise her right to grieve, as alleged, the court still does not have jurisdiction to deal with a workplace dispute such as the one in this case.
37The Court of Appeal for Ontario provides a helpful explanation of the applicability of sections 236(1) and (2) of the Act, stating, “Subject to the exception identified in s. 236(3), which has no application here, s. 236(1) declares that the right granted under the legislation to grieve any work related dispute is “in lieu of any right of action” that the employee may have in respect of the same matter. Section 236(2) expressly declares that the exclusivity of the grievance process identified in s. 236(1) operates whether or not the employee actually presents a grievance… [t]he result of the language used in ss. 236(1) and (2) is that a court no longer has any residual discretion to entertain a claim that is otherwise grievable under the legislation…”: Bron, at para. 29.
38In sum, the events referred to in the Appellant’s Statement of Claim pertain entirely to matters arising during the Appellant’s employment as a federal public servant. The Appellant’s terms and conditions of employment were either grieved by the Appellant or could have been grieved by the Appellant under the Act’s comprehensive grievance mechanism. Deputy Judge Iturregui appropriately concluded that s. 236 of the Act ousts the court’s jurisdiction to hear the matter.
39Therefore, Deputy Judge Iturregui was correct to dismiss the Appellant’s claim pursuant to r. 12.02(1) of the Small Claims Court Rules.
Ineffective assistance of the legal representative
40The Appellant argues that her legal representative failed to include the correct information when responding to the motion to strike. The legal representative misstated the facts and chronology. Moreover, the Appellant says that she was ill at the time of the filing of documents, and her legal representative never contacted her to clarify the information. The Appellant acknowledges signing the documents that were filed for the motion to strike, trusting that the legal representative had properly followed her instructions.
41Allegations of ineffective legal assistance in a civil matter are properly raised by way of a negligence action brought by the client against his/her legal representative. There are, however, some civil cases in which the nature of the claim gives rise to a public interest that transcends the private interests of the litigants and requires that the appellant be permitted to raise the incompetence of the legal representative as a ground for setting aside the judgment: OZ Merchandising Inc. v. Canadian Professional Soccer League Inc., 2021 ONCA 520, at para. 44.
42This is not one of those cases giving rise to a public interest that transcends the private interests of the Appellant.
43Even if the Appellant could advance ineffective assistance of legal representative as a valid ground of appeal, it would be inconsequential because it would not have affected the result of the motion to strike the Appellant’s claim. Section 236(1) of the Act operates whether or not the employee actually presents a grievance. Had the legal representative filed the correct documents, the Appellant’s claim still would have been dismissed.
DISPOSITION
44For the foregoing reasons, the Appellant’s motion to admit fresh evidence and the appeal are dismissed.
45I encourage the parties to agree on costs for this appeal. If the parties are unable to agree on costs, the Respondent shall file and serve her costs submissions, limited to three pages, excluding a Bill of Costs and Offers to Settle, within 15 days of these Reasons for Decision. The Appellant shall then serve and file her responding costs submissions, with the same page restrictions, within 15 days thereafter.
M. Smith J
Released: October 14, 2025
CITATION: Bala v. Vanrivong, 2025 ONSC 5800
COURT FILE NO.: DC-24-2925
DATE: 2025-10-14
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Bobby Bala
Appellant (Plaintiff)
– and –
Amy Vanrivong
Respondent (Defendant)
REASONS FOR DECISION
M. Smith J
Released: October 14, 2025