COURT FILE NO.: CV 17 2346 DATE: 20180713

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

ANGELINA RIVERS, SHARON ZEHR and BARRY ZEHR Plaintiffs

AND:

WATERLOO REGIONAL POLICE SERVICES BOARD and WATERLOO REGIONAL POLICE ASSOCIATION Defendants

COUNSEL: R. Douglas Elliott, David Thompson, Matthew Moloci, Colleen Yamashita, Elena Mamay and Sana Ebrahimi for the Plaintiffs James H. Bennett, for the Waterloo Regional Police Services Board; Caroline (Nini) Jones, Jodi Martin and Glynnis Hawe for the Waterloo Regional Police Association

HEARD: June 18, 19, 20 & 21, 2018

REASONS FOR JUDGMENT

BALTMAN J

Overview

[1] The Plaintiffs are former and current police officers with the Waterloo Regional Police Service (“Service”). They wish to certify this action as a class action on behalf of all uniformed women who were or are members of the Service, claiming that both the Waterloo Regional Police Services Board (“Board”) and the Waterloo Regional Police Association (“Association”) are liable for systemic gender-based discrimination and sexual harassment by male members, senior officers and management of the Service.

[2] The proposed action also includes derivative claims under the Family Law Act by the male spouses of the Plaintiffs.

[3] An important first obstacle in this case is the Defendants’ challenge to this Court’s jurisdiction. Following the principles established by the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, they argue that labour arbitrators and/or adjudicators at the Human Rights Tribunal of Ontario (HRTO) have exclusive jurisdiction over this dispute.

[4] In a previous court attendance, I determined that that the jurisdictional and certification motions should be heard together given that the factual matrix is important to the determination of the jurisdictional question and overlaps with some of the certification criteria.

[5] For the reasons that follow, I have determined, with some regret, that this court has no jurisdiction over this dispute. Moreover, even if it did, the certification motion must fail because it does not identify a viable cause of action. The prevailing legislative regime and jurisprudence require that the disputed claims – which all essentially concern gender discrimination - be adjudicated either at the HRTO or before a labour arbitrator.

Factual allegations

[6] Broadly speaking, the Plaintiffs make three substantive claims against the Board:

1. Systemic gender-based discrimination and harassment committed by male members of the Service against the class members (“systemic gender discrimination”);
2. Breach of class members’ rights under s. 15 of the Charter to be free from gender-based discrimination (“breach of the Charter ”) ;
3. Liability through the tort of harassment for the outrageous conduct of its male members against the class members (“tort of harassment”)

[7] The allegations against the Association include the following additional claims:

1. The Association failed to provide the class members with a work environment free of gender-based discrimination and sexual harassment;
2. The Association failed to ensure that complaints and grievances regarding discrimination were properly investigated and resolved under the Harassment and Discrimination Procedure and the Collective Agreement;
3. The Association discouraged or ignored complaints from female members about sexual harassment, and advised them that filing complaints or grievances would negatively affect their career prospects.

[8] There is a pending motion by the Plaintiffs to add additional plaintiffs, which is unopposed by the Defendants. For the purposes of the motions being addressed in this decision, I will assume that all of the pleaded facts in the proposed Amended Statement of Claim are true.

[9] There are currently 778 uniform officers in the Waterloo Police Service, of which 178 (23%) are female. Collectively, the female Plaintiffs allege a wide range of facts and circumstances in support of their claims of gender-based discrimination and sexual harassment, spanning from 1988 to the present. These include:

a) Certain male officers made offensive comments and/or unwanted sexual advances towards them; b) Male officers spread false rumors about them suggesting they were interested in sexual relations with other officers; c) Male officers wrongly disparaged their work to other officers and supervisors; d) Certain male officers refused to provide them with back-up when they were dispatched to a dangerous situation; e) When they reported their concerns to their superiors, they were isolated, disregarded, and warned of repercussions to their career; f) Not only were the offending officers rarely and inadequately sanctioned, they were sometimes promoted.

[10] In their Statement of Claim, the Plaintiffs plead statutory causes of action under the Human Rights Code, the Occupational Health and Safety Act, and the Employment Standards Act, confirming that all their complaints and causes of action arise from their workplace and employment.

[11] The allegations against the Association include several lodged directly against its President, Mark Egers, who nonetheless remains in that position today.

The Available Fora for Allegations of Systemic Workplace Discrimination

[12] It is undisputed that there are several fora with the jurisdiction to address the Plaintiffs’ allegations of systemic workplace discrimination and sexual harassment.

1. Grievance Procedure under the Collective Agreement

[13] Throughout the years in issue the representative Plaintiffs and all the putative class members were or are employees of the Board. Their employment is governed by the terms of Collective Agreements, which contain grievance procedures and ultimately provide for binding arbitration under Part VIII of the Police Services Act (PSA). These terms are mandatory: as stipulated by s. 48(1) of the Ontario Labour Relations Act, S.O. 1995, the Collective Agreements provide that all complaints “shall” be dealt with through the grievance procedures set out within.

[14] All officers up to the rank of Staff Sergeant are deemed to be members of the Association, which is the sole collective bargaining agent for such members under the terms of their Collective Agreements.

[15] The Collective Agreements expressly prohibit discrimination on the basis of sex, and by extension preclude sexual harassment. Complaints and grievances about discrimination or sex-based harassment by the Board, its management or any members are arbitrable under the Collective Agreements and are clearly within the jurisdiction of a specialized labour arbitrator to adjudicate.

[16] The Collective Agreements and the PSA set out the procedure for filing a grievance against the Board. A member is to convey their complaints to their supervisor, in writing, within 21 days. If their supervisor cannot resolve the problem at this preliminary stage, then after 14 days the Member must send their grievance in writing to an Association representative who, if views the complaints as justified, must pass on to the Deputy Chief within 14 days. S/he will then investigate and issue a decision in writing; if the Association is dissatisfied with the decision, it may refer the matter to conciliation and/or arbitration under Part VIII of the PSA.

[17] If the matter remains unresolved, either party may seek arbitration under s. 124 of the PSA, the results of which are binding on the Association, the Employer, and the individual members.

2. Harassment and Discrimination Policy

[18] The Board has a Harassment and Discrimination Procedure as mandated by the Occupational Health and Safety Act. If any Member initiates a complaint an investigation must be conducted. Should another Member be found at fault, they may be subject to disciplinary action.

[19] If a Member believes the Procedure has not been properly applied by the Board, they may ask the Association to file a grievance on their behalf. If the Member feels the Association did not represent them fairly in the pursuit of their complaint, they may file a duty of fair representation complaint.

3. Duty of Fair Representation (DFR) Complaints

[20] Under the Collective Agreement, the Association has a duty to fairly represent its members in all aspects of the employer-employee relationship. If a Member has a complaint about the adequacy or quality of the Association’s representation, a Member may bring a DFR complaint.

[21] These claims are within the exclusive jurisdiction of a specialized labour tribunal under Part VIII of the PSA, and are determined by expert arbitrators with significant labour relations expertise. The arbitrators’ decisions are subject to judicial review in the Divisional Court, pursuant to the Judicial Review Procedure Act.

4. Human Rights Tribunal of Ontario (HRTO)

[22] Members of the Service who believe they have experienced workplace discrimination or sexual harassment may also apply to the HRTO for an adjudication of their complaint. Where an applicant’s rights are found to be infringed under the Code, the HRTO has the jurisdiction to award monetary compensation for injury to dignity, feelings, and self-respect (“Code damages”), as well as restitution and broad “public interest” remedies to promote compliance with the Code.

[23] Moreover, the HRTO can and does hear multi-party complaints alleging gender-based discrimination against identified groups: OPSEU v. Liquor Control Board, 2015 HRTO 766; Association of Ontario Midwives v. Ontario (Ministry of Health and Long-Term Care), 2014 HRTO 1370.

[24] Ms. Rivers currently has a complaint pending before the HRTO, which she agrees covers the same allegations as those set out in the Statement of Claim. She has adjourned the HRTO matter pending the result of this motion.

Issue #1: Does this court have jurisdiction over this dispute?

Legal Framework on Jurisdiction

[25] It is well established that a dispute between an employer and an employee that arises in its essential character from the interpretation, application or violation of a collective agreement is to be determined not in the courts but according to the arbitration provisions of the collective agreement: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at paras. 55, 72. Weber draws on the earlier judgment of the Supreme Court of Canada in St Anne-Nackawic Pulp & Paper Co. v. C.P.U., [1986] 1 S.C.R. 704, which emphasized the need for judicial deference to the collective bargaining relationship: para. 20.

[26] In assessing the true nature of the dispute, one must look not to how the wrong is characterized, but to the facts giving rise to the dispute. Otherwise “innovative pleaders” can “evade” the legislative intent by raising “new and imaginative causes of action”: Weber, para 54.

[27] The exclusive jurisdiction model represents a critical policy choice. Labour arbitrators and labour boards are specialized administrative decision makers with exceptional expertise in adjudicating workplace disputes and interpreting collective agreements in the context of long term and ongoing relationships. As noted by Justice Cromwell writing for the Nova Scotia Court of Appeal in Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 38, at para. 41:

…A significant objective of this comprehensive scheme is to minimize, if not eliminate entirely the involvement of the courts as first instance decision-makers with respect to workplace disputes …

[28] This type of exclusive power includes a corresponding obligation on the union of fair representation of all employees in the bargaining unit. The duty of fair representation is therefore encompassed within the bargaining relationship: Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509, at p. 527.

[29] The comprehensive labour arbitration scheme is central to labour relations in all unionized sectors throughout Ontario, as “[i]t has the advantage of both accessibility and expertise, each of which increases the likelihood that a just result will be obtained with minimal disruption to the employer-employee relationship: Parry Sound (Social Services) v. OPSEU, 2003 SCC 42, [2003] 2 S.C.R. 157, at para. 51.

[30] Where the essential character of the dispute is covered by the collective agreement, it must also be determined whether an arbitrator is empowered by way of final resolution to provide an effective remedy for the alleged wrong. If so, precluding the plaintiff from the civil court causes no “real deprivation of ultimate remedy”: Weber, at para. 62.

[31] Even if a successful grievance does not permit certain heads of damages, that does not mean the worker has been deprived of an adequate remedy. What matters is that the scheme provides a solution to the problem: Vaughan v. R., 2005 SCC 11, para. 36; A. (K.) v. City of Ottawa (2006), 80 O.R. (3d) 161 (C.A.), para. 20; Giorno v. Pappas (1999), 42 O.R. (3d) 626 at pp. 630-631; Piko v. Hudson’s Bay Co., [1998] O.J. No. 4714 (C.A.), para. 22; De Montigny v. Roy et al 2018 ONSC 858, para. 43. Consequently, the fact that neither F.L.A. awards nor punitive damages are available from an arbitrator (or at the HRTO) does not allow for a court action to be substituted.

[32] Finally, conveniency is not a determining factor. The prospect of multiple proceedings or of potential conflicts amongst separate arbitration awards does not confer jurisdiction where it does not exist: Bisaillon v. Concordia University 2006 SCC 19, at para. 58.

Submissions and Analysis re Jurisdiction

[33] The Plaintiffs concede that both a labour arbitrator and the HRTO have jurisdiction to adjudicate their claims. They argue, however, that the Court has “residual, inherent jurisdiction” to adjudicate this matter. In particular, they submit that because there is no clear and explicit statutory language ousting the Court’s jurisdiction, I may assume it.

[34] Moreover, they assert that in this case I should assume jurisdiction, for four reasons. First, the Plaintiffs maintain that the Association will not properly advance their grievances, because that would implicate all of its male members, who compose the large majority of the uniformed officers in Waterloo. Second, the HRTO will not effectively remedy the problem, as it cannot award FLA damages, punitive damages, or costs. Third, an action in the Superior Court, with its broad oversight powers, carries greater weight and “gravitas” than any alternative venues. Fourth, and perhaps most importantly, in a class action all the female officers can shelter anonymously behind the representative plaintiffs, and thereby avoid the ridicule and reprisals that the named Plaintiffs have already endured.

[35] However compelling the Plaintiffs’ cause may be, I do not see any jurisdictional “gap” that would permit this matter to proceed in the Superior Court. The PSA sets out a mandatory conciliation and arbitration process, overseen by the Ontario Police Arbitration Commission. Under s. 123(1) of the PSA, arbitration is mandatory “if a difference arises between the parties concerning an agreement or an arbitrator’s decision or award made under this Part, or if it is alleged that an agreement or award has been violated.” [emphasis added]

[36] In Renaud v. LaSalle (Town) Police Association, [2006] O.J. No. 2842 our Court of Appeal determined that the word “party” should be interpreted broadly in keeping with the legislature’s intention that the Act together with the Collective Agreement “provide a complete and comprehensive scheme for police officers relating to their employment relationship”: para. 7. In other words, the word “party” includes individual police officers who wish to challenge their Association’s handling of a grievance. They too must follow the dispute resolution mechanism set out in the PSA and the Collective Agreement, and are precluded from coming to court. There is no statutory gap. See also Abbott v. Collins (2003), 64 O.R. (3d) 789 (C.A.), para. 33, and Heasman v. Durham, [2005] O.J. No. 5096 (C.A.), para. 14.

[37] Relying in part upon the Supreme Court’s decision in Regina Police Assn., Inc. v. Regina (City) Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, Renaud affirmed that courts do not have jurisdiction to deal with any aspects of the employment relationship between individual police officers and their Association or Board.

[38] A similar argument was addressed in A.(K.), where the plaintiffs, two female transit workers, alleged sexual assault and harassment within the unionized workplace. In response to a Rule 21 motion, our Court of Appeal determined that because the claims arise from the administration – and alleged violation – of the collective agreement, the dispute fell exclusively within the jurisdiction of the arbitrator under the collective agreement. On behalf of the court, Sharpe J.A. expressed “considerable sympathy” for the plaintiffs’ desire to pursue their claims for sexual assault in the courts. At para. 24 he stated:

…The claims arise from allegations of criminal misconduct that affront the respondents’ personal dignity and physical integrity, yet they are compelled to pursue them under the collective agreement’s arbitration procedure, where they will not have personal carriage of the proceedings. However, Weber and its progeny deprive them of the right to prosecute their claim in the courts and we must give effect to the jurisprudence that is binding on this court.

[39] More recently, our Court of Appeal heard and rejected the same argument raised in A.(K.) and Renaud, again in a policing context. In Cumming v. Peterborough Police Association, 2013 ONCA 670 (C.A.), at para. 3, the Court stated that “an alleged breach of a police association’s duty of fair representation falls within the exclusive jurisdiction of an arbitrator appointed pursuant to ss. 123 and 124 of the PSA ...”

[40] In sum, consistent with A.(K.), both Renaud and Cumming confirm that claims relating to an alleged breach of a police union’s duty of fair representation fall within the exclusive jurisdiction of an arbitrator appointed under sections 123 and 124 of the PSA. The only narrow exceptions relate to disputes that cannot be said to arise from the employment relationship: see Piko, where Laskin J.A. determined that because the employer took its quarrel with Piko to the criminal courts, the dispute was no longer confined to the labour relations regime. As all the allegations in this case unquestionably spring from dynamics within the workplace, and the employer has not sought to bring these disputes into the courts, they are entirely captured under the PSA and the Collective Agreement. The Court’s jurisdiction has been expressly ousted.

[41] I recognize that recently, a large class action was successfully initiated – and resolved – against the RCMP by its female officers, also alleging systemic sexual discrimination. However, unlike the Plaintiffs here, those employees are not captured within a legislative framework and collective agreement that requires workplace disputes to be arbitrated.

Conclusion on Jurisdiction

[42] This Court lacks jurisdiction over the dispute between the parties.

[43] That conclusion, on its own, would terminate this proceeding. However, at the strong urging of the Plaintiffs (opposed by the Defendants), I will further consider whether there is otherwise any bar to the certification motion.

Issue #2 Do the Plaintiffs satisfy the criteria for certification?

Legal Framework on Certification

[44] Certification of a class is mandatory where the requirements in s. 5 of the Class Proceedings Act, 1992 (the “CPA”) are satisfied. They are as follows:

a) the pleadings or the notice of application disclose a cause of action; b) there is an identifiable class of two or more persons that would be represented by the representative plaintiff; c) the claims or defences of the class members raise common issues; d) a class proceeding would be the preferable procedure for the resolution of the common issues; and e) there is a representative plaintiff who would properly represent the interests of the class, has a workable plan to advance the proceeding on behalf of the class, and does not have any conflict of interest with other class members.

[45] Although the Plaintiffs seek to certify this action against both the Board and the Association, they claim damages solely against the Board. The Association, an alleged joint tortfeasor, was named as a necessary party.

[46] Both Defendants oppose certification on all five grounds, but their primary focus is on the first ground, namely whether the statement of claim discloses a viable cause of action.

Analysis of Cause of Action Requirement

[47] As noted above, the Statement of Claim contains three substantive claims against the Defendants: (1) systemic gender-based discrimination and harassment by male members; (2) breach of equality rights under s. 15 of the Charter; and (3) the tort of harassment.

[48] During argument, Plaintiffs’ counsel asserted that the “essential character” of the dispute is “systemic and institutional negligence”. However the dispute is phrased, there is no question that all three causes of action, at their core, relate to gender-based discrimination and sexual harassment in the workplace. The issue is whether such claims amount to actionable causes.

[49] In addressing that question, the court must keep in mind that, as stipulated in Pro-Sys Consultants Ltd. v. Microsoft Corp., 2013 SCC 57 at para. 63, there is a very low threshold to prove the existence of a cause of action. A claim will only be defeated if, assuming all pleaded facts to be true, it is plain and obvious that the plaintiff’s claim cannot succeed. See also Williams v. Canon Canada Inc, 2011 ONSC 6571, [2011] O.J. No. 5049, at para. 176.

[50] The difficulty here is that s. 46.1(2) of the Human Rights Code prohibits the commencement of an action based solely on an infringement of a right under Part 1 of the Code, entitled “Freedom from Discrimination”. Part 1 specifically provides that individuals have a right to employment without discrimination and to be free from sexual harassment in the workplace. It also prohibits reprisals to any complaints made in that regard.

[51] In Seneca College v. Bhadauria, [1981] 2 S.C.R. 181, the Supreme Court engaged in a comprehensive review of the statutory regime and held, at p. 195:

For the foregoing reasons, I would hold that not only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code. The Code itself has laid out the procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use. [emphasis added]

[52] While the plaintiff in Bhadauria alleged discrimination on the basis of race, the legal principle arising from the case clearly applies to allegations of sex-based discrimination and sexual harassment. In Chapman v. 3M Canada Inc., [1997] O.J. No. 928, at paras. 4 & 7, the Ontario Court of Appeal concluded that civil claims of sexual harassment and discrimination are similarly precluded by the Supreme Court’s holding in Bhadauria.

[53] In 2008, the Supreme Court reaffirmed that “a plaintiff is precluded from pursuing a common law remedy when human rights legislation contains a comprehensive enforcement scheme for violations of its substantive terms”. Consequently, a breach of the Code cannot constitute an actionable wrong: Honda v. Keays, 2008 SCC 39, at paras. 63-64.

[54] This principle was recently restated in Lorion v. 1163957799 Quebec Inc., 2015 ONSC 2417, at para. 24, where Smith J. struck out a civil claim for sexual harassment:

Sexual harassment is not an independent tort recognized in Ontario and hence cannot support a cause of action. This Court’s jurisdiction to deal with damages arising from sexual harassment is ousted by Ontario’s Human Rights Code, R.S.O. 1990, C.H.19.

[55] In 2008, the Code was amended to allow a plaintiff to advance a breach of the Code as a cause of action solely in connection with another wrong; under s. 46.1, a plaintiff who has a civil claim properly before the court may “piggy-back” their Code claim so that the entire dispute can be adjudicated in one forum. Even then, the Court’s remedial authority is limited.

[56] However, as all the alleged wrongs in this case claim, at their core, sexual discrimination, there is no independent actionable wrong to ground a court action. The plaintiffs have not pleaded any independent cause of action which would permit them to bring the Code claim before this court.

[57] The bottom line is that whether the Plaintiffs characterize their claims as systemic negligence, the tort of harassment, or a Charter breach, this action is one of workplace discrimination which may constitute a violation of both the Human Rights Code and the Collective Agreement, but not the common law.

[58] As my determination on this issue is fatal to the certification motion, I need not address the remaining grounds.

Overall Conclusion and Final Remarks

[59] I have concluded that this Court lacks jurisdiction over the dispute between the parties. The jurisdiction motion is therefore allowed.

[60] I have further concluded that even if I had jurisdiction to hear this claim, it does not disclose a viable cause of action, and therefore could not be certified as a class action. Consequently, the certification motion is dismissed.

[61] The Defendants should not regard this result as a vindication of current practices. Like Sharpe J.A. in A.(K.), I have considerable sympathy for the Plaintiffs’ desire to have this litigated in court. Even on the limited and contradictory evidence before me, it is apparent that this case raises serious, triable issues relating to the workplace culture. The allegations are very troubling and will require close scrutiny should this matter proceed to another forum for adjudication.

[62] With these remarks in mind, I strongly urge the parties to resolve any issue of costs consensually. If absolutely necessary, I may be consulted.

Baltman J. Released: July 13, 2018