Jadwani v. The Attorney General of Canada et al. [Indexed as: Jadwani v. Canada (Attorney General)]
52 O.R. (3d) 660
[2001] O.J. No. 560
Docket No. C33823
Court of Appeal for Ontario
McMurtry C.J.O., Catzman and Feldman JJ.A.
February 20, 2001
*Application for leave to appeal to the Supreme Court of Canada was dismissed with costs September 13, 2001 (McLachlin C.J., Iacobucci and Bastarache JJ.). S.C.C. File No. 28539. S.C.C. Bulletin, 2001, p. 1349.
Employment--Jurisdiction--Employee grieved suspension and subsequent dismissal--Grievance upheld and employee reinstated --Employee bringing action against employer and others alleging interference with contractual relations, intimidation, conspiracy and discrimination--Collective agreement expressly dealt with substance of allegations in statement of claim --Allegations made in statement of claim mirrored allegations made in employee's grievances--Motions judge did not err in striking out statement of claim on ground of lack of jurisdiction--Allegations in statement of claim fell within exclusive jurisdiction of grievance and arbitration process --Employee not deprived of his ultimate remedy when court declined jurisdiction.
The plaintiff was a civil servant employed with the Department of Industry, Science and Technology. He was covered by the Master Agreement between the Treasury Board and the Professional Institute of the Public Service of Canada ("the Collective Agreement"). In 1992, he was suspended for conduct which was considered unacceptable in the workplace. He was discharged for that misconduct in 1993. He grieved the suspension and the dismissal. His grievance was allowed and he was ordered reinstated. An investigator was subsequently appointed to look into 12 harassment complaints filed by the plaintiff pursuant to the Treasury Board's harassment in the workplace policy. The investigator's report dismissed all of the complaints. The plaintiff brought an action against his employer and others alleging discrimination, intimidation, conspiracy and interference with contractual relations. The defendants applied successfully for an order striking out the statement of claim in its entirety. The motions judge held that the court had no jurisdiction to entertain the action as the allegations fell within the exclusive jurisdiction of the grievance and arbitration process. The plaintiff appealed.
Held, the appeal should be dismissed.
Under the Collective Agreement, matters relating to a disciplinary action resulting in suspension, financial penalty, termination or demotion are referable to adjudication. The allegations made in the adjudication of the plaintiff's grievances and the allegations made in his statement of claim were essentially the same. The Collective Agreement expressly dealt with the substance of the allegations in the statement of claim and the plaintiff resorted to the dispute resolution process available to him under the Collective Agreement. The trial judge did not err in holding that the court was without jurisdiction to entertain the action.
The plaintiff failed to demonstrate that the adjudication process precluded him from seeking the appropriate remedy or the remedies that he sought in his statement of claim. While the personal defendants named in the statement of claim were not parties to the collective agreement, the employer, who was a party to the collective agreement, was made vicariously liable in this action. Accordingly, the fact that there were personal defendants did not put the court in a better position to award the ultimate remedy.
APPEAL from a judgment of Lalonde J. (2000), 2000 22333 (ON SC), 47 O.R. (3d) 276 (S.C.J.) striking out the statement of claim and dismissing an action.
Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, 24 O.R. (3d) 358n, 125 D.L.R. (4th) 583, 183 N.R. 241, 30 C.R.R. (2d) 1, 12 C.C.E.L. (2d) 1, 24 C.C.L.T. (2d) 217, 95 C.L.L.C. 210-027, apld Danilov v. Atomic Energy Control Board (1999), 1999 4480 (ON CA), 48 C.C.E.L. (2d) 34, 125 O.A.C. 130 (C.A.) [Leave to appeal to S.C.C. denied (2000), 260 N.R. 399n], distd Cases referred to Giorno v. Pappas (1999), 1999 1161 (ON CA), 42 O.R. (3d) 626, 170 D.L.R. (4th) 160, 39 C.C.E.L. (2d) 262, 99 C.L.L.C. 220-026 (C.A.); Piko v. Hudson's Bay Co. (1998), 1998 6874 (ON CA), 41 O.R. (3d) 729, 167 D.L.R. (4th) 479, 39 C.C.E.L. (2d) 46, 99 C.L.L.C. 220-007 (C.A.); Pleau v. Canada (Attorney General) (1999), 1999 NSCA 159, 181 N.S.R. (2d) 356, 182 D.L.R. (4th) 373, 560 A.P.R. 356, 40 C.P.C. (4th) 1 (C.A.) [Leave to appeal to S.C.C. refused (2000), 262 N.R. 399n] Statutes referred to Public Service Staff Relations Act, R.S.C. 1985, c. P-35, ss. 91(1), 92(1)
Emilio S. Binavince, for appellant. Michael Ciavaglia, for respondent, the Attorney General of Canada.
The judgment of the court was delivered by
MCMURTRY C.J.O.:--
Background
[1] The appellant, Harinder Jadwani, was employed as a Financial Analyst with the Toronto Regional Office of the Department of Industry, Science and Technology (the "Department") from 1984 to 1991. He is presently employed in the same capacity in the Program Services Group, Ontario Regional Office. The appellant was covered by the Master Agreement between the Treasury Board and the Professional Institute of the Public Service of Canada ("the Collective Agreement").
[2] The appellant filed three grievances that were the subject of the Public Service Staff Relations Board's (the "Board") September 23, 1994 decision.
(a) In his first grievance, the appellant grieved against the employer's decision to place him on sick leave commencing on September 2, 1992.
(b) The appellant's second grievance was filed subsequently, on December 24, 1992, and he grieved against what he perceived as being his indefinite suspension from work commencing on September 4, 1992.
(c) The appellant's third grievance was in relation to the fact that on April 6, 1993, the appellant was discharged from the Public Service of Canada.
[3] The parties agreed that the Board would render one decision in these matters to cover all the adjudications of the three grievances and that the evidence advanced during the hearing would be considered common to all three grievances.
[4] The grievance relating to the discharge was partially sustained (as the grievor may not have understood the impact of some of his actions in the course of his relationship with his colleagues) and the two remaining grievances were allowed. In order to properly appreciate the nature of the facts in the three grievances and the subsequent arbitrations, it is necessary to reproduce a rather lengthy portion of the Board's decision which in itself was very lengthy. The gist of the decision is found at pp. 247-53 of the Board's reasons:
Witness Sandra Omand had a problem with the grievor and thought that she could handle the situation by herself and that is why she did not alert management or personnel to her problem. She had mentioned her problem to many in the office but had told each one of them to keep it to themselves. There was no reason, therefore, for any gossip to have gone around in the office prior to the incident of September 2, 1992. There was, however, gossip in the office about the grievor and the witness, the evidence establishes, and this gossip was severely bothering the grievor. He reacted in his own way with everyone involved by staring at them and occasionally voicing his displeasure. It was only on September 2, 1992 that he decided to confront Sandra Omand and demand that she stop spreading this gossip against him. Sandra Omand, in her own mind, thought that she had not. The grievor pressed on and there was an outburst caused, as she says, by anger and fright. The grievor left her office doorway and it was only later, on September 4, 1992, that he was interviewed by his supervisor and Ms. Janell Sadler. The latter, in the meantime, had prepared a "history" of the grievor's behaviour in the department, starting when he was first hired in Montreal in 1984 and then in Ottawa from July, 1988 to January, 1990 and March, 1991 to September 2, 1992 when he was employed in Toronto. This report (Exhibit E-8), sets out the grievor's relations in the office with a number of female employees, including Margo Delaunière in Montreal. This report purports to establish misconduct on the part of the grievor in his relations with female employees, although the grievor had never been disciplined for any of this alleged misconduct. The report and the perceptions of what happened during the incident of September 2, 1992 appear to be the basis for the employer taking the action that it did in first requesting the grievor to stay at home while the matter was being investigated and then telling him that he could not report again for work until he provided management with a psychiatric assessment from his own doctor establishing that he was fit to work and placing him in the interim on sick leave. The grievor was not given the reasons why he was being treated as he was. He was not, in his estimation, sick in any way but decided to go see his family doctor who referred him to a psychiatrist, Dr. Kim. The latter required background information from the employer and this was provided to him on consent of the grievor. The grievor had by this time become very concerned about the employer's intentions, believing that there was a decision already taken by the employer to terminate his employment. He began to resist allowing Dr. Kim to provide a psychiatric assessment. When his sick leave credits ran out, the grievor was placed on off-duty status, with the result that his salary ceased. He was forced, in the circumstances, to sell the house which he had recently purchased and on which he was paying a large mortgage of some $160,000, with monthly payments of around $1,500.00.
The grievor was discharged on April 6, 1993, for the reasons set out in the letter of discharge of the same date (Exhibit E-15). It is clear that the grounds for discharge are alleged misconduct on the part of the grievor. These same grounds, with the exception of what occurred later, were known to the employer on September 4, 1992, when it sent the grievor home and then placed him on sick leave, followed by a period of off-duty status terminating on April 6, 1993, when the grievor was discharged. It is not available to me to characterize the employer's actions on September 4, 1992 of placing the grievor on sick leave as other than a suspension from duty, with pay and then without pay as his sick leave ran out, for perceived misconduct on the part of the grievor. There were no reasonable grounds for the employer to require the grievor on his own to provide a medical assessment by a psychiatrist and place him on sick leave. His "perceived" harassment by some co-workers has been proven to have taken place and was not the result of his "paranoia". In the circumstances, it was not available to the employer to cause the grievor to use up his sick leave as it did. The employer did not, upon its own admission, suspend the grievor for his actions and, therefore, could single deprive him of his salary while he was prevented from returning to work. The employer could have required the grievor to be examined by its own doctor at National Health and Welfare or a doctor designated by it but it did not. Had it done so, it could have, at an early moment, determined whether the grievor was fit or not fit to return to work and taken appropriate actions following this determination. The grievor did not consider himself sick and was not provided by management with the reasons why he was being prevented from working. Although he at first resisted this forcing of him to provide on his own and, initially at least, at his own expense, a psychiatric assessment of himself, he eventually was agreeable but could not find a psychiatrist who was agreeable to providing such an assessment and testifying if required at a later date concerning his condition. After so much time had passed and the grievor had "sealed his casket" by harassing potential witnesses in this case, the employer decided it was time to take the final step of discharging him.
Yet, the grievor's actions after he was sent home and placed on sick leave without being provided with the reasons why he was being treated the way he was and, more importantly, being placed on off-duty status without pay, with the result that he could no longer meet his financial obligations and had to sell his house at a loss, it would appear, while they are unacceptable and cannot be condoned, are the result of a frustrated employee who was being treated harshly and improperly. Therefore, he must account for his actions subsequent to September 4, 1992, but they cannot, in the circumstances, constitute grounds for his ultimate discharge. Misconduct by the grievor known to the employer prior to the September 2, 1992 incidents for which discipline was not meted out to the grievor cannot either be grounds for the grievor's discharge. The evidence is that the incidents in the Toronto Regional Office had never been brought to management's attention prior to September 2, 1992, and thus the grievor never had the benefit of a warning. In any event, the incidents were not established as being other than suspicions and innuendo about the grievor's relationship with Sandra Omand. Upon Sandra Omand's own admission, the grievor had done nothing but annoy her on September 2, 1992. They had both raised their voices when mutual accusations were being denied. This incident is hardly grounds for discharging the grievor. A suspension pending investigation might have been in order but this was not done. No misconduct was being openly alleged against the grievor for either this or the minor incident on the same day with Mr. Gerry Cooper. The employer has failed to establish that the grievor was guilty of misconduct sufficient to warrant his discharge from the Public Service of Canada and, accordingly, I order his reinstatement. However, a suspension without pay of twenty (20) days commencing on April 1, 1993, is warranted in the circumstances, I find, and is assessed against the grievor.
In the result, therefore, I find that the grievor was improperly placed on sick leave and ultimately on off-duty status from September 4, 1992 to April 6, 1993. He is entitled, therefore, to have his sick leave used reaccredited to his sick leave account and to be reimbursed for all pay and benefits which he was deprived of during the period September 4, 1992 to the date of his reinstatement resulting from this decision; except for a period of twenty (20) days starting on April 1, 1993, when he is deemed to have been suspended without pay.
Unfortunately the grievor's harassment of potential witnesses, together with the outpouring of animosity against him by so many of his fellow co-workers, has made his reintegration into the Toronto Regional Office of Industry, Science and Technology Canada difficult. The grievor himself has recognized this difficulty and he has suggested that he be re-instated instead elsewhere in the Toronto area in a position equivalent to that which he held in the Toronto Regional Office. I am of the opinion that it would be better for all if the grievor was assigned to an equivalent position in the Public Service elsewhere in the Toronto area or in another area agreeable to the grievor. Accordingly I grant the employer the option of placing the grievor in an equivalent position elsewhere in the Toronto Region. In the alternative, the employer may place the grievor in an equivalent position elsewhere in Canada with his consent. If the employer cannot find such a position in the Toronto area or in another area agreeable t o the grievor within 30 days of the release of this decision, he is to be restored to his C0-2 position in the Toronto Regional Office of Industry, Science and Technology Canada. In making this disposition, I am relying on the decision of the Federal Court of Appeal in Canada v. Tourigny (1989), 97 N.R. 147.
I have not found any evidence of discrimination practiced by anyone against the grievor during the period of his employment in the Toronto Regional Office on the grounds of colour or race. Any perceived discrimination was only in the mind of the grievor and was not factual. It is interesting also to note that the grievor resisted making such an allegation until he found it "necessary", if he was to win out in this matter.
Although I have found that the employer improperly placed the grievor on sick leave and improperly placed him on off-duty status as a result of the events leading up to and including September 2, 1992, it is my impression that the grievor may not have understood the impact of some of his actions in the course of his relationship with his colleagues. I therefore strongly suggest that the employer offer and the grievor agree to participate in counselling to aid him with the difficulties he seems to experience in his relationships with colleagues. I note that at the very least some counselling could help the grievor to re-adapt to the work place as he has been away from the position from which he was terminated for over two years.
[5] In 1995, the Department appointed an investigator to look into 12 harassment complaints filed by the appellant pursuant to the Treasury Board Harassment in the Work Place policy. After a two-year investigation, the investigator's reports dismissed the 12 complaints and the reports were adopted by the Department. The appellant then requested that the Public Service Commission review the investigation. This request was refused.
[6] The appellant was plaintiff and the respondents were defendants in the action giving rise to this appeal. In June 1998, the appellant commenced an action in the Ontario Court (General Division) against the Attorney General of Canada and 15 federal public servants. The action alleged that the individual defendants committed the torts of interference with contractual relations, intimidation and conspiracy. In addition, the action alleged discrimination contrary to ss. 15 and 24 of the Charter.
[7] The respondents applied successfully to Lalonde J. of the Superior Court of Justice for an order striking out the appellant's statement of claim in its entirety. The essence of the respondent's position was that as the action arose from incidents at the appellant's employment, they were subject to the grievance procedure set out in the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, ("PSSRA") and the Collective Agreement, and that the appellant had taken advantage of these procedures. Therefore, the court did not have the jurisdiction to hear the action. The appellant appeals from the order of Lalonde J., whose reasons for judgment are reported at (2000), 2000 22333 (ON SC), 47 O.R. (3d) 276.
Nature of the Appeal
[8] The central issue on this appeal is whether the motions judge erred in applying Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, 125 D.L.R. (4th) 583 in finding that the court had no jurisdiction to entertain the action. The appellant also appeals the findings with respect to the appellant's Charter challenge, the tort of interference with contractual relations, and the finding that the action was vexatious and an abuse of process. Finally, the appellant submits that the motions judge failed to apply the standard test to be met in a preliminary challenge to a statement of claim.
Relevant Statutory Provisions
[9] As the appellant is a member of the Professional Institute of the Public Service of Canada, he is bound by the Collective Agreement which adopts the grievance procedure provided for under the PSSRA.
[10] The Collective Agreement provides for various rights of employees and the mechanism to grieve any alleged violation of these rights. In particular, the Collective Agreement provides, in part, as follows:
Article 35
Grievance Procedure
35.05 Subject to and as provided in Section 91 of the Public Service Staff Relations Act, an employee who feels that he has been treated unjustly or considers himself aggrieved by an action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause 35.03, except that:
(a) where there is another administrative procedure provided by or under any Act of Parliament to deal with his specific complaint such procedure must be followed, and
(b) where the grievance relates to the interpretation or application of this Collective Agreement or an Arbitral Award, he is not entitled to present the grievance unless he has the approval of and is represented by the Institute.
35.13 Where a grievance has been presented up to and including the final step in the grievance process, and the grievance is not one that may be referred to adjudication, the decision on the grievance taken at the final step in the grievance process is final and binding and no further action may be taken under the Public Service Staff Relations Act.
Article 44
No Discrimination
44.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national origin, religious affiliation, sex, sexual orientation or membership or activity in the Institute.
[11] Part IV of the PSSRA refers to grievances. Pursuant to s. 91, an employee who feels aggrieved by the interpretation or application of (among other things) a provision of the Collective Agreement or an arbitral award, in respect of which no administrative procedure for redress is provided by an Act of Parliament, is entitled to present a grievance at each of the levels of the grievance process provided for under the PSSRA:
91(1) Where any employee feels aggrieved
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing 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 the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii).
in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.
[12] The PSSRA also makes provision for the adjudication of grievances in s. 92. The text of s. 92(1) is as follows:
92(1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part 1 of Schedule 1 or designated pursuant to subsection (4),
(i) disciplinary action resulting in suspension or a financial penalty, or
(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
[13] It is therefore apparent that not all matters that are grievable may be referred to adjudication. However, as far as the appellant is concerned in this appeal, those matters relating to a disciplinary action resulting in suspension or financial penalty or termination or demotion, are referable to adjudication.
Overview of the Submissions of the Parties in This Appeal
[14] The appellant submits that the motions judge incorrectly concluded that Weber applied to the case on appeal and further, that he failed to consider whether the result of his decision would deprive the party of adequate redress for the wrongs alleged. This result has been described by the courts as a deprivation of the "ultimate remedy". See Weber at p. 959 S.C.R., p. 604 D.L.R.
[15] The respondent submits that because the matters complained of by the appellant have or could have formed the subject matter of the grievances filed under the Collective Agreement, which provided adequate redress for the wrongs, the court was without jurisdiction. The respondent relies on the "exclusive jurisdiction" model outlined by McLachlin J. (as she then was) in Weber as authority for this proposition.
Analysis of Applicable Law
[16] In Weber, the Supreme Court of Canada held that all disputes arising, either expressly or inferentially, from a collective agreement should be resolved by labour arbitrators and could not be litigated in the courts. McLachlin J. (writing for the majority) adopted what she referred to as the "exclusive jurisdiction" model for determining the appropriate forum for an employee covered by a collective agreement to pursue legal action. She identified two elements [at p. 956 S.C.R.] to be considered in deciding which forum was appropriate:
(a) the dispute; and
(b) the ambit of the collective agreement.
[17] If on this analysis the court finds that the essential character of the dispute arises from the interpretation, application, administration or violation of the collective agreement then the exclusive jurisdiction model precludes the courts from taking jurisdiction.
[18] Concerning the second element, the ambit of the collective agreement, McLachlin J. held that the jurisdiction of the common law courts would only be precluded if the matter was directly addressed in the collective agreement. Justice McLachlin held at para. 54 [p. 957 S.C.R.] that, "disputes which expressly or inferentially arise out of the collective agreement are foreclosed by the courts". In setting this standard, she approved a line of case law in which courts had refused jurisdiction over matters such as wrongful dismissal, bad faith on the part of the union, conspiracy and constructive dismissal, and damage to reputation, stating at para. 53 [p. 957 S.C.R.]:
However, a review of decisions over the past few years reveals the following claims among those over which the courts have been found to lack jurisdiction: wrongful dismissal; bad faith on the part of the union; conspiracy and constructive dismissal; and damage to reputation.
[19] Further, in respect of the argument that arbitrators lacked legal authority to adjudicate tort claims, or other claims based on the common law, McLachlin J. held that arbitrators have a duty to apply both the common law and statute law and are not confined to the law of the collective agreement, stating at para. 56 [p. 958 S.C.R.]:
The appellant Weber also argues that arbitrators may lack the legal power to consider the issues before them. This concern is answered by the power and duty of arbitrators to apply the law of the land to the disputes before them. To this end, arbitrators may refer to both the common law and statutes.
[20] Lastly, Weber confirmed the principle that if circumstances required a remedy that an arbitrator was not empowered to grant, the common law courts with inherent jurisdiction in each province maintained jurisdiction to deal with the matter.
[21] The appellant referred us to Pleau v. Canada (Attorney General) (1999), 1999 NSCA 159, 40 C.P.C. (4th) 1, 182 D.L.R. (4th) 373 where the Nova Scotia Court of Appeal held, albeit on different pleadings but the same collective agreement and statute as in the case on appeal, that they were not bound by the principle enunciated by the Supreme Court in Weber. The respondents in Pleau sued the Attorney General of Canada and nine federal public servants alleging that the individual defendants had conspired to cause injury and damage, breached their fiduciary duty and abused their office by virtue of wrongful conduct towards the respondent Mr. Pleau. The appellants obtained an order striking out the statement of claim on the ground that the PSSRA and a Master Collective Agreement made under it provided the exclusive method for resolution of disputes arising from the employment relationship. Cromwell J.A. held that having regard to the process established under the PSSRA and the collective agreement, the substance of the dispute and the availability of the effective redress, the court ought not to decline jurisdiction. Leave to appeal to the Supreme Court of Canada was denied.
[22] In Pleau, Cromwell J.A. also discussed at p. 381 D.L.R. the exclusive jurisdiction model referred to by the Supreme Court of Canada in Weber:
The first consideration relates to the process for resolution of disputes. Where the legislation and the contract show a strong preference for a particular dispute resolution process, that preference should, generally, be respected by the courts. While it takes very clear language to oust the jurisdiction of the superior courts as a matter of law, courts properly decline to exercise their inherent jurisdiction where there are strong policy reasons for doing so.
If the legislature and the parties have shown a strong preference for a dispute resolution process other than the court process, the second consideration must be addressed. It concerns the sorts of disputes falling within that process.
[Emphasis in original]
[23] In my view, the case before us and the situation in Weber can clearly be distinguished from Pleau. In Pleau, the employee's complaints that were the actual subject of the civil litigation had not been referred to an adjudicator.
[24] The appellant also relied on Danilov v. Canada (Atomic Energy Control Board) (1999), 1999 4480 (ON CA), 125 O.A.C. 130 where this court overturned a motions judge's decision to dismiss the appellant's action. The issue involved a determination of whether a contract of employment at pleasure disentitled an employee to compensation when it was terminated. In coming to its decision, this court held that the existence of the statutory grievance procedure under the PSSRA did not entitle an employee to take the particular dispute to binding adjudication by a third party.
[25] Danilov is therefore distinguishable from this appeal. Unlike Danilov, in the case before us, there was a collective agreement in place which allowed the disputes in issue to be referred to third party adjudication.
[26] In the appeal before us, the motions judge held that the appellant did invoke the grievance procedure to get a hearing before the adjudicator and at p. 287 O.R. made the following comments with respect to the recourse chosen by the appellant:
The defendants argue that this court has no jurisdiction to hear the plaintiff's claim or, in the alternative, if this court could invoke an inherent jurisdiction, it should decline to hear this case. The plaintiff had a 21-day hearing, on three grievances he had filed before an adjudicator of the Public Service Staff Relations Board (the Board). The plaintiff was successful at that hearing as the Board declared he was harassed. He now wishes to re-litigate the same allegations. Many allegations in the statement of claim are the same as heard by the Board pursuant to the master Collective Agreement. If there are allegations in the statement of claim not heard by the Board, it should not incline this court to hear them now as they could have been dealt with by the Board.
Following the hearing by the Board on the three grievances filed by the plaintiff, the plaintiff laid 12 harassment complaints pursuant to the Treasury Board's harassment in the work place policy, based upon allegations now repeated in the statement of claim. The Department investigated the 12 complaints in September 1995. After a two-year investigation, the 12 complaints were dismissed. According to counsel for the defendants, this investigation was a totally unnecessary step taken by the plaintiff and constitutes the second body to go over the same harassment allegations.
A third occasion to re-litigate the plaintiff's allegations took place when the plaintiff requested the investigation be reviewed by the Public Service Commission.
Counsel for the plaintiff at the opening of the defendants' presentation admitted that the 12 harassment complaints, filed in 1995, are the same as those contained in the plaintiff's present claim except for "a few additional ones", to use his words.
[27] In the matter before us, I have had the benefit of comparing the pleadings in the statement of claim and the allegations made in the adjudication. Both sets of allegations are indeed essentially the same. The allegations that are part of the appellant's statement of claim were raised when the appellant invoked the grievance procedure and when the dispute was later submitted to adjudication. The appellant has availed himself of the dispute resolution procedures under the Collective Agreement, and has had the opportunity to litigate the allegations that are made in his statement of claim.
[28] In applying the test as to whether the dispute in its essential character arises pursuant to the collective agreement, McLachlin J. in Weber stated as follows at p. 965 S.C.R., p. 608 D.L.R.:
In this case, the fact that the collective agreement covers all unfair treatment regarding matters within its ambit may similarly be said to oust recourse to the courts for complaints of unfair treatment, which is the essence of the appellant's statement of claim. The arbitrator has exclusive jurisdiction to consider the dispute between the parties, provided that the dispute falls under the collective agreement . . . That the facts may be capable of being characterized as a tort or a constitutional breach may be taken into account by the tribunal, which must apply the law as it stands.
[29] In applying this test, the motions judge concluded as follows at pp. 297-98 O.R.:
This leads me to conclude in this case that Mr. Jadwani's dispute expressly arises out of the Collective Agreement and this court should decline jurisdiction. As in Weber, the Collective Agreement in the case at bar applies to "any allegation that an employee has been subjected to unfair treatment or any dispute arising out of the content of this Agreement". The plaintiff in this case must have believed it was applicable to him since he invoked the grievance procedure to get a hearing before an adjudicator.
[30] I agree with the motions judge's conclusion that the Collective Agreement expressly deals with the substance of the allegations in the appellant's statement of claim and that the appellant resorted to the dispute resolution process available to him under the Collective Agreement. Striking the statement of claim in this case serves the policy goal of preventing the courts from becoming a duplicative forum for matters addressed and grieved under the Collective Agreement.
[31] The final issue that must be considered in respect of the Weber exclusive jurisdiction model, is that of remedy. In Pleau, Cromwell J.A. dealt with the issue of the remedy available to a grievor under the collective agreement at p. 382 D.L.R.:
The third consideration relates to the practical question of whether the process favoured by the parties and the legislature provides effective redress for the alleged breach of duty. Generally, if there is a right, there should also be an effective remedy.
[Emphasis in original]
[32] In Pleau, Cromwell J.A. also dealt with this issue by holding at p. 404 D.L.R. that, "access to the grievance procedure without the right to test the outcome by adjudication on the merits by a third party does not constitute effective redress for the alleged wrongdoing in this case".
[33] In Piko v. Hudson's Bay Co. (1998), 1998 6874 (ON CA), 41 O.R. (3d) 729, 167 D.L.R. (4th) 479 and in Giorno v. Pappas (1999), 1999 1161 (ON CA), 42 O.R. (3d) 626, 170 D.L.R. (4th) 160, this court recently had the occasion to consider this portion of the Weber analysis. In Giorno, Goudge J.A. held at pp. 630-31 O.R.:
It is of no moment that arbitrators may not always have approached the awarding of damages in the same way that courts have awarded damages in tort. In Weber, at p. 958 S.C.R., p. 603 D.L.R., McLachlin J. made clear that arbitrators are to apply the same law as the courts. Laskin J.A. put it this way in Piko at para. 22 [p. 736]:
I do not rest my decision on any differences between the power of courts and the power of arbitrators to award damages for a tort, such as the tort of malicious prosecution. I recognize that arbitrators may apply common law principles in awarding damages, and, more importantly, the breadth of an arbitrator's power to award damages does not necessarily determine whether Weber applies.
What is important is that the arbitrator is empowered to remedy the wrong. If that is so, then where the essential character of the dispute is covered by the collective agreement, to require that it be arbitrated, not litigated in the courts, causes no "real deprivation of ultimate remedy" [Footnote omitted]. The individual is able to pursue an appropriate remedy through the specialized vehicle of arbitration. He or she is not left without a way to seek relief.
[34] In both cases, this court made it clear that even if the grievance did not support claims under certain heads of damages, this did not lead to the conclusion that the appellant had been deprived of an ultimate remedy.
[35] The appellant has not demonstrated that the adjudication process precluded him from seeking an appropriate remedy or the remedies that he sought in his statement of claim. Nevertheless, the appellant submits that there are personal defendants named in this action and that the motions judge did not consider the extent of the adjudicator's remedial authority with respect to these personal defendants. On the facts of this matter, this submission does not support a finding that the appellant would be deprived of his ultimate remedy. While the personal defendants named in the statement of claim are not parties to the Collective Agreement, the employer who is a party to the Collective Agreement is made vicariously liable in this action. On this basis, the fact that there are now personal defendants named does not put the court in a better position to award the ultimate remedy. The remedy remains as against the employer.
Conclusion
[36] I therefore conclude that the motions court judge was correct in holding that the court had no jurisdiction to entertain the actions before him as the allegations fell within the exclusive jurisdiction of the grievance and arbitration process. The appellant's claims in their "essential character" arose under the Collective Agreement and related to events that led to his termination, which in turn triggered the grievances and the Board hearings. Further, the appellant was not deprived of his ultimate remedy when the court declined jurisdiction.
[37] On the basis of my conclusion with respect to jurisdiction, it is unnecessary for me to consider the remaining grounds of appeal advanced by the appellant relating to the motion judge's findings with respect to the appellant's Charter challenge, the tort of interference of contractual relations, that the action was vexatious and an abuse of process.
[38] Accordingly, this appeal is dismissed with costs of the motion and of the appeal.
Appeal dismissed.