DATE: 20040604
DOCKET: C40998

COURT OF APPEAL FOR ONTARIO

LABROSSE, GOUDGE and MACPHERSON JJ.A.

BETWEEN:

MARY MORISSETTE

Plaintiff (Appellant)

• and -

THE ATTORNEY GENERAL OF CANADA, MICHAEL CHASE, DEBORAH CHASE, ROBERT BROWN, ALAN STEVENSON, WAYNE SCISSONS, AND ROSS TOLLER

Defendants (Respondents)

Angus J. MacLeod for the appellant

R. Jeff Anderson for the respondents Attorney General of Canada, Robert Brown, Alan Stevenson, Wayne Scissons, and Ross Toller

Jehuda J. Kaminer for the respondents Michael Chase and Deborah Chase

HEARD: June 3, 2004

On appeal from judgment of Justice Denis J. Power of the Superior Court of Justice dated October 23, 2003.

BY THE COURT:

[1] This is an appeal from the judgment of Justice Denis Power of the Superior Court of Justice dated October 23, 2003. In his judgment, the motion judge granted the defendants' (respondents') motion under rule 21.01(3)(a) of the Rules of Civil Procedure to strike out the plaintiff's (appellant's) cause of action.

[2] The appellant was an employee in the Public Service of Canada. From 1978 to 1998 she worked as a prison guard and supervisor in Kingston for the Correctional Service of Canada ("CSC"). She resigned from the CSC on March 4, 1998.

[3] The appellant alleges that she suffered extensive discrimination and harassment on the part of the personal defendants and the Government of Canada.

[4] The appellant commenced an action sounding in discrimination, harassment, defamation and breach of fiduciary duty. The Respondents brought their motion to strike the action on the basis that the appellant was precluded from resorting to the courts; rather, her recourse was either invocation of the grievance procedure under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("the PSSRA") or making a complaint to the Canadian Human Rights Commission pursuant to the Canadian Human Rights Act, R.S.C. 1985, c. H-6.

[5] The motion judge agreed with the respondents' position. In comprehensive reasons, he held: (1) the respondents' alleged misconduct was specifically prohibited by Articles M‑16 and M‑17 of the collective agreement; (2) disputes relating to these areas of misconduct were capable of adjudication pursuant to the collective agreement and the PSSRA; and (3) in addition, the appellant's claims of sex and age discrimination were capable of adjudication under the CHRA. The motion judge concluded that "the essential dispute between the parties is one that arises from conduct prohibited by the collective agreement". Accordingly, the appellant needed to pursue either the grievance procedure under the collective agreement and the PSSRA and/or a complaint under the CHRA.

[6] The appellant challenges the motion judge's decision on four grounds.

[7] First, the appellant contends that the PSSRA does not limit the appellant to only the grievance process for her complaints about misconduct in the workplace.

[8] We disagree. In Gaignard v. Canada (Attorney General), (2003), 2003 40299 (ON CA), 67 O.R. (3d) 611 at 615‑16 (C.A.), a recent case dealing with the interpretation of the grievance provisions of the PSSRA, Goudge J.A. stated that it was essential to "focus … on the essential character of the dispute, to determine if it must be resolved by arbitration and not by the courts." He then reviewed the considerations for assessing the essential character of a particular dispute, including the facts giving rise to the dispute, the ambit of the collective agreement, and whether the arbitration process provided by the collective agreement can furnish an effective remedy for the dispute. Goudge J.A. summarized his analysis at pp. 617-78:

These considerations can in effect be consolidated by asking whether, considering the facts of the dispute, the language of the collective agreement, and the effectiveness of the remedy provided by the arbitration mechanism, this is the kind of dispute that the parties intended to be finally resolved there. If so, the principle of exclusive jurisdiction applies to exclude court action. Determining the essential character of the dispute in this way is consistent with the reality that the terms of the collective agreement both as to substance and as to dispute resolution reflect the shared intention of the parties. It provides some assurance that the disputes to be exclusively resolved by arbitration are ones that the process was designed to deal with.

[9] In the present case, the motion judge explicitly adopted and applied "the essential character of the dispute" test for determining whether exclusive jurisdiction with respect to the appellant's claims resided with the PSSRA regime. He concluded that "the essential dispute between the parties is one that arises from conduct prohibited by the collective agreement".

[10] We agree. Sexual harassment and discrimination on the basis of sex and age are specifically prohibited by the collective agreement. Discrimination is also conduct prohibited by the CHRA which, by virtue of the collective agreement (Article M‑38.02: "where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee's specific complaint, such procedure must be followed"), is also a route available to the appellant.

[11] The appellant's second submission is that the motion judge erred by failing to recognize that the grievance process under the collective agreement and the PSSRA was insufficient in that it did not provide the appellant with an unfettered right to independent third party adjudication of her claims: see Guenette v. Canada (Attorney General), (2002), 2002 45012 (ON CA), 60 O.R. (3d) 601 (C.A.).

[12] We disagree. The motion judge held: "At all relevant times the [appellant] was an employee of the Public Service of Canada and was subject to the terms of the aforesaid collective agreement and the PSSRA." There is no appeal of this finding. Accordingly, the grievance procedure under the collective agreement and the PSSRA is available to the appellant. This includes independent third party adjudication, unlike Guenette where the employer conceded that the employees did not have access to such an adjudication. Moreover, there is nothing to prevent the appellant from making a complaint under the CHRA to the Canadian Human Rights Commission which could well lead to a hearing before the Canadian Human Rights Tribunal, which is also an independent third party adjudicator.

[13] The appellant's third submission is that the motion judge's decision does not take sufficient account of the fact that defamation in the workplace is an independent tort and is actionable in the courts. This submission ignores the core of the relevant test - it is the essential character of the dispute that controls the jurisdictional analysis. In the present case, the essential character of the dispute is workplace discrimination and harassment, not defamation. It is noteworthy that in the seminal case of Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929 at 955, McLachlin J. cautioned that "one must look not to the characterization of the wrong, but to the facts giving rise to the dispute" because to do otherwise would "leave it open to innovative pleaders to evade the legislative prohibition on parallel court actions by raising new and imaginative causes of action."

[14] The appellant's fourth submission is that the motion judge erred by striking out the appellant's defamation pleading because it lacked sufficient particulars, without giving the appellant leave to amend the pleading. In light of our conclusion on the third issue, this submission becomes irrelevant. Even a perfect defamation pleading would not elevate the alleged defamation to "essential character of the dispute" status.

[15] The appeal is dismissed with costs fixed at $3,000.00, inclusive of disbursements and GST.

RELEASED: June 4, 2004 ("JCM")

"J. Labrosse J.A."
"S. T. Goudge J.A."
"J. C. MacPherson J.A."