DATE: 20051207

DOCKET: C43395

COURT OF APPEAL FOR ONTARIO

RE:

CAROLYN ANNE RICHARDS (Plaintiff/Appellant) – and – NOEL P. CATNEY, H. JILL ARCHER, PAUL TETZLAFF, ROBERT DEVOLIN, and THE REGIONAL MUNICIPALITY OF PEEL POLICE SERVICES BOARD (Defendants/ Respondents)

BEFORE:

FELDMAN, BLAIR and LaFORME JJ.A.

COUNSEL:

Mervyn White

for the appellant

Anne Spafford

for the respondent

HEARD:

December 1, 2005

On appeal from the order of Justice C. Hill of the Superior Court of Justice dated March 23, 2005.

E N D O R S E M E N T

[1] This is an appeal from the decision of the motions judge wherein he dismissed the appellant's claim in its entirety. The issue before the motions judge under Rule 21.01(3)(a) was whether the appellant could seek redress in the courts, or, because her claims are essentially related to discipline, whether the collective agreement in place between the parties and the Police Services Act, R.S.O. 1990, c. P. 15 precludes civil action.

[2] The appellant is a Staff Sergeant who claims that the Peel Region Police Services (PRPS) that employs her, and the other named individual officers employed by the police service, discriminated against her. She alleges that she has been discriminated against on the basis of gender and disability, and that certain administrative actions taken by the respondents in relation to such matters as reassignment, the promotional process, and access to courses, were discriminatory in nature and amounted to a demotion.

[3] The motions judge, in comprehensive reasons, adopted and applied "the essential character of the dispute" test and concluded:

The essential character of the dispute, the factual context, is entirely workplace centred. The alleged discrimination affected career advancement and the ability to enjoy a safe and equality sensitive existence as an employee. The alleged defamatory statements uttered in the police facility, were made by, or to, individuals engaged, or permitted to participate, in some way in the PRPS promotional process. The dispute arises in its essential character out of an application of the collective agreement which specifically speaks to issues of discrimination and fair promotional process (para. 35).

[4] On this appeal the appellant limits the relief being sought to that in connection with her claim in defamation. She submits that on this issue, the motions judge erred, and that her claim for defamatory comments is properly within the jurisdiction of the courts and should not be subjected to the exclusive jurisdiction of the collective agreement. We do not agree.

[5] The core of the relevant test - the essential character of the dispute – is what controls the jurisdictional analysis. The court does not look to the characterization of the wrong; but rather it looks to the facts that give rise to the dispute: Morissette v. Canada (Attorney General), [2004] O.J. No. 2327 (Ont. C.A.) at para. 13.

[6] In the present case, the essential character of the dispute is workplace discrimination and harassment, not defamation. While the alleged defamatory comments are repugnant and demeaning, they are pleaded as having been said in the context of workplace discussions regarding the appellant's claim and settlement proposal. In other words, they were made in the context of her qualifications, or lack thereof, for promotion.

[7] The collective agreement specifically speaks to issues of harassment, discrimination, and fair promotional process and contains a comprehensive grievance procedure in relation to these issues. Accordingly, the motions judge did not err in declining jurisdiction over this part of the appellant's action.

[8] We do take note of the appellant's concern in respect of Clause 4.03(b)(3) in the collective agreement. This Clause reads:

(b) For purposes of this Clause, harassment based on sex includes:

(3) Unwanted sexually oriented remarks and/or behaviour of a persistent nature which are reasonably perceived to create a negative psychological and/or emotional work environment (emphasis added).

[9] The appellant worries that, during grievance proceedings, the respondents will argue that the alleged defamatory comments are not "of a persistent nature" and therefore cannot be the proper subject of the grievance process. While it is not for this court to decide this issue, it nevertheless appears to us that the language contemplates both a single incident involving sexually oriented remarks and/or behaviour or conduct of a persistent nature.

[10] For the foregoing reasons, the appeal is dismissed. The respondents are entitled to their costs fixed in the amount of $7,000, inclusive of disbursements and GST.

“K. Feldman J.A.”

“R.A. Blair J.A.”

“H.S. LaForme J.A.”