Court of Appeal for Ontario
Date: 2017-06-21 Docket: C62984
Judges: Weiler, van Rensburg and Huscroft JJ.A.
Between
Todd Elliott Speck Plaintiff (Appellant)
and
Her Majesty the Queen in Right of Ontario, Susan Fitzpatrick, Beverly Lyman, Pauline Ryan, and James Docherty Defendants (Respondents)
Counsel
Todd Speck, in person
Daniel Mayer, for the respondents
Heard
June 9, 2017
Appeal
On appeal from the order of Justice Helen A. Rady of the Superior Court of Justice, dated October 27, 2016, with reasons reported at 2016 ONSC 6581.
Reasons for Decision
[1] The appellant, Mr. Speck, was a unionized Crown employee until 2014 when his employment was terminated following an investigation into alleged misconduct. He started a claim following his termination pleading conspiracy to injure and unlawful means conspiracy, misfeasance in public office, abuse of process, defamatory libel, and slander.
[2] The respondents are the Crown, several Crown managers, and a third-party hired by the Crown to investigate alleged misconduct against Mr. Speck.
[3] The respondents successfully brought a motion under r. 21.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to dismiss the appellant's claim on the basis that it falls under the terms of the collective agreement and therefore is within the exclusive jurisdiction of the Grievance Settlement Board. The motion judge held the essential nature of the claim arose out of the collective agreement.
[4] The appellant raises a number of grounds of appeal. In particular, he alleges the motion judge:
failed to follow the Supreme Court's decision in Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141;
made palpable and overriding errors on the facts;
misstated the legal test;
erroneously held the claims fell within the ambit of the collective agreement; and
failed to rule impartially.
[5] We would not give effect to any of the appellant's arguments.
[6] The motion judge did not err in applying the legal test or in characterizing the pleadings in this claim as arising out of the collective agreement. The Crown did not step outside the collective agreement when it suspended the appellant under the Public Service of Ontario Act, 2006, S.O. 2006, c. 35. In any event, suspensions fall within the interpretation, administration, application or violation of the collective agreement, even if non-disciplinary.
[7] The appellant relied heavily on the decision in Goudie. It involved a pre-employment agreement and is distinguishable on its facts. The appellant also relied on Piko v. Hudson's Bay Co. (1998), 41 O.R. (3d) 729 (C.A.), which involved conduct after the employment relationship had ended and is also distinguishable.
[8] With respect to the claims against Mr. Docherty, who was hired to investigate Mr. Speck's alleged misconduct, the question is not how Mr. Docherty is labelled, but the substance of his alleged conduct. All of Mr. Docherty's conduct as described in the statement of claim is properly characterized as falling within the disciplinary procedures of the collective agreement. The collective agreement expressly stipulates that no employee shall be disciplined or discharged without just cause. As a result, it is implicit that the Crown's managerial rights extend to investigating allegations of wrongdoing to determine if there is just cause to discipline or discharge an employee.
[9] Further, the issue of whether an employer's reliance on a third-party investigator falls outside of the collective agreement was addressed in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at paras. 74-78. In that case, the Supreme Court rejected the argument that hiring a private firm to investigate took the matter outside the scope of the collective agreement because, as in this case, the essential character of the investigation fell within the ambit of the agreement.
[10] Finally, the appellant submits the motion judge failed to address a number of issues he raised. She was not required to address all of the appellant's submissions, but only those that were relevant to the issue before her, which she did.
[11] There is no substance to the allegation of bias.
[12] Accordingly, the appeal is dismissed. Costs of the appeal are payable to the respondents and are fixed in the amount of $2,000 inclusive of disbursements and all applicable taxes.
Karen M. Weiler J.A.
K. van Rensburg J.A.
Grant Huscroft J.A.