COURT OF APPEAL FOR ONTARIO
CITATION: Donovan v. Waterloo (Police Services Board), 2022 ONCA 199
DATE: 20220310
DOCKET: C69467
Strathy C.J.O., Roberts and Sossin JJ.A.
BETWEEN
Kelly Lynn Donovan
Plaintiff/Responding Party (Appellant)
and
Waterloo Regional Police Services Board and Bryan Larkin
Defendants/Moving Parties (Respondents)
Kelly Lynn Donovan, acting in person
Donald B. Jarvis and Clifton Yiu, for the respondents
Heard: February 14, 2022 by video conference
On appeal from the order of Justice Thomas A. Bielby of the Superior Court of Justice, dated April 19, 2021, with reasons reported at 2021 ONSC 2885, and from the costs order, dated May 28, 2021.
REASONS FOR DECISION
[1] This is an appeal from the motion judge’s order pursuant to r. 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, dismissing this action for lack of jurisdiction.
Background to the Appellant’s Resignation and this Action
[2] The appellant is a former police officer, employed by the respondent Waterloo Regional Police Services Board (the “Board”). Her employment was subject to the terms of a collective agreement. The respondent Bryan Larkin (“Larkin”) was the Chief of Police.
[3] The following is a brief summary of the events giving rise to these proceedings.
[4] In May 2016, the Board gave the appellant notice of an investigation under the Police Services Act, R.S.O. 1990, c. P.15 (the “PSA”) related to her alleged disclosure of confidential information to the Board. On June 2, 2016, the appellant filed an application with the Human Rights Tribunal of Ontario (the “HRTO”), alleging that that Board had discriminated against her on the basis of sex and marital status.
[5] In February 2017, the appellant took medical leave for post-traumatic stress disorder as a result of observing an accidental shooting while studying to become a police constable at the Ontario Police College in February 2011.
[6] On June 8, 2017, the appellant entered into an agreement (the “Resignation Agreement”) with the Board. The appellant’s bargaining agent, the Waterloo Regional Police Association, was a party to the Resignation Agreement. That agreement expressly recognized that the appellant and the Board had an employee-employer relationship and that the appellant had notified the Board that she would be resigning her employment effective June 25, 2017.
[7] The Resignation Agreement recited the parties’ desire to “fully resolve and settle” the outstanding matters between them, namely the appellant’s HRTO application and the Board’s investigation into the appellant and the potential charges she faced under the PSA. It stated that the parties agreed upon “full and final settlement of all matters related to [the appellant’s] employment with or cessation of employment with the Board, and all other outstanding matters between them”. It was a term of the Resignation Agreement that the terms and existence of the agreement would be kept confidential except as required by law, disclosure to immediate family, or disclosure to professional persons providing advice. The parties also agreed to exchange releases and the appellant signed a full and final release that was appended to the Resignation Agreement.
[8] Although the Resignation Agreement is redacted, it is apparent that the appellant was paid some compensation in respect of her legal expenses incurred in connection with the HRTO proceedings and the potential PSA charges. She was also paid a lump sum payment, net of applicable deductions and remittances required by law, presumably as compensation for the termination of her employment.
[9] In May 2018, the appellant commenced this action, alleging a breach of the Resignation Agreement, seeking monetary damages and reinstatement to employment. She pleaded that Larkin had breached the Resignation Agreement because he had sworn an affidavit in defence of a class action against the Board, in which he allegedly disclosed information capable of identifying her as having resigned from the police force. The affidavit was allegedly posted on a website maintained by plaintiffs’ counsel in the class action.
[10] In June 2018, the Board filed an application for contravention of settlement with the HRTO, alleging that the appellant had repeatedly contravened the terms of the Resignation Agreement by stating that she had been constructively dismissed by the Board. The appellant filed a response and her own application for contravention of settlement in July 2018, alleging that Larkin breached the Resignation Agreement by swearing the affidavit in the class action.
[11] On February 1, 2019, Favreau J., as she then was, dismissed a motion brought by the appellant to dismiss the Board’s application to the HRTO, finding that the Superior Court had no jurisdiction to do so: Donovan v. (Waterloo) Police Services Board, 2019 ONSC 818, 49 C.P.C. (8th) 141. At para. 56 of her reasons, Favreau J. observed that it would be open to the appellant to raise before the HRTO the issue of jurisdiction over the enforcement of the Resignation Agreement and to respond to the Board’s position concerning the effect of that agreement:
… during the hearing of this motion, I sought assurances from the Board that it would not impede Ms. Donovan’s ability to make substantive arguments before the Human Rights Tribunal despite the fact that she may have missed some deadlines. In response, the Board’s counsel gave an undertaking in court not to take the position before the Tribunal that Ms. Donovan is out of time to raise substantive arguments in response to the application. Therefore, subject to the Tribunal’s ability to control its own process, at the Tribunal hearing Ms. Donovan should be allowed to raise issues she may wish to address about the Tribunal’s jurisdiction over enforcement of the Resignation Agreement and to fully respond to the Board’s position that the Resignation Agreement precludes her from speaking publicly about the matters the Board claims are captured by the confidentiality provision of the agreement.
The Motions in the Superior Court of Justice
[12] The respondents originally brought a motion to strike this action on three grounds: (i) r. 21.01(1)(b) (no reasonable cause of action); (ii) r. 21.01(3)(a) (no jurisdiction over the subject matter); and (iii) r. 21.01(3)(d) (frivolous or vexatious or an abuse of process). Doi J. (the “original motion judge”) dismissed the action under r. 21.01(1)(b), without leave to amend. While the other two grounds were fully argued before the original motion judge, he did not rule on them.
[13] On October 25, 2019, this court allowed the appellant’s appeal from the order of the original motion judge, set aside the order dismissing the action and granted the appellant leave to amend her statement of claim as against Larkin: Donovan v. Waterloo Regional Police Services Board, 2019 ONCA 845. No issues had been raised before this court with respect to the grounds that were not addressed by the original motion judge and this court did not address those grounds.
[14] The statement of claim has gone through four iterations, the current being a Fresh as Amended Statement of Claim, discussed below. Pursuant to this court’s order, the appellant filed an Amended Amended Statement of Claim on January 29, 2020.
[15] Shortly thereafter, counsel for the respondents sought directions from the original motion judge concerning the two issues that had not been addressed by his order. He determined that a fresh motion should be brought before another judge, pursuant to r. 59.06(1) of the Rules of Civil Procedure (sometimes referred to as the “slip rule”).
[16] The appellant subsequently filed a Fresh as Amended Statement of Claim on November 23, 2020. The motion to dismiss the action for want of jurisdiction was heard by a different judge (the “second motion judge”) on February 23 and March 1, 2021. In reasons released April 19, 2021, the second motion judge dismissed the action on the ground that the essential character of the dispute involved the appellant’s employment, which had been covered by a collective agreement and was subject to the dispute resolution and arbitration provisions of that agreement: referring to Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929; and Desgrosseillers v. North Bay General Hospital, 2010 ONSC 142.
This Appeal
[17] The matter now comes to us on appeal.
[18] The issue of jurisdiction calls for us to consider the pleading in the Fresh as Amended Statement of Claim. In her claim for relief, the appellant claims against both respondents, jointly and severally, for breach of contract, misfeasance in public office and negligence. She also claims separately against Larkin for damages for misfeasance in public office.
[19] The appellant pleads that:
• she entered into a Resignation Agreement on June 8, 2017, which contained a non-disclosure and confidentiality clause, requiring the parties to keep the existence and terms of the agreement confidential;
• Larkin took retaliatory action against her as a result of her complaints to the respondent Board concerning his conduct;
• Larkin swore an affidavit in defence of a class action lawsuit against the respondents that claimed damages for systemic and institutional gender-based discrimination and harassment;
• attached to Larkin’s affidavit was a chart listing HRTO complaints commenced by female employees of the Board within the preceding five years, including their status or resolution;
• the affidavit was published on the public website of the law firm advancing the class action lawsuit;
• although the affidavit did not identify the claimants, the chart contained sufficient information to enable the appellant to be identified as someone who had filed a human rights complaint and had voluntarily resigned from the Board;
• by swearing and delivering the affidavit, Larkin “used” her, “to attempt to stop the efforts of the [appellant’s] female colleagues in their fight for justice”;
• the class action was dismissed as a result of a motion that relied on Larkin’s affidavit;
• Larkin was aware of the terms of the Resignation Agreement, including that it was confidential;
• by swearing the affidavit, Larkin deliberately involved her in the class action lawsuit and violated the terms of the Resignation Agreement, knowing that it would impede her recovery from post-traumatic stress disorder;
• in January 2018, the Board appealed a WSIB claim she had made. Although she does not explicitly plead it, she is presumably asserting that the Board breached the Resignation Agreement by engaging in further legal proceedings against her; and
• she “claims the relief as set out in paragraph 1 of the Statement of Claim for two distinct and separate breaches of the resignation agreement by the defendant Board and the individual defendant.”
[20] The appellant raises five grounds of appeal, which we address in order.
(1) Improper Procedure
[21] The appellant submits that the motion was not properly before the second motion judge because it could have been addressed by way of a r. 59.06 motion brought before the original motion judge and prior to the appeal, by filing a cross-appeal to this court, or filing a r. 59.06 motion to this court.
[22] We do not accept this submission.
[23] As the issue of jurisdiction was not addressed by the original motion judge or by either party on the previous appeal to this court, there is no impediment to raising it on this appeal.
[24] The matter was properly before the second motion judge, although not pursuant to the “slip rule”. Rather, a remedy was available under r. 59.06(1) of the Rules of Civil Procedure, “to ... obtain other relief than that originally awarded”. Alternatively, it was open to the respondents to bring a free-standing motion to raise the issue of the court’s jurisdiction, given the delivery of the Fresh as Amended Statement of Claim.
(2) Jurisdiction
[25] The appellant submits the Superior Court of Justice has jurisdiction over her claims and that jurisdiction has not been removed by arbitral agreement. She relies on Skof v. Bordeleau, 2020 ONCA 729, 456 D.L.R. (4th) 236, leave to appeal refused, [2021] S.C.C.A. No. 17. She argues that there is nothing in the applicable collective agreement to oust the court’s jurisdiction and that as a former member of the police force and no longer a member of the bargaining unit, she has no standing before the Ontario Police Arbitration Commission. She submits that, as in Skof, she is seeking a remedy for misfeasance in public office, which does not fall within the jurisdiction of an arbitrator. She submits that the principles in Weber and St. Anne Nackawic Pulp & Paper v. CPU, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704, have no application.
[26] Skof is plainly distinguishable because this court found, at para. 17, the dispute related to disciplinary proceedings in a regulatory context and did not fall within the collective agreement. This basis alone justified the second motion judge in distinguishing Skof.
[27] The second motion judge did precisely what the authorities require. He searched for the “essential character” of the dispute and found, at para. 80, that the Resignation Agreement was executed in the ambit of the collective agreement and took its essential character from the collective agreement. It was the product of a negotiated agreement of all outstanding employment matters between the parties. We see no error in this characterization.
[28] However, the motion judge did not grapple with the question of whether the appellant will be permitted, under the collective agreement or the Resignation Agreement, to invoke the grievance procedure now that she is no longer employed by the respondent. This affects the outcome.
[29] In Skof, explicit provisions of the memorandum of agreement unequivocably provided that the collective agreement did not apply to the appellant in that case, other than with respect to his salary and benefits, while he was on a leave of absence as the president of the Ottawa Police Association. As a result, there was no question that the grievance procedure under the collective agreement was not available to him.
[30] Here, there is no evidence that the appellant will be permitted to invoke the grievance procedure now that she is no longer an employee. The collective agreement is silent with respect to this issue. Moreover, the Resignation Agreement provides in para. 1 that upon her resignation, she ceases “to be an employee of the Board for any and all purposes at law whatsoever”.
[31] The record does not permit us to decide this issue. An arbitrator is best placed to interpret the collective agreement and the Resignation Agreement and determine whether the appellant is precluded from invoking the grievance procedure to pursue her remedies.
(3) Bad Faith
[32] The appellant submits that in pursuing this matter, the respondents are acting in bad faith by failing to raise the issue of jurisdiction in a timely way and that they are using the court process for an improper purpose. As we find the respondents were entitled to have the issue of jurisdiction determined, this submission fails.
(4) Apprehension of Bias
[33] In her factum, the appellant makes an allegation of reasonable apprehension of bias against the second motion judge.
[34] The motion occupied two days, February 23 and March 1, 2021. Due to the pandemic, the hearings were heard remotely. There was a “Zoom bombing” during the first hearing, when unknown persons viewing the hearing remotely displayed what has been described as sexually explicit and racist imagery on the screens of all viewers.
[35] The appellant states that following the hearing, CBC news published an article that insinuated that she was to blame for the disruption, because she had shared the public Zoom link with her “followers”, presumably referring to her followers on social media. In her factum, she states that she had distributed the Zoom link and the court’s “Zoom User Guide for Remote Hearings” to her followers and pointed out to them the section that explains that court permission was required to share screens. She states that she believed her followers would only be able to observe the proceeding.
[36] Subsequently, prior to the March 1, 2021 hearing, the Regional Senior Judge gave directions that the Zoom details of the March 1, 2021 hearing were not to be published or distributed without the prior written order of the presiding judge or the Regional Senior Judge.
[37] On the basis of the foregoing, the appellant states that she “believes that she was wrongfully blamed for the ‘Zoom bombing’ incident”, and that this resulted in an apprehension of bias against her because the second motion judge decided in favour of the respondents, which was a “marked departure from established legal principles.”
[38] The appellant did not pursue this issue in oral submissions, possibly because she had reached the end of her time allocation. However, she did not expressly withdraw the submission. Asserting that a judge has departed from the law because of bias against a litigant is a very serious allegation. Although the appellant is self-represented, her written materials and oral submissions demonstrated a high level of sophistication. She clearly appreciates the meaning and consequences of her words. In this case, there was no evidentiary basis for the allegation, and it can be described as “spurious”. Her submission therefore fails.
(5) Litigation Efficiency
[39] The appellant submits that the second motion judge erred in failing to convert the motion before him to a motion for judgment “as the best way to achieve the most just, most expeditious, and least expensive result”, in accordance with r. 37.13(2)(a) of the Rules of Civil Procedure.
[40] The short answer to this submission is that this was not fully argued before the second motion judge, and it would not have been appropriate for him to grant it in these circumstances, nor would it be appropriate to grant on this appeal: see McCracken v. Canadian National Railway Company, 2012 ONCA 445, 111 O.R. (3d) 745, at para. 141.
Conclusion
[41] For these reasons, we agree with the respondents’ submission that the appellant’s claims are subject to determination pursuant to the procedures set out in the collective agreement and the PSA. To the extent that the claim seeks relief that is not available under the collective agreement or the PSA, it is subject to the jurisdiction of the HRTO, in which both parties have asserted claims that are currently outstanding.
[42] We therefore dismiss the appeal. In the particular circumstances of this case, however, we vary the order of the Superior Court by staying this action until such time as the appellant’s remedies under the collective agreement and in the HRTO have been exhausted.
[43] Only at that point will this court determine whether it should exercise any residual discretion it may have to grant relief that is not available under the statutory labour arbitration regime or in the HRTO.
[44] In her supplementary notice of appeal, the appellant indicates that she also wishes to appeal from the costs award below. In light of our disposition of the appeal and given that the appellant made no arguments to support this position separately, we see no basis to overturn the costs award below.
[45] We did not hear submissions on costs of the appeal. Costs may be addressed by written submissions. The respondents shall have 15 days within which to deliver their submissions. The appellant shall have 15 days after receipt of the respondents’ submissions to reply. The costs submissions shall be limited to five pages in length, excluding costs outlines.
“G.R. Strathy C.J.O.” “L.B. Roberts J.A.” “L. Sossin J.A.”