Citation
CITATION: Joseph v. Canada School of Public Service, 2024 ONSC 1041
DIVISIONAL COURT FILE NO.: DC-22-2791
DATE: 20240221
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: ELSA JOSEPH, Respondent (Plaintiff)
-and-
CANADA SCHOOL OF PUBLIC SERVICE, OTTAWA POLICE SERVICES BOARD AND CONSTABLE SEBASTIEN J. LEMAY, TAKI SARANTAKIS, PIERRE LEDUC, PIERRE SUPRENANT, LOUIS DESRASPE, WENDY BULLION-WINTERS, CONSTABLE GINO M. ST-LOUIS, and SERGEANT GUY J. THIVIERGE, Appellants (Defendants)
BEFORE: E. Stewart, Myers, and Leiper JJ.
COUNSEL: Elsa Joseph, speaking for herself
Jennifer Francis and Meg Jones, for the appellants
HEARD at Ottawa (by Videoconference): February 7, 2024
ENDORSEMENT
Background
[1] The Appellants, Canada School of Public Service and Pierre Leduc, appeal the order of Justice Charles T. Hackland dated February 9, 2023. This court previously granted leave to appeal under s. 19 (1)(b) of the Court of Justice Act, RSO 1990, c C.43.
[2] In the order under appeal the motion judge dismissed the defendants’ motion to stay or dismiss the plaintiff’s claims against her former employer Canada School of Public Service and its employee Pierre Leduc for the two privacy torts of breach of privacy and intrusion upon seclusion.
[3] The defendants moved to dismiss the plaintiff’s claims under Rule 21.01 (3)(a) of the Rules of Civil Procedure, RRO 1990, Reg 194 on the basis that the court lacks jurisdiction to hear the plaintiff’s claims.
[4] Other than the two privacy torts under appeal, the motion judge dismissed all the plaintiff’s remaining claims on the basis that the claims arose from the plaintiff’s employment and therefore could only be brought by way of grievance(s) under the Federal Public Sector Labour Relations Act, SC 2003, c 22, sched. 2.
The Facts
[5] Ms. Joseph’s job required her to have security clearance.
[6] On February 14, 2019, Ms. Joseph used her employer’s fax machine to send a purchase order for her then partner seeking to buy gun parts from a US vendor. Another employee found the sent fax and did not recognize the sender’s name. The employer commenced a security investigation.
[7] There is a lengthy factual narrative of efforts over some time concerning the employer’s investigation of the fax and Ms. Joseph’s conduct. Ultimately her security clearance was revoked and she was fired from her job because she lacked the necessary security clearance.
[8] Ms. Joseph brought numerous grievances as a result of these events as provided for in the collective agreement between her employer and her union. Ms. Joseph’s union represented her in the grievance proceedings.
[9] Ms. Joseph also brought this lawsuit in which she is self-represented.
[10] The motion judge recognized that under the federal labour statute, issues concerning the terms and conditions of Ms. Joseph’s employment cannot be the subject of a lawsuit in this court. Labour issues are subject to grievance proceedings only. As a result, the judge dismissed all of Ms. Joseph’s claims except the two privacy torts pleaded against the employer and Mr. Leduc.
[11] In her affidavit filed for use on the underlying motion, Ms. Joseph describes her privacy claims as follows:
Criminal Proceedings Outside the Scope of the Collective Agreement
As stated in my Statement of Claim, on February 14, 2019, I used the fax at the CSPS for limited personal use for a legal transaction to send an end-user form for legal accessory parts for which the appropriate PAL licenses were in place to a legal gunsmithing company.
On February 15, 2019, Mr. Pierre Leduc, a former RCMP officer, inappropriately used his personal policing connections to obtain the assistance of the [Ottawa Police Service “OPS”] defendants in launching an unwarranted criminal investigation of myself and my partner at the time, Mr. Adam Toy. Mr. Leduc was also copied on email communications with the RCMP pertaining this criminal investigation. (Exhibit E)
On March 4, 2019 Mr. Pierre Leduc abused his authority and used government assets to search for my name, my date of birth and address and provided it to the police without my consent or knowledge. (Exhibit F)
On March 10, 2019 CSPS defendant, Mr. Pierre Leduc, informed the Ottawa Police they were moving to take a statement from me, for which I had a right to remain silent. ( See Exhibit F)
As stated above, on March 12, 2019, my former employer (CSPS) subjected me to a traumatic enhanced profiling and criminal investigation involving the Ottawa Police. I am persuaded now that the language and the method of interrogation used during the March 12, 2019 interview was for the purpose of obtaining a statement of evidence from a possible criminal suspect. (Exhibit G-Tape)
Throughout this ordeal, the CSPS officials have repeatedly threatened to call the police as I attempted to follow up on or respond to these matters (March 12, 2019; December 11, 2019; March 25, 2020). I was also informed by my union representative Mr. Patrick St-Georges that CSPS defendant Ms. Wendy Bullion- Winters attempted to incite police involvement with a false, inflammatory and stereotypical statement during a March 22, 2019 telephone call about my case ("she has a gun and knows how to use it.").
CSPS defendants Pierre Leduc and Louis Desraspe repeatedly made comments in meetings and official reports pertaining to this matter concerning suspected (alleged) "criminal activity" involving myself and Mr. Toy. (Exhibit H)
On January 2nd, 2020 the Ottawa Police again accessed my gun file and entered another event #6706159 without my knowledge and consent. It was only reported to me on March 10, 2021 because of an Access to Information request related to my gun file that I had filed with the Royal Canadian Mounted Police. (Exhibit I)
Most recently, on September 2, 2021, the Ottawa Police Statement of Defense for this matter confirms at paragraph 10 that Mr. Leduc unlawfully disclosed the personal information of all employees who swiped into the secured floor at the CSPS on February 14, 2019 to the Ottawa Police Reporting Unit and copied OPS defendant Constable Sebastien J. Lemay.
The Issue and Standard of Review
[12] The issue below and on this appeal was whether the essential character of Mr. Leduc’s allegedly unlawful contact with the Ottawa police related to the terms and conditions of Ms. Joseph’s employment. The motion judge recognized that if the alleged tort related in its essential character to the employment relationship, then the lawsuit could not proceed.
[13] We review the judge’s decision under the usual appellate standard of review as required by the Supreme Court of Canada in Housen v. Nikolaisen, 2002 SCC 33. If the judge erred in law, we must correct the error. Errors of fact or mixed fact and law are only subject to being overruled however if the errors are both palpable and overriding (i.e., clear on the record and important to the outcome).
Analysis
[14] The judge below made no errors of law. He understood the breadth accorded to considerations of whether a matter falls within the category of grievable claims. In para. 11 of the decision, he wrote:
[11] I would emphasize that what is grievable is not restricted only to issues arising from the collective agreement but also includes the application of federal statutes regulations and government directives in the workplace. This would include the Privacy Act, the alleged breach of which features prominently in the Plaintiff's allegations in her statement of claim.
[15] The judge considered two decisions of the Court of Appeal in Piko v. Hudson's Bay Co. and Rukavina v. Ottawa (Police Service Board), 2020 ONCA 533. In both cases, the Court of Appeal held this court has jurisdiction to hear actions against employers who reported misconduct to the police leading to criminal charges being brought. The Court of Appeal held such claims to be outside the scope of grievable employment issues.
[16] After reviewing the pleadings, the evidence permitted to be adduced on the motion, and the law, the motion judge held:
[29] In the Court's opinion, the allegations in the statement of claim alleging the torts of breach of privacy and intrusion upon seclusion directly relate to the employer's actions in involving the police. Assuming for the purposes of this motion that the pleaded allegations are true, the privacy breaches arose in the context of the police involvement and the information provided to the police by the employer. Based on the rulings of the Court of Appeal, referred to above, the essential character of these torts, relating to police involvement and potential resort to the criminal process, are not matters arising from the collective agreement. As such, they are actionable in the courts. The Defendant's security officer, Mr. Leduc, who interacted with the police as well as the employer, the CSPS on a vicarious liability basis, may be sued in the courts.
[17] The appellants submit that the motion judge erred by failing to recognize that Mr. Leduc’s contact with the Ottawa police was part and parcel of the employer’s security investigation concerning Ms. Joseph’s employment (mis)conduct. If that fact is found, they submit, then the essential character of the plaintiff’s claims must fall within the broad scope of what is grievable under the applicable federal labour laws. The appellants also submit that the motion judge erred by failing to distinguish the two Court of Appeal decisions on their facts from the facts before him.
[18] Unfortunately, the appellants did not deliver evidence from Mr. Leduc or from anyone else to swear that his contact with the police was part of the employer’s investigation of the plaintiff’s alleged employment issues. The plaintiff put into evidence a log allegedly created by Mr. Leduc showing his contact with the police among his other activities. But the log is unsworn. The plaintiff obtained it through Freedom of Information requests. The log
does not say what the scope of a regular investigation by the employer entails or whether Mr. Leduc was on a frolic of his own or abusing his authority as claimed by Ms. Joseph in her affidavit paragraphs quoted above.
[19] Reading the motion judge’s reason as a whole, he was alive to the breadth of the plaintiff’s entitlement to grieve. On the evidence before him, the motion judge was not able to find as a fact that Mr. Leduc’s contacts with the police were part of the employment context. Neither was he able to draw nuanced factual distinctions concerning the Court of Appeal’s jurisprudence as sought by the appellants.
[20] The experienced motion judge made no palpable error of fact or in applying the law to the facts. He was dealing with an interlocutory pleadings motion on the evidentiary record before him. We note, in passing, that this decision does not prevent the issue of jurisdiction from being revisited at a later stage in the proceedings upon a fuller record.
[21] The appeal is dismissed. As Ms Joseph did not participate in the appeal, there are no costs.
“E. Stewart J.”
“Myers J.”
“Leiper J.”
Date: February 21, 2024