ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 14-59985
DATE: 2015/07/03

BETWEEN:

Susan Arsenault
Plaintiff/Responding Party

– and –

Government of Nunavut
Defendant/Moving Party

Michael Marin, for the Plaintiff/Responding Party

Jock Climie and Porter Heffernan, for the Defendant/Moving Party

HEARD: February 25 and May 20, 2015

REASONS FOR DECISION

POLOWIN J.

[1] The Plaintiff, Susan Arsenault, is a former employee of the Defendant Government of Nunavut (the “GN”). She lived and worked for the GN in Iqaluit for several years. She has brought a claim for wrongful dismissal against the GN in the Ontario Superior Court of Justice.

[2] The GN brings this motion pursuant to Rule 21.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 [Rules] and s. 106 of the Courts of Justice Act, R.S.O. 1990, c. C.43 [C.J.A.], for a dismissal or permanent stay of the proceeding. The GN submits that this Court does not have jurisdiction because there is no real and substantial connection between the Plaintiff’s cause of action and the province of Ontario. In the alternative, the GN submits that Nunavut is clearly a more appropriate forum for the proceeding. For reasons that follow, I am granting the motion.

Background

[3] Nunavut is Canada’s largest territory, and is distinctive, geographically, demographically, and politically. Approximately 85 percent of the population of Nunavut is Inuit, with the majority speaking Inuktitut or Inuinnaqtun as their first language. The GN is a non-party territorial government. Its operations are decentralized throughout the Territory of Nunavut, although the majority of its approximately 3,000 employees work and reside in Iqaluit which has a population of approximately 7,000. The GN is the largest employer in Nunavut.

[4] It appears that the GN relies heavily on people from outside the Territory to fill public service positions including at the professional level. According to the Public Service 2011-2012 Annual Report only 27% of the GN’s professional employees were Inuk. A 2010 Auditor General of Canada Report found that there is a shortage of qualified Inuk to fill positions in the GN, particularly at the professional level. Ms. Arsenault submits that in order to fill these positions, the GN’s recruitment efforts target skilled people from the south, including Ontario, offering subsidized housing. The Nunavut Bureau of Statistics Migration Data indicates that more people move to Nunavut from Ontario every year than from any other province.

[5] Ms. Arsenault was living in Ontario in 2002. In July 2002 she saw a job posting on Workopolis.com for a Bilingual Staffing Consultant position with the GN’s Department of Human Resources. She submitted her application for the position through the Workopolis website and was interviewed over the telephone. By letter dated September 13, 2002, the GN offered Ms. Arsenault employment as a full-time indeterminate Staffing Consultant in Iqaluit, Nunavut. This letter of offer was sent by facsimile on September 18, 2002. She accepted by facsimile on September 19, 2002.

[6] The letter of offer set out the basic terms of Ms. Arsenault’s employment with the GN, including entitlement to a Northern Allowance which is paid in order to compensate for the high cost of living in the North. Ms. Arsenault also received other assistance in relocating to Iqaluit including paying for her flight, moving and storage expenses, hotel and food reimbursement and subsidized housing.

[7] The letter of offer also indicated that Ms. Arsenault’s terms and conditions of employment would be governed by the GN’s Excluded Employees’ Handbook. Of particular note to this case is s. 20 of this Handbook. It requires an excluded employee to seek and obtain permission of their Deputy Head if they wish to hold employment other than their primary position with the GN

[8] The letter of employment was prepared in Nunavut. It offered Ms. Arsenault employment in Nunavut. According to GN, given that the parties’ obligations under the contract were to be performed in Nunavut, it was always intended to be governed by the laws of Nunavut. In fact, during Ms. Arsenault’s nine years of work with the GN she worked and resided in Nunavut.

[9] As with all employees of the GN, Ms. Arsenault’s terms and conditions of employment were governed by the Public Service Act, SNu. 2013, c. 26 and Regulations, which provides the legislative authority, rules, and procedures for the appointment, direction, employment terms and conditions and collective bargaining for Government employees. The Human Resources Manual, the Management Handbook and the Excluded Employees Handbook also applied.

[10] Over the years, Ms. Arsenault occupied various positions in the Department of Human Resources. However, between July and October 2010 she filed two harassment complaints against the Deputy Minister of Human Resources, Ms. Louise Wasson, pursuant to the GN’s HRM Directive 1010, “Workplace Harassment Policy”. The GN hired Andrew Tremayne, an Ottawa-based employment lawyer, to investigate Ms. Arsenault’s complaints of harassment.

[11] During the course of his investigation Mr. Tremayne interviewed a number of individuals that will be material witnesses in this proceeding. He concluded that Ms. Arsenault’s complaints were partially founded. He concluded that Ms. Wasson’s comments in a meeting on May 19, 2010 “demeaned and embarrassed Ms. Arsenault”, “damaged [her] self-esteem” and constituted harassment.

[12] According to Ms. Arsenault, the harassment she experienced while employed by the GN caused her to develop severe mental illness, and forced her to go on sick leave on January 28, 2011. On February 23, 2011, Dr. Laura Knebel wrote to the GN stating that Ms. Arsenault had been diagnosed with Severe Adjustment Disorder and that the cause of her symptoms was a toxic work environment. In April 2011 Ms. Arsenault applied for long-term disability benefits and Great-West Life Assurance Company (“Great-West Life”) approved her long-term disability claim in June 2011. She remains on long-term disability benefits to date.

[13] I do not intend to detail the extent of Ms. Arsenault’s mental health difficulties in these Reasons. Suffice it to say that for the first half of 2011, she isolated herself in her apartment in Iqaluit. According to Ms. Arsenault, Iqaluit is a very small place where everyone knows each other. People asked her why she was no longer at work and what happened to her. She did not want to answer these questions. In January 2012, she had another confrontation with the Defendant regarding her entitlement to medical travel benefits. According to Ms. Arsenault, by April 2012, she was tired of being isolated in her apartment and fighting with the GN, so she left Iqaluit permanently and has not returned since.

[14] According to Ms. Arsenault by late summer 2012 her mental health deteriorated. She experienced recurring nightmares about her experiences in Iqaluit and contemplated suicide. On August 29, 2012, she went to the emergency room at the Queensway-Carleton Hospital in Ottawa and was diagnosed with post-traumatic stress disorder (“PTSD”). Her family physician, Dr. Svetlana Neskovic also diagnosed her with PTSD, depression and anxiety. She referred Ms. Arsenault to Dr. Brown for treatment. In May 2013, Ms. Arsenault began to receive counselling from psychological associate Marjorie Coristine and occupational therapy from Ingrid Neufield. Both Ms. Coristine and Ms. Neufield have advised Ms. Arsenault that she is not ready to return to Iqaluit, and that returning there in order to pursue her claim against the GN could be detrimental to her mental health and jeopardize her recovery date.

[15] Ms. Arsenault states that due to her mental health condition she cannot return to Nunavut, particularly in the context of a proceeding against the GN. It would separate her from her professional and social support network on which she depends and at a time when she would need them most. She is afraid that going back to Nunavut would cause her to have a breakdown like she did in the fall of 2012, and set her back in her recovery. She also fears being the “talk of the town” and states that if she has to return to Iqaluit to hold the GN accountable she will have “nowhere to hide”.

[16] Ms. Arsenault’s employment was terminated by the then Deputy Minister of Human Resources, Joe Adla Kunuk by way of a letter written to her dated September 19, 2012. In early August 2012 the GN became aware that Ms. Arsenault had started full-time work with an employer in Ontario as of May 2012. The GN became aware of this employment as a result of a letter which Great-West Life sent to the GN’s Compensation and Benefits Department, in which they wished Ms. Arsenault success in her new job. Up to this point it had been GN’s information that Ms. Arsenault was on Long-Term Disability Benefits. Ms. Arsenault had not sought permission to take outside employment in another jurisdiction, nor had she advised the GN that she had done so. According to the GN, Ms. Arsenault was in breach of s. 20 of the Excluded Employees’ Handbook and subsection 203(8) of the Human Resources Manual – Outside Employment. Subsection 203(8) prohibits GN employees from taking supplementary employment if it is conducted during the employee’s normal working hours.

[17] In her Affidavit, Ms. Arsenault explained that in November 2012, she told her family and friends that she wanted to commit suicide. Since her healthcare benefits were cut off when her employment was terminated, she was not receiving proper treatment for her mental illness. With nowhere to turn she ended at a hospital in Gatineau in November 2012. According to Ms. Arsenault she then developed a gambling addiction, which she attributes to the mental illness brought on by the GN’s conduct. Ms. Arsenault lost approximately $150,000.00 at the Lac-Leamy Casino in Gatineau.

[18] In her Affidavit, Ms. Arsenault explained the circumstances surrounding her taking on employment in 2012. After not working for over a year she was feeling isolated and lonely. In the spring of 2012, she consulted Laurie Weir, her Rehabilitation Specialist at Great-West Life, about a job opportunity in her field at the Brockville Mental Health Centre (“BMHC”) as a Labour Relations Officer. Ms. Weir advised her that sometimes returning to work could alleviate the symptoms she was experiencing and aid in the recovery process. Ms. Weir further stated that if Ms. Arsenault’s return to work turned out to be premature, Great-West Life would consider this a reoccurrence of her illness and reinstate her benefits.

[19] According to Ms. Arsenault she took the position at the BMHC to get better. At the time she was living in Ottawa and medically unable to return to Iqaluit, much less work for the GN. However she was not ready to go back to work and on September 26, 2012, she was dismissed from the BMHC during the probationary period. She was reinstated on disability benefits by Great-West Life in May 2013.

... (continues verbatim in the same structure and wording as the original judgment) ...

POLOWIN J.

Released: July 3, 2015