Court File and Parties

CITATION: Todd Speck v. Her Majesty the Queen, 2016 ONSC 6581

COURT FILE NO.: 314/15

DATE: 2016/10/27

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Todd Speck (Plaintiff)

AND:

Her Majesty the Queen in Right of Ontario, Susan Fitzpatrick, Beverly Lyman, Pauline Ryan and James Docherty (Defendants)

BEFORE: Justice H. A. Rady

COUNSEL: Todd Speck, self-represented Daniel Mayer, for the defendants

HEARD: October 12, 2016

ENDORSEMENT

introduction

[1] The defendants, relying on Rule 21.01(3), move for an order dismissing this action. They submit that the claim falls under the terms of a collective agreement and therefore is within the exclusive jurisdiction of the Grievance Settlement Board. Accordingly, the court has no jurisdiction to adjudicate the claim. The plaintiff submits that properly characterized, his claim does not fall within the terms of the collective agreement but rather concerns the actions taken by the defendants prior to the termination of his employment, which are independently actionable in tort.

The Parties

[2] The plaintiff was an employee of the Crown from June 4, 2002 to February 3, 2014 working for the Ministry of Health (MOH) during that time except for a stint as a student-at-law with the Ministry of the Attorney General (MAG) at the Financial Services Commission of Ontario (FSCO). The claim concerns the plaintiff’s tenure at the MOH.

[3] Ms. Fitzpatrick was an assistant deputy minister at the MOH. Ms. Ryan was the Director of the Health Services Branch at the MOH. Ms. Lyman was a senior manager with the same ministry. Mr. Docherty was hired to investigate a complaint of misconduct levelled at the plaintiff.

The Claim

[4] The plaintiff issued a Statement of Claim dated March 20, 2015, in which he claims general damages of $3,000,000 and punitive and aggravated damages totalling $1,000,000 for:

• conspiracy to injure and unlawful means conspiracy;

• misfeasance in public office;

• abuse of process;

• defamatory libel; and

• slander.

[5] The plaintiff helpfully summarized the facts central to the dispute at para. 18 of his factum. He alleges that the defendants:

• agreed to hire an outside contractor to conduct an internal tribunal with evidence supplied by the other defendants and the ‘findings’ of that tribunal preordained beforehand, in the full knowledge that such a course of action was unlawful and in breach of existing labour arbitration jurisprudence and principles;

• did so in order to subvert the statutory labour arbitration scheme by hiring a third party to present the eventual labour arbitrator with a prejudicial report designed to provide the appearance of just cause as determined by a neutral arbiter;

• breached corporate policy by aborting an existing investigation and converting it to an ‘external’ investigation;

• used the corporate policies developed in compliance with the Occupational Health and Safety Act, unlawfully, as a means of harming the plaintiff;

• used a statutory authority unlawfully in order to further a conspiracy to harm the plaintiff, specifically, in that this authority was exercised in the absence of allegations against the plaintiff;

• breached corporate policy by taking action against a subordinate in the absence of complaints under the policy;

• breached corporate policy by making a series of frivolous and vexatious complaints against the plaintiff on behalf of third parties who were unaware that they were ‘victims’ of alleged inappropriate actions by the plaintiff;

• breached corporate policy by basing allegations on incidents that were too old to be the subject of complaint or investigation under the policy;

• breached corporate policy by taking action against the plaintiff in reprisal for his exercising his rights in the workplace;

• contracted with an outside agent (the defendant DOCHERTY) to have that agent conduct an internal tribunal and produce a report that would provide the pretext that the employer had just cause for terminating the plaintiff;

• in defiance of labour jurisprudence, to compile a list of incidents of alleged misconduct by the plaintiff in order to supply the contracted agent with material for use in his report;

• regularly, routinely, and deliberately breached corporate policy in the conduct of the alleged ‘investigation,’ particularly procedural protections designed to protect subjects of an investigation, including excluding witnesses, supressing evidence, narrowing the scope of inquiries to focus only on the actions of the plaintiff, and providing all of the evidence, allegedly meant to be uncovered by the ‘investigator’; and

• that the defendant Docherty, knowingly acted in furtherance of the goals of the other defendants, producing a report based upon their evidence, and making ‘findings’ while acting as a tribunal.

The Issue

[6] The issue on this motion can be briefly stated. Is the plaintiff’s claim, properly characterized, a dispute that falls within the terms of a collective agreement between the parties? The court’s jurisdiction depends on the answer to this question.

Background

[7] As already noted, the plaintiff was employed by the Crown from 2002 until 2014. He was a program analyst at the MOH. He took a leave of absence from September 2008 to May 2011 to complete a law degree. He returned to the MOH on May 2, 2011 to his prior position.

[8] There followed several workplace disputes. On December 17, 2012, a letter of reprimand was placed in the plaintiff’s employment file arising from an email sent by the plaintiff to his supervisor that was said to be disrespectful. In February 2013, he was suspended with pay while an investigation was carried out by Mr. Docherty under two Crown workplace policies – the Discrimination and Harassment Prevention and Violence Prevention policies.

[9] While the investigation was ongoing, the plaintiff was permitted to transfer to work as an articling student at FSCO on a temporary basis. Prior to his secondment, the plaintiff was told the investigation would continue and that disciplinary action was a possible outcome. He began his articles on July 29, 2013.

[10] On February 3, 2014, the MOH notified the plaintiff by letter that the investigation had concluded he had violated the above referenced workplace policies and his employment was terminated for cause. Because he was no longer a Crown employee, his articling position was also terminated by virtue of s. 40 of the Public Service of Ontario Act, 2006.

[11] While with the MOH, the plaintiff was in a bargaining unit represented by the Association of Management, Administrative and Professional Crown Employees of Ontario (AMAPCEO). While articling, the plaintiff was in a bargaining unit represented by the Association of Law Officers of the Crown (ALOC).

[12] Following the termination of his employment, the plaintiff filed five grievances under the AMAPCEO and one under the ALOC collective agreements. The plaintiff sought these remedies:

• removal of the letter of reprimand of December 17, 2012 from his employee file;

• a declaration that he was wrongfully suspended as of February 19, 2013;

• payment of his pay-for-performance bonus for the fiscal year ended March 31, 2013;

• reinstatement with the MOH or MAG;

• monetary compensation for mental distress;

• damages for bad faith; and

• “other redress that may be necessary to make [him] whole”.

[13] An arbitration of the plaintiff’s several AMAPCEO grievances is underway and certain preliminary decisions have been released. One decision has determined that a finding of just cause under the AMAPCEO agreement applies to the AMOC agreement (See the Decision of Vice Chair Albertyn dated November 19, 2014 reported at 2014 CanLII 74772).

[14] The parties are agreed that the agreement at issue is the AMAPCEO. The AMAPCEO collective agreement is made pursuant to the Crown Employee Collective Bargaining Act, 1993.

[15] Excerpts of the AMAPCEO are reproduced here:

Article 2 – Non-Discrimination/Harassment/Sexual Harassment

2.1 It is understood that the parties are committed to principles which will foster and encourage diversity in the workplace.

2.2.1 There shall be no discrimination or harassment practised by reason of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status, same sex partnership status, or disability, as defined in section 10(1) of the Ontario Human Rights Code (OHRC).

2.2.2 The Employer has a general duty to take every precaution *reasonable in the circumstances to protect an employee from personal harassment. Personal harassment is engaging in a course of vexatious comment or conduct against an employee in the workplace that is known or ought reasonably to be known to be unwelcome.

[16] Section 23 sets out the policy respecting sexual harassment which need not be referred to here.

Article 3 – Management Rights

3.1 Subject only to the provisions of this Agreement, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause.

Article 15 – Dispute Resolution Procedure

15.1 Statement of Intent

The Employer and the Association acknowledge the importance of resolving disputes arising from the interpretation, application, administration or alleged violation of this agreement (hereafter referred to as “disputes”), at an early stage, and, wherever possible, at the local level, in order to foster a harmonious and productive working environment…

[17] I pause here to note that the agreement goes on to set out a two stage process for formal resolution. If no resolution is achieved at stage two, the parties have to resort to arbitration.

15.10 Arbitration Provisions

15.10.1 Where a complaint or dispute is referred to arbitration, the arbitrator shall make a final and conclusive settlement of the differences between the parties, including any question as to whether a matter is arbitrable…

15.10.5 The parties may agree to refer any complaint to a mediator/arbitrator who shall have all the powers of an arbitrator under the Labour Relations Act, including the powers of a mediator/arbitrator under the Labour Relations Act, and the decision of the mediator/arbitrator shall be final and binding upon the parties…

Article 20 – Discipline and Discharge

20.1 No employee shall be disciplined or discharged without just cause. It is understood that disciplinary measures will be appropriate to their cause and subject to the principles of progressive discipline.

20.2 An employee shall be advised of the reasons for disciplinary action. When an employee is to be discharged or suspended, he or she shall be advised in writing of the reasons for such action.

20.3 It is understood that nothing in Article 20 confers on a probationary employee any right to grieve or arbitrate his or her dismissal.

[18] The Crown Employees Collective Bargaining Act provides as follows:

7. (1) The operation of section 48 of the Labour Relations Act, 1995 is subject to the modifications set out in this section.

(2) Subsections 48 (1) to (6) of the Labour Relations Act, 1995 do not form part of this Act.

(3) Every collective agreement relating to Crown employees shall be deemed to provide for the final and binding settlement by arbitration by the Grievance Settlement Board, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

[19] Section 48 of the Labour Relations Act (with the exception of s. 48(1)-(6) which are excluded as noted above) sets out a comprehensive code for the procedure and powers of an arbitrator.

The Law

[20] The parties are agreed that the leading case is Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929. They differ on the proper interpretation of the decision as it relates to this case. The majority judgment was written by Chief Justice McLachlin. The issue before the court was whether the plaintiff’s tort claims for trespass, nuisance, deceit and invasion of privacy and his claim for Charter damages fell within the jurisdiction of the court or the arbitration provisions of a collective agreement between the union to which he belonged and his employer.

[21] The court reviewed the three different approaches that had developed to the effect of final and binding arbitration clauses: the concurrent, the overlapping and the exclusive jurisdiction models.

[22] The majority concluded that mandatory arbitration clauses (such as s. 45(1) of the Ontario Labour Relations Act under consideration in the case) generally conferred exclusive jurisdiction on labour tribunals to deal with all disputes arising from the collective agreement. The court observed that “[t]he question in each case is whether the dispute viewed with an eye to its essential character, arises from the collective agreement” [at para. 72].

[23] The court also said:

58 Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator.

[24] The court observed that the types of claims over which the courts have been found to lack jurisdiction include wrongful dismissal, bad faith on the part of the union, conspiracy, constructive dismissal, and damage to reputation. The court also said:

59 This approach does not preclude all actions in the courts between employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts ….

60 Against this approach, the appellant Weber argues that jurisdiction over torts and Charter claims should not be conferred on arbitrators because they lack expertise on the legal questions such claims raise. The answer to this concern is that arbitrators are subject to judicial review. Within the parameters of that review, their errors may be corrected by the courts. The procedural inconvenience of an occasional application for judicial review is outweighed by the advantages of having a single tribunal deciding all issues arising from the dispute in the first instance. This does not mean that the arbitrator will consider separate "cases" of tort, contract or Charter. Rather, in dealing with the dispute under the collective agreement and fashioning an appropriate remedy, the arbitrator will have regard to whether the breach of the collective agreement also constitutes a breach of a common law duty, or of the Charter.

[25] The Supreme Court of Canada revisited the issue in Regina Police Assn. v. Regina (City) Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360 on which both parties also rely. In that case, the court offered this guidance:

25 To determine whether a dispute arises out of the collective agreement, we must therefore consider two elements: the nature of the dispute and the ambit of the collective agreement. In considering the nature of the dispute, the goal is to determine its essential character. This determination must proceed on the basis of the facts surrounding the dispute between the parties, and not on the basis of how the legal issues may be framed …. Simply, the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations. It is clear that the collective agreement need not provide for the subject matter of the dispute explicitly. If the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide ….

[26] In Giorno v. Pappas, 1999 CanLII 1161 (ON CA), [1999] O.J. 168 (C.A.) the court was required to consider a collective agreement under the same legislation as here, namely the Crown Employees Collective Bargaining Act. It referred to the framework for the resolution of disputes in the employment context:

17 This approach reflects the importance of the regime of exclusive arbitration which is central to Canadian labour legislation and which is exemplified by s. 19(1) of the Crown Employees Collective Bargaining Act. Such a regime is designed to resolve workplace disputes expeditiously and economically through the specialized expertise of labour arbitrators. In setting out this approach in Weber MacLachlin J. said this at p. 604:

It satisfies the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions. It conforms to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlapping litigation in the courts.

[27] The court quoted from its earlier decision in Piko v. Hudson’s Bay Co., 1998 CanLII 6874 (ON CA), [1998] 39 C.C.E.L. (2d) 46 (Ont. C.A.). It said that parties “cannot avoid arbitration simply by pleading a common law tort”.

[28] On the issue of relief, the court said:

19 It is of no moment that arbitrators may not always have approached the awarding of damages in the same way that courts have awarded damages in tort. In Weber, at p. 603, McLachlin J. made clear that arbitrators are to apply the same law as the courts. Laskin J.A. put it this way in Piko at para. 22:

I do not rest my decision on any differences between the power of courts and the power of arbitrators to award damages for a tort, such as the tort of malicious prosecution. I recognize that arbitrators may apply common law principles in awarding damages, and, more importantly, the breadth of an arbitrator’s power to award damages does not necessarily determine whether Weber applies.

20 What is important is that the arbitrator is empowered to remedy the wrong. If that is so, then where the essential character of the dispute is covered by the collective agreement, to require that it be arbitrated, not litigated in the courts, causes no “real deprivation of ultimate remedy”. The individual is able to pursue an appropriate remedy through the specialized vehicle of arbitration. He or she is not left without a way to seek relief.

[29] Further, the fact that a claim included a person not a party to the collective agreement was not determinative. Referring again to Piko, the court quoted at para. 26:

Where an employee has sued another employee for a workplace wrong, this court has held that bringing an action against a person who is not a party to the collective agreement will not give a court jurisdiction if the dispute, “in its essential character”, still arises under the collective agreement.

[30] So, the court’s task is first to define the essential character of the dispute and second to determine the scope of the collective agreement to decide whether the dispute, at its heart is one that falls under the agreement.

Analysis

[31] The essential allegations in the lengthy claim can be distilled and are most accurately categorized as falling in three broad areas:

1. complaints about the discipline process while the plaintiff was with the MOH – which includes a letter of reprimand, a period of suspension, an investigation of misconduct in the workplace, and the termination of his employment (paras. 56-71 of the Statement of Claim);

2. complaints about unfair treatment in the workplace, disagreements about the assignment of tasks and differences of opinion with management (paras. 24-50, 56-71);

3. comments alleged to have been made by Ms. Lyman to other employees of the workplace (paras. 42-45, 72-85).

[32] I have concluded that notwithstanding the plaintiff’s artful pleading, the claim at its core arises from his employment relationship with the MOH; the disciplinary action taken as a result of his alleged misconduct; the ongoing investigation; and his subsequent termination. Put another way, the facts of the dispute and its essential character are all workplace related. The claim falls squarely within the ambit of the arbitration provision of the collective agreement and exclusive jurisdiction to adjudicate the dispute lies in the arbitration process.

Disposition

[33] The defendants’ motion is granted. The claim is dismissed.

[34] The parties filed Bills of Costs at the conclusion of argument. Given that the plaintiff sought $10,976.25 in costs if he was successful, it is safe to assume that he can have little quarrel with the defendants’ request for $9,700.06.

[35] In my view, a fair and reasonable allowance for costs taking the factors in Rule 57 into consideration is $9,500.00, inclusive of tax and disbursements.

“Justice H. A. Rady”

Justice H. A. Rady

Released: October 27, 2016