Court File and Parties

COURT FILE NO.: CV-13-58632 DATE: 20180830 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

JEAN PAUL RHEAUME and THERESE CHARRON Plaintiffs – and – HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO, JOHN BARBRO, TYLER ROY, and MELISSA SCHELL Defendants

Counsel: Lawrence Greespon/Cheryl Letourneau, for the Plaintiffs, Jean Paul Rheaume and Therese Charron Jeffrey Claydon/Teresa Yang, for the Defendant/Moving Party, Her Majesty the Queen in Right of Ontario Peter Engelmann, for the Defendants/Moving Parties, Tyler Roy and Melissa Schell James McMahon/Elizabeth Sheppard, for the Defendant/Responding Party, John Barbro

HEARD: June 21 and July 17, 2018

REASONS FOR decision

Toscano Roccamo J.

Introduction

[1] Her Majesty the Queen in Right of Ontario (the “Crown”), Tyler Roy, Melissa Schell, and John Barbro are all Defendants in an action brought by the Plaintiffs, Jean Paul Rheaume and Therese Charron, wherein the Plaintiffs seek damages and related relief for an assault alleged to have been sustained by Mr. Rheaume at the hands of Mr. Roy, Ms. Schell, and Mr. Barbro.

[2] Mr. Barbro has filed a lengthy Statement of Defence and Crossclaim against his co-defendants, Mr. Roy, Ms. Schell and the Crown, claiming contribution and indemnity. The Crossclaim also advances independent causes of action for damages as against his co-defendants, on a joint and several basis for: (1) malicious prosecution, or alternatively, negligent investigations for defamation; (2) bad faith wrongful dismissal; and, (3) punitive and/or aggravated damages.

The Motions and Preliminary Rulings

[3] The Crown, Mr. Roy and Ms. Schell move under rule 21.01(3)(a) to strike Mr. Barbro’s Crossclaim, save and except the claim for contribution and indemnity. They submit that the impugned parts of the Crossclaim are subject to the terms of a collective agreement, within the exclusive jurisdiction of the Grievance Settlement Board (“GSB”) to adjudicate.

[4] Related motions brought by Mr. Roy, Ms. Schell, and the Crown for orders under rule 21.01(3)(d) and 25.11 to strike the impugned Crossclaim as an abuse of process, and under rule 21.01(1)(b) by Mr. Roy and Ms. Schell for disclosing no reasonable cause of action were abandoned in the course of argument.

[5] Mr. Barbro moves to dismiss the motions to strike and for leave to admit evidence under rule 21.01(2)(a). On consent of Mr. Roy, Ms. Schell and the Crown, two supplementary affidavits were admitted addressing Mr. Barbro’s communications with representatives of his union to ascertain their willingness to re-open a grievance process related to his discipline and termination for cause by the Crown, arising out of the alleged assault of Mr. Rheaume. This evidence was the only evidence considered on this motion, aside from the Collective Agreement, the Grievance Statement and Minutes of Settlement and a Release signed by Mr. Barbro and his employer arising out of the grievance.

[6] Mr. Barbro also sought leave to rely on trial transcripts pertaining to the criminal charges brought against him in relation to the incident at the hearing of these motions. While it is the practice in Ontario for a motion’s court to receive evidence such as a copy of the Collective Agreement and Grievance filed in relation to the jurisdictional issue, I declined to consider the trial transcripts, having been guided by the dicta in Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141, at para. 32, to the effect that it is not appropriate to turn a jurisdictional challenge under rule 21.01(3)(a) into a mini-trial on a disputed question of fact. In addition, the very detailed and lengthy Crossclaim filed on behalf of Mr. Barbro made this entirely unnecessary.

[7] Finally, in the course of argument, Mr. Barbro also withdrew the cause of action in wrongful dismissal as against Mr. Roy and Ms. Schell only.

The Issue

[8] The issue left to be decided on this motion is whether the essential character of allegations made in Mr. Barbro’s Crossclaim expressly or inferentially forms part of a dispute addressed by the terms of a Collective Agreement between the parties, and accordingly, whether this ousts the court’s jurisdiction to adjudicate the matter.

The Background Facts

[9] In the main action, Mr. Rheaume alleges that he was assaulted by correctional officers at the Ottawa Carleton Detention Centre (“OCDC”) on October 23, 2010 (the “incident”). Mr. Rheaume claims damages against the Crown, which operates the OCDC, as well as against the individually named correctional officers: Mr. Barbro, Mr. Roy, and Ms. Schell.

[10] The pleadings in the main action are not closed, as the Crown has not yet filed a Statement of Defence, with the Plaintiffs’ indulgence. While the Crown has not admitted any of the allegations, for the purposes of this motion, it acknowledges that an incident took place at the OCDC on October 23, 2010.

Mr. Barbro’s Employment and Union Membership

[11] Mr. Barbro worked as a correctional officer at the OCDC from 2000 until November 29, 2011. Throughout this period, he was a member of the Ontario Public Service Employees Union (“OPSEU” or the “Union”). The employment relationship between OPSEU members and the Crown is governed by collective agreements made pursuant to the Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38 (“CECBA”).

Events Following the Workplace Investigation into the Incident

[12] The incident was the subject of a workplace investigation into possible misconduct by correctional officers. The workplace investigation was conducted by the Crown’s Correctional Investigation and Security Unit, pursuant to s. 22 of the Ministry of Correctional Services Act, R.S.O. 1990, c. M.22 (“MCSA”).

[13] Criminal charges were laid against Mr. Barbro in July 2011.

[14] As a result of the workplace investigation, Mr. Barbro was dismissed for cause from his employment with the Crown on November 29, 2011. As communicated to Mr. Barbro, the basis for the dismissal included: (1) findings that Mr. Barbro violated the Crown employee procedures concerning the use of force and care, custody, and control of inmates; (2) findings that Mr. Barbro did not cooperate with the workplace investigation; and, (3) findings that in the course of his employment duties, Mr. Barbro demonstrated conduct unbecoming of a correctional officer.

[15] Mr. Barbro maintains his innocence and denies the acts that constituted grounds for his termination. He filed a grievance before the GSB in relation to the termination of his employment. In February 2014, before the GSB hearing took place, Mr. Barbro accepted a settlement and signed a Release (the “Release”), thereby waiving his right to reinstatement and releasing the Crown and its servants and agents from further liability in relation to the incident.

Mr. Barbro’s Crossclaim

[16] Following his settlement, and at his criminal trial, Mr. Barbro learned that other correctional officers had colluded against him in the course and conduct of the workplace investigation.

[17] Mr. Barbro filed a Crossclaim in the Rheaume action against the Crown, Mr. Roy, and Ms. Schell. He pleads that he was wrongfully dismissed, as a result of misconduct by various Crown servants during the incident, workplace investigation, and his subsequent grievance. In addition to the claim for contribution and indemnity as against his co-defendants the Crown, Mr. Roy and Ms. Schell, he advances the following causes of action in his Crossclaim:

a. Malicious prosecution, or alternatively, negligent investigation; b. Defamation; and, c. Bad faith wrongful dismissal and loss of pension contribution.

The Position of the Parties

[18] Mr. Barbro’s co-defendants advance the position that the GSB is the only appropriate forum for adjudication of the complaints underpinning Mr. Barbro’s Crossclaim. To resist this position, Mr. Barbro raises the following three arguments:

1. He posits that the law has evolved, such as to allow concurrent or overlapping jurisdiction between the GSB and the Superior Court of Justice over his claims. In any event, Mr. Barbro describes the dispute between him and his co-defendants as one involving a unique set of circumstances which involves much more than a workplace conflict and investigation as between him, the Crown and his former co-workers. He points to the fact that only 12 out of 60 paragraphs in his Crossclaim relate to the workplace situation.
2. Mr. Barbro argues that liability provisions in the MCSA grant him the option of proceeding with the dispute before the GSB or the Superior Court of Justice. He argues that the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27 (PACA) addresses what he describes as a “lacuna” over the issue of jurisdiction, and is paramount in establishing that the Superior Court of Justice has jurisdiction.
3. Mr. Barbro argues that this Court should exercise its discretion to permit the Crossclaim to survive attack, on the grounds that a failure to do so would deprive Mr. Barbro of any cause of action and remedy as against Mr. Roy and Ms. Schell. He points to the fact that his supplementary affidavits reveal reluctance on the part of his union to re-open the grievance where he notes that the same union would also represent the interests of his former co-workers. He notes that only the Superior Court of Justice may grant him the equitable remedies that he seeks. These include non est factum, by which he may set aside the Minutes of Settlement and Release on the basis he signed them under duress before discovering that Mr. Roy and Ms. Schell had colluded against him; and restitutio in integrum, to afford him all manner of damages to which he may be entitled. Finally, Mr. Barbro maintains that requiring him to return to the GSB would result in a multiplicity of proceedings if he has to defend the Rheaume action in this Court, and advance his own claims before the GSB.

The Test and Analytical Approach

[19] There is no dispute as between the parties that the Supreme Court in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 laid out the analytical framework by which to determine when employers and employees are barred from suing one another in the courts.

[20] In a case where the plaintiff advanced a number of claims aside from wrongful dismissal, including claims for trespass, nuisance, deceit, invasion of privacy and Charter breaches, the Supreme Court affirmed the exclusive jurisdiction of labour arbitration tribunals over disputes that arise expressly or inferentially from the interpretation, application, administration or violation of a collective agreement. In addressing the myriad of circumstances which call into question whether a court of inherent jurisdiction has concurrent or overlapping jurisdiction over such matters, the majority in Weber held that mandatory arbitration clauses, such as s. 45(1) of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A will confer exclusive jurisdiction upon the tribunal over all disputes arising from the collective agreement where “the dispute, viewed with an eye to its essential character, arises from the collective agreement”: Weber at paras. 44-63 and 72.

[21] The Supreme Court established that the task of the judge or arbitrator determining the appropriate forum in such matters is to consider two elements: (1) the nature of the dispute; and, (2) the ambit of the collective agreement: see Weber at para. 56; and Regina Police Association v. Regina (City) Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360 at para. 25.

[22] Courts since Weber have consistently shown deference to the labour arbitration regime by giving a robust and purposive meaning to the phrase “essential character of the dispute”, and making it plain that arbitration cannot be avoided by pleadings which characterize a dispute as a common law action such as a tort, Charter claim or breach of contract. The cause of action need only be part of the factual matrix captured by a collective agreement for the dispute to be subject to arbitration: see Ruscetta v. Graham, [1998] O.J. No. 1198 at para. 3 (C.A.); Giorno v. Pappas, (1999), 42 O.R. (3d) 626 at para. 16-30 (C.A.); A.C. Concrete Forming Ltd. v. Residential Low Rise Forming Contractors Association of Metropolitan Toronto and Vicinity, 2008 ONCA 864, 93 O.R. (3d) 529 at para. 16; Myrtezaj v. Cintas Canada Ltd., 2008 ONCA 277, 90 O.R. (3d) 384 at para. 55; Maynard v. Arvin Ride Control Products, [2000] O.J. No. 937 at paras. 41-42; and Speck v. Ontario, 2016 ONSC 6581, 2016 CarswellOnt 16638 at paras. 23-27.

The Nature of the Dispute

[23] Mr. Barbro’s Statement of Grievance alleges that he was wrongfully terminated and that his employer violated the process and procedure of the workplace investigation; thereby entitling him to full redress and remedy in the grievance procedure.

[24] The Minutes of Settlement and Release, signed by Mr. Barbro on the advice of independent counsel on the eve of arbitration in February 2014, revealed that he was paid an amount of money, that his termination was rescinded and that he elected to resign. He and his union further agreed that the termination would not form the subject of any further proceedings. Finally, he agreed that any dispute regarding the implementation, administration, enforcement or interpretation of the Minutes would be resolved by the GSB.

[25] Mr. Barbro’s Crossclaim, beginning at paragraph 16 of his Statement of Defence and Crossclaim, lays out the causes of action including malicious prosecution, or alternatively, negligent misrepresentation, defamation, bad faith wrongful dismissal and punitive damages. At paras. 17-25, Mr. Barbro describes himself, Mr. Roy and Ms. Schell as Crown employees and members of OPSEU and details his employment history. Paragraphs 25-31 make allegations concerning the workplace incident of October 23, 2010. The bulk of the factual allegations at paras. 32-42 of the Crossclaim relate to the Crown’s workplace investigation which he alleged fell well below any reasonable standard of investigation. At paras. 40-43, Mr. Barbro pleads the details of criminal charges laid against him arising out of the incident. He made other allegations at paras. 45-47 pertaining to Crown conduct following his termination and before the settlement, including delayed payment of termination benefits; communications with the media as to Mr. Barbro’s grievance; Crown counsel’s threat of discipline to those employees who sought to change their account of the incident from prior reports; and, procuring the Minutes of Settlement and Release under duress or by fraud. Finally, at paras. 51-61 of the Crossclaim, Mr. Barbro again lays out the legal causes of action as against the Crown, Mr. Roy and Ms. Schell.

[26] Having regard to the Statement of Grievance, the Minutes of Settlement and Release, and the pleadings noted, I have no hesitation in finding that the essential character of the dispute germinates from the workplace incident, its subsequent investigation and the disciplinary process which followed, including the grievance and its eventual settlement.

The Ambit of the Collective Agreement

[27] Mr. Barbro’s employment relationship with the Crown, Mr. Roy and Ms. Schell was, at the material times, governed by a collective agreement entered into by the Crown and OPSEU on June 23, 2007 covering the period from January 1, 2009 to December 31, 2012. The Collective Agreement, at articles 2, 9, 21 and 22, a number of which are cited in Mr. Barbro’s Statement of Grievance, refer to the following:

• the Crown’s right to discipline and terminate employees for just cause;
• details of the employer and union duties to cooperate to promote workplace health and safety and the employees’ right to grieve actions by the employer; and,
• the grievance procedure including binding arbitration before the GSB for the disposition of any issue “arising from the interpretation, application, administration or alleged contravention of the Collective Agreement, including any question as to whether the matter is arbitrable.”

[28] In my opinion, there are no material differences between the provisions granting exclusive jurisdiction to arbitrate disputes among employer and employees under s. 114 of the Labour Relations Act, 1995 in question in Weber, and those that are found under s. 7(3) and 48 of the Crown Employees Collective Bargaining Act, 1993. The language of these provisions, as set out below, is virtually identical:

s. 48 (Arbitration provision) 7.(1) The operation of section 48 of the Labour Relations Act, 1995 is subject to the modifications set out in this section. 1995, c. 1, s. 20(1).

Certain subss. not to apply (2) Subsections 48(1) to (6) of the Labour Relations Act, 1995 do not form part of this Act. 1995, c. 1, s. 20(2).

Deemed provision relating to arbitration (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. 1993, c. 38, s. 7(3).

[29] I accept the submissions made on behalf of Mr. Roy and Ms. Schell that, in any event, s. 2(1) of the Crown Employees Collective Bargaining Act, 1993 incorporates by reference s. 114 of the Labour Relations Act, 1995 into the Crown Employees Collective Bargaining Act, 1993. The Crown Employees Collective Bargaining Act, 1993 states at s. 2(1) that “[s]ubject to subsection (2) and Part III.1, the Labour Relations Act, 1995 shall be deemed to form part of this Act”. Section 114 of the Labour Relations Act, 1995 reads:

114.(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

[30] I reject the submission on behalf of Mr. Barbro that the reasoning in Burgess v. Ontario (Ministry of Health), 46 O.R. (3d) 469 (S.C.) aff’d , 55 O.R. (3d) 507 (C.A.) can be said to represent a departure or necessary refinement of the approach in Weber affording him recourse to the Superior Court of Justice. The facts in Burgess do not advance Mr. Barbro’s argument on jurisdiction. That case involved a non-unionized public servant employed in a management capacity who was, by absence of a clear intent expressed by the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A afforded the option to file a grievance, but whose recourse to the Superior Court of Justice was not abrogated by clear and unambiguous language under the Public Service Act.

[31] In my opinion, the same cannot be said in respect of Mr. Barbro’s Crossclaim. This conclusion is supported by the analysis brought into focus by Mr. Barbro’s secondary argument resting upon the provisions of the MCSA and the PACA.

Does the PACA Afford Mr. Barbro a Right of Action in a Superior Court of Justice?

[32] Mr. Barbro relies upon s. 12 of the MCSA, which makes specific reference to s. 5 of the PACA, to advance the argument that this Court may assume jurisdiction over all aspects of his Crossclaim against the Crown, Mr. Roy, and Ms. Schell.

[33] Section 12 of the MCSA provides as follows:

Protection from personal liability 12(1) No action or other proceeding for damages shall be instituted against the Deputy Minister or any officer or employee of the Ministry or anyone acting under his or her authority for any act done in good faith in the execution or intended execution of his or her duty or for any alleged neglect or default in the execution in good faith of his or her duty or for any act of an inmate, parolee or probationer while under his or her custody and supervision.

Idem (2) Subsection (1) does not, by reason of subsections 5 (2) and (4) of the Proceedings Against the Crown Act, relieve the Crown of liability in respect of a tort committed by a person mentioned in subsection (1) to which it would otherwise be subject, and the Crown is liable under that Act for any such tort in a like manner as if subsection (1) had not been enacted.

[34] Mr. Barbro emphasizes that, in preserving an action against the Deputy Minister for bad faith acts of its employees, including co-workers and those cloaked with responsibility for workplace investigations, s. 12(2) of the MCSA not only makes specific reference to ss. 5(2) and 5(4) of the PACA in failing to relieve the Crown of liability in respect of torts committed by its servants and agents, but it also does not limit its application to non-unionized employees as in the Burgess case.

[35] Mr. Barbro further relies on ss. 13 and 23 of the PACA to resist the argument made on behalf of the Crown, Mr. Roy and Ms. Schell to the effect that this Court should arrive at the same conclusions with respect to the appropriate jurisdiction for adjudication of torts committed by Crown agents and servants under the MCSA as those committed under workers’ compensation statutes across Canada. The moving parties argue that notwithstanding the standard Crown Proceedings statutes “…in all jurisdictions, the workers’ compensation statutes bar a tort action by an employee against the employer in respect of injuries covered by workers’ compensation”: see Peter W. Hogg, Patrick J. Monahan & Wade K. Wright, Liability of the Crown, 4th ed. (Toronto: Carswell, 2011), at p. 178.

[36] Sections 13 and 23 of the PACA provide for the rights of the parties; the authority of a court to provide appropriate relief; and, the paramountcy of the PACA where it conflicts with any other Act. The relevant sections read as follows:

13 Except as otherwise provided in this Act, in a proceeding against the Crown, the rights of the parties are as nearly as possible the same as in a suit between persons, and the court may make any order that it may make in a proceeding between persons, and may otherwise give such appropriate relief as the case may require.

23 Where this Act conflicts with any other Act, this Act governs.

[37] In my opinion, reliance upon the PACA does not afford this Court concurrent jurisdiction over the Crossclaim advanced by Mr. Barbro. The Supreme Court in Weber observes that, subject to a residual discretionary power in courts of inherent jurisdiction over matters such as injunctions, concurrent court proceedings are not available: Weber at para. 46, in reference to the court’s decision in St. Anne-Nackawic Pulp and Paper Co. v. C.P.U., Local 219, [1986] 1 S.C.R. 704 at pp. 718 to 721. Judicial deference is accorded based on the idea that to allow courts to act as the alternative forum would be to do violence to a comprehensive statutory scheme designed to govern the relationship between the parties. To adopt the interpretation of the PACA urged upon me on behalf of Mr. Barbro would be to impermissibly encroach upon the exclusive domain of the GSB.

Should this Court Exercise its Residual Discretion to Shelter the Crossclaim against Jurisdictional Attack?

[38] As the Supreme Court in Weber acknowledged at para. 62, “[i]t might occur that a remedy is required which the arbitrator is not empowered to grant. In such a case, the courts of inherent jurisdiction in each province may take jurisdiction.”

[39] Mr. Barbro argues that the equitable remedies he seeks as against the Crown, Mr. Roy and Ms. Schell, including restitutio in integram, and non est factum, are only available in the Superior Court of Justice. Secondly, he argues that this Court is better suited at dealing with the causes of action in tort that he has advanced. Finally, he notes the unfairness of having to engage in a multiplicity of proceedings involving the same factual matrix, if he is required to defend the Rheaume action in this Court, and pursue his own remedies in the GSB with a union reluctant to re-open the matter.

[40] These arguments taken alone or collectively do not justify the exercise of this Court’s residual discretion. The weight of appellate authorities make it plain that remedies sought against co-workers joined in a claim against the employer based on tortious conduct of a varied nature, will not undermine the exclusive jurisdiction of the GSB, if the essential character of the dispute arises from the Collective Agreement: see Giorno; Ruscetta; Bhaduria v. Toronto Board of Education, [1999] 173 D.L.R. (4th) 382 (Ont. C.A.).

[41] Weber at para. 58-60 describes various claims based on bad faith, conspiracy and damages to reputation over which the courts have been found to lack jurisdiction. At paras. 67-71, the Supreme Court in Weber even adopted an expansive view of the ability of an arbitrator to award damages for a Charter breach where “the remedy of damages finds its source in s. 24(1) of the Charter, and can only be granted by a court of competent jurisdiction…” The Supreme Court also held that “a tribunal will be a court of competent jurisdiction […] if its constituent legislation gives it power over the parties, the issue in litigation, and power to grant the remedy which is sought underthe [sic] Charter”: Weber at para. 68 citing R. v. Mills, [1986] 1 S.C.R. 863.

[42] At paras. 60 and 61, Weber also addressed concerns that arbitrators lack the expertise and legal power to fashion remedies in respect of torts and other causes of action available at common law or on the basis of statute. The Supreme Court noted that any errors occasioned by the handling of such matters before an arbitrator may be corrected by judicial review. Moreover at para. 61 of Weber, the Supreme Court concluded that the case law is well settled that arbitrators may refer to both the common law and statute and apply “the law of the land” in fulfilling their duties to rectify a breach under a collective agreement.

[43] I note that the decision of the GSB in Re Ontario (Ministry of Community Safety and Correctional Services) and OPSEU (Ranger), 2013 CarswellOnt 10358 at paras. 35, 68-73, and 79 exemplifies the exercise of a broad range of powers invoking the ʻmake wholeʼ principle to award compensatory damages; damages for breach of the human rights code; failure to accommodate; aggravated and pain and suffering damages; punitive and special damages, and damages for future wage loss. Arbitrators also have the power unavailable to this Court to reinstate an employee who has been wrongfully dismissed. More recently, in M.A.H.C.P. v. Nor-Man Regional Health Authority Inc., 2011 SCC 59, [2011] 3 S.C.R. 616 at para. 5, 6 and 45, the Supreme Court held that labour relations arbitrators may adopt the legal and equitable doctrines they find relevant, although they are not legally bound to do so.

[44] The Supreme Court in Weber at para. 60 also addressed the matter of multiplicity of proceedings, noting that “[t]he 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.” In my view, the same can be said of the requirement to be met by Mr. Barbro in this case to defend the Rheaume action in this Court, and pursue his personal remedies before the GSB upon the setting aside of the Minutes of Settlement and Release, although there will undoubtedly be some overlapping in the tendering of evidence on the Rheaume trial and proceedings before the GSB. In any event, the assigned arbitrator may be persuaded to streamline the tendering of viva voce evidence by receiving the transcripts from the criminal trial as well as the trial of the Rheaume action (if available by the date of Mr. Barbro’s arbitration of his personal claim), or by other means.

[45] Finally, to the extent that Mr. Barbro alleges that his ability to access dispute resolution at the GSB is frustrated by unfair representation from his union, should it choose not to advance his claims based on malicious prosecution, negligent investigation, defamation, conspiracy, wrongful termination and bad faith, Mr. Barbro’s recourse is to pursue an unfair representation claim before the Ontario Labour Relations Board, not the courts. See Gendron v. Supply & Services Union of P.S.A.C., Local 50057, [1990] 1 S.C.R. 1298 at paras. 60-62.

Conclusions

[46] I find that the allegations in Mr. Barbro’s Crossclaim may be categorized as complaints about:

• his discipline;
• the investigation of misconduct in the workplace;
• the termination of his employment;
• unfair treatment by his employer and by his co-workers; and,
• loss occasioned by the damage done to his reputation and the stress arising from the workplace incident and its aftermath.

The essential character of Mr. Barbro’s complaints is at its core workplace related. As such, their remedy must be found under the Collective Agreement, and exclusive jurisdiction for their adjudication rests with the GSB, or the Labour Relations Board, in the event of an unfair representation claim.

[47] The Defendants’ motion is granted. The Crossclaim is dismissed, with leave granted to Mr. Barbro to file an Amended Statement of Defence and Crossclaim within 30 days.

Costs

[48] In accordance with the parties’ agreement on costs, Mr. Barbro is ordered to pay costs in the amount of $3000 to each of Mr Roy and Ms. Schell, payable by monthly instalments of $250 to each over a 12 month period; and $8000 to the Crown in monthly instalments of $666.66 over a 12 month period, after costs ordered in favour of Mr. Roy and Ms. Schell are fully paid.

Madam Justice Toscano Roccamo

Released: August 30, 2018