COURT FILE NO.: CV-18-611338-0000
DATE: 20200402
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: LISA GREENLAW and SCOTT GREENLAW, Plaintiffs
AND:
CARL SCOTT and DISTRICT SCHOOL BOARD OF NIAGARA, Defendants
BEFORE: Justice Glustein
COUNSEL: Susan M. Vella and Michael Wilchesky, for the plaintiffs
Caroline V. (Nini) Jones and Jodi Martin, for the defendant Carl Scott
Steven Nicoletta, for the defendant District School Board of Niagara
HEARD: February 26, 2020
reasons for decision
NATURE OF HEARING AND OVERVIEW
[1] The defendants Carl Scott (“Scott”) and the District School Board of Niagara (the “Board”) (collectively, the “Defendants”) bring this motion under Rule 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to dismiss the action brought by the plaintiffs Lisa Greenlaw (“Lisa”) and Scott Greenlaw (collectively, the “Plaintiffs”) on the basis that the Superior Court has no jurisdiction over the subject matter of the claim.
[2] Lisa alleges in the statement of claim (the “Claim”) that from 2002 to 2004, Scott used his power in the workplace as Principal to sexually harass and assault her while she was a teacher working subordinate to him. Lisa further alleges that Scott and the Board then reprised against her by arranging to transfer her to another school, resulting in a poisoned work environment.
[3] The Claim also includes allegations that Lisa’s rights under the Human Rights Code, R.S.O. 1990, c. H. 19 (the “Code”) were breached.
[4] Lisa was a member of the Elementary Teachers’ Federation of Ontario (the “ETFO”), which signed several collective agreements with the Board during the material time period (the “Collective Agreements”).
[5] The Defendants submit that under Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929 (“Weber”), and St. Anne-Nackawic Pulp & Paper Co. Ltd. v. CPU, Local 219, 1986 71 (SCC), [1986] 1 S.C.R. 704 (“St. Anne”), the claim is a workplace-related matter arising expressly or inferentially within the ambit of the Collective Agreements and, as such, is within the exclusive jurisdiction of a specialized labour arbitrator.
[6] The Defendants rely on two decisions of the Court of Appeal in which the court dismissed claims for workplace sexual harassment and sexual assault on the basis that the labour arbitrator had exclusive jurisdiction (A. (K.) v. Ottawa (City) (2006), 2006 15128 (ON CA), 80 O.R. (3d) 161 (“A. (K.)”; and Rivers v. Regional Police Services Board, 2018 ONSC 4307 (“Rivers SC”), aff’d 2019 ONCA 267 (“Rivers CA”), leave to appeal to SCC refused, 2019 CarswellOnt 17261).
[7] The Plaintiffs submit:
(i) Because the ETFO chose, in good faith, not to pursue a grievance on Lisa’s behalf, there is a “remedial gap”[^1] which permits the court to exercise its inherent jurisdiction to hear the matter;
(ii) If there is no remedial gap, the subject matter of the dispute does not fall within the ambit of the applicable Collective Agreements, since there is no specific provision which governs sexual assaults or employee safety and the claims are not inferentially subject to the applicable Collective Agreements; and
(iii) Lisa is not required to choose the Human Rights Tribunal of Ontario (the “HRTO”) over the Superior Court of Justice to adjudicate her tort claims if she also has claims under the Code.
[8] In reply, the Defendants submit:
(i) There is no remedial gap under Weber. The labour arbitrator has the power to remedy the alleged conduct. The decision of a union not to bring a grievance does not oust the exclusive jurisdiction of the labour arbitrator. The Defendants rely on (a) the general principles set out in Weber and St. Anne, and (b) De Montigny v. Roy, 2018 ONSC 858 (“De Montigny SC”), aff’d 2018 ONCA 884 (“De Montigny CA”), which they submit rejects the Plaintiffs’ submission;
(ii) The subject matter of the dispute falls within the ambit of the applicable Collective Agreements since both the Code and the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (the “OHSA”) are incorporated into the Board’s right to exercise managerial powers. Consequently, the Board must manage their schools in a manner to protect worker health and safety, without discrimination or harassment based on sex and without unwelcome sexual solicitation or advances by a person in position to confer or deny a benefit or advancement to the person. The Defendants rely on Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42 (“Parry Sound”), and on the decisions in A. (K.) and Rivers; and
(iii) Lisa’s allegations of breaches of the Code can be the subject of either an application to the HRTO or a grievance arbitration since there is concurrent jurisdiction on the arbitrator and the HRTO to address such breaches. However, those allegations cannot be adjudicated as part of a civil action since there is no distinct cause of action properly before the court. The Defendants rely on s. 46.1(2) of the Code and on Seneca College v. Bhadauria, 1981 29 (SCC), [1981] 2 S.C.R. 181 (“Seneca College”).[^2]
[9] For the reasons that follow, I agree with the Defendants’ submissions and dismiss the action on the basis that the Superior Court has no jurisdiction over the subject matter of the Claim.
FACTS
The parties
[10] Lisa has been employed by the Board since 1993. Between 1996 and 2004, Lisa was employed at E.I. McCulley Public School (the “School”).
[11] At all material times, Lisa was a member of the ETFO, which is the exclusive bargaining agent for all elementary school teachers at English language public schools in Ontario (s. 10(2) of the School Boards Collective Bargaining Act, 2014, S.O. 2014, c. 5 (“SBCBA”)). The terms and conditions of Lisa’s employment are the subject of collective bargaining between the ETFO, the Board, and the Crown in right of Ontario.
[12] Scott was principal at the School from 2002 to 2006. Principals are part of the Board’s supervisory and management team and are not represented by the ETFO. Principals are represented by the Ontario Principals’ Council (the “OPC”) and are subject to their own terms and conditions of employment.
[13] The Board is a public school board responsible for overseeing and operating its public schools within the region of Niagara, including the School. At all material times, the Board was the employer of Lisa and Scott.
[14] Scott Greenlaw is Lisa’s husband.
The allegations of sexualized misconduct against Scott
[15] The nature of the allegations against Scott can be summarized as follows:
(i) Beginning in 2002, Scott engaged in inappropriate and sexualized misconduct towards Lisa and misused his power and authority as principal of the School and as Lisa’s direct supervisor and boss to do so;
(ii) Scott coerced Lisa into sexual intercourse approximately six times between October 2003 and March 2004 and told her that she would be fired if she reported this to the Board; and
(iii) After Lisa informed Scott that she would no longer engage in any sexual activity with him, Scott and the Board reprised against Lisa by using their authority, including transferring her to a different school.
The grievance and investigation
[16] In January 2018, Lisa filed a complaint with the Board outlining her allegations against Scott. The Board retained an independent third party to investigate the allegations under its workplace policy.
[17] In the spring of 2018, Lisa contacted Ms. Jada Nicklefork (“Nicklefork”), president of the ETFO (Niagara) Local, concerning the filing of a grievance. Nicklefork then contacted her colleague at the provincial office of the ETFO (the “ETFO Provincial”), who was responsible for deciding whether the ETFO would file a grievance.
[18] Within a “couple of weeks”, the ETFO Provincial advised Nicklefork that the ETFO would not pursue a grievance on Lisa’s behalf. The ETFO Provincial believed the Board would object to the filing of a grievance since it had been “14 years” and “so long” since the alleged conduct which was the subject of the complaint.
[19] Nicklefork advised Lisa of the ETFO Provincial decision within a “couple [of] days”.
[20] By letter dated June 29, 2018, the Board advised Lisa that the investigation had been completed and that:
(i) The investigator determined that the relationship between Lisa and Scott was “consensual in nature and did not amount to sexual harassment”;
(ii) Scott’s decision to engage in a sexual relationship with Lisa on school property created an “unprofessional poisoning of the work environment”; and
(iii) The investigator also expressed concerns with the manner in which Lisa was transferred to another school.
[21] In the June 29, 2018 letter, the Board advised Lisa that it had (i) given Scott a lengthy disciplinary suspension and (ii) directed Scott to receive training.
[22] In a letter from Nicklefork to Lisa’s counsel dated January 11, 2019, Nicklefork advised that “[t]he Union was unable to pursue the matter given we were well beyond the timelines stated in the Collective Agreement”.
[23] Nicklefork also stated in her letter to Lisa’s counsel that the ETFO did not seek consent to extend the time limits since (i) “it would be difficult to accomplish any meaningful results/remedies (including any meaningful form of monetary compensation) for Mrs. Greenlaw through the grievance procedure (including arbitration)” and (ii) “[t]he ETFO believed these matters would be more properly adjudicated in a Court of law”.
[24] At her examination under Rule 39.03 for this motion, Nicklefork clarified the position of the ETFO. She confirmed that the ETFO did not take the position that the matter “would be more properly adjudicated in a court of law”, but rather the ETFO accepted that it could have filed a grievance on Lisa’s behalf. Nicklefork stated:
(i) The position of the ETFO was that it could have filed a grievance with regards to Lisa’s complaints, but did not since the time limit in the Collective Agreements had expired;
(ii) The ETFO did not take the position that a civil court has jurisdiction over the subject matter of Lisa’s complaints. Nicklefork was never advised that Lisa “should go to court”; and
(iii) “I really should not have put [the comments about the matter being more properly adjudicated in a court of law] in this letter.”
[25] Lisa did not challenge the decision of the ETFO not to file a grievance on her behalf. She accepts that the decision was made in good faith. She did not file a duty of fair representation complaint (a “DFR complaint”) against the ETFO.
The Claim
[26] On December 20, 2018, the Plaintiffs issued the Claim. The allegations include the following:
(i) Scott was responsible for all aspects of the School and had substantial control and authority as Principal. The Board relied on him to carry out his and the Board’s duties. He was the operating mind of the School and the Board had exclusive jurisdiction to place Scott in his senior management position at the School (paras. 63, 64, and 66 of the Claim);
(ii) The Board benefitted from the trust, power and authority it vested in Scott over his subordinates and charged him to manage the teachers at the School (paras. 70-71 of the Claim);
(iii) Teachers were required to respect the chain of command and had to tolerate Scott’s conduct as part of their job requirements or face discipline or claims of insubordination. Lisa obeyed Scott’s demands as encouraged and required to do by the Board (paras. 22 and 72 of the Claim);
(iv) Scott had power and authority over Lisa as Principal “that created the special opportunities for Principal Scott to perpetrate the sexualized misconduct against Lisa”. As Principal, Scott could access sensitive confidential information about Lisa, call Lisa into work on holidays, and call her outside of school using telephone numbers that he purported to obtain for “emergency” purposes (paras. 19, 24, 34 and 74 of the Claim);
(v) The alleged sexualized misconduct included sexual assault and batteries in Scott’s office and at a Board authorized function, inappropriate sexualized comments, frequent inappropriate phone calls, text messages, emails and handwritten cards, and coerced sexual intercourse on six occasions between October 2003 and March 2004 at Scott’s house, Lisa’s house, Scott’s parents’ house, and in each of Scott’s and Lisa’s respective cars (paras. 27-30, 34, and 36 of the Claim);
(vi) Scott engaged in sexual misconduct and sexual touching by calling Lisa to his office “in his capacity as principal and supervisor”. He assigned her to locations to be physically closer to his office as part of his “job-conferred power, authority and control over her” (paras. 27 and 33 of Claim);
(vii) Lisa had “no choice but to submit to Principal Scott’s persistent sexualized misconduct” since he told her that she would be fired if she reported the misconduct to the Board. Lisa “felt powerless in light of his position of power and authority over her as school principal” (para. 37 of the Claim);
(viii) Scott provided unrequested “rewards” for Lisa engaging in sexual intercourse with him, such as having Lisa effectively serve as “acting principal” when other teaching staff ought to have been assigned this function (para. 39 of the Claim);
(ix) Scott “misused his position of influence, power and authority as principal within the School Board” to have Lisa transferred without notice, when there was not even a posting at the other school, as a reprisal for her ending his unwelcome sexual advances (para. 46 of the Claim);
(x) Scott used his power as Principal to prevent Lisa from obtaining other teaching positions available in the Board (para. 50 of the Claim); and
(xi) “The sexual intercourse was a direct result of the trust, psychological intimacy, power, authority and intimidation exercised by Principal Scott over Lisa”. Scott “perpetrated the sexualized misconduct in the course of his employment through a misuse of his job-conferred trust, power and authority as principal” (paras. 76 and 78 of the Claim).
[27] Lisa claims against Scott and the Board for the torts of physical and sexual assault and battery, sexualized misconduct, intimidation, and/or the intentional infliction of mental suffering and infringement of her rights under the Code. Lisa claims against the Board for vicarious liability for the alleged tortious conduct of Scott. Lisa also seeks special and punitive damages.
[28] Scott Greenlaw has advanced a derivative claim against Scott and the Board pursuant to section 61 of the Family Law Act, R.S.O. 1990, c. F. 3 for loss of Lisa’s guidance, care and companionship and for pecuniary loss resulting from counselling fees. His claim cannot stand if Lisa’s portion of the Claim is struck (s. 61(1) of the Family Law Act).
ANALYSIS
[29] There are three issues before the court on this motion:
(i) Does the decision of the ETFO not to pursue a grievance give the court jurisdiction to hear the Claim?
(ii) Is the subject matter of the action within the scope of the applicable Collective Agreements?
(iii) Can a civil claim be brought even though damages under the Code are sought?
[30] I first consider the legal framework governing education sector labour relations in Ontario and then address each of the issues arising on this motion.
Legal framework governing education sector labour relations in Ontario
[31] Labour relations in the education sector are governed by the Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A (the “LRA”) and the SBCBA.
[32] The terms and conditions of Lisa’s employment are determined through collective bargaining between the ETFO, the Board, and the Crown in right of Ontario. Pursuant to the SBCBA, the ETFO bargains the terms of a central, province-wide collective agreement with the Crown, and the terms of a local agreement with the Board (ss. 12-18 of the SBCBA).
[33] Central terms include benefits, sick leave, class size and staffing levels (e.g. as set out at Part A of the Collective Agreement between the ETFO and the Board (September 1, 2014-August 31, 2017)). Local terms are more extensive and include items such as discipline and discharge, seniority, salaries, probationary periods, temporary assignments, and retirement allowances (e.g. see Part B of the Collective Agreement between the ETFO and the Board (September 1, 2014-August 31, 2017)). Both of these agreements operate together to form the collective agreement which governs Lisa’s terms and conditions of employment.
[34] Under s. 17(1) of the SBCBA, the ETFO’s representation rights (including for grievance arbitration under s. 43 of the SBCBA) are exclusive. Members of the ETFO do not have the ability to enter into individual negotiations about the terms and conditions of their employment, nor do members have the independent ability to file or advance grievances. The party to the collective agreement is the ETFO, on behalf of all bargaining unit members.
[35] The ETFO is the designated bargaining agent for the bargaining unit (ss. 5(1) and 10(2) of the SBCBA).
[36] To balance these exclusive representation rights, unions such as the ETFO have a statutory duty to represent members fairly. Section 17(2) of the SBCBA (consistent with s. 74 of the LRA) provides:
An employee bargaining agency shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in a bargaining unit for which it is designated, whether or not the employees are members of the trade union that represents them.
[37] Courts have no original jurisdiction over disputes involving the duty of fair representation (s. 114(1) of the LRA, s. 44(2) of the SBCBA, Gendron v. Supply & Services Union of the Public Service Alliance of Canada, Local 50057, 1990 110 (SCC), [1990] 1 S.C.R. 1298, at para. 61).
[38] Under s. 4(1) of the SBCBA, the LRA applies to the SBCBA, with necessary modifications. Section 48(1) of the LRA provides for the final and binding arbitration of all disputes arising from the collective agreement:
Every collective agreement shall provide for the final and binding settlement by arbitration, 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.
[39] None of the provisions in the SBCBA modify the requirement in s. 48(1) of the LRA. Where a collective agreement does not contain the provision required under s. 48(1), then s. 48(2) of the LRA deems a provision to be included by operation of statute.
[40] Under the Collective Agreements, a grievance is defined as “any difference of opinion involving the interpretation, application, administration, or alleged violation of any term, provision, or condition of this Agreement including any question as to whether a matter is arbitrable” (article 10.02 (a) of Part B of the Collective Agreement between the ETFO and the Board (September 1, 2014-August 31, 2017)).
[41] The Collective Agreements also include a comprehensive grievance procedure in accordance with the SBCBA and the LRA. The grievance process includes both formal and informal resolution, culminating in grievance arbitration before an arbitration board (art. 10.09 of Part B of the Collective Agreement between the ETFO and the Board (September 1, 2014-August 31, 2017)).
[42] Principals and vice-principals are excluded from the ETFO bargaining unit and therefore from the collective agreement (article 2.01 of Part B of the Collective Agreement between the ETFO and the Board (September 1, 2014-August 31, 2017)).
[43] Scott is a member of the OPC, a voluntarily recognized professional association representing 5,400 elementary and secondary school principals and vice-principals. The terms and conditions of Scott’s employment are governed by a collective agreement negotiated between the Board, the Crown, and the OPC.
Issue 1: Does the decision of the ETFO not to pursue a grievance give the court jurisdiction to hear the Claim?
1. Overview of the issue and the position of the parties
[44] This issue arises from the Weber and St. Anne decisions, which vest exclusive jurisdiction in a labour arbitrator for all matters arising out of a collective agreement “subject to the residual discretionary power of the courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal” (Weber, at para. 67).
[45] This remedial gap[^3] is relied upon by the Plaintiffs, who submit that the court can exercise its discretion to hear matters that would fall within the Collective Agreements because the arbitrator cannot hear the matter since (i) the ETFO decided in good faith not to pursue the grievance and (ii) Lisa accepted the ETFO’s decision.
[46] The Defendants rely on the analysis in Weber and St. Anne, as well as the decisions in De Montigny (both SC and CA) to submit that (i) the remedial gap only confers jurisdiction on the courts if an arbitrator does not have the power to provide a remedy, and (ii) as such, the court does not have jurisdiction over disputes under a collective agreement if the union decides not to pursue a grievance (whether or not in good faith). The Defendants submit that in the present case, an arbitrator had the power to order damages and the other relief sought by Lisa (which the Plaintiffs do not contest), so no remedial gap arises.
[47] The Plaintiffs rely on comments of the court in Rivers CA (at para. 7), in which the court noted that a “fatal flaw” in the plaintiffs’ request for civil jurisdiction was that they did not pursue a grievance procedure.
[48] The Defendants submit that the failure to bring a grievance in Rivers was relevant because the plaintiffs claimed systemic harassment and discrimination, yet never sought to pursue that claim through the collective agreement. The Defendants submit that the comments in Rivers do not constitute a “sea-change” permitting civil actions for any collective agreement dispute if the union decides not to pursue the grievance.
[49] The Plaintiffs also rely on comments of the courts which address the ability of an employee to seek relief under concurrent human rights legislation if the union does not pursue the grievance.
[50] The Defendants submit that concurrent jurisdiction of both human rights tribunals and labour arbitrators to address workplace violations under human rights statutes does not give the court jurisdiction to hear such matters arising under the collective agreement if the union decides not to pursue a grievance. The Defendants submit that the comments of the courts in concurrent jurisdiction cases as to the availability of relief before the human rights tribunal if no grievance is brought do not usurp the Weber principle of exclusive jurisdiction of a labour arbitrator to determine matters arising under the collective agreement (subject to a remedial gap, which the Defendants submit does not arise in the present case).
[51] In addressing the above issues, I consider the following:
(i) the applicable law of exclusive jurisdiction of labour arbitrators (to the exclusion of the courts) to hear matters under the collective agreement,
(ii) the applicable law of concurrent jurisdiction of labour arbitrators and other employment-related tribunals to hear matters under the collective agreement,
(iii) the distinction between concurrent jurisdiction cases and the Weber principle establishing the exclusive jurisdiction of labour arbitrators to hear matters under the collective agreement,
(iv) the Plaintiffs’ submissions based on (a) the “remedial gap” and (b) the comments of the courts in Rivers and in concurrent jurisdiction cases, and
(v) the recent decisions in De Montigny (both SC and CA).
2. The applicable law of exclusive jurisdiction of labour arbitrators (to the exclusion of the courts) to hear matters under the collective agreement
[52] In St. Anne, Estey J. held that disputes subject to a collective agreement are not within the jurisdiction of the courts, but instead must be addressed through arbitration. He stated (at para. 16):
The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law. […] The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks. [Emphasis added.]
[53] In Weber, the plaintiff employee sought to bring a civil action in tort and under the Charter after he was suspended for allegedly abusing sick leave benefits, a decision based on the employer’s surveillance of the employee. The court considered the same provisions of the LRA that are at issue in the present case and affirmed that disputes arising either expressly or inferentially from the ambit of a collective agreement must proceed to labour arbitration. McLachlin J. (as she then was) held (at para. 67):
I conclude that mandatory arbitration clauses such as s. 45(1) of the Ontario Labour Relations Act generally confer exclusive jurisdiction on labour tribunals to deal with all disputes between the parties arising from the collective agreement. [Emphasis added.]
[54] The exclusive jurisdiction of the labour arbitrator under Weber and St. Anne is subject to a remedial gap, which allows a party to a collective agreement to seek a remedy before the court if the labour arbitrator is not empowered to provide that remedy.
[55] In St. Anne, Estey J. noted that the court retained a “limited residual presence in the labour relations scheme” which included issuing injunctive relief (at para. 34).
[56] Similarly, in Weber, McLachlin J. held (at para. 67):
The exclusive jurisdiction of the arbitrator is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal.
[57] McLachlin J. reviewed the residual discretion of the courts, based on remedies such as injunctions and declarations which could not be ordered by a labour arbitrator. She held that a remedial gap could exist if the labour arbitrator was not “empowered” to provide the remedy sought (Weber, at para. 57):
It 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. This Court in St. Anne Nackawic confirmed that the New Brunswick Act did not oust the residual inherent jurisdiction of the superior courts to grant injunctions in labour matters (at p. 724). Similarly, the Court of Appeal of British Columbia in Moore v. British Columbia (1988), 1988 184 (BC CA), 50 D.L.R. (4th) 29 , at p. 38, accepted that the court's residual jurisdiction to grant a declaration was not ousted by the British Columbia labour legislation, although it declined to exercise that jurisdiction on the ground that the powers of the arbitrator were sufficient to remedy the wrong and that deference was owed to the labour tribunal. What must be avoided, to use the language of Estey J. in St. Anne Nackawic (at p. 723), is a “real deprivation of ultimate remedy”. [Emphasis added.]
3. The applicable law of concurrent jurisdiction of labour arbitrators and other employment-related tribunals to hear matters under the collective agreement
[58] A labour arbitrator and other employment-related tribunals may have concurrent jurisdiction to hear matters under the collective agreement. By way of example, a human rights tribunal and the labour arbitrator can both address alleged human rights violations arising from the collective agreement.[^4] In Québec (C.D.P.D.J.) v. Québec (A.G.), 2004 SCC 39, [2004] 2 S.C.R. 185 (“Morin”), McLachlin C.J. held (at para. 11):
However, Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes. Depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction.
4. The distinction between concurrent jurisdiction cases and the Weber principle establishing the exclusive jurisdiction of labour arbitrators to hear matters under the collective agreement
[59] The concurrent jurisdiction cases do not provide jurisdiction to the civil courts for matters arising from the collective agreement. Rather, consistent with Weber and St. Anne, they affirm the concurrent jurisdiction of both the arbitrator and the statutory tribunal, to the exclusion of the civil courts.
[60] The distinction between the concurrent jurisdiction cases and the Weber analysis was addressed by Cromwell J.A. (as he then was) in Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General) (2007), 2007 NSCA 38, 253 N.S.R. (2d) 144 (C.A.) (“Cherubini”).
[61] In Cherubini, the employer brought an action against the province and the union in negligence, conspiracy and interference with economic interests, arising after the employer closed its plant in 2002, following difficulties with the union and the province on occupational health and safety issues.
[62] The motion judge had refused to dismiss the action for lack of jurisdiction. The Court of Appeal reversed the lower court decision and dismissed the action.
[63] The motion judge had relied on the Morin decision. Cromwell J.A. noted that Morin did not address the exclusive jurisdiction of the labour arbitrator to hear disputes under the collective agreement (as was at issue in Weber), but instead addressed the concurrent jurisdiction of the human rights tribunal and an arbitrator to hear matters arising under human rights legislation. Consequently, Cromwell J.A. concluded that Morin was “very different from our case”. He held (at para. 61):
In our case, unlike Morin, the question is not which of two different tribunals that have concurrent jurisdiction ought to hear the dispute, but whether the dispute is within the exclusive jurisdiction of an arbitrator and may not be addressed by the courts. The question is not whether the dispute would be better handled by the courts, but whether, given its essential character and the ambit of the grievance and arbitration scheme, it lies within the exclusive jurisdiction of that scheme. [Emphasis added.]
[64] I rely on the above cases and conclude that it is settled law that disputes under the collective agreement are exclusively to be determined by a labour arbitrator, subject to concurrent (or exclusive) jurisdiction of another tribunal empowered to address specific employment-related issues (such as human rights legislation). A court has no jurisdiction to determine any dispute which arises under a collective agreement, subject to its residual discretion which I now address below.
5. The Plaintiffs’ submissions based on (a) the “remedial gap” and (b) the comments of the courts in Rivers and in concurrent jurisdiction cases
[65] I first address the “remedial gap” submission of the Plaintiffs and then consider the comments of the courts both in Rivers and in concurrent jurisdiction cases, as relied upon by the Plaintiffs.
(a) The remedial gap
[66] The Plaintiffs rely on the “remedial gap” passages in St. Anne and Weber set out at paragraphs 55 to 57 above to submit that there is a “real deprivation of ultimate remedy” and the arbitrator has no “power” to hear the issues raised in the Claim because of the ETFO’s decision not to pursue the grievance. I do not agree that the law supports such a position.
[67] Adopting the Plaintiffs’ submissions would permit a party to a collective agreement to obtain access to the courts based solely on the union’s refusal to pursue a grievance (or on an employee’s decision to accept the union’s refusal to pursue a grievance). I find that such an approach would circumvent the legislative intent to have all workplace matters subject to the collective agreement to be heard by the arbitrator.
[68] The grievance procedure is the exclusive means to address workplace disputes. A decision by the union not to pursue the grievance is part of that process, not a “remedial gap” in powers.
[69] I find that the court has no jurisdiction to hear a matter under the collective agreement if the union decides not to bring the grievance due to the passage of time. The arbitrator is “empowered” to determine the grievance, but may not do so if (i) the employee brings the grievance outside any mandatory period or (ii) the arbitrator has the discretion to extend the grievance period but chooses not to do so. There is no remedial gap in power. Otherwise, an employee could wait for the grievance period to expire and then bring a civil action for damages under the collective agreement if the union decides not to pursue the grievance because of the passage of time.
[70] Similarly, the court has no jurisdiction to hear a matter under the collective agreement if the union decides not to bring the grievance because of its concern as to the merits of the grievance. Under the Plaintiffs’ approach, an employee could bring a civil action for damages under the collective agreement if the union decides that the grievance has no merit, which is contrary to the exclusive grievance arbitration procedure established under the collective agreement as supported by Weber and St. Anne.
[71] The union’s decision not to pursue a grievance is irrelevant to the court’s jurisdiction to hear a civil action. Under Weber and St. Anne, the remedial gap is determined by whether an arbitrator is empowered to hear a matter under the collective agreement, not by whether a grievance is pursued.
[72] The principle in Weber derives from a legislative decision to have all workplace-related disputes under a collective agreement determined in the arbitration forum. The grievance process is part of the collective agreement and statutory regime. It includes the ability of a union to decide whether to take the grievance forward, based on the merits of the grievance, the time passed since the impugned conduct took place, or any other factor relevant to that decision. Any bad faith in such a decision is to be addressed through a DFR complaint or other procedure under the collective agreement.
[73] The employee can challenge any decision by the union not to pursue a grievance as a breach of the union’s duty of fair representation. If the result of the process (either by employee acceptance of the decision or after an unsuccessful DFR challenge) is that the grievance is not brought forward, that is the process set out by the LRA and applicable collective bargaining statutes.
[74] If there is no breach of the union’s duty of fair representation, and the union decides not to pursue the grievance, there is no unfairness to an employee who participates in the collective bargaining structure with exclusive jurisdiction granted to labour arbitrators.
[75] Further, the approach proposed by the Plaintiffs is contrary to settled law that has narrowly interpreted the “real deprivation of ultimate remedy” exception for court jurisdiction on collective agreement disputes.
[76] In Giorno v. Pappas (1999), 1999 1161 (ON CA), 42 O.R. (3d) 626 (C.A.) (“Giorno”), the court dismissed a civil claim for defamation arising out of the workplace. The court rejected the appellant’s submission that the court could assume jurisdiction because different heads of damages are available at common law. Goudge J.A. adopted the following passage from Piko v. Hudson’s Bay Co. (1998), 1998 6874 (ON CA), 41 O.R. (3d) 729 (C.A.), at para. 22 (cited at Giorno, at para. 19):
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. [Emphasis added.]
[77] In Giorno, Goudge J.A. affirmed that the remedial gap arises only if the arbitrator does not have the power to remedy the wrong. He held (at para. 20) (endnotes omitted):
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. [Emphasis added.]
[78] In A. (K.), Sharpe J.A. considered whether there was a remedial gap because lesser damages were available by way of arbitration. Sharpe J.A. referred to the remedial gap examples of injunctions and declarations set out in Weber, and held that any difference in available damages did not oust the exclusive jurisdiction of the labour arbitrator. He held that the labour arbitrator was empowered to remedy the wrong (at para. 21):
Accordingly, even if the damages the respondents would recover by way of arbitration could be less than the amount they would recover in an action, the arbitrator is still empowered to remedy the wrong and there is no remedial gap amounting to the effective deprivation of remedy sufficient to justify the assumption of jurisdiction by the court.
[79] The Plaintiffs further submit that there is a “remedial gap” because Lisa believes the ETFO decision not to pursue the grievance was made in good faith, and, as such, the matter cannot be heard through the grievance arbitration process. I do not agree.
[80] The law should not vest jurisdiction on civil courts for workplace disputes under the collective agreement on the basis of whether an employee chooses to accept a union’s decision not to pursue a grievance. An employee who unsuccessfully challenges a union’s decision not to pursue a grievance through a DFR complaint is in the same position as an employee who accepts the union’s decision: both of them will not be able to have their dispute determined by the arbitrator, as a result of the exclusive process in which the collective bargaining takes place.
[81] Permitting employees to bring matters arising under a collective agreement before the courts because a union does not pursue a grievance undermines both the union’s exclusive right of representation and the legislature’s explicit intent as evidenced by the SBCBA and the LRA. The Supreme Court adopted an exclusive jurisdiction model in Weber to ensure that statutory labour relations regimes would not be “frustrated by the conferral of jurisdiction upon an adjudicative body that was not intended by the legislature” (Regina Police Assn. v. Regina Police Commrs., 2000 SCC 14, [2000] 1 S.C.R. 360, at para. 26).
[82] The exclusive jurisdiction model represents a policy choice by the legislature. Labour arbitrators and labour boards are specialized administrative decision-makers with expertise in adjudicating workplace disputes and interpreting collective agreements. As Cromwell J.A. held in Cherubini, at para. 41:
A significant objective of this comprehensive scheme is to minimize, if not eliminate entirely, the involvement of the courts as first instance decision-makers with respect to workplace disputes.
[83] The comprehensive labour arbitration scheme is central to labour relations in Ontario. It is designed to “resolve workplace disputes expeditiously and economically through the specialized expertise of labour arbitrators” (Giorno, at para. 17).
[84] For the above reasons, I do not accept the Plaintiffs’ submission that the decision of the ETFO not to pursue the grievance results in a remedial gap enabling the Plaintiffs to bring a civil claim for matters arising under the Collective Agreements.
(b) The comments of the courts in Rivers and in concurrent jurisdiction cases
[85] The Plaintiffs rely on a statement by the court in Rivers CA, as well as comments of the courts in concurrent jurisdiction cases, to submit that the decision of the ETFO not to pursue Lisa’s grievance can ground a civil claim. I do not agree.
[86] I address each of these comments below.
i. The comments of the court in Rivers CA
[87] The Plaintiffs rely on the following passage in Rivers CA (at para. 7):
The appellants argue that the discriminatory environment in which they find themselves leaves them without an adequate remedy on a practical basis and that this requires that they be granted access to the courts. One fatal flaw in this argument is that the appellants have not attempted to avail themselves of the mandatory grievance/arbitration process or led evidence to demonstrate that it is practically unavailable. [Emphasis added.]
[88] The Plaintiffs submit that because the court in Rivers CA commented on the failure of the appellants to have pursued the grievance process, then the necessary corollary is that the court would have permitted a civil action if the appellants had sought to engage the grievance process but the union decided not to pursue the grievance. I do not agree.
[89] First, such an interpretation would be directly contrary to the decision in De Montigny CA (which I discuss below), in which the court struck out a claim for defamation arising from the workplace when the union chose not to pursue the grievance. The court in De Montigny CA upheld the decision of the motion judge that the union’s decision not to pursue the grievance did not result in the court having jurisdiction over the claim.
[90] Second, the decision in Rivers CA does not support the Plaintiffs’ position. In Rivers, the plaintiffs sought relief in the civil courts based on alleged “systemic gender-based discrimination and harassment committed by male members of the [Waterloo Regional Police Service] against the class members”, “breach of class members’ rights under s. 15 of the Charter to be free from gender-based discrimination”, and “liability through the tort of harassment for the outrageous conduct of its male members against the class members” (Rivers SC, at para. 6).
[91] In Rivers, the proposed plaintiff class consisted of “all uniformed women who were or are members” of the Waterloo Regional Police Service (Rivers SC, at para. 1). The class claimed that the Waterloo Regional Police Service Association (Rivers SC, at para. 7):
(i) failed to provide the class members with a work environment free of gender-based discrimination and sexual harassment,
(ii) failed to ensure that complaints and grievances regarding discrimination were properly investigated and resolved under the Harassment and Discrimination Procedure and the Collective Agreement, and
(iii) discouraged or ignored complaints from female members about sexual harassment, and advised them that filing complaints or grievances would negatively affect their career prospects.
[92] It was in this context that the Court of Appeal noted that the proposed civil action had a “fatal flaw” in that even if the environment in which the police officers worked was discriminatory, no systemic claim could lie if the plaintiffs had not attempted to avail themselves of the mandatory grievance process (Rivers CA, at para. 7). In other words, a systemic discrimination claim could not be considered if there was no evidence that the system had resulted in discrimination.
[93] The “fatal flaw” comment was not a sea-change to permit civil actions if a union chose not to pursue a grievance. To the contrary, the court upheld the motion court decision of Baltman J. that the labour arbitrator had exclusive jurisdiction since the dispute was governed by the collective agreement (Rivers SC, at para. 40).
[94] The above interpretation is confirmed by the Court of Appeal’s conclusion at paragraphs 5 and 6 of Rivers CA:
We agree with the motion judge that binding jurisprudence from this court applying Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929 (S.C.C.), in the policing context dictates that the Superior Court lacks jurisdiction to entertain the proposed class action […]
In that regard, we observe that, contrary to the appellants' submissions, the collective agreement permits group complaints or grievances. Moreover, arbitrators under Part VIII of the PSA have broad remedial powers sufficient, in our view, to remedy the wrongs alleged.
[95] In other words, the Court of Appeal accepted that jurisdiction over the dispute was exclusive to the labour arbitrator, who had the “broad remedial powers sufficient, in our view, to remedy the wrongs alleged”.
ii. Comments from concurrent jurisdiction case law relied upon by the Plaintiffs
[96] The other comments relied upon by the Plaintiffs are all from cases in which the courts held that because of concurrent jurisdiction between the arbitrator and human rights tribunal over breaches of employment-related human rights legislation (see paragraph 58 above), an employee is not precluded from a complaint to the human rights tribunal if the union decides not to pursue a grievance. However, these cases do not support the jurisdiction of the civil court to determine workplace disputes arising under collective agreements. That jurisdiction is exclusive to labour arbitrators, subject only to (i) concurrent (or exclusive) jurisdiction of other decision-makers under other employment-related statutes and (ii) the remedial gap discussed above.
[97] I summarize the comments of the courts relied upon by the Plaintiffs as follows:
(i) In Morin, McLachlin C.J. stated (at para. 28):
Second, the unions were, on the face of it, opposed in interest to the complainants, being affiliated with one of the negotiating groups that made the allegedly discriminatory agreement. If the unions chose not to file a grievance before the arbitrator, the teachers would be left with no legal recourse (other than possibly filing a claim against their unions for breaching the duty of fair representation). [Emphasis added.]
(ii) In Naraine v. Ford Motor Co. of Canada (2001), 2001 21234 (ON CA), 158 O.A.C. 380 (C.A.) (“Naraine”), Abella J.A. (as she then was) stated (at paras. 61-62):
[T]here may be circumstances where an individual unionized employee finds the arbitral process foreclosed, since the decision whether to proceed with a grievance is the union's and not the employee's. Moreover, the alleged human rights violation may be against the union, as stipulated in the [Human Rights] Code in ss. 6 and 45(1) [...].
In an arbitration under a collective agreement, only the employer and union have party status. The unionized employee's interests are advanced by and through the union, which necessarily decides how the allegations should be represented or defended. Applying Weber so as to assign exclusive jurisdiction to labour arbitrators could therefore render chimerical the rights of individual unionized employees. [Emphasis added.]
(iii) In Northern Regional Health Authority v. Manitoba Human Rights Commission et al., 2017 MBCA 98 (“NRHA”), the court stated (at para. 54(iii)):
A Weber analysis cannot produce the result that denies a claimant access to justice by providing them with no effective remedy to have their dispute heard and determined (see Millen at para 20; and Giesbrecht v McNeilly et al, 2008 MBCA 22 at paras 55-62). For example, exclusive jurisdiction to decide a dispute cannot be assigned to an arbitrator if the union is opposed in interest to the individual employee or is unprepared to advance a grievance to arbitration, thereby leaving the individual employee with no effective legal recourse (see Morin at para 28; Bohemier v Centra Gas Manitoba Inc, 1999 CarswellMan 32 (CA) at para 17, leave to appeal to SCC refused, 2000WL33290404; and Sachdev et al v University of Manitoba et al, 2001 MBCA 132 at para 15); [Emphasis added.] and
(iv) In A.T.U., Local 583 v. Calgary (City), 2007 ABCA 121, 75 Alta L.R. (4th) 75 (“ATU”), the court held (at paras. 67 - 69):
The application of the exclusive jurisdiction model is not appropriate here, as it would effectively leave the unionized employee without a forum in which to air her discrimination allegations. This Court has held that a human rights tribunal cannot be precluded from considering a complaint of discrimination where the issue has not been fully dealt with in a labour arbitration […]
It is the Union's right not to take a grievance but that does not remove the employee's right to access the human rights regime, unless the legislature clearly states otherwise. Ultimately, we must be guided by the legislation. The legislative intent revealed by the Human Rights Act is to grant to all Albertans access to human rights protection. In the absence of a clear indication to the contrary in the Labour Relations Code, I cannot conclude that the intent of the legislature was effectively to remove that right of access from unionized employees. […]
The practical outcome of the jurisdictional analysis in this case may be multiple proceedings to address the differences between the parties. That is the perhaps unfortunate but inevitable result given the language of the statutes and the manner in which the disputes have been framed by the parties. […] [Emphasis added.]
[98] As I discuss at paragraphs 60 to 63 above, Cromwell J.A. in Cherubini distinguishes between Morin (a concurrent jurisdiction case) and the settled law from Weber that courts have no role in resolving labour disputes arising under the collective agreement. I adopt his reasons and thus distinguish the cases relied upon by the Plaintiffs in the same manner.
[99] Further, the distinction noted by Cromwell J.A. in Cherubini is also evident from the cases relied upon by the Plaintiffs.
[100] In Naraine, Abella J.A. distinguished between the exclusive jurisdiction principle in Weber and the principle of concurrent jurisdiction of a labour arbitrator and other tribunals for employment-related statutes. Abella J.A. referred to Weber and held that it did not apply. Abella J.A. adopted the following passage from Cadillac Fairview Corp. v. Saskatchewan (Board of Inquiry) (1999), 1999 12358 (SK CA), 173 D.L.R. (4th) 609 (Sask. C.A.) at pp. 619-23 (cited at Naraine, at para. 57):
Weber, in my opinion, did not go so far as to state that any rights created by statute that affect employer’s rights must of necessity arise out of the collective agreement and can only be dealt with by arbitration.
[101] Abella J.A. further held that “I am therefore of the view that Weber does not apply so as to oust the jurisdiction of the Board in Mr. Naraine’s case” and that “Weber is of limited assistance in determining which forum prevails” (at para. 58).
[102] It was in that context that Abella J. noted (at paras. 61-62) that the result of concurrent jurisdiction is that an employee can pursue a human rights claim before the tribunal if the union does not purse a grievance. Abella J.A. was not proposing a sea-change to the Weber principle which provides that the courts have no role in resolving labour disputes under a collective agreement unless the arbitrator is not “empowered” to order the remedy sought.
[103] Similarly, the court in NRHA stated that “the central question in this appeal is when can a human rights tribunal adjudicate a complaint of discrimination in a workplace governed by a collective agreement” (at para. 1). The court upheld the decision of the Manitoba Human Rights Commission that it had jurisdiction to hear and determine a discrimination complaint of an employee against her former employer (at para. 2).
[104] The court in NRHA held that there was no “legal presumption of jurisdictional exclusivity in favour of a particular type of decision-maker” (at para. 54(ii)). It was in that context that the court stated that given the concurrent jurisdiction, an arbitrator would not have exclusive jurisdiction “if the union is opposed in interest to the individual employee or is unprepared to advance a grievance to arbitration, thereby leaving the individual employee with no effective legal recourse” (at para. 54(iii)).
[105] Finally, in ATU (at para. 42), the court specifically relied on Morin. Paperny J.A. applied the Morin test and held (at para. 61):
The wording of the exclusivity clause in the Alberta Labour Relations Code, the clear legislative intent that all persons should have access to the complaints procedure under the Human Rights Act, and the lack of a deferral clause in that Act, all lead to the conclusion that it was not the intent of the Alberta legislature that either labour arbitration boards or the Commission should have jurisdiction over all human rights issues that arise in the unionized workplace to the exclusion of the other tribunal.
[106] Consequently, I reject the Plaintiffs’ submission that any of the comments on which they rely can be read as permitting claims under a collective agreement to be brought in the courts if the union decides not to bring a grievance. The cases relied upon by the Plaintiffs do not arise in that context, and expressly preserve the exclusive jurisdiction model under Weber.
4. The decisions in De Montigny
[107] The issue of whether the court has jurisdiction when the union does not pursue a grievance was addressed recently by the motion court and Court of Appeal in the De Montigny decisions.
[108] In De Montigny, the plaintiff was employed in a unionized workplace. The plaintiff’s employment was terminated in November 2014 for alleged violations of the employer’s harassment and discrimination policies. The union grieved the plaintiff’s termination, which was resolved by a “last chance agreement” entered into between the employer, the union and the plaintiff (De Montigny SC, at paras. 3-6).
[109] In November 2015, the employer received reports that the plaintiff had made new harassing statements about another co-worker. After the employer investigated the new allegations and obtained written statements from co-workers, the employer terminated the plaintiff’s employment in December 2015, for violation of the employer’s discrimination policy and non-compliance with the last chance agreement (De Montigny SC, at paras. 7-9).
[110] The union filed a grievance on behalf of the plaintiff for her dismissal (the “second grievance”). After the union investigated the plaintiff’s claims that her co-workers’ statements were false, the union decided not to pursue the second grievance to arbitration (De Montigny SC, at paras. 10-12).
[111] The plaintiff unsuccessfully appealed (within the union) the decision not to pursue the second grievance. She then brought a DFR complaint to the Ontario Labour Relations Board (the “OLRB”) which was dismissed. The plaintiff did not seek judicial review (i.e. she accepted the decision of the OLRB) (De Montigny SC, at para. 13).
[112] The plaintiff then brought a civil claim against her co-workers, alleging defamation for the statements made in the course of the employer’s investigation that led to her termination (De Montigny SC, at para. 14).
[113] In her thorough analysis of the issue, entitled “Does the fact that the union ultimately did not pursue the grievance about the plaintiff’s termination affect the issue of the court’s jurisdiction over the defamation action?”, Copeland J. held (De Montigny SC, at paras. 45-49):
The plaintiff also argues that the fact that the union ultimately did not pursue to arbitration the grievance relating to second termination (after the last chance agreement) supports allowing her defamation action to proceed.
The fact that the union chose not to pursue the grievance is not a factor that clothes this court with jurisdiction over a dispute that is, in its essential character, a workplace dispute about the plaintiff's discharge for breach of the harassment policies.
In a unionized workplace, the union is the sole representative of the employees. As a party to the collective agreement, and the sole representative of the employees, the union decides whether or not to pursue a grievance pursuant to the collective agreement. In making the decision whether or not to pursue a grievance, the union owes employees a duty of fair representation.
In this case, as I have outlined, the union initially filed a grievance of the plaintiff's dismissal. The union investigated the plaintiff's claim that the statements by her co-workers about her were false. The union found that the plaintiff's claim in this regard was not substantiated, and chose not to pursue the grievance to arbitration. The plaintiff exercised her remedy of an internal appeal within the union of this decision. When the decision not to pursue the grievance was affirmed by the union, the plaintiff exercised her right to bring a duty of fair representation claim to the OLRB. In considering her fair representation claim, the OLRB considered the plaintiff's allegations that the statements of her co-workers about her were false as they related to the duty of fair representation claim. The OLRB found that the plaintiff's fair representation claim was without merit. The plaintiff did not seek judicial review of the OLRB decision.
I understand that the plaintiff is not satisfied with the actions taken by the union, or with the OLRB decision on her fair representation claim. But her dissatisfaction does not give the court jurisdiction over this workplace dispute: Santos v. Crawford Roofing, supra at paragraph 8. [Emphasis added.]
[114] The decision of Copeland J. was affirmed by the Court of Appeal, who held (De Montigny CA, at para. 2):
We are in substantial agreement with the reasons of the motion judge. She applied well established law and correctly concluded that the dispute is one entirely regulated by the collective agreement to which the parties were subject as unionized workers. In this regard, we note that the arbitrator has wide remedial powers. In addition, the fact that the available remedies from the arbitrator are not identical to court-ordered remedies is not determinative. The issue is whether the arbitrator has the power to remedy the wrong, see Giorno v. Pappas (1999), 1999 1161 (ON CA), 42 O.R. (3d) 626 (C.A.). In this case, we are satisfied that the arbitrator has such power. [Emphasis added.]
[115] The reasons of Copeland J. (as affirmed by the Court of Appeal) confirm that an arbitrator’s jurisdiction to determine a workplace-related dispute is not ousted if a union decides not to pursue a grievance.
[116] The Plaintiffs attempt to distinguish De Montigny on the basis that the appellant employee in that case did not seek judicial review after the OLRB dismissed her DFR complaint. Lisa seeks to bring a civil action based on her belief that the ETFO’s decision not to pursue her grievance was in good faith.
[117] Under the Plaintiffs’ proposed distinction, courts would have jurisdiction to determine a dispute under the collective agreement whenever an employee believes that the decision of the union not to pursue a grievance is made in good faith, but courts would not have such jurisdiction if the decision was unsuccessfully challenged through a DFR complaint. I do not accept the logic of such a distinction.
[118] In De Montigny, the OLRB had already dismissed the DFR complaint, and, as such, the court had evidence that the union’s decision to not pursue the grievance had been taken in good faith. Consequently, the court in De Montigny had evidence that the arbitrator would not be able to hear the matter, and held that the labour arbitration process was the exclusive forum. While the plaintiff in De Montigny did not seek judicial review of the OLRB decision, the plaintiff had challenged the union’s decision and a determination had been made by the OLRB that the decision was in good faith.
[119] Given the facts in De Montigny, a party (such as Lisa) should not be in a stronger position to engage civil jurisdiction of the court by choosing not to challenge the union’s decision. In either situation, the arbitrator remains empowered to hear the dispute but cannot because of the union’s decision not to pursue the grievance.
[120] Consequently, even if the ETFO decided in good faith not to pursue Lisa’s grievance, the civil courts have no jurisdiction since the arbitrator was empowered to hear the matter.
[121] I adopt and follow the compelling reasons of Copeland J. in De Montigny SC, as affirmed by the Court of Appeal. In addition to the case law I discuss above, I find De Montigny CA to be binding authority for the Defendants’ submission.
[122] For the above reasons, I reject the Plaintiffs’ submission that the court has jurisdiction over the Claim because the ETFO decided not to file a grievance.
Issue 2: Is the subject-matter of the action within the scope of the applicable Collective Agreements?
1. Overview of the issue and the position of the parties
[123] This issue arises under the Weber decision because the labour arbitrator has jurisdiction only if (i) the essential character of the dispute is workplace-related and (ii) the scope of the collective agreement expressly or inferentially includes the matters in dispute.
[124] The Plaintiffs submit that the sexual assault allegations in the Claim are not within the scope of the applicable Collective Agreements.[^5] The Plaintiffs rely on the amendments of the Collective Agreements after the date of the alleged sexual assaults, which incorporated an obligation on the Board to maintain a safe working environment (derived from the OHSA), and submit that no express or inferential link to sexual assault can be found in the applicable Collective Agreements.
[125] The Plaintiffs rely on the decision in Brown v. University of Windsor, 2016 ONCA 431, 132 O.R. (3d) 620 (“Brown”), in which the court relied upon a pay and benefits provision in the collective agreement to find that the arbitrator (and not the court) had jurisdiction to determine the issue of entitlement to employee insurance premium reductions. The Plaintiffs submit that there is no such express provision in the applicable Collective Agreements.
[126] The Defendants rely on the decision in Parry Sound as binding authority that the labour arbitrator can hear workplace-related sexual assault matters because such conduct is prohibited under the Code, and because a safe working environment is required under the OHSA, both of which are incorporated into the Board’s managerial rights under the applicable Collective Agreements.
[127] The Defendants also rely on the decision in A. (K.), which they submit is binding that sexual assault claims are governed by the Collective Agreements.
[128] I address this issue by briefly reviewing (i) the Weber test and (ii) the essential character of the Plaintiffs’ claim. I then review the issue before the court of whether the claims fall within the scope of the applicable Collective Agreements.
2. The Weber test
[129] Under Weber, the court must engage in a two-part test to determine whether a dispute between an employer and employee falls within the exclusive jurisdiction of a labour arbitrator: first, the court must look at the nature of the dispute, and second, at the ambit of the collective agreement (Weber, at para. 51).
[130] To examine the nature of the dispute, the decision maker must attempt to define its “essential character” (Weber, at para. 52). Jurisdiction does not depend on how a claim is framed – the issue is whether the dispute is one arising under the collective agreement (Weber, at para. 43).
[131] The fact that the parties are employer and employee may not be determinative. Similarly, the place of the conduct may not be conclusive; matters arising from the collective agreement may occur off the workplace and conversely, not everything that happens on the workplace may arise from the collective agreement (Weber, at para. 52).
[132] The “essential character” of a claim is not determined by formal language in the pleadings. Rather, the court must look at the factual circumstances giving rise to the dispute, as pled in the statement of claim, and assess, whether in their essential character, they arise from the interpretation, application, administration or violation of the collective agreement (Weber, at para. 45).
[133] Similarly, McLachlin J. held in Weber that jurisdiction is not determined by the “legal characterization of the wrong, but [by] the facts giving rise to the dispute”. McLachlin J. stated that a focus on legal characterization would (at para. 49):
leave it open to innovative pleaders to evade the legislative prohibition on parallel court actions by raising new and imaginative causes of action, as remarked by La Forest J.A. in the Court of Appeal decision in St. Anne Nackawic, at pp. 694-95. This would undermine the legislative purposes underlying such provisions and the intention of the parties to the agreement. This approach, like the concurrency model, fails to meet the test of the statute, the jurisprudence and policy.
[134] The test as set out in Weber is not in dispute.
3. The essential character of the Claim
[135] The references to the Claim set out at paragraph 26 above are replete with allegations that demonstrate that the essential character of the dispute arises from the workplace relationship between Lisa and Scott. Lisa alleges that Scott abused his position of authority as Principal to sexually harass and assault her. Scott allegedly conferred job-related benefits on Lisa by way of his relative power in the workplace and threatened her employment if she disclosed his actions. Scott allegedly then reprised against Lisa by arranging an unwanted school transfer after Lisa refused Scott’s advances. The facts as alleged make clear that this dispute is inextricably linked to the workplace.
[136] In Rivers, the plaintiffs sought to certify a class action on behalf of all female officers of the Waterloo Regional Police Services Board. The claim alleged systemic sex discrimination and included allegations of sexual harassment. The Court of Appeal held that these claims were workplace-related and within the scope of the collective agreement, and, as such, not within the jurisdiction of a court by the operation of the applicable statutory labour relations regime, in that case the Police Services Act, R.S.O. 1990, c. P. 15.
[137] In A. (K.), two female members of the Amalgamated Transit Union alleged that a colleague had both sexually harassed and sexually assaulted them in the workplace. As in the present case, the civil claim was brought against both the employer and individual defendant.
[138] The motion judge concluded that the claims for sexual harassment fell under the exclusive jurisdiction of the arbitration procedure in the collective agreement, but did not strike the claims for the alleged sexual assault. On appeal, the court struck the claims for sexual assault. Sharpe J.A. held that the arbitrator “does have jurisdiction to deal with the claims of sexual harassment even where those claims extend to physical contact capable of amounting to assault” (A. (K.), at para. 13).
[139] Consequently, I find that the work-related character of the claims is not in issue. The Plaintiffs did not pursue this submission at the hearing.
4. Whether the claim is within the scope of the applicable Collective Agreements
[140] The Plaintiffs submit that the scope of the applicable Collective Agreements does not encompass the allegations of the sexualized misconduct by Scott, including the coerced sexual intercourse which took place between 2003 and 2004. I do not agree.
[141] I rely on the decisions in both Parry Sound and in A. (K.), which I review below. I then review the submissions of the Plaintiffs.
(a) The decision in Parry Sound
[142] In Parry Sound, the collective agreement provided that “a probationary employee may be discharged at the sole discretion of and for any reason satisfactory to the Employer and such action by the Employer is not subject to the grievance and arbitration procedures and does not constitute a difference between the parties” (at para. 3).
[143] The court held that an employer’s right to manage the enterprise and direct the workforce is not only subject to the express provisions of the collective agreement, but also to the statutory provisions of the Code and other employment-related statutes. Iacobucci J. held (Parry Sound, at para. 23 and 28):
For the reasons that follow, it is my conclusion that the Board was correct to conclude that the substantive rights and obligations of the Human Rights Code are incorporated into each collective agreement over which the Board has jurisdiction. Under a collective agreement, the broad rights of an employer to manage the enterprise and direct the work force are subject not only to the express provisions of the collective agreement, but also to statutory provisions of the Human Rights Code and other employment-related statutes.
As a practical matter, this means that the substantive rights and obligations of employment-related statutes are implicit in each collective agreement over which an arbitrator has jurisdiction. A collective agreement might extend to an employer a broad right to manage the enterprise as it sees fit, but this right is circumscribed by the employee's statutory rights. The absence of an express provision that prohibits the violation of a particular statutory right is insufficient to conclude that a violation of that right does not constitute a violation of the collective agreement. Rather, human rights and other employment-related statutes establish a floor beneath which an employer and union cannot contract. [Emphasis added.]
[144] Section 48(12)(j) of the LRA codifies the above common law with respect to the arbitrator’s jurisdiction. The arbitrator has the power “to interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the terms of the collective agreement”.
[145] Consequently, employment-related statutes are implicitly incorporated into a collective agreement and are within the jurisdiction of the labour arbitrator, unless those statutes (such as the WSIA) establish exclusive jurisdiction on another tribunal.
[146] Any exercise of an employer’s managerial discretion must be lawful and exercised in accordance with the Code and other employment-related statutes such as the OHSA. Any conduct not in compliance with the Code, the OHSA, or any other employment-related statute, is a “difference” which is not within the jurisdiction of the courts, but is “arbitrable” under the collective agreement and subject to the jurisdiction of the labour arbitrator. In Parry Sound, Iacobucci J. held (at para. 37):
The effect of my analysis is to modify Article 8.06(a). Under this analysis, it is only a probationary employee being discharged "at the sole lawful discretion of and for any lawful reason satisfactory to the Employer" that does not constitute a difference between the parties. Any exercise of this discretion otherwise than in accordance with a probationary employee's rights under the Human Rights Code and other employment-related statutes is an arbitrable difference under the collective agreement. [Emphasis added.]
[147] In the present case, article 5 of the Collective Agreements, entitled “Employer’s Rights”, provides for the Board’s management rights of schools under its control:
5.01 The Union and the Local recognize that, within the limitations and qualifications contained in this Agreement, the Board has the sole and exclusive right to exercise duties and powers granted to it under the Education Act, as amended, and related statutes.
[148] Consequently, under the Collective Agreements in effect at the date of the alleged assaults, and at all material times subsequently, the Board maintained full discretion, under its management rights as employer, to manage the schools within its jurisdiction, subject to any qualifications in the Collective Agreements.
[149] In its role as manager and operator of schools, the Board must comply with the Code and cannot permit discrimination based on sex, sexual harassment, or sexual solicitation or advances, all of which are prohibited under ss. 5(1) and 7 (2) and (3) of the Code, which provide:
5(1) Every person has a right to equal treatment with respect to employment without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, record of offences, marital status, family status or disability.
7(2) Every person who is an employee has a right to freedom from harassment in the workplace because of sex, sexual orientation, gender identity or gender expression by his or her employer or agent of the employer or by another employee.
7(3) Every person has a right to be free from,
(a) a sexual solicitation or advance made by a person in a position to confer, grant or deny a benefit or advancement to the person where the person making the solicitation or advance knows or ought reasonably to know that it is unwelcome; or
(b) a reprisal or a threat of reprisal for the rejection of a sexual solicitation or advance where the reprisal is made or threatened by a person in a position to confer, grant or deny a benefit or advancement to the person. R.S.O. 1990, c. H.19, s. 7 (3).
[150] Further, the OHSA in effect at the time of the alleged sexual assaults and in all subsequent iterations required employers to provide information, instruction and supervision to a worker to protect the health or safety of the worker and required employers to take every precaution reasonable in the circumstances for the protection of the worker (ss. 25(2)(a) and (h) of the OHSA).
[151] Consequently, under Parry Sound, any violation of the Code or the OHSA by the Board, through managing a school in which sexual harassment and sexual assault occurs as a result of a workplace situation, is arbitrable and subject to the jurisdiction of an arbitrator (to the exclusion of the courts) under the Weber test.
(b) The decision in A. (K.)
[152] In A. (K.), the court relied on Parry Sound and held that the Canadian Human Rights Act, R.S.C. 1985, c. H-6 (the “CHRA”), was incorporated into the collective agreement. Sharpe J.A. held (A. (K.), at para. 11):
The CHRA is incorporated into the collective agreement by virtue of s. 60(1)(a.1) and by virtue of Parry Sound, supra. The CHRA provides in s. 14(2) that sexual harassment is deemed to be a prohibited form of discrimination. The arbitrator therefore has the jurisdiction to deal with a complaint of sexual harassment.
[153] In A. (K.), the motion judge struck allegations of sexual harassment from the statement of claim, concluding that those allegations were subject to the collective agreement. However, the motion judge did not strike the allegations of sexual assault, concluding that the court had jurisdiction over those claims as they were not within the scope of the collective agreement.
[154] The Court of Appeal allowed the appeal, holding that the labour arbitrator had jurisdiction under the Canada Labour Code, R.S.C. 1985, c. L-2 (the “CLC”) and the CHRA to address allegations of sexual assault.
[155] As with s. 48(1) of the LRA, s. 57(1) of the CLC provides that every collective agreement was required to contain an arbitration provision for final settlement of all differences between parties or employees bound by the agreement. Similarly, s. 60(1)(a.1) of the CLC, like s. 48(12)(j) of the LRA, provides that the arbitrator has the power to interpret, apply and give relief in accordance with a statute relating to employment matters, despite any conflict between the statute and the collective agreement.
[156] Sharpe J.A. held in A. (K.) that allegations of sexual assault were within the arbitrator’s jurisdiction under the collective agreement (at paras. 12-13):
Acts of unwanted touching may form part of a pattern of conduct that amounts to sexual harassment as defined under human rights legislation: see Janzen v. Platy Enterprises Ltd., 1989 97 (SCC), [1989] 1 S.C.R. 1252, [1989] S.C.J. No. 41, at p. 1282 S.C.R. While acts of unwanted touching may also constitute the tort of assault, I agree with the submission of the appellants that the acts of unwanted touching pleaded in the present case may in law be dealt with as part and parcel of the sexual harassment complaint.
Accordingly, when one looks to the legislation to determine what it says about the arbitrator's jurisdiction, I conclude that the arbitrator does have jurisdiction to deal with the claims of sexual harassment even where those claims extend to physical contact capable of amounting to assault. [Emphasis added.]
[157] Sharpe J.A. held that claims for sexual assault arising out of the workplace were within the scope of the collective agreement (at paras. 14-15):
I turn to the second question: what is the nature of the dispute and does the legislation suggest that resolution of the dispute falls exclusively to the arbitrator? The collective agreement provides for a comprehensive grievance and arbitration procedure. It is common ground that the motion judge properly identified the essential character of the dispute as being a "claim that the City failed to act in a proper manner to prevent or curtail the sexual harassment and the sexual assault of the plaintiffs by Mr. Gauthier". The CHRA definition and prohibition of sexual harassment discrimination are incorporated into the collective agreement and the employer is required to act accordingly. In the end, this is a workplace dispute in which it is alleged that the employer failed to provide a safe working environment for its employees. In my view, according to the jurisprudence binding on us, that brings this dispute squarely within the jurisdiction of the arbitrator under the collective agreement.
I agree with the appellants' submission that for the purpose of determining the arbitrator's jurisdiction, there is no basis to distinguish between the claims framed in sexual assault and those framed in sexual harassment. It has been held that regardless of the legal characterization of the dispute, where the dispute arises out of the collective agreement, it must be arbitrated and that "[p]arties cannot avoid arbitration simply by pleading a common law tort": Piko v. Hudson's Bay Co. (1998), 1998 6874 (ON CA), 41 O.R. (3d) 729, [1998] O.J. No. 4714 (C.A.), at p. 733 O.R.; Giorno v. Pappas (1999), 1999 1161 (ON CA), 42 O.R. (3d) 626, [1999] O.J. No. 168 (C.A.), at p. 630 O.R. [Emphasis added.]
[158] Sharpe J.A. concluded (A. (K.), at para. 24):
I have considerable sympathy for the result reached by the motion judge and for the respondents' assertion that they should be permitted to pursue their claims for sexual assault in the courts. The claims arise from allegations of criminal misconduct that affront the respondents' personal dignity and physical integrity, yet they are compelled to pursue them under the collective agreement's arbitration procedure, where they will not have personal carriage of the proceedings. However, Weber and its progeny deprive them of the right to prosecute their claim in the courts and we must give effect to the jurisprudence that is binding on this court. [Emphasis added.]
[159] The Plaintiffs seek to distinguish the decision in A. (K.) on the basis that “the court in that case was dealing with the Canada Labour Code”. However, as noted above, there is no distinction between the applicable provisions of the CLC and those of the LRA - they are virtually identical on the issues of (i) the requirement in a collective agreement for binding arbitration and (ii) the arbitrator’s jurisdiction to consider other employment-related statutes. Consequently, I do not accept the distinction raised by the Plaintiffs.
[160] I agree with the Defendants that A. (K.) is binding authority that when the essential character of sexual assault allegations is workplace-related, the allegations fall within the jurisdiction of the arbitrator (and outside the jurisdiction of the court), as an arbitrable workplace-related “difference”. The arbitrator has the jurisdiction to address such issues within the employer’s managerial role (as confirmed by Parry Sound). The decision in A. (K.) is consistent with the principles in St. Anne, Weber, and Parry Sound, and I adopt the reasoning of the court.
(c) Analysis of the Plaintiffs’ submissions
[161] The Plaintiffs rely on Brown, in which the court reviewed the collective agreement in the context of a civil claim for payment of employment insurance premium reductions to affected employees. The court held that the arbitrator had jurisdiction to determine the issue, based on a connection between the claim and the reference in the collective agreement to pay and benefits (at paras. 47-48).
[162] The Plaintiffs submit that there is no such direct connection in the present case, as the Collective Agreements do not refer to sexual assault. Further, the Plaintiffs submit that since the Collective Agreements at the time of the alleged sexual assault did not refer to the employer’s obligations to provide a safe workplace (derived from the OHSA in effect at that time), no connection could exist.
[163] The Plaintiffs rely on the evidence that it was only in the 2008-12 Collective Agreement that article 30.01 was added, which provided that “The Board and ETFO recognize the importance of promoting a safe and healthy environment for employees and of fulfilling their respective duties and obligations under the [OHSA] and its accompanying Regulation”.
[164] Consequently, the Plaintiffs submit that “by the provisions of contractual interpretation, the parties did not intend to incorporate the OHSA into the prior Collective Agreements (i.e. those in place between 2002 and 2007 when the incidents of sexual assault, battery and misconduct occurred)”.
[165] The Plaintiffs further submit that the OHSA itself did not contain any provision with respect to developing or enforcing polices with respect to workplace violence or harassment until June 15, 2010 (ss. 32.0.1 to 32.0.8 of the OHSA), and, as such, principles of statutory interpretation dictate that prior to that date, the legislature did not intend for the OHSA to cover those potential workplace hazards.
[166] Consequently, the Plaintiffs submit that even if the OHSA is deemed to be incorporated into the 2002-2007 Collective Agreements (by the Parry Sound decision), “there were no provisions that spoke to the sexual assault and/or poisonous workplace allegations asserted by [Lisa] in this action during that timeframe”.
[167] I do not agree with the Plaintiffs’ submissions.
[168] In Parry Sound, the Court held that the substantive rights and obligations of the Code are incorporated into each provision of the collective agreement over which the arbitrator has jurisdiction.
[169] In A. (K.), the court relied on the CHRA (the federal equivalent to the Code) to ground jurisdiction on the labour arbitrator for allegations of sexual assault (A. (K.), at paras. 11 and 14). That approach has been consistently followed by the courts, including in the recent decision of Rivers (at para. 38 of Rivers SC and para. 5 of Rivers CA).
[170] In the present case, not only would the Code apply to the exercise of managerial rights, but the Board’s managerial rights would also have to be exercised in accordance with the requirement under the OHSA for an employer to provide supervision to a worker to protect the worker’s health and safety and to take every precaution reasonable in the circumstances for the protection of the worker. That requirement would exist regardless of whether it was expressly stated in the Collective Agreements, since the OHSA, like the Code, is an employment-related statute incorporated into the terms of the collective agreement under Parry Sound.
[171] Consequently, as in Brown, and consistent with Parry Sound, there is a “difference” arising from the application of a provision in the collective agreement, i.e. the Board’s managerial rights under the Collective Agreements.
[172] It is not necessary for the specific changes to the OHSA in 2010 (addressing the requirement for violence and harassment policies, including procedures for reporting and investigating incidents) to have been in effect in order to ground jurisdiction on the arbitrator under the applicable Collective Agreements during the period of the alleged sexual assaults. The “protection of worker safety” provisions of the OHSA, which were in place at all material times, would apply to the applicable Collective Agreements.
[173] Further, it is not necessary for specific “safety” language in the Collective Agreement since the OHSA provisions governing protection of workers, existing at the date of the applicable Collective Agreements, would apply to grant jurisdiction to the arbitrator for any difference arising out of the Board’s exercise of its managerial rights.
[174] Finally, even if the provisions of the OHSA in effect at the date of the sexual assaults could not be incorporated into the Collective Agreements to provide jurisdiction to the labour arbitrator (which I do not accept for the reasons I discuss above), it is settled law in A. (K.) and in Parry Sound that the Code would also apply to the exercise of managerial rights, and as such the court would not have jurisdiction over the Claim, given the prohibition in the Code against sexual discrimination, sexual harassment, sexual solicitation, and sexual advances.
[175] Consequently, I find that there is a basis in the Collective Agreements for both the Code and the OHSA to apply, grounding jurisdiction to the labour arbitrator for the sexualized misconduct claims. As in Parry Sound, an employer’s right to manage the enterprise and direct the workforce are not only subject to the express provisions of the collective agreement, but also to the statutory provisions of the Code and other employment-related statutes.
Issue 3: Can a civil claim be brought even though damages under the [Code](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h19/latest/rso-1990-c-h19.html) are sought?
[176] The Plaintiffs submit that Lisa “is not required to choose the Ontario Human Rights Tribunal over the Superior Court of Justice to adjudicate her tort claims”. I do not agree.
[177] Section 46.1(1) of the Code enables a party in a civil proceeding to claim damages under the Code. The Plaintiffs rely on that provision to submit that they are “not required to choose the [HRTO] over the Superior Court of Justice to adjudicate her tort claims”.
[178] Section 46.1 of the Code provides:
(1) If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:
An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.
An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.
[179] However, a “piggyback” claim in the civil courts for damages under the Code is only permitted if there is an independent actionable civil right for which Code damages are also sought. Section 46.1(2) provides:
Subsection (1) does not permit a person to commence an action based solely on an infringement of a right under Part I.
[180] The Defendants submit that s. 46.1(2) “does not permit a person to commence an action solely on an infringement of a right” under Part 1 of the Code. The Defendants rely on Seneca College in which the court held that a civil action is precluded if based (i) directly on a breach of the Code or (ii) on an invocation of the public policy expressed in the Code (Seneca College, at p. 195). Consequently, the Defendants submit that because the Plaintiffs have no independent civil action under the Weber test, the Plaintiffs cannot bring a civil action for damages under the Code.
[181] In Seneca College, the Supreme Court allowed the appeal and held that a civil claim could not be brought for discrimination in hiring practices, because there was no independent tort to support the claim for damages under the Code. Laskin C.J. held (at p. 195):
For the foregoing reasons, I would hold that not only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code. The Code itself has laid out the procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use.
[182] The distinction was also addressed by Baltman J. in Rivers SC. She held that a party cannot “piggyback” a claim for damages under the Code for sexual discrimination onto a civil claim, unless there is an independent cause of action. After reviewing the applicable case law, Baltman J. held (at paras. 55-57):
In 2008, the Code was amended to allow a plaintiff to advance a breach of the Code as a cause of action solely in connection with another wrong; under s. 46.1, a plaintiff who has a civil claim properly before the court may "piggy-back" their Code claim so that the entire dispute can be adjudicated in one forum. Even then, the Court's remedial authority is limited.
However, as all the alleged wrongs in this case claim, at their core, sexual discrimination, there is no independent actionable wrong to ground a court action. The plaintiffs have not pleaded any independent cause of action which would permit them to bring the Code claim before this court.
The bottom line is that whether the Plaintiffs characterize their claims as systemic negligence, the tort of harassment, or a Charter breach, this action is one of workplace discrimination which may constitute a violation of both the Human Rights Code and the Collective Agreement, but not the common law. [Emphasis added.]
[183] I adopt the above reasoning and reject the Plaintiffs’ submission that, on the facts of this case, a civil action can be brought seeking damages under the Code. There is no independent civil action available to the Plaintiffs. Consequently, s. 46.1(1) does not apply, and the action is prohibited under s. 46.1(2).
[184] Any alleged injuries suffered by Lisa as a result of alleged infringements of her rights under the Code can be pursued by way of application to the HRTO under s. 34 of the Code, which has broad powers under s. 45.2 of the Code to remedy the wrongs alleged in the Claim.
Order and costs
[185] For the above reasons, I grant the motions and dismiss the action.
[186] The Plaintiffs sought partial indemnity costs of $41,105.57, while Scott sought partial indemnity costs of $21,871.08 and the Board sought partial indemnity costs of $26,500 (all amounts inclusive of taxes and disbursements). Given the importance of the issues, the examinations required for the hearing, and the thorough preparation of factums, briefs of authorities, and oral submissions, the costs sought by the Defendants are reasonable and are to be paid by the Plaintiffs within 30 days of this order.
[187] I thank counsel for their superb written and oral submissions, which were of great assistance to the court.
GLUSTEIN J.
Date: 20200402
COURT FILE NO.: CV-18-611338-0000
DATE: 20200402
ONTARIO
SUPERIOR COURT OF JUSTICE
LISA GREENLAW and SCOTT GREENLAW
Plaintiffs
AND:
CARL SCOTT and DISTRICT SCHOOL BOARD OF NIAGARA
Defendants
REASONS FOR DECISION
Glustein J.
Released: April 2, 2020
[^1]: The “remedial gap” term is adopted by Sharpe J.A. in A. (K.) at paras. 19-21, based on the comments of the court in Weber (at para. 67) that the court maintains “residual discretionary power […] to grant remedies not possessed by the statutory tribunal”. I use the term in these reasons.
[^2]: Scott raised an alternative submission in his factum that the Claim could not be heard by this court in any event since the Claim seeks damages for workplace injuries and, as such, would be within the exclusive jurisdiction of the Appeals Tribunal under the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (the “WSIA”). At the hearing, Scott advised the court that he was not pursuing this submission. Scott acknowledged that the issue of whether the Appeals Tribunal had jurisdiction had to be raised before that tribunal (and not the civil court) under s. 31 of the WSIA, since that tribunal had exclusive jurisdiction to determine the issue.
[^3]: See footnote 1 above
[^4]: The jurisdiction of the arbitrator to hear human rights or other grievances based on employment-related statutes is set out in Parry Sound, in which the Supreme Court of Canada held that employment-related statutes are incorporated into the collective agreement, as I discuss in more detail in my analysis at paragraphs 142-51 below.
[^5]: This is an alternative submission since it arises if the Plaintiffs’ primary submission (i.e. the court has jurisdiction over the Claim because the ETFO did not pursue a grievance) is not accepted.