ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
RODERICK STEWART
Plaintiff
– and –
CANADIAN UNION OF POSTAL WORKERS and TIMOTHY G.M. HADWEN
Defendants
Daniel Camenzuli, for the Plaintiff
Morgan Rowe, for the Defendant Canadian Union of Postal Workers
Daniel Iny for the Defendant Timothy G.M. Hadwen
HEARD: July 10, 2020
PAPAGEORGIOU J.
Background
1This case involves facts and circumstances that occurred more than 25 years ago. The plaintiff is a former employee with Canada Post who was terminated on October 24, 1988. He grieved the termination unsuccessfully. Thereafter, between 1993 and 2016, he pursued a series of unsuccessful Duty of Fair Representation (“DFR”) claims against his union the Canadian Union of Postal Workers (“CUPW”), before the Canada Labour Relations Board (“CLRB”) and later before the Canada Industrial Relations Board (“CIRB”). He also brought an unsuccessful action against the lawyer retained by CUPW for the arbitration, the defendant Timothy Hadwen.
2On July 27, 2016, the plaintiff received an affidavit from a former union steward with CUPW who swore that during the time when the plaintiff grieved his termination, CUPW was engaged in a competition with the Letter Carriers Union of Canada (“LCUC”) and as a result, had a policy and practice of deliberately providing former members of the LCUC with inadequate representation in grievance proceedings, in an attempt to ensure there were more former CUPW members. The plaintiff had been a former member of LCUC.
3On July 26, 2018, the plaintiff brought this action against CUPW and Mr. Hadwen claiming:
a. A declaration that the defendants conspired, agreed and/or arranged with each other to discriminate against the plaintiff by treating him differently and adversely relative to other employees within the defendant Canadian Union of Postal Workers;
b. Damages for civil conspiracy, fraudulent misrepresentation, inducing breach of contract, breach of contract, breach of fiduciary duty and intentional interference with economic relations.
4On August 22, 2018, the plaintiff issued a Statement of Claim.
The nature of this motion
5The defendants have brought motions to dismiss this action on the basis that the CIRB has exclusive jurisdiction, that the claim is statute barred, and that as against Mr. Hadwen it is frivolous, vexatious and an abuse of process.
Decision
6For the reasons that follow this action is dismissed.
7These reasons are organized in the following sections:
a) Chronology of Events
b) Is this proceeding within the exclusive jurisdiction of the CIRB?
c) Is the claim statute barred?
d) As against Mr. Hadwen, is the claim frivolous, vexatious and an abuse of process?
Chronology of events
8The plaintiff began working with Canada Post in 1977 as a letter carrier. On October 24, 1988, Canada Post terminated his employment for cause on the basis of fraudulent misuse of leave credits. At that time, the plaintiff did not have any disciplinary record. The plaintiff had injured himself and called in sick while on modified work duties. Canada Post hired an investigator who attended at a Remax office and discovered the plaintiff working there when he had called in sick. The plaintiff denied that the inspector had seen him.
9The plaintiff grieved the dismissal. CUPW retained the defendant Mr. Hadwen to represent the plaintiff. At the grievance, Canada Post presented evidence from the inspector and also filed a letter written to the plaintiff summarizing the investigator’s findings. It also called witnesses who made reference to information contained in these documents.
10On July 29, 1991 Arbitrator Hinnegan denied the grievance after a thorough review of the evidence making credibility findings against the plaintiff as follows (the “Hinnegan Decision”):
[21] With respect to the merits of the grievor’s allegation that his discharge was without cause, the issue of credibility is obviously inherent in any discharge based on an alleged false claim for injury leave credits. Here, there is a clear issue of credibility in that, in a number of significant respects, the grievor’s evidence was diametrically opposed to all of the Employer’s witnesses as well as one of his own. In order for me to accept the grievor’s evidence, it is necessary for me to find that there was, in this case, a rather elaborate conspiracy of lies among a number of people involved here.
[22] However, on a careful examination of all the evidence and testimony, the unavoidable conclusion is that it is the grievor who simply cannot be believed in this matter.
[23] The evidence was replete with incredulous claims and contradictions on the grievor’s part…
[51] …There is no difficulty in preferring the evidence of the other various witnesses to that of the grievor.
11After the Hinnegan Decision, the plaintiff brought a series of proceedings against CUPW and Mr. Hadwen:
a. Four DFR claims before the CLRB and later the CIRB against CUPW pursuant to s. 37 of the Canada Labour Code, R.S.C. 1985, c. L-2, which provides as follows:
Duty of fair representation
37 A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under the collective agreement that is applicable to them.
All 4 DFR complaints were dismissed.
b. One motion before the CLRB to reconsider one of its decisions. This was also dismissed.
c. One civil action against Mr. Hadwen on the basis that he had been negligent and/or breached his fiduciary duty to the plaintiff (the “First Hadwen Civil Action”). This action was also dismissed.
12All of the above proceedings were based upon the plaintiff’s belief that CUPW and/or Mr. Hadwen had failed to take advantage of legal arguments, which could have resulted in the exclusion of the evidence relied upon by Canada Post. In that regard, Article 9.21 of the Collective Agreement provided that:
9.21
(a)(i) There must be only one personal file for each employee. Except as provided in clause 9.20(a), no disciplinary report, notice or document relating to an employee’s conduct or performance shall be placed on that file or constitute a part thereof unless a copy of the said report or documents given to the employee within ten (10) calendar days after the date of the alleged incident or infraction, or of its coming to the attention of the Corporation. The disciplinary report, notice or document relating to an employee’s conduct or performance must state the time and date the discipline will take effect for any suspension. No disciplinary report, notice or documents relating to an employee’s conduct or performance may be used against him in the grievance procedure or at arbitration unless such a report or document is part of the employee’s personal file.
13There were three documents at issue: a handwritten report from the investigator, a letter dated October 21, 1988 outlining the meeting which Canada Post had with the plaintiff, which included a typed-out version of the investigator’s report and a termination letter dated October 24, 1988. The plaintiff asserted that the investigation report and the October 21, 1988 letter relied upon by CUPW were not in his personal file but CUPW and/or Mr. Hadwen had not sought to have either the report or the investigator’s testimony excluded pursuant to Article 9.21. He also asserted that the termination letter dated October 24, 1988, which summarized the investigator’s report, was received 11 days after the infraction, or one day late. Thus, it was late and CUPW and/or Mr. Hadwen also failed to seek its exclusion from the grievance proceeding pursuant to Article 9.21. Had they done so, he believes his grievance would have been successful since Canada Post would not have had any evidence to place before the arbitrator. The plaintiff admits that as early as July 1993, he formed this belief, although he says that over time, his belief was strengthened as he learned more and more about what happened. Whenever he learned something new that strengthened his belief that he had been treated unfairly, he brought new proceedings.
14The plaintiff provided case law that substantiated his position that failure to comply with Article 9.21 could have resulted in the exclusion of evidence and a successful grievance. For example, in Jean-Paul Leblanc v. Canada Post, May 1, 1990, (unreported) at p. 24 an arbitrator, faced with a similar provision in a collective agreement which also involved CUPW held as follows:
These provisions have been so frequently considered by arbitrator’s under this Collective Agreement that it should not be necessary to say any original words at all about them. However, I must say explicitly that I take the thrust of those awards to be that when the Collective Agreement states that “no report relating to an employee’s conduct or performance may be used against him”, it means that no conduct or performance by an employee may be used against him or her at arbitration unless that conduct or performance has been the subject of a report which is properly part of the Employee’s personal file. That interpretation is consistent with the practice of the parties in relation not only to article 10.02(a) and (b) also in relation to article 10.02(c) which requires that unfavourable reports be withdrawn after a period of twelve months. I have never doubted that under this Collective Agreement it would be improper to support discipline by evidence, written or in the form of oral testimony, of infractions not mentioned in reports properly on a grievor’s personal file. To do so would defeat the obvious intent of the parties.
15He also provided some evidence in support of his assertion that the investigator’s report and the October 21, 1988 letter summarizing the investigator’s report, were not in his personal file. Specifically, he produced letters from 1994 to 1996 from individuals who reviewed his personal file beginning in 1994. As I will discuss below, this evidence does not substantiate the plaintiff’s assertion that the required documents were not in his file at the time of the grievance. Indeed, the letters are not consistent and suggest that over time, after the grievance, documents from his file may have been removed.
16None of the evidence filed by the plaintiff (which included the three letters referenced above), persuaded the CLRB to find in the plaintiff’s favour in DFR’s 1 to 3 or the reconsideration request.
17It is important to note that CUPW did raise Article 9.21 with respect to the timing of Canada Post’s decision to terminate the plaintiff which should have been made within 10 days of the infraction. CUPW argued that the infraction occurred on October 7, 1988 when the plaintiff was seen working at Remax, but the arbitrator held that it occurred on October 14, 1988 when the plaintiff fraudulently made an application for leave credits.
18The plaintiff stopped pursuing this matter after DFR 3.
19In 2014 the plaintiff met a former Canada Post employee. He discussed his termination and this past employee told him that he had been a casualty in a war between CUPW and LCUC. The plaintiff began his investigations again. He consulted with several lawyers.
20Ultimately, one of the lawyers he consulted with presented him with an affidavit of a former union steward with CUPW, Barry Gilbert, sworn July 27, 2016 (the “Gilbert Affidavit”) which supported his belief that CUPW and/or Mr. Hadwen had represented him negligently for bad faith and/or discriminatory reasons. Mr. Gilbert indicated that CUPW had a deliberate policy of not representing former LCUC members, such as the plaintiff, appropriately.
21As this affidavit forms the underlying basis for this action, I am reproducing the following relevant paragraphs in full:
[15] …[T]he manner in which CUPW handled grievances depended in large part on whether or not the employee who was seeking redress had been represented by CUPW or LCUC prior to amalgamation.
[16] CUPW put far more resources, time, and effort into protecting the rights of employees who it had represented prior to amalgamation than it did protecting the rights of employees formerly represented by LCUC.
[17] In 1989, Tom Gill, in his capacity as CUPW’s Chief Steward, approached me in my capacity as a CUPW Steward and directed me as much as possible not to represent, and/or [to] undermine the grievances of, employees formerly represented by LCUC… Mr. Gill explained that many of the employees that CUPW had represented prior to amalgamation not only had low levels of seniority but were family members of long standing CUPW members. He referred to these employees as “our guys” and contrasted their circumstances with those employees who were represented by LCUC prior to amalgamation, many of who [sic] had been postal workers for decades and had relatively high levels of seniority. He told me that the greater the presence within CUPW’s ranks of employees formerly represented by LCUC, the greater the risk that our guys would be displaced from coveted day shift positions, and the greater the risk that our guys’ access to overtime opportunities and choices of holidays would be compromised. Mr. Gill subsequently became President of CUPW.
[18] Around the same time, Bonnie Stewart, another CUPW Steward, also attempted to persuade me, as much as possible, not to represent and/or to undermine the grievances of, employees formerly represented by LCUC. She expressed similar concerns about the presence within CUPW’s ranks of high seniority employees formerly represented by LCUC and the negative impact that they could have on the working conditions of our guys. Ms. Stewart succeeded Mr. Gill as CUPW’s Chief Union Steward.
[19] CUPW’s differential approach to handling grievances was particularly marked in discharge cases. CUPW operated on the assumption that employees who were represented by CUPW prior to amalgamation would want CUPW to continue representing them and saw these employees as important assets in maintaining CUPW’s bargaining rights and status as bargaining agent in the face of LCUC’s attacks. CUPW fought hard to win their grievances, and when we believed that a win would be unlikely, we fought very hard to settle the grievance in a manner that would allow the employee to retain his employment status and membership in the bargaining unit…
[20] In contrast, CUPW typically saw employees who were represented by LCUC prior to amalgamation as threats, or at the least, as dispensable, and actively sought to remove them from the ranks of voting employees, fearing that their allegiances might shift under the influence of LCUC’s campaigns to regain its bargaining agent status. CUPW undermined otherwise viable and meritorious grievances brought on behalf of such employees, including not taking advantage of opportunities to settle their grievances where the prospects of success at arbitration seemed less than optimal, and abandoning, failing to file, or otherwise undermining their grievances so that it could secure preferred outcomes for grievances brought on behalf of its guys.
The Gilbert Affidavit contains some very concerning evidence about the alleged general way in which CUPW was handling grievance complaints. Mr. Gilbert was not cross-examined and CUPW did not provide any evidence to contradict his affidavit as to the general way that CUPW was handling grievances. Nevertheless, Mr. Gilbert conceded in his affidavit that: (i) he has never met the plaintiff; and (ii) he cannot recall his particular grievance from 1991.
22It is also important to note that Mr. Hadwen was cross-examined in 1996 and indicated that he was aware of the provisions of Article 9.21 but did not review the plaintiff’s personal file as it was the normal practice for the CUPW union representative to look at the file and discuss it with him. He did not recall whether that happened but that was the usual practice. He also indicated that Article 9.21 was raised at the disciplinary interview on October 21, 1988 because the handwritten investigator’s report was not in the file at that time. He said:
There was throughout an issue about the fact that Mr. Scarponi and Mr. Johnson [the union representative] had not been given a copy of the postal investigator’s report. This was something that they raised, as I now recall, at the disciplinary interview, and it was an issue with them, and so I believe I would have been advised if he had at any point obtained a copy of the postal inspector’s report, and I believe that a copy of the postal inspector’s report was not obtained until this exhibit book was provided… By a copy of the postal investigator’s report, I mean this handwritten—the version of it, because the typed-up version of it was in the disciplinary interview letter.
23The union representative was cross-examined in 1997 and he indicated that he discussed the issue of the handwritten investigator’s report being missing from the plaintiff’s personal file with Mr. Hadwen and whether an objection was available on that basis. They decided that no objection was available because the substance of the investigator’s report was “almost verbatim” in the narrative of the interview (the October 21, 1988 letter). He saw the October 21, 1988 letter although he could not remember whether it was in the personal file or in materials presented at the grievance. He stated that it was his understanding that the October 21, 1988 letter had been placed in the plaintiff’s personal file because it was standard practice to have the file reviewed although he could not specifically recall having reviewed the file. He explained his understanding of the way Article 9.21 worked as follows:
It’s not so much the---it has to be physically on the file as it has to have been received by the griever within the time limits of the collective agreement. That was the important consideration
24Mr. Hadwen swore an affidavit in this proceeding where he stated that he had never received any instructions from anyone to treat the plaintiff’s case differently and that if he had, he would have refused. The plaintiff did not cross examine Mr. Hadwen.
25Finally, it is also important to note that the CIRB considered Mr. Gilbert’s affidavit as part of the plaintiff’s 4th DFR proceeding which it dismissed on December 2, 2016 (the “4th DFR Decision”.) The arbitrator referred to particular paragraphs of the plaintiff’s affidavit which demonstrated that he had suspicions about the alleged adverse treatment arising from the failure to raise Article 9.21 as early as 1994. In that regard, paragraph 13 of the plaintiff’s affidavit reads:
[13] Over time I became aware of a number of additional facts that reinforced my belief that I had been adversely affected by the way in which CUPW handled my discharge grievance…
a. Shortly before I filed my first duty of fair representation complaint, I learned that, in rendering his decision, Arbitrator Hinnegan relied on evidence—both documentary and oral—that CUPW could easily have excluded on the basis of Arti[c]le 9.21 with minimal effort but chose not to. (para 38-40 of his affidavit)
b. Between 1994 and 1996, I learned that several documents were absent from my personal file. These documents included CPC’s postal investigator’s report, narrative report and discharge letter, all of which were critical to CPC’s ability to satisfy its evidentiary burden and uphold my discharge.
26The arbitrator in the 4th DFR Decision dismissed the proceeding as untimely:
It is important to note that the complainant had suspicions of the union’s adverse undermining treatment prior to the filing of his first complaint and that he was certainly aware of all of the above before the filing of the complaint giving rise to CLRB LD 1742
Whether the complainant knew at the time of his first complaint, that the union’s alleged adverse treatment arose out of the fact that he was a former member of the LCUC or for some other alleged reason, the fact of the matter is that the former Board found that CUPW had not engaged in discriminatory conduct. The Board finds that the complainant has proffered nothing new in this complaint to allow it to get over the hurdle of timeliness and finds this complaint to be untimely.
27The CIRB also concluded that the plaintiff’s complaint was res judicata, stating as follows:
The issues before the Board in the instant matter have been dealt with and dismissed twice as untimely, once by way of a reconsideration application and once on its merits, with the last decision being rendered in LD 197.
As indicated earlier, the complainant, in his fifth attempt before the Board, has failed to provide any compelling reasons that would allow the Board to get over the time limit bar as contemplated by section 97(2) of the Code. Nor does it fall outside of the res judicata principle.
Analysis
Is the Plaintiff’s claim outside this Court’s jurisdiction?
28Under Rule 21.01(3)(a) of the Rules of Civil Procedure, a defendant may seek an order dismissing the action on the basis that the court has no jurisdiction over the subject matter of the action.
29The defendants argue that the essence of the plaintiff’s claim is a DFR claim; courts have confirmed arbitrators under the Canada Labour Code have exclusive jurisdiction over such claims: Adofo v. Salesburg, 2009 29483 (Ont. S.C.); Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 110 (SCC), [1990] 1 S.C.R. 1298; Vernon v. General Motors of Canada Ltd. (2005), 2005 3323 (ON CA), 250 D.L.R. (4th) 259 (Ont. C.A.)..
30Court have held that the duty of fair representation encompasses a trade union’s representational actions in all aspects of the employer-employee relationship. It places an obligation on the union to represent each employee in its bargaining unit equally, both in the negotiation of collective agreements and in the application of the terms of the collective agreement. It plainly applies to the handling of grievances filed pursuant to the collective agreement: Vernon, at para. 30; Adofo, at para. 14; Gendron at 1314, citing Robert P. Gagnon, Louis LeBel & Pierre Verge, Droit du travail en vigeur au Québec, (Québec: Presses de l’université Laval, 1971).
31Where an employee believes that his union or its representatives have breached this obligation, he is entitled to bring a complaint to the CIRB, alleging a contravention of s. 37. The Board then has broad powers to hear and remedy complaints. Particularly, under ss. 99(1)(b) and 99(2), the Board’s remedial powers include the following:
99 (1) Where, under section 98, the Board determines that a party to a complaint has contravened or failed to comply with subsection 24(4) or 34(6), section 37, 47.3, 50 or 69, subsection 87.5(1) or (2), section 87.6, subsection 87.7(2) or section 94, 95 or 96, the Board may, by order, require the party to comply with or cease contravening that subsection or section and may
(b) in respect of a contravention of section 37, require a trade union to take and carry on on behalf of any employee affected by the contravention or to assist any such employee to take and carry on such action or proceeding as the Board considers that the union ought to have taken and carried on on the employee’s behalf or ought to have assisted the employee to take and carry on
(2) For the purpose of ensuring the fulfilment of the objectives of this Part, the Board may, in respect of any contravention of or failure to comply with any provision to which subsection (1) applies and in addition to or in lieu of any other order that the Board is authorized to make under that subsection, by order, require an employer or a trade union to do or refrain from doing anything that it is equitable to require the employer or trade union to do or refrain from doing in order to remedy or counteract any consequence of the contravention or failure to comply that is adverse to the fulfilment of those objectives.
32There are important reasons why the legislature has established a system where the CIRB has exclusive jurisdiction. The established system is faster, provides for resolution by arbitrators who are experts in the field of labour relations, and overall provides significant advantages to employees. In Gendron, at p. 1322, L’Heureux-Dube J., provided an important discussion of the underlying important policy objectives:
In his text, Canadian Labour Law, Adams examines the rationale underlying the deference accorded the decisions and jurisdiction of labour boards and states at p. 154:
Such privative clauses [contained in most legislation which established labour relations boards] reflect the rationale for administrative agencies and the importance of finality and speed in labour relations dispute resolution. While courts of superior jurisdiction have historically assumed the duty of supervising tribunals of inferior jurisdiction with the purpose of maintaining the integrity of legal rules, the distinctive characteristics of labour relations warrant a high degree of judicial restraint and self-control.
… Labour relations boards represent greater specialization and expertise. And because of their relative familiarity with the problems before them, labour boards are better able to fashion and monitor workable new policies. Activity before them is also more informal, less costly and expeditious [Emphasis added].
Justice L’Heureux-Dube further stated in Gendron:
The remedial provisions improve significantly the position at common law of an aggrieved person. At common law, courts were restricted to an award of damages, whereas under the Canada Labour Code a broad range of remedies designed to “make whole” are available… Parliament has substituted a broad, comprehensive, remedial scheme much superior to an award of damages available at common law: at p. 1318.
33In considering whether a claim is captured by the duty of fair representation, a court must look at the essential character of the claim, not the way the claim has been framed: Adofo, at para. 13.
34Ontario Courts have repeatedly dismissed civil actions against unions alleging a variety of torts and even Charter breaches on the basis that the subject matter of these actions was, in essence, a DFR complaint.
a. In Gendron and Adofo, claims regarding the union’s refusal to proceed to arbitration with an employee’s grievance were found to be DFR claims: Gendron, at pp. 1304-1305, Adofo, at para. 10.
b. In Vernon, the Ontario Court of Appeal found that alleged misrepresentation and failure to appropriately advise an employee in regards to terms of the collective agreement constituted a DFR claim: at paras. 25-26.
35The plaintiff asserts the following regarding this Court’s jurisdiction to hear this claim:
a. The civil action is not in its essential character a DFR;
b. Even if it is a DFR in its essential character, the CIRB lacks remedial powers to resolve a dispute like this one and the court should exercise its inherent jurisdiction to consider his complaint so that there is not “a real deprivation of a remedy”; and
c. As against Mr. Hadwen, recent case law has recognized a duty of care by lawyers to third parties, even when they are not specifically retained by that person.
What is the essential nature of the claim?
36In my view, the subject matter of the plaintiff’s claim clearly falls within the subjects encompassed by the duty of fair representation. The plaintiff’s decision to frame his claim as, effectively, a claim for civil conspiracy, fraudulent misrepresentation, inducing breach of contract, breach of contract, breach of fiduciary duty and intentional interference with economic relations does not alter the fact that this case is in its essence a DFR claim. In Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, at para. 49, McLachlin J., as she then was, stated: “[O]ne must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute. [To do otherwise] would… leave it open to innovative pleaders to evade the legislative prohibition on parallel court actions by raising new and imaginative causes of action”.
37One need only look to the first paragraph of the Statement of Claim where the plaintiff claims the following relief:
(a) A declaration that the Defendants conspired, agreed and/or arranged with each other to discriminate against the Plaintiff by treating him differently and adversely relative to other employees within the Defendant Canadian Union of Postal Workers’ (“CUPW”) bargaining unit.
All of the facts that follow in support of the conspiracy and other tort claims asserted in the Statement of Claim flow from the plaintiff’s belief that he was discriminated against and/or treated unfairly during his grievance.
38The Adofo case is particularly on point. In that case, Mr. Adofo was terminated and filed an unsuccessful grievance. CUPW recommended that the grievance not be referred to arbitration. Mr. Adofo brought a civil action alleging bad faith, and collusion among the CUPW representatives. The Superior Court concluded that the action was, in its essential nature, a DFR complaint: at para. 15.
Would the Plaintiff suffer a real deprivation of remedy if the court does not assume jurisdiction?
39The Supreme Court in Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, at para. 42, confirmed that grievance arbitrators have the broad remedial powers necessary to address DFR complaints, but that courts have residual jurisdiction where the necessary remedy cannot be granted by the arbitrator:
Grievance arbitrators have very broad powers, both explicit and implicit, so as to be able to grant any remedies needed to implement the collective agreement… Despite this broad arbitral jurisdiction, the ordinary courts retain a residual inherent jurisdiction in any exceptional cases in which a grievance arbitrator might lack the powers he or she needs to grant the remedy required to resolve a dispute… This residual jurisdiction would be useful, if not essential, if, for example, an arbitration tribunal were unable to adopt needed provisional measures in a timely manner. [Emphasis added]
40Justice McLachlin, as she then was, explained in Weber, at para. 57, that in such cases, courts have residual jurisdiction to ensure that there is not a “real deprivation of ultimate remedy”:
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... 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".
41The plaintiff argues that the only remedial power which the CIRB has under section 99(1)(b) of the Code is to order the union to take any action which it ought to have taken on the employee’s behalf.
42The plaintiff says that he lost a job which he cherished and expected to continue working in until he retired. He lost wages, pension contributions, benefits and has experienced mental anguish, intense feelings of powerlessness, embarrassment, humiliation, betrayal, anxiety, and loss of self-worth. At this stage, given the passage of time, there is no practical remedy which the CIRB could order since the grievance has been concluded over two decades ago. The plaintiff was unable to find any decisions where employees were reinstated after decades. He says that any order which the CIRB could make would be shallow and unpractical given that he was terminated in 1988. Accordingly, if this court does not assume jurisdiction, there will be a “real deprivation of a remedy”.
43No one referred me to any authority on whether the CIRB has any jurisdiction to grant damages which is what the plaintiff seeks in this case.
44Nevertheless, in my view, the decisions of the Supreme Court of Canada above are not applicable. The reason why the plaintiff’s application before the CIRB was denied was not that he sought a remedy which the CIRB, and CLRB before it, had no jurisdiction or ability to grant; the reason he was denied a remedy was that the CLRB and CIRB concluded the plaintiff’s case to be without merit in 4 separate DFR proceedings as well as 1 reconsideration application. Although 3 of the DFR’s were dismissed on the basis of late filing, the CLRB considered the merits of the plaintiff’s case in the 3rd DFR. It also thoroughly reviewed the issues raised by the plaintiff in his 4th DRF, which referenced the Gilbert Affidavit and found that he had not raised anything new that would change the outcome.
45Had the CIRB in the 4th DFR decided in favour of the plaintiff, but been unable to provide an adequate remedy, the plaintiff’s argument on the denial of ultimate remedy would have been stronger but those are not the facts before me.
46Significantly, in Adofo, the court concluded that the fact that the employee had missed the 90-day period to file his DFR complaint because he had been “stonewalled” by CUPW for three years, did not constitute a real deprivation of remedy since discoverability principles were built into the Canada Labour Code: at paras. 22-26.
47Furthermore, when one considers the totality of the evidence, the only new evidence is an affidavit from Mr. Gilbert which does not even reference the plaintiff and how his case was handled. The plaintiff’s evidence regarding the contents of his personal file is based upon a review of the file which began six after the grievance – and is, in my view, not strong evidence of what was in the file at the time of the grievance in 1988.
48As noted above, he filed three letters from people who had reviewed his file. The first letter dated February 4, 1994 only states that the handwritten investigator’s report was not in the file. It does not say that the October 21, 1988 letter, which set out the investigator’s report almost verbatim, was not in the file. The second letter, dated March 1, 1996, also references the absence of the handwritten investigator’s report from the file and in addition refers to the address on the discharge letter in his file. It is not until the letter of October 29, 1996 that the plaintiff is told that the letter dated October 21, 1988 was not in his personal file.
49Added to that is the evidence of the union representative who said he believed the October 21, 1988 letter was in the file at the time of the grievance, evidence that no one told Mr. Hadwen to treat the plaintiff differently or represent him inadequately and the fact that they did raise Article 9.21, although perhaps not in the way the plaintiff says they should have.
50In my view, although the plaintiff has argued that there has been a serious miscarriage of justice which should prompt the court to exercise its inherent jurisdiction, the evidence in that regard is not compelling.
Does Mr. Hadwen owe the Plaintiff a duty of care?
51The plaintiff cited a number of cases where courts have held that lawyers may owe a duty of care to a non-client party in circumstances where there is sufficient proximity between the two: see, e.g., St. Amand v. Ouellette, 2006 NBCA 63, 300 N.B.R. (2d) 106; Connerty v. Coles, 2012 ONSC 2787; Meehan v. Good, 2017 ONCA 103. The plaintiff asserts that even though Mr. Hadwen was retained by CUPW, their relationship was sufficiently proximate that Mr. Hadwen owed him a private duty of care.
52None of the cases cited involved lawyers hired by unions to represent employees in DFR complaints.
53Indeed, Ontario courts have repeatedly dismissed cases against lawyers hired by unions to represent employees where the court concluded that the essential nature of the employee’s complaint was a DFR:
a. In Berlinguette v. O’Ryan, 2010 ONSC 4266, Justice Hennessy dismissed an action brought against a lawyer hired by a union in a case governed by the Ontario Labour Relations Board which similarly confers exclusive power on a union to pursue a grievance and which has a similar duty of fair representation. The court concluded that the lawyer was retained by the union, that his sole role flowed from the terms of the collective agreement and that the essential complaint against the lawyer was in respect of the duty of fair representation and that accordingly, the court had no jurisdiction.
b. In Dwyer v. Cavalluzzo, Hayes, Shilton, McIntyre & Cornish, 2000 2650 (Ont. C.A.), the Court of Appeal upheld the dismissal of an action against both the union and the lawyer alleging negligent representation at a grievance. The Court of Appeal held, at paras. 4-5:
The processing of grievances is clearly an aspect of the collective agreement and the appellant’s contact and relationship with Hayes [the lawyer] and his law firm came about as a direct result of the terms of the collective agreement governing the resolution of grievances.
Given that Hayes was retained by the Union, the solicitor/client relationship was between Hayes and the Union, not between Hayes and the appellant. Accordingly, the only duty owed to the appellant was that of the Union to provide him with fair representation in accordance with s. 37 of the Canada Labour Code. As the union’s agent, Hayes bore the responsibility of discharging that duty in the presentation of the appellant’s grievance.
c. In Foerster v. Anderson 2007 8016 (Ont. S.C.), at para. 11, Harvison Young J., determined that a plaintiff’s claim, against both the union and the lawyer, that she was coerced into signing a Memorandum of Agreement was in essence a DFR claim, and therefore ought to be dismissed.
54There are significant policy reasons against recognizing a private duty owed by lawyers hired by unions to represent employees since the legislature has made an explicit decision to grant the CIRB exclusive jurisdiction over DFR complaints. Allowing employees to sue lawyers in tort would effectively undermine this legislative mandate.
Is the claim statute-barred?
The Limitations Act
55The parties agreed that this matter is governed by the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B. Section 4 provides that “a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered.” Section 15 of the Limitations Act, 2002 establishes an ultimate limitation period of 15 years.
56Section 5(1) of the Limitations Act states that a claim is discovered on the earlier of:
a. the day on which the person with the claim first knew,
i. that the injury, loss or damage had occurred,
ii. that the injury, loss or damage was caused by or contributed to by an act or omission,
iii. that the act or omission was that of the person against whom the claim is made, and
iv. that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
b. the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
57Pursuant to s. 5(2), a claim is discovered on the day the act or omission occurred, unless the contrary is proved: Alexis v. Darnley, 2009 2896 (Ont. S.C.), at paras. 35, 41-44; Panther Film Services Inc. v. Fred Tayar and Associates Professional Corporation, 2012 ONSC 7226, at para. 12.
58Courts interpreting and applying limitation periods and the discoverability principle have held that a limitation period will not begin to run until the plaintiff has knowledge of the material facts upon which the cause of action is based: Alexis, at para. 33; Panther Film, at para. 12, Zapfe v. Barnes (2003), 2003 52159 (ON CA), 230 D.L.R. (4th) 347 (Ont. C.A.), at para. 24.
59It important to keep in mind the underlying policy reasons why limitation periods exist. In Zapfe, at para. 20, the Court of Appeal adopted the reasons of La Forest J., in M. (K.) v. M. (H.), 1992 31 (SCC), [1992] 3 S.C.R. 6, as follows:
[T]he policy reasons for statutory limitations of suits from the perspective of a potential defendant… include:
(i) recognition of the fact that there comes a time when a proposed defendant may reasonably expect that it will not be held to account for past obligations (at para. 22);
(ii) the desirable objective of foreclosing claims based on stale evidence, that is, once a limitation period has expired, the potential defendant should be relieved from the need to preserve evidence relevant to the claim (at para. 23); and
(iii) the important public benefit to be achieved by requiring plaintiffs to act diligently and not to “sleep on their rights”, thus fostering the timely commencement of suits and closure of claims (at para. 24).
Mr. Hadwen’s Rule 20 Motion
60Mr. Hadwen brings his motion to dismiss this case as statute-barred on the basis of Rule 20.04(2)(a) which provides that a court shall grant summary judgment if satisfied that there is “no genuine issue requiring a trial with respect to a claim or defence”.
61The test is well settled, as articulated in Hryniak v. Mauldin, 2014 SCC 7, [2014] 1 S.C.R. 87, by the Supreme Court of Canada, at para. 49:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is a proportionate, more expeditious and less expensive means to achieve a just result.
62Pursuant to Rule 20, where a defendant moves for summary judgment on the basis of a limitation period, the plaintiff must adduce evidence demonstrating that there are material facts related to the limitation period which require a trial. As set out in Panther Film, at para. 8:
The plaintiff must “lead trump or risk losing” and demonstrate their case has a real chance of success at trial. The motions court is entitled to assume the evidence contained in the record is all the evidence the parties would rely on if the matter proceeded to trial.
63Mr. Hadwen argues that the limitation period in this case has long since passed, and that in any event the ultimate 15-year limitation period has passed.
64The plaintiff argues that he could not have discovered the information in the Gilbert Affidavit or the damages he suffered as a result until July 27, 2016 when he was given the affidavit, because Mr. Hadwen willfully concealed the information in it. The plaintiff commenced this action on July 26, 2018, exactly two years less a day after he was given the Gilbert Affidavit.
65The plaintiff’s position reflects a misunderstanding of the way in which limitation periods work. The plaintiff need not be in possession of all facts relevant to a claim for a limitation period to begin running. Rather, the plaintiff must be in possession of material facts which would alert the plaintiff to the fact that the injury, loss or damage had occurred. In Alexis, at para. 45, the court confirmed:
[The plaintiff] only needed to know sufficient material facts upon which to base her allegations. As noted in McSween v. Louis, [2000 5744 (ON CA), [2000] O.J. No. 2076], at para. 51:
To say that a plaintiff must know the precise cause of her injury before the limitation period begins to run, in my view, places the bar too high.
A plaintiff is not allowed to delay the running of the limitation period until they know the full nature and extent of the claim.
66Were the plaintiff correct in his interpretation, there would never be any finality to legal proceedings. Plaintiffs who were unsuccessful in proceedings could continue to search for evidence and/or new causes of action in support of the same loss or injury and then continually bring successive proceedings on the basis of any additional evidence discovered.
67Even accepting that the Gilbert Affidavit contains some evidence which the plaintiff could have used in support of his claim, the evidence is clear that the plaintiff has believed that he experienced loss, injury or damages due to Mr. Hadwen’s alleged mishandling of his termination grievance since 1995 when he brought the First Hadwen Civil Action.
68In any event, the Gilbert Affidavit does not provide any material facts related to Mr. Hadwen. There is absolutely no evidence proffered that Mr. Hadwen willfully concealed anything. Mr. Hadwen has provided uncontradicted evidence that he was never instructed to deal with the plaintiff’s grievance in a disadvantageous manner and that he would have refused if he had been so instructed.
69In my view, I have a full appreciation of the evidence and issues required to determine the limitation period issue as against Mr. Hadwen, by way of summary judgment and the plaintiff has failed to show on the record that there is a triable issue. I am satisfied the plaintiff was aware of all material facts related to his alleged loss or injury caused by Mr. Hadwen at the latest in 1995 at the time of the First Hadwen Civil Action and that there is no evidence of concealment on the part of Mr. Hadwen. As such, the case is statute barred.
CUPW’s Rule 21 motion
70CUPW’s motion to dismiss on the basis that the claim is statute-barred is brought pursuant to Rule 21 whereby courts may dismiss actions where they do not disclose a reasonable cause of action. No evidence is admissible on such a motion. In Jamal v. Ontario (Ministry of Community, Family and Children’s Services), 2013 ONSC 1290, at para. 22, the court indicated that ordinarily, a limitation period should not be addressed pursuant to Rule 21.01(1)(a) when discoverability is an issue unless the facts are clearly undisputed.
71Given that I have determined that the CIRB has exclusive jurisdiction in this matter in any event, there is no reason for me to consider CUPW’s Rule 21 motion.
Is the action against Mr. Hadwen frivolous, vexatious or an abuse of process?
72The essence of Mr. Hadwen’s submission is that: i) the plaintiff seeks to re-litigate issues that have already been the subject of a final disposition; and ii) the claim against Mr. Hadwen is patently without merit on its face and as such is a vexatious action.
73In Re Lang Michener et al. and Fabian et al. (1987), 1987 172 (ON SC), 37 D.L.R. (4th) 685 (Ont. H.C.), at p. 691, the Court set out criteria relevant to the determination of whether an action is frivolous, vexatious or an abuse of process, one of which is the bringing of one or more actions to determine an issue which has already been determined by a court of competent jurisdiction.
74In my view, the action against Mr. Hadwen is an attempt to re-litigate matters already determined against him in 1997 when the plaintiff’s action for negligence and breach of fiduciary duty was dismissed by Pitt J., in Scarponi v. Hadwen, [1997] O.J. No. 804, where he held as follows, at para. 2:
I find the thrust of the law is clearly in the direction of reserving jurisdiction in cases involving the conduct of proceedings under the Canada Labour Code, to tribunals constituted under that Act. I am not persuaded by the plaintiff’s counsel’s argument that lawyers acting in those proceedings whether or not they are regarded as representatives of, or merely counsel to the unions, ought somehow to preserve their “special character” of lawyers for the sole purpose of imposing liability for negligence outside of the parameters of the Labour Relations Act.
75The plaintiff did not appeal the Pitt Decision.
76This is sufficient to dismiss this action on the basis that it is frivolous, vexatious or an abuse of process.
Conclusion
77I have a great deal of sympathy for the plaintiff. He has believed for a long time that he was treated unfairly. The contents of the Gilbert Affidavit about CUPW’s alleged general practices when he grieved his termination have reinforced his views. He is unable to move on with his life.
78However, this matter is within the exclusive jurisdiction of the CIRB, they have made their decision and, after a very thorough review of this record, I am satisfied, there has been no miscarriage of justice or “real deprivation of remedy” that would incline this court to exercise its inherent jurisdiction.
79I am granting the motion dismissing the action as against CUPW and Mr. Hadwen.
80If the parties cannot agree on costs they may make written submissions no longer than 5 pages each as follows:
a. CUPW and Hadwen within 15 days of receipt of these reasons; and
b. The plaintiff within 15 days thereafter.
Papageorgiou J.
Released: September 21, 2020