COURT FILE NO.: CV-18-1938-00

DATE: 2021 04 19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

KELLY LYNN DONOVAN

Plaintiff/(Responding Party)

• and -

WATERLOO REGIONAL POLICE SERVICES BOARD and BRYAN LARKIN

Defendants/(Moving Parties)

Representing Herself

Donald Jarvis and Cassandra Ma, acting for the Moving Parties

HEARD: February 23 and March 1, 2021

JURISDICTIONAL RULING

Justice Thomas A. Bielby

INTRODUCTION

[1] The Defendants have before me a motion, further to Rules 21.01(3)(a) and 59.06(1), for an order dismissing or, alternatively, staying the Fresh Amended Statement of Claim for being outside of this court’s jurisdiction.

[2] Rule 21.01(3)(a) states,

(3) A defendant may move before a judge to have an action stayed or dismissed on the grounds that

(a) the court has no jurisdiction over the subject matter of the action.

[3] This is not the Defendants’ first motion seeking the dismissal of the Plaintiff’s claim. On February 13, 2019, Doi J. heard a motion to strike the Amended Statement of Claim further to Rules 21.01(1)(b), 21.01(3)(a) and 21.01(3)(d). All three grounds were fully argued before Doi J.

[4] In his written reasons released on February 21, 2019, Doi J., pursuant to Rule 21.01(1)(b), struck the Statement of Claim, without leave to amend, on the grounds that the claim did not disclose a reasonable cause of action.

[5] In regard to the other grounds argued for striking the claim, including the ground that the court lacked jurisdiction, Doi J., at para. 40, wrote,

“The Defendants’ motion to strike was also brought under Rules 21.01(3)(a) and 21.01(3)(d), respectively. For the reasons set out above, I am satisfied that this motion is fairly and fully disposed of under Rule 21.01(1)(b) without the need for recourse to these other grounds.”

[6] Justice Doi’s ruling was appealed by the Plaintiff and in October 2019, the Ontario Court of Appeal allowed the appeal and set aside the order of Doi J. Further leave was granted to the Plaintiff to file a Fresh Amended Statement of Claim.

RES JUDICATA AND FINALITY

[7] The first issue to be determined is whether the Defendants can still pursue their argument that the court lacks jurisdiction to determine this case.

[8] On or about February 19, 2020, after the Court of Appeal released its decision, counsel for the Defendants corresponded with Doi J.’s office, via email, seeking directions in regard to the appropriate next steps. Counsel submitted that neither Doi J.’s Order nor the Ontario Court of Appeal ruling addressed the jurisdictional issue and that as a result that issue remains undecided.

[9] By an Endorsement dated April 20, 2020, Doi J. determined that the matter should be appropriately returned, as a new motion, under Rule 59.06(1), for a hearing before a different judge.

[10] Rule 59.06(1) reads,

“An order that contains an error arising from an accidental slip or omission or requires amendment in any particular on which the court did not adjudicate may be amended by a motion in the proceeding.”

[11] The matter before me is a new motion before a different judge. The Defendants seek to have the February 21, 2019 Order of Doi J. amended to include a ruling on jurisdiction.

[12] Relying on the decision in Sun Oil Co. v. City of Hamilton and Veale 1961 CanLII 121 (ON CA), [1961] O.R. 209 (C.A.), counsel submitted that the Defendants are entitled to a decision on the issue of jurisdiction.

[13] Sun Oil moved, by originating motion, for an order of mandamus directing the appellant City to issue permits for the erection and operation of a gasoline station upon certain lands in Hamilton. Before the motion was heard the applicant served a further notice stating that it would also move for a declaration that the by-law does not apply to the owners of gas stations or alternatively, if the said by-law does apply, that such an owner is not required to obtain more than one license to carry on the business of gas stations at various locations in Hamilton.

[14] The judge of first instance ruled that the by-law did not apply for the purpose of licensing and regulating owners of gas stations. As a result, the judge believed that he was not required to deal with the alternative heads of relief.

[15] The ruling was appealed by the City of Hamilton, who argued the judge lacked jurisdiction to make the declaration and that he misdirected himself as to the meaning and effect of the by-law.

[16] From para. 5, I quote,

“The view I take of the law applicable to the procedure taken by the applicant and of the effect of the judge’s failure to dispose of the motion for mandamus renders much of the argument we heard irrelevant. It is to be regretted that our decision on this appeal will not settle several of the important issue between the parties. In my opinion, neither the learned judge of first instance nor this Court can in these proceedings pass upon the validity of the whole or in part of By-law 3022.”

[17] From para. 13 I quote,

”Finally, on the assumption that the by-law is valid and applies to service stations and requires a separate license for each location, counsel for the respondent urged this Court to send the matter back to the City Council for reconsideration because the Council in refusing the licence “took into account matters which were not proper for the guidance of its discretion and further that the Council did not exercise its discretion honestly, impartially and in good faith”. This is a matter we assume was argued before Mr. Justice Stewart. However, he did not decide it; the order he made does not determine it: and it is still open for the respondent to pursue. In the circumstances no appeal was taken or could be taken upon this part of the case and this Court has no original jurisdiction which would empower it to decide it.”

[18] The Defendants, relying of the Sun Oil case, argue that no appeal could have been taken with respect to Doi J.’s failure to rule on the jurisdictional issue. The Court of Appeal has no original jurisdictional authority which could empower it to decide the jurisdictional issue. Accordingly, the Defendants are entitled to seek a ruling on whether the court has jurisdiction to hear this matter.

[19] In her Factum, the Plaintiff argues that the court should not entertain this motion because the matter is, res judicata. The relief sought is identical to the relief sought in the motion before Doi J. and therefore the issue has already been litigated. It is submitted that the Defendants made their argument on the issue of jurisdiction and were not successful. Nor was the issue raised by the Defendants before the Court of Appeal. The Plaintiff relies on the principle of finality.

[20] The Plaintiff alleges that Doi J. did make reference to the issue of jurisdiction at para. 25 of his ruling (Donovan v. Waterloo Regional Services Board 2019 ONCA 845, para. 25). She submits that the issue of jurisdiction was fundamental to the decision of Doi J.

[21] The Plaintiff also submits that the jurisdictional issue was addressed by the Ontario Court of Appeal and is therefore not, “undecided”. She relies on the issue of estoppel and argues that the Defendants did not exercise due diligence.

[22] Doi J., at para. 25, stated,

“Of particular note is the strongly worded privative clause at s. 118(4) of the WSIA that precludes a party from restraining proceedings before the WSIB by pursuing a claim or remedy in court; Rodrigues v. Ontario (Workplace Safety and Insurance Appeals Tribunal), 2008 ONCA 719 at para. 22. While the legislature cannot completely oust the jurisdiction of the Superior Court, which is derived under s. 96 of the Constitution Act, 1867, I find that s. 118(4) precludes the Plaintiff from pursuing her breach of contract claim to restrain the Board from taking part in proceedings before the WSIB involving her workers’ compensation claim under the WSIB; Castillon v. Workplace Safety and Insurance Board, 2017 ONCA 121 at paras. 54-56, 59 and 66.”

[23] There is nothing in this paragraph which supports the Plaintiff’s argument that Doi J. dealt with the jurisdictional issue arising on the facts before him. In fact, he specifically chose not to. Doi J. did not address the line of authorities relied upon by the Defendants in regard to the court’s jurisdiction or lack thereof, to hear matters arising out of labour matters involving parties to a collective agreement.

[24] The Plaintiff relies on the authority found in Minott v. O’Shanter Development Co. 1999 CanLII 3686 (ON CA), [1999] O. J. No. 5, commencing at page 329, wherein it is said that the issue of estoppel prevents the relitigation of an issue that a court or tribunal has already decided in a previous proceeding. I quote,

“In this sense issue estoppel forms part of the broader principle of res judica…Res judicata itself is a form of estoppel and embraces both cause of action estoppel and issue estoppel. Cause of action estoppel prevents a party from relitigating a claim that was decided or could have been raised in an earlier proceeding.

The overall goal of the doctrine of res judicata, and therefore of both causes of action estoppel and issue estoppel, is judicial finality. The doctrine prevents an encore and reflects the law’s refusal to tolerate needless litigation.”

[25] While I accept the principle of finality, on the facts before me the Minott decision does not further the Plaintiff’s argument. The jurisdictional argument put before Doi J. went undecided. Without a ruling, it cannot be said that the Defendants’ jurisdictional argument was successful or unsuccessful.

[26] Peoples Trust Company v. Atlas 2018 ONSC 58 is a decision of D.L. Corbett J. in regard to a vexatious plaintiff, and is a decision relied upon by the Plaintiff. Corbett J. found that the plaintiff seemed unable to accept decisions which she did not agree with after stating,

“Courts are the place people come to get decisions on conflicts they cannot resolve among themselves. Decisions, once rendered, subject only to appeal rights, put a final end to the dispute. A party may disagree with the result – that is not unusual – but like it or not, the thing has been decided, the matter is at an end, and the parties can move on with their lives.”

[27] It was said by Corbett J. that the principle of finality requires the parties to air their entire grievance and not approach the process piecemeal. In our system, a judgment, once rendered, after all appeals are exhausted, authoritatively disposes of all the issues raised in the proceeding, or which could have been raised in the proceeding.

[28] I accept this authority but distinguish it from the matter before me because, as noted above, while the issue was before Doi J., there has been no decision on the issue of whether the court has the jurisdiction to hear the Plaintiff’s claim. It was not authoritatively disposed of.

[29] Lantin et al v. Seven Oaks General Hospital 2019 MBCA 115, is a decision of the Manitoba Court of Appeal, in which the issue was the limits of the “slip rule” as set out in Rule 59.06(1) of the Manitoba Rules of Practise, and what was said to be the extraordinary power to amend an order after it has been formerly entered (para. 1).

[30] Rule 59.06(1) of the Manitoba Rules of Practice, is identical to the Ontario Rule and states,

“An order that,

(a) contains an error arising from an accidental slip or omission; or

(b) requires amendment in any particular on which the court did not adjudicate

may be amended on a motion in the proceeding.”

[31] In Lantin, after a trial, damages for non-pecuniary loss were ordered, however the trial judge, as required, made no allowance for the loss of opportunity to invest said damages, although it was requested. Counsel for the plaintiff wrote the trial judge advising of the omission.

[32] The trial judge responded by advising that by her oversight an award for loss of opportunity had not specifically been included as required.

[33] The trial judge stated that the issue to be determined is whether the fact that an appeal and a determination by the Court of Appeal makes any difference to the application of the slip rule. She determined that it made no such difference. Her rectification of the slip conformed with Rule 80(3) which states that a judge shall make an allowance of the loss of opportunity for the successful party to invest the damages awarded, it did not interfere with the decision of the Court of Appeal and it did not constitute a new ruling (para. 19).

[34] The Manitoba Court of Appeal noted that a decision to amend an order under Rule 59.06(1) is discretionary. The discretion of a lower court will be reversible where the court misdirected itself or came to a decision that is clearly wrong that it amounts to an injustice (para. 21).

[35] Once an order is entered, the judge who pronounced it has no jurisdiction to amend it absent a power to do so. The judge is functus officio (para. 23). In play is the Rule of Finality and I quote Mainella J. A., writing for the court,

“While accidental slips and oversights may be corrected under the slip rule, deliberate decisions and afterthoughts cannot be corrected under that rule. The slip rule is not an alternative procedure to correct substantive errors in fact or law: The proper remedy is an appeal” (para. 24).

[36] I further quote,

“In my respectful view, the slip rule was not available to the judge here as the judgment in effect had been given by a different and higher level of court having exercised its appellate jurisdiction under section 26(1) of the CA Act to substitute its own judgment” (para. 34).

[37] It was said that a litigant is only entitled to “one bite at the apple”. The Appeal Court noted s. 80(3) of the CB Act that obligated the trial judge to make allowance for the loss of opportunity to invest the amount of non-pecuniary damages and the Court of Appeal assumed the trial judge dealt with what is required under s. 80(3).

[38] From para. 40, I quote,

“At some point, to ensure a proper balance is maintained in the justice system, matters must come to an end to respect the public interest in the finality of litigation, fairness to the hospital, judicial economy and to ensure that the most proportional process is followed.”

[39] The Lantin case is relied upon by the Plaintiff for her submission that the relief now sought by the Defendants violates the principle of finality. The Plaintiff submits that in accordance with parallels drawn in the Lantin decision, the slip rule is not available to this court after a different and higher court has exercised its appellate jurisdiction. Reliance is placed on para. 27 of Lantin in which it was stated that the true question is the correctness of the judge’s conclusion that this court’s prior determination on the Hospital appeal made no difference to her ability to apply the slip rule.

[40] I am not bound by the decision in Latin and note that there are some significant factual differences between the case before me and the Lantin decision. Doi J. did not make a “slip” but choose not to rule on the jurisdictional argument. The Statement of Claim was dismissed on other grounds.

[41] Further, when Doi J.’s opinion was sought as to the proper way to proceed after the Court of Appeal allowed the Plaintiff’s appeal, Doi J. exercised his discretion and directed the Defendants to bring a motion under Rule 59(06). That ruling has not been appealed.

[42] The Plaintiff submits that it is unfair that she has to again argue the jurisdictional order, which was originally argued on February 13, 2019. I agree that it is unfortunate and perhaps unfair, but the Defendants can make the same argument. They again have to make the same jurisdictional argument and are entitled to a ruling.

[43] The Plaintiff argues that the Defendants were not successful before the Court of Appeal nor did they raise the issue of jurisdiction at the Appeal Court. The Defendants are said to have acted in bad faith.

[44] The Plaintiff relies on para. 59 of Re: Mid-Bowling Group Corp. 2016 ONSC 669, para. 59 which reads,

“…To lie in the weeds until the hearing of an application and assert such a right to stop the plan of arrangement is troubling indeed and not acting in good faith. Waiting and seeing how things are going in the litigation process before springing a new theory at the last moments is not to be encouraged.”

[45] On this point I note again that the jurisdictional issue was placed before Doi J. in February 2019. The issue was not adjudicated upon by Doi J. and there was no decision on jurisdiction to appeal. Had the appeal been dismissed, the issue of jurisdiction would be moot. The issue again became relevant after the appeal was allowed. I do not believe that such behaviour on the part of the Defendants can be described as “lying in the weeds”.

[46] It is submitted by the Plaintiff that it is not in the public’s interest to allow delays such as the motion before me. She speaks to the mental stress of what she terms as excessive litigation and oppression. I have no doubt she is under considerable stress in prosecuting this action on her own behalf. However, I do not believe the delay is such that it should impact on my decision. In these days of the Covid-19 pandemic, delays are inherent and unavoidable.

[47] I accept the Defendants’ arguments and find that the jurisdictional issue has not been determined on a final basis and is not res judicata. The jurisdictional relief sought by the Defendants in the matter before Doi J. was not decided as he believed there was no need to. I have the authority to determine whether this court, the Ontario Superior Court of Justice, has the jurisdiction to entertain the Plaintiff’s statement of claim.

BACKGROUND AND FACTS

[48] Further to the Police Services Act (PSA), the Waterloo Regional Police Services Board (the Board) provides policing in the Regional Municipality of Waterloo. There is a collective agreement between the Board and the Waterloo Regional Police Association (the Association) and the police officers’ collective bargaining interests are represented by the Association.

[49] The defendant Bryan Larkin (Larkin) is the Chief of Police and has been since 2014.

[50] The Plaintiff commenced employment with the Board, as a police officer, in 2010. Her employment ceased effective on or about June 25, 2017, pursuant to a settlement negotiated between the Plaintiff, the Board and the Association. The result was the execution of what is called the Resignation Agreement (R.A.).

[51] In May 2016, the Board gave the Plaintiff formal Notice of Investigation related to possible misconduct on the part of the Plaintiff and the potential of charges under the PSA. It was related to a delegation made by the Plaintiff to the Board, without prior notice or approval, which, it is alleged, relied upon confidential information.

[52] On June 2, 2016, likely in response to the Board’s issuance of the Notice of Investigation, the Plaintiff filed an application with the Human Rights Tribunal for Ontario (HRTO) alleging she was discriminated against by the Board on the basis of sex and marital status.

[53] In February 2017, the Plaintiff went on medical leave and on April 10, 2017, made a claim for WSIB benefits on the grounds that she was the victim of Post Traumatic Stress Disorder (PTSD). The date of injury recorded on the claim was February 1, 2017.

[54] In July 2017, a WSIB case manager issued a decision granting the Plaintiff initial entitlement to benefits from February 27, 2017 to June 24, 2017.

[55] When notified of the initial WSIB decision, the Board filed an Intent to Object with the WSIB decision and requested a review of the case manager’s decision. The Board was wrongly of the belief the claim for compensation related to their PSA investigation.

[56] What the Board did not know was that the Plaintiff’s PTSD diagnosis related to a shooting observed by the Plaintiff in February 2011. When the Board became aware of this fact, it took no further issue in regard to the Plaintiff’s WSIB claim.

[57] Thereafter the Plaintiff, the Board, and the Association successfully negotiated a Resignation Agreement (R.A.) which resolved the 2016 application to the HRTO and the potential charges she may have faced under the PSA. The R.A. was said to be effective June 25, 2017. Compensation was paid to the Plaintiff in exchange for her resignation as a police officer.

[58] It was a term of the R.A. (para. 16), binding upon all parties, that the terms and the existence of the R.A. were to be kept confidential except as required by law, disclosure to immediate family or to professional persons providing advice.

[59] In May 2017, the Defendants were named as defendants in a proposed class action. The proposed plaintiffs of the class action were current and former police officers who alleged systemic gender-based discrimination and sexual harassment. The Plaintiff was not a proposed plaintiff in the class action.

[60] On December 21, 2017, in response to the proposed class action and in support of a motion for dismissal, Larkin executed an affidavit. Attached to the affidavit and marked as Exhibit F was a chart with anonymized referrals to Human Rights Applications commenced by female employees of the Board between 2012 and 2017. In the chart reference was made to an unnamed female constable who alleged discrimination which resulted in a settlement involving monetary compensation, the withdrawal of a HRTO application and a voluntary resignation.

[61] On January 15, 2018 counsel for the proposed class members uploaded a copy of the affidavit to a website created for the purposes of the class action. It is alleged that the counsel who uploaded the affidavit did it without prior authorization.

[62] On July 13, 2018, the class action was dismissed by Baltman J., who’s decision was upheld by the Ontario Court of Appeal on April 5, 2019. The Supreme Court of Canada dismissed a motion for leave to appeal on October 24, 2019.

[63] In June 2018, the Board filed an Application for Contravention of Settlement with the HRTO, alleging that the Plaintiff had repeatedly contravened the terms of the R.A. by stating she was constructively dismissed by the Board, referring to events that gave rise to the 2016 HRTO application. The Defendants allege that they wanted to ensure the Plaintiff’s compliance with the R.A.

[64] The Plaintiff, in July 2018, filed a Response and her own Application for Contravention of Settlement alleging the R.A. was breached by Larkin because of the materials included in the affidavit, as referenced above and discussed below.

[65] These applications for relief from the HRTO remain outstanding. The HRTO decided in September 2019, that it would conduct a full-day preliminary hearing via conference call but has yet to schedule a date.

[66] In May 2018, the Plaintiff started this action alleging a breach of the R.A. She seeks monetary damages and reinstatement to employment. In January 2019 the Plaintiff field an Amended Statement of Claim. A year later, in January 2020, the Plaintiff served an Amended, Amended Statement of Claim and in December 2020 served a Fresh Amended Statement of Claim. In the Fresh Amended Statement of Claim the Plaintiff claims damages for breach of contract, misfeasance in public office and negligence.

[67] The Plaintiff takes issue with the affidavit of Larkin filed in defence of the proposed class action suit alleging that the information disclosed by Larkin was sufficient to identify the Plaintiff and thereby caused her humiliation, mental distress and anger, and that the class action was dismissed as a result of the motion to dismiss which relied on the affidavit.

[68] The Plaintiff pleaded that the disclosure of the affidavit was not required by law and contained sufficient information to identify her and violated the terms of the R.A. and that Larkin knew the content of his affidavit was inappropriate.

JURISDICTIONAL ARGUMENT AND ANALYSIS

[69] The Defendants submit that the allegations contained in the Fresh Amended Statement of Claim relate to the Plaintiff’s unionized police employment and the terms under which her employment came to an end in June 2017. It is alleged that the essential character of the claim the Plaintiff is pursuing in the Superior Court of Justice continues, expressly and inferentially, to arise within the ambit of the Collective Agreement. As such, it is submitted that the jurisdiction to resolve such issues lies with an arbitrator appointed under the Police Services Act (PSA) and not this court.

[70] Alternatively, the Defendants submit that the claim can be characterized as the enforcement of a human rights settlement and as such, the subject matter falls within the jurisdiction of the Human Rights Tribunal of Ontario (HRTO). It is alleged that the R.A. settled a human rights claims and as a result the HRTO has exclusive jurisdiction of such claims.

[71] The motion is opposed by the Plaintiff who submits her claim is within the jurisdiction of this court as she is no longer an employee of the Waterloo Police and is no longer a member of the Association and therefore is no longer part of the collective bargaining unit. She submits that on these facts the Ontario Superior Court of Justice has the jurisdiction to hear this matter.

[72] As noted above, the Plaintiff was an employee of the Board and, as a police officer, was a member of a collective bargaining unit with her interests represented by the Association. The R.A. was negotiated within the ambit of collective agreement and the Plaintiff being an employee, was represented by the Association. The Plaintiff, her employer and the Association, who was the members’ bargaining agent, were parties to the agreement.

[73] It is submitted by the Defendants that the specific decision-maker who may hear a workplace dispute is determined by the nature of the employment relationship at issue. The Defendants rely on a decision of the Supreme Court of Canada in St. Anne Nackawic Pulp and Paper v. CPU 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704, in which the Court said:

“Labour relations legislation provided 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” (pp. 718-719).

[74] The Defendants deny the existence of concurrent jurisdiction between the courts and arbitrators and state that the law supports the exclusive jurisdiction model, relying on the decision of the Supreme Court of Canada in Weber v. Ontario Hydro 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929. The majority decision was written by McLachlin J., and from para. 63 I quote:

“To summarize, the exclusive jurisdiction model gives full credit to the language of s. 45(1) of the Labour Relations Act. It accords with this court’s approach in St. Anne Nackawic. It satisfied the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions. It conforms to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlapping litigation in the courts: see Ontario (Attorney-General) (1993) 1993 CanLII 8638 (ON SC), 110 D.L.R. (4th) 444 (Ont. Div. Ct.), per O’Brien J.)”

[75] It is alleged by counsel for the Defendants that the courts have repeatedly applied the Weber doctrine in the police services sector, finding that the PSA and applicable collective agreements together provide a “complete and comprehensive scheme for police officers relating to their employment relationship”. It is said that the courts could only have jurisdiction in policing if the dispute was governed by neither a collective agreement nor applicable police service legislation (Regina Police Assn. Inc. v. Regina Board of Police Commissioners, paras. 30-31).

[76] It is submitted by counsel for the Defendants that the courts have no jurisdiction to deal with any aspects of the employment relationship among individual police officers.

[77] The Defendants submit that the essential character of the matter before me continues to be the interpretation and application of an agreement (the R.A.) and inferentially, the collective agreement, in respect to unionized employment.

[78] It is argued that the claim of tortious actions does not circumvent exclusive arbitral jurisdiction. The Defendants rely on the authority found in K.A. v. Ottawa (City) 2006 CanLII 15128 (ON CA), 80 O.R. (3d) 161 (C.A.), para. 15, for the proposition that regardless of the legal characterization of the dispute, where the dispute arises out of the collective agreement, it must be arbitrated and that one cannot avoid arbitration by pleading the breach of a tort.

[79] The Defendants submit that the dispute will focus on whether the Defendants complied with or breached the R.A., an agreement negotiated within a unionized forum.

[80] On the strength of the authorities cited above, I find that the R.A. was negotiated and executed within the ambit of a collective agreement as did its essential character. I accept that the R.A. was the product of a negotiated resolution of all outstanding employment matters between the parties to this action.

[81] The question now to ask is, given the termination of the Plaintiff’s employment in June 2017, and the passage of time, has the essential character of the dispute changed?

[82] As noted, the Plaintiff argues that as a result of the R.A. she is no longer a member of the Waterloo Police Force and no longer an employee of the Board. Therefore, she is no longer eligible or required to participate in the arbitration process.

[83] The Plaintiff submits that the inherent jurisdiction of the Superior Court of Justice over her claim has not been removed by the legislation or by arbitral agreement.

[84] Counsel for the Defendants rely on the PSA for the proposition that any difference concerning an agreement among the parties to the R.A. is to be determined in accordance with the PSA’s process for resolving labour disputes, regardless when the alleged breach occurred. The process is commenced by the filing of an application with the OPAC. Thereafter, OPAC appoints a conciliation officer to mediate or reduce the issues in dispute. If a dispute cannot be resolved, it may be referred to binding arbitration under s. 124 of the PSA.

[85] One of the authorities provided to me is Desgrosseillers v. North Bay General Hospital 2010 ONSC 142, and the facts of the case are very similar to the facts before me. An ex-employee started a civil action claiming the hospital breached a settlement agreement by which the employee’s employment was terminated. The plaintiff was an employee of the defendant and accepted a settlement package from the defendant in the form of a release and indemnity agreement.

[86] The agreement included the payment of monies and the withdrawal of all grievances filed on behalf of the plaintiff who acknowledged that she had been fully and fairly represented by the union.

[87] A short time after the agreement was executed, the plaintiff started a court action.

[88] The relevant issue within the Desgrosseillers case was whether the plaintiff, who was no longer an employee, was precluded from maintaining her claim for damages for breach of the agreement in the court (para. 40). The defendant argued that the court lacked jurisdiction to hear the matter because the essential character of the claim arose out of collective agreement between the defendant and the union. Accordingly, it was argued that the subject matter of the proceedings was properly within the jurisdiction of a labour arbitrator (para. 41).

[89] The court in Desgrosseillers, agreed that the question to ask was whether the essential character of the dispute arose from the interpretation, application, administration or violation of the collective agreement and relied on the decision in the Weber case. It was noted that an arbitrator can fashion a number of remedies, including the awarding of damages (paras. 44 and 45).

[90] Reference was had for the Ontario Court of Appeal decision in Piko v. Hudson’s Bay Co. (1998) 1998 CanLII 6874 (ON CA), 41 O.R. (3d) 729, at pp. 734-735, wherein it was said that the courts may legitimately take jurisdiction over disputes that do not arise under the collective agreement or that may call for a remedy that the arbitrator has no power to grant (para. 48).

[91] From paras. 49 to 52 of Desgrosseillers, I quote,

“I agree with counsel for the defendant that the essential character of the dispute is about the plaintiff’s termination of employment from a bargaining unit position with the defendant. The fact that the plaintiff’s claim is for damages for breach of the Agreement negotiated two weeks following her termination does not result in this court having jurisdiction. The Agreement was negotiated through the framework of the C. A. Determining the essential character of the dispute does not turn on the legal characterization of the wrong alleged by the plaintiff in the statement of claim. The cause of action need only to be part of the factual basis of a dispute arising out of a collective agreement in order to be subject to resolution under the agreement.

The factual dispute in this case centres on the plaintiff’s employment with the defendant, the settlement regarding the termination of her employment and the alleged breach of the indemnity Agreement containing the terms of settlement. Article 8.09 of the CA provides that all agreements reached under the grievance procedure between the defendant and the representatives of the Union will be final and binding on the defendant, the Union and the employee.

Moreover, since the CA agreement does not limit the powers of the arbitrator to award damages, it follows that precluding the plaintiff from advancing her claim in the courts would not deprive her of the ultimate remedy she seeks.

I find that the jurisdiction to resolve the plaintiff’s entire claim in this case lies exclusively in the grievance and arbitration provisions of the C. A.”

[92] The Defendants also argue an alternative position, stating that further to s. 45.9 of the Human Rights Code, the HRTO has overlapping jurisdiction to enforce any human rights settlement. Therefore, enforcement of the R.A. which includes a human rights settlement may be enforced by the HRTO (see Saunders v. Toronto Standard Condominium Corp. No. 1571, 2010 HRTO 2516, at para. 51; Keays v. Honda Canada 2008 SCC, paras. 63, 65).

[93] As noted, both the Plaintiff and the Defendants have claims against the other, before the HRTO.

[94] The Plaintiff submits that by bringing this motion further to Rule 21.01(3)(a) is not in accordance with Doi J.’s direction to bring a motion under Rule 59.06(1). I am afraid I disagree. The matter is before the court under Rule 59.06(1) but it is Rule 21.01(3)(a) that provides a jurisdictional ground for dismissing a statement of claim.

[95] Nor does the new motion, if it succeeds, render the Court of Appeal decision as moot. The decision still stands in regard to whether the Statement of Claim discloses a reasonable cause of action. Further, the order allowed the Plaintiff to file a Fresh Amended Statement of Claim.

[96] The Plaintiff in her Factum relies on the decision in Skof v. Bordeleau 2020 ONCA 729, which is a very recent decision on the issue of jurisdiction. In Skof, the plaintiff was an employee of the Ottawa Police Services Board (the Board) and president of the Ottawa Police Association (OPA) which exclusively represented members of the police services for all collective bargaining purposes. The plaintiff was on leave since his appointment as president of the OPA. In 2019, further to an investigation by the Ontario Provincial Police, initiated by Police Chief Bordeleau, the plaintiff was charged with breach of trust and obstruction of justice. As a result of the charges the plaintiff was suspended, a decision which was grieved by the OPA.

[97] The plaintiff and the OPA commenced an action in the Ontario Superior Court of Justice against the Chief and the Board claiming the suspension interfered with the plaintiff’s right to represent and assist the OPA. The defendant successfully argued a motion for an order dismissing the action on the grounds that the Superior Court of Justice lacked jurisdiction. It was said that the essential character of the dispute flowed from the collective agreement or was an issue to be determined by way of an Application for Judicial Review to the Divisional Court.

[98] On appeal it was determined that the motion judge erred in concluding that the Superior Court of Justice lacked jurisdiction. Once elected the president of the police association, the plaintiff was not part of the collective agreement and the Police Services Act did not permit officers to address the complaints system. Accordingly, the only remedy available to the plaintiff was through the courts.

[99] Further, the Court of Appeal ruled that the essential character of the claim related to the disciplinary action taken by the defendant in his authority as the police chief, and not the employment relationship. As well, the PSA made it clear that matters of discipline are governed by the Act.

[100] From para. 8, and 9, I quote,

“The basic proposition to r. 21.01(3)(a) can be stated fairly simply: either the Superior Court of Justice has jurisdiction over a claim or it does not. In deciding that issue, it must be remembered that the Superior Court of Justice, as a court of inherent jurisdiction, has the jurisdiction over every conceivable claim unless (i) the claim does not disclose a reasonable cause of action or (ii) the jurisdiction has been removed by legislation or by an arbitral agreement.

…It is clear that, in order to find that the Superior Court of Justice does not have jurisdiction to entertain a claim, it must be “clear and unequivocal that the jurisdiction has bee ousted.”

[101] It was said that the only remedy for a police officer who asserts that she/he has been the subject to a suspension that is unlawful is to seek relieve through the court process (para. 20).

[102] The Court of Appeal noted that the respondents were relying on the principles established in Weber v. Ontario Hydro 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929 (SCC) in their attempt to bring the appellant’s claim within the collective agreement (para. 15). It was further noted that McLachlin J. made it clear in Weber, at para. 67, that the

“exclusive jurisdiction of the arbitrator is subject to the residual discretionary power of the courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal.”

[103] The decision in the Skof case, while important, on its facts, can be distinguished from the matter before me. To begin with, the Plaintiff’s claim is not disciplinary in nature and the Plaintiff was an employee of the Board a member of the Association thereby covered under the collective agreement when the R.A. was negotiated and executed. Her employment was that of a police constable and was subject to the collective agreement.

[104] Returning now to the Desgrosseillers decision, while the case is not binding upon me, given the similarity of facts, I find its reasoning to be persuasive and adopt its principles. The fact that the Plaintiff has not been employed by the Board since June 2017, does not change the fact that the essential character is such that the Ontario Superior Court of Justice does not have jurisdiction to entertain the Plaintiff’s claim. The claim is to be determined in accordance with procedure as set out in para. 84 above and/or the HRTO.

[105] Accordingly, the order of Doi J. dated February 21, 2019 is amended by dismissing the current Statement of Claim herein, for lack of jurisdiction, pursuant to Rule 21.01(3)(a).

[106] A party seeking costs shall do so in writing within 21 days from the release of this ruling. The submissions are to be no more 4 pages in length, double spaced, together with a Cost Outline. A responding party has 14 days after receiving such submissions to respond, in writing, of no more than 4 pages, double spaced.

Bielby J.

Released: April 19, 2021

COURT FILE NO.: CV-18-1938-00

DATE: 2021 04 19

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

KELLY LYNN DONOVAN

Plaintiff/(Responding Party)

– and –

WATERLOO REGIONAL POLICE SERVICES BOARD and BRYAN LARKIN

Defendants/(Moving Parties)

JURISDICTIONAL RULING

Bielby J.

Released: April 19, 2021