Court File and Parties
COURT FILE NO.: CV-20-00648458-0000 DATE: 20210428 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GIUSEPPE CIULLA a.k.a. JOE CIULLA Plaintiff
– and –
THE TORONTO CATHOLIC DISTRICT SCHOOL BOARD, TERESA KELLY, MONICA SOUSA, GIOVANNI MANNELLA a.k.a. JOHN MANNELLA and HEATHER CORRIVEAU Defendants
Counsel: Mark Donald, for the plaintiff Steven Nicoletta, for the defendants
HEARD at Toronto: April 19, 2021
Reasons for judgment
S.F. Dunphy J.
[1] The plaintiff sued the defendants for damages arising from discrimination he alleges that he suffered in his workplace and in particular from the dissemination of allegedly defamatory tweets that he claims were part of the pattern of discrimination and harassment visited upon him over a period of several years. The defendants bring this motion under Rule 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 to have this action dismissed arguing that this court lacks jurisdiction because the subject-matter of the dispute arises expressly or inferentially from a collective agreement.
[2] For the reasons that follow, I am allowing the defendants’ motion and dismissing this claim as against all of the defendants.
[3] The plaintiff is bound by a collective agreement with the defendant school board. The mandatory provisions of s. 48(1) of the Labour Relations Act, 1995, S.O. 1995, C1, Sched. A requires “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” to be submitted to binding settlement by arbitration. Article 30 of the collective agreement – a version of which has been in force at all material times to this action – echoes the mandatory language of s. 48(1) of the LRA 1995. While the plaintiff did not personally negotiate the collective agreement with the Board, his legal bargaining agent – the Ontario English Catholic Teachers Association – did so on his behalf and he is bound by it.
[4] The core subject-matter of the plaintiff’s claim relates to conflicts arising in the workplace and the alleged failure of the defendant Board to apply its workplace policies (i) to control or discipline the alleged harassing and discriminatory actions of the individual co-defendants or (ii) to protect the plaintiff from the consequences of their alleged behaviour. The discriminatory conduct complained of, including the dissemination of the allegedly defamatory tweets, is the object of specific policies of the Board directly or indirectly referenced in the collective agreement. The alleged violation of those policies complained of in the statement of claim is or ought to have been the proper object of arbitration proceedings under the collective agreement. Proceeding in that fashion would not operate to deprive the plaintiff of a remedy for the alleged wrongs complained of. The claim advanced is for damages and there can be no question as to the jurisdiction of an arbitrator to award damages in an appropriate case even if the means of ascertaining or calculating damages may differ.
Background facts
[5] The prayer for relief in the statement of claim seeks general and specific damages “for negligence, defamation and loss of reputation, invasion of privacy via publicity which put Mr. Ciulla in a false light in the public eye, and/or breach of the contractual duty of good faith” as well as punitive damages.
[6] The factual allegations made in support of the relief claimed may be summarized as follows for the purposes of this motion:
a. The plaintiff is an employee of the Board;
b. The plaintiff suffers from a disability as defined under the Human Rights Code, R.S.O, 1990, c. H.19;
c. The individual defendants are all teachers employed by the Board at the same school as the plaintiff with the exception of the defendant Ms. Corriveau who was a teacher assigned to the same school prior to her retirement in 2018;
d. All of the individual defendants “were employees and/or agents” of the Board at all material times and are persons for whom the Board is vicariously liable;
e. Ms. Corriveau is also alleged to have been an agent of the Board by virtue or her operation of a Twitter account carrying an acronym for the Board’s school at which she formerly taught which Twitter account the Board is alleged to have supported the creation of and assumed the responsibility to monitor and control;
f. The plaintiff has been the victim of a pattern of discriminatory conduct and harassment by various employees of the Board since 2013 of which the allegedly harassing tweets made by the individual defendants in 2019 formed a part;
g. The offending tweets were variously published by the individual defendants or “liked” by them which actions amounted to defamation of the plaintiff;
h. The tweets were published through facilities or equipment provided by the Board and during school hours and the Board is also a “publisher of, facilitator or and contributor to” the allegedly false tweets;
i. The individual defendants’ liability is alleged to arise from, among other grounds, failure to use due care in using Twitter and failure to “adhere to the relevant policies and procedures and guidelines for harassment, discrimination and social media use guidelines set by [the Board] in respect of the harmful conduct as described;”
j. The Board’s liability is alleged to arise from, among other grounds, failure to “implement or enforce its own policies, procedures and guidelines relating to its employees’ use of social media”, failure to monitor or control a certain Twitter account, failure to implement or enforce its Harassment and Discrimination Policy, failure to reasonably consider, investigate or respond to the plaintiff’s complaint; and
k. The claim under the Human Rights Code as against the Board alleges that the Board “failed to properly investigate or discipline” the individual defendants and that such constitutes “a failure to procedurally or substantively accommodate” the plaintiff.
[7] This motion concerns the jurisdiction to litigate the claim and not an assessment of its merits. It is therefore appropriate to assume the truth of the allegations advanced by the plaintiff. While evidence is not strictly prohibited by Rule 21.01(3)(a) of the Rules of Civil Procedure, admissible evidence should normally be directed to the jurisdiction of this court to entertain the claim rather than to the merits of the claim itself. This is not a summary judgment motion and the underlying merits of the claim are not at issue at this stage.
[8] The foregoing being said, it can be noted that none of the tweets appended to the statement of claim refers to Mr. Ciulla by his full name such that the identification of the tweets with the plaintiff would require a degree of familiarity with the school and its staff on the part any reader to whose attention the tweets came. This fact has some bearing upon the nature of the claim which in turn impacts jurisdiction.
[9] The defendant’s motion record does not engage the statement of claim on the merits but places on the record various documents referred to directly or indirectly in the statement of claim. These include the collective agreement, the harassment complaint initiated by the plaintiff in April 2019 and various of the policies of the Board that the defendants are alleged to have breached in one fashion or another.
[10] I make the following findings for the purposes of this motion based upon those additional documents filed by the moving party defendants:
a. Following the first round of tweets complained of, the plaintiff initiated a harassment complaint with the Board on April 23, 2019 which alleged (i) that one of the individual defendants (Ms. Kelly) made defamatory comments towards him “originating from a twitter account with the handle @BMTMRAC which I understand is a twitter account owned by [the Board]” and that he had been “a victim of bullying” at the school since the fall of 2011 “but now these unwarranted attacks have gone viral through the use of various school and personal Twitter accounts”;
b. The Board’s “Harassment and Discrimination” policy (designated as H.M. 14) has been in place since 2007. The policy extends to all Board employees. It defines “discrimination” to mean “unfair treatment because of … disability”. “Harassment” is defined as “engaging in a course of vexatious conduct against a worker in a workplace that is or ought reasonably to be known to be unwelcome”. “Workplace” is defined as “any place where employees … and other users perform work or work-related duties or functions” including extra-curricular activities. Individuals engaging in harassment or discrimination are subject to discipline up to and including dismissal. Investigations under this policy must be conducted in a manner that ensures objectivity and decisions made are subject to an appeal process;
c. The Board has also had an “Electronic Communication System – Acceptable Use Policy” since 2012. This policy defines “electronic communication” as including but not limited to “internet use, social media, browsing, publishing or posting on web sites … and use of personal electronic devices”. Users of the Boards electronic communications system are expected to use the system in “an ethical, lawful and appropriate manner as governed by applicable legislation, Board policies and procedures” while the Board itself is committed to “make every effort” and take “reasonable precautions to avoid the misuse of the internet and electronic communications services”. The list of unacceptable activities includes cyberbullying, threats and harassment and personal attacks including prejudicial, discriminatory or slanderous attacks. Under “disciplinary consequences” the policy provides that “users violations of this policy will be fairly handled subject to any obligations contained within applicable Collective Agreements”.
d. Pursuant to Article 9.01 of the collective agreement, the teachers acknowledge that management, while the exclusive function of the employer, nevertheless remains subject to the collective agreement, and relevant statues and regulations in force in the Province of Ontario. Article 33.05 recognizes the right of all employees “to work free from harassment as provided for by Board policies and legislation”.
[11] I conclude from the foregoing that disciplinary actions initiated by the employer pursuant to either of the two cited policies are subject to the grievance procedure stipulated in the collective agreement and that failure to apply either or both policies may similarly be the object of the same grievance process.
Issues to be decided
[12] This motion requires me to decide whether this court has the jurisdiction necessary to entertain a claim for damages arising from allegations of discrimination in the workplace and defamation in light of the provisions of s. 48(1) of the LRA 1995.
Analysis and discussion
(i) Weber and the scheme of the LRA, 1995
[13] At the risk of oversimplification, one might observe that the history of Ontario labour relations law reflects a long-standing tension between the tendency of the common law to attach relatively greater weight to individual rights and the evolution of labour relations law with its relatively greater focus on collective rights and the collective bargaining process. Nearly a century of legal evolution in this Province has seen the emergence of a specialized tribunal and a corps of specialized arbitrators who have gained the confidence of both labour and management and to whom the Legislature has conferred the exclusive jurisdiction to resolve differences arising in the context of the collective bargaining relationship. Our courts have not always accepted the progressive whittling-down of their jurisdiction in this specialized area with the best of good grace, but over time the direction pursued by the Legislature became progressively clearer and with that increasing clarity came the duty of the courts to implement the statute law emerging in a broad and generous fashion so as best to secure its objects.
[14] This evolution was synthesized and summarized in in two decisions of the Supreme Court of Canada which have provided lower courts with clear guidance to follow: St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, 1986 71 (SCC), [1986] 1 S.C.R. 704 and then Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929.
[15] In St. Anne, Estey J. observed (at para. 16) that the “collective agreement establishes the broad parameters of the relationship between the employer and his employees” and concluded that 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.”
[16] In Weber, McLachlin J., writing for the majority, took the St. Anne analysis a step further. The issue as framed by McLachlin J. in that case (at para. 34) is precisely the issue raised here: “When may parties who have agreed to settle their differences by arbitration under a collective agreement sue in tort?”
[17] The answer to that question arrived at by the Weber court supplies the guiding principles that I must apply here. Those guiding principles applicable here may be summarized as follows:
a. The matter is not one of overlapping jurisdictions where both arbitration and civil litigation are potentially acceptable means of resolving a given dispute – the appropriate model is one of exclusive jurisdiction;
b. It is not the form of the dispute that governs but its essential character, regardless of how it is characterized legally because the Legislature has referred to the arbitration process all “differences” between the parties arising under the collective agreement;
c. The determination of the essential character of the dispute is thus undertaken through a consideration of the factual context of the dispute without regard to the legal characterization of it given by the parties;
d. The analysis proceeds in two steps. I must first determine the “essential character” of the dispute in question and second determine whether that essential character arises from the interpretation, application, administration or violation of the collective agreement expressly or inferentially; and
e. The mere fact that the parties stand in the relationship of employer and employee to each other or that the underlying events took place in the workplace is not determinative of the jurisdiction question.
(ii) The essential character of this dispute
[18] What then is the essential character of this dispute?
[19] The plaintiff sought to describe this dispute as having an “unprecedented” nature by reason of the allegedly “false tweets” being published to the world at large via Twitter. There is nothing unprecedented in acerbic comments being made about people on Twitter – I express no view as to the probity or actionability of any of them. A review of the text of the tweets as provided by the plaintiff in the statement of claim reveals that they are largely impenetrable to those not steeped in the sort of internal controversies that often arise within the small pond which is the school community. How many in that pond or beyond ever saw the tweets in question or if seen understood them is a matter for evidence at an eventual hearing and I shall not speculate on their number nor attach any weight to the bald assertion that the tweets went “viral” merely by the fact of being posted. The text of the tweets in question makes it readily apparent that only someone already familiar with the plaintiff would be able to connect the dots and infer that the person referred to variously as “Joe” or “Sciulli” in the tweets might refer to the plaintiff Giuseppe Cuilla in fact. That in turn would operate as something of a bar to the tweets finding a broader audience sufficient to qualify them as “viral”.
[20] From the foregoing, I retain only that the claim is neither unprecedented nor endowed with such an exceptional level of gravity as somehow to disentitle it from being considered fit to be resolved in the collective bargaining sphere via arbitration. In so concluding, I am mindful of McLachlin J.’s comments in Weber that there is no such thing as overlapping jurisdiction. Where the true nature of a dispute rightfully belongs in the sphere of arbitration but requires the application of aspects of the general law to resolve it, a labour arbitrator is able to review and apply such legal principles from the general law as may be required. This is indeed an everyday occurrence.
[21] What is before me is a claim that is framed (i) as a damages claim for defamation arising from a series of tweets and (ii) for discrimination where the self-same tweets are alleged to be incidents in the pattern of discrimination complained of. I must take the claim as the plaintiff has framed it and not as it might have been framed. The plaintiff chose to sue the authors of the various allegedly defamatory tweets, re-tweets and “likes” framing his claim in a manner that inextricably ties it not only to the work environment but more specifically to the role of the Board in its capacity as the employer of both the plaintiff and the individual defendants. The Board’s role as pleaded includes acting as administrator of policies that are directly or inferentially referenced in the collective agreement and that are alleged to have been violated or not enforced.
[22] The manner in which the Board discharged its duty of providing the plaintiff with a harassment-free and discrimination-free work environment thus lies at the very core of the claims advanced and accurately describe its essential nature.
[23] The dispute thus depends quite centrally upon a careful analysis of the manner in which the workplace environment should have been regulated as compared to the manner in which it was in fact regulated. This in turn will require a close consideration both of the two cited policies and the manner in which they have been or ought to have been administered.
(iii) The ambit of the collective agreement
[24] Does this essential nature expressly or inferentially fall within the ambit of the collective agreement? It is to be recalled that the question I must answer is not whether an arbitrator might be seized of the precise claim as framed by the plaintiff in the statement of claim. The question is whether the essential character of the dispute is one that could have been or should have been placed before an arbitrator as arising directly or inferentially from the collective agreement.
[25] In my view, the essential character of this dispute falls within the ambit of the collective agreement and the dispute is one that therefore could or should have been submitted to arbitration. This is not the case of a wrong that just happens to have occurred within a work environment – the very nature of the wrong alleged relates to the work environment and its proper functioning. The obligation of the employer to provide a workplace free of discrimination and harassment is a fundamental one and goes to the core of the relationship between employer and employee that the collective agreement governs.
[26] The conduct of the individual defendants is alleged to amount to a breach of both the Harassment and Discrimination policy and the Acceptable Use Policy of the Board. The Board is alleged to have failed to apply both policies to discipline some or all of the individual defendants and thereby to halt or mitigate the harm alleged to have been visited upon the plaintiff. The Board is alleged to be vicariously liable for the actions of the individual defendants by virtue of the employment relationship that bound them together. Articles 9.01 and 33.05 of the collective agreement expressly or inferentially incorporate both policies. The manner in which the Board has exercised its management function as employer and its alleged failure to apply them so as to secure a harassment-free workplace for the plaintiff are both squarely at issue in the dispute as framed.
[27] There can be no doubt that a grievance might have been formulated to challenge the Board’s alleged failure to apply these policies in a fashion that might have secured the plaintiff employee’s right to a discrimination and harassment-free workplace and to redress the harm alleged to have followed from the failures attributed to the Board as employer. There can similarly be no doubt that any disciplinary action that the Board might have taken in relation to the individual defendants would similarly have fallen with the ambit of the collective agreement and been subject to potential review by an arbitrator following the grievance process. The core of the dispute is thus clearly within the purview of the dispute resolution process mandated by the collective agreement.
[28] Copeland J. was faced with an analogous set of facts in De Montigny v Roy et al., 2018 ONSC 858 where she found that allegedly defamatory statements made by co-workers were matters inferentially subject to the collective agreement. The statements were allegedly made by the co-workers under the employer’s anti-harassment policy, a policy that Copeland J. found to be inferentially incorporated into the collective agreement containing language analogous to that employed by the collective agreement in this case.
[29] In view of the foregoing, the conclusion that the dispute lies within the exclusive jurisdiction of the arbitration process mandated by s. 48(1) of the LRA 1995 is inescapable.
[30] The plaintiff suggested that I ought to draw an adverse inference from the failure of the Board to make full discovery of drafts, emails and other correspondence relating to a draft revision of the Acceptable Use Policy that remains under consideration but has not yet been finalized through discussions with the collective bargaining agent. The new policy, I am advised, makes specific reference to Twitter as contrasted with the prior more general reference to “social media”. The adverse inference I was asked to draw was that the proposed new language reflects a judgment by the parties that the prior Policy did not in fact apply to Twitter at all.
[31] That is a path that I decline to go down.
[32] Section 48(1) of the LRA 1995 confers exclusive jurisdiction upon the arbitrator to resolve disputes including “any question as to whether a matter is arbitrable”. The interpretation of the boundaries of the collective agreement is a matter for the arbitrator. My task on a Weber application is to review the collective agreement to ascertain its broad metes and bounds in applying the second branch of the test, but not to engage in exegesis of its finer points. Were I to do so, I would be usurping the primary role in that domain intended to be left to the arbitrator by s. 48(1) of the LRA 1995.
[33] Like legislation, collective agreements are something of a living tree intended to be applied to changing circumstances over time. That task cannot be entirely evaded by a court dealing with a Weber application but it is one that must be approached with a healthy degree of deference to the intentionally primary role of the arbitration process in that domain.
[34] It is plain to me that an arbitrator might reasonably conclude that messages published on Twitter either using an account bearing the school’s acronym and alleged to have been established with the encouragement and blessing of a Board responsible for monitoring it or published by Board employees during work hours using Board equipment are arbitrable issues. It is not necessary for me to determine in advance and with finality which issues are within or without that jurisdiction. The arbitrator is intentionally vested with jurisdiction to apply such reasonable interpretations to the collective agreement as are needed without being constrained by a court’s precise interpretation of “correctness”. Whether the history of thus-far unexamined subsequent negotiations between employer and union might persuade an arbitrator that the concept of “social media” as used in the 2012 Acceptable Use Policy should be construed to exclude one of the largest social media platforms in the world I cannot say. I can say only that it would be reasonable that an arbitrator might decline to reach that conclusion and that is sufficient for my purposes here.
[35] I similarly decline to attach importance to the retirement of Ms. Corriveau during the course of the events complained of. She is specifically pleaded to have acted at all material times as an agent of the Board who is pleaded to be vicariously liable for her activities. Her post-retirement actions as pleaded all relate to a particular Twitter account that it is alleged she established with the knowledge of the Board pre-retirement and for which the Board as employer is alleged to have retained responsibility after her retirement. The pith and substance of the dispute remains a workplace dispute as regards Ms. Corriveau as well.
[36] The fact that aspects of the dispute before me involve claims against another employee or someone who is not a party to the collective agreement is not determinative if the dispute in its essential character arises under the collective agreement: Piko v. Hudson’s Bay Company, 41 O.R. (3d) 729, 1998 6874 (ON CA) at para. 13.
[37] I have carefully reviewed the jurisprudence cited by the plaintiff and conclude that none of the cases cited compel me to reach a different conclusion. The distinguishing features present in each are material. In Santamaria v. James, 2003 2348 (ON SC), the claim was between employees of the Board but did not involve the employer Board at all. One of the two defendants was subject to a different collective agreement. Further, even though the events in question took place in the workplace, the facts were not all workplace related. In Bliss v. CTV, 2018 ONSC 7497 allegedly defamatory news broadcasts were not found to be subject to the collective agreement simply because the subject of the news stories was also an employee. In Shearer v. Keenan, 2017 ONSC 7171 there was no suggestion that the plaintiff had breached a school policy in relation to an extra-curricular school concert that gave rise to an allegedly defamatory communication to parents. In O’Loan v. Risinger, 2009 26358 (ON SC), there was no complaint taken with any actions of the employer Board under the collective agreement in a claim against certain employees for malicious prosecution and slander. Stuart v. Hugh, 2009 BCCA 127 concerned events involving the police and public order that occurred at the school but was not a workplace issue as such. In Serdar v. Metroland Printing, Publishing and Distributing Ltd., [2001] O.J. No. 1596, there were no policies of the employer extant at the relevant time dealing with the subject-matter of the dispute.
(iv) Adequate effective remedy
[38] Finally, I have considered the respondent’s submission that I ought to exercise my discretion to retain the action even if found to arise from the collective agreement context by reason of the lack of an effective remedy. In this regard, the plaintiff points to the actions of Ms. Corriveau which are alleged to be unrestrained and gleeful. There is no claim for anything but damages in the claim before me and there can be no suggestion that an arbitrator has no jurisdiction to award damages even if the measure thereof may not be identical to the one employed in a court proceeding. The Board’s conduct as principal of its alleged agent Ms. Corriveau in a matter falling within the sphere of the collective agreement is open to control through the grievance process. There is no pending claim against Ms. Corriveau which stands separate and apart from the workplace relationship and her alleged agency on behalf of the Board in operating a Twitter account.
Disposition
[39] For the foregoing reasons, the motion is granted and the plaintiff’s claim is dismissed.
[40] The moving party defendants are entitled to their costs of this motion and proceeding. I shall receive their submissions as to the amount and scale of such costs in writing, such submissions not to exceed seven pages in length. Cases need not be appended nor time space expended on “first principles” in the matter of costs. Hyperlinks to any cases referred to will be adequate. Outlines of costs and any offers to settle shall be submitted (which do not count in the page limitations mentioned earlier). Such submissions and attachments shall be delivered to the plaintiff within 14 days of today. Responding submissions shall respect the same guidelines and be delivered within seven days thereafter. Finally, Reply, if any, shall be true reply and shall be delivered within three days thereafter.
[41] The successful moving party defendants shall forward to me via my assistant all such submissions electronically once assembled with a copy to the plaintiff. The parties may grant each other indulgences as to time without approaching me but are asked to so notify my assistant.
___________________________ S.F. Dunphy J.
Released: April 28, 2021
COURT FILE NO.: CV-20-00648458-0000 DATE: 20210428
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
GIUSEPPE CIULLA a.k.a. JOE CIULLA Plaintiff
– and –
THE TORONTO CATHOLIC DISTRICT SCHOOL BOARD, TERESA KELLY, MONICA SOUSA, GIOVANNI MANNELLA a.k.a. JOHN MANNELLA and HEATHER CORRIVEAU Defendants
REASONS FOR JUDGMENT
S.F. Dunphy J.
Released: April 28, 2021