Court File and Parties

COURT FILE NO.: CV-18-00002309-0000

DATE: 2022-04-19

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Paulo Carvalho, Plaintiff

AND:

Donna Matthews-Altieri, Defendant

BEFORE: Justice V. Christie

COUNSEL: Michael Doyle and Sarah Jamshidimoghadam, Counsel for the Plaintiff Christopher Perri and Kaley Duff, Counsel for the Defendant

HEARD: April 1, 2022

RULE 21.01(3)(a) motion – jurisdiction of the court

REASONS FOR DECISION

Overview

[1] This is a motion brought by the Defendant, seeking an Order striking out and dismissing the Statement of Claim in its entirety, without leave to amend, on the basis that the Court lacks jurisdiction over the subject matter of the action. The Defendant also seeks costs of this motion.

[2] In essence, the Defendant submitted that this is a workplace dispute between co-workers arising from the interpretation, application, administration or alleged violation of the Collective Agreement. According to the Defendant, a long line of jurisprudence dictates that this court has no jurisdiction in such matters.

[3] The Plaintiff brought his own motion requesting that the Defendant’s Rule 21 motion be dismissed, or other alternative relief. The Plaintiff argued that his legal rights and relief claimed in this action are not subsumed in, or by, the Collective Agreement, as the allegations of defamation, intentional interference with economic relations, and intentional infliction of mental and emotional distress are not related to, and are not limited to, the employment context, and, therefore, are not covered by the Collective Agreement. The Plaintiff suggested that the Board’s Harassment Policy has demonstrated to be insufficient to address his claims and relief sought, and that the Court proceeding is necessary to advance his legal rights. Alternatively, the Plaintiff argued for a stay of the Defendant’s dismissal motion, pending the results of the investigation being carried out by the Board into the harassment complaints, pending a grievance by the Ontario English Catholic Teachers’ Association, Durham Secondary Unit [“OECTA”] in respect of the Board’s administration of the harassment complaints, or pending any effective action by the Board to determine the rights of the parties. In the further alternative, the Plaintiff seeks to amend the Plaintiff’s Claim to plead his tort causes of action more particularly, and/or to add the OECTA as a party to these proceedings.

Background Facts

[4] At the relevant times, the Plaintiff and Defendant were teachers at Father Donald MacLellan Catholic Secondary School employed by the Durham Catholic District School Board [“the Board”] and represented by a bargaining agent, OECTA, pursuant to the terms of a Collective Agreement.

[5] There is no dispute that the Parties are unionized and subject to and governed by a Collective Agreement between the Board and OECTA. The relevant agreement was in place from September 1, 2014 to August 31, 2017, which was extended to August 31, 2019. The Agreement is, specifically, between the Board and the secondary teachers employed by the Board and represented by OECTA.

[6] The Agreement identifies OECTA as the “exclusive bargaining agent for every teacher” and provides a variety of rights and benefits. Article 1 confirms that the Agreement is subject to the provisions of the Ontario Labour Relations Act [“LRA’] and the Occupational Health and Safety Act [“OHSA’], as well as related employment legislation, including the Ontario Human Rights Code. Article 1:02 provides that any alleged violation of the LRA and the OSHA shall be dealt with pursuant to the enforcement mechanisms and other procedures outlined in those Acts.

[7] Article 1:04 of the Agreement states:

1:04: The Board and O.E.C.T.A. agree that every employee has a right to freedom from all forms of harassment and freedom from all forms of assault in the workplace. Any teacher covered by this Collective Agreement who feels that he/she is the victim of harassment shall have a right to seek redress in accordance with Board Policy.

[8] The Board maintains workplace health and safety policies and procedures applicable to all employees, including No. PO318 (Occupational Health and Safety), No. PO320 (Workplace Harassment and Workplace Sexual Harassment) and No. PO324 (Workplace Violence). In the “Introduction” to PO320, it states in part:

The Board will not tolerate harassment including that which is sexual, by an employee or other individual in the workplace or at any work-related functions, or in any other circumstances that are likely to cause offence or humiliation to an employee including incidents that occur beyond the normal workplace, on social media or outside of working hours. The Board has an obligation under the Ontario Human Rights Code (OHRC) and the Occupational Health and Safety Act (OHSA), to investigate incidents and complaints of alleged harassment and/or discrimination in the workplace that are contrary to law.

[9] In PO320, “Workplace Harassment” has been given a very broad definition in section 2.0 as follows:

Workplace Harassment – As defined in the Ontario Occupational Health and Safety Act (OHSA) consists of “engaging in a course of vexatious comment or conduct against a worker in a workplace that is known or ought reasonably to be known to be unwelcome, or workplace sexual harassment”. It includes, but is not limited to, systemic or persistent actions such as taunts, annoyances and demands designed to inflict distress such as:

• name calling, insults, threats, slurs, degrading or suggestive remarks, offensive songs or records, demeaning racial or ethnic remarks and jokes or innuendoes;

• communication by means of written or graphic materials, unwanted notes, posters, cartoons or letters, and emails, including the display of racist, derogatory or offensive pictures, graffiti or other materials which demean, embarrass or humiliate;

• use of stereotypical images or language (including jokes and anecdotes) which suggest that all or most of a particular identity are the same;

• differential treatment, and the avoidance or exclusion of any group or individual, including the refusal to converse or work with an employee because of his/her racial or ethnic background or gender identity;

• sexual solicitation, advances, threats or innuendos;

• any activity or behavior, not necessarily directed at anyone in particular that creates a hostile or offensive workplace;

• abuse of authority such as acts or misuse of power as intimidation, threats, aggressive behavior, blackmail or coercion;

• withholding of information necessary to perform ones duties;

• verbal and emotional abuse;

• inappropriate staring; and

• “bullying” - which is an attempt to undermine an individual through criticism intimidation, hostile verbal and nonverbal communication and interfering actions.

As per section 4.0, “the policy applies to every employee, contract employee, and volunteer of the Board”.

[10] The Board has also established Administrative Procedure No. AP320-1 entitled “Workplace Harassment and Workplace Sexual Harassment” which creates both a formal and informal resolution process for the resolution of harassment complaints. The purpose of this Administrative Procedure is stated as follows:

The purpose of this administrative procedure is to provide a framework for the implementation of the Workplace Harassment and Workplace Sexual Harassment Policy (PO320) and to ensure that all persons covered by the Policy and this Administrative Procedure are aware of their rights and responsibilities, and to provide clear and precise procedures for the filing and investigation of complaints and resolution of incidents.

The definition of “Workplace Harassment” is the same as that set out above in PO320.

[11] The Workplace Harassment Procedure establishes a three-step complaints process. Under Step 1 - Speak Up, the complainant is “encouraged to bring the matter to the attention of the respondent (person responsible for the comment or conduct) calmly, but firmly….” The complainant may do this alone or accompanied by a representative of their choice. Both the complainant and respondent are encouraged to document any communication. The complainant may also do this completely in writing. Under Step 2 - Informal Resolution Process, the complainant is required to complete a “Workplace Harassment and Workplace Sexual Harassment Complaint Form” which details the particulars of the allegation, and submit it, along with supporting documentation, to their supervisor, such as the principal. The supervisor is required to contact the respective superintendent / designate to arrange for consultation within two working days. The responding party will receive a copy of the written complaint form within three working days. The supervisor will conduct an investigation to determine if the allegation is substantiated. The supervisor may attempt informal resolution, refer the matter to other more appropriate Board procedures or processes, or refer the complaint to Step 3. If Step 2 does not resolve the complaint, the superintendent will submit a report to the Superintendent – Human Resources and Administrative Services requesting that the complaint be advanced to Step 3. The complaint may proceed to Step 3 – Formal Resolution Process – in lieu of Step 1 or Step 2 if the Superintendent – Human Resources and Administrative Services deems it necessary or if Step 1 or 2 does not resolve the issue. The request to proceed to Step 3 must be made in writing to the Superintendent – Human Resources and Administrative Services, along with any supporting documentation. An investigation will take place, sometimes involving an independent investigator. The matter may involve voluntary mediation. Outcomes may include counselling, education, a written apology, change of work assignment, and disciplinary action, up to and including termination. If the complainant or respondent is concerned that the investigators did not comply with policy or administrative procedures, or new evidence comes to light, a request may be made to review the decision.

[12] In accordance with section 48(1) of the Ontario Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A, Article 12 of the Collective Agreement outlines the grievance procedure and defines a grievance as follows:

12:01: Within the terms of this Agreement, a grievance shall be defined as a difference relating to the interpretation, application, administration or alleged violation of the Agreement.

Article 12 also establishes a three-step graduated approach for filing grievances: 1) to the principal / appropriate supervisory officer; 2) to the Superintendent; 3) to the Director of Education. Any grievance that is not resolved through this procedure may proceed to arbitration pursuant to Article 12:02 of the Collective Agreement. Article 12.02(1) states:

12:02(1) Where a difference arises between the parties relating to the interpretation, application, administration or alleged violation of this Agreement, including any question as to whether a matter is arbitrable, either party may, after exhausting any grievance procedure established by this Agreement, notify the other in writing of its desire to submit the difference or allegation to arbitration.

The decision of the Arbitration Board or a single Arbitrator is “final and binding upon the parties and upon any teacher affected by it.” See 12:02(6) The Collective Agreement also states in 12:03(1) that “no action of any kind will be taken against any teacher because of participation in this grievance procedure.”

[13] On October 20, 2017, the Defendant communicated several concerns regarding the Plaintiff’s behaviour and conduct in the workplace to the principal of the school, Mark Lacy, as well as to the former Unit President of OECTA, Chris Montgomery. At the request of Mr. Lacy and Mr. Montgomery, and pursuant to the applicable procedure (“Step 1 – Speak-Up”), the Defendant documented her concerns in writing and provided the same to Mr. Lacy and Mr. Montgomery on October 23, 2017. The concerns expressed included:

a. September 19, 2017 – classroom

“…I was in my classroom alone after 2:00 when PC came in. He shared the following:

• ML had mentioned to him that morning that he had better not be late for the college because I would get angry (I believe this was a joke)

• This lead to me being told:

• “you are not my Boss…you have no right to ask me when I arrive or leave or anything about my class. If I ever hear that you have reported about me….then F*&k You!”

• He let me know that he and ML are friends and that I have no idea who I am dealing with.

• He went on for 15 minutes using the term “F(*k You” at least 3 times.

• He also threatened to involve OECTA if he ever heard that I was talking to Admin about him

• I contacted Chris M. the following morning”

b. October 18, 2017 – Enniskillen for a group outing

“Several students came up to me and told me that they did not have a teacher for Math Friday afternoon. I informed them that I was not in charge of that and that I didn’t want to know anything else. I also let them know that the Principal can come up and they can share their story with him. 12:30 that afternoon. ML was at the college so I located two students from the math class and told them that this is the Principal.”

c. October 19, 2017 – SP’s back office of her classroom

“…PC came in and shut the door. He stood at the door with his hand on the door as he addressed me. He shared the following:

• A student in his class said that I forced them to go and talk to the Principal and tell them about Friday

• I informed PC that following his earlier advice…I refused to listen to any stories about Friday and I told the students to talk to the Principal

• He said that I had forced them and he would have appreciated a Head’s Up

• I reminded him of the earlier advice that I had received and I let him know that I did not force the students and that…had the students said nothing…I would have never known

• He let me know that ML also believed that I had initiated the students talking to the him

• He challenged my role as OECTA Rep and colleague

• He let me know that I wasn’t very good at either

• He reminded me that he “works his A&& off for these kids and not so another teacher can go behind his back and report him

• He reminded me that I am not his Boss and he is not sure “who in the hell I think I am” but he is certain about who in the hell he is

• I took this as another threat”

[14] Also consistent with “Step 1 – Speak-Up” procedure, the Defendant brought her complaint to the attention of the Plaintiff by way of email on October 23, 2017.

[15] Following receipt of the October 23, 2017 report, Mr. Lacy investigated the concerns, including meeting with the parties. For example, on or about November 10, 2017, the Plaintiff was asked to attend a meeting with Mark Lacy, principal of the school.

[16] On March 7, 2018, the Plaintiff’s lawyer wrote to the Defendant, demanding that the Defendant “immediately cease and desist publication of, and immediately retract and apologize for, certain statements that you have made, both spoken and in writing, with respect to events that occurred on and after October 13 and October 19, 2017.” The letter also demanded that the Defendant provide a written apology and pay $5000 in respect of legal and other professional fees.

[17] On March 26, 2018, the Defendant advanced her complaint to the “Step 3 – Formal Resolution Process”. She completed and submitted a “Workplace Harassment and Workplace Sexual Harassment Complaint Form” which attached both the October 23, 2017 report and the March 7, 2018 demand letter. The Defendant also advised the Plaintiff by email on the same day that she filed the March 26, 2018 complaint.

[18] In May 2018, the Plaintiff and four of his colleagues were declared surplus to the school effective August 30, 2018. Specifically, on May 14, 2018, the Plaintiff was advised by letter that a “surplus situation has resulted” and “in accordance with the Surplus Procedures in the Collective Agreement, you have been declared surplus to our school effective August 30, 2018.” Around the same time, the Board advised the Defendant and another teacher that they were being transferred to other schools in the Board’s district effective August 30, 2018.

[19] In the meantime, the Board and OECTA encouraged the parties to agree to informal mediation of the Defendant’s complaint, which commenced in May 2018. On May 15, 2018, the Plaintiff and Defendant participated in an informal mediation process. The Parties continued to attempt to resolve the issues between them. Ultimately, on May 23, 2018, the Grievance Officer, Paul Collicutt, advised Michael Gray, Superintendent of Education at the Board, that the Defendant advised that she was no longer interested in continuing with mediation.

[20] On June 1, 2018, the Plaintiff, through counsel, filed a formal “Step 3” harassment complaint against the Defendant in accordance with the Board’s Workplace Harassment Procedure. The complaint included the following:

a. Allegations of discrimination and harassment:

i. The Defendant reported or complained to School Administration or directed or assisted a student or students to report or make a complaint to the effect that Mr. Carvalho had been absent from his scheduled class on October 13, 2017, knowing same was false.

ii. Discussion between the Plaintiff and Defendant in the temporary office at the back of Susana Periera’s classroom on October 19, 2017, leading to a false report by the Defendant on October 20, 2017, that she had been physically and emotionally intimidated by Mr. Carvalho, that he threatened her and used abusive language.

iii. False complaint of comments and intimidation by the Plaintiff following a “Welcome Back BBQ”

iv. The Defendant claimed that the Plaintiff arranged for a lawyer to visit the school in November 2017 in order to carry out a re-enactment of the October 19, 2017 discussion.

v. On October 11, 2017, the Defendant approached the Plaintiff in the school parking lot in the presence of his wife, hugged him and kissed him on the lips.

vi. Comments that the Defendant had allegedly made about his look and physique.

The Plaintiff complained that the alleged false statements, reports and / or complaints made by the Defendant had caused damage to him, including by diminishing his reputation as a teacher and standing before School Administration, OECTA, and the Board, and had negatively impacted his job performance and career prospects. The Plaintiff requested that the Defendant be directed to cease and desist, provide a written apology and retraction of her statements, be disciplined by the Board for bringing false and vexatious statements, and to be reassigned to a different school or Board employment. The Plaintiff submitted that his complaint was not filed until June 2018, on the advice of the Plaintiff’s OECTA representative to exhaust the informal mediation process, despite his wish to file it earlier.

[21] On June 4, 2018, Michael Gray emailed the Plaintiff to advise that the Defendant had not accepted his settlement offer and that the Board had concluded that the matter could not be mediated. As a result, the complaint would be formally investigated in accordance with AP-320-1. The Plaintiff was encouraged to send any reconsidered settlement to Mr. Gray either by him directly or through his OECTA representative. The Plaintiff was reminded that Mr. Gray would not be responding to communications from the lawyer.

[22] On June 7, 2018, Michael Gray again emailed the Plaintiff about his June 1, 2018 complaint, advising him that the Board would not accept the complaint as filed by the lawyer, however, if he wished to re-file independently or through his OECTA representative, he may do so.

[23] The Plaintiff re-filed his complaint on his own behalf on June 11, 2018.

[24] On June 15, 2018, in response to an inquiry from Michael Gray, the Plaintiff provided his consent to having both complaints investigated by the same investigator, but asked to have the Board confirm who the investigator would be, as well as what the next steps would be.

[25] On June 18, 2018, Michael Gray, advised that no investigator had yet been appointed but that the Board would be hiring a third-party investigator that week.

[26] Also on June 18, 2018, OECTA filed a grievance under Article 12 of the Collective Agreement in respect of the surplus decision, as well as transfers.

[27] On June 27, 2018, after several inquiries to Chris Montgomery, OECTA representative, the Plaintiff was advised that the Board was unable to hire a third-party investigator for the complaints and that the investigation would not proceed until the fall of that year.

[28] On June 28, 2018, the Plaintiff exercised his right of recall to the school. The Board accepted his recall, but immediately transferred him to another school in the Board’s district.

[29] This Action commenced with a Statement of Claim, issued on August 20, 2018, seeking $100,000 in general damages for defamation, $969,769.30 in special damages, $50,000 in damages for intentional interference with economic relations, $50,000 in damages for intentional infliction of mental and emotional distress, a declaration that the Plaintiff is entitled to an apology and retraction from the Defendant, in a form acceptable to the Plaintiff, in respect of the slanderous statements made by the Defendant, pre- and post-judgment interest, and substantial indemnity costs. The overview of the claim provides in part as follows:

a. In autumn of 2017, and in the months following, the Defendant made a series of false, inaccurate, and deliberately misleading statements, reports and complaints to the School’s administration concerning the Plaintiff’s behaviour, conduct, teaching performance, and professionalism.

b. The statements / reports have slandered and defamed the Plaintiff and his performance as a teacher and his career prospects have been damaged as a result.

c. The Plaintiff has been forced to take a medical absence from work due to the anxiety and stress occasioned by the reports and statements, due to the toxic environment that the reports have created, and due to his fear that the Defendant is willing and disposed to produce further false and defamatory statements.

d. The Plaintiff specifies various incidents in September, October, and November 2017.

e. The Statement of Claim also sets out that, on March 26, 2018, the Defendant made a Workplace Harassment Complaint pursuant to the Board’s Workplace Harassment Policy, referring to the earlier incidents in 2017.

f. The Statement of Claim also details events subsequent to the reports and complaints, including:

a. Following the first harassment complaint in October 2017, School Administration and the OECTA president promised that there would be an investigation and follow up of the reports and complaints;

b. Shortly after going on short-term sick leave, the Plaintiff was notified that he would no longer be provided with overtime work marking student papers, additional teaching duties that he had been performing since the beginning of 2018.

g. The Statement of Claim states that “Carvalho states that he has pleaded all of the particulars available to him, with the exercise of reasonable diligence. He has pleaded all of the facts of the defamation now available to him, including approximate date, time, place, speaker and audience…”

h. The false reports and complaints have diminished his reputation as a teacher and damaged his standing before School Administration, OECTA, and the Board.

i. The Plaintiff is afraid that he will be subjected to further discipline by School Administration and / or the Board, and is fearful that he may be terminated on the grounds of the complaints.

[30] On September 11, 2018, the Plaintiff received an email from the OECTA representative, Chris Montgomery, asking the Plaintiff if he was interested in the Defendant’s earlier settlement offer from June 2018, and if not interested, to let him know so that the investigation could resume. The Plaintiff was surprised by this inquiry given his earlier position and his impression that an investigator would have already been retained. It would appear that the Plaintiff did not respond to the email, as there was another follow up email on September 14, in which an assumption was made that he was not accepting the terms of the June proposed settlement. The email indicated that, if the Plaintiff did not respond by Monday, Mr. Montgomery would inform the Board and then proceed with the investigation.

[31] On September 12, 2018, OECTA, on behalf of the Plaintiff, filed a Grievance which claimed that the earlier transfer was disciplinary and that the School Board had violated Article 1.04 of the Collective Agreement. On September 24, 2018, the School Board responded in a letter that the transfer was administrative in nature.

[32] In late September 2018, the Board advised OECTA that the Board would commence a formal investigation into the parties’ Step 3 complaints. On October 2, 2018, the Defendant met with the Board’s Senior Employee Relations Officer, Jaime Sheepwash, in reference to the complaints.

[33] On October 3, 2018, the Plaintiff commenced a sick leave, which caused the Board to delay their investigation into his June 1, 2018 complaint. The Grievance filed by OECTA in relation to the transfer was also put on hold.

[34] On October 4, 2018, the Board’s Senior Employee Relations Officer, Jaime Sheepwash, wrote to the Plaintiff to advise that the Board was commencing a “formal” investigation into the Defendant’s complaint and invited the Plaintiff to a meeting on October 9, 2018 that she would be conducting. This occurred despite the earlier information that a third-party investigator would be retained.

[35] On October 7, 2018, the Plaintiff wrote to Ms. Sheepwash to ask whether his complaint was being investigated along with the Alteri complaint, along with other questions about the scheduled meeting.

[36] On October 8, 2018, Ms. Sheepwash responded to the Plaintiff and advised that he was the respondent to the Altieri complaint, that he could not have his civil lawyer attend any meetings for the investigation, only the OECTA representative, and that she would assess the merits of his complaint subsequent to this investigation.

[37] On October 9, 2018, the Plaintiff filed an application against the Board to the Human Rights Tribunal of Ontario, on grounds of discrimination including race, colour, ancestry, place of origin, ethnic origin, sex, gender identity, and gender expression. He sought monetary and non-monetary damages. The concerns related to discrimination in the sense of being denied a promotion, scheduling, discipline, in comments, displays, jokes, harassment, or a poisoned work environment, and in being denied professional advancement opportunities. The Plaintiff summarized his complaints against the Board as follows:

a. Prejudged Mr. Carvalho’s guilt or culpability in the allegations made by Ms. Altieri, and assumed that her version of the facts was substantially correct;

b. Failed to investigate Ms. Altieri’s allegations, properly or at all, and failed to get Mr. Carvalho’s “side of the story”;

c. Failed to obtain or preserve important evidence;

d. Proceeded to enforce discipline on Mr. Carvalho, despite its investigation and the Workplace Harassment complaints brought by Ms. Altieri being incomplete;

e. Continued to apply assignment-based discipline on Mr. Carvalho, without formally advising him of same;

f. Warned him not to communicate with former students, in an effort to restrict his access to evidence; and

g. Failed to proceed with Mr. Carvalho’s Workplace Harassment Complaint, despite validly accepting same, and discouraged Mr. Carvalho from commencing or continuing with such complaint.

As for the remedy sought, the Plaintiff requested that the Board be ordered to reject the Defendant’s complaints, uphold the Plaintiff’s complaints, implement the relief requested in the Plaintiff’s complaints, or in the alternative to terminate both complaints and provide a written apology and retraction to the Plaintiff, to assign the Defendant to a different school or alternate Board employment on a permanent and ongoing basis, to provide further and better training in the avoidance of discrimination and harassment to the Board employees involved, and to pay the Plaintiff $100,000 in damages occasioned by the discrimination and harassment.

[38] The meeting between the Plaintiff and Ms. Sheepwash did not proceed on October 9, 2018, and an alternate date of October 12, 2018 was offered.

[39] On October 12, 2018, Ms. Sheepwash advised OECTA that the Board had to “defer” its investigation meeting with Mr. Carvalho as he had gone off on sick leave. The letter states: “We have had to defer the harassment investigation meeting with Paulo Carvalho as he has now gone off on sick leave. His representative has made it clear that Mr. Carvalho will not be available to meet until he is cleared to return to work from his doctor. As such, the investigation is on hold pending his recovery.”

[40] On October 29, 2018, the Plaintiff wrote to the Board to formally complain about the process, including complaining about the delays.

[41] The Plaintiff did return to work on May 6, 2019, however, he was again declared surplus.

[42] On May 28, 2019, the OECTA Grievance Officer, Paul Collicutt, wrote to the Board to request that the harassment investigation continue now that the Plaintiff was back at work. On the same day, the Board advised that, given that there was an OHRC complaint, they would be referring the file to an external investigator.

[43] In early July 2019, the Board retained an external third-party investigator, John Donkor, to conduct separate, but concurrent, investigations into the Defendant’s complaint of March 26, 2018 and the Plaintiff’s complaint of June 1, 2018.

[44] In September 2019, the Plaintiff began working at another school in the School Board’s district.

[45] The third-party investigation into the complaints commenced in the fall of 2019. The investigator conducted several interviews between September and November 2019.

[46] The Plaintiff commenced a second medical leave of absence in late November 2019. He has not returned to work.

[47] On November 22, 2019, the Human Rights Tribunal of Ontario held a pre-hearing resolution meeting with respect to the Plaintiff’s application. No resolution was reached, and from that date to the present, no substantive steps have been taken by the Tribunal. There is no hearing or other event scheduled.

[48] It was not until December 17, 2020 that the Board advised the Plaintiff that the third-party investigation into the complaints had concluded. The letter stated in part as follows:

The findings of the investigation concluded that, on the balance of probabilities, the following allegations were substantiated:

• PC confronted DMA on the day of the “Welcome Back” BBQ for students, in regards to having been reported to administration for tardiness;

• PC confronted DMA in the backroom of a classroom in a threatening and intimidating manner; and,

• PC arranged to have a cease and deist (sic) letter sent to DMA for the purposes of bullying and intimidating her

Further, the following allegations were substantiated / partially substantiated:

• DMA induced students into advising school administration that PC did not attend his afternoon math class; and,

• DMA kissed PC in the presence of his wife for antagonistic purposes

Lastly, the following allegation was unsubstantiated:

• PC arranged to have his lawyer visit the Continuing Education Centre

After reviewing the findings of the investigation, I am able confirm that a violation of the Board’s policies and procedures pertaining to discrimination, harassment, or otherwise at law, has occurred.

In order to protect the privacy of everyone involved, we have taken steps to handle this matter in utmost confidence. We expect you to treat the information contained in this letter in the same manner.

Please note that any subsequent follow up from the above will come under separate cover.

[49] On the same day, December 17, 2020, the Plaintiff wrote to Mike O’Neill, Superintendent of Human Resources Services at the Board, stating that he would like to discuss the report. The Plaintiff followed up again on January 11, 2021, stating that he had a “few items” he would like to discuss in relation to the “report”. On the same day, Mr. O’Neill responded that he would be willing to meet to address questions the following week. On January 12, 2021, the Plaintiff responded in part as follows:

My main concern is that how does Human Resources intend to proceed.

With the report, does the Board intend to file sexual harassment against Altieri or help me file a complaint against her.

Is the Board compelled to do this on their own?

A more thorough investigation by professionals of witnesses, looking at texts, phone records, and past behaviours will prove a different result with fewer probabilities and more facts.

[50] On June 4, 2021, the Plaintiff wrote to his OECTA representative, Bob Giasson, to ask him to provide him with a copy of the “Donkers Report”. On June 9, 2021, Mr. Giasson responded as follows:

The Union has not received a copy of the Donker’s report either. Since it is a document that was contracted by the board they do not have to share it with us. We have asked for a copy but they have not been forthcoming. The only documentation that we have received in relation to the investigation is the outcome letter that you received…

[51] On or about the same time, preliminary meetings were being scheduled between Mr. Giasson and the Board to discuss grievances that the Plaintiff had filed with respect to various administrative transfers. On June 21, 2021, the Plaintiff was in contact with Mr. Giasson regarding the status of those meetings. Mr. Giasson advised that no decision had been made at the June 13, 2021 meeting and that the meeting would reconvene on August 11, 2021.

[52] The Plaintiff wrote to Mr. Giasson on September 7 and September 14, 2021 to follow up. On September 14, 2021, Mr. Giasson responded that the arbitrator for the meeting had had a medical emergency and so the August meeting was adjourned. The Plaintiff responded, expressing his concerns about returning to work. Mr. Giasson responded and indicated that the Plaintiff could return to work and reminded the Plaintiff that the grievance brought against the board was brought by OECTA.

[53] This Court is unaware of any steps taken as a result of the conclusions reached by the third-party investigator.

Analysis

[54] Rule 21 of the Rules of Civil Procedure allows for the early determination of an issue before trial. This can save time and cost for all parties and the justice system. In this case, it is the Defendant who has brought the motion under Rule 21.01(3)(a) which states as follows:

21.01(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,

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

This subsection is distinct from Rule 21.01(1) which relates to any party bringing a motion on a question of law or to strike a pleading as it discloses no reasonable cause of action, in which circumstances no evidence is admissible, or in the case of (1)(a), at least not without leave of the judge or on consent of the parties. Unlike motions brought under Rule 21.01(1), evidence is permitted under Rule 21.01(3)(a). Having said that, on such motions, this court is to assume the truth of the allegations advanced and the evidence, if any is presented, should be directed to the jurisdictional issue to be determined by the court. See Ciulla v. The Toronto Catholic District School Board, 2021 ONSC 3110 at para 7

[55] Given the result that can be achieved through a Rule 21 motion, the Supreme Court of Canada has said that this tool of civil procedure is to be exercised with caution, balancing the need for people to have their day in court with the need to weed out meritless claims. In R. v. Imperial Tobacco Ltd., 2011 SCC 42, the court stated:

[19] The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.

[20] This promotes two goods — efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be — on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties’ respective positions on those issues and the merits of the case.

[21] Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed… The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.

While these comments are more directly applicable to a Rule 21.01(1) motion, the caution and care with which Rule 21 motions, generally, must be approached is applicable here.

[56] Ontario courts have read into the rule a “plain and obvious” threshold. See MacDonald v. Ontario Hydro, 1994 7294 (ON SC), affirmed by the Divisional Court at 1995 10628. This threshold has been repeatedly affirmed by Ontario courts.

[57] As a general rule, where a statute conveys jurisdiction over a type of proceeding on a specific decision maker, the Superior Court has no jurisdiction to hear that type of proceeding. In Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, an action was brought against the federal Crown in the Ontario Superior Court of Justice seeking damages for breach of contract, negligence, and unjust enrichment arising from a decision by Industry Canada rejecting an application for a telecommunications licence. The Court, at paragraphs 42-45, stated:

[42] What is required, at this point of the discussion, is to remind ourselves of the rule that any derogation from the jurisdiction of the provincial superior courts (in favour of the Federal Court or otherwise) requires clear and explicit statutory language: "[The] ouster of jurisdiction from the provincial superior courts in favour of vesting exclusive jurisdiction in a statutory court ... requires clear and explicit statutory wording to this effect": Ordon Estate v. Grail, 1998 771 (SCC), [1998] 3 S.C.R. 437, at para. 46; see also Pringle v. Fraser, 1972 14 (SCC), [1972] S.C.R. 821, at p. 826; Canada (Human Rights Commission) v. Canadian Liberty Net, 1998 818 (SCC), [1998] 1 S.C.R. 626, at para. 38. The Attorney General's argument rests too heavily on what he sees as the negative implications to be read into s. 18.

[43] The oft-repeated incantation of the common law is that "nothing shall be intended to be out of the jurisdiction of a Superior Court, but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an Inferior Court but that which is so expressly alleged": Peacock v. Bell (1667), 1 Wms. Saund. 73, 85 E.R. 84, at pp. 87-88. In contrast, the jurisdiction of the Federal Court is purely statutory.

[44] The term "jurisdiction" simply is shorthand for the collection of attributes that enables a court or tribunal to issue an enforceable order or judgment. A court has jurisdiction if its authority extends to "the person and the subject matter in question and, in addition, has authority to make the order sought": Mills v. The Queen, 1986 17 (SCC), [1986] 1 S.C.R. 863, per McIntyre J., at p. 960, quoting Brooke J.A. in R. v. Morgentaler (1984), 1984 55 (ON CA), 41 C.R. (3d) 262, at p. 271, and per Lamer J., dissenting, at p. 890; see also R. v. Rahey, 1987 52 (SCC), [1987] 1 S.C.R. 588, at p. 603; R. v. 974649 Ontario Inc., 2001 SCC 81, [2001] 3 S.C.R. 575, at para. 15; R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765. The Attorney General does not deny that the Superior Court possesses in personam jurisdiction over the parties, or dispute the Superior Court's authority to award damages. The dispute centres on subject matter jurisdiction.

[45] It is true that apart from constitutional limitations (see, e.g., Attorney General of Canada v. Law Society of British Columbia, 1982 29 (SCC), [1982] 2 S.C.R. 307, and cases under s. 96 of the Constitution Act, 1867, which are not relevant here), Parliament may by statute transfer jurisdiction from the superior courts to other adjudicative bodies including the Federal Court. It did so, for example, with respect to the judicial review of federal decision makers: Canada Labour Relations Board v. Paul L'Anglais Inc., 1983 121 (SCC), [1983] 1 S.C.R. 147, at p. 154. However, the onus lies here on the Attorney General to establish the existence and extent of such a transfer of jurisdiction in statutory terms that are clear, explicit and unambiguous.

[58] The importance of the collective agreement, and the power it conveys, has been recognized by the courts. In Loyalist College of Applied Arts and Technology v. Ontario Public Service Employees Union, (2003) 2003 29709 (ON CA), 63 O.R. (3d) 641 (C.A.), the applicant employer and the respondent union were parties to a collective agreement covering academic employees of the applicant. A teacher was offered a full time job by the applicant on the condition that she enrol in a graduate program in her field of study within her probationary year. She accepted the offer, however, ten months into the probationary period, she had not enrolled. The teacher was fired and grieved the firing. The College argued that the Supreme Court’s case law did not foreclose the possibility of individual bargaining of terms and conditions of employment and referred to several cases. At paragraph 37, the court stated:

[37] What then does one take from these four cases? Admittedly, as the College argued, in none of them does the Supreme Court expressly prohibit individual bargaining of a condition of employment not covered by the collective agreement. In these cases, however, the court emphasized the sanctity of the collective bargaining regime and the role of the union as the representative of all employees in the bargaining unit. The court thus affirmed the principle that the collective agreement, not individual negotiation, should govern the employment relationship in a unionized workplace. Permitting an employer to negotiate directly with an employee a term or condition of continued employment conflicts with this principle. Therefore, it seems to me that the reasoning in the four Supreme Court of Canada cases precludes individual bargaining of a condition whose non-fulfilment could lead to dismissal.

[59] In Ontario, the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, is the governing legislation in regard to the relationship between unionized employees and their employer. This legislation requires all employees governed by a collective agreement to settle disputes arising from their collective agreement by way of the arbitration process and before an Arbitrator. Section 48(1) states:

48 (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable. 1995, c. 1, Sched. A, s. 48 (1).

See also the Rights of Labour Act, R.S.O. 1990, c. R. 33, specifically section 3(3).

[60] This legislation suggests that the Court must stay out of such disputes.

[61] In St. Anne Nackawic Pulp & Paper Co. v. CPU Local 219, 1986 71 (SCC), [1986] 1 S.C.R. 704, a strike occurred, notwithstanding the fact that there was a “no strike” clause in the relevant agreement. The Company claimed damages from the Union for losses it claimed to suffer. Prior to trial, the Court determined it was without jurisdiction, which was upheld on appeal. The Supreme Court dismissed the appeal and stated in part:

[14] …The legislature created the status of the parties in a process founded upon a solution to labour relations in a wholly new and statutory framework at the centre of which stands a new forum, the contract arbitration tribunal. Furthermore, the structure embodies a new form of triangular contract with but two signatories, a statutory solution to the disability of the common law in the field of third party rights. These are but some of the components in the all-embracing legislative program for the establishment and furtherance of labour relations in the interest of the community at large as well as in the interests of the parties to those labour relations.

[15] The above-quoted passages illuminate the profound impediments to reaching the conclusion that rights which at common law would flow from a master-servant relationship would survive under a collective bargaining regime and continue to qualify for enforcement in the traditional courts. The problem raised by attempts to escape the contract tribunal so as to seek enforcement in the courts of rights arising under a collective agreement negotiated within the framework of a collective bargaining regime, solely on the grounds that the agreement does not explicitly address the jurisdictional question, is an equally profound difficulty.

[16] The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law. These considerations necessarily lead one to wonder whether the Miramichi case, supra, and cases like it, would survive an objection to the court's jurisdiction if decided today. The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks.

[20] What is left is an attitude of judicial deference to the arbitration process. This deference is present whether the board in question is a "statutory" or a private tribunal (on the distinction in the labour relations context, see Roberval Express Ltée v. Transport Drivers, Warehousemen and General Workers Union, Local 106, 1982 34 (SCC), [1982] 2 S.C.R. 888, Howe Sound Co. v. International Union of Mine, Mill and Smelter Workers (Canada), Local 663, 1962 37 (SCC), [1962] S.C.R. 318, affirming (1961), 1961 311 (BC CA), 29 D.L.R. (2d) 76, Re International Nickel Co. of Canada and Rivando, 1956 122 (ON CA), [1956] O.R. 379 (C.A.)). It is based on the idea that if the courts are available to the parties as an alternative forum, violence is done to a comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting. Arbitration, when adopted by the parties as was done here in the collective agreement, is an integral part of that scheme, and is clearly the forum preferred by the legislature for resolution of disputes arising under collective agreements. From the foregoing authorities, it might be said, therefore, that the law has so evolved that it is appropriate to hold that the grievance and arbitration procedures provided for by the Act and embodied by legislative prescription in the terms of a collective agreement provide the exclusive recourse open to parties to the collective agreement for its enforcement.

See also Gendron v. Supply and Services Union P.S.A.C. Local 500057, 1990 110 (SCC), [1990] 1 S.C.R. 1298, at para 60 where the court stated: “…Allowing parties to disputes which, by their very nature, are those contemplated and regulated by labour legislation, to have recourse to the ordinary courts would fly in the face of the demonstrated intention of Parliament to provide an exclusive and comprehensive mechanism for labour dispute resolution…”

[62] In determining if a matter is in the exclusive jurisdiction of the grievance and arbitration system, the Supreme Court of Canada held in Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929 that there must be a consideration of the “essential character” of the dispute. The Appellant was employed by Ontario Hydro. As a result of back problems, he took an extended leave of absence. Hydro paid him the sick benefits stipulated in the collective agreement. Due to concerns over malingering, Hydro investigated, and ultimately suspended the Appellant for abusing the benefits. The Appellant took the matter to his union, which filed grievances against Hydro, which were eventually settled. In the meantime, the Appellant commenced a court action based on tort and breach of his Charter rights. The motion judge struck out the action on the grounds that the dispute arose out of the collective agreement, depriving the court of jurisdiction, and was a private matter to which the Charter did not apply. The Court of Appeal agreed, except with respect to the Charter claims, which it allowed to stand. The Appellant appealed to the Supreme Court, asking that his action be reinstated in its entirety. Hydro cross-appealed the decision to allow the Charter claim to stand. The Supreme Court dismissed the appeal and allowed the cross-appeal. The Court analyzed the extent to which s. 45(1) of the Ontario Labour Relations Act ousts the court’s jurisdiction generally and over Charter claims. The Court considered three models of jurisdiction: concurrent, overlapping, and exclusive. The court stated as follows:

[43] Underlying both the Court of Appeal and Supreme Court of Canada decisions in St. Anne Nackawic is the insistence that the analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed. The issue is not whether the action, defined legally, is independent of the collective agreement, but rather whether the dispute is one "arising under [the] collective agreement". Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it.

[44] The appellant Weber suggests that St. Anne Nackawic went no further than to exclude concurrent actions based on the master-servant relationship, leaving open the possibility of actions in tort, contract or for Charter breach. It is true that Estey J. pointed out that the whole of master-servant law had been subsumed under the labour regime, leaving no scope for a concurrent court action based on this branch of the common law. But this does not undercut the broader proposition that the policy of the legislation is against concurrency and that what matters is not the legal characterization of the claim, but whether the facts of the dispute fall within the ambit of the collective agreement.

[45] This brings me to the second reason why the concurrency argument cannot succeed -- the wording of the statute. Section 45(1) of the Ontario Labour Relations Act, like the provision under consideration in St. Anne Nackawic, refers to "all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement" (emphasis added). The Ontario statute makes arbitration the only available remedy for such differences. The word "differences" denotes the dispute between the parties, not the legal actions which one may be entitled to bring against the other. The object of the provision -- and what is thus excluded from the courts -- is all proceedings arising from the difference between the parties, however those proceedings may be framed. Where the dispute falls within the terms of the Act, there is no room for concurrent proceedings.

[46] The final difficulty with the concurrent actions model is that it undercuts the purpose of the regime of exclusive arbitration which lies at the heart of all Canadian labour statutes. It is important that disputes be resolved quickly and economically, with a minimum of disruption to the parties and the economy. To permit concurrent court actions whenever it can be said that the cause of action stands independent of the collective agreement undermines this goal, as this Court noted in St. Anne Nackawic. More recently, this Court reaffirmed the policy considerations that drove the St. Anne Nackawic decision in Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 110 (SCC), [1990] 1 S.C.R. 1298, at p. 1326, per L'Heureux-Dubé J.

[49] While more attractive than the full concurrency model, the overlapping spheres model also presents difficulties. In so far as it is based on characterizing a cause of action which lies outside the arbitrator's power or expertise, it violates the injunction of the Act and St. Anne Nackawic that one must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute. It would also leave it open to innovative pleaders to evade the legislative prohibition on parallel court actions by raising new and imaginative causes of action, as remarked by La Forest J.A. in the Court of Appeal decision in St. Anne Nackawic, at pp. 694-95. This would undermine the legislative purposes underlying such provisions and the intention of the parties to the agreement. This approach, like the concurrency model, fails to meet the test of the statute, the jurisprudence and policy.

[52] In considering the dispute, the decision-maker must attempt to define its "essential character", to use the phrase of La Forest J.A. in Energy & Chemical Workers Union, Local 691 v. Irving Oil Ltd. (1983), 1983 3072 (NB CA), 148 D.L.R. (3d) 398 (N.B.C.A.). The fact that the parties are employer and employee may not be determinative. Similarly, the place of the conduct giving rise to the dispute may not be conclusive; matters arising from the collective agreement may occur off the workplace and conversely, not everything that happens on the workplace may arise from the collective agreement: Energy & Chemical Workers Union, supra, per La Forest J.A. Sometimes the time when the claim originated may be important, as in Wainwright v. Vancouver Shipyards Co. (1987), 1987 166 (BC CA), 38 D.L.R. (4th) 760 (B.C.C.A.), where it was held that the court had jurisdiction over contracts pre-dating the collective agreement. See also Johnston v. Dresser Industries Canada Ltd. (1990), 1990 6808 (ON CA), 75 O.R. (2d) 609 (C.A.). In the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it did not. Some cases, however, may be less than obvious. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement.

[53] Because the nature of the dispute and the ambit of the collective agreement will vary from case to case, it is impossible to categorize the classes of case that will fall within the exclusive jurisdiction of the arbitrator. However, a review of decisions over the past few years reveals the following claims among those over which the courts have been found to lack jurisdiction: wrongful dismissal; bad faith on the part of the union; conspiracy and constructive dismissal; and damage to reputation (Bartello v. Canada Post Corp. (1987), 1987 177 (ON SC), 46 D.L.R. (4th) 129 (Ont. H.C.); Bourne v. Otis Elevator Co. (1984), 45 O.R. (2d) 321 (H.C.); Butt v. United Steelworkers of America (1993), 1993 3352 (NL SC), 106 Nfld. & P.E.I.R. 181 (Nfld. T.D.); Forster v. Canadian Airlines International Ltd. (1993), 1993 1670 (BC SC), 3 C.C.E.L. (2d) 272 (B.C.S.C.); Bell Canada v. Foisy (1989), 1989 452 (QC CA), 26 C.C.E.L. 234 (Que. C.A.); Ne-Nsoko Ndungidi v. Centre Hospitalier Douglas, 1992 4104 (QC CS), [1993] R.J.Q. 536).

[54] This approach does not preclude all actions in the courts between employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts: Elliott v. De Havilland Aircraft Co. of Canada Ltd. (1989), 32 O.A.C. 250 (Div. Ct.), at p. 258, per Osler J.; Butt v. United Steelworkers of America, supra; Bourne v. Otis Elevator Co., supra, at p. 326. Additionally, the courts possess residual jurisdiction based on their special powers, as discussed by Estey J. in St. Anne Nackawic, supra.

[55] Against this approach, the appellant Weber argues that jurisdiction over torts and Charter claims should not be conferred on arbitrators because they lack expertise on the legal questions such claims raise. The answer to this concern is that arbitrators are subject to judicial review. Within the parameters of that review, their errors may be corrected by the courts. The procedural inconvenience of an occasional application for judicial review is outweighed by the advantages of having a single tribunal deciding all issues arising from the dispute in the first instance. This does not mean that the arbitrator will consider separate "cases" of tort, contract or Charter. Rather, in dealing with the dispute under the collective agreement and fashioning an appropriate remedy, the arbitrator will have regard to whether the breach of the collective agreement also constitutes a breach of a common law duty, or of the Charter.

[56] The appellant Weber also argues that arbitrators may lack the legal power to consider the issues before them. This concern is answered by the power and duty of arbitrators to apply the law of the land to the disputes before them. To this end, arbitrators may refer to both the common law and statutes: St. Anne Nackawic; McLeod v. Egan, 1974 12 (SCC), [1975] 1 S.C.R. 517. As Denning L.J. put it, "[t]here is not one law for arbitrators and another for the court, but one law for all": David Taylor & Son, Ltd. v. Barnett, [1953] 1 All E.R. 843 (C.A.), at p. 847. This also applies to the Charter: Douglas/Kwantlen Faculty Assn. v. Douglas College, 1990 63 (SCC), [1990] 3 S.C.R. 570, at p. 597.

[57] It might occur that a remedy is required which the arbitrator is not empowered to grant. In such a case, the courts of inherent jurisdiction in each province may take jurisdiction. This Court in St. Anne Nackawic confirmed that the New Brunswick Act did not oust the residual inherent jurisdiction of the superior courts to grant injunctions in labour matters (at p. 724). Similarly, the Court of Appeal of British Columbia in Moore v. British Columbia (1988), 1988 184 (BC CA), 50 D.L.R. (4th) 29, at p. 38, accepted that the court's residual jurisdiction to grant a declaration was not ousted by the British Columbia labour legislation, although it declined to exercise that jurisdiction on the ground that the powers of the arbitrator were sufficient to remedy the wrong and that deference was owed to the labour tribunal. What must be avoided, to use the language of Estey J. in St. Anne Nackawic (at p. 723), is a "real deprivation of ultimate remedy".

[58] 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 satisfies 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) v. Bowie (1993), 1993 8638 (ON SC), 110 D.L.R. (4th) 444 (Ont. Div. Ct.), per O'Brien J.

[67] I conclude that mandatory arbitration clauses such as s. 45(1) of the Ontario Labour Relations Act generally confer exclusive jurisdiction on labour tribunals to deal with all disputes between the parties arising from the collective agreement. The question in each case is whether the dispute, viewed with an eye to its essential character, arises from the collective agreement. This extends to Charter remedies, provided that the legislation empowers the arbitrator to hear the dispute and grant the remedies claimed. The exclusive jurisdiction of the arbitrator is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal. …

In favouring the “exclusive jurisdiction” model, the court in Weber instructed decision makers to look to the factual characterization of the dispute, rather than the legal characterization, in order to determine whether the ultimate legal issue is within the exclusive jurisdiction of an arbitrator. The decision-maker must consider the nature of the dispute and the ambit of the collective agreement. In Weber, the Supreme Court ultimately held that the labour arbitrator in that case had exclusive jurisdiction over various tort claims, including trespass, nuisance, deceit, and invasion of privacy. See also: Gaignard v. Canada (Attorney General) (2003), 2003 40299 (ON CA), 67 O.R. (3d) 611 (C.A.) at 615-17, where the court held that the considerations for assessing the essential character of a particular dispute include the facts giving rise to the dispute, the ambit of the collective agreement, and whether the arbitration process can furnish an effective remedy.

[63] In Haight-Smith v. Neden et al (2002) BCCA 132, at para 43, relying on Phillips v. Harrison (2000), 2000 MBCA 150, 196 D.L.R. (4th) 69 (Man. C.A.), the court suggested factors to consider when determining whether alleged defamatory statements are work related and thus fall within the scope of the collective agreement: 1) whether the comments concern the employee’s character, history, or capacity as an employee; 2) whether the comments were made by someone whose job it was to communicate a workplace problem; and 3) whether the comments were made to persons who would be expected to be informed of workplace problems.

[64] On many occasions, Courts in Ontario have found that they had no jurisdiction to consider defamation actions between unionized workers when the factual basis of the claim was determined to be covered by the terms of a collective agreement.

[65] In Giorno v. Pappas, 1999 1161 (ON CA), [1999] O.J. No. 168 (C.A.), Ms. Giorno brought an action as a result of a memo authored by Mr. Pappas. Ms. Giorno was an employee of the provincial Crown and therefore a member of the bargaining unit set out in a collective agreement between the Crown and the Ontario Public Service Employees Union. Mr. Pappas was a full-time member of the Ontario Rent Review Hearings Board. Ms. Giorno was seconded to the Board. They worked on the same team. Mr. Pappas wrote a memorandum to the Chair of the Board criticizing Ms. Giorno and indicating he was taking steps to have her removed from the team. Ms. Giorno filed a grievance which was settled. Ms. Giorno then issued a statement of claim seeking damages for defamation. The court held that the dispute was covered by the collective agreement and stated:

[20] What is important is that the arbitrator is empowered to remedy the wrong. If that is so, then where the essential character of the dispute is covered by the collective agreement, to require that it be arbitrated, not litigated in the courts, causes no "real deprivation of ultimate remedy". The individual is able to pursue an appropriate remedy through the specialized vehicle of arbitration. He or she is not left without a way to seek relief.

[21] Turning to the facts of this dispute, they are all workplace related. The October 5 memorandum was written and circulated in the workplace. It addressed a workplace problem, namely how Ms. Giorno did her work. Its author worked on the same team as Ms. Giorno. The recipients of the memorandum were all people who could have been expected to be informed of a problem in her working relationship with the respondent Pappas. Ms. Giorno's assertion in this dispute is that this memorandum caused her significant harm.

[22] The collective agreement places a broad obligation on the employer to provide a safe and healthy workplace. This obligation was seen by Ms. Giorno to be broad enough to support the relief requested in her grievance. It was seen by the parties as sufficient to sustain the relief agreed on in the settlement. Indeed, I see no reason why it could not have sustained a claim for damages at arbitration, the very relief claimed in the litigation.

[23] In short, I conclude that the essential character of the conduct complained of by the appellants is covered by the collective agreement. The dispute is therefore one that arises under the collective agreement and had to be resolved in the arbitration process. It cannot be resolved in the courts.

[24] Is this conclusion affected by the identity of the respondents? The appellants argue that relief is sought in the civil litigation against the respondent Pappas and the respondent Board, neither of whom are the employer under the collective agreement, the party from whom a remedy is normally sought at arbitration.

[25] I cannot agree that this makes a difference in this case. As to the respondent Board, Ms. Giorno correctly treated it as part of the employer for the purposes of the grievance process. Indeed, the settlement that was reached required certain steps to be taken by Board officers. The civil action against the Board must be seen as an action against an entity which is, for this purpose, part of the employer and subject to the collective agreement. Hence, the Weber principle is applicable to the civil action against this respondent.

[26] As to the respondent Pappas, while he is an employee of the respondent Crown, he had no managerial responsibility over Ms. Giorno. Nor was he an employee covered by the collective agreement. Despite this, given that this dispute arises under the collective agreement the principle in Weber applies. As Laskin J.A. said in Piko, supra at para. 13:

Where an employee has sued another employee for a workplace wrong, this court has held that bringing an action against a person who is not a party to the collective agreement will not give a court jurisdiction if the dispute, "in its essential character", still arises under the collective agreement.

[27] Laskin J.A. was referring to the endorsement of this court in Ruscetta v. Graham, 1998 2118 (ON CA), [1998] O.J. No. 1198 (C.A.), leave to appeal to the Supreme Court of Canada refused October 15, 1998, and Dwyer v. Canada Post, [1997] O.J. No. 1575 (C.A.).

[28] These decisions simply reflect the principle in Weber. Where, as here, the essential character of the dispute is covered by the collective agreement, the arbitration process allows the employee to seek an appropriate remedy. While the remedy at arbitration may be against the employer rather than the fellow employee, the remedy is nonetheless real.

[29] To preclude the employee from suing another employee for the workplace wrong in such circumstances does not deprive that employee of an ultimate remedy for that wrong. Rather, it prevents the undercutting of the dispute resolution process that is given exclusive statutory jurisdiction over disputes that arise under the collective agreement.

[66] In Sloan v. York Region District School Board, [2000] O.J. No. 2754 (C.A.), the dispute concerned teachers who alleged defamation and other causes of action against the Board of Education, and others, in relation to the termination of a teacher’s employment. The Ontario Court of Appeal concluded that the court had no jurisdiction to hear the claims as they arose under the collective agreement. The court stated:

[3] In our view, the matters complained of by the appellant are matters that are subject to the collective agreement. This court held in Bhaduria v. Toronto Board of Education, [1999] O.J. 582 that where the essential character of the claim for defamation pertains to termination from a teaching position, it arises under the collective agreement. That is the situation here. The claim for defamation is based on unfavourable performance reviews of the appellant, as a teacher, that led to his termination. Lamek J. was correct in concluding that the claim was governed by Bhaduria and a similar decision of this court in Giorno v. Pappas (1999), 1999 1161 (ON CA), 42 O.R. (3d) 626, as well as the general principles articulated by the Supreme Court of Canada in Weber v. Ontario Hydro (1995), 1995 108 (SCC), 125 D.L.R. (4th) 583. As those cases hold, where the essence of the claim arises from a dispute that is subject to the collective agreement, a party in the position of the appellant cannot escape the arbitration regime under the collective agreement by attaching to his claim a label such as "defamation".

[67] In McIntyre v. Connolly, 2008 12496 (ONSC), the Plaintiff was a teacher whose employment was terminated. He grieved the dismissal, which resulted in a confidential settlement requiring him to resign and execute a release from all claims related to his employment. The Plaintiff then brought various proceedings in various courts and tribunals. The Court stated at paragraph 14: “Any claims of defamation by a teacher relating to negative performance reviews or problems in the workplace are properly matters falling within the collective agreement” relying on Giorno and Sloan. The court found that it lacked jurisdiction to try the action.

[68] In De Montigny v. Roy et al. 2018 ONSC 858 (appeal dismissed at 2018 ONCA 884), the Plaintiff commenced an action for defamation in respect of statements made by her co-workers about her, to their common employer, during a workplace harassment investigation. After completing an investigation, the employer terminated the Plaintiff. The union filed a grievance on behalf of the Plaintiff for her dismissal. The union investigated the claims and ultimately decided not to pursue the grievance in relation to her dismissal to arbitration. The Plaintiff exercised her right to appeal the decision within the union. The union confirmed its decision not to proceed with the grievance. Copeland J. concluded that the court had no jurisdiction over the subject-matter of the action. The Court made the following comments:

[17] The plaintiff opposes the motion for essentially three reasons, which are interrelated. First, the plaintiff argues that the subject matter of the action is defamation, and that the dispute, in its essential character, does not arise from the interpretation, application, administration or alleged violation of the collective agreement. As part of this argument, the plaintiff argues that the harassment policies, which were cited by the employer as the reason for her dismissal, are not part of the collective agreement. Second, the plaintiff argues that a grievance arbitrator would not have had jurisdiction to award the relief that the plaintiff seeks in the action, in particular, damages for defamation. Third, the plaintiff argues that the court should consider in assessing the jurisdictional issue the fact that the union chose not to proceed with the plaintiff's grievance of her termination.

[24] In considering the essential character of the dispute in this case, I make the following observations about the subject matter of the plaintiff's defamation claim. The plaintiff brings the claim against her former co-workers. The substance of the defamation claim is statements made about the plaintiff by co-workers pursuant to their duty to report harassment under workplace policies. The subject matter of the allegedly false statements by the co-workers is alleged harassing statements by the plaintiff about another co-worker. The co-workers made the written statements to the employer at the request of the employer, for the employer's investigation of the harassment. The employer had a duty to investigate the harassment under the workplace policies. The plaintiff's employment was terminated, pursuant to the collective agreement and the "last chance" agreement, as a result of the plaintiff's harassing statements. The plaintiff availed herself of remedies available under the collective agreement for the termination.

The Court found that the harassment policies were incorporated into the collective agreement. The Court rejected the argument that the claim for defamation did not arise from the collective agreement and found that the Plaintiff misconstrued the argument in Weber, focusing on the legal cause of action versus the factual dispute. Relying on Giorno, the court found that it did not matter to the jurisdictional inquiry that the court action was against co-workers rather than the employer. The court also looked at the remedies available to the arbitrator and held:

[42] The plaintiff argues that this court should take jurisdiction because, according to the plaintiff, the collective agreement does not give an arbitrator the power to remedy a wrong in defamation. The plaintiff also argues that the collective agreement does not give the union the jurisdiction to grieve in relation to defamation, and that the union did not seek a remedy for defamation in the grievance that was filed.

[43] I reject this argument for two reasons. First, a review of the collective agreement shows that an arbitrator would have jurisdiction to grant a remedy in damages to the employee if the dismissal was found to be contrary to the collective agreement: see Article 15.09 of the collective agreement, which provides that an arbitrator may award damages not only to parties to the collective agreement (i.e., the employer and the union), but also to an employee. Second, Weber and its progeny are clear that an arbitrator's remedial powers need not be identical to the civil courts for it to be found that arbitration provides a sufficient remedy. What matters is the arbitrator is empowered to remedy the wrong: Weber at paragraph 57; Giorno v. Pappas, supra.

[44] Thus, had the claim proceeded to arbitration, the arbitrator would have had jurisdiction to grant a remedy if the co-workers' statements had been found to be false. Further, the grievance filed by the union seeking "full redress" as a remedy, engaged the full range of remedies under the collective agreement.

Finally, the court held that the fact that the union chose not to file a grievance did not give the court jurisdiction. In upholding the decision of the motion judge, the Court of Appeal at 2018 ONCA 884 at para 2 stated: “…the fact that the available remedies from the arbitrator are not identical to court-ordered remedies is not determinative. The issue is whether the arbitrator has the power to remedy the wrong….”

[69] In Ciulla v. The Toronto District Catholic School Board, 2021 ONSC 3110, the dispute involved the dissemination of allegedly defamatory tweets. The Plaintiff sought general and specific damages for negligence, defamation, loss of reputation, invasion of privacy, and breach of the contractual duty of good faith. There was also a claim for punitive damages. The Defendants were all teachers employed by the Board at the same school as the Plaintiff, except for one who had retired. When the Plaintiff discovered the tweets, he filed a harassment complaint under the employer policy. The collective agreement recognized the rights of employees to be free from harassment. The court held that the essential character of the dispute fell within the collective agreement. The court stated:

[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.

The Court also dealt with the power to provide an effective remedy and stated:

[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.

[70] Other cases which this court has considered include: Bhaduria v. Toronto Board of Education, 1999 4745 (ONCA); Morissette v. Canada (Attorney General), [2004] O.J. No. 2327 (ONCA) ; Ortiz v. Patrk, 1998 14743 (ONSC); Harley v. Campagna, [2000] O.J. No. 2201; Bujold v. Taylor, 2003 6322 (ONSC); Santos v. Crawford Roofing, 2015 ONSC 4201; DiCienzo v. McQuillan, 2008 ONCA 472; Ruscetta v. Graham, [1997] O.J. No. 2786, affirmed by ONCA in 1998 2118 (ON CA), [1998] O.J. No. 1198; Greenlaw v. Scott, 2020 ONSC 2028

[71] Labour arbitrators have repeatedly adjudicated issues of tort, in addition to awarding aggravated and punitive damages based on such conduct. For example:

Hamilton (City) v. ATU, Local 107, 2013 62226 (ON LA) – Arbitrator awarded $25,000 in damages for injury to dignity, feelings and self-respect

Calgary (City) v. CUPE, Local 37, 2018 53482 (AB GAA) – Arbitrator awarded $75,000 in general damages for harassment and discrimination which caused a decline in mental health resulting in an inability to work for three years.

Toronto Catholic District School Board v. OECTA, 2021 44852 (ON LA) – Arbitrator award included $25,000 for reputational damages and $30,000 for punitive damages.

[72] Having said this, however, this court is mindful that Weber made it clear that each case would have to be decided on its own facts. No class of cases should be automatically included or excluded from the jurisdiction of the court. The Court also maintains a residual discretion through its inherent jurisdiction. One must look at the relevant legislation, apply it to the dispute and consider it in its full factual context to determine whether or not an arbitrator possesses exclusive jurisdiction.

[73] The Plaintiff referred to the case of Seneca College v. OPSEU (Olivo) (2001), 2001 61981 (ON LA), 102 L.A.C. (4th) 298. Labour Arbitrators were considering entitlement to damages following an alleged unjust termination of the grieving party, a Seneca College professor and vice-president of the Union. The grieving party was terminated for allegedly sending anti-Semitic material over a prolonged period to the College’s Director of Employee Relations. The Board of Arbitration reinstated the professor with full compensation, as there was no direct evidence to establish that he was responsible for the offensive material. The Board denied the Union’s claim for aggravated and punitive damages as it determined it had no jurisdiction, given that the alleged tortious conduct, the intentional infliction of mental distress and defamation, did not arise out of the collective agreement. This decision states in part as follows:

[13] The collective agreement before us does not provide, expressly, that a board of arbitration may award aggravated or punitive damages. Nor does the collective agreement clothe a board of arbitration with the authority to entertain claims of alleged tortious misconduct, such as the torts of the intentional infliction of mental distress or defamation, which are alleged by the Union in the instant matter as a basis for the awarding of remedies of aggravated and punitive damages. This Board of Arbitration, therefore, does not gain the jurisdiction to award aggravated or punitive damages either through an express agreement of the parties that it may award such damages as part of its remedial powers or through its jurisdiction to provide a remedy for express breaches of the collective agreement. The instant collective agreement does not provide an express right to protection against either the intentional infliction of mental distress or defamation. We note that this is not to say that these matters are not actionable; it is to say that they are not expressly protected or actionable under the collective agreement…

[27] The Supreme Court in Weber did not purport to clothe boards of arbitration with the general jurisdiction to enforce the common law of torts. It made it clear that a board of arbitration's jurisdiction to entertain allegations of tortious wrongdoing must arise either expressly or inferentially from the collective agreement. Does the “conduct giving rise to the dispute between the parties [i.e., the Union’s allegation that the College engaged in the tortious conduct of defaming or intentionally inflicting mental distress on Mr. Olivo], [arise] either expressly or inferentially out of the collective agreement…”? (See p. 607 of Weber.)

[40] Not surprisingly, collective agreements do not regulate every aspect of life at the workplace. The collective agreement is a contract. Essentially, save for matters that may be imported into the collective agreement by legislation, (which is not relevant in the situation at hand), the collective agreement covers what the parties decide it will cover in order to regulate the relationship between the employer and the union and employees…

Arbitrator Picher noted that parties to collective agreements have traditionally chosen not to include common law tort claims in those agreements, recognizing that such claims often involve heated and emotional personal disputes, and that resolving such disputes in the arbitration context is not conducive to nurturing ongoing collective bargaining relationships. Arbitrator Picher found that this would put the efficiency and vitality of the labour relation system at risk. She also concluded that arbitrators making tort findings was problematic and that the court was better equipped to deal with these issues. Arbitrator Picher’s decision was found to be incorrect by the Divisional Court. However, the Arbitrator’s decision was ultimately affirmed by the Court of Appeal in 2006. The Court of Appeal found that the reasonableness standard, not correctness, applied to the decision: See OPSEU v. Seneca College of Applied Arts & Technology et al., 2006 14236 (ONCA)

[74] In the years following, the decision in Seneca has been called into question. In Greater Toronto Airports Authority v. PSAC, Local 004, 2011 ONSC 487 (Div Ct), the Applicant sought judicial review of an arbitration award which held that the GTAA did not have just cause to dismiss the grievor, a long-term employee, and awarded significant damages, including for past and future economic loss, mental distress, pain and suffering, and punitive damages, instead of reinstating employment. The Applicant argued that the award was unprecedented and should be quashed. The court commented as follows:

[52] The fact that the board in Seneca reached these conclusions is not determinative of the scope of the remedial authority in this case for three reasons. First, the Court of Appeal determined that the arbitration board’s decision was not patently unreasonable, not that it was correct. A standard of reasonableness contemplates that there can be more than one reasonable interpretation or result. Second, the result in Seneca turns, in part, on the language of the particular collective agreement and, in part, on the nature of the particular dispute before that arbitration board. Third, the arbitration award in Seneca was rendered at a time when the leading cases from the Supreme Court of Canada were Vorvis and Wallace. Since it was decided, the Supreme Court has clarified the law respecting damages for mental distress in other cases that I will discuss in the following section of these reasons.

Ultimately, the application for judicial review was granted in part. The court found that while it was reasonable to award damages for mental distress, the failure to separate the damages of pain and suffering from the damages for mental distress made the award unreasonable. The matter was remitted back to the arbitrator to determine quantum.

[75] The Plaintiff in this case has argued that, effectively, he is unable to obtain the remedies he seeks without turning to the courts – in other words that the process leaves a “remedial gap”.

[76] In Cherubini Metal Works Ltd. v. Nova Scotia (Attorney General), 2007 NSCA 38, the employer operated a metal fabrication plant. It experienced bitter labour relations with the union representing its workers and encountered many difficulties with the Province respecting occupational health and safety issues. The plant closed in 2002. The employer brought an action against the Province and the union in negligence, conspiracy, and interference with economic interests. The employer claimed that the union improperly filed false grievances and conspired against it, and encouraged the Province to pursue unmeritorious grievances. The union argued that the issues were within the exclusive jurisdiction of the collective agreement between the parties and the arbitration process contained in that agreement. The chambers judge held that the essential character of the dispute between the parties did not arise out of the collective agreement, and an arbitrator would not have had jurisdiction over all the parties the employer had sued and would not be able to provide the employer with an effective remedy. The Court of Appeal disagreed with the chambers judge. The court held as follows:

[49] … regardless of how an action is legally framed, and regardless of the identity of the named defendants and their relationship to the collective agreement, the courts are without jurisdiction over a dispute where, in its essential character, it arises from the interpretation, application, administration or alleged violation of a collective agreement. To take any other approach would be to focus on the legal characterization which a plaintiff may impose on the facts and would permit creative plaintiffs to undercut the statutory scheme of mandatory exclusive arbitration.

[68] Courts may in exceptional cases take jurisdiction even in cases in which a labour arbitrator otherwise has exclusive jurisdiction: the courts retain residual authority to provide remedies which the arbitrator is not empowered to grant. This extraordinary and discretionary power allows the courts to prevent a "real deprivation of ultimate remedy.": Weber at paras. 54-57 citing St. Anne at p. 723. As was said in Canadian Pacific Limited v. Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation, 1996 215 (SCC), [1996] 2 S.C.R. 495 at para. 5, courts have a residual, discretionary authority, even where there is a comprehensive code for settling labour disputes, to grant relief not available under it.

[69] This residual, discretionary power is not to be invoked simply because the rights and remedies in the grievance arbitration process do not mirror judicial remedies. The relevant consideration is not whether the scheme provides the same rights and remedies as would a court, but whether the court's failure to intervene would result in a "real deprivation of ultimate remedy.": Weber, at para. 57. In short, what is important is that the scheme provide an answer to the problem: Vaughan at para. 36; Phillips v. Harrison at para. 80.

[70] Consideration of this issue must take account of the Supreme Court's expansive view of arbitral authority. As the Court noted in Bisaillon v. Concordia University, 2006 SCC 19, [2006] 1 S.C.R. 666, "[g]rievance arbitrators have very broad powers, both explicit and implicit" whereas the exercise of residual court jurisdiction is "exceptional": see paras. 42 and 55.

[72] Thus, where a dispute otherwise falls within the exclusive jurisdiction of arbitrators, their remedial powers will be interpreted broadly and courts should intervene to provide additional remedies only in exceptional cases to prevent a real deprivation of an ultimate remedy.

[77] In Greenlaw v. Scott, 2020 ONSC 2028, the dispute related to allegations of sexual harassment and sexual assault in the workplace perpetrated by a principal upon a teacher. The Plaintiff alleged that the Board acted against her by arranging her transfer to another school resulting in a poisoned work environment. In this case, the court dismissed the action, holding that it had no jurisdiction over the subject matter of the claim. The court stated:

[44] This issue arises from the Weber and St. Anne decisions, which vest exclusive jurisdiction in a labour arbitrator for all matters arising out of a collective agreement "subject to the residual discretionary power of the courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal" (Weber, at para. 67).

[45] This remedial gap is relied upon by the Plaintiffs, who submit that the court can exercise its discretion to hear matters that would fall within the Collective Agreements because the arbitrator cannot hear the matter since (i) the ETFO decided in good faith not to pursue the grievance and (ii) L.G. accepted the ETFO's decision.

[46] The Defendants rely on the analysis in Weber and St. Anne, as well as the decisions in De Montigny (both SC and CA) to submit that (i) the remedial gap only confers jurisdiction on the courts if an arbitrator does not have the power to provide a remedy, and (ii) as such, the court does not have jurisdiction over disputes under a collective agreement if the union decides not to pursue a grievance (whether or not in good faith). The Defendants submit that in the present case, an arbitrator had the power to order damages and the other relief sought by L.G. (which the Plaintiffs do not contest), so no remedial gap arises.

[66] The Plaintiffs rely on the "remedial gap" passages in St. Anne and Weber set out at paragraphs 55 to 57 above to submit that there is a "real deprivation of ultimate remedy" and the arbitrator has no "power" to hear the issues raised in the Claim because of the ETFO's decision not to pursue the grievance. I do not agree that the law supports such a position.

[67] Adopting the Plaintiffs' submissions would permit a party to a collective agreement to obtain access to the courts based solely on the union's refusal to pursue a grievance (or on an employee's decision to accept the union's refusal to pursue a grievance). I find that such an approach would circumvent the legislative intent to have all workplace matters subject to the collective agreement to be heard by the arbitrator.

[68] The grievance procedure is the exclusive means to address workplace disputes. A decision by the union not to pursue the grievance is part of that process, not a "remedial gap" in powers.

[70] Similarly, the court has no jurisdiction to hear a matter under the collective agreement if the union decides not to bring the grievance because of its concern as to the merits of the grievance. Under the Plaintiffs' approach, an employee could bring a civil action for damages under the collective agreement if the union decides that the grievance has no merit, which is contrary to the exclusive grievance arbitration procedure established under the collective agreement as supported by Weber and St. Anne.

[71] The union's decision not to pursue a grievance is irrelevant to the court's jurisdiction to hear a civil action. Under Weber and St. Anne, the remedial gap is determined by whether an arbitrator is empowered to hear a matter under the collective agreement, not by whether a grievance is pursued.

[73] The employee can challenge any decision by the union not to pursue a grievance as a breach of the union's duty of fair representation. If the result of the process (either by employee acceptance of the decision or after an unsuccessful DFR challenge) is that the grievance is not brought forward, that is the process set out by the LRA and applicable collective bargaining statutes.

[74] If there is no breach of the union's duty of fair representation, and the union decides not to pursue the grievance, there is no unfairness to an employee who participates in the collective bargaining structure with exclusive jurisdiction granted to labour arbitrators.

[75] Further, the approach proposed by the Plaintiffs is contrary to settled law that has narrowly interpreted the "real deprivation of ultimate remedy" exception for court jurisdiction on collective agreement disputes.

The Court in Greenlaw v. Scott referred to various cases, including Giorno, De Montigny, and various others outlined above. The Courts have held that even if the damages a person would recover by way of arbitration could be less than the amount they would recover in an action, the arbitrator is still empowered to remedy the wrong and there is no remedial gap created sufficient to justify the court taking jurisdiction.

[78] In this case, the Plaintiff argued that many cases can be distinguished on the basis that, by the time the claims were commenced, the dispute resolution processes offered under the collective agreements had either concluded or the Plaintiff had not commenced a grievance process under the collective agreement at all. These courts, therefore, argued the Plaintiff, did not consider the efficiency and fairness of the respective dispute resolution processes, or the possibility that a flawed system could lead to an abuse of process and create failures of procedural and substantive justice, in that the procedures offered are inadequate or ineffective, thereby arguably depriving the complainant of his procedural and substantive rights. The Plaintiff argued that the law could not have intended that where the procedure is unfair, has stalled, or where the remedies are obscure or withheld, that even in those circumstances, the collective agreement retains exclusive jurisdiction over a tort claim and its accompanying remedies. According to the Plaintiff, this is especially so given that the policy reasons for having workplace disputes proceed through arbitration is to have these disputes resolved in a prompt, efficient and cost-efficient way, and to promote peace and harmony in the workplace. See: OPSEU v. Seneca College of Applied Arts & Technology et al. 2006 14236 (ONCA) at para 39.

[79] The Plaintiff submitted that the Collective Agreement does not have exclusive jurisdiction over the Plaintiff’s claim such that the court is completely ousted from adjudicating on it. The Plaintiff argued that:

a. Defamation, intentional interference with economic relations and intentional infliction of mental and emotional distress are separate, actionable claims from harassment;

b. The claim is not limited to his employment with the Board, and does not arise expressly or inferentially from the interpretation, application, administration or violation of the Collective Agreement;

c. The only express purpose of the Harassment Policy is to deal with harassment. To the extent that harassment is asserted in the Plaintiff’s claim, it is a minor and severable subset of his claims. The Harassment Policy does not deal expressly or inferentially with defamation, intentional interference with economic relations, or intentional infliction of mental or emotional distress.

d. There is no interpretation, application, administration or violation of the Collective Agreement that puts the Plaintiff’s claim under the Harassment Policy in this case. The Plaintiff claimed that the Defendant defamed him to the Board, OECTA, the school, colleagues, parents and students and, therefore, the community at large. He alleged that she destroyed his reputation, career, and earning potential. This has little or nothing to do with bargaining.

e. Even if the dispute is covered by the Collective Agreement, the Agreement does not provide remedies, adequate or at all, to the Plaintiff’s claim. The general, specific and declaratory relief sought by the Plaintiff does not pertain to, or is not available in, the employment context or under the Collective Agreement. This gap in the Collective Agreement and Harassment Policy leaves members without the ability to claim appropriate relief for their losses.

[80] Having fully considered all of the facts, circumstances, and legal principles, it is the view of this court that the essential character of the dispute between the parties, relating to the statements made by the Defendant and the Plaintiff’s dissatisfaction with the School Board’s investigation, arises from the interpretation, application, administration, or violation of the Collective Agreement between OECTA and the School Board. The Plaintiff’s legal recourse is, therefore, limited to the grievance arbitration process, and any challenges to the OECTA’s determinations is to the OLRB, a step the Plaintiff has not taken.

[81] This is a workplace dispute. The October 2017 report and March 2018 complaint were written and circulated in the workplace in accordance with workplace policy. These allegedly defamatory statements, made by the Defendant to the parties’ common employer, direct supervisor, and their local union president, all parties who would have been expected to be informed, related to the Plaintiff’s performance in the workplace, including his comments and conduct against his co-worker in the workplace, as well as his teaching performance. The Plaintiff, himself, filed a corresponding harassment complaint against the Defendant. An informal and then formal investigation by the principal and the Board was conducted. OECTA filed a grievance alleging the school board violated Article 1.04, challenging the justness of the Plaintiff’s surplus and transfer. There is a pending application to the HRTO. All of this supports the conclusion that the essential character of this dispute is workplace related and falls within the Collective Agreement.

[82] The Statement of Claim itself supports a conclusion that this is a workplace dispute in its essential character. The Plaintiff claims that the Defendant made a series of allegedly defamatory statements concerning his “behaviour, conduct, teaching performance and professionalism”. The Plaintiff further claims that the Defendant’s words “were calculated to disparage” him “in his office, profession, calling and trade, and to negatively impact his reputation as an education professional and OECTA representative”. He has brought this action to “claim damages for the consequences that have ensued”.

[83] The Plaintiff claimed that this has gone far beyond a workplace dispute and has affected his reputation in the community, far outside of the employment context. Even when taken at face value that the fallout from the workplace dispute goes well outside of the employment context, this does not change the essential character of the dispute. It is the view of this court that this would go to the severity of the action and the possible appropriate remedy.

[84] As for the remedy, the Plaintiff further submitted that the Board’s policies and procedures under the harassment policy are wholly or partially insufficient to address the Plaintiff’s allegations in the claim, and /or to respect the relief sought by the Plaintiff. The Plaintiff also submitted that the Board’s administration of the Policy and or the actions and omissions of the Board under the Procedure have been wholly insufficient, have deprived the Plaintiff of substantive and procedural justice, and have been unfair.

[85] The court has recognized the broad range of powers available to a labour arbitrator. In Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, the court stated:

[5] Labour arbitrators are not legally bound to apply equitable and common law principles -- including estoppel -- in the same manner as courts of law. Theirs is a different mission, informed by the particular context of labour relations.

[6] To assist them in the pursuit of that mission, arbitrators are given a broad mandate in adapting the legal principles they find relevant to the grievances of which they are seized. They must, of course, exercise that mandate reasonably, in a manner that is consistent with the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievance.

[44] Common law and equitable doctrines emanate from the courts. But it hardly follows that arbitrators lack either the legal authority or the expertise required to adapt and apply them in a manner more appropriate to the arbitration of disputes and grievances in a labour relations context.

[45] On the contrary, labour arbitrators are authorized by their broad statutory and contractual mandates -- and well equipped by their expertise -- to adapt the legal and equitable doctrines they find relevant within the contained sphere of arbitral creativity. To this end, they may properly develop doctrines and fashion remedies appropriate in their field, drawing inspiration from general legal principles, the objectives and purposes of the statutory scheme, the principles of labour relations, the nature of the collective bargaining process, and the factual matrix of the grievances of which they are seized.

[46] This flows from the broad grant of authority vested in labour arbitrators by collective agreements and by statutes such as the LRA, which governs here. Pursuant to s. 121 of the LRA, for example, arbitrators and arbitration boards must consider not only the collective agreement but also "the real substance of the matter in dispute between the parties". They are "not bound by a strict legal interpretation of the matter in dispute". And their awards "provide a final and conclusive settlement of the matter submitted to arbitration".

[47] The broad mandate of arbitrators flows as well from their distinctive role in fostering peace in industrial relations (Toronto (City) Board of Education v. O.S.S.T.F., District 15, 1997 378 (SCC), [1997] 1 S.C.R. 487 ("O.S.S.T.F., District 15"), at para. 36; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, 2003 SCC 42, [2003] 2 S.C.R. 157, at para. 17).

[49] Labour arbitrators are uniquely placed to respond to the exigencies of the employer-employee relationship. But they require the flexibility to craft appropriate remedial doctrines when the need arises: Rigidity in the dispute resolution process risks not only the disintegration of the relationship, but also industrial discord.

[86] Only in exceptional cases will a court accept jurisdiction to prevent a real deprivation of an ultimate remedy. The breadth of an arbitrator’s power to award certain kinds or categories of damages does not determine whether a court has jurisdiction.

[87] It would appear to this court that the real complaint by the Plaintiff in this case is focused on the conclusion that has been reached. A disagreement with a decided approach or conclusion reached does not create a remedial gap. What is important is that the arbitrator is empowered to remedy the wrong, not the course of action the arbitrator has decided to take in any particular case. A decision not to pursue a grievance is irrelevant to the court's jurisdiction to hear a civil action. The Plaintiff claimed that he is without recourse which is not correct. If OECTA has determined not to proceed to arbitration, pursuant to section 74 of the LRA, the Plaintiff can pursue a “duty of fair representation” complaint against OECTA to the OLRB. If successful, the OLRB could order OECTA to initiate a grievance on the Plaintiff’s behalf.

[88] Alternatively, the Plaintiff submitted that this court has the ability to stay this motion, and in fact stay the action. There is no question that this court has the authority to grant such relief pursuant to Rule 37.13(1) and section 106 of the Courts of Justice Act. This court also has inherent jurisdiction to order a stay and has broad discretion to determine when a stay is appropriate.

[89] The Plaintiff suggested that a stay would be appropriate until after the investigation has concluded and it becomes clear what steps are taken by the Board and the Union. The Plaintiff suggested that an arbitrator may ultimately decide whether it has jurisdiction to make findings of tortious conduct and, therefore, it would be premature for the court to dismiss the Plaintiff’s claim before an arbitrator has even had the opportunity to evaluate the complaints and determined its jurisdiction to award the relief sought. The Plaintiff stated that, after four years of waiting for justice pursuant to the Harassment policy, there has been no apparent conclusion to the complaints brought by either party. Therefore, the Plaintiff requests that a stay pending the results, conclusions, findings, direction or other resolution of the Harassment Complaints, and/ or the commencement of a grievance with respect to the Board’s failure or unwillingness to deliver same, is just and necessary.

[90] It is the view of this court that the Board and the Union have taken all of the steps they are going to take in this matter with respect to the two complaints. The third-party investigation concluded more than a year ago and there has been no follow up action taken. This would suggest that no follow up action will be taken. In fact, in oral submissions, both parties agreed with this conclusion. Therefore, there would seem to be nothing to wait for. In the face of this, the Plaintiff must decide if he wishes to take further action as previously indicated.

[91] Alternatively, the Plaintiff suggested that Rule 26 sets out circumstances under which a pleading may be amended in an action, and that this could also be an appropriate result on this motion, allowing the Plaintiff to amend their pleadings to particularize their claims for defamation, intentional interference with economic relations, and intentional infliction of mental and emotional distress. Further, Rule 5 provides for adding parties who are necessary to allow the court to adjudicate effectively and completely on the issues in the proceeding, such as adding the Union, OETCA, as a party.

[92] The pleadings in this case are perfectly clear to this court. More particularization of the pleadings will not change the essential character of the claims. In the statement of claim, the Plaintiff stated that he had “pleaded all of the particulars available to him, with the exercise of reasonable diligence”. (See paragraph 49 of the Statement of Claim)

[93] It would be completely improper for this court to allow the Plaintiff to add OECTA as a party. OECTA has not been served with this motion and did not participate in this hearing. Even though they may be fully aware of these proceedings and participating indirectly, this is not the same as being given notice of an attempt to add them formally. This litigation commenced in August 2018, more than three and a half years ago. The two-year statute of limitations has long since expired. Further, requiring OECTA to grieve the Board’s investigation of the Harassment Complaints would be a serious and unwarranted interference by this court.

[94] This court is satisfied that it is without jurisdiction in this matter. Therefore, the motion is granted, the Statement of Claim is struck, without leave to amend, and the action is dismissed for want to jurisdiction.

[95] If the parties are unable to agree as to costs of this motion, the court will accept written submissions on costs, which shall be no more than five pages in length, excluding supporting documentation, and which shall be provided to the court office electronically, and to Bev.Taylor@ontario.ca, no later than 4:30 p.m. on April 29, 2022.

Justice V. Christie

Date: April 19, 2022