COURT FILE NO.: CV-21-00664327-0000 DATE: 20220428
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
PHONG LAM Plaintiff
- and –
KEN NEUMANN and LAURA CHEHADI Defendants
Counsel: Charles Sinclair and Geetha Philipupillai for the Defendant Ken Neumann Kim Nusbaum for the Defendant Laura Chehadi Jaja
HEARD: April 27, 2022
PERELL, J.
REASONS FOR DECISION
A. Introduction and Overview
[1] In this action, the Plaintiff Phong Lam sues the Defendant Ken Neumann for $15 million. Mr. Lam is or was a member of USW Local 5338, a local union of the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (“USW”), an international trade union. Mr. Neumann is the recently retired National Director for Canada of the USW. Mr. Lam’s claim for damages arises from the alleged failures of USW Local 5338 in representing Mr. Lam in his grievances with his former employer Cleveland Range Ltd.
[2] Mr. Lam is a former unionized employee of Cleveland Range Ltd., a manufacturer of steam cooking equipment with a factory in Concord, Ontario. In this action, Mr. Lam also sues Laura Chehadi, whose proper name is Laura Chehadi Jaja for $15 million. Ms. Chehadi Jaja is an employee of Cleveland Range holding the position of Human Resources Business Partner.
[3] Mr. Neumann brings a motion to have Mr. Lam’s action dismissed on three grounds, namely:
a. this court does not have subject matter jurisdiction over the claim (rule 21.01 (3)(a)) of the Rules of Civil Procedure;
b. he has not pleaded a reasonable cause of action (rule 21.01 (1)(b)); and
c. his claim is frivolous, vexatious and an abuse of process (rule 21.01 (3)(d)).
[4] Ms. Chehadi Jaja brings a motion to have Mr. Lam’s action dismissed on four grounds, namely:
a. this court does not have subject matter jurisdiction over the claim (rule 21.01 (3)(a)) of the Rules of Civil Procedure;
b. he has not pleaded a reasonable cause of action (rule 21.01 (1)(b));
c. his claim is frivolous, vexatious and an abuse of process (rule 21.01 (3)(d));
d. another proceeding is pending in Ontario between the same parties in respect of the same subject matter (rule 21.01 (3)(c)).
[5] For the reasons that follow, I strike Mr. Lam’s Statement of Claim without leave to amend, and I dismiss his action.
B. Procedural Background
[6] On June 21, 2021, Mr. Lam commenced this action against Mr. Neumann and Ms. Chehadi.
[7] On November 25, 2021, Mr. Neumann brought his motion to have Mr. Lam’s action dismissed. In support of his motion, Mr. Neumann relied on:
a. the Statement of Claim;
b. the Collective Agreement between USW Local 5338 and Cleveland Range Ltd., referred to and incorporated by reference in the Statement of Claim;
c. Mr. Lam’s 2019 Application to the Human Rights Tribunal of Ontario, referred to and incorporated by reference in the Statement of Claim;
d. USW Local 5338’s response to Mr. Lam’s human rights application, referred to and incorporated by reference in the Statement of Claim; and
e. Mr. Lam’s Suspension and Layoff grievances under the Collective Agreement, referred to and incorporated by reference in the Statement of Claim.
[8] On November 25, 2021, Ms. Chehadi Jaja brought her motion to have Mr. Lam’s action dismissed. In support of her motion, Ms. Chehadi Jaja relied on:
a. the Statement of Claim;
b. the Collective Agreement between USW Local 5338 and Cleveland Range Ltd., referred to and incorporated by reference in the Statement of Claim;
c. Mr. Lam’s 2019 Application to the Human Rights Tribunal of Ontario, referred to and incorporated by reference in the Statement of Claim;
d. USW Local 5338’s response to Mr. Lam’s human rights application, referred to and incorporated by reference in the Statement of Claim;
e. the affidavit of Tony Cariati dated November 17, 2021. Mr. Cariati is the Director of Operations at Cleveland Range Ltd.; and
f. the affidavit of Erin Lane dated April 13, 2022. Ms. Lee is a law clerk at Mathews Dinsdale & Clark LLP, which is the lawyer of record for Ms. Chehadi Jaja.
[9] There were no cross-examinations.
[10] Mr. Lam did not proffer any evidence in response to the motions.
[11] On September 7, 2021, there was an attendance in Civil Practice Court to schedule the Defendants’ motions. Mr. Lam did not attend. Justice Ramsay adjourned the attendance to September 29, 2021.
[12] On September 29, 2021, there was another attendance in Civil Practice Court. Mr. Lam did not attend. Justice Dunphy directed that the Defendants arrange a case conference via Zoom, which was scheduled for November 1, 2021.
[13] On November 1, 2021, there was a case conference on Zoom. Mr. Lam did not attend. Justice C. Brown set a timetable for the motions.
[14] On November 29, 2021, Mr. Lam sent an email to the Superior Court, the Attorney General, and the Defendants’ counsel alleging that Justices Ramsay’s, Dunphy’s, and Brown’s endorsements were fabricated documents.
[15] On December 16, 2021, Mr. Lam sent an email to the Superior Court, the Attorney General and the Defendants’ counsel alleging that Justices Ramsay’s, Dunphy’s, and Brown’s endorsements were forgeries.
[16] On December 20, 2021, Mr. Lam sent a similar email message to his of December 16, 2021 adding a complaint that the Defendants had not been noted in default for their failure to deliver a Statement of Defence.
[17] On January 6, 2022, January 11, 2022, January 19, 2022, February 21, 2022, and March 14, 2022 there was an exchange of correspondence between Mr. Lam and the Defendants and their lawyers and sometimes others including the Attorney General, court staff, and the Law Society of Ontario.
[18] Mr. Lam did not appear at the return of the motion on April 27, 2022.
[19] At the hearing, I granted both motions with reasons to follow. These are those reasons.
C. Facts
[20] USW Local 5338 is the exclusive bargaining agent for the unionized employees at Cleveland Range Ltd. There is a collective agreement between the union and Cleveland Range Ltd. Pursuant to s. 48 of the Labour Relations Act, 1995 and pursuant to the collective agreement, disputes are to be resolved by final and binding arbitration.
[21] On April 17, 2018, Cleveland Range Ltd. suspended Mr. Lam for one day.
[22] USW Local 5338 filed a grievance. Cleveland Range denied the grievance. After the employer’s denial, USW Local 5338 did not proceed to arbitration because it assessed that the grievance was unlikely to succeed.
[23] On August 17, 2018, Cleveland Range Ltd. temporarily laid off Mr. Lam from his employment as a CNC Lathe/Milling Programmer Operator. Mr. Lam expressly declined to exercise his bumping rights to assume the position of CNC Lathe/Milling Operator.
[24] On November 13, 2018, Cleveland Range Ltd. informed Mr. Lam that his temporary lay-off would become permanent on November 16, 2018 but he could elect to retain his recall rights until February 17, 2020 or give up his recall rights and receive $42,331.76 pursuant to the Employment Standards Act, 2000.
[25] Mr. Lam asked USW Local 5338 to file a grievance regarding the layoff. Although the union’s representative (not Mr. Neumann) advised Mr. Lam that there was no proper grievance, on January 8, 2019, USW Local 5338 filed a grievance alleging that Mr. Lam had been improperly laid off.
[26] On February 20, 2019, while the grievance was outstanding, Cleveland Range offered Mr. Lam the position of General Machinist A. Mr. Lam did not respond to the offer.
[27] On April 17, 2019, Cleveland Range Ltd. recalled Mr. Lam to work. However, he did not return to work.
[28] On April 24, 2019, Cleveland Range Ltd. offered Mr. Lam the position of CNC Lathe/Milling/Programmer Operator. Mr. Lam again did not respond to the offer.
[29] On May 28, 2019, USW Local 5338 informed Mr. Lam that his layoff and the options offered by the Employer following his layoff were in compliance with the Collective Agreement.
[30] In June 2019, Mr. Lam commenced an application before the Human Rights Tribunal of Ontario against Cleveland Range Ltd., two employees of Cleveland Range, and USW Local 5338 (HRTO 2019-37570-I). He alleged human rights violations, wrongful suspension, retaliation, wrongful termination, violations of the Canadian Charter of Rights and Freedoms, violations of the Canada Labour Code, and violations of the Ontario Occupational Health and Safety Act.
[31] Mr. Lam’s recall rights expired following his permanent layoff, and on February 20, 2020, Cleveland Range Ltd. paid him his entitlements under the Employment Standards Act.
[32] Ms. Chehadi personally is not Mr. Lam’s “employer”. Ms. Chehadi Jaja, as Human Resources Business Partner, did not make the decision to place Mr. Lam on layoff, which decision was made by the management team of Cleveland Range Ltd.
[33] In November 2020, in the Human Rights proceeding, Mr. Lam filed a Request for Order to add four more respondents including Ms. Chehadi Jaja and Mr. Neumann.
[34] On June 21, 2021, Mr. Lam commenced this action against Mr. Neumann and Ms. Chehadi. Mr. Lam claims damages of $15 million against each Defendant pursuant to s. 24 (1) of the Charter. He also claims that Mr. Neumann violated the Criminal Code including “violating criminal justice” and violating sections 380.1 (1), 423, 425, and 425.1 of the Code. He alleges breaches of sections 70 and 74 of the Labour Relations Act, 1995.
D. Court’s Jurisdiction
[35] Mr. Neumann’s and Ms. Chehadi Jaja’s motions are brought pursuant to Rule 21 of the Rules of Civil Procedure, which states:
RULE 21 DETERMINATION OF AN ISSUE BEFORE TRIAL
Where Available
To Any Party on a Question of Law
21.01 (1) A party may move before a judge,
(a) […]
(b) to strike out a pleading on the ground that it discloses no reasonable cause of action or defence,
and the judge may make an order or grant judgment accordingly.
(2) […]
To Defendant
(3) A defendant may move before a judge to have an action stayed or dismissed on the ground that,
Jurisdiction
(a) the court has no jurisdiction over the subject matter of the action;
Another Proceeding Pending
(c) another proceeding is pending in Ontario or another jurisdiction between the same parties in respect of the same subject matter; or
Action Frivolous, Vexatious or Abuse of Process
(d) the action is frivolous or vexatious or is otherwise an abuse of the process of the court,
and the judge may make an order or grant judgment accordingly.
E. The Jurisdiction Argument
[36] Mr. Neumann and Ms. Chehadi Jaja respectively submit that this court does not have jurisdiction over Mr. Lam’s claim and therefore his action against them should be dismissed. I agree with this submission.
[37] Rule 21.01(3)(a) provides that a Defendant may move to have an action dismissed on the grounds that the Court has no jurisdiction over the subject matter of the action.
[38] Section 48 of the Labour Relations Act, 1995, confers exclusive jurisdiction on arbitrators to deal with all disputes or differences arising either expressly or inferentially from the collective agreement. It is plain and obvious that the Plaintiff in this case is seeking damages relating to the manner in which his employment was terminated. This Court does not have the jurisdiction to award such damages for a unionized employee.
[39] A Plaintiff will have no cause of action in a civil proceeding where the subject matter is governed by terms of a collective agreement to which the Plaintiff is bound and exclusive jurisdiction is conferred on the labour tribunals established by the collective agreement and by the Act. In Gendron v. Supply and Services Union, [1990] 1 S.C.R. 1298, the Supreme Court of Canada held that s. 74 of the Labour Relations Act, 1995 prohibits a civil action arising from, or related to, a trade union’s duty of fair representation.
[40] In response to the human rights allegations contained in the Plaintiff’s claim, the Supreme Court of Canada has recently confirmed that labour arbitrators have exclusive jurisdiction over human rights allegations brought by unionized employees when the dispute arises from a collective agreement. Northern Regional Health Authority v. Horrocks, 2021 SCC 42.
[41] It is the case that in the immediate case that this court does not have jurisdiction over Mr. Lam’s claims. I, therefore, dismiss his claims on this ground.
F. The Another Proceeding Argument
[42] Rule 21.01 (3) (c) of the Rules of Civil Procedure empowers the Court to dismiss a claim on the basis that another proceeding is pending in Ontario between the same parties in respect of the same subject matter. In determining whether an action should be dismissed under this Rule, the court must assess and balance the potential prejudice caused to a defendant by allowing the action to continue with the potential injustice caused to the plaintiff in dismissing the action. Crook v. Adler, 2021 ONSC 7719.
[43] In the immediate case, Mr. Lam’s claims are pending before the Human Rights Tribunal of Ontario.
[44] In the immediate case, there is little to no potential injustice to Mr. Lam in dismissing his action against Ms. Chehadi and Mr. Neumann because his claim against them is pending before the Human Rights Tribunal of Ontario and the allegations made in that proceeding mirror those made in the Superior Court action and are based on the identical factual matrix.
[45] Ms. Chehadi Jaja and Mr. Neumann would be prejudiced by having to defend both the HRTO Application and the current Action by having to incur the significant time, stress, and legal costs necessary to simultaneously defend two identical proceedings.
[46] Further, the dismissal of this action will not impact Mr. Lam’s rights, if any, to bring a grievance arbitration before the labour board (the proper forum for the issues raised in his claim). The balance clearly rests in favour of dismissing Mr. Lam’s duplicative claim before this Court.
[47] I, therefore, dismiss Mr. Lam’s action pursuant to rule 21.01 (3) (c).
G. The Cause of Action Argument
[48] Rule 21.01 (1)(b) empowers the Court to strike out a pleading and dismiss an action on the ground that it discloses no reasonable cause of action. The test for striking out a pleading on this basis is whether it is “plain and obvious” that the claim discloses no reasonable cause of action. Knight v. Imperial Tobacco Canada Ltd., 2011 SCC 42.
[49] It the immediate case, it plain and obvious that Mr. Lam has no reasonable cause of action as against Mr. Neumann and Ms. Chehadi Jaja. Visualize:
a. In so far as Mr. Lam relies on the Charter, he has no claim against either Defendant who are private not government actors. The Charter does not apply to actors in the private sector, unless the actor is performing some specific government function or acting as a government agent, and it is not sufficient that the actor is carrying out some purpose that is regulated and for the public good. McKitty (Litigation guardian of) v. Hayani, 2019 ONCA 805 at para. 49; R. v. Buhay, 2003 SCC 30 at para. 25; Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624 at para. 43; McKinney v. University of Guelph, [1990] 3 S.C.R. 229 at p. 269.
b. In so far as Mr. Lam relies on contraventions of the Criminal Code, that is a matter for the criminal courts not the civil courts. Admassu v. John, [2009] O.J. No. 3256 at para. 33.
c. In so far as Mr. Lam sues Ms. Chehadi Jaja for his alleged wrongful termination, his action is misdirected and untenable. An employee acting within the scope of his or her employment is not personally liable for actions taken within their employment capacity. Barber v. Goerz, 2021 ONSC 3698 at para 11; Kraik v. Ungar, 2020 ONSC 722 at paras. 18-19; Lobo v. Carleton University, 2012 ONCA 498 at para. 6; Gulfview Contracting Ltd. v. Liquid Rubber Engineered Coatings Ltd., 2011 ONSC 7103 at paras. 8-9.
[50] In this case, it is patently obvious that the Statement of Claim discloses no reasonable cause of action against Mr. Neumann and Ms. Chehadi Jaja and that no purpose would be served by granting Mr. Lam leave to amend his pleading. Once again, it follows that Mr. Lam’s action should be dismissed.
H. The Frivolous and Vexatious Action Argument
[51] Having dismissed Mr. Lam’s claims on the grounds that the court does not have jurisdiction, there is another proceeding pending, and for a failure to show a reasonable cause of action, whether Mr. Lam’s claim is frivolous and vexatious is a moot issue.
I. Conclusion
[52] For the above reasons, Mr. Lam’s action is dismissed.
[53] The Defendants did not seek costs. The Defendants may take out the dismissal order without Mr. Lam’s approval as to form and content.