Court File and Parties

Court File No.: CV-23-103 Date: 2024/11/18 Ontario Superior Court of Justice

Between:

NATALIE SILLIPHANT, Plaintiff – and – EASTERN ONTARIO REGIONAL LABORATORIES, Defendant

Counsel: Self-represented plaintiff Sam Campbell, for the defendant

Heard: August 15, 2024 (By videoconference)

Ruling on Motion

Corthorn J.

Introduction

[1] The plaintiff, Nathalie Silliphant, is a former unionized employee of Eastern Ontario Regional Laboratories Association (“the Association”). Ms. Silliphant’s employment with the Association was governed by a collective agreement between the Association and OPSEU [^1] Local 475 (the “Collective Agreement” and “the Union”, respectively).

[2] In August 2019, the Association terminated Ms. Silliphant’s employment, without cause. Ms. Silliphant turned to the Union. In September 2019, the Union filed a grievance on Ms. Silliphant’s behalf (“the Grievance”). The Union subsequently referred the Grievance for arbitration. The Grievance was withdrawn in August 2022, before it proceeded to an arbitration hearing.

[3] In September 2022, Ms. Silliphant personally filed an “Application – Employment” with the Human Rights Tribunal of Ontario ( “the Application” and “HRTO”, respectively). In her application, Ms. Silliphant alleged that the Association discriminated against her on the basis of disability. The HRTO administratively dismissed the Application in March 2023.

[4] In October 2023, Ms. Silliphant commenced this action. In her statement of claim, Ms. Silliphant,

• alleges that she was “wrongfully terminated” from her employment with the Association;
• alleges that the Union’s withdrawal of her grievance is contrary to the terms of the Collective Agreement; and
• alleges that the termination of her employment and the conduct, post-termination, of representatives of the Association constitute discrimination, on the basis of disability, contrary to the provisions of the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”).

[5] To date, the Association has not delivered a statement of defence to Ms. Silliphant’s claims. The Association chose, instead, to bring this motion for an order dismissing the action, without Ms. Silliphant being granted leave to amend her pleading. The Association makes three primary submissions:

• The court does not have jurisdiction over Ms. Silliphant’s claim; that jurisdiction was removed by the Collective Agreement. The adjudication of the dispute is exclusively within the jurisdiction of an arbitrator.
• The action lacks legal basis or legal merit, and is therefore frivolous.
• The court should not grant leave to Ms. Silliphant to amend her pleading. There is no possibility that amendments will cure the deficiencies in the statement of claim.

[6] In response, Ms. Silliphant delivered a notice of motion and an affidavit of documents. In her notice of motion, Ms. Silliphant asks the court to dismiss the Association’s motion, make an order prohibiting the Association from bringing further interim motions, and make an order “for discovery”.

[7] For the reasons which follow, the motion is granted. The action is dismissed, without leave to amend. Ms. Silliphant’s motion is rendered moot and need not be decided.

[8] Before addressing the substantive issues on the motion, I will briefly review the evidence upon which each of the parties relies.

The Evidence

[9] The Association relies on an affidavit from Angela Coombs, sworn on May 6, 2024 (“the Coombs affidavit”). The exhibits to the Coombs affidavit include the following documents:

• the Collective Agreement;
• the August 2019 notice of termination of employment;
• the Grievance;
• a January 2022 Interim Award made by arbitrator, Leslie Reaume, regarding the production of documents by the Union to the Association;
• an August 23, 2022 letter from the Union’s Supervisor, Arbitration Unit, addressed to Ms. Silliphant and confirming that her grievance file was closed; and
• Ms. Silliphant’s August 30, 2022 Application to the HRTO.

[10] In the substantive portion of her affidavit, Ms. Coombs reviews Ms. Silliphant’s employment history with the Association, the termination of Ms. Silliphant’s employment with the Association, and the post-termination proceedings. Ms. Silliphant did not cross-examine Ms. Coombs on her affidavit.

[11] As noted above, the evidentiary portion of Ms. Silliphant’s responding record is in Form 30A, an affidavit of documents. At the outset of Ms. Silliphant’s submissions, the Association consented to the court granting Ms. Silliphant leave to rely on the affidavit of documents as her responding affidavit for the purpose of the motions before the court. In this ruling, I refer to the affidavit of documents, sworn by Ms. Silliphant on May 6, 2024, as “the Silliphant affidavit”.

[12] The Silliphant affidavit consists of eight substantive paragraphs and a list of four types of documents upon which Ms. Silliphant intends to rely. The eight substantive paragraphs in the Silliphant affidavit include argument.

[13] In none of the substantive paragraphs does Ms. Silliphant take issue specifically with or contradict the evidence of Ms. Coombs. Specifically, Ms. Silliphant does not take issue with the chronology provided by Ms. Coombs as to the steps taken by Ms. Silliphant following the termination of her employment.

[14] In summary, Ms. Coombs’ evidence is both unchallenged and uncontradicted.

The Issues

[15] The following issues are determined in this ruling:

1. Does this court have jurisdiction over the matters raised in the statement of claim?
2. Is the action frivolous or vexatious?
3. Is Ms. Silliphant entitled to leave to amend her pleading?

Issue No. 1 – Does this court have jurisdiction over the matters raised in the statement of claim?

a) The Evidence

[16] It is undisputed that Ms. Silliphant was a unionized employee and that her employment with the Association was governed by the Collective Agreement. Article 9 of the Collective Agreement sets out the mandatory dispute resolution procedures, including grievance and arbitration.

[17] As of the date of the termination of her employment, Ms. Silliphant was well past completion of a probationary period with the Association. For non-probationary employees, Article 9.07 stipulates that a claim of unjust discharge shall be treated as a grievance and submitted through the Union. Where a grievance cannot be resolved between the Union and the Association, the matter may proceed to arbitration.

[18] Both Ms. Silliphant and a Union representative signed the Grievance. The subject matter of the Grievance is described as follows: “The Collective agreement has been violated under but not limited to Article 3 Management Rights, Human Right Code, and any/all applicable language in that I was terminated for missing work for a chronic illness.”

[19] The Grievance was not resolved at the initial stage. On September 19, 2019, the Union referred the Grievance for arbitration. The dispute was scheduled to proceed to arbitration on March 3, 2022, before Arbitrator Reaume.

[20] A preliminary issue arose within the arbitration proceeding. That issue relates to documents to be produced by both parties. Arbitrator Reaume heard submissions on January 11, 2022. Three individuals appeared on behalf of the Union; the Association was represented by counsel. The Interim Award issued by Arbitrator Reaume does not list Ms. Silliphant as having attended in person on that date.

[21] Arbitrator Reaume begins the Interim Award by stating, “I was appointed by the parties as sole Arbitrator to hear and determine a grievance arising from the termination of the Griever’s employment.” The Association, the Union, and Ms. Silliphant are listed in the title of proceeding as the parties to the arbitration.

[22] Arbitrator Reaume describes the Interim Award as addressing “the Employer’s request for medical records.” The records requested by the Association include the records of Coughlin & Associates (an employee benefits service provider), hospital records, and medical records for Ms. Silliphant.

[23] The arbitrator concludes that the documents requested by the Association are “arguably relevant to the issue in dispute and the positions taken by the parties on the merits of the grievance.” The arbitrator directs the Union to obtain Ms. Silliphant’s consent to the release of records to the Union’s counsel and to the Association’s counsel. The arbitrator provides directions as to how the records are to be produced by the Union’s counsel and the Association’s counsel.

[24] Last, the arbitrator directs Ms. Silliphant to “provide the necessary authorization to ensure that the records are received by the Employer at least 28 days prior to the hearing on March 3, 2022, namely February 3, 2022, or such other time as the parties agree.”

[25] There is no evidence to support a finding that Ms. Silliphant complied with the arbitrator’s direction regarding the provision of authorization for the release of the records. The evidence as to what transpired following the release of the Interim Award is that (a) the records were never produced, (b) the arbitration scheduled for March 3, 2022 did not proceed, and (c) on August 23, 2022, the Union advised the Association, in writing, that the Union had closed its grievance file.

[26] At paragraph 7 of her affidavit, Ms. Silliphant says that her grievance “was dropped without signature and without an arbitration hearing as well as the entire arbitration process was not followed with mediator acting as an arbitrator and the plaintiff being told she would be on trial as a witness and not as a relevant party.”

[27] There is no evidence as to why the Union closed the grievance file.

b) The Law

[28] The Association relies on r. 21.01(3)(a) of the Rules of Civil Procedure, R.R.O 1990, Reg. 194. Pursuant to r. 21.01(3)(a), “[a] defendant may move before a judge to have an action stayed or dismissed on the ground that […] the court has no jurisdiction over the subject matter of the action”.

[29] The court must determine the essential character of the dispute that was the subject of the grievance and arbitration process. If the essential character of the dispute arises either explicitly or implicitly from the interpretation, application, administration or violation of the Collective Agreement, the dispute is within the sole jurisdiction of the arbitrator to decide: see Allen v. Alberta, 2003 SCC 13, [2003] 1 S.C.R. 128, at para. 15, citing Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, at para. 25; Northern Regional Health Authority v. Horrocks, 2021 SCC 42, 462 D.L.R. (4th) 585, at paras. 50-51; and Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at paras. 50, 58.

[30] Article 3 of the Collective Agreement confers management rights upon the Association. The Association has the exclusive right to carry out the direction of the work force including, but not limited to, discharging, transferring, and laying off employees.

[31] In determining whether the essential character of a particular dispute falls within or without a collective agreement, the court must take a “broad and liberal approach”: Blake v. University Health Network, 2021 ONSC 7139, at para. 10. Succinctly stated, “there is simply no general right to interfere with the decision of an employer to terminate the employment of an employee with or without cause”: Blake, at para. 12.

[32] The exclusive jurisdiction of arbitrators in a dispute arising from the terms of a collective agreement is prescribed by s. 48(1) of the Ontario Labour Relations Act, 1995, S.O. 1995, c. 1, Schedule A (“LRA”), which provides: 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.

[33] I next apply these legal principles to the dispute between Ms. Silliphant and the Association.

c) Analysis

i) The Termination of Employment - Generally

[34] I find that the essential character of the dispute between Ms. Silliphant and the Association falls squarely within the ambit of the Collective Agreement. The dispute is therefore within the exclusive jurisdiction of the arbitrator: see Jadwani v. Canada (2000), 52 O.R. (3d) 660 (C.A.), at paras. 30-35. The jurisdiction of the court has been removed by the Collective Agreement and the governing legislation: see Skof v. Bordeleau, 2020 ONCA 729, 456 D.L.R. (4th) 236, at para. 8.

[35] In her affidavit, Ms. Silliphant asserts that her grievance “was dropped without signature”; she does not explain what she means by that phrase.

[36] Neither the fact that the Grievance was withdrawn nor Ms. Silliphant’s dissatisfaction with how the Union handled her grievance is relevant to the outcome of the motion before this court. As noted at para. 13 of Blake, “The essential character of a dispute is not altered by strategic choices made as to the remedy pursued.” Whatever the Union’s reasons for closing Ms. Silliphant’s grievance file, and not proceeding to the arbitration, nothing about those reasons changes the essential character of the dispute.

[37] The court need not make any finding regarding the merit of Ms. Silliphant’s dissatisfaction with the Union’s representation of her in the grievance and arbitration process. The proper avenue by which Ms. Silliphant was entitled to pursue her dissatisfaction in that regard was by way of an application to the Ontario Labour Relations Board: see LRA, s. 74; and Nelson v. Her Majesty the Queen in the Right of Ontario et al., 2020 ONSC 2147, 150 O.R. (3d) 309, at para. 17, aff’d 2020 ONCA 751.

[38] In summary, pursuant to the grievance and arbitration procedures set out in the Collective Agreement, the claims in this action related generally to the termination of Ms. Silliphant’s employment are within the exclusive jurisdiction of an arbitrator.

[39] I turn next to the allegations in the Pleading related to discrimination.

ii) Claims Based in Discrimination

[40] The “Statement of Grievance”, set out in the Grievance, encompasses the Code and implies that the Association discriminated against Ms. Silliphant by terminating her employment “for missing work for a chronic illness.” After the Union closed the grievance file, Ms. Silliphant commenced the Application to the HRTO; Ms. Silliphant alleged that she was discriminated against on the basis of disability. The Application was administratively dismissed by the HRTO in 2023.

[41] In the action before this court, Ms. Silliphant appears to be pursuing a human rights-based claim. Ms. Silliphant is self-represented, and not experienced in legal drafting. At para. 1 of her pleading, Ms. Silliphant claims she was wrongfully terminated because in the termination letter, the Association refers to their “inability to accommodate her disability when she was not disabled.” Ms. Silliphant refers to the “Human Rights Code” in her pleading.

[42] Ms. Silliphant’s claims of discrimination arise entirely from her employment. Ms. Silliphant’s employment relationship with the Association was governed by the Collective Agreement. Article 4 of that agreement expressly provides that there will be no discrimination, interference, intimidation, restriction or coercion exercised or practice with respect to any employee because of, inter alia, their exercising of rights under the Collective Agreement. Article 4.02 incorporates, as part of the Collective Agreement, the provision of the Code regarding discrimination in employment.

[43] Ms. Silliphant’s claims of discrimination do not give rise to an additional cause of action that is separate from the causes of action based in wrongful termination of employment. The comments made by Schabas J., at para. 3 in Nelson, apply to Ms. Silliphant’s claims in discrimination: Although courts have jurisdiction to consider matters arising under the Human Rights Code, it is a very limited jurisdiction which requires the existence of a separate, and additional, cause of action which is properly before the court in the case. That is not the situation here, where the plaintiff's complaints arise entirely from her employment, which is governed by a Collective Agreement, and her claim does not raise any new or separate cause of action which the court can, or should, consider.

[44] Justice Schabas addresses the same point at para. 62 of Nelson, with the following summary of the applicable law: Accordingly, for a unionized employee to assert human rights claims in a civil action against her employer, and/or union, there must be some independent civil wrong that does not, in its "essential character", arise from the workplace governed by the collective agreement. As there is no such wrong pleaded here on which to "piggyback" a human rights claim, the court has no jurisdiction.

[45] Like the claims of discrimination made by the plaintiff in Nelson, Ms. Silliphant’s claims of discrimination arise entirely from her employment, which is governed by the Collective Agreement. There is no separate or additional cause of action, other than that of discrimination in the context of her employment, advanced by Ms. Silliphant. She is not entitled to commence a civil action based solely on the alleged infringement of a right granted under Part 1 of the Code.

d) Conclusion

[46] Ms. Silliphant’s action is dismissed in its entirety because the court lacks jurisdiction.

Issue No. 2 – Is the action frivolous?

[47] The Association relies on r. 21.01(3)(d) of the Rules of Civil Procedure. Pursuant to r. 21.01(3)(d), “[a] defendant may move before a judge to have an action stayed or dismissed on the ground that […] the action is frivolous or vexatious or is otherwise an abuse of the court”.

[48] For the reasons given in the preceding section of this ruling, the claim lacks merit—it is plain and obvious that the claim cannot succeed. The claim is frivolous within the meaning of r. 21.01(3)(d): see Castonguay Construction (2000) Ltd. v. Commonwealth Plywood Co. Ltd., 2012 ONSC 3487, 14 C.L.R. (4th) 104, at para. 18.

[49] A general characteristic of vexatious proceedings is the rolling forward from one proceeding to another of grounds and issues raised in the earlier proceeding: Lang Michener et al. v. Fabian et al. (1987), 59 O.R. (2d) 353 (H.C.), at p. 19.

[50] Ms. Silliphant rolled forward into this proceeding issues raised in one or both of the Grievance and her application to the HRTO. For that reason, the claims she advances in her pleading are vexatious within the meaning of r. 21.01(3)(d).

[51] In summary, Ms. Silliphant’s action is frivolous and vexatious; it is dismissed pursuant to r. 21.01(3)(d).

Issue No. 3 – Is Ms. Silliphant entitled to leave to amend her pleading?

[52] The court does not have jurisdiction over the matters advanced in the Ms. Silliphant’s pleading. No amendment to the pleading could cure the fatal defect of lack of jurisdiction.

[53] Granting Ms. Silliphant leave to amend her pleading “would just be an invitation to the plaintiff to inflict further costly and abusive proceedings on the defendant with no realistic sense that a credible lawsuit lies dormant waiting to emerge”: Rebello v. The Bank of Nova Scotia, 2018 ONSC 7127, at para. 52.

Disposition

[54] Ms. Silliphant’s action is dismissed, without leave to amend her pleading.

[55] With the action dismissed, Ms. Silliphant’s motion is rendered moot. In any event, at the outset of Ms. Silliphant’s submissions, she was informed by the court that her motion would not be heard that day. Ms. Silliphant had not followed the requisite procedure for her motion to be heard.

[56] I conclude this ruling by addressing the issue of the costs of the Association’s motion and of the action.

Costs

[57] The Association is entirely successful on its motion and is entitled to its costs of the motion and of the action. The Association asks the court to award costs on the partial indemnity scale in the total amount of $6,572.19. That amount is broken down as follows: Fees $ 5,516.10 HST on fees $ 717.09 Disbursements $ 339.00

[58] The costs claimed are addressed in the bill of costs delivered by the Association subsequent to the hearing date. At the conclusion of the hearing, the court ordered the Association to file a revised bill of costs—eliminating fees for administrative work done by a law clerk whose time is reflected in both the original and revised bill of costs.

[59] The fees claimed are for work done by three associate counsel—the lawyer who originally had carriage of the matter, the lawyer who had carriage of the matter as of the date of the hearing, and a third associate lawyer. The original lawyer was on leave by the date of the hearing. It was necessary for another lawyer to assume carriage of the file. I am satisfied that the hourly rates for the lawyers and the time docketed by them are reasonable.

[60] All three lawyers worked on the matter prior to the June 27, 2024 return date. I am satisfied that there is no duplication of effort related to the work done prior to the original return date for the motion. To the extent that there is any duplication of effort for preparation for the original return date and the eventual return date, that duplication is the result of Ms. Silliphant failing to attend on the June 27, 2024 return date. The court granted Ms. Silliphant an indulgence by adjourning the motion to a return date on which it was hoped she would be present (as she was).

[61] I am satisfied that the hourly rate for the law clerk and the time docketed by that individual are reasonable and for ‘legal’ [^2] work done by her ($205 per hour and 4.7 hours).

[62] The Association includes only one disbursement item—the cost of filing the notice of motion. That item does not attract HST. I am satisfied that the disbursement item is reasonable.

[63] The Association does not identify any fees associated with the action that are distinct from the fees related to the work on the motion.

[64] Ms. Silliphant shall pay to the Association its costs of the motion and the action, on the partial indemnity scale, fixed in the total amount of $6,572.19.

[65] In awarding costs in that amount, I have taken into consideration the factors listed in r. 57.01(1). For example, it was important to the Association that the action be dismissed in its entirety (r. 57.01(1)(d)). The finding that the action is frivolous is also relevant to the issue of costs (r. 57.01(1)(f)).

[66] Rule 57.03(1)(a) stipulates that, “unless the court is satisfied that a different order would be more just, the court shall […] fix the costs of the motion and order them to be paid within 30 days”. Regarding the issue of costs and her ability to pay costs if required to do so, Ms. Silliphant informed the court that she faced challenges securing employment following the termination of her employment with the Association.

[67] In the circumstances, it is reasonable to extend the 30-day period prescribed by r. 57.03(1)(a) to 90 days. Ms. Silliphant shall, within 90 days of the date of the release of this ruling, pay to the Association, its costs of the motion and the action, on the partial indemnity scale, fixed in the total amount of $6,572.19.

Order to be Signed

[68] Ms. Silliphant is a self-represented litigant. It is clear from the Pleading and Ms. Silliphant’s motion documents that she has not familiarized herself with the requirements of the Rules of Civil Procedure regarding the form and content of court documents.

[69] The relief granted in this ruling is straightforward.

[70] The Association is not required to obtain Ms. Silliphant’s approval as to the form and content of the draft order prepared on the basis of this ruling. The requirement to obtain such approval is dispensed with.

Madam Justice Sylvia Corthorn

Released: November 18, 2024

[^1]: “OPSEU” is a short form for the Ontario Public Service Employees’ Union. [^2]: ‘Legal’ work as opposed to ‘administrative’ work: see Vriend v. Vriend and PGT, 2024 ONSC 4015, at paras. 49-60.