SUPREME COURT OF PRINCE EDWARD ISLAND. Citation: Cairns v Bd. of School Trustees & Ors 2009 PESC 03 GORDON CAIRNS

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1 SUPREME COURT OF PRINCE EDWARD ISLAND Citation: Cairns v Bd. of School Trustees & Ors 2009 PESC 03 Court File No. S2-GS-5182 Date: Registry: Summerside BETWEEN: GORDON CAIRNS PLAINTIFF (RESPONDENT) AND: THE BOARD OF SCHOOL TRUSTEE OF THE EASTERN DISTRICT, a body corporate, incorporated pursuant to s. 27(3) of the School Act, R.S.P.E.I. 2003, C.s- 2.1, as amended, THE GOVERNMENT OF PRINCE EDWARD ISLAND, CATHERINE MACKINNON, DR. ALEX (SANDY) MACDONALD and TIM CHRISTENSEN DEFENDANTS (MOVING PARTY) Before: The Honourable Justice Benjamin B. Taylor Appearances: Ruth M. DeMone Solicitor for the Defendants (Moving Party) Barry Mason Solicitor for the Plaintiff Place and Date of Hearing Charlottetown, Prince Edward Island August 21, 2008 Place and Date of Judgment Charlottetown, Prince Edward Island January 28, 2009

2 Citation: Cairns v. Bd. of School Trustees & Ors 2009 PESC 03 Court File No. S2-GS-5182 BETWEEN: AND: GORDON CAIRNS PLAINTIFF (RESPONDENT) THE BOARD OF SCHOOL TRUSTEE OF THE EASTERN DISTRICT, a body corporate, incorporated pursuant to s. 27(3) of the School Act, R.S.P.E.I. 2003, C.s-2.1, as amended, THE GOVERNMENT OF PRINCE EDWARD ISLAND, CATHERINE MACKINNON, DR. ALEX (SANDY) MACDONALD and TIM CHRISTENSEN Supreme Court of Prince Edward Island Before: Taylor J. Date of Hearing: August 21, 2008 Date of Decision: January 28, 2009 [17 Pages] DEFENDANTS (MOVING PARTY) LABOUR LAW - Collective Agreements - Courts - Jurisdiction - availability of civil action. CIVIL PROCEDURE - Determination of issue before trial Rule 21.01(3)(a) whether courts jurisdiction over claims ousted by binding arbitration provision Human Rights Act whether court has jurisdiction over claim of discrimination. Cases Considered: Severance v. Oliver 2007 PESCAD 2 (PEISC-AD); Goudie v. Ottawa (City), [2003] 1 S.C.R. 141 (S.C.C.); Kay Aviation b.v. v. Rofe, 2001 CarswellPEI 49 (P.E.I.S.C.A.D.); Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 (S.C.C.); Bhaduria v. Toronto Board of Education, [1999] O.J. No. 582 (Ont. C.A.), [1999] S.C.C.A. No 212; Pleau v. Canada (Attorney General) (1999), 181 N.S.R. (2d) 356 (N.S.C.A.).; St. Anne Nackawic Pulp and Paper Co. v. CPU Local 219, [1986] 1 S.C.R. 704 (S.C.C.); McGavin Toastmasters Ltd. v. Ainscough, [1976] 1 S.C.R. 718 (S.C.C.); Bisaillon v. Concordia University, [2006] S.C.R. No. 19 (S.C.C.) Seneca College of Applied Arts and Technology v. Bhadauria, [1981] S.C.J. No. 76 (S.C.C.); Ayangma v. Prince Edward Island Eastern School Board, [2000] PESCAD 12 (PEISC-AD) Rule Referred to: Prince Edward Island Rules of Civil Procedure, Rule 20, Statutes Referred to: Crown Proceedings Act, R.S.P.E.I. 1988, Cap. C-12; Labour Act, R.S.P.E.I. 1988, Cap. L-1, s. 37(1), (2); Labour Relations Act, R.S.O. 1990, c. L.2, s. 45(1); Human Rights Act, R.S.P.E.I. 1988, Cap. H-12, s. 22(2). Appearances: Ruth M. DeMone, solicitor for the defendants (Moving Party) Barry Mason, solicitor for the plaintiff

3 Taylor J.: [1] This decision follows a motion by the defendants: The Board of School Trustees of the Eastern District in Prince Edward Island ( the Board ), the Government of Prince Edward Island ( the Government ), Catherine MacKinnon ( Ms. MacKinnon ), Dr. Alex (Sandy) MacDonald ( Dr. MacDonald ) and Tim Christensen ( Mr. Christensen ). The plaintiff is Mr. Gordon Cairns ( Mr. Cairns ). The motion was for the following: (i) (ii) (iii) an Order for dismissal of the action in its entirety as against all of the Defendants; an order for dismissal of the action in its entirety as against the Government of Prince Edward Island; in the alternative, for the determination of the following question of law raised by the pleading and judgment accordingly: (a) Is the Plaintiff s claim for discrimination foreclosed by the provisions of the Human Rights Act, R.S.P.E.I. 1988, Cap. H-12; and (iv) costs on a substantial indemnity basis. [2] The relief described in (i) and (iii) above, is sought pursuant to clause 21.01(3)(a) of the Rules of Civil Procedure, i.e.: determination of whether the court has no jurisdiction over the subject matter of action. [3] The relief described in (ii) above is sought pursuant to clause 21.0(3)(d) of the Rules of Civil Procedure (Action Frivolous, Vexatious or Abuse of Power) and the Crown Proceedings Act, R.S.P.E.I. 1988, Cap. C-12. I have found it is not necessary to deal with this issue. [4] For the reasons set out hereunder, the defendants motion is granted and the statement of claim is dismissed in its entirety, with costs to the defendants on a partial indemnity basis. BACKGROUND [5] By statement of claim dated February 14, 2008, Mr. Cairns claimed against the defendants for general, special, exemplary and punitive damages totalling $2,000,000, together with interest and costs.

4 Page: 2 [6] Mr. Cairns claims the defendants, separately or in various combinations, committed the following torts or civil wrongs against him: defamation, conspiracy, inducement to breach of contract, unlawful interference with economic relations, breach of duty, abuse of power, discrimination, breach of human rights, harassment and malicious actions. [7] The statement of claim says Mr. Cairns was a school bus operator for the Eastern School District for 21 years, beginning in November 1984 and ending when his employment was terminated on November 15, According to Mr. Cairns, in 2005 he refused to drive his school bus while it was overloaded with children. This refusal led to a dispute which saw him suspended for a period of time in March The dispute escalated in the fall of 2005, and Mr. Cairns was ordered to undergo a psychiatric examination to determine whether he was mentally stable. Mr. Cairns resisted or questioned the psychiatric examination and was fired. [8] Mr. Cairns was a member of the Canadian Union of Public Employees, Local 1145 (Transportation Group) ( the Union ). There was a collective agreement in place between the Board and the Union. Following his termination, the Union brought three grievances on behalf of Mr. Cairns. The grievances were heard by a single arbitrator on November 6, On December 9, 2006 the arbitrator issued an award resulting from a mediated resolution following the arbitration. PROCEDURAL ISSUES [9] The parties raised two procedural issues during the hearing, as follows: Procedural Issue One - Is evidence admissible on a motion under sub-rule 21.01(3) of the Rules of Civil Procedure? [10] The answer yes is straightforward. Sub-rule 21.01(2) limits or bars evidence on motions under clauses 21.01(1)(a) and (b). There is no such limitation on evidence for motions made under sub-rule 21.01(3), and it is obvious the defendant must be permitted to submit evidence on a 21.01(3) motion, as it is most unlikely there would be any facts in a statement of claim which would relate to any of the grounds set out in Rule 21.01(3)(a), (b), (c), or (d). I note evidence was admitted in the Rule 21.01(3(a) motion which led to the appeal decision in Severance v. Oliver 2007 PESCAD 2 (PEISC-AD) at paragraph 53.

5 Page: 3 [11] In Goudie v. Ottawa (City), [2003] 1 S.C.R. 141 (SCC), Binnie J. for the Supreme Court of Canada, recognized evidence was admissible, but cautioned at paragraph 32: 32 It is the practice in Ontario for the motions court to receive evidence pertinent to the jurisdictional issue, such as a copy of the collective agreement..., or other affidavit evidence (Leufkens v. Alba Tours International Inc. (2001), 53 O.R. (3d) 112 (S.C.J.), and, on the issue of capacity, S. (J.R.) v. Glendinning (2000), 191 D.L.R. (4th) 750 (S.C.J. Ont.)), but it was not appropriate for the appellant to attempt to turn a jurisdictional challenge under clause 21.01(3)(a) into a mini-trial on a disputed, central question of fact.... Procedural Issue Two - In a motion under sub-rule (3), are the facts set out in the statement of claim assumed to be true? [12] No evidence is admissible on a motion under clause 21.01(1)(b) to strike out a pleading on the ground that it discloses no cause of action, and there is ample authority that in such a motion, the facts set forth in the statement of claim are accepted as true (see McQuaid J.A. in Kay Aviation b.v. v. Rofe, 2001 CarswellPEI 49 (P.E.I.S.C.A.D.), at paragraph eight). However, contrary to what Mr. Cairns asserts, McQuaid, J.A. did not make any such finding about a sub-rule 21.01(3) motion. Instead, in compliance with the Supreme Court of Canada decision in Goudie v. Ottawa, I believe it would be correct to say the facts in the statement of claim are not accepted as true in a clause 21.01(3)(a) motion, but should be considered to determine whether or not the jurisdiction issue turns on uncontroverted or easily ascertainable facts (Goudie v. Ottawa, paragraph 33). In this case, I believe the facts on which I rely are uncontroverted. SUBSTANTIVE ISSUES ISSUE ONE - Does the Court Lack Jurisdiction Because of the Collective Agreement? [13] The defendants say Mr. Cairns claims arise from differences in the interpretation, application, administration or alleged violation of the collective agreement between Mr. Cairns union and the Board. Accordingly pursuant to s. 37(1) of the Labour Act, R.S.P.E.I Cap. L-1, the defendants assert Mr. Cairns only remedy lies in the grievance procedure under the collective agreement and this Court

6 has no jurisdiction to deal with this action. Page: 4 LAW [14] In Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 (S.C.C.), Mr. Weber had back problems and took an extended paid leave of absence from work. His employer suspected malingering, hired investigators, and suspended Mr. Weber based on what the investigators learned. Mr. Weber went to his union, and the union filed a grievance. The grievance was later settled, but in the meantime Mr. Weber sued his employer for the torts of trespass, nuisance, deceit, invasion of privacy and for breaches of his section 7 and 8 rights under the Canadian Charter of Rights and Freedoms, and the case made its way to the Supreme Court of Canada. [15] Writing for the majority, McLachlin J. (as she then was) asked the question: When may parties who have agreed to settle their differences by arbitration under a collective agreement sue in tort? McLachlin J. found the courts had neither concurrent nor overlapping jurisdiction, stating at paragraphs 45 and 49: [As to the concurrent jurisdiction model] 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 [by McLachlin J.]). 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.[emphasis added.] [the overlapping jurisdiction model] 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... 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

7 Page: 5 Appeal decision in St. Anne Nackawic, at pp This would undermine the legislative purposes underlying such provisions and the intention of the parties to the agreement.... McLachlin J. found, at paragraph 50: If the difference between the parties arises from the collective agreement, the claimant must proceed by arbitration and the courts have no power to entertain an action in respect of that dispute. There is no overlapping jurisdiction. [16] At paragraph 54, McLachlin J. stated in part, Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts..., noting however arbitrators decisions were still subject to judicial review by the courts [paragraph 55]. [17] McLachlin J. stated the decision-maker must consider the essential character of the dispute [at paragraph 52] and determine whether it expressly or inferentially arises out of the collective agreement, i.e.: all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, noting that in cases decided up to that time, courts had been found to lack jurisdiction in claims of wrongful dismissal, bad faith on the part of the union; conspiracy and constructive dismissal; and damage to reputation [at paragraph 53]. [18] Since 1995, many other decisions have demonstrated the broad range of differences which may arise out of the collective agreement. In Bhaduria v. Toronto Board of Education, [1999] O.J. No. 582 (Ont. C.A.) (leave to appeal refused [1999] S.C.C.A. No. 212), the Ontario Court of Appeal considered a case in which the lower court struck out all Mr. Bhaduria s constitutional (i.e. Charter) claims, and all but one of the other claims against his employer, the Toronto Board of Education, leaving only the defamation claim. Mr. Bhaduria appealed the striking out of his claims. The Toronto School Board cross appealed, asking the defamation claim be struck out as well. The Appeal Court analyzed the evidence to determine the essential character of the defamation action, then dismissed Mr. Bhaduria s appeal and allowed the Board s cross appeal, thus striking out the statement of claim in its entirety. At paragraph two, the Court stated:

8 Page: 6... Mr. Bhaduria s claims, in their essential character, arise under the collective agreement and relate to events that led to his termination, which in turn triggered the grievance and arbitration proceedings. We therefore agree with the motions judge that the allegations in the statement of claim raised by Mr. Bhaduria on appeal are foreclosed by Weber. These allegations fall within the exclusive jurisdiction of the grievance and arbitration process. [19] Section 37(1) and (2) of the Labour Act, states: 37. (1) Every collective agreement shall contain a provision for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration, operation or alleged violation of the agreement, including any question as to whether a matter is arbitrable. (2) If a collective agreement does not contain such a provision as is mentioned in subsection (1), it shall be deemed to contain the following provision: Where a difference arises between the parties relating to the interpretation, application, administration, operation, or alleged violation of this agreement, including any question as to whether a matter is arbitrable, either of the parties may, after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference or allegation to arbitration and the notice shall contain the name of the first party s appointee to an arbitration board. The recipient of the notice shall within five days inform the other party of the name of its appointee to the arbitration board. The two appointees so selected shall, within five days of the appointment of the second of them, appoint a third person who shall be the chairman. If the recipient of the notice fails to appoint an arbitrator, or if the two appointees fail to agree upon a chairman within the time limited, the appointment shall be made by the Minister of Community and Cultural Affairs of Prince Edward Island upon the request of either party. The arbitration board shall hear and determine the difference or allegation and shall, within twenty-one days of the appointment of the chairman, issue a decision and the decision is final and binding upon the parties and upon any employee or employer affected by it. The decision of a majority is the decision of the arbitration board, but if there is no majority the decision of the chairman governs. [20] Section 45(1) of the Labour Relations Act, R.S.O. 1990, c. L.2 states:

9 Page: (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. [21] There is no material difference between s. 37(1) of the P.E.I. Labour Act, and s. 45(1) of the Ontario Labour Relations Act, thus the Supreme Court of Canada decision in Weber v. Ontario Hydro, is precisely on point in this case. [22] In Severance v. Oliver, our Appeal Court considered a case in which an employee of the PEI Museum and Heritage Foundation claimed her work supervisor harassed her. She sued him for the torts of assault and sexual harassment, and also sued the Foundation, the Minister of Education, and the Government of PEI ( the Government ) for negligence and vicarious liability. [23] The plaintiff was a member of the PEI Union of Public Section Employees ( UPSE ); there was a collective agreement between the UPSE and the Government; and pursuant to s. 37(1) of the Labour Act the collective agreement provided for the final and binding settlement by arbitration of all differences between employee and employer...arising from the interpretation, application, administration, operation or alleged violation of the agreement.... [24] The plaintiff did not grieve the harassment, had a breakdown, went on sick leave, and eventually accepted an early retirement package. The plaintiff claimed her supervisor s objectionable conduct did not serve any legitimate workplace purpose and did not arise from the interpretation, application, operation or violation of the collective agreement. The defendants asserted the subject matter of the action fell under the collective agreement and the Court had no jurisdiction to resolve the action. [25] In his decision, McQuaid J.A. stated at paragraphs 31, 33, 34 and 35: 31 The applicable test for determining whether the jurisdiction to resolve the dispute is with the grievance procedure...or with the Supreme Court of Prince Edward Island has been set forth in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 (SCC). Writing for the majority, McLachlin J. considered the effect of the final and binding arbitration provisions of legislation, similar to s. 37 of the Labour Act supra, on the jurisdiction of superior courts to assume jurisdiction over disputes between employees and employers. In

10 Page: 8 doing so, she considered three different models for making a determination as to whether such clauses ousted the jurisdiction of superior courts to hear and resolve disputes arising in the employment context where there is a collective agreement McLachlin J. settled upon the exclusive jurisdiction model as the one which should be adopted in determining the effect which the binding arbitration provisions of labour legislation has upon the superior court's jurisdiction to hear and determine matters in the labour law context. In applying this model the court must consider the essential character of the dispute and the scope or ambit of the collective agreement. See: Weber at paras. 51 & 52. Also see: Graham v. Strait Crossing Inc.(1999), 170 D.L.R. (4th) 152 (P.E.I.S.C.A.D.) at paras. 8, 9 & 10 and Morin v. Prince Edward island School Board, Regional Administrative Unit No. 3 (1995), 125 Nfld. & P.E.I.R. 211 (P.E.I.S.C.A.D.) at para The determination of whether the essential character or nature of the dispute involves an examination of the factual context in which the dispute arose and not the manner in which a plaintiff's statement of claim may frame the dispute. See: Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360 (SCC) at para 29. This analysis must take into account all the facts surrounding the dispute between the parties. See: Bisaillon v. Concordia University, [2006] 1 S.C.R. 666 (SCC) at para The second stage of the inquiry is a determination whether the factual context, as identified in the first stage, is one which comes within the ambit of the collective agreement. The collective agreement need not explicitly provide for the subject matter of the dispute. If the collective agreement, either expressly or implicitly, provides for the resolution of the dispute according to its terms, then exclusive jurisdiction is with the grievance and arbitration procedure in the agreement and not with the courts. See: Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners supraat para. 25 and Bisaillon v. Concordia University supra at para 32. [26] McQuaid J.A. concluded the plaintiff s assertion the defendant s conduct did not serve any legitimate workplace purpose, was an assertion which could not have any effect upon the determination of the essential character of the dispute (paragraph 37). Plaintiff s Assertions

11 Page: 9 [27] Mr. Cairns asserts the collective agreement does not have a provision which demands any dispute be settled by the grievance procedure. The simple answer to this assertion is: according to s. 37(2), if no such provision is found in the collective agreement, the provision set out in s. 37(2) will be deemed part of the agreement. [28] Mr. Cairns relies on Pleau v. Canada (Attorney General) (1999), 181 N.S.R. (2d) 356 (N.S.C.A.). In that decision, Cromwell J.A. states the decisions in Weber v. Ontario Hydro, St. Anne Nackawic Pulp and Paper Co. v. CPU Local 219, [1986] 1 S.C.R. 704 (S.C.C.), and others are based on three main considerations. The first two considerations are: 1) Do the legislation and the collective agreement specify show a strong preference for a particular dispute resolution process? (Cromwell J.A. says show a strong preference for, but from my reading of the Supreme Court of Canada decision in Weber v. Ontario Hydro, I believe specify would be more appropriate). 2) Is the essential character of the dispute governed, expressly or by implication, by the legislation and the collective agreement? [29] The third consideration is described by Cromwell, J.A. at paragraph 21: The third consideration relates to the practical question of whether the process favoured by the parties and the legislature provides effective redress for the alleged breach of duty. Generally, if there is a right, there should also be an effective remedy. [30] In the present motion, Mr. Cairns relies on the words of Cromwell, J.A. and asserts if there are breaches for which he does not obtain redress through the grievance process, he should be able to pursue them in the courts. [31] In Severance v. Oliver, McQuaid J.A. distinguished the decision in Pleau v. Canada (A.G.) on its facts at paragraphs 73 to 75 as follows: 73 The decision of Cromwell J.A. essentially turned on an interpretation of ss. 91 and 92 of the PSSRA [Public Service Staff Relations Act]. The language of these sections unlike the legislation under consideration in Weber, supra and unlike the provisions of the Labour Act supra did not confer the final decision on an independent arbitrator but rather on an in-house grievance procedure.

12 Page: In the case at bar, both the legislation and the collective agreement clearly provide that in all grievances which relate to the interpretation, application or alleged violation of the collective agreement recourse may be had to the independent third party adjudication process set forth in the agreement. See: Article 26.15(1)(a) of the collective agreement. 75 In a decision subsequent to Pleau, the Supreme Court of Canada in Vaughan v. Canada, [2005] 1 S.C.R. 146 (SCC) made it clear that in situations where the only procedure for settlement of the dispute is an in-house grievance procedure, the jurisdiction of the court is not automatically ousted. The crucial issue in determining whether a plaintiff is deprived of the ultimate remedy is whether the adjudicator can remedy the wrong. [32] Even if Pleau v. Canada (A.G.) could not be distinguished, in my view, the Supreme Court of Canada is clear on this issue. Where the employer and the union, acting for its members, have agreed through the collective agreement to settle a range of differences by a grievance procedure specified by legislation, and the essential character of a dispute falls within that range, the court has no jurisdiction, and it is not necessary to proceed to the third consideration described in Pleau v. Canada (A.G.). [33] I have no evidence about the content of arbitrator s award which followed the grievances filed by the Union relating to Mr. Cairns complaints. Perhaps it did not compensate him for everything he now seeks. Nevertheless, it is said an arbitrator has the power to provide whatever remedy appears suitable (Weber v. Ontario Hydro, paragraphs 55 to 56; Severance v. Oliver, paragraph 77 to 78), so Mr. Cairns has had his opportunity to seek redress. [34] In his concurring decision in Severance v. Oliver, MacDonald J.A. stressed the two stage approach to be taken, quoting the words of LeBel J. in Bisaillon v. Concordia University, [2006] S.C.R. No. 19 (S.C.C.) as follows: 88 In Bisaillon v. Concordia University, [2006] S.C.R. No. 19 (SCC), LeBel J. explained the approach to be taken as follows: [31] The first stage of this approach consists in identifying the essential character of the dispute. On this point, the Court has stressed that what must be done is not limited to determining the legal nature of the dispute. On the

13 Page: 11 contrary, the analysis must also take into account all the facts surrounding the dispute between the parties: Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners [2000] 1 S.C.R. 360, 2000 SCC 14, at paras. 25 and 29. [32] At the second stage, it must be determined whether the factual context so identified falls within the ambit of the collective agreement. In other words, it must be determined whether the collective agreement implicitly or explicitly applies to the facts in dispute. In Regina Police, this Court explained this second stage of the analysis as follows: Simply, the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations. It is clear that the collective agreement need not provide for the subject matter of the dispute explicitly. 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 an arbitrator to decide.... [para. 25] 89 Therefore, there are two elements to be considered: the dispute and the ambit of the collective agreement. [35] The decision of the Nova Scotia Court of Appeal in Pleau v. Canada (A.G.) is not binding on the Supreme Court of this Province. The Supreme Court of Canada decisions and the decisions of our Appeal Court are binding, and from my reading only require a determination based on the considerations set out in Weber v. Ontario Hydro, i.e. the first two considerations described in Pleau v. Canada (A.G.), a determination process which perhaps recognizes employers as well as employees have a right to a grievance process which resolves all differences between the parties

14 as described in s. 37(1) of the Labour Act. Page: 12 What is the Essential Character of the Differences in this Case? [36] In Weber v. Ontario Hydro, McLachlin J. states at paragraph 48 to 49: 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 these proceedings may be framed. and one must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute (paragraph 49). The above statement is particularly important in this case, because Mr. Cairns claims multiple legal wrongs arising from only three sets of facts. In particular: 1) the statement of claim asserts defendant Dr. MacDonald, the District Superintendent, ordered the Mr. Cairns to undergo a medical examination with a psychiatrist to test his mental stability and when Mr. Cairns asked why he was required to undergo such an assessment, his employment was terminated (paragraph 7(e)). This set of facts is described as 1) breach of duty to treat Mr. Cairns fairly and in good faith, (paragraph eight); 2) abuse of authority/abuse of power (paragraph nine); 3) unfair treatment and persecution (paragraph nine); 4) malicious actions (paragraph nine); 5) discrimination based on a perceived psychological disability constituting a breach of human rights contrary to the Human Rights Act (paragraph 10); 6) unlawful actions by Dr. MacDonald in breach of his code of ethics (paragraph 11); 7) unlawful interference with economic relations (paragraph 11); 8) inducement of breach of contract (paragraph 11); and 9) conspiracy with the other person defendants to terminate Mr. Cairns employment (paragraph 15); 2) the statement of claim asserts in 2002, the Ms. MacKinnon, the transportation supervisor, told Mr. Cairns she knew there was something wrong with Mr. Cairns and when she found out what it was she would suspend him indefinitely. Mr. Cairns further asserts that five years later in September 2005, Ms. MacKinnon screamed at him, saying he had dropped a six year-old autistic boy off at school and left the boy unattended. Mr. Cairns asserts because of these statements and conduct of the defendant MacKinnon, the plaintiff s employment was terminated (paragraph 13).

15 Page: 13 This set of facts is described as 1) slander and defamation (paragraph 12); 2) harassment (paragraph 12); 3) inducement of breach of contract (paragraph 13); 4) unlawful interference with economic relations (paragraph 13); and 5) conspiracy with the other person defendants to terminate Mr. Cairns employment (paragraph 15); 3) the statement of claim asserts Mr. Christensen, the Human Resources Director, stated to other staff...the plaintiff was going postal and was emotionally unstable (paragraph 14). Mr. Cairns asserts because...of the unlawful statements by the defendant, Christensen, the plaintiff s employment was terminated (paragraph 14). This set of facts is described as: 1) slander and defamation (paragraph 14); 2) harassment (paragraph 14); 3) inducement of breach of contract (paragraph 14); 4) unlawful interference with economic relations (paragraph 14); and 5) conspiracy with the other person defendants to terminate Mr. Cairns employment (paragraph 15). [37] Following the manner of analysis directed in Weber v. Ontario Hydro at paragraph 52, I note as follows: 1) Mr. Cairns was an employee of the Eastern School Board, and worked as a school bus driver; 2) The Government created and funds the Eastern School Board; 3) All of the conduct alleged in the statement of claim occurred in Prince Edward Island, in the area covered by the Eastern School Board; 4) All of this conduct occurred at the workplace: either on a school bus operated by Mr. Cairns or on the grounds of one of the Eastern School Board schools; 5) The person defendants are all employees of the Eastern School Board; specifically, they are: Superintendent, Human Resources Director, and Transportation Supervisor. They were supervisors of Mr. Cairns; 6) The statement of claim asserts three sets of facts gave rise to the dispute: 1) the demand by Dr. MacDonald Mr. Cairns take a medical examination by a psychologist; 2) an assertion of incompetence and warning by Ms. MacKinnon eight years before the statement of claim was issued, followed by an accusation Mr. Cairns had left a disabled

16 Page: 14 student unattended; and 3) a statement or statements by Mr. Christensen that Mr. Cairns was mentally unfit. Mr. Cairns claims all of these were the cause of the termination of his employment. 7) Mr. Cairns, as a school bus driver for the Eastern School Board, was a member of the Union covered by a collective agreement; 8) The collective agreement, or s. 37(2) of the Labour Act, contains a standard arbitration clause as required by the PEI Labour Act, which, pursuant to Weber v. Ontario Hydro, and Severance v. Oliver takes disputes over differences within a specified range outside the jurisdiction of this Court; 9) According to the affidavit of Mr. Ron MacLeod, three grievances brought by the Union on behalf of Mr. Cairns, relating to the incidents set out in the statement of claim in this action, were heard before a single arbitrator on consent of the parties on November 6, 2006; 10) Again according to the affidavit of Mr. Ron MacLeod, the parties subsequently settled their differences by mediated resolution and the arbitrator issued an award/order on December 9, 2006", from which no application for judicial review was taken. [38] I conclude all of the elements of the dispute as described above expressly and inferentially arise from the interpretation, application, administration or alleged violation of the agreement, in particular: Article 8 Management Rights; Article 11 Suspension and Discharge; Article 33 Health Examination; Article 36 Discrimination and Article 41 Harassment. The alleged defamatory statements and orders made by the person defendants not only relate to events that led to the termination, they are the events that led to the termination. ISSUE TWO Human Rights Claim - Plaintiff s Claim for Breach of Human Rights [39] Paragraph 10 of the statement of claim states: 10. The Plaintiff states that the Defendant, discriminated against him based on a perceived psychological disability.

17 Page: 15 The Plaintiff states that the Defendants actions constitute a breach of his human rights pursuant to the Human Rights Act, R.S.P.E.I. 2003, Chapter H-12, as amended. The Plaintiff states that the Defendants are liable to the Plaintiff for the damages he has sustained as result of the violation of his human rights. [40] The defendants seek to strike this part of the claim, based on three different assertions: 1) this Court does not have jurisdiction to hear a human rights complaint as such is covered by the collective agreement; 2) there is no tort of discrimination; and 3) jurisdiction for a human rights complaint is determined by the Human Rights Act, R.S.P.E.I. 1988, Cap. H-12. [41] In Seneca College of Applied Arts and Technology v. Bhadauria, [1981] S.C.J. No. 76 (S.C.C.), Laskin C.J. determined there was not a tort of discrimination (paragraphs 1, 2, 15, 26 and 27), concluding at paragraphs 26 to 27: The view taken by the Ontario Court of Appeal is a bold one and may be commended as an attempt to advance the common law. In my opinion, however, this is foreclosed by the legislative initiative which overtook the existing common law in Ontario and established a different regime which does not exclude the courts but rather makes them part of the enforcement machinery under the Code. For the foregoing reasons, I would hold that not only does the Code foreclose any civil action based directly upon a breach thereof but it also excludes any common law action based on an invocation of the public policy expressed in the Code. The Code itself has laid out the procedures for vindication of that public policy, procedures which the plaintiff respondent did not see fit to use. [42] As with Ontario, jurisdiction for human rights complaints is determined by our Human Rights Act, which establishes a process to deal with complaints, a process in which our Supreme Court plays a role, but a process which does not permit such complaints to be dealt with by way of civil suits in our Supreme Court.

18 Page: 16 [43] In Ayangma v. Prince Edward Island Eastern School Board, [2000] PESCAD 12 (PEISC-AD), Mitchell J.A. (as he then was), followed the Seneca College v. Bhadauria decision, stating at paragraph five:...the HRA [The Human Rights Act] forecloses a civil action based directly on a breach of that statute, and it also forecloses a common law action based on an invocation of the public policy expressed therein...it is...clear from the preamble to the HRA that the Legislature intended claims of discrimination to be dealt with through complaints to the HRC [Human Rights Commission]. [44] Based on the foregoing, I find Mr. Cairns claims of discrimination and breach of his human rights are foreclosed by the Human Rights Act. It is not necessary for me to determine whether the jurisdiction established under the collective agreement trumps the Human Rights Act jurisdiction, but I note s. 22(2) of the Human Rights Act establishes a limitation period of one year, which expired long before the present action was commenced. ISSUE THREE Claims Against the Board and Government of Prince Edward Island [45] Mr. Cairns claims against the Board are based on the Board being the employer of Mr. Cairns and all of the person defendants, and on the Board being vicariously liable for the actions of the person defendants. Mr. Cairns claims against the Government appear to be based on vicarious liability. Since this Court has no jurisdiction over Mr. Cairns claims against the person defendants for the reasons set out above, Mr. Cairns claims against the Board and the Government must likewise be dismissed. In Severance v. Oliver, the plaintiff claimed the differences did not arise from the interpretation, application, administration or alleged violation of the agreement, yet claimed against the Foundation, the Minister, and the Government for negligence and vicarious liability. As McQuaid J.A. said in Severance v. Oliver at paragraph 38: Only if the alleged misconduct was workplace related, would such allegations in a statement of claim have any air of reality. CONCLUSION

19 Page: 17 [46] I find this Court has no jurisdiction over the subject matter of this action. Accordingly, the defendants motion is granted, and Mr. Cairns action is dismissed in its entirety, with costs to the defendants on a partial indemnity basis. [47] The defendants will have ten (10) days from the date of this judgment to serve and file their Bill of Costs on this motion and the entire action. I presume only a single Bill of Costs will be filed for all defendants. Mr. Cairns will have ten (10) days to file his response, following which I will fix costs. January 28, 2009 J.