PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION. Trude Oliver

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1 Citation: Oliver v. Severance et al. Date: PESCTD 07 Docket: S1-GS Registry: Charlottetown PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION BETWEEN: AND: Trude Oliver Christopher Churchill Severance, Prince Edward Island Museum and Heritage Foundation, Minister of Education, or successor thereto and Government of Prince Edward Island PLAINTIFF DEFENDANTS Before: The Honourable Justice David H. Jenkins (In Chambers) (Ruling on Motion for dismissal of action) Appearances: Roger B. Langille, Q.C., for the Defendant/Applicant, Christopher Severance Peter C. Ghiz, for the Plaintiff/Respondent Mark E. Campbell, for the Defendants, PEI Museum and Heritage Foundation, Minister of Education, and Government of PEI Place and Dates of Hearing Charlottetown, Prince Edward Island September 28 and October 7, 2004 Place and Date of Decision Charlottetown, Prince Edward Island February 14, 2005 Citation: Oliver v. Severance et al. Date:

2 2005 PESCTD 07 Docket: S-1-GS Registry: Charlottetown BETWEEN: AND: PROVINCE OF PRINCE EDWARD ISLAND IN THE SUPREME COURT - TRIAL DIVISION Trude Oliver PLAINTIFF Christopher Churchill Severance, Prince Edward Island Museum and Heritage Foundation, Minister of Education, or successor thereto and Government of Prince Edward Island DEFENDANTS Prince Edward Island Supreme Court - Trial Division (In Chambers) (Ruling on Motion for dismissal of action) Before: Jenkins J. Dates Heard: September 28 and October 7, 2004 Date of Decision: February 14, 2005 (29 pages) PRACTICE: Rule 21- determination of an issue before trial - motion to have an action dismissed on four grounds: (1) absence of jurisdiction in presence of exclusive jurisdiction of an arbitrator under a collective agreement; (2) absence of jurisdiction in presence of redress for sexual harassment under Human Rights Act; (3) action barred by Statute of Limitations; and the Statement of Claim revealing no reasonable or known cause of action. Motion denied. STATUTES CONSIDERED: Human Rights Act, R.S.P.E.I. 1988, Cap. H-12.2; Statute of Limitations, R.S.P.E.I. 1988, Cap. F-7; Civil Service Act, R.S.P.E.I. 1988; Labour Act, R.S.P.E.I RULE CONSIDERED: Province of Prince Edward Island Rules of Civil Procedure, Rules 21.01; 25.06(1), CASES CONSIDERED: St. Anne Nackawic Pulp & Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; B.M.W.E. v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R. 185; Foisy v. Bell Canada (1984), 18 D.L.R. (4 th ) 222 (Que. Sup. Ct); Elliot v. De Haviland Aircraft Co. of Canada Ltd. (1989), 32 O.A.C. 250 (Ont. Div. Ct.); Graham v. Strait Crossing Inc., [1999] 1 P.E.I.R. 61 (PEISCAD); Goudie v. Ottawa (City), [2003] 1 S.C.R. 141; Danilov v. Atomic Energy Control Board [1999], O.J. No. 3735, (Ont. C.A.); Pleau (Litigation Guardian of) v. Canada (Attorney General) (1999), 182 D.L.R. (4 th ) 373 (N.S.C.A.); Piko v. Hudson s Bay Co. (1998), 41 A.R. (3d) 729 (Ont. C.A.); Nova Scotia (Public Service Commission) v. N.S.G.E.U. (2004), 125 L.A.C. (4 th ) 353 (N.S.C.A.); Giovno v. Pappas (1999), 170 D.L.R. (4 th ) 160 (Ont. C.A.); Cahill v. Canada, [2001] F.C.J (T.D.); Marinaki v. Canada, [2001] F.C.J. No (T.D.); Ayangma v. Prince Edward Island - ii -

3 (2000), P.E.I.J. 50, para. 5 (P.E.I.S.C.A.D.); Board of Governors of Seneca College v. Bhadauria, [1981] 2 S.C.R. 181; Janzen v. Platy Enterprises Ltd. [1989] 1 S.C.R. 1252; Chapman v. 3M Canada Inc., [1995] O.J. No (Ont. Ct. Gen. Div.); National Bank of Canada v. Stevenson, [2001] P.E.I.S.C.T.D. 14; Central Trust Co. V. Rafuse, [1986] 2 S.C.R. 150; Aguonie v. Galion Solid Waste Material Inc. (1998), 38 O.R. (3d) 161 (Ont. C.A.); Novak v. Bond (1999), 172 D.L.R. (4 th ) 385 (S.C.C.); Smyth v. Waterfall (2000), 4 C.P.C. (5 th ) 58 (Ont. C.A.); Morellato v. Wood, [1999] O.J. No (Ont. Sup. Ct.); Soper v. Southcott, [1988] A.J. No (Ont. C.A.); Stell v. Obedkoff (1999), 45 O.R. (3d) 120 (Ont. Sup. Ct.); Berger v. Benchitrit 2002 Carswell Ont (Ont. Sup. Ct.).; Martin v. Lyyer, [1997] O.J. No. 970 (Ont. Sup. Ct.).; Findlay v. Holmes, [1998] O.J. No (Ont.C.A.); Gallant v. Workers Compensation Board (P.E.I.), [2002] 218 Nfld. & P.E.I.R. 297 (P.E.I.S.C.T.D.); Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959; Ayangma v. Prince Edward Island, [1998] P.E.I.J. No. 86 (P.E.I.S.C.T.D.); Belanger v. Stadium Corp. of Ontario Ltd. (1991), 5 O.R. (3d) 778, (Ont. C.A.), at p. 782; Smith v. Alwarid, [1996] Y.J. No. 139, (Y.T.S.C.); Clarke v. Canada, [1994] 3 F.C. 323; Rahemtulla v. Vanfed Credit Union (1984), 51 B.C.L.R. 200 (B.C.S.C.); Frost v. Fox Insurance Brokers Ltd., [2000] B.C.J. No. 176, (B.C.S.C.); Lajoie v. Kelly (c.o.b. Swayzees Restaurant), [1997] M.J. No. 52 (Man. Q.B.); T.B.L. v. R.E.C., [2000] M.J. No. 434 (Man. C.A.); Thomas v. Woolworth Canada Inc., [1996] O.J. No (Ont. Ct. Jus.); Mustaji v. Tjon, [1996] B.C.J. No (B.C.A.); Dopf v. Royal Bank of Canada, [1988] B.C.J. No. 87 (B.C.C.A.); Hodgkinson v. Simms, [1994] 3 S.C.R. 377; Copland v. Commodore Business Machines Ltd. (1985), 52 O.R. (2d) 586 (Ont. Sup. Ct. - Master s Chambers); Ayangma v. Prince Edward Island, 2000 PEISCAD 12. Appearances: Roger B. Langille, Q.C., for the Defendant/Applicant, Christopher Severance Peter C. Ghiz, for the Plaintiff/Respondent Mark E. Campbell, for the Defendants, PEI Museum and Heritage Foundation, Minister of Education, and Government of PEI

4 Jenkins J.: [1] The Defendant, Christopher Severance, brought a motion before trial to dismiss the Plaintiff s action. The motion is brought under Rule 21 of the Rules of Civil Procedure on four separate grounds that: 1. The Court is without jurisdiction because the Plaintiff had opportunity for redress under the applicable collective agreement. 2. The Court is without jurisdiction because the Plaintiff had opportunity for redress under the Human Rights Act., R.S.P.E.I. 1988, Cap. H The action was commenced outside the limitation period prescribed by the Statute of Limitations, R.S.P.E.I. 1988, Cap. F None of the torts alleged by the Plaintiff is known to law, and the Plaintiff s claims in her Statement of Claim regarding various essential matters lack any factual underpinning. A further ground, i.e., that there was another proceeding pending in Prince Edward Island between the same parties in respect to the same subject matter, was withdrawn after Cause no. S1-GS was discontinued. The other Defendants, the Museum and Heritage Foundation (the Foundation ), Minister of Education (the Minister ), and the Government of Prince Edward Island (the Government ) fully support the motion on the grounds of jurisdiction being preempted by the collective agreement and the action being barred by the Statute of Limitations. [2] The Plaintiff contests the motion on every ground. The parties and the action [3] The background regarding the parties and the action is summarized in my ruling on an earlier motion regarding examination for discovery in 2003 PESCTD 50 rendered June 25, [4] The Foundation is a body corporate pursuant to an Act of the Legislature established and operating under a Board of Governors. The Government appoints the Board, and the Board appoints an Executive Director who is responsible for the overall administration of the affairs of the Foundation. Mr. Severance was Executive Director of the Foundation from 1991 onward. Ms. Oliver was employed by the Government at the Foundation as a permanent, full-time employee, most recently as Curator of Collections. Her employment commenced in In 1995, Ms. Oliver left her employment; first she went on vacation, then onto sick leave, and then in 1996 she

5 Page: 2 went on long-term disability. The Deputy Minister of Education issued Ms. Oliver a final lay-off notice on March 25, Afterwards, Ms. Oliver was was placed on a recall list. In 1999 she applied for and eventually received a severance package. She states that she is still unable to work. [5] Ms. Oliver commenced an earlier action on December 12, 2000; and then commenced this action on June 15, In this proceeding she alleges that between 1992 and 1995, Mr. Severance negligently and intentionally inflicted mental suffering upon her by engaging in conduct, comments, and gestures which he knew or ought to have known would be offensive or humiliating to her, disrespectful, unwelcome, and would cause her mental distress. She asserts that he tormented and harassed her, and that his repeated harassment caused her to suffer mental affliction. She claims his conduct consisted of demeaning, lewd, offensive, and inappropriate remarks and gestures that amounted to torts of assault and sexual harassment, and also amounted to a breach of fiduciary duty in view of his position of power and authority over her. She alleges she suffered psychological and psychiatric difficulties including an emotional breakdown and became unable to work. She asserts that the Foundation Board and the Minister knew or ought to have known Mr. Severance was engaging in this wrongful conduct and they did not act. [6] Ms. Oliver claims against all Defendants for damages regarding the conduct of Mr. Severance toward her. She claims for pain and suffering, loss of past and future income, care and treatment, and punitive damages. The essence of her claim is damages for harassment against Mr. Severance, who was her supervisor or superior, vicariously against the Foundation, the Minister, and the Government, as her employer, for the wrongful actions of their employee, and against the Government defendants for negligently failing to become aware or to act. [7] Ms. Oliver did not at any time initiate a grievance under the Collective Agreement, make any complaint under the Sexual Harassment Policy, or file any complaint of discrimination under the Human Rights Act regarding the claims made in this proceeding. [8] Regarding the long passage of time before this proceeding was commenced, Ms. Oliver claims that she commenced the action within the limitation period because she did not make the connection between the impugned conduct of Mr. Severance and her psychological and psychiatric difficulties until July, 1999, at which time she first became awakened that the harassment having been the cause of her difficulties. Overview of the issues [9] The Defendants first ground is that the legislative scheme applicable to the Plaintiff s employment grants exclusive jurisdiction to an arbitrator under the

6 Page: 3 collective agreement dispute resolution process. [10] The Civil Service Act, R.S.P.E.I. 1988, Cap C-8 governs the terms of service of government employees. Section 43(2) recognizes the Prince Edward Island Union of Public Sector Employees as the authorized representative for all employees under the Collective Agreement. [11] The Plaintiff was an employee covered by the Civil Service Act. In a collective bargaining environment, the Labour Act, R.S.P.E.I. 1988, Cap L-1, s. 37(1) requires a dispute resolution provision in every collective agreement. [12] Section 33 of the Civil Service Act stipulates for a grievance procedure for the orderly resolution of differences between employers and employees. [13] Section 91 of the Civil Service Act Regulations states: (1) The parties shall negotiate a grievance procedure to carry out such functions as may be required under this section and the procedure shall be included in the agreement. (2) Where any dispute or difference of opinion arises as to the interpretation, application, administration, operation or any alleged violation of an agreement including any question as to whether any matter is arbitrable, and such dispute or difference of opinion cannot be settled at any local or other level through consultations, either party to the negotiations may make representations to the appropriate persons or bodies under the grievance procedure, which has been established for consideration of the dispute and achieving a decision. [14] The applicable Collective Agreement contains provisions which protect employees against discrimination and sexual harassment, and which provide for resolution of disputes by grievance and arbitration. Article 5 states particular employee rights: Employee Rights 5.01 There shall be no discrimination practiced [sic] with respect to any employee on the grounds of race, creed, colour, sex, marital status, ethnic or national origin, age, physical disability, membership, lack of membership, activity or lack of activity in the Union No employee shall be required or permitted to make a written or verbal agreement which may conflict with the terms of this Agreement.

7 Page: The Union and the Employer recognize the right of the employee to work in an environment free from sexual harassment and the Employer agrees to take such disciplinary action as is necessary respecting an employee engaging in sexual harassment in the work place. Sexual harassment shall be considered discrimination under this Article Sexual harassment means engaging in a course of vexatious comment or conduct of a sexual nature that is unwelcome and shall include but not be limited to unnecessary touching or patting, suggestive remarks or other verbal abuse, compromising invitations, demands for sexual favours or physical assault An employee who wishes to pursue a concern arising from sexual harassment may, with the approval of the Union, submit a grievance in writing directly to the final level in the grievance process. Grievances of this nature shall be treated in strict confidence by both the Union and the Employer. Article 26 provides a grievance and adjudication procedure. This provides for an orderly system of resolving differences arising out of differences between an employee or group of employees and the employer. These provisions are noteworthy: GRIEVANCE AND ADJUDICATION PROCEDURES Policy The Employer and the Union wish to provide for an orderly system of resolving differences so as to promote a harmonious and cooperative relationship between the Employer and its employees. Use of these procedures shall be free from interference, restraints, coercion or prejudice Application These procedures apply to all employees covered by this Agreement as defined in Article Definitions (c) Grievance means a written complaint by an employee or group of employees (I) arising out of a difference of opinion in respect of him/her or them, over the application, interpretation, administration or alleged violation of this Agreement, any provincial statute or regulation or approved policy or directive which affects his/her terms and conditions of employment, or

8 Page: 5 (ii) appealing dismissal, demotion, suspension or other disciplinary action against him/her, or (iii) appealing a financial penalty Determination of Grievance When a grievance arises, it shall be dealt with in the manner outlined in the following sections, except that a grievance may not be presented on a matter where an appeal procedure is already provided, including but not limited to the classification process Decision Binding For the purpose of these procedures, the decision given at the level immediately below that of the Adjudication Board shall be final and binding upon the employee unless the grievance is of a type that may be referred to the Adjudication Board Procedure for Filing for Adjudication (1) Where an employee is not satisfied with the decision at the level immediately below that of the Adjudication Board... the employee may file the grievance with the Adjudication Board, provided that: (a) it is a dispute between the employee and the Employer with respect to the application, interpretation or alleged violation of the Civil Service Act Regulations or the Agreement; or (b) it is the appeal of a disciplinary award resulting in a dismissal, demotion, suspension or written reprimand; however, in any appeal to the Adjudication Board of a dismissal, the employee must have a minimum of six (6) months continuous service in the classified division; or (c) it is a financial penalty Decision of the Adjudication Board... The decision of the Adjudication Board shall be final, binding and enforceable on all parties to the grievance. The Adjudication arrangement which is deemed just and equitable, provided in no event shall the Adjudication Board have the power to change this Agreement or to alter, modify or amend any of its provisions....

9 Page: 6 [15] The Defendants submit that Article 5.01 guarantees freedom from discrimination in the workplace, Article 5.05 provides an exclusive process for complaints regarding sexual harassment, and Article 26 is a full and effective, final and binding dispute resolution process for complaints regarding workplace conduct, including the subject matter of this proceeding. They contend that all the Plaintiff s allegations relate to interaction in the workplace. This complaint process was open to the Plaintiff to follow; however, the Plaintiff did not make her grievances known or pursue her remedy under this process. [16] The Defendants second ground, submitted in the alternative, is that the alleged harassment is sexual harassment within the rubric of discrimination in the human rights framework. They assert that the subject matter of the Plaintiff s complaint is a form of discrimination covered by the Human Rights Act, such that a complaint to the Human Rights Commission is the legislatively designated process and the Plaintiff is thereby precluded from bringing this civil action. [17] The Defendants third ground is that the Statute of Limitations, R.S.P.E.I. 1988, Cap. F-7, s. 2(1)(d), bars the Plaintiff s action because the action was not commenced within two years after the cause of action arose. [18] Should the Plaintiff s claim be held to remain extant following scrutiny for absence of jurisdiction and being statute barred, then the Defendants fourth ground is a submission that the Statement of Claim discloses no reasonable cause of action. The Defendant Severance submits regarding to the Plaintiff s references to negligent infliction of mental suffering, personal harassment, sexual harassment, and abuse of power and authority, that there are no such torts. In relation to the tort of assault and the claim for breach of fiduciary duty, the Defendant Severance submits the Statement of Claim contains insufficient material facts and particulars to sustain the causes of action. [19] I will address each of the Defendants grounds separately. 1. Jurisdiction of the Court: the Collective Agreement [20] This motion is brought pursuant to Rule 21.01(3)(a), which allows a defendant to 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.

10 Page: 7 [21] The Defendants submit that for the subject matter of this proceeding, the Collective Agreement grievance and arbitration procedure is an exclusive jurisdiction process, and the jurisdiction of the Court is ousted. [22] This ground of the Defendants motion is determinable upon application of the principles stated by the Supreme Court of Canada in St. Anne Nackawic Pulp & Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, which were reiterated in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, and clarified in B.M.W.E. v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495, and most recently in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), [2004] 2 S.C.R [23] Under the exclusive jurisdiction model, if the difference between the parties arises from the collective agreement, the claimant must proceed by arbitration and this Court has no power to entertain an action in respect of that dispute: Weber, at para 50. [24] The question, in each case, including this one, is whether the dispute, in its essential character, arises from the interpretation, application, administration, or violation of the collective agreement. [25] The task at hand of determining the appropriate forum for the proceeding centres on whether the dispute or difference between the parties arises out of the collective agreement. This involves consideration fo two elements: (1) the dispute, and (2) the ambit of the Collective Agreement: Weber, at para. 51. [26] In my assessment, the essential character of the dispute is a claim by the Plaintiff against the Defendant Severance for tortious damages under general rules of tort law governing fault. The essence of her claim is that his acts of harassment caused her to suffer mental suffering regarding which she claims compensation in money damages. The Plaintiff also claims against the other Defendants as the employer of the Defendant Severance based on vicarious liability for their employee s wrongful acts, and against them as her employer for permitting the impugned conduct to occur or being unaware as a result of their negligent administration. The essence of and impetus for her claim is the wrongful conduct toward her which she alleges against the Defendant Severance. [27] Weber recognizes that in the majority of cases, the determination of appropriate forum will be clear; however, that some cases may be less than obvious. This is a case where the answer is less than obvious, and where the factors mentioned in paragraph 52 of Weber shed light on the assessment: The fact that the parties are employer and employee may not be determinative :

11 Page: 8 Here, the subject matter of the action is not an employee reaction or grievance in response to some employer action against the employee or some employer act of bypassing of an employee right. Second, the main thrust of the Plaintiff s allegations in the action, namely a claim of harassment against the Defendant Severance, does not present itself as a subject for determination under the Collective Agreement. Only the pleading of sexual harassment, which appears to me as incidental as opposed to essential to the primary claim, raises consideration that the conduct might be grievable. Third, the employer is not the only defendant. The claim is based in tort committed by the Defendant Severance, a person who is not a party to the Collective Agreement. The Plaintiff s claim is for damages allegedly suffered as a result of an activity within common law cause of action for an intentional or negligent tort. Similarly, the place of the conduct giving rise to the dispute may not be conclusive... not everything that happens on the workplace may arise from the Collective Agreement. : Here, while the Defendant Severance was the Plaintiff s supervisor, the Plaintiff does not allege regarding him any workplace conduct, any impugned action carried out or in the interests of the employer, or even conduct toward her ostensibly in the course of his management of her or the workplace. She alleges the opposite that his conduct, including lewd, offensive, and inappropriate remarks and gestures to and around her, was tortious conduct that served no legitimate workplace purpose and did not contribute to the Foundation. [28] The nature of the dispute in the present case does not fall within the general categories of claim where the courts have readily found lack of jurisdiction. The examples of disputes and case precedents mentioned in Weber, para. 53 share the theme of being employee claims against employer in response to employer initiatives against or omissions toward the grieving employee. [29] It is fundamental to recognize that the exclusive jurisdiction model 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 : Weber, at para. 54. The exclusive jurisdiction model is careful not to close the door entirely to common law actions in exceptional cases in which disputes may arise between employers and employees that concern matters not covered expressly or inferentially by the collective agreement. [30] Foisy v. Bell Canada (1984), 18 D.L.R. (4 th ) 222 (Que. Sup. Ct) is the example case referred to in Elliot v. De Havilland Aircraft Co. of Canada Ltd. (1989), 32 O.A.C. 250 (Ont. Div. Ct.), at p. 58, which was cited by McLachlin J. In Weber, at para. 54. In Foisy, a union and an employer settled a grievance of unjust dismissal brought by an employee, and she was reinstated. The terms of settlement precluded further action in

12 Page: 9 the courts or before a human rights tribunal. The grievor did not sign this agreement. Subsequently, she brought an action for damages for wrongful dismissal claiming extra-contractual damages. The action was based on an allegation of sexual harassment by her supervisor. The court found it had jurisdiction to hear the claim. While the arbitrator had jurisdiction over contractual damages arising from a dismissal without cause, delictual damages, such as arise in an abusive dismissal, were held to be justifiable in a court, since the claim rested on abus de droit and the civil fault of the employer or its representative. Abus de droit and offences were held to not fall within the realm of collective relations nor of the working conditions agreed to by the parties in a collective agreement, but were personal damage involving the individual that the union has no authority to negotiate or settle. It was found that the plaintiff had been dismissed on a pretext because she refused her supervisor s propositions. The supervisor had acted in a vexatious and malicious manner. Therefore, there was bad faith and the claim for extra-contractual damages to compensate for psychological trauma and social and professional isolation following her dismissal was admissible. The employer was held responsible for the wrongful actions of its representatives, officers and executives. [31] Foisy and De Haviland were considered by Weber to be instructive about such exceptional cases in which disputes may arise that concern matters not so covered by the collective agreement. This instruction is, of course, qualified by the need to consider the particular collective agreement provisions. [32] Graham v. Strait Crossing Inc., [1999] 1 P.E.I.R. 61 (P.E.I.S.C.A.D.) is a Weber analysis. Though readily distinguishable from the present case, on its facts Graham is an illustration of judicial recognition in this jurisdiction of the possibility of a dispute sited on the workplace and between employer and employee being a matter not arising out of a dispute covered by the collective agreement, and thereby being a matter over which the court retained jurisdiction. [33] The ambit of the collective agreement is the other element for consideration. The Plaintiff was an employee covered by the Collective Agreement. The applicable labour legislation recognizes the Plaintiff s Union as the exclusive bargaining agent and requires a dispute resolution provision for final and binding settlement by arbitration of all differences between the parties arising from the interpretation, application, administration, operation or alleged violation of the Collective Agreement. The Collective Agreement sets out employer and employee rights and obligations, and includes procedures for grievance and adjudication. I have reviewed the Collective Agreement. [34] In my assessment, the ambit of the Collective Agreement does not cover the essence of the Plaintiff s claim in this action. Grievance as defined in Article 26.03, does not directly or inferentially cover the Plaintiff s tort claim in its surrounding factual matrix, which alleges offensive conduct amounting to harassment that is

13 Page: 10 personal as opposed to being work-related. The Collective Agreement does not cover the legal claims, which are in tort as opposed to breach of collective agreement. The Collective Agreement does not cover the kind of damages sought, which are tort damages that fall under the general rules governing fault, as opposed to contractual damages for breach of the employee s rights regarding her employment described and protected by the Collective Agreement. [35] The submissions about the effect of particular provisions of the Collective Agreement can be disposed of summarily. They are internal provisions that apply to matters that fall within the ambit of the Collective Agreement; and they mean what they say. Article 5.05, which states that an employee may submit a grievance, merely means that she can choose to grieve or not. This internal provision reflects the overall legislative scheme which provides for the arbitration provisions to resolve all differences regarding the application, interpretation, administration, or alleged violation of the Collective Agreement. Similarly, Article 26.19, which stipulates that arbitration decisions are final and binding, pertains to decisions regarding all differences which are covered by the Collective Agreement and means just that. These Collective Agreement provisions effectively address exclusivity of the grievance process and finality of the arbitrator s decision regarding all matters covered by the Collective Agreement; however, they do not extend to matters that are not covered by the Collective Agreement. [36] Some instruction can be taken from the recent Supreme Court of Canada decision in Goudie v. Ottawa (City), [2003] 1 S.C.R In that case, which dealt with a distinguishable matter, a pre-employment contract, Binnie J advised of the need for this evaluation to place sufficient weight on the essential character of the dispute and not to place too much weight on the collective bargaining environment. [37] In B.M.W.E. v. Canadian Pacific Ltd. McLachlin J. for the Supreme Court dealt with the ever-present possibility of matters arising which are not covered by the statutory scheme for resolution of differences between employees and employers that is spearheaded by a collective agreement, and the rationale for residual recourse to the courts. The issue in B.M.W.E. of residual discretion where there is no adequate alternative remedy is not directly present in the present case. However, the general principle of this statement does apply here: 8. The employer further argues that the dispute resolution mechanism provided by the Code is exclusive, and bars any other remedies. The court, it says, disregarded the comprehensive contractual and statutory scheme designed to govern all aspects of the relationship of the parties in a labour dispute. The difficulty with this argument lies in the assumption that the Code covers all aspects of any labour dispute. In this case, the fact is that the Code did not cover all aspects of the dispute. No matter how comprehensive a statutory scheme for the regulation of disputes may be, the possibility always remains that events will produce a difficulty which the

14 Page: 11 scheme has not foreseen. It is important in these circumstances that there be a tribunal capable of resolving the matter, if a legal, rather than extra-legal, solution is to be found. It is precisely for this reason that the common law developed the notion of courts of inherent jurisdiction. If the rule of law is not to be reduced to a patchwork, sometime thing, there must be a body to which disputants may turn where statutes and statutory schemes offer no relief. [38] The Collective Agreement stipulates various employee rights regarding job security, working conditions, benefits and the like. In addition, Article 5 of the Collective Agreement sets out particular employee rights: not to be discriminated against, and to work in an environment free from sexual harassment. This provision includes the Employer s agreement to take appropriate disciplinary action against an offending employee. Article 5 broadens the ambit of the Collective Agreement. As a result of its presence, this case is a closer call than it otherwise would be. However, in my assessment, the presence of Article 5 does not extend the ambit of the Collective Agreement to cover the essence of the subject matter of the Plaintiff s action. The essential character of the Plaintiff s action is a claim against the Defendant Severance for damages resulting from his alleged harassment of the Plaintiff. It is not a response to any employer treatment of her in the course of her employment, whether by the Defendant Severance or otherwise. The Plaintiff s claim does allege that sexual harassment also occurred; however, her primary claim is for tortious conduct which I am summarizing here as harassment, and which not limited by the adjective sexual. The Plaintiff claims regarding the negligent or intentional inflicting of mental suffering upon her... by engaging in behavior which included conduct, comments and gestures that he knew or ought to have known would be offensive and humiliating to her. This is the tort alleged and the tort remedy sought. The Plaintiff does not claim she was discriminated against. [39] The Government and the Union developed a Workplace Harassment Policy. This Policy became part of the Collective Agreement on April 01, This Policy pertains to personal harassment, sexual harassment, and abuse of authority, and establishes a process for handling and resolution of complaints. [40] I accept the Defendants submission that this Policy has no application to the present case. The Policy was not part of the Collective Agreement during the period of the Plaintiff s employment at the Foundation. [41] Previously, the Government and the Union had developed a civil service workplace harassment policy dated March This policy was not at that time part of the Collective Agreement. Regarding this motion, the existence of this policy during material times anecdotally supports the notion that the Collective Agreement was not then all-encompassing. Under this policy, there are three classifications of harassment in the workplace personal harassment, sexual harassment, and abuse of authority. The Plaintiff s allegations against the Defendant Severance are primarily

15 Page: 12 and mainly in the nature of personal harassment. The policy advises a range of options for employee redress, including both grievance and civil action. I surmise that the civil action route would only be available to union members to the extent that the subject matter of a complaint was not a matter covered expressly or inferentially by the Collective Agreement. The presence of this policy outside the Collective Agreement suggests the view that the Collective Agreement was, at the time, lacking in dealing with the issue of workplace harassment. The subject matter of a complaint that is beyond the ambit of the Collective Agreement would be beyond the jurisdiction of an arbitrator appointed under the Collective Agreement, and any such arbitrator would be without jurisdiction to determine the matter or to grant a remedy. That was essentially the situation in Danilov v. Atomic Energy Control Board, [1999] O.J. No. 3735, (Ont. C.A.). While not factually analogous, Danilov is an illustration of residual jurisdiction where grievance procedure did not permit an employee to take a particular kind of dispute to binding arbitration under a collective agreement. See also Pleau (Litigation Guardian of) v. Canada (Attorney General) (1999), 182 D.L.R. (4 th ) 373 (N.S.C.A.), at p. 4. [42] Weber discusses the importance of effective redress. Article 5 only addresses the Employer obligation to impose effective discipline against an offender and thereby arguably raises the spectre of the grieving employee being limited to the satisfaction of seeing such discipline imposed. Upon that notation, I wish to clarify that I do not base this decision on any perceived limitation on the ability of an arbitrator to grant effective relief. The emerging caselaw suggests that upon determination of a breach of the collective agreement, an arbitrator has authority to award consequential damages. As was stated in Foisy, supra, and cases preceding Foisy, if claims for damages are made during a grievance, the arbitrator has jurisdiction to award them and the union can represent the grievor s interests and negotiate a settlement in her name. However: However, a distinction must be made between contractual damages arising from dismissal without cause, which fall under the jurisdiction of the arbitrator, and delictual [from a tort or crime] damages which fall under the general rules governing fault, such as the abusive dismissal alleged here. [43] More recently, in Piko v. Hudson s Bay Co. (1998), 41 A.R. (3d) 729 (Ont. C.A.), recognition was given that arbitrators may apply common law principles in awarding damages. That Court further held that the breadth of an arbitrator s power to award damages does not necessarily determine whether Weber applies. See also Nova Scotia (Public Service Commission) v. N.S.G.E.U. (2004), 125 L.A.C. (4 th ) 353 (N.S.C.A.). In Piko, Laskin J. A. decided an action for malicious prosecution could be maintained in court even though the arbitrator had the implied power to grant redress; because the employee s claim did not arise under the collective agreement, the arbitrator s power was not a factor.

16 Page: 13 [44] I understand and proceed on the basis that the exclusive jurisdiction model gives full credit to the language of the labour relations statutory regime, including the provisions of Article 5 which broaden the ambit of the Collective Agreement. There is to be commensurate judicial deference in response. The issue here is not that an arbitrator cannot award an adequate remedy, it is that the Collective Agreement does not expressly or inferentially cover the matter in dispute. [45] The Quebec case, which is Supreme Court s most recent statement, is a further clarification on assessing the scope of jurisdiction. There, McLachlin J. (at para. 11) clarified that in Weber, the exclusive jurisdiction model applied in view of the particular governing legislation when applied to the facts of the dispute. She then added this qualification: 11. However, Weber does not stand for the proposition that labour arbitrators always have exclusive jurisdiction in employer-union disputes. Depending on the legislation and the nature of the dispute, other tribunals may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction. [46] The Quebec case turned on whether the legislation in question conferred exclusive jurisdiction on an arbitrator under a collective agreement or the arbitrator had jurisdiction concurrent with a human rights commission. McLachlin J. for the majority held the matter in issue was not one of exclusive jurisdiction. [47] I do not mention the Quebec case to suggest any movement away from the exclusive jurisdiction model. To be clear, where the dispute arises under the operation fo the collective agreement, then an incidental claim, for example trespass in Weber, will be barred from the courts. But where the claim does not arise under the collective agreement, then the Quebec case advises that other tribunals, or the courts, may have jurisdiction. Here, the sexual aspect of the harassment allegation is incidental to the central and basic allegation of tortious conduct in the nature of harassment, and the court remains the proper forum for consideration fo the claim. The Plaintiff never brought a grievance for sexual harassment. Viewed in its factual matrix, the present case is not a dispute over which the arbitrator has or would have had exclusive jurisdiction. In its essential character, it does not arise out of the operation of the Collective Agreement. [48] This is not a case where the Plaintiff has creatively pleaded to confer jurisdiction by grafting on a cause of action outside the Collective Agreement or adding a party so as to turn a dispute which should be a grievance into a tort claim. A dispute is to be viewed in its essential character, not formalistically. Different factual settings will produce different results. Here, the essence of the claim is in tort, and the defendant against whom the tortious conduct is alleged is a person who is not a party to the Collective Agreement.

17 Page: 14 [49] The Quebec case recognises that depending on the circumstances, a party to the action not being a party to the collective agreement can be a factor in the determination of jurisdiction. Although the Quebec case and the present case are readily distinguishable, this statement is interesting for the present case. In declining to fault the plaintiff for not bringing a grievance, McLachlin J. stated (at para. 29): 29. Third, even if the unions had filed a grievance on behalf of the complainants, the arbitrator would not have jurisdiction over all of the parties to the dispute. Although the local unions and school boards were not involved in negotiating and agreeing to the clause impugned as discriminatory, the grievance and arbitration process set out in the collective agreement is directed at the resolution of disputes between the local unions and the school boards and not at those arising between the unions and the respondents that did actually agree to this provision. Although the Centrale des syndicats du Quebec, the Fédération des syndicats de l enseignement and the Minister are authorized to intervene in arbitration proceedings, there is no formal mechanism to bring these parties before the arbitrator. [50] In the present case, the Plaintiff alleges common law tortious conduct against the Defendant Severance. The impugned conduct was not related to the Plaintiff s work performance, is not confined to sexual harassment, and she wants to pursue her claim against all Defendants for damages in court. In the circumstances, she can do that. [51] The Defendants submit that the Ontario court of Appeal compendium of cases stands for the proposition that a complaint made in relation to a person who is not a party to the Collective Agreement does not give the court jurisdiction. That was a determination in some of those cases. However, that is not how I would frame the principle to be drawn from these cases. The instruction from those cases is that jurisdiction depends on the outcome of the Weber analysis, even where there is creative pleading or addition of parties. The determinative question is whether the claim arises under a collective agreement. Parties cannot avoid collective agreement arbitration simply by pleading a common law tort, or bringing an action against the supervisor for work-related conduct; but where the essential nature of the claim lies outside the scope of the collective agreement, then the action will lie outside the collective agreement. In Piko, a claim for mental distress caused by criminal proceedings was held to be an action outside the collective agreement. Laskin J.A. concluded (at para.18): 18. The difference between this case and cases such as Ruscetta and Dwyer is that although the dispute between the Bay and Piko arises out of the employment relationship, it does not arise under the collective agreement. A dispute centred on an employer s instigation of criminal proceedings against an employee, even for a workplace wrong, is not a dispute which in its essential character arises from the interpretation, application, administration or violation of the collective agreement.

18 Page: 15 In Giovno v. Pappas (1999), 170 D.L.R. (4 th ) 160 (Ont. C.A.), using Weber and Piko as its platform, the Court decided that a civil action relating to a health and safety grievance in which a provincial tribunal and one of its members were joined as defendants was barred. At the heart of the Court s decision was not an absolute statement about identity of parties, but rather a factual assessment of the matter in dispute and the scope of the collective agreement. Goudge J.A. found all the facts in dispute to be workplace related. The impugned memorandum...addressed a workplace problem, namely how Ms. Giorno did her work.... The collective agreement was seen to be board enough to cover the claim and any redress that would appropriately be awarded. The presence of defendants who were not parties to the collective agreement did not affect this conclusion in that case because Giorno had treated the Board as part of the employer, and the Board employee Pappas, who had written the impugned memo, was in the circumstances considered not an important factor, because the dispute in its essential character still arose under the collective agreement. Goudge J.A. concluded (at paras 28-29): 28. These decisions [Ontario Court of Appeal cases, Piko, Rucetta, Graham, Dyer and Giorno] 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. [emphasis added] [52] I have considered the two Federal Court cases Cahill v. Canada, [2001] F.C.J (T.D.) and Marinaki v. Canada, [2001] F.C.J. No (T.D.). These cases were offered for the proposition that the Collective Agreement, which Defendants counsel suggested is comparable to the federal labour relations statutory regime, is a full code for resolution of labour disputes. Upon examination, these cases seem reconcilable with my assessments in the present case. [53] In Cahill, the subject matter of the dispute was Cahill s complaint about the employer treatment of him for his harassment of another employee, regarding which Cahill had previously grieved. Cahill s complaint was in response to an employer action against him. The Prothonotary struck out his claim because all of the employer s impugned conduct was found to come explicitly or inferentially within the collective agreement and related harassment policy and within the associated grievance procedure.

19 Page: 16 [54] The underlying facts in Marinaki are somewhat similar to the present case. In her claim, Marinaki sought damages resulting from harassment and intentional infliction of nervous shock. The claim arose from alleged sexual harassment and other inappropriate behavior by her employer. However, the cases are distinguishable on the issues in the motion. Marinaki had taken advantage of the grievance procedures. Her disputes were found to have arisen out of the conduct of her colleagues and advisors and to be under the collective agreement. In his Weber analysis, the Prothonotary identified the supervisor s treatment of Marinaki as work-related allegations selective enforcement of medical leave, assignment to the most undesirable tasks, excessive documenting her everyday actions, and abusing his authority as her acting supervisor. Marinki did not sue her supervisor personally, only her employer. Essential to her claim was that she informed her employer of the problem, and the responsible Director disregarded her and her physicians. Marinaki was found to have submitted to the collective agreement adjudication process. Regarding the applicable collective agreement, its language was found to be broad, such that its wide ambit covered the subject matter of the action, and permitted a grievance, which Marinaki had unsuccessfully pursued. Marinaki was decided based on its facts and the applicable legislative regime. Marinaki includes a Weber analysis, which expressly acknowledges there will be cases that do not come under the collective agreement (at para 29): 29. The plaintiff argues and quite appropriately, that a collective agreement does not take away a plaintiff s right to sue for a tort which does not involve the infringement of the plaintiff s right under the collective agreement, or does not arise out of the collective agreement. (See, Banerd v. Canada (Deputy Minister of National Revenue) ( Banerd ) [1996] F.C.J. No. 260 (C.A.), Watt v. Canada (Transport) ( Watt ), [1997] F.C.J. No. 780 (T.D.), aff d [1998] F.C.J. No. 49 (C.A.), leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 118; Pleau v. Canada ( Pleau )... (N.S.C.A.) leave to appeal to S.C.C. refused, [2000] S.C.C.A. No Jurisdiction of the Court: the Human Rights Act [55] This motion is brought pursuant to Rule 21.01(3)(a), which allows a Defendant to 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. [56] The Defendants submit in the alternative that the Plaintiff could have pursued her allegations against Mr. Severance by bringing a complaint under the Human Rights Act. They submit that sexual harassment is sexual discrimination, that there is no common law cause of action for discrimination, and that the human rights legislation forecloses the avenue of a civil action which the Plaintiff is attempting to pursue. [57] In my assessment, as was discussed regarding Ground No. 1, the foundation and essential character of the Plaintiff s claim is damages for personal harassment. She

20 Page: 17 alleges that the Defendant Severance intentionally or negligently inflicted mental suffering upon her, and that each of the Defendants is liable to her for Mr. Severance s actions and the resulting injury that she suffered. The Plaintiff also pleads sexual harassment; however, at this stage, the sexual character or qualification of the harassment appears as incidental, perhaps even superfluous. The allegations of infliction of mental suffering and harassment can stand without the descriptor sexual. The Plaintiff does not claim the harassment against her was because of or only regarding her gender. More importantly, she specifically refutes the Defendant Severance s suggestion that she alleges discrimination. In her Statement of Claim, there is no pleading discrimination or facts alleged from which discrimination would be inferred. [58] The Human Rights Act forecloses a civil action based on a breach of that statute and also forecloses a common law action based on invocation of the public policy expressed in the Human Rights Act: Ayangma v. Prince Edward Island (2000), P.E.I.J. 50, para. 5 (P.E.I.S.C.A.D.); and Board of Governors of Seneca College v. Bhadauria, [1981] 2 S.C.R [59] Discrimination is defined in s. 1(d) of the Act; and Part 1 of the Act prohibits discrimination in various manifestations. The Plaintiff s claim does not appear to come within the Human Rights Act or the public policy thereby expressed. The Plaintiff does not allege any breach of a statutory duty, or any discrimination. My analysis on this motion fully respects the direction in Ayangma: that the Act contains a declaration of policy and provides a comprehensive scheme for advancement and enforcement. It is not shown in the present case that the Plaintiff s claim is based on a breach of the Act or on the public policy expressed therein. [60] The Statement of Claim pleads that the behaviour of the Defendant Severance amounts to the tort of sexual harassment. Sexual harassment is a form of sex discrimination: Janzen v. Platy Enterprises Ltd., [1989] 1 S.C.R However, sexual harassment does not always constitute sex discrimination: Janzen, at paras. 42, 44, and Part V, paras The issue there was whether sexual harassment of the type alleged by the Plaintiff constituted discrimination based on sex. Dickson C.J. stated it is recognized...that certain forms of sexual harassment constitute sex discrimination. Both sex discrimination and sexual harassments are considered broad concepts, encompassing a wide range of behaviour. Although the scope of discrimination based on sex is portrayed in Janzen as broad, so as to absorb the bulk of manifestations of sexual harassment that might occur in the workplace, the two terms are not necessarily synonymous; Sexual harassment is not entirely subsumed by discrimination. In the present case, the trial evidence may yet show the conduct alleged by the Plaintiff to involve discrimination, but that is not shown so far. In the present case, Ms. Oliver does not allege that Mr. Severance was seeking any sexual favour; she does not assert the impugned actions were gender related; and she does not allege any differentiation regarding her or her working conditions. She does not