Update about
whether Arbitrators can deal with civil claims for defamation, negligence, intentional infliction of
mental distress, malicious prosecution, etc.
The Courts continue
to rule that it is necessary to look at the "essential character" of claims made
by employees and determine whether they "arise out of the collective agreement".
If the dispute is really about collective agreement issues, then arbitrators have
exclusive jurisdiction and the parties cannot avoid the arbitration process by putting the
dispute in terms of a civil action.
This principle was first established by the Supreme Court of Canada in Weber
v. Ontario Hydro (1995), 125 D.L.R. (4th) 583. Weber was a unionized
employee on extended sick leave. His employer hired a private investigator to determine
whether he was malingering. The investigator’s findings led to the employer
suspending Weber for abusing his sick leave credits. Weber then sued his employer for
damages claiming, in part, invasion of privacy and breach of the Charter. The
Supreme Court of Canada decided that none of Weber’s claims could proceed by way of a
civil action. They all had to be raised at the arbitration.
Recently the Court of Appeal has elaborated on these issues. In Piko
vs Hudson’s Bay Co., unreported, Ontario Court of Court of Appeal, November, 19,
1998, the employee was discharged for fraud and also criminally charged. She sued her
employer for malicious prosecution. The employer sought to strike out her Statement of
Claim on the basis that the essential character of the dispute related to the collective
agreement. This was rejected by the Court of Appeal, which held that the employer
"went outside the collective bargaining regime when it resorted to the criminal
process. Once it took its dispute with [the employee] to the criminal courts, the dispute
was no longer just a labour relations dispute. Having gone outside the collective
bargaining regime, the Bay cannot turn around and take refuge in the collective agreement
when it is sued for maliciously instituting criminal proceedings against [the
employee]."
The employee’s civil action was allowed to proceed. This is not to
say that the employee’s civil action will ultimately be successful. That would only
be determined after a long and individually costly process.
In Giorno v. Papas and Ontario Rent Review Hearings Board,
Ontario Court of Appeal, January 22, 1999, unreported, the Court dealt with the civil
action of an employee of the Ministry of Housing who was suing her immediate supervisor
and the Board where she worked. The employee was the subject of a memorandum in which her
boss criticized her and indicated he was taking steps to remove her from his team. The
employee filed a harassment and occupational health and safety grievance, which was
ultimately settled. Thereafter, the employee filed a civil action saying that she had been
defamed by her supervisor and the Board. The Court noted that it must "examine the
facts of the dispute to determine if the essential character of the alleged conduct is
covered by the terms of the collective agreement". The Court noted that all the facts
took place in the workplace and they seemed to relate to the rights under the collective
agreement. In these circumstances, the Court found that the dispute in its essential
character was covered under the collective agreement.
The Court commented that the individual respondent supervisor was not an
employee covered by the collective agreement and so there was a theoretical possibility
that an action against him could still proceed. The Court nonetheless found that where the
essential dispute relates to collective agreement issues, the arbitration process
"allows the employee to seek an appropriate remedy. 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." The message is that individual employees
will not be able to sue supervisors (or fellow employees) for collective agreement related
issues.
The employee’s action against all of the defendants was dismissed
as one over which the court had no jurisdiction.
The general principle remains that issues which arise out of the
collective agreement are dealt with at arbitration.
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