Giorno v. Pappas (1999), 42 O.R. (3d) 626

  • Document:
  • Date: 2018

Giorno et al. v. Pappas et al.

[Indexed as: Giorno v. Pappas]

42 O.R. (3d) 626

[1999] O.J. No. 168

Docket No. C29085

Court of Appeal for Ontario

Carthy, Laskin and Goudge JJ.A.

January 22, 1999

 

 

Employment — Jurisdiction — Plaintiff bringing action for damages for defamation arising from memorandum written by fellow employee which was circulated in workplace — Plaintiff member of collective bargaining unit — Dispute arising under collective agreement — Court having no jurisdiction over subject matter of action — Fact that relief sought from person other than employer irrelevant.

The plaintiff was an employee of the defendant Crown in right of Ontario, working in the Ministry of Housing. She was a member of the bargaining unit set out in a collective agreement between the Crown in right of Ontario and the Ontario Public Service Employees Union. That agreement was made pursuant to the Crown Employees Collective Bargaining Act, R.S.O. 1990, c. C.50, s. 19(1), which provides for final and binding arbitration of any differences between the parties arising from the interpretation, application, administration or alleged contravention of the collective agreement. The plaintiff was seconded to the defendant Ontario Rent Review Hearings Board as an appeal analyst. The defendant P was a full-time member of the Board. He had no direct authority over the plaintiff. The plaintiff felt that she was receiving instructions from a Board member that went beyond her responsibilities as an appeal analyst. She did not complete the work as requested. P took issue with this and wrote a memorandu m criticizing the plaintiff which was circulated to nine other persons who were either senior managers at the Board or in the Ministry of Housing or representatives of the union. The plaintiff filed a grievance under the collective agreement asserting that the employer was not providing her with a safe and healthy workplace. The matter was settled. The plaintiff then commenced an action alleging that she was defamed by P’s memorandum. The defendants moved successfully for an order dismissing the action on the basis that the court had no jurisdiction over the subject matter. The plaintiff appealed.

 

Held, the appeal should be dismissed.

 

A dispute which arises under a collective agreement must be arbitrated and cannot be litigated in the courts. Whether a dispute can be litigated or must be arbitrated turns on the nature of the dispute and the terms of the collective agreement, not on the legal characterization of the wrong alleged. If the arbitrator is empowered to remedy the wrong, then where the essential character of the dispute is covered by the collective agreement, to require that it be arbitrated rather than litigated causes no real deprivation of remedy.

The facts of this dispute were all workplace related. The memorandum was written and circulated in the workplace; it addressed a workplace problem; its author worked on the same team as the plaintiff; and the recipients of the memorandum were all people who could have been expected to be informed of a problem in the plaintiff’s working relationship with P. The collective agreement placed a broad obligation on the employer to provide a safe and healthy workplace. This obligation was seen by the plaintiff to be broad enough to support the relief requested in her grievance and was seen by the parties as sufficient to sustain the relief agreed on in the settlement. There was no reason why it could not have sustained a claim for damages at arbitration, the very relief claimed in the litigation. As the essential character of the conduct complained of by the plaintiff was covered by the collective agreement, the dispute was one that arose under the collective agreement and had to be resolved in the arbitration pro cess rather than in the courts. It was irrelevant that relief was sought against a party or parties other than the employer.

 

Piko v. Hudson’s Bay Co. (1998), 41 O.R. (3d) 729, 167 D.L.R. (4th) 479, 39 C.C.E.L. (2d) 46, 99 C.L.L.C. 220-007 (C.A.); Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, 24 O.R. (3d) 358n, 125 D.L.R. (4th) 583, 30 C.R.R. (2d) 1, 183 N.R. 241, 12 C.C.E.L. (2d) 1, 24 C.C.L.T. (2d) 217, 95 C.L.L.C. 210-027, folld

 

Other cases referred to

 

Dwyer v. Canada Post Corp., [1997] O.J. No. 1575 (C.A.); Ruscetta v. Graham (1998), 36 C.C.E.L. (2d) 177, [1998] O.J. No. 1198 (C.A.)

 

Statutes referred to

 

Crown Employees Collective Bargaining Act, R.S.O. 1990, c. C.50, s. 19(1)

Family Law Reform Act, R.S.O. 1990, c. F.3 Rules and regulations referred to

Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(3) (a)

 

APPEAL from a judgment dismissing an action for damages for defamation for lack of jurisdiction.

 

Pellegrino Capone, for appellants. Stephen R. Moore, for respondents.

 

The judgment of the court was delivered by

 

GOUDGE J.A.: — This appeal requires this court to again address the reach of the holding in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, 125 D.L.R. (4th) 583, namely that a dispute which arises under a collective agreement must be arbitrated and cannot be litigated in the courts.

This requires the court to define the essential character of the dispute and if it arises from the interpretation, application, administration or violation of the collective agreement then the Weber principle precludes the court from taking jurisdiction.

In this case, the appellants commenced an action alleging defamation of the appellant Ana Giorno arising from a memorandum of October 5, 1990 authored by the respondent Pappas. Madam Justice Bellamy determined that the principle in Weber applies to this dispute and, as a consequence, the court has no jurisdiction over the subject matter of the action. She therefore allowed the respondents’ motion and dismissed the action. For the reasons that follow, I agree with her conclusion.

 

The Facts

 

The appellant Ana Giorno was an employee of the respondent Crown in right of Ontario, working in the Ministry of Housing. She was a member of the bargaining unit set out in a collective agreement between the Crown in right of Ontario and the Ontario Public Service Employees Union. That agreement was made pursuant to the Crown Employees Collective Bargaining Act, R.S.O. 1990, c. C.50. Like most labour legislation, this Act provides in s. 19(1) for final and binding arbitration of any differences between the parties arising from the interpretation, application, administration or alleged contravention of the agreement.

The respondent Ontario Rent Review Hearings Board is established by provincial statute and is charged with regulating rents in Ontario. Its members are appointed by provincial order-in-council to serve at pleasure, but are not included within the definition of employee for the purposes of the Crown Employees Collective Bargaining Act.

The respondent Pappas was a full-time member of the Board.

The appellant was seconded to the Board as an appeal analyst. Her responsibilities included the preparation of documentation for use by members of the respondent Board. Analysts and Board members operated together in teams in order to expeditiously process the work of the Board. However, while Ms. Giorno and Mr. Pappas were on the same team, Mr. Pappas had no direct authority over her. Her line of responsibility was through senior managers in the Ministry of Housing.

In the fall of 1990, Ms. Giorno felt that she was receiving instructions from a Board member that went beyond her responsibilities as an appeal analyst. She sought the advice of her regional manager and was advised not to complete the work as requested.

The respondent Pappas took issue with this and wrote a memorandum dated October 5, 1990 to the Chair of the Board criticizing Ms. Giorno and indicating that he was taking steps to remove her from his team. He also circulated the memorandum to nine others who were either senior managers at the Board or in the Ministry of Housing or representatives of the Union.

On October 11, 1990 Ms. Giorno filed a grievance under the collective agreement asserting that the employer was not providing her with a safe and healthy workplace.

Article 18.1 of the collective agreement sets out a broadly worded obligation on the employer to continue to make reasonable provisions for the safety and health of its employees during working hours.

The relief she requested was that the employer ensure that all harassment cease, that the October 5 memorandum be removed from her file, that Mr. Pappas issue a letter of apology and a retraction to be circulated to all concerned, and that the employer ensure that the reporting relationship be clarified.

On November 14, 1990, at the second stage of the grievance procedure, the parties were successful in settling the matter. For her part, Ms. Giorno withdrew her grievance. For their part, the chair and acting vice-chair of the Board wrote to all members and staff clarifying the working and reporting relationship of appeal analysts and Board members; the acting vice-chair confirmed in writing to Ms. Giorno that Mr. Pappas’ memorandum had not and would not be placed in her personnel file and further advised its recipients to discard the memorandum. The settlement made it unnecessary to proceed to arbitration.

The appellants issued the statement of claim in this action on January 28, 1991. In essence, the action alleges that the October 5, 1990 memorandum defamed Ms. Giorno. It claims damages on her behalf and pursuant to the Family Law Reform Act, R.S.O. 1990, c. F.3 on behalf of the other appellants.

Pursuant to rule 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, the defendants moved successfully before Bellamy J. for an order dismissing the action on the basis that because of the Weber principle the court has no jurisdiction over the subject matter of the action.

 

Analysis

 

The issue on this appeal is whether on these facts the principle enunciated in Weber, supra, precludes the appellants from seeking redress from the respondents in the courts. In Piko v. Hudson’s Bay Co., a judgment of the Ontario Court of Appeal released November 19, 1998 [reported 41 O.R. (3d) 729, 167 D.L.R. (4th) 479], this court recently had occasion to consider Weber.

Speaking for the court, Laskin J.A. said this at para. 9 [pp. 732-33]:

Weber holds that any dispute arising under a collective agreement, regardless of how the dispute is characterized, must be arbitrated, not litigated in the courts. Whether a dispute should be arbitrated or litigated turns on the nature of the dispute and the terms of the collective agreement. No matter how the claim is framed, if “the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement” it must be arbitrated. . . . Parties cannot avoid arbitration simply by pleading a common law tort. This approach reflects the importance of the regime of exclusive arbitration which is central to Canadian labour legislation and which is exemplified by s. 19(1) of the Crown Employees Collective Bargaining Act. Such a regime is designed to resolve workplace disputes expeditiously and economically through the specialized expertise of labour arbitrators. In setting out this approach in Weber McLachlin J. said this at p. 959 S.C.R., p. 604 D.L.R.:

It satisfies the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions. It conforms to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the fights of parties to proceed with parallel or overlapping litigation in the courts

. . .

As Laskin J.A. said, whether a dispute can be litigated or must be arbitrated turns on the nature of the dispute and the terms of the collective agreement, not on the legal characterization of the wrong alleged. The court 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.

It is of no moment that arbitrators may not always have approached the awarding of damages in the same way that courts have awarded damages in tort. In Weber, at p. 958 S.C.R., p. 603 D.L.R., McLachlin J. made clear that arbitrators are to apply the same law as the courts. Laskin J.A. put it this way in Piko at para. 22 [p. 736]:

I do not rest my decision on any differences between the power of courts and the power of arbitrators to award damages for a tort, such as the tort of malicious prosecution. I recognize that arbitrators may apply common law principles in awarding damages, and, more importantly, the breadth of an arbitrator’s power to award damages does not necessarily determine whether Weber applies.

What is important is that the arbitrator is empowered to remedy the wrong. If that is so, then where the essential character of the dispute is covered by the collective agreement, to require that it be arbitrated, not litigated in the courts, causes no “real deprivation of ultimate remedy”. [See Note 1 at end of document.] The individual is able to pursue an appropriate remedy through the specialized vehicle of arbitration. He or she is not left without a way to seek relief.

Turning to the facts of this dispute, they are all workplace related. The October 5 memorandum was written and circulated in the workplace. It addressed a workplace problem, namely how Ms. Giorno did her work. Its author worked on the same team as Ms. Giorno. The recipients of the memorandum were all people who could have been expected to be informed of a problem in her working relationship with the respondent Pappas. Ms. Giorno’s assertion in this dispute is that this memorandum caused her significant harm.

The collective agreement places a broad obligation on the employer to provide a safe and healthy workplace. This obligation was seen by Ms. Giorno to be broad enough to support the relief requested in her grievance. It was seen by the parties as sufficient to sustain the relief agreed on in the settlement. Indeed, I see no reason why it could not have sustained a claim for damages at arbitration, the very relief claimed in the litigation.

In short, I conclude that the essential character of the conduct complained of by the appellants is covered by the collective agreement. The dispute is therefore one that arises under the collective agreement and had to be resolved in the arbitration process. It cannot be resolved in the courts.

Is this conclusion affected by the identity of the respondents? The appellants argue that relief is sought in the civil litigation against the respondent Pappas and the respondent Board, neither of whom are the employer under the collective agreement, the party from whom a remedy is normally sought at arbitration.

I cannot agree that this makes a difference in this case. As to the respondent Board, Ms. Giorno correctly treated it as part of the employer for the purposes of the grievance process. Indeed, the settlement that was reached required certain steps to be taken by Board officers. The civil action against the Board must be seen as an action against an entity which is, for this purpose, part of the employer and subject to the collective agreement. Hence, the Weber principle is applicable to the civil action against this respondent.

As to the respondent Pappas, while he is an employee of the respondent Crown, he had no managerial responsibility over Ms. Giorno. Nor was he an employee covered by the collective agreement. Despite this, given that this dispute arises under the collective agreement the principle in Weber applies. As Laskin J.A. said in Piko, supra, at para. 13 [p. 734]:

Where an employee has sued another employee for a workplace wrong, this court has held that bringing an action against a person who is not a party to the collective agreement will not give a court jurisdiction if the dispute, “in its essential character”, still arises under the collective agreement.

Laskin J.A. was referring to the endorsement of this court in Ruscetta v. Graham (1998), 36 C.C.E.L. (2d) 177, [1998] O.J. No. 1198 (C.A.), leave to appeal to the Supreme Court of Canada refused October 15, 1998, and Dwyer v. Canada Post, [1997] O.J. No. 1575 (C.A.).

These decisions 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.

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.

I therefore conclude that Ms. Giorno’s action against all respondents was properly dismissed as one over which the court has no jurisdiction. No separate argument was advanced to support the claims under the Family Law Reform Act and, in any event, since these claims are derivative in nature, they too were properly dismissed.

I would therefore dismiss the appeal with costs.

 

Appeal dismissed.

 

Notes

 

Note 1:  See McLachlin J. in Weber, supra, at p. 959 S.C.R., 604 D.L.R.