KNISS v STENBERG, 2014 ABCA 73
CONRAD, BERGER and COSTIGAN JJA
3.68: Court options to deal with significant deficiencies
The Appellant Appealed an Order striking his Application for Judicial Review and Statement of Claim alleging defamation.
The Appellant was employed under a collective agreement by the Respondent, Telus Corporation (“Telus”), and was a union member under the Telecommunications Workers Union (“Union”). When the Appellant was injured in an automobile accident, Telus made attempts to accommodate his injuries, including providing counselling. In one of the Appellant’s counselling sessions, he made unspecified threats towards Telus personnel or property. The counselling employee communicated this threat to the Respondent, Martin Armour, who then communicated this to other Respondents including Ros Maddren, an occupational health adviser and Eric Stenberg, a corporate security investigator (collectively, the “Telus Employees”). Subsequently, Telus decided that the Appellant should undergo psychiatric assessment. The psychiatric assessment was arranged twice, the Appellant refused to attend either, and his employment was terminated.
On behalf of the Appellant, the Union filed an accommodation grievance and a termination grievance. The Arbitrator dismissed the termination grievance and retained jurisdiction over the accommodation grievance. The Arbitrator held that Telus had reasonable and probable grounds for requiring the Appellant to attend a psychiatric assessment and that Telus acted with credible information that there was a potential threat to the workplace. After receiving two legal opinions that there was no basis for Judicial Review of the Arbitrator’s decision, the Union decided against applying for Judicial Review.
The Appellant filed a complaint with the Canada Industrial Relations Board (“CIRB”). He alleged that the Union breached its duty of fair representation on grounds that the Union had failed to represent him fairly at the hearing, refused to seek Judicial Review of the Arbitrator’s decision, and failed to pursue the accommodation grievance. The CIRB dismissed the complaint and further held that once the termination grievance was dismissed, there was no labour relations purpose in pursuing the accommodation grievance. The Appellant applied unsuccessfully for reconsideration of the CIRB’s decision.
The Appellant also filed complaints with the Office of the Privacy Commissioner of Canada and the Canadian Human Rights Commission. Both complaints were unsuccessful.
The Appellant then filed an Application for Judicial Review of the Arbitrator’s decision. Telus applied to strike the Judicial Review Application on the basis that the Appellant had no standing to seek Judicial Review. The Telus Employees applied to strike the Appellant’s Statement of Claim stating that the dispute was solely within the jurisdiction of the Arbitrator.
In deciding whether the Appellant had standing to seek Judicial Review, the Master relied on the principle that once an employee was represented through a collective bargaining agreement, the appellant lost his right to self-representation unless he fell within certain exceptions. The Master held that there were no applicable exceptions and there was no evidence that the Union had been inadequate or unfair in its representation. The Master struck the Appellant’s Judicial Review Application for lack of standing.
With respect to the striking of the Statement of Claim, the Master was satisfied that the Telus Employees’ alleged defamatory comments concerned the Appellant’s character and capacity as an employee. The Master struck the Claim against Stenberg and Armour on grounds that these comments were work related and in the exclusive jurisdiction of the Arbitrator. The Master struck part of Maddren’s claim, but allowed the claim with respect to Maddren’s communication with the Appellant’s physician.
The Appellant Appealed the Master’s Decision and produced fresh evidence. The Chambers Judge concluded that the Master properly struck the Appellant’s Judicial Review Application. The Chambers Judge concluded that the Canada Labour Code (the “Code”) applied and that the CIRB had exclusive jurisdiction to hear claims of inadequate representation. The Appellant had already asked the CIRB to make a decision on the inadequate representation issue and could now not make a claim on the same issue in Court. With respect to the portion that was not struck against Maddren, the Chambers Judge held that Maddren was acting in the course of her business in speaking with the physician. The Chambers Judge struck this portion of the claim holding that it was entirely within the jurisdiction of the Arbitrator.
The Appellant appealed the Order of the Chambers Judge on the following grounds:
1. With respect to striking of the Judicial Review Application against Telus:
(a) The Chambers Judge erred in concluding that the CIRB had exclusive jurisdiction to adjudicate allegations of inadequate representation;
(b) In the alternative, the CIRB did not exercise its jurisdiction and failed to conduct a detailed analysis of how the Union’s counsel handled the grievances or evaluated the competence of the Union’s counsel.
2. With respect to striking of the Claim against the Telus Employees, the Appellant stated that the Chambers Judge used the wrong test for an Application to Strike. Furthermore, the Appellant claimed that the communication between the Telus Employees and people outside of the Telus organization fell outside the ambit of the Arbitrator’s decision and the Court retained jurisdiction.
The Court held that a decision to strike pleadings should be reviewed on a reasonableness standard, since it required an exercise of the Chambers Judge’s discretion, absent an error of law. Extricable questions of law were reviewed on the correctness standard (Eastaugh v Halat, 2009 ABCA 122, at para 14).
With respect to the striking of the Judicial Review Application, the Court held that the Appellant was employed under a collective agreement between Telus and the Union and was subject to the provisions of the Code. The Code applied, the common law duty of fair representation was ousted and the Court had no jurisdiction over the allegations. The Appellant’s argument that the Court had jurisdiction over inadequate representation allegations because the CIRB did not conduct a more thorough investigation was dismissed by the Court on grounds that it was an issue of correctness or adequacy and not an issue of jurisdiction. The Court held that Judicial Review of the Arbitrator’s decision was not an available avenue for reviewing a decision the CIRB rendered in the exercise of its exclusive jurisdiction. Overall, the Court concluded that the Chambers Judge was correct to strike the Appellant’s Judicial Review Application.
With respect to the striking of the Statement of Claim against the Telus Employees, the Appellant claimed that the Chambers Judge applied the wrong test. The Appellant relied on law that when a pleading disclosed no reasonable claim, no evidence can be submitted on the Application and the Court must assume that every fact pleaded is true (Rule 3.68(2)(b) and Rule 3.68(3)). The Court held that the Application was under Rule 3.68(2)(a). Specifically, the issue was with respect to whether the Court had jurisdiction or whether the jurisdiction lay solely with the Arbitrator. Thus, evidence could be admitted on the Application and the Court would not assume that every fact pleaded was true. The Court further held that the Statement of Claim could only be struck if it was plain and obvious that the Court had no jurisdiction and this could only be determined by the evidence and all the surrounding facts. The Court held that the Chambers Judge did not apply the incorrect test.
The Appellant argued that the comments made to Telus Employees were within the ambit of the Arbitrator, but comments made to non-employees were outside of the ambit. The Court stated that the issue could be resolved by considering the essential character of the dispute and the ambit of the collective agreement (Weber v Ontario Hydro,  2 SCR 929). The Court held that the essential character of this dispute arose either expressly or inferentially from the interpretation, application, administration or violation of the collective agreement. Thus, the Court held that the dispute was within the sole jurisdiction of the Arbitrator and dismissed the Appeal.View CanLII Details