Tammy Martin Plaintiff - v. -, 2011 ABQB 412

Court of Queen ’ s Bench of Alberta Citation: Martin v. General Teamsters, Local Union No. 362, 2011 ABQB 412 Date: 20110629 Docket: 1001 14768 Registry: Calgary Between: Tammy Martin Plaintiff - and - General Teamsters, Local Union No. 362 (also known as Teamsters Local Union No. 362 Real Estate Corporation) Defendant _______________________________________________________ Memorandum of Decision of the Honourable Mr.

Justice Robert Hall _______________________________________________________ [ 1 ] The Defendant applies to strike portions of the Plaintiff’s claim pursuant to Rule 3.68 and to dismiss the remaining parts of the claim pursuant to Rule 7.3. [ 2 ] As to striking portions of the claim, the Court’s authority arises under 3.68(1) of the Rules of Court. Conditions for granting the Order are set out in 3.68(2) as follows:

(

a) the Court has no jurisdiction; (

b) a commencement document or pleading discloses no reasonable claim or defence to a claim; (

c) a commencement document or pleading is frivolous, irrelevant or improper; (

d) a commencement document or pleading constitutes an abuse of process; (

e) an irregularity in a commencement document or pleading is so prejudicial to the claim that it is sufficient to defeat the claim. [3] With regard to condition (

b) above, Rule 3.68(3) provides that no evidence may be submitted on an application based on thecondition set out in that subrule. [4] Rule 7.3 allows the Defendant to seek

summary dismissal of all or part of the claim on the basis that there is no merit to theclaim or part of it. The application for such a

summary judgment must be supported by an Affidavit swearing positively that there is nomerit to the claim, and setting out evidence in support. [5] In the recent case of Donaldson v.

Farrell, Graesser, J. compared Rule 3.68 with the previous Rule 129, and noted thesimilarity between the Rules; and noted that foundational Rule 1.2 describes the purpose of the Rules, being to provide a means by whichclaims can be fairly and justly resolved in or by a court process in a timely and cost effective way. [6] Justice Graesser determined that the new Rule 3.68 has not modified or lessened the test for striking out pleadings, andconfirmed that the test is whether it is plain and obvious or beyond reasonable doubt that the claim cannot succeed. [7] Rule 7.3 is the successor to the previous Rule 159.

That Rule stated that a

summary judgment may be granted if the court issatisfied that there is no genuine issue for trial. The Alberta Court of Appeal noted, in Pioneer Exploration Inc. (Trustee of) v. Euro-AmPacific Enterprises Ltd., 2003 ABCA 298 , [2003] A.J. No. 1305, in a case where the Plaintiff was seeking

summary judgment,that the Plaintiff bears the evidentiary burden of proving its cause of action on a balance of probabilities. If the Plaintiff does so, theevidentiary burden shifts to the Defendant; but the ultimate burden remains, as always, with the Plaintiff. The Defendant can avoid asummary judgment in favour of the Plaintiff by proving that there is a genuine issue for trial. If the Defendant meets this evidentiaryburden, the Plaintiff fails to meet its ultimate burden. It must be beyond doubt that no genuine issue for trial exists. (para. 19) [8] In Tottrup v.

Clearwater (Municipal District No. 99), 2006 ABCA 380 , [2006] A.J. No. 1532 the Alberta Court ofAppeal referenced Pioneer Exploration Inc., supra, and stated that an analogous approach is used where the Defendant applies forsummary dismissal. The Court noted that such a

summary dismissal application will only be granted if it is “plain and obvious” or“clear” or “beyond real doubt” that the action should be dismissed; and that it must be shown by the Plaintiff that there is a “real chanceof success” to avoid

summary dismissal of the action. [9] The Court also went on to state that there are other types of

summary judgment applications where the facts are clear andundisputed. In such cases the test for

summary judgment is not whether the issue of law is “beyond doubt”, but whether the issue of lawcan fairly be decided on the record before the court. A pure question of law can be determined on a

summary application. [10] In Tottrup v. Alberta (Minister of Environmental Protection), 2000 ABCA 121 , [2000] A.J. No. 435 at para. 11,the Alberta Court of Appeal discussed essentials of pleadings: In my view, it is not the allegation of a duty at law that is critical, but the facts alleged supporting such a duty. For example, a Statementof Claim alleging only that “A” breached a duty owed to “B” thereby causing damage does not, in my view, disclose a cause of action.

Pleadings are allegations of fact and, in my view, where negligence is alleged, that allegation must be supported by facts capable ofsustaining a determination that a duty was owed, that

an act or omission occurred breaching that duty, and that damages resulted. On aMotion to Strike it is the allegations of fact that must be examined to determine whether a cause of action exists. [11] The allegations in the Statement of Claim are disparate. Each paragraph alleges a separate wrong to the Plaintiff. I willtherefore review each paragraph of the claim, and then the claim as a whole, in these Reasons.

Paragraph One [12] Para. 1 alleges: On or about August 2007 Danny Atwell, Representative (Shop Steward) of the Defendant witnessed a sexual assault against my personrendering no assistance. [13] This pleading discloses no cause of action. A witness who does not participate but offers no assistance is under no duty to thePlaintiff. [14] The Affidavit of Eichel, para. 21, establishes that Danny Atwell was not an employee of the Defendant, although he was ashop steward at the Plaintiff’s place of business. [15] The pleading cites August 2007 as being the time the incident is alleged to have occurred.

The pleading was filed August 4,2010, which is more than two years after the event, and as such the Defendant is entitled to immunity from the allegation pursuant tosection 3(1) of the Limitations Act, R.S.A. 2000, c.L-12. [16] I would strike paragraph 1, pursuant to Rule 3.68(b). However, since the claim is barred by s. 3.1 of the Limitations Act, it isappropriate to dismiss it. Paragraph one is dismissed.

Paragraph Two [17] Para. 2 alleges: Between August 2007 and February 2010 Faye Fletcher, Representative of Defendant, referred to my person in gender discriminatoryterms, both verbally and in writing threatening to misrepresent me and failed (refused) to represent me on an issue relating to myemployment. [18] Faye Fletcher is not an employee of the Defendant. She was an employer of Byers Transportation Systems Inc. (“Byers”), theemployer of the Plaintiff.

However she did hold a position in the Union as a shop steward. [19] Inasmuch as the claim is one of defamation, it lacks the particularity required by Rule 13.7 for such an allegation and cannotstand on that basis. Further, it fails to allege a publication of the comment to others. Inasmuch as the allegation is that the Defendant hasfailed in its common law duty of fair representation, it is clear from the decision in Gendron v.

Supply & Services Union of the PublicService Alliance of Canada, Local 50057, (SCC), [1990] 1 S.C.R. 1298, that where the Canada Labour Code applies(as in this case, there being a collective bargaining agreement between the Union and employer), and Parliament has codified thecommon law duty of fair representation, that common law duty will not be operative in a situation where the terms of the statute apply.Allowing parties to disputes, which, by their very nature, are those contemplated and regulated by labour legislation, to have recourse inthe ordinary courts would fly in the fact of the demonstrated intention of Parliament to provide an exclusive and comprehensivemechanism for labour dispute resolution. (Gendron, para. 60)

[ 20 ] The decision of the Supreme Court of Canada in Gendron has been adopted by the Alberta Court of Appeal in Koenig v. Marsh , [2005] A.J.

No. 275 , where the Court noted at para. 8: “It is common ground that the court has no jurisdiction over allegations of breach of duty of fair representation and that such allegations must be adjudicated by the Board:...”. [ 21 ] And at para. 9: “If the essential character of the dispute centers around the provision by a union to an employee of fair representation in a labour dispute, then the Board has jurisdiction:...”. [ 22 ] That jurisdiction is granted to the Board by virtue of s. 37 of the Canada Labour Code . [ 23 ] It is alleged that the Plaintiff was referred to in “gender discriminatory terms”.

I am advised that the Plaintiff has made a claim to the Alberta Human Rights Commission. The Plaintiff is precluded from pursuing a common law remedy where Human Rights legislation contains a comprehensive enforcement scheme. Keays v. Honda Canada Inc. [2008] SCC 39; Ahmed v. Edmonton Public School Board [2008] ABQB 351. [ 24 ] As a result of the matters above, the allegations in para. 2 of the Statement of Claim are struck, pursuant to Rule 3.68(a).

Paragraph Three [ 25 ] Para. 3 alleges: On or about January 10, 2008 Doug Guilbault, Representative of Defendant entered my place of residence under false pretenses, violated the terms of the agreement regarding his stay, violated my privacy, made public claims as to his having ownership of my person, made use of false marriage proposal to garner trust, damaged my reputation in the workplace. [ 26 ] Doug Guilbault was an employee of Byers, not of the Defendant. He did have a position as a shop steward within the Union. [ 27 ] It cannot be said that any of the allegations regarding Mr.

Guilbault could have occurred within the course or scope of his position or authority as a shop steward. The Defendant cannot possibly be liable for these alleged transgressions. [ 28 ] There is an allegation of violation of privacy, which wholly lacks particulars. In any event, it cannot succeed. See my discussion regarding Paragraph 9 of the Statement of Claim, below. [ 29 ] The allegations are that the incident occurred on January 10, 2008; hence the claim is barred by

section 3.1 of the Limitations Act . The allegations in paragraph 3 of the Statement of Claim are dismissed. Paragraph Four [ 30 ] In para. 4 it is alleged:

On or about July 28, 2008 Al Porter became party to Doug Guilbault’s violation of my privacy when he made the statement “you were never committed” referencing information gathered by Doug Guilbault during his presence in my home. [ 31 ] Al Porter is the President of the Defendant. The statement alleging “you were never committed”, is not actionable. Further, there is no allegation of publication of such comment.

Further, as it is alleged that the matter occurred July 28, 2008, it is barred by the Limitations Act . [ 32 ] The allegations would be struck pursuant to Rule 3.68(b); they are also dismissed pursuant to Rule 7.3 on the basis of s. 3.1 of the Limitations Act . Paragraph Five [ 33 ] It is alleged: On or about March 2008 Michelle Glubrecht (Business Agent for the Defendant) released private information to me about Mr. Guilbault in a manner designed to do harm to Mr.

Guilbault’s reputation and interfere in private non-work related matters, spreading malicious and defamatory gossip. [ 34 ] No actionable wrong to the Plaintiff is alleged in this paragraph. It cannot possibly found a claim. Paragraph 5 is struck, pursuant to Rule 3.68(b). Paragraphs Six and Eight [ 35 ] It is alleged: 6. From approximately April 2008 to January 2010 I was utilized in the capacity of a Union Representative by various parties of the Defendant and was not compensated for the labor. 8.

On or about the following dates Sept.4/08, Oct15/08, Oct17/08, Oct 24/08, Oct 28/08, Sept 30/08, Nov 19/08 (dates not inclusive) John Doerksen Organizer/Business Agent for the Defendant utilized my services in the capacity of an organizer failing to compensate me for my labor. [ 36 ] These allegations are that the Plaintiff has performed services for the Defendant and has not been compensated for them. The Plaintiff has put forth no evidence in support of those allegations.

The Eichel Affidavit at para. 19 states: The Plaintiff has never been employed by the Teamsters or contracted with the Teamsters to provide services as alleged in the Statement of Claim or at all. There is simply no foundation whatsoever for the Plaintiff’s claim that she is owed remuneration from Teamsters Local 362. [ 37 ] In the absence of any evidence from the Plaintiff, and given the direct and uncontroverted evidence of Mr. Eichel on this point, I am satisfied that there is no genuine issue to be tried. [ 38 ] With regard to the allegations in para. 8, all of them are barred by

section 3.1 of the Limitations Act .

[39] Accordingly, paras. 6 and 8 are dismissed pursuant to Rule 7.3. Paragraph Seven [40] In this para. it is alleged: Between January 2008-December 2009 Jackie Brown, Administrator for the Defendant added undue stress by way of verbal and non-verbal threats and assaults. [41] The Plaintiff has filed no evidence in support of this allegation. Jackie Brown has sworn an affidavit acknowledging that she isthe office administrator for the Defendant.

She swears that there is no merit whatsoever to the Plaintiff’s allegations that she madephysical or other threats of any kind against the Plaintiff, or that she assaulted her as alleged or at all. [42] Again, as that evidence is wholly uncontradicted, I am satisfied there is no genuine issue for trial. Para. 7 is dismissedpursuant to Rule 7.3.

Paragraph Nine [43] It is alleged: On or about June 2009 and again on or about August 24, 2009 Bernie Haggarty, Business Agent for the Defendant violated my rightswith regards to the release of private medical information without first obtaining written consent. [44] Bernie Haggarty has filed an Affidavit in response to this allegation denying that he improperly released any private medicalinformation of the Plaintiff as alleged or at all, and showing the circumstances of his involvement in efforts to allow the Plaintiff’semployer to evaluate whether or not it accommodate the injury restrictions of Ms. Martin.

He deposes that Ms. Martin was present whenhe sent the information and that he did so wholly with her consent. [45] This claim appears to be one of invasion of privacy. In Bank of Montreal v. Cochrane, [2010] A.J. No. 1210, Kent, J.discussed claims for breach of privacy, paras. 6, 7 and 8: 6 The second arguable claim is for breach of privacy.

BMO first says that if there is a statutory claim for breach of privacy bothprovincial and federal legislation require certain conditions to be met before a claim can be brought before a court: see PersonalInformation Protection Act, S.A. 2003, c.P-6.5 and Personal Information Protection and Electronics Documents Act, S.C. 2000, c.5,ss.14-15. These preconditions have not been met. 7 If the pleading claims a common law claim for breach of privacy, BMO argues that there is no such claim: Mohl v. University ofBritish Columbia, 2009 BCCA 249 , [2009] B.C.J. No. 1096 (B.C.C.A.).

BMO also argues that the litigation process isintended to be a public process so that anything contained in pleadings cannot be a breach of privacy. 8 I agree with BMO. [46] In the case referenced by Justice Kent of Mohl v. University of British Columbia, the B.C. Court of Appeal noted at para. 13,“there is no common law claim for breach of privacy”.

[ 47 ] If a claimant wishes to make a claim for damages arising from a breach of privacy, the Personal Information Protection Act , S.A. 2003, c.P-6.5 requires a claimant to proceed with his or her claim before the Commissioner appointed under that Act .

If the Commissioner makes an Order under the Act against an organization, an individual affected by the Order then has a cause of action against the organization for damages for loss or injury that the individual has suffered as a result of the breach of the Act by the organization. (Para. 60 of the Act ) [ 48 ] Therefore, claims for a breach of privacy which have not first proceeded before the Commissioner cannot be heard by the Court. Further, the Affidavit evidence of Bernie Haggarty on this matter, uncontroverted by the Plaintiff, satisfies me that there is genuine issue to be tried.

Paragraph 9 would be struck pursuant to Rule 3.68(a). However, on the uncontroverted evidence of Mr. Haggerty it is dismissed. Paragraph Ten/Eleven [ 49 ] It is alleged: From January 2008 to Feb 1, 2010 Rick Eichel on pretext of befriending me and lending aid to a victim of workplace terrorism as well as to making reparations for the various harms done to my person made various misrepresentations both potentially intentional and unintentional that added undue stress and led to my accepting a contract buyout due to an implied threat of harm against my person made in writing by co-workers. Further to this Mr.

Eichel has made various veiled and illusory offers of reparation and has failed to follow through and comply with or add any substance to the offers. Further to this has made false complaints as to my harassing them in manner as to suggest I’m a terrorist and/or am victimizing them. Training me in such a manner as to creatively and maliciously provide them with materials that could be misconstrued, misused, misdirected, as evidence against me. The use of constructive hiring practices and constructive dismissal. [ 50 ] The Court is unable to make any sense of this allegation. No cause of action is disclosed.

As the Plaintiff was never employed by the Defendant, there can be no “constructive dismissal”. In any event, the Court has no jurisdiction pursuant to the decision in Gendron , supra . [ 51 ] And further, the Eichel affidavit denies these allegations and provides evidence that the Plaintiff accepted a buyout from her employer, and voluntarily signed a Release. The allegations contained in para. 10/11 are dismissed.

Paragraph Twelve [ 52 ] It is alleged : Further, or in the alternative by reason of the acts, lack of acts and threatened acts of some or all of the Defendants alone or in combination have caused the Plaintiff irreparable harm, particulars of which include the follow:(sic) Loss of suitable gainful employment Loss of home and vehicle, medical, dental, pension and other such benefits that are covered by collective Agreements Loss of trust Mental anguish, pain and undue suffering [ 53 ] This allegation is that the matters complained of in the preceding 11 paragraphs have caused the damages alleged.

As I have ruled that all of the preceding paragraphs must be struck or dismissed, para. 12 must necessarily fall.

The Statement of Claim, Taken As A Whole [ 54 ] I have ruled that each of the paragraphs contained in the Statement of Claim must be struck or dismissed.

Looking at the Statement of Claim as a whole, it fares no better. [ 55 ] The gist of the Statement of Claim appears to be that the Defendant Union has failed to properly represent the Plaintiff; a claim that cannot proceed, as this Court has no jurisdiction, pursuant to Gendron , supra . [ 56 ] The Plaintiff further alleges, generally, that the Defendant or its employees or agents have misled her, abused her, invaded her privacy or otherwise acted against her best interests.

On the uncontroverted evidence of the Affiants Eichel, Haggarty and Brown, these allegations, even taken as a whole, must fail. [ 57 ] In reply to the defences grounded on s. 3.1 of the Limitations Act , the Plaintiff argues that she was disabled and therefore saved by the provisions of s. 5 of the Limitations Act . Disability under that

section means more than injured or unwell. I do not accept the Plaintiff’s representations that her health problems constitute a disability such as is contemplated in s.5 of the Limitations Act . She is managing her own litigation. There is no expert medical opinion saying that she was unable or incompetent to make decisions as to commencing litigation in the intervening period between the time of alleged wrongs and the time the action was commenced. See Gayten v. Lacasse [2010] ABCA 123. That defence to s. 3(1) of the Limitations Act fails. Accordingly, paras. 1, 3, 4, 6, 7, 8, 9, 10 and 11 are dismissed.

Paras. 2, 5 and 12 are dismissed. The Defendant shall have costs of the action, including this application, against the Plaintiff in column 1 of

Schedule “C” of the Alberta Rules of Court. Heard on the 7 th day of June, 2011. Dated at the City of Calgary, Alberta this 29th day of June, 2011. R. J. Hall J.C.Q.B.A. Appearances: Tammy Martin for herself Clayton H. Cook for the Defendant