Baxter v. Harder, 2011 ABQB 730

Court of Queen ’ s Bench of Alberta Citation: Baxter v. Harder, 2011 ABQB 730 Date: 20111124 Docket: 1101 09695 Registry: Calgary Between: Susanne E. Baxter Plaintiff - and - Kelly Harder Defendant _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice K.M.

Eidsvik _______________________________________________________ [ 1 ] The Plaintiff, Susanne Baxter, has brought this action seeking a restraining order against her work team leader at the Canada Revenue Agency (the “CRA”), the Defendant Kelly Harder, on the basis that, according to the Statement of Claim, Ms. Kelly “was emotionally abusive and bullied the Plaintiff in the office ... and management has refused to address the problem.” [ 2 ] The interim application in this matter was heard on July 26, 2011. It was adjourned to a special before me on November 1, 2011.

The Defendant in the meantime brought a cross application to have the Statement of Claim struck out on the basis that this court did not have any jurisdiction in the circumstances. The Defendant argues that the claim is in essence an employment-related dispute and that Plaintiff has her remedies as a union employee with the CRA under the Public Service Labour Relations Act , S.C. 2003, c. 22 (the “ PSLRA ”).

Decision [ 3 ] After an extensive review of the very lengthy affidavits filed by the Plaintiff and the affidavit filed by Kelly Harder, I dismiss the application for a restraining order and allow the application to have this Statement of Claim struck out for the following reasons. Reasons [ 4 ] This court has the inherent jurisdiction to order that a person be restrained from being near another person, or from contacting that person directly or indirectly, in situations where the first person has reason to fear for her (and occasionally his) physical or mental safety.

It is a blunt, and most often temporary, instrument that can allow for the immediate arrest and detention of the offending person if they breach the order. The evidence usually required is in the nature of examples of acts by the offending person that have recently caused personal injury or property damage, or acts that create a reasonable fear of an imminent injury or damage. This can include serious threats, intimidation and other such psychological injury. [ 5 ] Here in my view there is no evidence of any acts committed by Ms.

Harder that reach anywhere near the level of concern that is required before a restraining order will be granted. Instead, upon a review of the evidence, what is clear is that the Plaintiff has a history of serious interpersonal relationship problems with many of her supervisors, including the Defendant Kelly Harder that are workplace related.

They include complaints with respect to the way her absences are recorded (sick days versus vacation), the way her performance reviews are completed, the way her consent was obtained to get follow medical information about her alleged disabilities, etc. etc. [ 6 ] The Plaintiff has handled her problems with her supervisors by taking the appropriate action of filing grievances with her union.

Further, to the extent that things flared up - on those occasions which she suggested that she felt that her “safety” was compromised - she dealt with the situations by ignoring her supervisor on one occasion, by attending meetings with another person, such as a union representative on another, and by moving into the coffee room to avoid a confrontation in yet another. These are just examples of how she manages the situations that she finds difficult. [ 7 ] After years of issues with various supervisors, it was only when her request to transfer out of Ms.

Harder’s team was refused in July 2011 and her “action plan” was continued for a further three months, that she threatened to, and then did bring this application for a restraining order against her. [ 8 ] In my view, the proper dispute resolution mechanism that guides the resolution to the workplace problems encountered by the Plaintiff, even accepting her version for the purpose of this application, are governed by sections 208 and 236 of the PSLRA . In particular, section 236 (1) which reads: 236

(1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute. [ 9 ] In Duyvenbode v. AG of Canada et al (2007) unreported, court file, 03-CV-24483, Ont SCJ, Justice Hackland said at para. 14: The terms of the Agreement, along with the PSSRA [the pre-existing Act] or the PSLRA constitute a comprehensive and exhaustive regulatory scheme that allows for the resolution of all employment related disputes within the federal public service.

(Information in square brackets mine) [10] The matters that were raised in that case were more in the nature of discrimination complaints versus a restraining orderrequest as here.

In that case, since all the evidence pointed to matters covered under the legislation, there was no cause of actiondisclosed and the action was struck out. [11] Similarly here, there is no evidence in my view of problems that do not fall within the scope of grievance remedies set out inthe PSLRA and as such I allow the Defendant’s action to strike out the Statement of Claim since it discloses no cause of action. [12] I am not saying that a restraining order may never be appropriate in the federal workplace setting if there was evidence tosupport it.

This court continues to have inherent jurisdiction to step in for the protection of a person if their safety is imminently in peril -but there is no evidence that this is the case here. This jurisdiction in my view is very limited and should be exercised only in the clearestof cases. In this regard, the following from the Court of Appeal of Ontario case Bron v. Canada (Attorney General) 2010 ONCA 71 isrelevant. Justice Doherty said at para. 32: Finally, the appellant argues that a superior court must maintain an inherent jurisdiction despite whatever language may be used in s.236.

He relies on Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., (SCC), [1996] 2 S.C.R. 495, at para. 8. As I read that case, it stands for the proposition that a superior court hasinherent jurisdiction to provide a remedy where the relevant statutory scheme does not speak to the circumstances at hand. In otherwords, the court's inherent jurisdiction can fill remedial lacunae in legislation. There is no legislative gap here.

Section 236 speaksdirectly to workplace complaints that are grievable under the legislation. For those complaints, even when there is no access tothird-party adjudication, the grievance procedure operates "in lieu of any right of action"... [13] The court takes some solace that Ms. Baxter is happy with her union representation as she said that her union is “workingaround the clock” to help her. She should continue to pursue those avenues. Costs [14] The Defendant was successful in her application and therefore costs on column 1 of

Schedule C of the Rules of Court ofAlberta are allowed in her favour. Heard on the 1st day of November, 2011. Dated at the City of Calgary, Alberta this 24th day of November, 2011. K.M. Eidsvik J.C.Q.B.A. Appearances:

Susanne Baxter for herself Wendy J. Bridges Department of Justice Canada for the Defendant