Court of Queen ’ s Bench of Alberta Citation: James v. Northern Lakes College, 2012 ABQB 6 Date: 20120105 Docket: 1003 20370 Registry: Edmonton Between: Aloysius James Plaintiff (Respondent) - and - Board of Governors of Northern Lakes College, Lynne Haas and Owen Stanford Defendants (Applicants) Corrected judgment: A corrigendum was issued on January 6, 2012; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of L.A.

Smart, Master in Chambers _______________________________________________________ [ 1 ] The Defendants, the Board of Governors of Northern Lakes College (the College), Lynne Haas, and Owen Stanford (the Individual Defendants) apply to strike the Statement of Claim in its entirety on the basis that the Court has no jurisdiction.

[ 2 ] Alternatively, the Individual Defendants apply to strike the Statement of Claim as against them because it discloses no cause of action. 1. Facts [ 3 ] The College is a public college incorporated pursuant to the Post-Secondary Learning Act , S.A. 2003, c. P-19.5 [ PLSA ].

By Order in Council, the Lieutenant Governor created the Faculty Association of Northern Lakes College (the Association), as required under the PLSA . [ 4 ] The College entered into a collective agreement with the Association in effect from July 1, 2006 to June 30, 2009. [ 5 ] The College hired the Plaintiff, Aloysius James, as an instructor on August 18, 2008. The College notified Mr.

James that he was on a 12 month probationary period beginning on August 18, pursuant to the terms of the collective agreement. [ 6 ] In his Statement of the Claim, the Plaintiff alleges that his supervisor, Owen Stanford harassed him during his employment at the College by: using negative student evaluations of his course to intimidate him; accusing him of causing students to drop out of college; and, contrary to the collective agreement, requiring him to provide a medical certificate for missing one and a half days’ work. [ 7 ] The Plaintiff believes that someone made defamatory statements about him to the Vice President, Lynne Haas, and Mr.

Stanford. The Plaintiff alleges that this defamatory statement is contained in his personal file, and that Ms. Haas released this file to the President of the Faculty Association, Dave Purkis. The Plaintiff claims that Ms. Haas would not release the personal file to him. [ 8 ] The Plaintiff also alleges that the college did not provide him with the necessary equipment and supplies to properly do his job. [ 9 ] On January 7, 2009, the Plaintiff received a letter stating that the college terminated his employment.

The college paid the Plaintiff two weeks’ salary in lieu of reasonable notice. [ 10 ] The collective agreement allowed probationary employees to bring grievances, but prevented their grievances to proceed to arbitration.

Designated Officers appointed by the Board of Governors heard grievances. [ 11 ] The Plaintiff attempted to grieve his termination, but both the Board of Governors and the Association refused to pursue the grievance although during oral argument there was some indication that the Association did take some steps related to his grievance. [ 12 ] On December 14, 2010, the Plaintiff filed a Statement of Claim alleging constructive dismissal, a number of breaches of the collective agreement, harassment by Mr. Stanford, and that Ms. Haas released his personal file to the President of the Association.

The Plaintiff mentions publishing a defamatory statement, but in his Reply to the Statement of Defence the Plaintiff clarified that he did not intend to plead defamation. [ 13 ] The Defendants brought an application to strike the Statement of Claim, pursuant to Rule 3.68 of the Alberta Rules of Court , Alta. Reg. 124/2010, on the basis that the Court does not have jurisdiction. The Defendants argue that the legislative scheme and the collective agreement give exclusive jurisdiction to a labour arbitrator. The Individual Defendants argue that the Statement of Claim discloses no cause of action against them. 2.

Analysis

A) No Jurisdiction [14] Rule 3.68 of the Alberta Rules of Court provides: 3.68(1) If the circumstances warrant and a condition under subrule (2) applies, the Court may order one or more of the following: (

a) that all or any part of a claim or defence be struck out; (

b) that a commencement document or pleading be amended or set aside; (

c) that judgment or an order be entered; (

d) that an action, an application or a proceeding be stayed.

(2) The conditions for the order are one or more of the following: (

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) No evidence may be submitted on an application made on the basis of the condition set out in subrule (2)(b).

(4) The Court may (

a) strike out all or part of an affidavit that contains frivolous, irrelevant or improper information; (

b) strike out all or any pleadings if a party without sufficient cause does not (

i) serve an affidavit of records in accordance with rule 5.5, (ii) comply with rule 5.10, or (iii) comply with an order under rule 5.11. [15] If labour legislation grants exclusive jurisdiction to grievance or arbitration processes under a collective agreement, the Courtwill have no jurisdiction. In Pratt v. University of Lethbridge, 2001 ABCA 134, the Alberta Court of Appeal upheld a Chambers Judge’sdecision to strike a Statement of Claim on the basis that the University’s grievance and appeal procedures had exclusive jurisdiction overthe dispute.

i) When Do Grievance Processes Have Exclusive Jurisdiction? [16] The Supreme Court of Canada, in Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929 [Weber],established how to determine whether a forum identified in legislation and a collective agreement has exclusive jurisdiction over aparticular dispute. In Quebec (Commission des droits de la personne et des droits de la jeunesse) v.

Quebec (Attorney General), 2004SCC 39 at paras. 14-15 [Morin], McLachlin C.J. elaborates on the process for determining whether a forum has exclusive jurisdiction: [T]he question in each case is whether the relevant legislation applied to the dispute at issue, taken in its full factual context, establishesthat the labour arbitrator has exclusive jurisdiction over the dispute.

This question suggests two related steps. The first step is to look at the relevant legislation and what it says about the arbitrator’s jurisdiction. The second step is to look at the nature of the dispute, and see whether the legislation suggests it falls exclusively to the arbitrator.

The second step is logically necessary since the question is whether the legislative mandate applies to the particular dispute at issue. [ 17 ] On the basis of Weber , and the elaboration in Morin , a court must first determine what jurisdiction the legislation gives to a decision maker and, second, decide whether the nature of the dispute is in the jurisdiction of the forum. At para. 52 in Weber , McLachlin J. (as she then was) said that a dispute will usually fall within the exclusive jurisdiction of an arbitrator if “the dispute, in its essential character, arises from the

interpretation, application, administration or violation of the collective agreement.” [ 18 ] In Weber , McLachlin J. (as she then was) stated that courts of inherent jurisdiction maintain a residual discretion to grant remedies that the legislated forum does not have the power to give. [ 19 ] In Pleau v. Canada (Attorney General) , 1999 NSCA 159 at para. 21 [ Pleau ], Cromwell J.A. found, on the basis of Weber , that courts should consider whether the process provided by the legislation and a collective agreement, provide “effective redress” for an aggrieved party.

Cromwell J.A.’s concern was that where there was a right there must be a remedy. [ 20 ] Pleau and other cases out of provincial appellate courts started to suggest that where a dispute was grievable, but not arbitrable before an independent third party adjudicator, the parties could go to court for a remedy. However, the Supreme Court of Canada in Vaughan v.

Canada , 2005 SCC 11 [ Vaughan ], expressly rejected this principle and held that matters which are grieavable and not arbitrable may still fall within the exclusive jurisdiction of the grievance procedure. ii) Does the Grievance Process at Northern Lakes College Have Exclusive Jurisdiction Over Mr. James ’ Complaints? [ 21 ] To decide whether the grievance process set out in the collective agreement between the Faculty Association and Northern Lakes College has exclusive jurisdiction over the claims made by Mr.

James, the first step is to examine the legislation, the PLSA , to determine what jurisdiction it gives to grievance and arbitration processes. Relevant portions of s. 87 of the Act state: 87(1) The board and the academic staff association of a public post-secondary institution shall enter into negotiations for the purpose of concluding or renewing an agreement. ...

(4) An agreement between the board and academic staff association of a public college shall, with respect to the employment of academic staff members, contain provisions respecting at least the following matters: (

a) terms and conditions of employment; (

b) teaching responsibilities; (

c) vacation leaves, leaves of absence and sick leaves to be allowed; (

d) salaries and remuneration to be paid and the establishment of salary and wage schedules for that purpose; (

e) procedures respecting the settlement of differences between the parties arising from the

interpretation, application, or operation of the agreement ; (

f) conditions and procedures governing reassignment, suspension or dismissal by the board; (

g) procedures respecting the negotiation of future agreements, including the procedures for the final resolution, by compulsory binding arbitration, of disputes that may arise during the negotiation of future agreements. ...

(6) An agreement is binding on (

a) the board, (

b) the academic staff association, and

(

c) the academic staff members. [ 22 ]

Section 87, therefore, requires that the faculty association and the College enter into a collective agreement which must contain a procedure for settling disputes that arise from the

interpretation, application, or operation of the agreement. The collective agreement, and by extension the dispute resolution procedure, is binding on the board, faculty association, and the staff.

Section 92 of the PLSA states that if a collective agreement does not contain a procedure for settling disputes then the Model Provisions Regulation , Alta. Reg. 53/2004, applies. The Model Provisions set out in the Regulation provide for final and binding arbitration. [ 23 ] The collective agreement between the faculty association and the College, in effect at the relevant time, provided a grievance and arbitration procedure: Grievance Procedure 25.01

Definitions and Scope ... (

d) A complaint alleging harassment, unjust treatment, or alleging unfair working conditions, may be presented as a Grievance directly to Level 2. A decision given at Level 2 shall be final and binding on the Parties and all interested persons. (

e) A Grievance concerning the dismissal or termination of employment of a probationary Employee, or a Grievance concerning a written reprimand, may be subject to the Grievance Procedure except that it shall not be a subject of arbitration at Level 3. [ 24 ] In Vaughan , the Public Service Staff Relations Act , R.S.C. 1985, c. P-35, gave employees the option of grieving a matter that involved the

interpretation or application of the legislation or a collective agreement. The Act only allowed grievances of certain matters to be arbitrated. The Act also provided that once a grievance had been presented to the final level of the grievance process, the decision at the final level was binding on the parties. The Supreme Court of Canada held that the provisions in the Act were sufficient for the court to find that the grievance process should have exclusive jurisdiction over matters that fell within its ambit. [ 25 ] Similarly, in this case, the PLSA requires a collective agreement to provide for a grievance or arbitration process for resolving disputes arising out of the

interpretation, application, or operation of the collective agreement. In addition, the collective agreement allows an employee to grieve unjust treatment, termination, or a written reprimand. The agreement allows for arbitration, but limits probationary employees’ right to access it. The scheme set out in the PLSA is sufficient for the court to find that the grievance and arbitration process have exclusive jurisdiction. [ 26 ] The second step when determining whether the grievance process ought to have exclusive jurisdiction over Mr. James’ complaints involves examining the “essential character” of Mr. James’s complaints to decide whether they arise out of the

interpretation, application, or operation of the collective agreement. In this case, all of Mr. James’ complaints arise out of the collective agreement. [ 27 ] In his Statement Claim, Mr. James alleges that the College breached several terms of the collective agreement. Clearly, a complaint that alleges a breach of specific provisions of the collective agreement arises out of the agreement. His claim for wrongful termination is framed as a breach of

Article 13 of the agreement. [ 28 ] Mr. James’ complaints about the conduct of Mr. Stanford, including harassment and intimidation, are also addressed by the agreement.

Article 25.01(

d) of the agreement allows an employee to complain about harassment and unjust treatment. [ 29 ] The allegation by Mr. James that Ms. Haas invaded his privacy by releasing his personal file to the president of the faculty association, while less clearly within the ambit of the collective agreement, nonetheless arises out of it. In Weber , Ontario Hydro sent private investigators to Mr. Weber’s home to determine whether he was fraudulently taking sick leave. The investigators lied to Mr. Weber to gain access to his home and obtain information. Mr.

Weber brought a tort action against Ontario Hydro for trespass, nuisance, deceit, and invasion of privacy. McLachlin J. (as she then was) held that if the conduct was examined in isolation from the collective agreement, it could be found to fall outside the normal scope of the employer-employee relationship. However, because Ontario Hydro was investigating a claim for sick leave benefits, their conduct arose out of the administration of the collective agreement. Also,

McLachlin J. (as she then was) was influenced by the fact that the collective agreement allowed an employee to grieve unfair treatment. Sending an employee’s personal file to the head of his or her employees’ association clearly occurs in the context of the employer- employee relationship. The president of the faculty association must have access to an employee’s personal file when deciding whether to bring a grievance on behalf of the employee. Whether Ms. Haas should have received Mr. James’ consent first, assuming she did not, or whether she otherwise failed to follow proper procedure is irrelevant.

Her actions occurred in the context of the operation of the collective agreement, as did the actions of Ontario Hydro in Weber , and so fall within exclusive jurisdiction of the grievance process. [ 30 ] Even though Mr. James’ complaints arise out of the

interpretation, application, or operation of the collective agreement, the court may still exercise its residual discretion to hear the matter if the grievance process did not have the jurisdiction to grant the remedy sought by Mr. James, or otherwise provide “effective redress.” Vaughan says that what is important is whether the scheme could have provided a solution to the problem. The Designated Officer hearing a grievance under the collective agreement has the power to allow a grievance, or may reduce disciplinary sanctions against an employee. This scheme could resolve Mr. James’ complaints. [ 31 ] Mr.

James alleges that the process under the collective agreement did not provide effective redress because it contained a “discriminatory” clause that limited probationary employee’s access to third party adjudication. As previously mentioned, Vaughan states that third party adjudication is not necessary for an aggrieved party to have effective redress. Moreover, the Alberta Court of Appeal in Alberta v. A.U.P.E. , 2008 ABCA 258 at paras. 43-44 , held that employers may grant probationary employees fewer rights than non-probationary employees, including rights to send grievances to arbitration.

Therefore, it was acceptable that the collective agreement limit probationary employees’ right to third party arbitration. [ 32 ] In addition, the fact that a union, or in this case the faculty association, refuses to grieve a matter on behalf of an employee, does not mean that the employee is not provided effective redress. A union has discretion to proceed with some grievances and not others. If the employee believes that the union acted in bad faith, the employee may have rights against the union. [ 33 ] Therefore, the grievance process set out in the collective agreement has exclusive jurisdiction over Mr.

James’ complaints. The legislation indicates that the process was intended to govern disputes that fall within its ambit. All of Mr. James’ complaints, in their essential character, arise out of the

interpretation, or operation of the collective agreement. The grievance process offered effective redress for Mr. James despite the fact that Mr. James, as a probationary employee did not have access to independent, third-party arbitration. [ 34 ] Accordingly, the court does not have jurisdiction nor any basis for taking it in this matter. [ 35 ] Having concluded the foregoing, it is unnecessary for me to decide on the question of disclosure of a cause of action against Haas and Stanford. 3. Decision [ 36 ] All of Mr.

James’ complaints in the Statement of Claim fell within the exclusive jurisdiction of the grievance process mandated by the PLSA and set out in the collective agreement. Mr. James’ Statement of Claim should be struck in its entirety, pursuant to Rule 3.68(2)(a). The Defendants/Applicants shall have one set of costs. Dated at the City of Edmonton, Alberta this 5th day of January, 2012.

L.A. Smart M.C.C.Q.B.A. Appearances: M. Woodley Reynolds, Mirth, Richards & FarmerLLP for the Defendants A. James on his own behalf _______________________________________________________ Corrigendum of the Memorandum of Decision of L.A. Smart, Master in Chambers _______________________________________________________ The Citation line should read: James v. Northern Lakes College, 2012 ABQB 6 not 2011 and it is hereby amended.