Kniss v Elliott, 2012 ABQB 732

Court of Queen ’ s Bench of Alberta Citation: Kniss v Elliott, 2012 ABQB 732 Date: 20121219 Docket: 1001 01164, 0901 06538 Registry: Calgary

Between: Docket: 1001 01164 Trevor Kniss Applicant / Appellant - and - David C. Elliott, Telecommunications Workers Union and Telus Corporation Respondents And Between: Docket: 0901 06538 Ros Maddren Appellant - and - Trevor Kniss Respondent Appellant on Cross-Appeal - and - Gary Trolley, Eric Stenberg, Ros Maddren, Martin Armour, Family Guidance Group Inc. operating as FGI World, FGI World, Shepell FGI GP Inc. operating as Shepell FGI, Shepell FGI Limited Partnership operating as FGI, WSC GP Inc. and Shepell FGI Respondents

_______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice A.D. Macleod _______________________________________________________ I. Introduction [ 1 ] This is an appeal and a cross-appeal of a Master’s decision to strike an originating notice for judicial review and to strike part of an action for defamation. At issue here is whether an employee under the Canada Labour Code , RSC, 1985, c. L-2 at s 37 [“ Labour Code ”] has a remedy enforceable in this Court relating to unfair representation by his Union.

Also at issue is whether the employee can bring a tort action against individuals arising out of a dispute which occurs in the workplace. [ 2 ] Trevor Kniss (“Mr. Kniss”) was an employee of Telus Communications Inc. and its predecessors (“Telus”) and, as a Telus employee, was also a member of the Telecommunications Workers Union (“TWU”). Following Mr. Kniss’ termination, the union brought grievances on Mr. Kniss’ behalf against Telus for wrongful termination and failure to accommodate. An arbitrator found that Mr. Kniss was not wrongfully terminated and did not, therefore, decide the accommodation grievance.

The TWU did not seek judicial review of this decision. [ 3 ] Mr. Kniss is now seeking to personally apply for judicial review of the arbitrator’s decision. Mr. Kniss is also suing several Telus employees and employees from Family Guidance Group Inc., also operating as Shepell FGI Ltd. and FGI World (“FGI” from herein) for defamation, for communicating about a threat to Telus employees allegedly made by Mr. Kniss to his counsellor at FGI. [ 4 ] The Master struck out Mr. Kniss’ originating notice for judicial review on the basis that he had no standing.

The Master also struck out the defamation action against all but one Telus employee, Ros Maddren (“Ms. Maddren”), on the basis that the arbitrator has the exclusive jurisdiction to address this issue. The Master held that the action against Ms. Maddren could move forward. Mr. Kniss appeals both decisions to strike and seeks to admit fresh evidence to support his appeals. For the reasons that follow, I dismiss his appeals. [ 5 ] Ms. Maddren appeals the Master’s decision on the basis that her communications are also within the exclusive jurisdiction of the arbitrator. For the reasons that follow, I allow Ms.

Maddren’s appeal. II. Facts Mr. Kniss ’ Employment with Telus [ 6 ] Mr. Kniss began his employment with Telus, and membership in the TWU, on March 3, 1980. He worked for Telus until July 14, 2007 when his employment was terminated. The Master did not review Mr. Kniss’ employment history with Telus in his decision. However this history is helpful in order to understand the context of the present appeals. The following overview is drawn from the parties’ submissions. [ 7 ] In 1991, Mr.

Kniss was injured in an accident on the job, resulting in physical limitations that prevented him from working in certain positions for Telus.

[ 8 ] Following his accident, Mr. Kniss began working as an Inspector, a position that accommodated his physical injuries. [ 9 ] In 2005, the TWU went on strike. Mr. Kniss returned to work on December 2, 2005. He explains that upon his return he learned that the Inspector position had been reassigned. Telus explains that the position was eliminated. Nevertheless, Mr. Kniss was offered a choice of new positions but these positions did not meet his accommodation needs. Mr. Kniss states that he was therefore assigned a different, less stimulating, position working in the Telus warehouse. [ 10 ] Mr.

Kniss says that he contacted the TWU to file a grievance over the loss of his earlier Inspector position, but was told by the TWU that he would require written documentation to support his complaint. He therefore continued in the warehouse position until March 2006. [ 11 ] Mr. Kniss says that in March 2006, he obtained the written documentation that he required for a grievance. However, at this point he learned that he had waited too long to file the grievance. The TWU therefore declined to proceed with his grievance. [ 12 ] Mr. Kniss was subsequently reassigned to the position of Field Checker.

He had to use his personal vehicle and equipment to perform this job. [ 13 ] In June 2006, Mr. Kniss says that a manager with Telus informed him that there was no longer any funding available for Mr. Kniss’ position so he was instructed to take time off and continue to charge time to the company. Mr. Kniss alleges that this position continued to exist, and was filled by junior or less qualified employees. [ 14 ] In August 2006, Mr. Kniss applied to two Inspector positions that he learned were available from Telus. He did not receive either position. [ 15 ] Also in August 2006, Mr.

Kniss says that he was instructed to attend an orientation for the position of Pay Phone Repair. He subsequently learned that the requirements of the position would not accommodate his physical needs. [ 16 ] In September 2006, Mr. Kniss met with Ms. Maddren, a Registered Nurse and an Occupational Health Advisor at Telus. She submitted in her affidavit before the Master that part of her job at this time was to help facilitate Mr. Kniss’ accommodation and return to work. [ 17 ] In October 2006, Mr. Kniss began to see a counsellor at FGI, after receiving a link to FGI’s website from Ms.

Maddren. [ 18 ] During the fall of 2006, Mr. Kniss was assigned to a new position in what Telus refers to as its “Centre of Excellence.” There are conflicting submissions with regard to what took place next. Nevertheless, it is clear that Mr. Kniss did not find that this position appropriately accommodated his injuries. Mr. Kniss also took some paid personal leave during this period, either on advice from his FGI counsellor and his personal physician, Dr. Andersson, or at least in part, because his ergonomic workstation was not yet prepared, as Telus explains. [ 19 ] In February 2007, Mr.

Kniss states that he was cleared by his personal physician to return to work, but says that he was subsequently sent home by a Telus manager because there was no work for him to do at that point. Alleged Threats [ 20 ] On April 19 or 20, 2007, Gary Trolley (“Mr. Trolley”) of FGI communicated to Martin Armour (“Mr. Armour”), a Labour

Relations Consultant at Telus, that Mr. Kniss had made unspecified threats to Telus employees and property to his FGI councillor. [ 21 ] Mr. Trolley is one of the defendants to Mr. Kniss’ defamation action and an account executive at FGI, which provides employee counselling and assistance services to employers in Calgary and elsewhere. Mr. Trolley’s duties included managing the Telus account and acting as a liaison with Telus, according to both Telus and Mr. Kniss’ statement of claim. [ 22 ] Mr.

Armour explains in his affidavit before the Master that, upon learning of the alleged threats, he concluded that the matter was sufficiently serious to warrant further investigation. [ 23 ] According to his affidavit evidence, Mr. Armour arranged a conference call on or about April 20, 2008 with Mr. Trolley, Ms. Maddren and Eric Stenberg, a Telus Corporate Security Investigator. During this discussion Mr. Armour asked Mr. Stenberg to conduct an investigation into the seriousness of the threats. [ 24 ] Mr. Stenberg explains in his affidavit before the Master that he met with several of Mr.

Kniss’ former colleagues during the course of his investigation. He communicated the alleged threat to these employees and they were asked to recount their experiences with Mr. Kniss in order to determine whether Mr. Kniss posed any safety risk. Mr. Stenberg submitted that the employees understood that this information was to be kept confidential. He concluded that Mr. Kniss had a propensity for anger and was concerned for the safety of others if Mr. Kniss returned to work in May, 2007 as planned. [ 25 ] On or about April 26, 2007, Mr. Stenberg communicated his findings to Mr.

Armour, Telus manager Greg Guthro, and the Telus Director of Security Don Gurski. At this point, according to Mr. Armour, Telus decided that the threats necessitated that Mr. Kniss undergo a psychiatric assessment before returning to work. Mr. Armour asked Ms. Maddren to make the necessary arrangements for this assessment. [ 26 ] On or about April 30, 2007, Mr. Armour explains that he contacted the TWU’s Vice President, John Carpenter, to inform him of the potential threat and the psychiatric assessment. [ 27 ] Ms. Maddren explains in her affidavit before the Master that she arranged for Mr.

Kniss to see the psychiatrist on May 15, 2007 and notified him of this appointment on April 30, 2007. At approximately the same time, she sent a letter to Mr. Kniss’ personal physician informing him of the alleged threat and of Telus’ decision to require Mr. Kniss to undergo the psychiatric assessment. She states in this affidavit before the Master that the purpose of this letter was to inform Mr. Kniss’ physician of the status of his patient and to invite him to provide any helpful information. [ 28 ] On or about May 10, 2007, Ms.

Maddren explains that she sent a letter to the forensic psychiatrist, with whom Mr. Kniss was scheduled to meet, to inform him of the alleged threats and to request that the psychiatrist assess whether or not Mr. Kniss would pose a threat if he were to return to work. [ 29 ] The psychiatrist’s office was located at the provincial correctional facility. Mr. Kniss swore in his affidavit that he did not understand why he had to go to this assessment, and his understanding of the law was that he could not be required to attend.

He therefore declined to attend the appointment. [ 30 ] On July 14, 2007, Telus terminated Mr. Kniss’ employment for cause on the basis that he failed to attend the appointment. Mr. Kniss states that he did not become aware the threat allegations until after his termination. Termination Grievances and Arbitration [ 31 ] Following his termination, Mr. Kniss contacted the TWU. In July 2007, the TWU filed two grievances on his behalf, one for failure to accommodate in the months leading up to his termination and another for the termination of his employment.

[ 32 ] Mr. Kniss subsequently met with Mr. Carpenter and the TWU’s counsel, Bill Johnson (“Mr. Johnson”). During this meeting, Mr. Kniss explains in his affidavit before this Court that he learned for the first time of the alleged threats. Mr. Kniss states that Mr. Carpenter at one point remarked that Mr. Armour had led him to feel that Mr. Kniss “had gone to get a gun and [was] coming down [to the TWU office] to shoot everyone.” [ 33 ] Mr. Kniss initially understood that the union did not want to represent him on account of this.

However, after he presented what he says was evidence that he did not make these threats, the union agreed to pursue his grievances through arbitration. There is no indication of what this evidence entails. [ 34 ] Both grievances subsequently went to an arbitration hearing, which began on June 10, 2008. The hearing involved seven days of argument, fifteen witnesses and 75 exhibits. Only two of these witnesses were called by the TWU, one of whom was Mr. Kniss, and five exhibits were entered by the TWU. All of the remaining evidence was brought by Telus. [ 35 ] During the preparation for the arbitration, Mr.

Kniss explains that he had provided Mr. Johnson with various documents that he asserts supported his grievances. He states that none of these documents were presented at the arbitration. [ 36 ] At the commencement of the arbitration, counsel agreed to address the termination grievance first, with the accommodation grievance to follow, because unless the termination grievance was successful, the accommodation grievance would largely be moot as there would be no job in which to accommodate Mr. Kniss. Mr.

Kniss emphasizes that, despite this agreed procedure, Telus referred to the accommodation issues numerous times throughout argument, in relation to the cause for his termination, whereas counsel for the TWU only referred to the accommodation issues once in passing during closing statements. [ 37 ] The arbitration ended on September 22, 2008, with a decision to be rendered within twenty-one days. [ 38 ] In the meantime, Mr. Kniss filed his defamation action in May 2009. [ 39 ] The arbitrator issued his decision on July 23, 2009, ten months after the conclusion of the hearing.

The arbitrator dismissed the grievance, finding that Mr. Kniss’ failure to participate in his own accommodation had frustrated the employment relationship. The arbitrator determined that Telus’ request that Mr. Kniss attend a medical assessment was reasonable under the circumstances. The arbitrator also determined that Mr. Kniss understood that if he failed to attend, he would be fired. [ 40 ] Mr.

Kniss now argues that the arbitrator’s decision contained numerous errors, including mistakes as to the facts and with regard to which witnesses testified. [ 41 ] Following the arbitrator’s decision, on August 4, 2009, counsel for the union provided a letter to the TWU advising that the arbitrator’s award provided no basis for judicial review. The TWU obtained a second opinion from its counsel dated September 1, 2009.

On this occasion, counsel prepared a long letter in which he gave his opinion that a judicial review application was unlikely to succeed, given the arbitrator’s findings of fact and credibility. [ 42 ] On October 2, 2009, the TWU sent an email to Mr. Kniss to formally advise him that it would not file a judicial review application of the arbitrator’s decision and that it would not pursue the accommodation grievance. Mr. Kniss filed a duty of fair representation complaint with the Canada Industrial Relations Board (“CIRB”) against the TWU on November 10, 2009.

Canadian Industrial Relations Board ( “CIRB ”) Complaint [ 43 ] Mr. Kniss’ complaint to the CIRB alleged that the TWU represented him in an “arbitrary, discriminatory and bad faith” manner. He complained that the TWU arbitrarily presented his case to the arbitrator, did not address his accommodation grievance in a

timely manner, treated him differently than other employees, particularly after becoming aware of the alleged threats, did not call certain evidence at the hearing and protected other Telus employees in course of the arbitration hearing. [ 44 ] A three member panel of the CIRB considered Mr. Kniss’ complaint, relying on submissions from Mr. Kniss, the TWU and Telus. The panel dismissed Mr. Kniss’ complaint. It declined to second-guess the tactical decisions made by the TWU’s counsel. The panel found that the union “clearly spent considerable time and resources pursuing this grievance to arbitration.

It was not simply going through the motions or putting on a “charade””: Trevor Kniss , 2010 CIRB LD 2359 at 9 [ Kniss ]. [ 45 ] Mr. Kniss applied for reconsideration of the CIRB’s decision and a reconsideration panel of three different CIRB members was appointed. Mr. Kniss sought to enter new evidence, including transcripts of unauthorized recordings, that he had not tried to submit to the original panel until after the submission deadline had passed.

The reconsideration panel reviewed the evidence and found that, even had these documents been in front of the original panel, the original panel would have come to the same conclusion. [ 46 ] The reconsideration panel also found that the original panel had not erred in law by failing to consider the union’s refusal to file Mr. Kniss’ first accommodation grievance, as any breach of fair representation at that time would have been cured when the union subsequently filed and processed the accommodation grievance: Trevor Kniss , 2010 CIRB LD 2470 [ Kniss appeal ]. Canadian Human Rights Commission [ 47 ] Before Mr.

Kniss’ termination and the arbitration, he also attempted to file complaints against Telus with the Canadian Human Rights Commission (“the Commission”) for discrimination on the grounds of a disability and for retaliation. These complaints were filed on November 16, 2006 and January 11, 2007 respectively. [ 48 ] The complaints came before the Commission in June and December 2007. At that time, the Commission decided not to deal with the complaints pursuant to section 41(1) (

a) of the Canadian Human Rights Act, RSC, 1985, c H-6 [the “ Act ”]. Section 41(1)(

a) states that the Commission shall deal with a complaint unless the alleged complainant ought to exhaust grievance or review procedures that are otherwise reasonably available. Mr. Kniss was advised that after the grievance procedure, he could reactivate his complaints with the Commission. [ 49 ] On January 5, 2011, Mr. Kniss asked the Commission to reactivate the complaints and the Commission agreed to consider them. [ 50 ] The Commission prepared a report pertaining to Mr. Kniss’ complaints. The report determined that the substance of both of Mr.

Kniss’ complaints had already been considered and addressed at arbitration. It found that the arbitrator had thoroughly examined the overall fact scenario of Mr. Kniss’ accommodation and termination, and turned his mind to Mr. Kniss’ human rights concerns, before concluding that Mr. Kniss had failed to participate in the accommodation process, and had thus frustrated the employment contract. The report concluded that the Commission should not deal with Mr. Kniss’ complaints pursuant to section 41(1)(

d) of the Act , which allows the Commission to decline to deal with a complaint that is “trivial, frivolous, vexatious or made in bad faith.” [ 51 ] Mr. Kniss filed a Notice of Application seeking judicial review of the Commission’s decision on May 18, 2012. Pursuant to Rule 306 of the Federal Court Rules, SOR / 98-106 , Mr. Kniss was required to serve his affidavit evidence and file proof of service within 30 days of the Notice of Application, but failed to do so. He filed his proof of service one week late, and at the same time requested an extension of time to serve his affidavit.

The Federal Court refused to accept his ex parte request, and rejected his affidavits of service, but did so without prejudice to his right to re-apply for a time extension. Mr. Kniss did not, however, re-apply for that extension until 50 days later. [ 52 ] The Federal Court refused Mr. Kniss’ application for an extension of time. Mr. Kniss had not accounted for the long delay, and for that reason the Court was not satisfied that he had a continued intention to proceed with the application. Moreover, the Court was not satisfied that there was any merit to his application.

Finally, because the very issues raised in Mr. Kniss’ proceeding at the Federal Court were also the subject of the case at bar, proceeding before the Alberta Court of Queen’s Bench, the Federal Court determined that Mr. Kniss’ application for judicial review of the Commission’s findings constituted an abuse of process. The Court thus concluded that justice militated against an extension of time to proceed with his application, which was “doomed to fail” anyway: see Trevor Kniss v The Telecommunication Workers Union and Telus Communications Inc , 2012 FC docket T-986-12. Thus, Mr.

Kniss appears to have exhausted all possible forums for his complaint, except this one.

The Applications before the Master [53] Mr. Kniss filed his originating notice to seek judicial review of the arbitrator's decision on January 25, 2010. [54] Telus subsequently applied for an order pursuant to Rule 3.68 of the Alberta Rules of Court, Alta Reg 124/2010 [“Rules”] tostrike out the originating notice filed by Mr. Kniss on the basis that he has no standing to seek judicial review of an arbitrator's decision. [55] Telus’ application was heard before a Master on February 21, 2012. [56] On October 28, 2011, the defendants to Mr.

Kniss’ defamation action also filed an application pursuant to Rule 3.68 for anorder striking out the defamation statement of claim. They applied for this order on the basis that the communications were made in thecourse of employment, and thus Mr. Kniss’ allegations constitute employment grievances and fall within the sole jurisdiction of thearbitrator under the terms of the collective agreement. This second application, with respect to Mr. Kniss’ defamation claim, was heardby the same Master on February 22, 2012. [57] During the course of the applications, it became apparent that Mr.

Kniss had not filed any affidavit evidence to support hisopposition to these applications. Mr. Kniss explained to the Master that he had presented his evidence in the form of his brief ofargument. He did not realize that it needed to be submitted as a sworn affidavit. Mr. Kniss offered to swear to the facts contained in hisbrief, as he did not believe that his affidavit “would have contained anything different.” The Master denied Mr. Kniss’ request to submitan affidavit. The Master’s Decision [58] The Master gave his oral decision for both applications on March 6, 2012.

The application to strike out the judicial review originating notice [59] The Master granted Telus’ application to strike out Mr. Kniss' originating notice for judicial review. He referred to St.Anne-Nackawic Pulp and Paper Company Ltd v Canadian Paper Workers Union, Local 219, [1986] SCR 704, for the principle thatthe Court has no jurisdiction to hear disputes arising from collective agreements when they provide a dispute resolution process.

Hefurther referred to Marriner v Southern Alberta Institute of Technology, 1990 ABCA 71 , [1990] 104 AR 349 (ABCA), inwhich the Court concludes that once an employee is represented by an association in collective bargaining, he has lost his right ofself-representation. This general rule is subject to certain exceptions. In order to determine whether Mr.

Kniss has standing to pursuejudicial review, the Master considered the three common law exceptions. [60] First, an employee may have standing to pursue judicial review where the collective agreement allows employees topersonally bring grievances, conduct arbitration or otherwise directly settle disputes with an employer. The collective agreement in thiscase did not contain such a clause. [61] An employee may also have standing to personally seek judicial review where he can show that the union's representationwas inadequate or unfair to the employee. Mr.

Kniss had not filed an affidavit so there was no evidence before the Master to demonstrateinadequacy or unfairness. The Master therefore found that Mr. Kniss' allegations were unsubstantiated. [62] Finally, an employee may have standing to seek judicial review where he can show that the union had a conflict of interest andtook a position adverse to the interests of the employee. Again, due to the absence of any evidence on this point, the Master found that ithad not been made out.

[63] Mr. Kniss' originating notice was therefore struck for lack of standing. The application to strike out the defamation statement of claim [64] The Master granted part of the application to strike out Mr. Kniss’ defamation statement of claim after applying the three-parttest from Phillips v Harrison (2000), 2000 MBCA 150 , 153 Man R (2d) 1 (CA). Phillips sets out a test to determine whether astatement that might otherwise be defamatory is captured within the jurisdiction of a collective agreement because of the employmentcontext in which it was made.

To meet this threshold, a comment must: concern the employee's character, history or capacity as anemployee; be made by someone whose job it is to communicate a workplace problem; and be made to persons who would be expected tobe informed of workplace problems. If all three of these requirements are met, then the otherwise defamatory comments must beadjudicated pursuant to the collective agreement and not in the courts. [65] The Master determined that comments made by Mr. Armour and Mr. Stenberg to other Telus and the TWU employees, asoutlined above, met the Phillips test and were work related.

It was their duty to communicate these alleged threats, which pertained toMr. Kniss’ capacity as an employee, to the individuals who could be expected to be involved in resolving this work problem.Additionally, the Master found that Ms. Maddren’s communication with the forensic psychiatrist met the Phillips test and fell within thejurisdiction of a labour arbitrator. Therefore, due to the Court’s lack of jurisdiction to hear these claims, they were bound to fail and thuswere struck out pursuant to Rule 3.68. [66] The Master found that Ms. Maddren’s communication to Mr. Kniss’ personal physician, Dr.

Andersson, on April 30, 2007 didnot meet the Phillips test, as Dr. Andersson was not a person who would be expected to be informed of workplace problems. In heraffidavit before the Master, Ms. Maddren explained that she communicated with Dr. Andersson to update him on the status of his patientand to invite him to share any information that might help Telus in assessing the threat. The Master found that Ms. Maddren would haveknown that Dr.

Andersson would not be able to share information due to doctor-patient confidentiality and therefore determined that,with regard to this particular communication, there was a triable issue and refused to strike out this portion of Mr. Kniss’ statement ofclaim. III. Issues [67] The appellant, Mr. Kniss, raises several issue with regard to both applications. They can be summarized as the following: 1. Did the Master err in striking out the application for judicial review? 2. Did the Master err in striking out the claims against Mr. Stenberg and Mr. Armour on the grounds that they were “bound to fail”? 3.

Did the Master err by not allowing Mr. Kniss an opportunity to present evidence in the form of an affidavit with regard to bothapplications? [68] The appellant on cross-appeal, Ms. Maddren, raises two additional issues: 1. Did the Master err in failing to find that the action against Ms. Maddren falls within the exclusive jurisdiction of the labourarbitrator? 2. Did the Master err by failing to find that Mr. Kniss’ action was doomed to fail by virtue of qualified privilege?

[69] Both Mr. Kniss and Ms. Maddren also seek to admit fresh evidence in the form of affidavits on this appeal. IV. Standard of Review [70] The applicable standard of review for an appeal of a Master’s decision on all issues is correctness: Bacheli v YorktonSecurities Inc, 2012 ABCA 166 at para 30, [2012] 524 AR 382 [“Bacheli”]. V. Analysis 1. The Judicial Review Appeal [71] I will first address the appeal of the Master’s decision to strike out Mr.

Kniss’ originating notice for judicial review.Arguments for this appeal were heard on September 24, 2012. [72] The parties agree that, at common law, an employee has no standing to pursue judicial review of a labour arbitrator’s decisionunless the employee is able to establish one of three limited exceptions: the collective agreement grants the right to pursue grievancespersonally; there is a reasonable apprehension of unfair or inadequate representation by the union; or the union took a position that wasadverse in interest to the employee: Yashin v National Hockey League (2000), (ON SC), 192 DLR (4th) 747; Yee vTrent University, 2010 ONSC 3307, 320 DLR (4th) 746. [73] Thus, unless the employee can establish that one of these exceptions applies, the labour union holds the exclusive jurisdictionto seek judicial review of an arbitrator’s decision. [74] Mr.

Kniss argues that the Master erred in striking his application for judicial review. He submits that the facts of this casegive rise to a reasonable apprehension of inadequate or deficient representation and that the union took a position adverse in interest tohis own. He asks the Court to consider fresh evidence in the form of his affidavit, which in his view supports his submission. [75] Mr. Kniss also submits that the Master applied the wrong test when deciding to strike out the originating notice by referring tothe fact that Mr.

Kniss did not submit any evidence and by stating that Rule 3.68 requires the parties to “bring the best evidence for theCourt to make a determination.” Mr. Kniss submits that this is the test for

summary judgment pursuant to Rule 7.3 of the Alberta Rulesof Court, and not the test under Rule 3.68. [76] Telus submits that the Court may rely on Rule 3.68 to strike a commencement document, without a hearing on the merits ofthe action, where it is plain and obvious that the party filing the document had no standing to do so: Mariner v Southern AlbertaInstitute of Technology, 1990 ABCA 71 , [1990] 104 AR 349 (ABCA). [77] Counsel for the TWU made oral submissions at the hearing.

He submitted that the common law test for standing to seekjudicial review does not apply in this case, as it has been ousted by the statutory duty of fair representation in the Labour Code. As Telusis a federal undertaking, the Labour Code applies to its employees. Further written submissions were made by counsel for Telus andKniss in October, 2012. [78]

Section 37 of the Labour Code states that: A trade union or representative of a trade union that is the bargaining agent for a bargaining unit shall not act in a manner that isarbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit with respect to their rights under thecollective agreement that is applicable to them.

[79] The Labour Code gives the CIRB broad discretion to award a remedy for unfair representation. Where a trade unionrepresents an employee in a manner that is arbitrary, discriminatory or in bad faith, in contravention of

section 37, then section 99 (1)(b)of the Labour Code allows the CIRB to: require a trade union to take and carry-on on behalf of any employee affected by the contravention or to assist any such employee to takeand carry on such action or proceeding as the Board considers that the union ought to have taken and carried-on on the employee's behalfor ought to have assisted the employee to take and carry on. [80] In addition, the CIRB has access to many equitable remedies for a contravention of

section 37: Labour Code at s. 99(2). Thusthe CIRB may, by order, require an employer or a trade union to do or refrain from doing any thing to remedy or counteract anyconsequence of a contravention. [81] The CIRB can, for instance, order the union to take any action on employee's behalf, and order that an employee can retainhis own representation at the union's expense: Grace Bingley, (CIRB) at para 128. [82] The CIRB not only has the ability, but also the exclusive jurisdiction to hear adequate representation claims.

The SupremeCourt of Canada made this clear in Gendron v Supply & Services Union of PSAC, Local 50057, (SCC), [1990] 1 SCR1298 [“Gendron”]. As stated by Justice L’Heureux-Dubé for a unanimous court, [T]he common law duty of fair representation was by necessary implication ousted in situations where the [Labour Code] applies. [...]the statutory duty owed [to] the respondent was one that must first proceed to the decision making structure assigned to this task underthe legislation, the Canada Labour Relations Board.

There is no original jurisdiction in the ordinary courts to decide the matter, only theability to review board decisions in the very limited parameters contemplated by the privative clause: Gendron at para 60; see alsoKoenig v Marsh, 2005 ABCA 118, 363 AR 269 (a case dealing with the Alberta Labour Relations Board, but citing this principlegenerally). [83] The Quebec Court of Appeal has similarly stated that the “lack of adequate representation, whatever the cause, whetherdiscrimination, procedural error, or other, is a matter within the exclusive jurisdiction of the Board”: Guèvremont c.

Association dupersonnel naviguant des lignes aériennes canadiennes, [1990] RJQ 2099, (QC CA). [84] Even where a union is alleged to be complicit with the employer in a sexual harassment claim, something that would no doubtqualify as being adverse to the complainant’s interest, the CIRB retains the exclusive jurisdiction to determine adequacy ofrepresentation and can allow the complainant to seek her own representation and exercise her own recourse instead of, and in the placeof, the union: Caron c Clément, 2006 QCCS 4874, [2006] RJDT 1044 at para 46. [85] Mr.

Kniss argues that the privative clause found at section 58(1) of the Labour Code cannot oust the Court’s jurisdiction toreview the arbitrator’s decision and that the most it can do is inform the amount of deference to be paid to the arbitrator and the standardof review of his decision. That is not the issue here. As to the issues of whether Mr. Kniss was inadequately represented by the TWU andany remedy arising therefrom, the CIRB clearly has exclusive jurisdiction. [86] In the present case, the CIRB considered Mr. Kniss’ complaint against the union in three parts.

It first considered his concernsabout how the union handled the termination grievance at arbitration. The panel dismissed this first part of the complaint on the basisthat the union spent considerable time and resources pursuing the grievance at arbitration, hired experienced outside counsel, and was notsimply “going through the motions.” [87] The panel then considered whether the union’s refusal to file a judicial review application amounted to unfair representation.It cited the earlier CIRB decision Gordon Newell (1987) 69 di 119 (CLRB no 623) [Newell].

In Newell, the Board stated with regard to aunion’s decision not to seek judicial review,

[...] In the Board’s judgement, a refusal or failure to seek judicial review is not of itself a violation of

section 136.1 [now

section 37] in acircumstance such as this. The

section specifies that the duty of fair representation applies to persons “with respect to their rights underthe collective agreement that is applicable to them.” There is no evidence before the Board that the collective agreement betweenCALPA and Air Canada at any time material to these proceedings gave anybody the right to have an arbitration decision affecting him orher taken to the Court for judicial review. Mr. Newell thus had no right under

section 136.1 to have the arbitrator’s decision “appealed”as he put it. [88] The panel considering Mr. Kniss’ complaint determined that, similarly, there is nothing in the Telus collective agreement thatgives Mr. Kniss the right to have an arbitrator’s decision appealed. Therefore, the panel found that the union’s decision not to pursuejudicial review is not even an issue of fair representation pursuant to

section 37 of the Labour Code. Nevertheless, the panel found that“the union made a reasoned decision not to file a judicial review application; a decision that was neither arbitrary, discriminatory or madein bad faith”: Kniss at 9. [89] Finally the panel considered the union’s refusal to pursue the accommodation grievance at arbitration. The panel found that,given the findings of the arbitrator on the termination grievance, the union made a reasoned decision that was not discriminatory,arbitrary or in bad faith. Though Mr.

Kniss clearly wanted a day in court with respect to the accommodation grievance, the panel foundthat there was no labour relations purpose for such a proceeding. As noted previously, this decision was upheld on appeal: Kniss Appeal. [90] The panel found that the union’s handling of Mr. Kniss’ grievance and its decision not to pursue judicial review was notarbitrary, discriminatory or in bad faith. Mr. Kniss now asks this court to nevertheless find a reasonable apprehension of unfair orinadequate representation by the union, or that the union took a position that was adverse to Mr. Kniss’ interest.

Given the CIRB’sfindings, Mr. Kniss has already sought out and been denied the remedy that he now seeks at this Court. The CIRB has the exclusivejurisdiction to determine whether Mr. Kniss received fair representation, and it found that he did. Had it found otherwise, the panel couldhave ordered the TWU to seek judicial review of the decision pursuant to section 99(1)(b). Mr.

Kniss cannot now ask this Court to makea new finding on essentially the same issue, disguised in the form of a different, common law test for standing. [91] Though I have provided different reasons, I conclude that the Master was correct in striking out Mr. Kniss’ originating notice. [92] In light of this decision, I do not need to consider whether the Master erred by not allowing Mr. Kniss to admit evidence in theapplication to strike out his judicial review originating notice. The evidence that Mr. Kniss seeks to admit goes to the TWU’srepresentation, which has already been found adequate by the CIRB. 2.

The Defamation Appeal and Cross-Appeal [93] Arguments for the appeal and cross-appeal were heard on September 20, 2012. [94] Ms. Maddren submits that the Master erred by not finding that the Court had no jurisdiction to hear the action against her. [95] Arbitration is the exclusive forum for matters arising under a collective agreement pursuant to Labour Code

section 57, whichstates that: 57.

(1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, ofall differences between the parties to or employees bound by the collective agreement, concerning its

interpretation, application,administration or alleged contravention. This principle was also enunciated by the Supreme Court of Canada in Weber v Ontario Hydro, (SCC), [1995] 2 SCR929 at para 67 [“Weber”].

[96] Ms. Maddren further submits that the arbitrator has exclusive power to consider a claim of defamation if it is part of thefactual basis of a dispute arising out of the collective agreement.

In support of this submission she cites Transit Windsor v Amalgamated Transit Union, Local 616 (Orsi Grievance), (CA LA), [2003] CLAD No 424, 114 LAC (4th) 385, in which thearbitrator, after applying the test from Weber, determined that he had the jurisdiction to entertain a claim for damages for defamation; and Vancouver Coast Health Authority v Hospital Employees’ Union, [2004] BCCAAA No 14, 124 :AC (4th) 353 where the arbitratorcame to the same conclusion upon considering Phillips and Weber. [97] In order to determine whether Ms.

Maddren’s communication fell within the ambit of the collective agreement, the Masterapplied the test in Phillips. Ms. Maddren submits that the Master applied the test from Phillips too stringently, and that the correct test isin fact the one set out in Weber. In Weber, McLachlin J (as she then was) explains that “the task of the judge or arbitrator determining theappropriate forum for the proceedings centres on whether the dispute or difference between the parties arises out of the collectiveagreement.

Two elements must be considered: the dispute and the ambit of the collective agreement”: Weber at para 51. [98] Mr. Kniss submits that the Master properly applied the law relating to the allegation against Ms. Maddren and properlydismissed her application. Mr. Kniss submits that the Master was fully cognizant of the principles enunciated in Weber, as demonstratedwhen he acknowledged that the dispute is subject to the exclusive jurisdiction of the arbitrator where it “by its essential nature, arisesexpressly or [...] inferentially from the

interpretation, application, administration or an alleged violation of the collective agreement.” Mr.Kniss submits that the Master should be granted a high level of deference for his decision. [99] In this case, the evidence before the Master shows that one of Ms. Maddren’s responsibilities at Telus included helpingemployees seek the appropriate medical treatment where it appeared that a health related issue was impacting their ability to performtheir job.

She stated in her affidavit before the Master that she was acting in the course of employment and as directed by her supervisorswhen she sent the communication to Mr. Kniss’ personal physician. She says that she sent it because Telus did not have enoughinformation to determine whether or not Mr. Kniss posed a threat or not, given his medical history and previous treatment. She sent theletter to inform Dr. Andersson of the status of his patient and invite him provide her with any helpful information that might pertain towhether Mr.

Kniss posed a threat. [100] The Master also had the arbitration award before him as part of Mr. Armour’s affidavit evidence. The arbitrator sets out in hisdecision details of the correspondence between Ms. Maddren and Mr. Kniss’ personal physician. It is evident in the arbitrator’s findingsthat Mr. Kniss’ physician was communicating with Telus about Mr. Kniss’ physical health in 2007. It is also evident that there wascommunication between Ms. Maddren and the physician at the time that Telus was assessing Mr. Kniss’ potential threat.

She did notsimply send a one-off letter to an unknown or unrelated doctor, seeking information that she knew would be protected by doctor-patientconfidentiality. She had a history of communicating with Dr. Andersson in the course of her work responsibilities and this was with theconsent of Mr. Kniss. [101] Furthermore, pursuant to the Labour Code, every employer shall ensure that the health and safety at work of every personemployed by the employer is protected: Labour Code at s 124. There was evidence before the Master that Ms. Maddren sent this letter toMr.

Kniss’ physician as part of Telus’ response to the alleged threat. [102] It is clear on the evidence before the Master that the dispute over this communication arises within the ambit of the collectiveagreement and Telus’ response to a potential safety threat. Whether or not this communication nevertheless amounted to defamation is amatter for the arbitrator to determine, not this Court. On the evidence before the Master, Ms.

Maddren’s communication meets either thetest from Weber or the three-part test in Phillips. [103] The Master was therefore incorrect in determining that this communication fell outside of the ambit of the collective agreement.The Court does not have the jurisdiction to hear this complaint. Mr. Kniss’ action against Ms. Maddren is therefore dismissed. [104] Turning lastly to Mr. Kniss’ cross-appeal, Mr. Kniss argues that the Master erred by striking out his claims against Mr.Stenberg and Mr. Armour, in particular as a result of denying Mr.

Kniss the opportunity to prepare an affidavit with evidence to supporthis claim. Mr. Kniss therefore seeks to admit fresh evidence in this appeal. [105] The respondents, Mr. Stenberg and Mr. Armour, do not contest Mr. Kniss’ filing of new evidence in the form of his affidavit,but submit that it is not relevant to this cross-appeal.

[ 106 ] Given the parties agreement to my consideration of the evidence, I have considered it on this cross-appeal. [ 107 ] In his affidavit, Mr. Kniss asserts that the allegations that he made a general threat against Telus are false. He does not, however, provide any indication in the affidavit that Mr. Stenberg or Mr. Armour were communicating about these alleged threats outside of the context of the collective agreement and their respective work responsibilities. [ 108 ] The Master determined on the evidence before him, to which Mr. Kniss has not added any relevant new evidence, that the communications by Mr.

Stenberg and Mr. Armour fell within the Phillips test, and were therefore within the exclusive jurisdiction of the arbitrator. As noted with respect to Ms. Maddren’s appeal, these Telus employees were acting to ensure the safety of other Telus employees, as required under the Labour Code . Any allegations of defamation arising from their communications falls within the exclusive jurisdiction of the arbitrator, and therefore the Master’s decision to strike out the claims against Mr. Stenberg and Mr.

Armour was correct. [ 109 ] In light of this decision, I do not need to decide whether the Master erred in denying Mr. Kniss an adjournment to admit additional evidence. I have considered that evidence. Even in light of Mr. Kniss’ fresh evidence, the Master’s decision to strike Mr. Kniss’ action against Mr. Armour and Mr. Stenberg was correct. Conclusion [ 110 ] Mr. Kniss’ appeal of the Master’s decision to strike out his Originating Notice for judicial review is dismissed.. Mr. Kniss’ cross-appeal of the Master’s decision to strike out his defamation action against Mr. Stenberg and Mr.

Armour is also dismissed and Ms. Maddren’s cross-appeal of the Master’s decision to allow Mr. Kniss’ defamation action against her to proceed is allowed. This Court has no jurisdiction to entertain any of the remedies sought by Mr. Kniss. [ 111 ] If the parties cannot agree on costs, they may come before me at a time mutually agreeable to be arranged through my legal assistant. Heard on the 20 th and 24 th day of September, 2012. Dated at the City of Calgary, Alberta this 19 th day of December, 2012. A.D. Macleod J.C.Q.B.A. Appearances: Chadwick B. Newcombe

for the Appellant Mr. Trevor Kniss John R. Gilmore / Stephen P. Beernaert for the Respondents and the Appellant Ros Maddren A. Julien Landry, QC for the Telecommunications Workers Union