Beaulieu v. University of Alberta, 2013 ABQB 237

Court of Queen ’ s Bench of Alberta Citation: Beaulieu v. University of Alberta, 2013 ABQB 237 Date: 20130419 Docket: 1203 11481 Registry: Edmonton Between: Dr. Norman C. Beaulieu Plaintiff - and - The Governors of the University of Alberta, Dr. David T. Lynch and Dr. Horacio J. Marquez Defendants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice Gerald A. Verville _______________________________________________________ Introduction [ 1 ] In 2000, Dr. Beaulieu commenced employment with the University of Alberta (U of

A) as a tenured professor in the Department of Electrical and Computer Engineering (Department). [ 2 ] As a result of disagreements which have arisen in the workplace, Dr. Beaulieu filed a Statement of Claim against the Defendants on August 1, 2012, alleging:

- defamation and harassment - breach of contract - intentional infliction of mental distress - interference with funding, and - failure to follow instructions of an independent physician regarding

Article 16 procedures and investigations. [ 3 ] Among other redress, Dr. Beaulieu seeks an accounting with respect to research funding obtained by him, and damages. [ 4 ] The Defendants apply for an order striking the Statement of Claim for want of jurisdiction. They submit that the dispute resolution procedure in Dr. Beaulieu ’ s collective agreement provides the exclusive forum for resolution of all disputes raised by the Statement of Claim. [ 5 ] Dr. Beaulieu is currently on medical leave from his position at the U of A.

He applies for an injunction preventing the Defendants from: - proceeding with any formal disciplinary proceedings against him until a certain physician gives medical clearance - demanding that he attend meetings that he is medically unfit to attend - demanding access to his medical records [ 6 ] The Defendants raised preliminary objections to admissibility of certain evidence. I declined to rule prior to hearing the entire application in order to better understand the context of those objections. Facts [ 7 ] The U of A is a public post secondary institution within the scope of

Part 4 of the Post-secondary Learning Act , SA 2003, c P-19.5 ( PSLA ). The legal name is the “ Governors of the University of Alberta ” (Board of Governors). [ 8 ] The Association of Academic Staff : U of A (AASUA), is the bargaining agent for the academic staff at the U of A. It is an academic staff association established by order-in-council within the scope of s. 85 of the PSLA . [ 9 ] The employment relationship for all academic staff members working as professors is governed by the terms of the collective agreement between the Board of Governors and the AASUA (Faculty Agreement). [ 10 ]

Article 16 of the Faculty Agreement sets out the process for investigating and determining allegations about misconduct by academic staff members. The process is administered by the U of A ’ s Provost and Vice-President (Academic)[Provost] who is the chief operating officer and the chief disciplinary authority within the U of A, and also a member of the academic staff and the AASUA. Statement of Claim

[ 11 ] Dr. Beaulieu alleges that it was a term of his employment with the U of A that he would hold both an iCORE Research Chair and a Canada Research Chair indefinitely. He was the iCORE Research Chair from September 12, 2000 to December 31, 2010. iCORE was transferred to Alberta Innovates Technologies Futures (AITF) on January 1, 2010 and his Research Chair was extended until August 31, 2012. As a result of the Research Chair, the U of A receives significant funding for a research program in which Dr. Beaulieu is the principal investigator. [ 12 ] Dr.

Beaulieu alleges that sometime before July 2006, he became concerned that research funds had been used for purposes other than his iCORE Research Program. He further alleges that as a result of his inquiries, the Defendants removed his access which enabled him to track his funding, and began harassing him. [ 13 ] Around February 2007, the AASUA filed on Dr. Beaulieu ’ s behalf a Work Study and Living Environment Grievance alleging a poisoned work environment due to harassment by David Lynch, Dean of the Faculty of Engineering, and Dr. Marquez, a professor in and Chair of the Department.

The process for dealing with this type of grievance is governed by the dispute resolution mechanisms contained in the Faculty Agreement. [ 14 ] Dr. Beaulieu alleges that the harassment subsequently increased. [ 15 ] He entered into a settlement agreement in relation to his dispute with U of A staff in March of 2010 (Settlement Agreement). [ 16 ] Dr. Beaulieu alleges that Dean Lynch and Dr. Marquez have failed to implement the terms of the Settlement Agreement and have continued to harass him. He also alleges defamation and breach of confidentiality as a result of communications by Dean Lynch and Dr.

Marquez within and outside the Department. Dr. Beaulieu alleges that the Defendants ’ actions have put his physical and mental health in serious peril. He obtained a physician ’ s opinion that all

Article 16 disciplinary proceedings against him, which are governed by the terms of the Faculty Agreement should be stopped until further notice. [ 17 ] In his January 25, 2013 affidavit, Dr. Beaulieu deposes inter alia that he has repeatedly raised with the AASUA his allegation that the Defendants are intentionally interfering with his ability to secure grant funding in order to harm his research and position with the U of A. However, the AASUA has refused to file any formal process on the issue of funding.

Citing no particular source, he deposes that the AASUA told him that it could not deal with the issue of funding, and that it was not within the AASUA ’ s role to deal with such matters. He further deposes that the AASUA told him (again, the source is not identified) on numerous occasions that there is no mechanism for a global grievance under the Faculty Agreement and the AASUA cannot and will not advance such a global grievance. The AASUA has filed some individual grievances and has refused to advance others.

He deposes that his complaints cannot be effectively addressed through individual grievances under the Faculty Agreement. [ 18 ] Dr. Beaulieu further deposes that he had been denied access to remedies under the grievance process because the issue arose more than six months prior to the date of complaint, and much of the reason for delay was due to his health and the stress he had been under.

Either the AASUA refused to advance the grievances on his behalf, or if they were advanced the Provost declined to pursue them because they were older than six months. [ 19 ] He also deposed that the Defendants have refused to sign any agreement relating to his funding because they wish to avoid their obligations under the Settlement Agreement, which provides for payment to him and teaching relief. Statement of Defence [ 20 ] In the Statement of Defence, the Defendants state that Dr. Beaulieu ’ s employment relationship is subject to and governed by the terms of the Faculty Agreement.

[ 21 ] The Defendants further state that Dr. Beaulieu ’ s concerns regarding research funds were investigated by the Board of Governors in 2007 and were found to be without merit. [ 22 ] They further state that around June 8, 2007, Dean Lynch delivered a complaint about Dr. Beaulieu to the Provost according to the disciplinary process contained in

Article 16 of the Faculty Agreement, asserting that Dr. Beaulieu had harassed individuals within the Faculty. An independent external investigator, approved by the Provost and AASUA, was retained to investigate and concluded that Dr. Beaulieu had harassed six co-workers and another staff member. The Provost concluded that this harassment had taken place and that it constituted misconduct, and imposed a disciplinary penalty on Dr. Beaulieu.

The AASUA referred the Provost ’ s findings to arbitration under the Faculty Agreement, but the parties resolved the matter through the Settlement Agreement. [ 23 ] The Defendants state that pursuant to the Settlement Agreement, the AASUA withdrew the appeal, and the findings of harassment and misconduct were confirmed as part of Dr. Beaulieu ’ s disciplinary record at the U of A, with some modifications to the disciplinary penalty. Dr.

Beaulieu executed a release in favour of the Defendants and others, effective March 12, 2010, releasing the U of A from all manner of actions, complaints, grievances, appeals, debts, damages, etc. which he may have had with respect to anything to date, or of which he reasonably ought to have been aware, including Dr.

Beaulieu ’ s employment, employment standards, disciplinary action, defamation, infliction of mental or emotional suffering, interference with contractual relations, or other claims in equity, contract or tort, and any claims with respect to any condition or term of employment with the University, or the payment of any remuneration or benefit, including pension. [ 24 ] Around August 20, 2010, the AASUA delivered a grievance alleging that certain terms of the Settlement Agreement were not implemented, and that Dean Lynch and Dr. Marquez had communicated confidential information about Dr.

Beaulieu to individuals within and outside the Department. The Board of Governors investigated but did not find any merit to that grievance. [ 25 ] The AASUA referred the grievance to arbitration pursuant to the Faculty Agreement. On March 1, 2012, in the absence of further particulars requested of the AASUA and Dr. Beaulieu, the arbitrator dismissed the allegations of communication of confidential information about Dr. Beaulieu outside the Department. [ 26 ] The balance of the allegations in the grievance were scheduled to be heard on March 28, 2012, but Dr.

Beaulieu sought an adjournment in advance of that date. The adjournment was granted and the hearing has not been re-scheduled. [ 27 ] The Defendants deny certain allegations and state that many of the matters raised in Dr. Beaulieu ’ s Statement of Claim have been resolved by the Settlement Agreement, are subject to the release, or are subject to limitations, and in any event all are properly dealt with by way of the dispute resolution mechanisms contained in the Faculty Agreement, and this action constitutes an abuse of the Court ’ s process.

Article 16 Complaints Against Dr. Beaulieu and his Leave [ 28 ] The details of the pending

Article 16 proceedings against Dr. Beaulieu help to provide a complete context in which to understand the arguments on this application. There are currently three

Article 16 complaints against Dr. Beaulieu: Fraser Forbes alleges that Dr. Beaulieu failed to follow protocols regarding AITF/iCORE grant applications; Dr. Marzquez alleges that Dr. Beaulieu stated that he was a biased Chair; and Dr. Dong alleges harassment. [ 29 ] Dr. Dong was one of the academic staff members whom the Provost concluded in 2009 was harassed by Dr. Beaulieu. She left the U of A partly due to Dr. Beaulieu ’ s treatment of her. [ 30 ] Dr. Dong submitted an

Article 16 complaint in July 2012 regarding Dr. Beaulieu ’ s subsequent behaviour, in particular his filing in 2011 of a lawsuit alleging that she had defamed him and acted in bad faith and with malice during the earlier

Article 16 investigation, and he did this in spite of the Settlement Agreement and associated release. [ 31 ] The Provost appointed, pursuant to

Article 16, an academic staff member in the Faculty of Law at the U of A, Dr. Adams, to investigate Dr. Dong ’ s complaint. By January 2012 he was in a position to interview Dr. Beaulieu. However, Dr. Beaulieu resisted an

interview on the basis of his - at that time - undisclosed medical condition. The Vice-Provost (Faculty Relations), Mr. Spark, consequently placed the investigation in temporary abeyance, and in fact the investigation has effectively been in abeyance since January 2012 due to Dr. Beaulieu ’ s medical concerns. [ 32 ] Dr. Dong expressed concern regarding delay in the processing of her

Article 16 complaint. An exchange of communications occurred amongst staff regarding the possibility that Dr. Beaulieu ’ s medical condition perhaps constituted a disability which required accommodation by the employer. Dr. Beaulieu was advised that failure to provide the relevant medical information would exhaust the accommodation process and the

Article 16 investigation would resume. He resisted disclosure of any medical information. In early August 2012, Mr. Spark directed Dr. Adams to resume the investigation. Within a few days, Mr. Spark received information suggesting that Dr. Beaulieu ’ s condition had worsened, and suspended the investigation until further notice. [ 33 ] Dr. Beaulieu ’ s Alternate Department Chair, Dr. Fraser Forbes, then wrote to the Acting Provost on August 20, 2012, regarding Dr. Beaulieu ’ s medical fitness to teach in September 2012. Dr. Forbes recommended that Dr. Beaulieu be referred for a medical evaluation under

Article 23 of the Faculty Agreement. On September 4, 2012, the Provost directed Dr. Beaulieu to undergo a medical examination. On September 5, 2012, the Provost placed him on a non-disciplinary suspension with pay due to the necessity to protect his health, and also because of his increasingly litigious and disruptive behaviour and the serious allegations raised by Dr. Dong ’ s

Article 16 complaint. [ 34 ] On September 7, 2012, Dr. Beaulieu ’ s family physician requested that he be granted a six week medical leave. Mr. Spark advised Dr. Beaulieu ’ s AASUA representative that a medical certificate was required for any leave in excess of 20 days, and Dr. Beaulieu was still required to submit to the

Article 23 medical examination. Dr. Beaulieu has refused to submit to a medical examination. Medical Concerns [ 35 ] Dr. Beaulieu states that he began experiencing severe stress and illness in late 2011. He provided affidavit evidence in the fall of 2012 indicating that there were no health restrictions relating to his ability to meet the responsibilities associated with his regular academic duties, but that he was not medically fit to participate in the investigation process to address the

Article 16 complaints filed against him, nor to participate in the formal proceedings related to the grievance arbitration process to address his own filed complaints. [ 36 ] His health concerns appeared to relate to cardiovascular and obesity issues. Until January 2013, this cryptic description was the extent of the information provided by him to the Defendants with respect to his health condition and limitations. [ 37 ] In his January 25, 2013 affidavit in the proceedings before this Court, Dr. Beaulieu provided certain medical records, albeit reluctantly (Exhibit “ A ” to his affidavit). Dr.

Cheeseman, Vice-Provost & Associate Vice-President (Human Resource Services) subsequently requested a review of those medical records. [ 38 ] Dr. Chue, senior psychiatrist and Site Chief: Addictions and Mental Health for Alberta Health Services ’ Edmonton Zone, conducted a review and concluded in part (Chue affidavit, February 8, 2013, Exhibit “ B ” ): From my review and analysis of the information disclosed by the Medical Records, it is unclear to me why Dr. Beaulieu is unable to participate in an

Article 16 investigation process, particularly when considerable accommodation has been offered to Dr. Beaulieu in terms of process and timelines. Furthermore, it would seem contradictory that suing the Governors of the University of Alberta, as reported in Dr. Grade ’ s letter of September 1, 2012, “ has given him some control and enables him to manage his stress somewhat better. ” Dr. Beaulieu ’ s ability to initiate litigation, instruct counsel and participate actively in this process would also seem at variance with Dr.

Hardy ’ s comments that, “ Anxiety overlay is exacerbated by his involvement with ongoing proceedings with U of A administration. ” ... In my opinion, there is no acute limitation from participating in University processes that would put his health at any imminent risk. Most of the above interrelated conditions are likely to have been present for some time and are presumably associated with pre-existing lifestyle factors such as obesity, previous smoking, lack of exercise, unhealthy diet, etc. I am not aware of Level 1 medical evidence

which would indicate that any of these conditions could be selectively worsened by “ negative stress ” vs. “ positive stress. ” His medical treatment apparently consists only of low dose anticholesterol medication (Crestor) and a baby aspirin (81 mg). He has not been consistent with the former medication. His BMI from January 2012 to September 2012 has ranged from 39 to 41.1 kg/m 2 . Although diagnosed with “ depression with an anxiety overlay ” by Dr.

Hardy (not a DSM-IV TR diagnosis), it would appear that he is on a sub-therapeutic dose of Cipralex (an antidepressant with anti-anxiety activity), has not seen a psychiatrist or a psychologist, has not received cognitive behavior therapy or anxiety-stress management training, has not had any depression or anxiety scales administered and has not had any relevant lifestyle modifications implemented. There has not been any suicidal ideation or behaviors reported.

Furthermore, the “ depression with an anxiety overlay ” has not seemingly been worsened to date by participating in any of the litigation when initiated by Dr. Beaulieu... Positions of the Parties [ 39 ] In their application to strike the claim, the Defendants argue that the essential character of this dispute arises either explicitly or implicitly from the provisions of the Faculty Agreement. There is a narrow residual discretion available to courts to grant a remedy, but this is where the agreement does not govern the dispute, or for the purpose of preserving the integrity of the labour relations scheme.

The Defendants submit that public policy favors the Court declining jurisdiction in this case. The AASUA is not a party to this action, nor did it seek standing. [ 40 ] The Defendants submit that there is no basis for Dr. Beaulieu ’ s assertion that the AASUA has told him that it cannot file a “ global grievance ” . The August 2010 grievance notice filed on his behalf contains more than one ground, and covers a variety of issues. Dr. Beaulieu does not identify the source of this information, and resisted examination on his affidavit. Such a position constitutes legal

interpretation of the collective agreement. Dr. Beaulieu has some control over his bargaining agent who has a common law duty to fairly represent his interests. There is no evidence from the bargaining agent with respect to Dr. Beaulieu ’ s assertions. [ 41 ] Dr. Beaulieu says the Defendants do not meet the stringent test in Rule 3.68 for striking a claim, as a court might possibly choose to exercise its residual jurisdiction on the facts of the case.

He submits that he has been advised that there is no mechanism for a global grievance under the Faculty Agreement, so his only option is to advance individual grievances. Further, he cannot advance many of his concerns due to risks to his health. He argues that the allegations regarding breach of the Settlement Agreement are outside of the Faculty Agreement, the Faculty Agreement does not refer to a safe workplace that is free from harassment or defamation,

Article 7 does not deal with interference with grant funding, and due to his health concerns, he has been unable to pursue these remedies within the prescribed time limits. [ 42 ] Regarding the injunction application, Dr. Beaulieu argues that the stress created by the history of acrimony between the parties from 2006 has put his health and his life at risk. Dr. Beaulieu states that he will suffer irreparable harm, including the risk of death, if the injunction is not granted. He submits that when faced with ongoing investigations and pressures placed on him by the Defendants, he is at an increased risk of a severe heart attack. [ 43 ] He further argues that the

Article 16 complaints against him are not urgent. Dr. Dong is no longer a member of the U of A academic staff. Therefore, a final determination regarding her complaint will not have a direct impact on the work environment within the Department. Dr. Marquez ’ s complaint raises allegations of bias made by Dr. Beaulieu. Again, the fact that Dr. Beaulieu is not currently working in the Department makes the need for final determination less urgent. Dr. Forbes ’ complaint regarding improper handling of grant applications deals with work in which Dr. Beaulieu is directly involved. Again, if Dr.

Beaulieu is not able to work, a final determination is not urgent, and any financial losses can be compensated for in damages. [ 44 ] Dr. Beaulieu reasons that the balance of convenience lies in favour of an injunction. [ 45 ] The Defendants submit that if the Statement of Claim is struck, an interlocutory injunction cannot be granted, as against dispute resolution under the Faculty Agreement, in the context of this action. [ 46 ] The Defendants also refer to the fact that Dr.

Beaulieu consistently resisted, until recently, the Defendants ’ efforts to independently verify the nature and seriousness of his medical concerns. He has refused to be examined on his affidavits and only

recently provided his medical charts. Dr. Chue’s recent report undermines Dr. Beaulieu’s assertions that his medical concerns preventhim from participating in the grievance procedures currently in progress. Law [47] The Court may strike a claim for want of jurisdiction, as contemplated in Rule 3.68. A pleading will not be struck unless it isplain and obvious that the action will fail: Cerny v Canadian Industries Ltd, (AB CA), [1972] 6 WWR 88, 30 DLR(3d) 462 (AB CA). The Court must assume that the facts as stated in the statement of claim can be proved.

If there is a chance that theplaintiff might succeed, the application to strike should be dismissed, regardless of the length and complexity of the issues, the noveltyof the cause of action, or the potential for the defendant to present a strong defence: Hunt v Carey Canada Inc, (SCC),[1990] 2 SCR 959 at 980, 74 DLR (4th) 321. [48] In Weber v Ontario Hydro, (SCC), [1995] 2 SCR 929, 183 NR 241, the Supreme Court established that thecourts will have no jurisdiction where a dispute arises out of the

interpretation, application or violation of a collective agreement and alabour relations scheme grants exclusive jurisdiction. Whether the dispute arises out of the collective agreement must be determinedhaving regard to the essential character of the dispute - the factual substance, not the legal characterization of the claims - and the termsof the collective agreement. [49] The Court in Weber also held that the exclusive jurisdiction of the arbitrator is subject to the residual discretionary power ofcourts to grant remedies which the statutory tribunal is unable to grant.

This is a narrow jurisdiction: St Anne Nackawic Pulp & PaperCo Ltd v Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 SCR 704, [1986] SCJ No 34, Transalta UtilitiesCorporation v Young Estate, 1997 ABCA 349, 209 AR 89. [50] The parties agree that in order to obtain an injunction, Dr. Beaulieu must establish that: there is a serious issue to be tried,irreparable harm will result if an interim injunction is not granted, and the balance of convenience favours granting the injunction. Issues [51] The following issues must be determined by the Court: 1. What is the essential character of the dispute? 2.

Does the dispute in its essential character arise from the

interpretation, application or violation of the Faculty Agreement? 3. If so, is it a case in which the Court might nevertheless exercise its residual discretion? 4. Should the Court order injunctive relief against the Defendants? Analysis Dispute Resolution Framework

[ 52 ] The PSLA provides: 87(3) An agreement between the board and the academic staff association of a university shall, with respect to the employment of academic staff members, contain provisions respecting at least the following matters: (b) ... procedures respecting the settlement of differences between the parties arising from the

interpretation, application or operation of the agreement; ...

(6) An agreement is binding on (

a) the board, (

b) the academic staff association, and (

c) the academic staff members. 92 If an agreement concluded or renewed under section 87(1) does not contain provisions respecting the matters set out in section 87(3) (b), (4)(

e) and (g), (5)(

d) and (

e) or (7), as the case may be, the agreement is deemed to contain the provisions set out in the regulations in respect of which the agreement is silent. [ 53 ] The model dispute resolution in the Model Provisions Regulation , Alta Reg 53/2004 provide that where an agreement under s. 87 does not contain procedures to address settlement of a difference arising with respect to the collective agreement, the agreement is deemed to include provisions designed to address the difference through arbitration, including a dispute as to whether that difference can be the subject of arbitration. [ 54 ] The Faculty Agreement sets out a general grievance process in

Article 27. The general grievance procedure contemplates that where the administrative officer responsible for the act or omission alleged to be a violation or improper application of the terms of the Agreement is the Dean, the grievance is filed with the Provost. If the Provost and the AASUA cannot resolve the dispute, either party may refer the matter to arbitration in accordance with

Article 29. [ 55 ] The Faculty Agreement also contains several specific dispute resolution mechanisms for which the general grievance process in

Article 27.02 is not used.

Article 7.11 outlines the process for appealing to the Dean regarding disputes about a professor ’ s responsibilities such as teaching, research and institutional service.

Article 15 outlines the process for appealing decisions of the Faculty Evaluation Committee to the General Appeals Committee regarding, among other thing, salary increments.

Article 16 as previously mentioned, sets out the process for investigating and determining allegations about misconduct by an academic staff member and is administered by the Provost. [ 56 ] I find that the Faculty Agreement sets out comprehensive dispute resolution mechanisms for settling disputes arising from the

interpretation, application or violation of the Faculty Agreement. [ 57 ] The parties in oral argument addressed the allegations according to the following four general categories:

a) personal harassment

b) access to financial records relating to the iCORE research funding

c) breaches of the Settlement Agreement, and

d) communication of confidential information, including alleged defamatory communication. I will use the same categories in my analysis. Personal Harassment [ 58 ] Dr. Beaulieu alleges in paragraph 9 of the Statement of Claim that it was a term of his employment contract with the U of A, either express or implied, that he would be entitled to a safe and healthy workplace free of harassment. [ 59 ] He identifies in paragraph 21 various types of harassment to which he has allegedly been subjected, including: unfair merit increments, denial of the Research Chair supplement,

Article 16 complaints made against him, denial of access to funding information, the Defendants preventing him from obtaining further funding, demands that he disclose medical information, and interference with his academic endeavors. [ 60 ] The Faculty Agreement does not contain an express non-harassment clause. However, Dr. Beaulieu himself claims that his employment contract contains an express or implied term to that effect. I agree.

Following the reasoning in Giesbrecht v McNeilly , 2008 MBCA 22 , 54 CCLT (3d) 170 and Ferreira v Richmond (City) , 2007 BCCA 131 , 280 DLR (4th) 330 , I find that freedom from harassment is an implied term in the Faculty Agreement. [ 61 ] Dr. Beaulieu argues that if the grant issue is covered at all under the Faculty Agreement, it falls under

Article 7.11 which provides that if there is a dispute with respect to a staff member ’ s University responsibilities, that staff member shall have recourse to the Dean whose decision shall be final and binding. Dr. Beaulieu submits that Dean Lynch is biased and therefore would not fairly adjudicate the dispute. [ 62 ] The Defendants submit that the U of A has already substituted a neutral adjudicator in the place of the Dean; the deputy Provost heard an earlier matter. Further, Dr.

Beaulieu through the AASUA could seek judicial review of a decision to appoint a biased adjudicator. [ 63 ] The Defendants also point to case law supporting the proposition that unilateral employer decisions can be imposed in some cases. Parties to a collective agreement can agree on a dispute resolution method other than arbitration: Alberta v Alberta Union of Provincial Employees , 2008 ABCA 258 , 433 AR 159 at para 34 .

The Supreme Court in Vaughan v Canada , 2005 SCC 11 , [2005] 1 SCR 146 held at para 39 that while the absence of independent third-party adjudication may in certain circumstances impact on the court ’ s exercise of its residual discretion (as in the whistle-blower cases), the general rule of deference in matters arising out of labour relations should prevail. [ 64 ] The Defendants point out that because Dr.

Beaulieu has not pursued his complaints along the avenues provided under the Faculty Agreement, this issue has never come to fruition. [ 65 ] I find that all of the harassment allegations arise from or in relation to Dr. Beaulieu ’ s employment contract, and could be addressed using the comprehensive dispute resolution mechanisms in the Faculty Agreement. [ 66 ] Some of the above arguments relate to the issue of whether the Court should exercise its residual discretion to entertain the matter . I will address that issue below. Access to Financial Records

[67] Dr. Beaulieu alleges in paragraph 10 of the Statement of Claim that it was a term of his employment contract with the U of A,either express or implied, that he would have access to the iCORE related financial records. [68]

Article 2.03 of the Faculty Agreement provides that a staff member shall have access, with reasonable notice, to the records ofall personal information pertaining to the staff member, except for certain confidential evaluations or portions of the record that wouldnot be released under the Freedom Of Information and Protection of Privacy Act, RSA 2000, c F-25. [69] I find that the claim of denial of access to the information in question arises from Dr. Beaulieu’s employment contract andcould form the subject matter of a grievance under

Article 27.01. Breaches of the Settlement Agreement [70] Dr. Beaulieu alleges in paragraph 16 of the Statement of Claim that the Defendants have failed to implement the terms of theSettlement Agreement in a timely manner or at all. [71] As well, Dr. Beaulieu deposed in his affidavit that the Defendants had refused to sign any agreement relating to his fundingbecause they wished to avoid their obligations under the Settlement Agreement, which provides for payment to him and some teachingrelief.

This is not specifically mentioned in the Statement of Claim, although the list of harassing acts in paragraph 21 includes anallegation that the Defendants had actively taken steps to prevent him from obtaining further funding. [72] He refers to Brewery, Beverage and Soft Drink Workers, Local 250 v Labatt's Alberta Brenery (1996), 1996 ABCA 131, 38 Alta LR (3d) 308, 184 AR 162 (CA), a decision issued shortly after Weber. In that case, the Court held that a reinstatementagreement entered into by the employer, employee and union was an amendment to the collective agreement.

Its specific terms excludedrecourse to grievance procedures and arbitration. The Court held that even if it was merely a settlement, the arbitrator had no authority toset it aside. [73] Dr. Beaulieu also cites Radhakrishnan v University of Calgary Faculty Assn (cob TUCFA) (1995), 1995 ABCA 498, 36 Alta LR (3d) 1, 178 AR 221 (CA), in which the appellant sought to set aside a contract depriving him of the right tocontinue with two grievances.

The Court in that case found that the main subject matter of the claim was the validity of a settlementagreement denying the grievor any further rights in the grievance process, and was not arbitrable under the collective agreement. Further,as a result of the settlement agreement, the appellant was no longer an employee of the respondent. Some of the claim went directly tothe issue of the validity of the settlement agreement, and there was no process for arbitrating such an agreement under the contract. [74] The Settlement Agreement provided for withdrawal of existing grievances.

It further provided that it was made on a withoutprejudice basis insofar as the parties’ respective positions about the

interpretation of the Faculty Agreement is concerned, and would notbe used as a precedent in any future actions, grievances, appeals, etc. [75] I note that Dr. Beaulieu and the AASUA have already invoked the grievance process regarding alleged breaches of theSettlement Agreement. The August 2010 grievance alleged that the role of an Alternate Chair for Dr. Beaulieu had not been implementedand that Dr. Marquez continued to act as his Chair. It also alleged that Dr. Marquez and Dean Lynch had communicated confidentialinformation outside and within the Department.

Some preliminary matters were addressed in the context of that grievance, but thehearing on the merits was adjourned at Dr. Beaulieu’s request, citing his health issues. [76] In my view, the facts in both Brewery and Radhakrishnan are distinguishable from this case. In this case, Dr. Beaulieucontinues to be an employee. He seeks enforcement of the Settlement Agreement. The Defendants also rely on the SettlementAgreement, as part of their defence. No one is asserting that the Settlement Agreement does not or should not bind the parties.

Nothing inthe Settlement Agreement purports to oust the jurisdiction of the arbitrator, nor to preclude resort to other dispute resolution mechanismsoutlined in the Faculty Agreement. Neither the Defendants nor the Arbitrator have taken the position in the pending arbitrationproceedings that Dr. Beaulieu is precluded from resorting to the grievance process to address alleged breaches of the SettlementAgreement.

[ 77 ] Dr. Beaulieu argued that the fact that the U of A obtained releases reflects the fact that not all issues covered in the Settlement Agreement were susceptible to dispute resolution under the Faculty Agreement. I do not infer this from the releases. The Settlement Agreement arose out of an arbitration.

The releases were merely an attempt (apparently unsuccessful) to bring finality to anything arising from or related to the February 2009 discipline which was the subject matter of that arbitration. [ 78 ] Pursuant to the Settlement Agreement, the AASUA withdrew the appeal which had been submitted to arbitration, and the findings of harassment and misconduct were confirmed as part of Dr. Beaulieu ’ s disciplinary record at the U of A. [ 79 ] I find that like the other matters Dr. Beaulieu grieved, alleged breaches of the Settlement Agreement could have been the subject of a grievance under

Article 27.01 or the

Article 16 process. Communication of confidential/defamatory information [ 80 ] The defamation claim in paragraph 18 of the Statement of Claim is tied to the claim of improper dissemination of confidential information. It states that “ some of the particulars of the confidential information disclosed and defamatory comments made include ” particulars of: - the

Article 16 complaint - the Settlement Agreement - subsequent conflicts that have arisen concerning the failure to implement the Settlement Agreement - Dr. Beaulieu ’ s salary and iCORE funding, and - defamatory statements concerning his teaching effectiveness, merit increment recommendations and personality, which suggest he is a poor teacher and difficult person. [ 81 ]

Article 16.27 of the Faculty Agreement governs publicity resulting from discipline cases.

Article 2 deals with information on a staff member ’ s file and prescribes a mechanism for correction of inaccurate information. The Settlement Agreement also spoke to confidentiality. [ 82 ] Aside from the itemized list of particular examples, paragraph 18 of the Statement of Claim is very similar in wording to allegations contained in Dr. Beaulieu ’ s August 20, 2010 grievance. The Defendants requested particulars in the arbitration proceedings with respect to that grievance. The Arbitrator subsequently directed Dr. Beaulieu and the AASUA to provide particulars of the claim of the “ confidentiality dispute ” .

On March 1, 2012, the arbitrator deemed that part of the grievance to be abandoned as they had failed to do so. [ 83 ] In addressing the argument that an extension of the deadline should be granted due to Dr. Beaulieu suffering an illness, Arbitrator Ponak stated: 12. ...I would be more sympathetic to this explanation if there was evidence that the illness rendered the Grievor incapacitated for a period of time such that he was unable to communicate the names of persons who needed to be contacted. No such claim was made.

As well, a January illness does not explain why no steps were taken in December to obtain the necessary information. Nor is there any explanation of why, if the illness was severe enough to make compliance with the deadline doubtful, there was no earlier request for an extension.

Indeed, as late as January 10 th , the Association was asking for an extension of only one week...I conclude that illness suffered by the Grievor is insufficient reason to relieve the Association of its obligation to meet the established deadline. [ 84 ] With respect to defamatory statements as distinct from any breaches of confidentiality, Phillips v Harrison , 2000 MBCA 150 ,

153 Man R (2d) 1 at para 71 stands for the proposition that alleged defamatory statements may be considered to be work related and to be adjudicated under the collective agreement if the comments: concern the employee's character, history, or capacity as an employee; were made by someone whose job it was to communicate a workplace problem; and were made to persons who would be expected to be informed of workplace problems. [ 85 ] In my view, as they currently stand, Dr. Beaulieu ’ s allegations relating to defamatory comments appear to meet all three criteria.

Further, he is already involved in arbitration proceedings with respect to breaches of confidentiality. Accordingly, I find that all of these matters are properly addressed in the context of dispute resolution mechanisms established in the Faculty Agreement. Residual Discretion [ 86 ] According to Weber , the courts retain a residual discretionary power to grant remedies which a statutory tribunal is unable to grant.

The Court of Appeal in Transalta held that courts should only play a complimentary supporting role where the agreement does not govern the dispute or for the purpose of preserving the integrity of the labour relations system. [ 87 ] Dr. Beaulieu relies on Wanke v University of Calgary , 2011 ABCA 235 , [2011] AJ No 1027. In that case, the Court struck the claim despite the plaintiff’s argument that she would be deprived of a remedy as she had been unable to file a grievance due to the fact that she was incapacitated by illness. On appeal, the University did not challenge her position in this regard.

The Court of Appeal held that it could not be said that there was no chance that a court might conclude that it was an appropriate case to exercise its residual jurisdiction. [ 88 ] I find Wanke to be distinguishable on the facts. Ms. Wanke missed filing her grievance within the prescribed 20 day time limit.

Article 27.03 of the Faculty Agreement provides a 6 month time limit for filing of grievances. [ 89 ] More significantly, it does not appear that Dr. Beaulieu has been precluded by his health condition from filing grievances (or instituting lawsuits). [ 90 ] The hearing on the merits of his August 20, 2010 grievance raising some of the same issues as the Statement of Claim was adjourned at Dr. Beaulieu ’ s own request, due to his health issues. There is no suggestion that an application has been made to dismiss it for laches. [ 91 ] Dr.

Beaulieu was apparently able to instruct counsel to file the Dong lawsuit in 2011. [ 92 ] According to the affidavit of James Spark, Dr. Beaulieu personally submitted a complaint with the Office of the Information and Privacy Commissioner against the Board of Governors regarding his health information in September 2012. On October 15, 2012, the Board of Governors, through its Information and Privacy Officer, received from Dr. Beaulieu a Request for Access to Information in its custody and control. Since May 2012, Dr.

Beaulieu has instructed the AASUA to advance at least 10 complaints against the Board of Governors. [ 93 ] He was also able to instruct counsel to file the Statement of Claim in this matter in August 2012, and to instruct counsel regarding attendances on various applications since that filing.

He takes the position that apart from the injunctive relief, he has no intention of pursuing the remainder of the claim until he is medically capable of proceeding. [ 94 ] The Court in Giesbrecht held at para 61 that the court cannot acquire jurisdiction over a claim that properly falls within the ambit of the collective agreement simply because the employee, for whatever reason, has not promptly prosecuted his claim in the proper forum.

The Court further held that it would be an absurd application of Weber if every employee who missed the deadline for filing a grievance could obtain a judicial remedy instead. [ 95 ] Based on the material before this Court, it does not appear that Dr. Beaulieu has been prevented by his medical condition from instigating complaints, grievances and lawsuits.

[ 96 ] Dr. Beaulieu submits that he was told by the AASUA that he could not grieve certain matters. However, it is not clear who told him this, nor what the basis was for this assertion. The AASUA was not represented before the Court. There is no evidence that Dr. Beaulieu has pursued any recourse based on breach of the agent ’ s duty of fair representation. [ 97 ] Again, the Court in Giesbrecht held: 61 The union has a duty of fair representation of the appellant in connection with his rights under the collective agreement ... but that duty is not at issue here.

The appellant may have received incorrect advice from the union, although that cannot be stated with any certainty since we do not know the details of the discussion between him and his union, and the union is not a party to these proceedings... [ 98 ] Dr. Beaulieu complains that the U of A continues with the

Article 16 procedures while his grievance has never gone to the merits. The

Article 16 complaints against him were suspended due to his health concerns. They were recommenced after he refused to comply with the direction that he undergo a medical evaluation under

Article 23 of the Faculty Agreement. Again, the hearing on the merits of his own August 2010 grievance was adjourned at his request. [ 99 ] Dr. Beaulieu argues that his case is like the whistle blower cases. He has had problems with the U of A ever since he raised the grant funding issue in 2006. He submits that the actions of the U of A and Dean Lynch reveal continued harassment - essentially, a vendetta against him - and that he cannot obtain a fair adjudication of his complaint regarding the grant funding. [ 100 ] The case law following Weber has discussed the concept of “ effective remedy ” .

As mentioned above, in Vaughan the Supreme Court held that an effective remedy may exist even in the absence of recourse to an independent adjudicative tribunal. [ 101 ] Dr. Beaulieu has not disputed the Defendants ’ position that his concerns regarding research funds were investigated by the U of A’s Research Services Office in 2006 and by the Board of Governors in 2007 and were found both times to be without merit. Dean Lynch deposed in his October 15, 2012 affidavit: 34. ...Dr. Beaulieu delivered an

Article 16 complaint to the Provost alleging that I had mishandled his research funding and research accounts, including the iCORE funding. He delivered that complaint 6 days after I notified the AASUA that I would be forwarding an

Article 16 complaint to the Provost about Dr. Beaulieu’s harassment of co-workers, which is the

Article 16 complaint that I delivered to the Provost on June 8, 2007. 35. Dr. Beaulieu’s

Article 16 complaint against me was handled by the Acting Provost, Dr. Art Quinney. Dr. Quinney investigated the complaint, met with Dr. Beaulieu, and dismissed the complaint against me. [ 102 ] Given that Dr.

Beaulieu was able, through the AASUA to obtain adjudication by someone other than the Dean on his iCORE funding issue in 2007 - although clearly not the result he desired - it is difficult to accept his argument that his only recourse under the Faculty Agreement regarding his grant funding complaint would involve adjudication by the Dean. [ 103 ] I conclude on the basis of the material before this Court that Dr. Beaulieu is dissatisfied with the processes provided under the Faculty Agreement.

The Court of Appeal in Transalta held at para 34 that the courts should not use their inherent residual discretion in circumstances where one party is simply dissatisfied with the process and would prefer to proceed in court. [ 104 ] I find that there is no chance that a court might conclude that this is an appropriate case in which to exercise its residual jurisdiction Injunction

[ 105 ] Dr. Beaulieu states that he has brought the injunction application to prevent any further investigations or questioning related to his disputes with the Defendants. He submits that the

Article 16 complaints against him are not urgent, whereas he risks possible death if they proceed due to the stress on him resulting from acrimonious disputes. [ 106 ] The Defendants submit that an interlocutory injunction in this action only properly seeks to preserve the applicant ’ s position pending trial, and if there is no basis for the Statement of Claim, then there is no reason to grant the injunction. [ 107 ] Much was made of the struggle between the Defendants and Dr. Beaulieu over disclosure of his medical records. [ 108 ] It appears that Dr.

Beaulieu has succeeded in garnering the ardent support of Ms. Goroniuk, a manager with Health Promotion & WorkLife Services, at the U of A ’ s Human Resource Services. There is no evidence to suggest that Ms. Goroniuk has any medical training which would enable her to diagnose Dr. Beaulieu ’ s medical condition. [ 109 ] Dr. Beaulieu ’ s medical records reveal that his family physicians, Dr. Grade and Dr. Hardy, have expressed concern over his condition. [ 110 ] Dr. Chue ’ s review of Dr. Beaulieu ’ s medical records led him to conclude that Dr.

Beaulieu ’ s medical condition is not critical, and he has not taken steps to obtain a full diagnosis or to address his stress and its effects on his physical condition. [ 111 ] The Defendants state that the Provost and the AASUA are currently in discussions regarding the appointment of an investigator to investigate the Forbes and Marquez complaints. Dr. Beaulieu has had no personal involvement to date.

They further state that if his participation becomes necessary and if his medical concerns subsist, he is entitled to request accommodation in relation to those complaints. [ 112 ] Clearly, death constitutes an irreparable harm. The medical evidence before the Court is inconclusive as to the precise concerns and mechanisms by which Dr. Beaulieu might suffer grievous harm due to participation in complaints against him - as opposed to disputes which he initiates. [ 113 ] However, it is unnecessary to make any definitive findings regarding Dr. Beaulieu ’ s health.

Nor is it necessary to decide whether an injunction is appropriately sought in the context of this action in relation to the

Article 16 proceedings. [ 114 ] In my view, even if injunctive relief is available and Dr. Beaulieu ’ s medical concerns are justified, the balance of convenience does not favour Dr. Beaulieu. [ 115 ] This application was not brought as a judicial review of any decision to proceed with the

Article 16 procedures. I do note, however, in relation to Dr. Beaulieu ’ s injunction application that he has in the past been accommodated through suspension of the

Article 16 process due to his expressed concerns over his health. The suspension was lifted at one point when he refused to abide by the direction under

Article 23 to undergo a medical evaluation. I note further, without commenting on the validity of Dr. Beaulieu ’ s past refusals to disclose medical information, that it may well be difficult from a practical point of view to determine the appropriate accommodation for an unidentified medical condition of undetermined severity. The Defendants represented in the proceedings before this Court that if Dr. Beaulieu ’ s participation becomes necessary and if his medical concerns subsist, he may request accommodation. [ 116 ] In my view, Dr. Beaulieu has not exhausted his recourse in terms of addressing the issue of his health restrictions in the

Article 16 complaint context. Essentially, there is no basis in the material before the Court upon which to conclude that his health concerns, whatever they may be, will not be properly accommodated in that process if such accommodation is justified.

Admissibility Issues [ 117 ] Given my findings above, it is unnecessary to comment on the admissibility of the evidence to which the Defendants objected. Conclusion [ 118 ] The Statement of Claim is struck. [ 119 ] The injunction application is dismissed. Costs [ 120 ] If the parties cannot agree on costs, they may speak to me within 30 days of the release of this decision. Heard on the 13 th day of February and 15 th of March, 2013. Dated at the City of Edmonton, Alberta this 18 th day of April, 2013. Gerald A. Verville J.C.Q.B.A. Appearances: Ben A. Guido, Odishaw & Guido for the Plaintiff Kevin S. Feth, Q.C., Field LLP for the Defendants