McNeil v Duggan, 2014 ABQB 659

Court of Queen ’ s Bench of Alberta Citation: McNeil v Duggan, 2014 ABQB 659 Date: 20141029 Docket: 1301 10915 Registry: Calgary Between: Adrian McNeil and Jocelyn Mitchell Plaintiffs - and - Glenn Duggan, Mantei's Transport Ltd, Seaboard Transport Group of Companies, Petrochem Driver's Association, Bruce Lawson Defendants Corrected judgment: A corrigendum was issued on November 5, 2014; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Memorandum of Decision of J.B.

Hanebury , Master in Chambers _______________________________________________________ [ 1 ] This is an application to strike a statement of claim under rule 3.68. Two applications were brought, one by Glenn Duggan, Mantei’s Transport Limited and the Seaboard Transport Group of Companies. The other application is by the Petrochem Driver’s

Association and Bruce Lawson. [ 2 ] Two aspects of these applications can be dealt with initially before I consider the substance of the applications. [ 3 ] First, the statement of claim was filed by Adrian McNeil and Jocelyn Mitchell. It was admitted during argument by Ms. Mitchell that she had no claim and her name was added as a plaintiff as she had no lawyer acting for her and the events recited in the claim had affected her as well as Mr. McNeil. The claim of Ms.

Mitchell will be considered no further and is struck. [ 4 ] Second, the Seaboard Transport Group of Companies is a trade name of Seaboard Liquid Carriers Limited, which was not named. Seaboard Liquid Carriers Limited carries on business in Nova Scotia and is the parent company of Mantei’s Transport Ltd. The proper party was not named nor is there any direct relationship between Mr. McNeil and the corporation behind the trade name and therefore the claim against Seaboard is struck. [ 5 ] Turning to the remaining claims, it is helpful to first set out the facts as alleged, and then consider the claims against Mr.

Duggan, Mantei’s, the Petrochem Driver’s Association and Mr. Lawson. Facts and Claims [ 6 ] The claim was filed by Mr. McNeil and not by a lawyer. Including attachments, it is 46 pages long. I will not set out each item found in the claim. It is more useful to set out an overview of the facts and then describe the nature of his causes of action as can be ascertained from what is filed. [ 7 ] Mr. McNeil’s job was to drive gasoline trucks. Mr.

McNeil states that he was a long-term employee with Mantei’s and had an exemplary attendance record and several safety awards. [ 8 ] While driving in Calgary one day in September, 2011, he heard a bang from the engine of his truck, and it caught fire. He escaped the truck, which was ultimately completely gutted by the fire. He states that he was treated on the scene by paramedics and placed on oxygen as a result of smoke inhalation. [ 9 ] This is where the issues between the parties started as Mantei’s took the position that Mr.

McNeil suffered no apparent injuries and was found at the scene of the accident smoking a cigarette and declining assistance. Mr. McNeil says that ultimately his injuries resulted in both physical and psychological problems and resulted in the loss of his employment. [ 10 ] Mr. McNeil made a claim to the Worker’s Compensation Board (WCB) but no treatment or benefits were granted. Mr. McNeil believes this is a result of certain statements made by Mr. Duggan, the Health and Safety Manager at Mantei’s, to representatives of the WCB.

As a result of these statements, the WCB was essentially biased against him and he was disbelieved by doctors he saw. As well, he states that his employer lost and failed to forward certain forms required by the WCB. He also says that they provided false information to the WCB in relation to his injuries. He says that he only became aware of some of this information when he obtained the WCB file. [ 11 ] Mr. McNeil disagreed with the denial of benefits by the WCB and filed an appeal. Unfortunately, his appeal was outside of the one year appeal period and it was denied. [ 12 ] Mr. McNeil states that Mr.

Duggan made threatening and “somewhat harassing” phone calls to him. He states that as a result he followed the process found in the Canada Labour Code and “went up the management tree”. However, this led nowhere. [ 13 ] Furthermore, Mr. McNeil states, his employer did not accommodate his injuries and failed to provide him with alternate transportation so that he could return to work and undertake modified duties. He lived outside of Calgary and could not reasonably get to work by any method of public transportation as public transportation one way would take three hours. [ 14 ] Mr.

McNeil states that he requested the disability insurance application form from Mantei’s commencing in November, 2011. He only received it on March 29, 2012, and the deadline to apply for benefits was April 13, 2012. He states he was told that Mantei’s would submit the form. [ 15 ] The form he received was for Manulife and he completed and returned it. The company submitted it and coverage was denied because it was not submitted to the correct insurer.

He suggests that there was malicious intent on the part of the company in taking so long to send the information to him, and then sending him the documents for the wrong insurance company. It is not entirely clear when the form for the proper insurer was sent to him but it appears from his claim that he eventually filed a claim with Standard Life who refused coverage because he did not undertake modified duties. [ 16 ] Mr. McNeil explains that in addition to the problems with transportation to his employer’s place of business, for some period of time he was incapable of working altogether. [ 17 ] Mr.

McNeil says that he went to the representative for the Petrochem Driver’s Association, Mr. Lawson, and was told that their counsel advised that he was being “childish”. He says that received no help from them and they did not properly represent him. [ 18 ] Mentei’s eventually decided that he had abandoned his position as he did not return for modified duties and they terminated his employment. [ 19 ] In his description of the claims, Mr. McNeil alleges negligence and maliciousness in relation to his WCB claim. He alleges that he was harassed and slandered and Mr. Duggan and Mantei’s acted in bad faith.

He states that Mantei’s is vicariously liable for the actions of Mr. Duggan.

[ 20 ] He relies upon the Petrochem Driver’s Association collective agreement and states that the Canada Labour Code has been violated. He claims the ruin of his reputation and wrongful dismissal. [ 21 ] In

summary, the essence of Mr. McNeil’s claims is that: • his employer and Mr. Duggan harassed, and intimidated him, and acted maliciously toward him; • Mr.

Duggan and his employer provided false information to the WCB and thwarted his application to the Board for benefits; • his employer maliciously tried to avoid his application for disability insurance benefits; • his employer failed to accommodate his need for modified duties; • his employer wrongfully terminated him from his position; and • his Employee Association then failed to deal with the situation in the workplace and, in fact, did nothing to assist him. [ 22 ] Mr. McNeil seeks. 1.25 million dollars in damages, including restitution and punitive and aggravated damages.

ANALYSIS [ 23 ] The defendants say that the test to be applied when an application is brought under r. 3.68 to strike a claim is whether it is plain and obvious or beyond reasonable doubt that the claim cannot succeed: Martin v. General Teamsters, Local 362 , 2011 ABQB 412 , para. 6 . [ 24 ] The primary argument of all of the defendants is that this test is met as this Court has no jurisdiction to consider the claims because there are statutory schemes in place that have ousted the court’s jurisdiction. They point to the Workers’ Compensation Act , R.S.A. 2000, c. W-15, the Canada Labour Code , R.S.C. 1985, c.

L-2 and the Canadian Human Rights Act , R.S.C. 1985 c. H-6. I will deal with each piece of legislation in turn and then consider the claims against Mr. Duggan personally. The Workers Compensation Act [ 25 ] The defendants Mantei’s and Mr. Duggan point first to the Worker’s Compensation Board Act , s. 21 and 23. Those sections provide that the scheme of the Act applies to “all rights and causes of action, statutory or otherwise, to which a worker has or might become entitled to against the employer by reason of any accident” and no action in respect of that accident lies against the employer.

Section 23 is even more specific and provides that no employee has any cause of action against an employer in relation to an injury arising from an accident. [ 26 ] Accident is defined in s. 1(1): “accident” means an accident that arises out of and occurs in the course of employment in an industry to which this Act applies and includes (

i) a wilful and intentional act, not being the act of the worker who suffers the accident, (ii) a chance event occasioned by a physical or natural cause, (iii) disablement... [ 27 ] The case law has held that if, in its essential character, the dispute or claim arises from a workplace accident, then the WCB has jurisdiction and the court does not: University of Saskatchewan v. Workers’ Compensation Board of Saskatchewan 2009 SKCA 17 at para’s 42, 44 & 50-52; Ashraf v. SNC Lavalin ATP Inc ., 2013 ABQB 688 , para’s 49, 50.

The WCB process must be followed and the Board will determine whether the claimant is entitled to compensation. The failure of the WCB to provide compensation for the injury does not result in the claim being outside of the Board’s mandate. [ 28 ] A claim for a failure to protect an employee from a systematic campaign of abuse in the workplace comes within the jurisdiction of the WCB, as the definition of accident includes a “wilful and intentional act.” When such behaviour has resulted in a claim for constructive dismissal, that claim too comes within the Board’s jurisdiction.

The Act does not exclude claims for stress or psychological harm: Ashraf , para. 51 , Roy v. Alberta (Workers Compensation Boar d ) , 2011 ABCA 113 . [ 29 ] Mr. McNeil seeks compensation for his injuries and for his subsequent treatment by his employer, including its provision of improper information to the WCB. The aforementioned principles found in the case law lead to the conclusion that those claims are all claims that come within the definition of accident and are within the jurisdiction of the WCB. Mr. McNeil’s remedy was to appeal the Board’s decision, which he attempted to do.

Unfortunately, his appeal was out of time. This court has no jurisdiction in relation to those claims and they are struck. Canada Labour Code

[30] Mr. McNeil also claims that he was treated poorly by his employer and his representative under the collective agreementfailed to act on his behalf to deal with this improper treatment. [31] Mr. McNeil was a member of the Petrochem Driver’s Association which is certified to be the exclusive bargaining agent ofMantei’s employees. As Mantei’s is an interprovincial work or undertaking, Mr.

McNeil’s employment is subject to the Canada LabourCode. [32] That Code requires that the Collective Agreement set out a complaint, grievance and arbitration procedure for thedetermination of all differences between the parties. [33] The Code provides that the arbitrator has exclusive jurisdiction over “any disagreement respecting the

interpretation orapplication of a collective agreement”. To determine if the matter comes within the collective agreement the essential character of thedispute must be identified and then it must be decided if that essential character falls within the ambit of the collective agreement: Weberv.

Ontario Hydro, (SCC), [1995] 2 S.C.R. 929, para. 51. [34] The Courts have taken a liberal approach to the question of the jurisdiction granted by the Code with the result that arbitratorshave a “broad exclusive jurisdiction over issues relating to conditions of employment” when those conditions can be shown to have anexpress or implicit connection to the collective agreement. The courts retain a residual inherent jurisdiction in an exceptional case inwhich a grievance arbitrator might lack the powers needed to grant the remedy necessary to resolve the dispute: Bisaillon v.

ConcordiaUniversity, 2006 SCC 10 , [2006] S.C.J. No. 10, para’s. 20-33. [35] The fundamental principles found in the relevant case law on labour relations were described by me in Abrams v. Oishi,[2009] A.J. No. 779, (Alta. Q.B.), para. 61: 1. The courts have upheld a single jurisdictional model for labour relations and will defer to the legislative schemes provinces haveput in place for labour relations. 2. When a dispute arises either explicitly or implicitly under this scheme, the court has no jurisdiction, other than retaining a residualjurisdiction to deal with unusual cases. 3.

To determine where jurisdiction lies the court must carefully examine the facts to determine the essential character of the dispute:Is it a workplace problem or a problem in the workplace? 4. [Where] the legislation and collective agreement....provide a method to resolve employment disputes, the court has no jurisdiction,other than its residual jurisdiction. 5. The residual jurisdiction of the courts should not be used where a plaintiff or his or her union has failed to pursue the remediesavailable under the legislation and collective agreement.

The ability of the system in place to provide a solution to the problem is a factorto be considered when deciding if the court’s residual jurisdiction will be exercised. [36] In Young Estate v. Transalta Utilities Corp, 1997 ABCA 349, the Alberta Court of Appeal noted at paragraph 41 that thecourt’s residual jurisdiction cannot be used to relieve an employee from the consequences of failing to pursue a remedy available underthe collective agreement.

That would be directly contrary to the established policy of judicial deference, and would seriously underminethe value and integrity of the grievance and arbitration procedure. It would compromise one of the fundamental purposes of thecollective bargaining scheme, namely, the prompt and peaceful settlement of disputes arising under collective agreements. The Courtemphasized that the residual discretionary jurisdiction referred to in St. Anne Nackawic Pulp & Paper Co. Ltd. v.

Canadian PaperWorkers Union Local 219, (SCC), [1986] 1 S.C.R. 704 (S.C.C.) and Weber (supra) is not an alternative to proceedingunder the collective agreement. [37] More recently, the Alberta Court of Appeal again confirmed that where a collective agreement or labour legislation provides amethod to resolve disputes arising from an employment contract or a collective agreement, the courts have no jurisdiction to adjudicateon complaints arising out of that employment.

The failure of a union to pursue available remedies on behalf of a member does not givethe court jurisdiction to entertain a legal action arising out of the employment relationship: Sorochan v. St. Albert Protestant SeparateSchool District #6, 2004 ABCA 21, para. 9. See as well: Kniss v Stenberg, 2014 ABCA 73, para. 19. [38] Canadian cases have also held that the court does not gain jurisdiction where the plaintiff has lost the ability to bring a LabourRelations Board proceeding due to the passage of time. For example, in Bowcott v.

CBRT & GW, Local 400 (1980), (BC CA), 29 B.C.L.R. (2d) 198 (C.A.), the British Columbia Court of Appeal noted that jurisdiction flows from the nature of thetribunal and the legal scheme it administers. It does not depend on whether a claimant was punctual in advancing a case. [39] Mr. McNeil alleges that his employer harassed and intimidated him, failed to assist him, acted maliciously toward him, did notaccommodate the disabling results of his accident, and, ultimately improperly terminated his employment. [40] However he filed no grievance and made no formal complaint under his collective agreement.

His failure to do so does notgive jurisdiction to this Court. The essential nature of his claim relates to workplace problems and should have proceeded through theprocess in place under his collective agreement with ultimate jurisdiction resting with the Canada Industrial Relations Board. [41] Mr. McNeil provided a case to the Court where it was determined that the claim against the employer lay outside of thecollective agreement: Pilo v. Hudson’s Bay Co., (ON CA), [1998] O.J. No. 4714. In that case the employer pursuedthe employee in the criminal courts and the charges were ultimately dismissed.

The employee then sued the employer and the Court heldthat once the employer itself went outside the collective agreement and utilized the criminal justice system, the matter no longer camewithin the four corners of the collective agreement. That case is distinguishable from the facts in this case and therefore does not assistMr. McNeil.

[42] Mr. McNeil alleges that his representative, whom he has sued personally, did not take his concerns seriously and failed toproperly represent him. However, this complaint is also within the Canada Labour Code,

section 37. It prohibits a union from acting in amanner that is arbitrary, discriminatory or in bad faith in representing an employee. As a result, this claim is also within the jurisdictionof the Canada Industrial Relations Board which has exclusive jurisdiction to adjudicate claims of unfair or inadequate representation:Kniss v. Stenberg, (supra), para. 19. [43] In short, Mr. McNeil did not file a grievance in relation to his treatment by his employer. This Court has no jurisdiction to nowconsider matters that should have been the subject of a grievance procedure: St. Anne Nackawic ulp & Paper Co. Ltd. v.

CanadianPaper Workers Union Local 219, (SCC), [1986] 1 S.C.R. 704 (S.C.C.). Similarly, Mr. McNeil’s concern that he wasnot properly advised by, nor represented by his representative under the collective agreement, is outside of this Court’s jurisdiction. Canada Human Rights Act [44] Mr. McNeil claims his employer through its employees harassed him, discriminated against him, and failed to accommodatehim, all of which ultimately led to the termination of his employement. [45] Mantei’s is a federally regulated work or undertaking and the Canadian Human Rights Act applies.

This legislation grantsprimary jurisdiction to the Canada Human Rights Tribunal. A claimant has no right to proceed with his or her complaints directly to thecourts: Martin v. General Teamsters, Local Union No. 362, 2011 ABQB 412, para. 23; Public Performance of Musical Works, Re,2012 Carswellnat 2378 (S.C.C.) at para. 18; Seneca College of Applied Arts and Technology v. Bhadauria, (SCC),[1981] 2 S.C.R. 181, para. 27. [46] These claims are also outside of this Court’s jurisdiction. Defamation [47] Finally, Mr. McNeil alleges defamation. He has alleged that Mr.

Duggan defamed him and told lies about him to the WCBand to his superiors. Prior case law has considered similar claims where there was a collective agreement. [48] In Venneri v. Bascom, (ON SC), [1996] O.J. No. 890 (Gen. Div.), a teacher sued her former principal whohad written a letter to her alleging breach of trust, lies and deceit. Copies of the letter were sent to certain other school superintendentsand officials. The plaintiff had unsuccessfully grieved her dismissal from her employment. [49] The Court looked at the essence of her claim.

It found that, while it could be characterized as a dispute between privatecitizens, the dispute arose out of the employment relationship. The contents of the letter and the decision as to who was to receive it fellwithin the ambit of that relationship. The court noted that the plaintiff’s action was part of her on-going efforts to gain redress for herdismissal.

It pointed out that while the school board was not a party to the action, it would “demolish the policy set out in Weber” toallow the plaintiff to evade the collective agreement by permitting her to proceed against the school principal, a mere surrogate for theschool board. In Phillips v.

Harrison, 2000 MBCA 150, para. 71, the Court established a three-part test to determine whether a statement that mightotherwise be defamatory is captured within the jurisdiction of a collective agreement. [50] The comment must: concern the employee’s character, history, or capacity as an employee; be made by someone whose job itis to communicate a workplace problem; and be made to persons who would be expected to be informed of workplace problems.

If theserequirements are met, the comments must be adjudicated pursuant to the collective agreement and not the courts. [51] MacLeod J. of our Court, considered this three-part test in the context of defamation in Kniss v Elliott, 2012 ABQB 732, aff’d2014 ABCA 73. He also considered the analysis of the Supreme Court of Canada in Weber (supra), with respect to defamatorycomments.

In Weber the Supreme Court said that "the task of the judge or arbitrator determining the appropriate forum for theproceedings centres on whether the dispute or difference between the parties arises out of the collective agreement [and] two elementsmust be considered: the dispute and the ambit of the collective agreement": para. 51. [52] MacLeod J. held that regardless of which analysis he used, the defamation in issue was not within the court’s jurisdiction. [53] Essentially this case law has held that what this Court must determine is whether the defamation of Mr.

McNeil is aworkplace problem or a problem in the workplace. [54] In my view this allegation is closely interwoven with all of Mr. McNeil’s concerns about how his employer dealt with theresults of the accident. It is a workplace problem, not an unrelated problem that merely happened in the workplace. It was not a situationwhere someone Mr. McNeil happened to work with was defaming him to others. The alleged defamation is closely tied to the workplaceissues which he was facing. It was done by those who were expected to communicate about him.

His primary concern is the falseinformation given as to his demeanour after the accident. That information is directly related to his employment situation. [55] Therefore the claim of defamation is also a claim that should have been addressed in the proceedings that were open to Mr.McNeil under the collective agreement. [56] Finally, I note that it is most unfortunate that the deadline for the appeal of the WCB decision was missed, as was the time forthe other applications he could have made. Had Mr.

McNeil proceeded in time, he could have provided, for example, evidence of theparamedics who treated him at the scene of the accident to verify his version of the events that occurred. Without that opportunity he isleft in a situation where he finds himself stymied in his efforts to clear his name. Conclusion

[ 57 ] I do not find that Mr. McNeil has no claim. I am required to accept what he has told the Court occurred, and I do. What I do find is that Mr. McNeil has brought his claims to the wrong place. This Court has no jurisdiction to hear his claims as Parliament and the Legislature have seen fit to place the jurisdiction with other bodies. [ 58 ] It follows that the statement of claim is dismissed. Costs may be spoken to. Oral reasons given on 22 nd day of October, 2014. Dated at the City of Calgary, Alberta this 29 th day of October, 2014. J.B. Hanebury M.C.C.Q.B.A. Appearances: Caylee Rieger’s Timothy D.

Mitchell. Norton Rose Fulbright Canada LLP for the Defendants / Applicants Glenn Duggan, Mantei's Transport Ltd and Seaboard Transport Group of Companies E. Wayne Benedict McGown Johnson For Petrochem Driver’s Association and Bruce Lawson Jocelyn Mitchel for the Plaintiffs / Respondents _______________________________________________________ Corrigendum of the Memorandum of Decision of J.B. Hanebury, Master in Chambers _______________________________________________________

The Appearances are to be changed as follows: Caylee Rieger’s Timothy D. Mitchell. Norton Rose Fulbright Canada LLP for the Defendants / Applicants Glenn Duggan, Mantei's Transport Ltd and Seaboard Transport Group of Companies