Sesek v Awad, 2017 ABQB 57

Court of Queen’s Bench of Alberta Citation: Sesek v Awad, 2017 ABQB 57 Date: 20170126 Docket: 1603 01454 Registry: Edmonton Between: David Peter Sesek Plaintiff - and - Ziyad Awad, Bev Donass, Sandra Dovey, Braden Gallotti, Robert Gee, Carmel Hiebert, Tyrell Johnman Defendants/Respondents _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice J.B. Veit _______________________________________________________

Summary [ 1 ] David Sesek sued co-workers and managers at Canada Post for harassment, intimidation and bullying. The defendants applied in Masters’ Chambers to strike out Mr. Sesek’s statement of claim on the grounds that the parties’ collective agreement and principles of labour law establish that the courts have no jurisdiction to deal with workplace issues. Relying on case law such as Weber , the Master struck out the Sesek claim. [ 2 ] Mr. Sesek now appeals the Master’s decision to this court. His main arguments are based on his

interpretation of the CUPW collective agreement and of the Canada Labour Code . As to the collective agreement, he relies on

Article 56.08, entitled “Compensation”, which states that nothing in that

article restricts, in any way, “the right of an employee who has been subjected to harassment to claim and obtain compensation at common law or under any applicable legislation”.

Article 56.09, entitled “Right to Grieve” states that nothing in

article 56.08 restricts or limits “the right of an employee or the right of the Union to use the grievance and arbitration procedure in cases of harassment”. Mr. Sesek contends that the reference to “common law” necessarily includes reference to common law courts. Mr. Sesek also relies on the phrase “by arbitration, or otherwise ” in s. 57(1) of the Canada Labour Code for the

proposition that an action in the courts is “otherwise”. [3] In addition, Mr. Sesek relies on case law such as Budgen which allowed a workplace dispute to be determined by the courts. [4] Finally, Mr. Sesek uses the example of the payment, shortly after he launched his court proceedings, to him by Canada Postof some time that he had been claiming as evidence that court proceedings are quicker and more effective than the grievance/arbitrationprocess. [5] The defendants reply that Mr. Sesek misinterprets

article 56.08; that provision merely establishes the kind and level ofcompensation which can be claimed within the grievance and arbitration procedure. They also state that case law establishes that, fordisputes that arise out of the dynamics of the workplace, as a matter of principle Canada has accepted that the arbitration procedure isexclusive. [6] Mr. Sesek’s appeal is denied. [7] A “plain reading” of

article 56.08 does not give to Mr. Sesek the right to have his allegations dealt with by the courts. Rather,a plain reading of the collective agreement gives to Mr.

Sesek the right to claim, in the grievance/arbitration procedure, the kind ofcompensation he might have claimed in the common law. [8] Moreover, this “plain reading” of the collective agreement must also be informed by case law, such as Weber, whichexplains why the plain reading also leads to a rational result: workplace harassment will be dealt with by experts in workplace disputes. [9] The words “or otherwise” in article 57(1) of the Canada Labour Code are linked to a collective agreement.

The subsectionmust be read as if it stated that: a collective agreement must provide for a final resolution of workplace differences either bygrievance/arbitration or by the courts. The Budgen decision relied on by Mr. Sesek is an example, presumably one of the very few, of theoperation of article 57(1) where the collective agreement explicitly stated that a dispute could be resolved either by thegrievance/arbitration procedure or by the courts.

However, the collective agreement which applies here does not use that language; itauthorizes only a final resolution of workplace disputes by the grievance/arbitration procedure. Therefore, article 57(1) does not apply. [10] As mentioned above, Budgen is, as the reasons for decision themselves emphasize, an outlier on the issue of a court’s residualor concurrent authority to resolve workplace disputes where there is a collective agreement and an established grievance/arbitrationprocedure.

The anomaly of the decision is explained by the explicit wording of the firefighters’ collective agreement in that case: theagreement authorized access to the courts. [11] Mr. Sesek is wrong to imagine that court proceedings are quicker and more effective than grievance/arbitration. Apartaltogether from the fact that the grievance/arbitration procedure ensures that a workplace dispute will be assessed by a specializedtribunal, the process itself imposes time limits and limits on process that court proceedings can only dream of. Cases and authority cited [12] By Mr.

Sesek: Bahcheli v Yorkton Securities Inc, 2012 ABCA 166; Budgen v St John's (City) 2008 CarswellNfld 304;Leonardis v Canada Post Corp 2002 CarswellNat 4810, [2002] CHRD; Culic v Canada Post , 2006 CHRT 6, 2006 TCDP 6, 2006CarswellNat; Lavigne v Pare, 2015 FC 631, 2015 CarswellNat 1473; Lavigne v Canada Post Corporation, 2006 FC 1345; Sulz vMinister of Public Safety and Solicitor General, 2006 BCCA 582; Canada Post Corp. v CUPW, 2012 CarswellAlta 449. [13] By the Respondents: Weber v Ontario Hydro, [1995] 2 S.C.R. 929, ; Beaulieu v University of Alberta,2014 ABCA 137; Kniss v Stenberg, 2014 ABCA 73 ; Blomander v Canada Post Corp. et al, [2000] S.J.

No. 832 (QL); Ortiz vPatrk, [1998] O.J. No. 3874 (QL); Bahcheli v Yorkton Securities Inc, 2012 ABCA 166 ; Canada Post Corp v C.U.P.W.(2011), 204 L.A.C. (4th) 4; Canada Post Corp v C.U.P.W., 2012 ONSC 4110, 2012 CarswellOnt 10164; Lavigne v Canada PostCorporation, 2006 FC 1345 ; Lavigne v Pepin, 2007 FCA 123 ; Calgary Health Region v Alberta (Human Rights andCitizenship Commission), 2007 ABCA 120 ; Canadian Broadcasting Corp v Paul, (FC), [1999] 2 F.C. 3(F.C.T.D.), 1998 CarswellNat 2497, rev’d on other grounds 2001 FCA 93 , [2001] F.C.J.

No. 542 (F.C.A.). [14] By the court: Honda Canada Inc. v Keays 2008 SCC 39; Awan v Levant 2016 ONCA 970; Snook v. Canada PostCorporation, 2015 NLTD(G) 23; overturned 2015 NLCA 49; Anishinabek Police Service v. Anishinabek Police Service 2014 ONCA581; Kniss v Stenberg 2015 ABCA 73; Giesbrecht v. McNeilly 2008 MBCA 22 Appendix A: Decision of the Master 1. Background

a) Factual [15] David Sesek began working as a permanent, full-time, relief letter carrier for Canada Post in 2013. [16] He alleges that he suffered harassment, intimidation and bullying by the defendants who were his co-workers and managers. [17] Specifically, he alleges that he was called a derogatory name and, when his co-workers were told to stop doing that, theybegan calling him a name which was not in itself derogatory, but which was insulting because it was not Mr. Sesek’s name. Mr. Sesek

also claims that the defendants repeatedly made derogatory and defamatory comments in public about his work. He also states that he was regularly threatened with not being paid for overtime work and regularly challenged to “quit” or to access an inappropriate benefits program. [ 18 ] Mr. Sesek asserts that workplace irritants can have very serious consequences for affected employees. There can be no doubt that, as a general proposition, that assertion is correct. [ 19 ] In August 2015, Mr. Sesek’s union, the Canadian Union of Postal Workers, CUPW, filed a grievance on his behalf.

The grievance stated: GRIEVANCE STATEMENT: The CUPW grieves that the employer has violated Articles 9.33 and any and all other related articles, letters and appendices of the Collective Agreement and all relevant legislation in that the employer failed to provide a safe, health and harassment-free work place for the grievor. This has harmed the grievor. This is ongoing.

CORRECTIVE ACTION REQUESTED: That the employer cease violating the collective agreement in this manner; that all applicable remedies be applied and that the grievor and all affected employees be made whole in every way. [ 20 ] In September, 2015, at his request, Mr. Sesek was transferred by Canada Post to Mississauga, Ontario. [ 21 ] In October, 2015, CUPW asked to have this grievance referred to third party arbitration in accordance with

section 57 of the Canadian Labour Code. [ 22 ] In January, 2016, Mr. Sesek filed a statement of claim against the named defendants, who were co-workers and managers at Canada Post. In his statement of claim, Mr. Sesek claimed $100,000.00 in general, aggravated and punitive damages for the emotional injuries and financial loss which he alleges are due to the harassment, intimidation and bullying he suffered in the workplace. [ 23 ] Mr.

Sesek states that, shortly after he filed his statement of claim, Canada Post paid him for some time he had lost from work as a result of harassment. [ 24 ] In April, 2016, the Master struck down Mr. Sesek’s statement of claim in these proceedings: see Appendix A for the Master’s reasons. [ 25 ] In October, 2016, Mr. Sesek’s employment with Canada Post terminated.

b) Contractual [ 26 ] The collective agreement between Canada Post and its unionized employees contains the following provisions: 56.08 Compensation A complaint filed pursuant to this

article shall not be construed as restricting in any way the right of an employee who has been subjected to harassment to claim and obtain compensation at common law or under any applicable legislation. 56.09 Right to Grieve Nothing in the above provision shall be construed as restricting or limiting the right of an employee or the right of the Union to use the grievance and arbitration procedure in cases of harassment. 56.10 Right to File Complaints with the Canadian Human Rights Commission

An employee who believes that he or she has been subjected to harassment or violence related to discrimination may at any time file a complaint-with the Canadian Human Rights Commission in accordance with the Canadian Human Rights Act . However, the fact that an employee did not use this course of action shall not in any way be raised against this employee.

Similarly, the filing of a complaint with the Commission shall not deprive an employee of any right under the collective agreement. 56.11 No Reprisal No reprisal shall be exercised against an employee because he or she filed a complaint in accordance with the above-mentioned provisions except where a false charge has been made with malicious intent. [Emphasis added] [ 27 ] The Canada Labour Code contains the following provisions: Content and

Interpretation of Collective Agreements Effect of collective agreement 56 A collective agreement entered into between a bargaining agent and an employer in respect of a bargaining unit is, subject to and for the purposes of this Part, binding on the bargaining agent, every employee in the bargaining unit and the employer. Provision for final settlement without stoppage of work 57

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

interpretation, application, administration or alleged contravention. Where arbitrator to be appointed

(2) Where any difference arises between parties to a collective agreement that does not contain a provision for final settlement of the difference as required by subsection (1), the difference shall, notwithstanding any provision of the collective agreement, be submitted by the parties for final settlement (

a) to an arbitrator selected by the parties; or (

b) where the parties are unable to agree on the selection of an arbitrator and either party makes a written request to the Minister to appoint an arbitrator, to an arbitrator appointed by the Minister after such inquiry, if any, as the Minister considers necessary. Idem

(3) Where any difference arises between parties to a collective agreement that contains a provision for final settlement of the difference by an arbitration board and either party fails to name its nominee to the board in accordance with the collective agreement, the difference shall, notwithstanding any provision in the collective agreement, be submitted by the parties for final settlement to an arbitrator in accordance with paragraphs (2)(

a) and (b). Request to Minister for appointment of arbitrator or arbitration board chairperson

(4) Where a collective agreement provides for final settlement, without stoppage of work, of differences described in subsection (1) by an arbitrator or arbitration board and the parties or their nominees are unable to agree on the selection of an arbitrator or arbitration board chairperson, as the case may be, either party or its nominee may, notwithstanding anything in the collective agreement, make a written

request to the Minister to appoint an arbitrator or arbitration board chairperson, as the case may be. Appointment by Minister

(5) On receipt of a written request under subsection (4), the Minister shall, after such inquiry, if any, as the Minister considers necessary, appoint an arbitrator or arbitration board chairperson, as the case may be. Effect of appointment by Minister

(6) Any person appointed or selected pursuant to subsection (2), (3) or (5) as an arbitrator or arbitration board chairperson shall be deemed, for all purposes of this Part, to have been appointed pursuant to the collective agreement between the parties. Decisions not to be reviewed by court 58

(1) Every order or decision of an arbitrator or arbitration board is final and shall not be questioned or reviewed in any court. No review by certiorari, etc.

(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an arbitrator or arbitration board in any of their proceedings under this Part. Status

(3) For the purposes of the Federal Courts Act , an arbitrator appointed pursuant to a collective agreement or an arbitration board is not a federal board, commission or other tribunal within the meaning of that Act. [Emphasis added] 2. Standard of review [ 28 ] The standard of review of the Master’s decision herein is correctness: Bahcelli . 3. The applicable collective bargaining agreement does not allow employees who allege harassment in the workplace to bring action in the courts [ 29 ] This application deals with a dispute arising out of the

interpretation of a collective agreement. Specifically, it focusses attention on the

interpretation of articles 56.08-56.11 of CUPW’s collective bargaining agreement with Canada Post and on the provisions of the Canada Labour Code.

a) A “plain reading” of

article 56.08 does not assist Mr. Sesek [ 30 ] Mr. Sesek states that a plain reading of

article 56.08 of the collective agreement which applies to him, when read in the context of the subsequent articles, gives him the right to have his harassment claim assessed by the courts. [ 31 ] With respect, for the following four reasons, he misreads the article. First, the

article itself states that it speaks of rights relating to “ a complaint filed pursuant to this article”. By adopting the word “complaint” - i.e. a procedure under the grievance/arbitration procedure outlined in the agreement rather than words such as “statement of claim” or “originating application” which would be the appropriate wording if one were referring to court procedures – the parties to the collective agreement are indicating their choice of grievance/arbitration process rather than court process. [ 32 ] Second, when reading the article, one must take into account its heading. That heading, i.e. “Compensation”, tells us that

article 56.08 will deal with the kind and level of compensation which can be claimed in grievance/arbitration proceedings. The

article does not purport to deal with the forum or venue or type of tribunal before which a compensation claim will be made. [ 33 ]

Article 56.08 says that employees claiming compensation in their complaints will not be restricted to some level of compensation which is lower than what the common law would allow; it doesn’t have to be decided on this application whether

article 56.08 limits the right of an employee to obtain – in the grievance/arbitration process - the kind and level of damages that could be obtained by application of the common law, but it is at least clear that an employee is not required to request less than what the common law allows

i) The level of damages available at common law for harassment is a technical matter [ 34 ] The amount of damages available at common law for harassment or similar wrongful actions is a technical matter. Without attempting an exhaustive outline of the common law concept of damages for harassment, I note that Keays is a relatively recent

summary of what the common law might award for harassment and related injuries. It outlines the development of the law in that area, from a time when aggravated damages for mental distress could only be awarded when there was an independent actionable wrong to the current state of the law which is that damages can now be awarded for mental distress where mental distress was anticipated in the drafting of the contract.

[35] In that same judgment, there was an outline of the law with respect to punitive damages. The court said this: 68 Even if I were to give deference to the trial judge on this issue, this Court has stated that punitive damages should "receive the mostcareful consideration and the discretion to award them should be most cautiously exercised" (Vorvis, at pp. 1104-5). Courts should onlyresort to punitive damages in exceptional cases (Whiten, at para. 69). The independent actionable wrong requirement is but one of manyfactors that merit careful consideration by the courts in allocating punitive damages.

Another important thing to be considered is thatconduct meriting punitive damages awards must be "harsh, vindictive, reprehensible and malicious", as well as "extreme in its nature andsuch that by any reasonable standard it is deserving of full condemnation and punishment" (Vorvis, at p. 1108). The facts of this casedemonstrate no such conduct. Creating a disability program such as the one under review in this case cannot be equated with a maliciousintent to discriminate against persons with a particular affliction. [36] Another

summary of the current law can be found in Halsbury’s Laws of Canada: under the heading “Damages for Non-Pecuniary Loss”. [37] A criticism of the current law can be found in Awan: 103 The trial judge recognized that like general damages, aggravated damages are also compensatory in nature.

In Hill, at paras. 188-189, Cory J. explained the rationale for an award of aggravated damages as follows: Aggravated damages may be awarded in circumstances where the defendants' conduct has been particularly high-handed or oppressive,thereby increasing the plaintiff's humiliation and anxiety arising from the libellous statement. The nature of these damages was aptlydescribed by Robins J.A. in Walker v. CFTO Ltd., (ON CA), [1987] O.J.

No. 236 supra, in these words at p. 111: Where the defendant is guilty of insulting, high-handed, spiteful, malicious or oppressive conduct which increases the mental distress --the humiliation, indignation, anxiety, grief, fear and the like -- suffered by the plaintiff as a result of being defamed, the plaintiff may beentitled to what has come to be known as "aggravated damages". These damages take into account the additional harm caused to the plaintiff's feelings by the defendant's outrageous and maliciousconduct. Like general or special damages, they are compensatory in nature.

Their assessment requires consideration by the jury of theentire conduct of the defendant prior to the publication of the libel and continuing through to the conclusion of the trial. They representthe expression of natural indignation of right-thinking people arising from the malicious conduct of the defendant. 104 Justice Cory also acknowledged the likelihood of some overlapping factors when assessing both types of damages.

He stated, atpara. 183, "[t]here will of necessity be some overlapping of the factors to be considered when aggravated damages are assessed." 105 This potential for overlap and therefore double counting is controversial and has led some to call for the abolition of separateawards of aggravated damages in defamation actions.

See Brown, at pp. 25-79 to 25-84, where the author states that "[a] separate awardof aggravated damages is a pernicious development in the law; it is absurd in theory and mischievous in practice." He notes that anoverlapping of factors will necessarily occur where aggravated damages are recognized as just another aspect of compensatory damages,and there is also considerable overlap with punitive damages, which similarly require evidence of malicious conduct. See also Brown v.Cole (1998), (BC CA), 61 B.C.L.R. (3d) 1, leave to appeal to S.C.C. refused, [1998] S.C.C.A. No. 614 and Campbellv.

Tremblay, 2010 NLCA 62, 305 Nfld. & P.E.I.R. 1. 106 The Ontario Law Reform Commission also recommended abolishing a separate award for aggravated damages in all damageawards. Ontario Law Reform Commission, Report on Exemplary Damages (Toronto, 1991) at pp. 27-30, 103. [38] In

summary on the second reason why Mr. Sesek’s plain reading of

Article 56.08 is erroneous, a plain reading of thecollective agreement gives to an employee the right to claim in the grievance/arbitration procedure the same rights to general, aggravatedand punitive damages available at common law at the time the grievance is brought. [39] Third, although I agree with Mr. Sesek that, in order to properly interpret the meaning of

article 56.08, we must look at thearticles which follow, after looking at those articles, I come to a different conclusion than his. [40]

Article 56.10 clearly demonstrates that the contracting employer and contracting union knew how to grant the right to go to adifferent forum from that of grievance/arbitration; the agreement explicitly authorizes someone with a grievance to have that grievanceheard by the Canadian Human Rights Commission. Had the contractors intended to allow access to the courts, they would have said soin language which mirrored the language used in

article 56.10. [41] The fourth reason why Mr. Sesek’s “plain reading” of

article 56.08 is erroneous is found in the

interpretation of that veryarticle by a court which had the benefit of submissions from both the employer and the union: Snook. (The fact that we are dealing withthe same agreement is established by the dates, by the parties, and by the reproduction in the trial judgment of

article 56.09.) The factthat both the employer and the union appeared in the Snook appeal and both took the position that the

article did not give access to thecourts is important because the

interpretation of contracts depends in large measure on the intention of the parties. The Snook casemakes it clear that neither Canada Post nor CUPW intended

article 56.08 to give access to the courts. A decision of the NewfoundlandCourt of Appeal is not, of course, binding on this court; that appeal level decision is, however, persuasive. [42] Both Snook decisions are also useful because they refer to, but clearly find irrelevant, the Budgen decision on which Mr.Sesek relies. [43] In

summary, the “plain reading” argument fails: a plain reading of

article 56.08 does not give Mr. Sesek access to the courts.

b) The Canada Labour Code does not give Mr. Sesek access to the courts [44] Mr. Sesek asserts that the words “or otherwise” in article 57(1) of the Canada Labour Code’s phrase “by arbitration, or

otherwise” distinguish the Weber analysis from the analysis which must be undertaken here and support the proposition that harassmentclaims can be assessed by courts. [45] Let me say at the outset that I understand Mr. Sesek’s perplexity in the face of this language.

Indeed, in appeal level courtdecisions, the words “or otherwise” in article 57(1) are routinely ignored: Anishinabek Police Service at para. 18; Kniss at para. 22;Giesbrecht at para. 7. [46] Just as the parties, the only Canadian court decision which I could find during the last 10 years which grappled with theexpression “or otherwise” in s. 57(1) of the Labour Code is the 2006 Lavigne decision. It is therefore useful to repeat what that decisionsaid on the topic: 23 As a preliminary issue, Mr. Lavigne has argued that Weber, above, is distinguishable from this case.

The provision that was atissue in Weber, subsection 45(1) [now 48(1)] of the Ontario Labour Relations Act, R.S.O. 1990, c. L-2, is similar - but not identical - tosubsection 57(1) of the Canada Labour Code. Specifically, only the federal provision contains the words, "or otherwise," as in: "Everycollective agreement shall provide for the final settlement without stoppage of work, by arbitration or otherwise ..." The full text of theseprovisions is contained in the Appendix at the end of these reasons. 24 Mr. Lavigne argues this difference in wording opens the door to giving this Court jurisdiction.

He claims the words "or otherwise"suggest this Court can be viewed as an alternative forum to arbitration. 25 I cannot accept this argument. To do so would run counter to years of labour jurisprudence asserting the importance of theprinciples from Weber, above. I cannot simply disregard these principles when reading subsection 57(1). They represent the fabric ofCanadian labour law, and must inform my

interpretation of any aspect of the Canada Labour Code. As such, I find that such indirectlanguage is not sufficient to give this Court jurisdiction. 26 Before leaving this issue, a word must be said about the Federal Court of Appeal's decision in Canadian Pacific Ltd. v. UnitedTransportation Union, (FCA), [1979] 1 F.C. 609. The Court in that case was faced with the question of determiningjurisdiction over a labour dispute. While the Court ultimately held that the parties had assigned jurisdiction to an arbitrator, JusticeWilliam Ryan discussed the meaning of

section 155 of the Canada Labour Code - the predecessor to subsection 57(1): 38

Section 155 establishes a system for the final settlement, without stoppage of work, of disputes arising under collective agreements.Every collective agreement must contain a provision for final settlement of the types of differences specified in subsection (1). Theparties to an agreement are thus under a duty to provide for such final settlement by arbitration or by some other means. If they fail tofulfil this duty (possibly by a good faith failure to select a method), the Board itself is to make the provision on the application of eitherparty, and the provision so determined becomes part of the collective agreement. It is within this context that the effect of the closingwords of

section 23 of the Federal Court Act must be determined. And it is my view that in this case the selection, by the parties, ofarbitration as the means of final settlement did constitute a special assignment of jurisdiction to determine the issues posed by the presentaction. 39 It is true that the parties might have chosen another method; it is also true that they might have failed to choose a method and,accordingly, the Canada Labour Relations Board might have had to furnish a provision for final settlement on application by a party.

I, ofcourse, recognize that the duty of the Board to furnish such a provision arises only when one of the parties makes an application.Subsection 155(1) does, however, itself require that every collective agreement shall provide a method for final settlement withoutstoppage of work, and the parties to the agreement have chosen arbitration as that method. It is not necessary to speculate on what thesituation would have been if they had not done so. [Emphasis added] 27 Thus, the Court appears to have acknowledged that parties could "opt out" of arbitration, by selecting another method of disputeresolution. Mr.

Lavigne claims the Union and Canada Post have done just that, choosing to have disputes settled in this Court. He claimswe can find evidence of this in two parts of the collective agreement: 1. Appendix "N," which outlines the agreement's disability insurance plan appeal process; and 2. Clause 56.08, which addresses an employee's right to seek compensation for harassment at common law and under any applicablelegislation. 28 I cannot accept this submission for a number of reasons. First, the Federal Court of Appeal's decision predates the Supreme Court'sdecision in Weber, above, and the

interpretation given to the words "or otherwise" must be adjusted accordingly. Secondly, it is not at allclear that Justice Ryan had in mind the possibility of referring a dispute to the Court when he mentioned that the parties might choose"another method". He may simply have alluded to other non-judicial methods of resolving a dispute, like mediation and conciliation. Buteven if I was prepared to accept that the words "or otherwise" in section 57(1) could entitle parties to choose the courts as an alternatemeans of dispute resolution, neither of the two sections of the collective agreement invoked by Mr.

Lavigne supports such a conclusion.These sections are so specific, so discrete, that they cannot possibly be interpreted as reflections of the parties' intentions to override anarbitrator's exclusive jurisdiction. 29 Appendix "N" of the collective agreement deals with processing a claim for disability compensation. While Mr. Lavigne has madenumerous claims, none involves a claim under Canada Post's disability insurance plan. Rather, he wants to see a copy of Canada Post'scontract with Sun Life.

The discussion about taking a claim to court is thus not relevant. 30 Clause 56.08 deals with seeking compensation for harassment under common law or any applicable legislation. Nothing in thissection expressly allows a complainant to seek redress in court, and indeed Canada Post has argued convincingly that this clauseaddresses a complainant's substantive options - not the proper forum in which to raise a complaint. 31 Overall, Appendix "N" and clause 56.08 of the collective agreement seem to provide arbitrators with options when resolvingdisputes between employee and employer.

They do not, however, represent the parties' desire to give this Court jurisdiction over any

dispute arising out of the collective agreement. 32 I am therefore confident that Weber, above, is perfectly applicable to this case, and will now submit Mr. Lavigne's claims to its framework.

Article 9 of the parties' collective agreement outlines its grievance and arbitration procedure. Thus, if any of Mr. Lavigne's three claims below are covered expressly or implicitly by the agreement, then pursuant to Weber, above, such claims can only be heard by an arbitrator. The relevant provisions from the collective agreement are attached in the Appendix at the end of these reasons. [ 47 ] With respect, the case law does not support that position. The Lavigne decisions perhaps put that issue into the clearest perspective.

As the 2006 Lavigne decision explains, article 57(1) of the Code’s reference to “or otherwise” does not give access to the courts, but refers, for example, to “a good faith failure to select a method” or “mediation and conciliation”: see the incorporation in para. 26 of the decision of an extract from the United Transportation Union decision and the commentary at paragraph 28 of Lavigne . [Emphasis added] [ 48 ] With respect for the reasons given by de Montigny J. in this “first” Lavigne decision, I am of the view that the straightforward reasons of Ryan J., which are quoted with approval in the decision, are all that are required in order to correctly interpret the meaning of article 57(1): unions and employers are at liberty to choose a method other than arbitration to finally solve their disputes and, if they say so clearly in their collective bargaining agreement, that alternative choice will be effective.

Indeed, the Budgen decision, which will be commented upon in somewhat greater depth below, is an example of exactly that kind of choice by an employer and a union. [ 49 ] Returning to the Lavigne string of cases, the 2009 Lavigne decision emphasizes that the conclusion reached in the 2006 decision is correct in principle, i.e. the arbitration procedure is, typically, the choice made by employers and unions as the exclusive forum for the resolution of workplace disputes: 48 On May 15, 2006, the applicant commenced an action in this Court against the respondent alleging various causes of action arising out of or related to his employment by the respondent.

The applicant's statement of claim was struck on the basis that the Court had no jurisdiction to hear the matter, and the applicant's appeal was subsequently dismissed by the Federal Court of Appeal (Lavigne v. Canada Post Corporation et al., 2006 FC 1345 ; 2007 FCA 123 ). 49 Almost a full year after the Federal Court of Appeal rendered its decision, the applicant sought leave to appeal to the Supreme Court of Canada, along with a motion to extend the time to apply for leave and various other ancillary motions.

On July 10, 2008, the Supreme Court dismissed the application for an extension of time to apply for leave to appeal and certain ancillary motions with costs in favour of the respondent, taxed in the amount of $1,913.16, [2008] S.C.C.A. No. 136. [Emphasis added] [ 50 ] In other words, although the Supreme Court of Canada did not itself comment on the proper

interpretation of the expression “or otherwise” in article 57(1) of the Canada Labour Code , it did look at the

interpretation of the

article by the appeal court and chose not to interfere with the fact that there could be no further appeal from that decision. [ 51 ] The 2015 Lavigne decision which refers to Mr. Lavigne as a vexatious litigant merely emphasizes that a Canada Post employee must accept the principles undergirding the exclusive jurisdiction model; naturally, each situation involves an assessment of whether the dispute arises out of the “interpretation, application, administration or violation” of the collective agreement.

Determining whether an employee who is bound by a collective agreement is a vexatious litigant is an example of an issue that must be determined by the courts because it doesn’t arise within the jurisdiction of an arbitrator.

c) Mr. Sesek’s other arguments – case law, process - do not assist him [ 52 ] The case law which Mr. Sesek advances does not, in fact, support his position. [ 53 ] The Budgen decision does not assist Mr. Sesek; on the contrary, it establishes how unusual it is in Canada to find an employer and union who agree to use the “or otherwise” option. The firefighters’ collective agreement in that case expressly opted for a different route than the arbitration route.

Under article 57(1), it is the collective agreement which governs: 54 This brings me to the second element that must be considered -- the ambit of the collective agreement. It is not all employment- related disputes that are foreclosed to the courts: only those that in their essential character arise, either expressly or inferentially from the

interpretation, application, administration or violation of the collective agreement and provide for a dispute resolution mechanism other than recourse to the courts. [Emphasis added] [ 54 ] On the facts of that case, the collective agreement explicitly provided access to “any forum” and therefore implicitly provided access to the courts: 59 The collective agreement in this case refers specifically to issues of harassment and provision of a safe work environment in the following terms: 4.03 Both the City and the Association consider sexual harassment ... and personal harassment as defined herein to be reprehensible and are committed to maintaining an environment where such harassment does not exist.

To this end, the Association and the City recognize the right of employees to work in an environment which is free from harassment. The parties undertake to investigate alleged occurrences with all possible dispatch. If harassment has taken place, the City shall take appropriate action and shall ensure that the harassment ceases. The victim shall be afforded all reasonable protection from repercussions which might result from his/her complaint. A grievance under this clause shall be filed with the Chief Commissioner at Step 3 ...

An individual is free to file a complaint in any forum and may do so however, an individual who wishes to file and process a grievance

on any allegation of harassment must do so before actively proceeding with a complaint in any other forum. In the event the parties are unable to resolve the matter, either party may refer the matter to arbitration in accordance with

Article 8 ... [Italics added][Emphasis in original] 60 The inclusion of

Article 4 in the collective agreement is significant. On the one hand, it removes virtually all doubt as to whether the regulation of workplace harassment is regarded as part of the employment relationship. On the other hand, the remedies for failure to provide a harassment-free work environment are dealt with differently from other agreement violations: the complainant may use the grievance procedure all the way up to final and binding arbitration and/or he or she may process a complaint in "any forum". 61 A fair reading of the provision in italics in

Article 4.03 quoted above is that harassment claims and claims that the employer failed to "take appropriate action" to ensure a cessation of harassment may be proceeded with in forums, including the courts, other than the grievance-arbitration forum provided for in

Article 8. It is not necessary to exhaust the grievance-arbitration procedure before having recourse to those other forums. In fact,

Article 4 contemplates that a complainant may access multiple forums, including the grievance- arbitration procedure with the only limitation being that if he or she wants to access the grievance-arbitration procedure at all, that procedure must be accessed first.

Article 4 does not stipulate, as a condition of accessing other forums that the grievance-arbitration forum must be exhausted first, merely that one cannot access another forum and then have resort to the grievance-arbitration procedure.

There is nothing precluding access to another forum after starting but not completing the arbitration-adjudication process. . . . 65 I conclude, therefore that s. 86 of the Labour Relations Act , while indicating a strong policy preference for settlement of employment-related disputes by arbitration, does not, unlike the legislation considered in Weber, mandate collective agreement arbitration as the exclusive mechanism for resolving those disputes; rather, as in the St. Anne case, it leaves it open to the parties to agree on some other mechanism ("by arbitration or otherwise"), including the courts.

In this case the City and the union chose, in the case of harassment complaints, including the obligation to "ensure" that harassment ceases so as to maintain a safe work environment, to preserve the right of complainants to access other forums, including the courts. [Emphasis added] [ 55 ] The choice to allow access to the courts was a choice available to Canada Post and CUPW, but it was not a choice they made. [ 56 ] The decisions of the Canadian Human Rights Commission, Leonardis and Culic, do not assist on the question that faces us in this application; it is clear that this collective agreement establishes the Canadian Human Rights Commission as an alternative forum for assessing harassment claims. [ 57 ] Mr.

Sesek also states that if he is denied access to the courts, he will be involved in a grievance/arbitration process which will impose delay in resolution, afford less ability to question and will not allow punitive damages. With respect, he is wrong both from the macro and from the micro perspectives. As to the overall approach, the case law is quite clear that the grievance/arbitration procedure does not have to provide exactly the same processes as those found in legal proceedings before the courts, so long as the processes adequately respond to the objectives of fairly settling the disputes.

As to the micro considerations, the time limits in the grievance/arbitration setting are much tighter than those allowed in court proceedings. Finally, every tribunal, whether an arbitrator, a human rights commission, or a court is bound by law to exercise restraint when determining whether punitive damages should be awarded. [ 58 ] Mr. Sesek argues that he is claiming relief against individuals, not Canada Post. With respect, the persons against whom he is claiming are all supervisors or managers at Canada Post and their alleged wrongful actions arise out of the workplace relationship.

As indicated at the outset, Mr. Sesek’s claim is, essentially, a workplace dispute which must be settled according to the provisions established for the resolution of such disputes.

d) Conclusion [ 59 ] For the reasons set out above, I dismiss Mr. Sesek’s appeal. The courts have no jurisdiction over his workplace dispute. 4. Costs [ 60 ] If the parties are not agreed on costs, I may be spoken to within 30 days of the release of this decision. Heard on the 13 th day of January, 2017. Dated at the City of Edmonton, Alberta this 25 th day of January, 2017.

J.B. Veit J.C.Q.B.A. Appearances: David Peter Sesek, on his own behalf Kevin Feth, QC, Field LLP for the Defendants APPENDIX A Reasons for Judgment MASTER WACOWICH: This is an application to strike a statement of claim on the basis that the Court has no jurisdiction to hear the matter, as it arises out of a matter which would properly be through the collective agreement between the employer and employee should be dealt with through arbitration. I heard this matter at 9:00 AM. It is now 9:32 AM.

I have carefully considered the written submissions of both the applicant and the respondent, and I have listened carefully to their oral submissions, as well. This is not a difficult case. I understand Mr. Sesek's desire for the matter to be heard by a court, but the collective agreement governs. The essential character of Mr. Sesek's lawsuit concerns allegations of workplace misconduct directed at Canada Post supervisors and managers arising from Mr.

Sesek’s employment The dispute falls within the ambit of the collective agreement and is within the exclusive jurisdiction of the grievance and arbitration process under that agreement. Accordingly, this Court does not have jurisdiction. As I indicated earlier, I have listened carefully. The Weber principle does govern this case. The collective agreement governs the day; deference is given to the collective process.

As indicated in the Beaulieu case, the decision of our Court of Appeal from 2013 at paragraph 48: (as read) The court's residual inherent jurisdiction should only be used in exceptional cases, otherwise there is a risk that the exclusive jurisdiction model will be circumvented or undermined. The relevant inquiry is not whether the collective agreement's dispute resolution procedures offer the same remedies as a court but whether the court's failure to intervene will result in a "real deprivation of ultimate remedy."

In this case, the plaintiff of course requires an effective remedy, but there is an effective remedy through the grievance process and all of the remedies which Mr. Sesek seeks are available in that process. Mr. Sesek indicated that if necessary he would withdraw his grievance so he could proceed with this lawsuit. That does not work. The employers and the employees, neither one, in this case we are dealing with an employee, of course, but neither one can circumvent the grievance process. The statement of claim is struck with costs of the action awarded to the defendants, including this application.