Lam v University of Calgary, 2019 ABQB 923

Court of Queen’s Bench of Alberta Citation: Lam v University of Calgary, 2019 ABQB 923 Date: 20191203 Docket: 1903 04704 Registry: Edmonton Between: Lam, Yau Wah Steve Plaintiff - and - Governors of the University of Calgary, Derek Lichti, Marcia Buchholz, Tanya Brucker, and Alberta Union of Provincial Employees Defendants _______________________________________________________ Reasons for Decision of B.W Summers , Master, Court of Queen's Bench of Alberta _______________________________________________________ [ 1 ] This is an application by the Defendant Alberta Union of Provincial Employees (“AUPE”) for an order striking the Plaintiff’s Statement of Claim against AUPE pursuant to Rule 3.68 of the Alberta Rules of Court or dismissing it summarily pursuant to Rule 7.3. [ 2 ] In this action the Plaintiff sued his employer University of Calgary (“University”) and three individual employees of the University (collectively “University Defendants”) for wrongful dismissal and other causes of action and sued AUPE for wrongs alleged in respect of AUPE’s role in representing the Plaintiff in grievance and arbitration processes. [ 3 ] On August 29, 2019 Master Birkett granted the application of the University Defendants to summarily dismiss the action against them (“University Dismissal Order”).

The Plaintiff has filed an appeal of that order and it is scheduled to be heard next year. EVIDENCE [ 4 ] The Applicant AUPE has filed two affidavits in support of its application: (

a) affidavit of Blaine Vandekerkhove; (

b) affidavit of Cherie Langlois-Klassen.

[ 5 ] The Respondent Plaintiff, who is self represented, has filed numerous affidavits as follows: (

a) five affidavits, all entitled “Affidavit of Records” filed May 2, May 16, May 27, June 12 and July 22, 2019; (

b) four other affidavits filed September 9, September 19, October 10 and October 30, 2019 (“Plaintiff’s Other Affidavits”). [ 6 ] The Affidavits of Records are in the usual form. However, attached to the Affidavits of Records are exhibits. These exhibits are written narratives and documents. The written narratives are a combination of factual statements and argument.

The Plaintiff acknowledged at the application that there was repetition in his Affidavits of Records, but the main one upon which he relies is the one dated July 22, 2019. [ 7 ] The Plaintiff’s Other Affidavits were provided for several purposes: in support of the Plaintiff’s appeal of the University Dismissal Order, to consolidate and summarize evidence, to make argument and to provide statutory and case authority on this application. I have considered all of them. [ 8 ] Although the Plaintiff’s evidence and arguments have not been set out separately, I have been able to discern statements of fact from argument.

My decision in this case has not been affected by the Plaintiff’s departure from normal procedure. [ 9 ] Despite there being a considerable amount of affidavit evidence, there is little dispute in the facts as there are very few contradictions in the evidence. There was no questioning on affidavit by either the Plaintiff or AUPE. When AUPE’s counsel served his affidavits upon the Plaintiff, counsel’s letter specifically offered to the Plaintiff to cross examine the AUPE witnesses. However, this offer was never taken up.

SUMMARY OF FACTS [ 10 ] The chronology of events described in the affidavits is quite lengthy, but may be summarized as follows. [ 11 ] In 2016 and 2017, the University took certain steps against the Plaintiff: firstly, sending a letter of warning regarding the conduct of the Plaintiff described as insubordinate and disrespectful (“Warning Letter”); secondly, a suspension with pay while the University sought to have the Plaintiff undergo an independent medical examination (“IME”) which the University had requested following reports of the Plaintiff’s behaviour at a survey field camp (“Paid Suspension”); thirdly, suspending the Plaintiff without pay (after two months with pay) as he had not undergone an IME (“Unpaid Suspension”); and fourthly, terminating his employment (after suspending the Plaintiff without pay for eight months) for not meeting the University’s request for an IME (“Termination”). [ 12 ] AUPE filed three grievances on behalf of the Plaintiff: firstly, seeking a declaration that the Warning Letter be declared null and void and removed from the Plaintiff’s personnel file on the basis that it was issued without just cause; secondly, seeking a declaration that the University resume and catch up all pay and benefits to the Plaintiff as he was placed on an unpaid leave of absence without just cause; and thirdly, a declaration that the Plaintiff be reinstated as an employee of the University and to receive all monies, benefits and entitlements on the basis that the Termination was without just cause.

These grievances were filed by the union separately, in a timely fashion after each alleged wrongful step was taken by the University. [ 13 ] All of the grievances were dismissed. AUPE filed an application for arbitration. After several months of what the union characterized as a “lack of cooperation” on the part of the Plaintiff, the union representative for the Plaintiff made a recommendation to AUPE’s Grievance Review Board that the Plaintiff had abandoned the grievances.

The Plaintiff asserted in a written submission that it was AUPE who had abandoned the grievances. [ 14 ] The Grievance Review Board consists of a panel of three independent vice-presidents who exclusively have the authority to decide whether a grievance is to proceed to arbitration. The Grievance Review Board voted to withdraw the grievances and advised the University and the Plaintiff as such. PLAINTIFF’S ALLEGATIONS AGAINST AUPE [ 15 ] Paragraph 62 of the Plaintiff’s Statement of Claim provides a useful

summary of the Plaintiff’s claims against AUPE as follows: 62. The Plaintiff claims against the Defendant, Alberta Union of Provincial Employees damages of $632,400 for depriving the rights of the Plaintiff to know and participate in the grievances, the falsification of grievance forms without signature and documentary evidence of the Plaintiff for the submission, labelling the Plaintiff mentally ill, the breach of the duty of fair representation, and the intentional infliction of distress and conspiracy to harm the Plaintiff. [ 16 ] This is a good

summary of the allegations made against AUPE found in paragraphs 27, 30, 46, 48 and 53-55 of the Statement of Claim. AUPE’s APPLICATION [ 17 ] At the hearing of this matter, counsel for AUPE conceded that not all of the Plaintiff’s allegations were capable of being struck under Rule 3.68. That is, he acknowledged that there are parts of the Statement of Claim that are neither “frivolous, irrelevant or improper” contrary to clause (

c) of subrule 3.68(2) nor failed to disclose a reasonable claim contrary to clause (

b) of that subrule. More specifically, he acknowledged that the Plaintiff’s allegation that “AUPE had deprived the rights of the Plaintiff to know and participate

(in) the grievances and conducted the grievances in an arbitrary and discriminatory manner and in bad faith” (found in paragraph 53 ofthe Statement of Claim) was something that could not be struck under this rule. However, he did maintain that some of the Plaintiff’sclaims could be struck under Rule 3.68, such as the claims of intentional infliction of distress and conspiracy to harm the Plaintiff. [18] Counsel for AUPE did assert that the Plaintiff’s entire action could be disposed of under Rule 7.3. That rule states: Application and decision 7.3(1) A party may apply to the Court for

summary judgment in respect of all or part of a claim on one or more of the following grounds: (

a) there is no defence to a claim or part of it; (

b) there is no merit to a claim or part of it; (

c) the only real issue is the amount to be awarded.

(2) The application must be supported by an affidavit swearing positively that one or more of the grounds described in subrule (1) havebeen met or by other evidence to the effect that the grounds have been met.

(3) If the application is successful the Court may, with respect to all or part of a claim, and whether or not the claim is for a single andundivided debt, do one or more of the following: (

a) dismiss one or more claims in the action or give judgment for or in respect of all or part of the claim or for a lesser amount; (

b) if the only real issue to be tried is the amount of the award, determine the amount or refer the amount for determination by a referee; (

c) if judgment is given for part of a claim, refer the balance of the claim to trial or for determination by a referee, as the circumstancesrequire. The leading case in Alberta with respect to applications under this rule is the decision of our Court of Appeal in Weir-Jones TechnicalServices Inc v Purolator Courier Ltd, 2019 ABCA 49 , [2019] AJ 144. Important principles from that case include thefollowing: (

a) If the record allows the judge to make the necessary findings of fact and apply the law, then the

summary procedure should be usedunless there is a substantial reason to conclude that

summary disposition would not achieve a just result (paragraph 25). (

b) All procedures for resolving civil disputes, including

summary dispositions, should be timely, cost-effective, and proportionate tothe importance and complexity of the issues (paragraph 26). (

c) The moving party has the burden of establishing that, considering the facts, the record, and the law, it is entitled to

summaryjudgment on the merits of the case, and that there is no genuine issue for trial. The resisting party then has an evidentiary burden ofpersuading the court that there is a genuine issue requiring a trial, or in other words that the moving party has not met that aspect of itsburden. The ultimate burden remains on the moving party to establish that there is no genuine issue requiring a trial, and that a fair andjust adjudication is possible on a

summary basis. (based on gaps or uncertainties in the facts, the record, or the law, etc), or by raising apositive defence (such as a limitations defence). A dispute on material facts, or one depending on issues of credibility, can leave genuineissues requiring a trial (paragraph 35). (

d) The resistance to

summary judgment must be grounded in the record, not mere speculation (paragraph 35). (

e) The law is now clear that the mere presence of some conflicting evidence on the record does not preclude

summary disposition(paragraphs 36 and 39) (

f) Any right of the plaintiff to have a trial is equally offset by the right of the defendant not to have a trial on an unmeritorious claim.Fairness is a two-way street (paragraph 43). (

g) All of the parties and the court must make efficient use of limited resources (paragraph 44). (

h) The chambers judge is entitled to take into consideration the fairness of the process, and its ability to achieve a just result, at allstages (paragraph 46). SHOULD

SUMMARY DISMISSAL BE GRANTED IN THISCASE? The Plaintiff’s Argument [19] Before considering the causes of action claimed by the Plaintiff, I will try to summarize the argument of the Plaintiff, basedupon his affidavits and his submissions in court. That

summary is as follows: Going back some time, the Plaintiff had made several complaints to various authorities regarding health and safety issues in thePlaintiff’s work environment at the University. The University intentionally engaged in conduct aimed at creating a hostile and miserable work environment in attempts to force the

Plaintiff to resign (because of the prior complaints of the Plaintiff). To force the Plaintiff out, the University framed the Plaintiff as mentally ill and tried to force him to attend an IME. A forced IME is atrespass and is not lawful. AUPE agreed with the University and also tried to force him to attend an unlawful IME. AUPE and the University conspired against the Plaintiff. The Plaintiff certainly wanted to grieve the Warning Letter, Unpaid Suspension and Termination, as was done by AUPE.

However,AUPE took steps without the Plaintiff’s authorization and numerous technical errors were made in the grievance forms submittedincluding: failing to provide the Plaintiff with the form of grievance and the grievance manual when requested; the AUPE representativesigning the form on behalf of the Plaintiff; that representative not being the right person authorized under the Collective Agreement tomake the grievance; the grievance forms being sent to the incorrect person at the University; there being false statements within thegrievance forms; failing to include in the grievance forms all of the complaints of the Plaintiff--in particular, AUPE failing to grieve thePlaintiff’s claim that the University was discriminating against the Plaintiff by labelling him mentally ill.

The acts of discrimination against the Plaintiff violated a number of statutes including the Occupational Health and Safety Act, theHuman Rights Act, and the Public Services Employee Relations Act. The Plaintiff should not have been suspended or terminated because he was within his right to refuse an IME that was predicated upon awrongful claim of mental illness. AUPE did not fulfil its duty to the Plaintiff of fair representation. AUPE aided in neglect of the Plaintiff, if not out right being theprincipal of the neglect. AUPE intentionally inflicted mental distress upon the Plaintiff.

Causes of action against AUPE [20] The Plaintiff’s complaints against AUPE described above can be categorized into the following causes of action.

Conspiracy [21] In the case of Canada Cement LaFarge Ltd v British Columbia Lightweight Aggregate Ltd, (SCC), [1983]1 SCR 452, the Supreme Court of Canada set out the test for conspiracy as follows: ... whereas the law of tort does not permit an action against an individual defendant who has caused injury to the plaintiff, the law of tortsdoes recognize a claim against them in combination as the tort of conspiracy if: (1) whether the means used by the defendants are lawful or unlawful, the predominant purpose of the defendants’ conduct is to causeinjury to the plaintiff; or, (2) where the conduct of the defendants is unlawful, the conduct is directed towards of the plaintiff (alone or together with others), andthat the defendants should know in the circumstances that injury to the plaintiff is likely to and does result. [22] There are no specifics of the alleged conspiracy in the Plaintiff’s Statement of Claim.

However, it does appear from thePlaintiff’s written materials and oral argument that the Plaintiff is alleging that AUPE agreed with the University characterizing thePlaintiff as mentally ill and then in forcing the Plaintiff to undergo an IME. [23] The evidence does not support the Plaintiff’s allegations that AUPE conspired with the University in labelling the Plaintiff asmentally ill. The University put the Plaintiff on paid leave after an investigative meeting where the Plaintiff, representatives of theUniversity and representatives of AUPE were all present.

The University did not label the Plaintiff as mentally ill. Rather, at theinvestigative meeting the University representatives advised that they had received reports from staff and students in the GeomaticsDepartment regarding alleged bizarre and inappropriate behaviour on the part of the Plaintiff at a recent survey field camp event.

Theallegations of bizarre and inappropriate behaviour included that the following: • Comments to students about the Plaintiff’s previous job and eliminating pirates • An alleged statement by the Plaintiff about disabling Russian-made Satellites in the Geomatics Department • The Plaintiff alleging that his vehicle had been sabotaged on two occasions at the University • The Plaintiff’s assertion that a leak in the roof of his department was a deliberate act of sabotage • The Plaintiff had exhibited anger in the form of yelling, pacing, heavy breathing, and following people • The Plaintiff made a reference to filing a harassment claim against the University so there would be a record for the police if hewas injured, killed, or if something were to happen to him. [24] Firstly, it must be pointed out that there is no evidence that anyone described the Plaintiff as mentally ill at the investigativemeeting or otherwise.

Secondly, there is no evidence that the representatives from AUPE played any role at that investigative meeting,other than being present. The Plaintiff’s own report on that investigative meeting which is attached to the affidavit of BlaineVandekerkhove at Exhibit 14 discloses no part being played by the union representatives. There is no evidence of any conspiracy

between the University and AUPE with respect to either the conduct of or the outcome of the investigative meeting or what followed. [25] The evidence in fact shows that the Plaintiff’s representative from AUPE, Mr. Vandekerkhove was very sympathetic and ashelpful to the Plaintiff as could be. He explained to the Plaintiff that an IME would establish either that the Plaintiff was fit to return towork or if not, would place the University in a position of having to accommodate the Plaintiff. [26] Mr.

Vandekerkhove and a second AUPE representative, Cherie Langlois-Klassen, made many attempts to assist the Plaintiffin getting the IME done. Initially, the Plaintiff demonstrated a willingness to have an IME, but became resistant to various suggestionsand options put forward to him. The alternatives suggested by the AUPE representatives were reasonable.

There is no evidence that therewas a conspiracy between the University and AUPE with respect to seeking an IME from the Plaintiff. [27] As for the legal tests for conspiracy, there was nothing wrong or unlawful about the conduct of AUPE or its representatives;nor was there any intent to injure the Plaintiff. Rather, the evidence overwhelmingly demonstrates that the AUPE representatives dideverything they could to assist the Plaintiff. AUPE breached its duty of fair representation [28] Counsel for AUPE fully acknowledged that his client had a duty of fair representation to the Plaintiff.

He indicated that thefollowing were principles taken from the leading case on this subject, being the Supreme Court of Canada decision in CanadianMerchant Service Guild v Gagnon, (SCC), [1984] SCJ No 24: 1. The exclusive power conferred on a union to act as spokesman for the employees in a bargaining unit entails a correspondingobligation on the union to fairly represent all employees comprised in the unit. 2.

When, as is true here and is generally the case, the right to take a grievance to arbitration is reserved to the union, the employee doesnot have an absolute right to arbitration and the union enjoys considerable discretion. 3. This discretion must be exercised in good faith, objectively and honestly, after a thorough study of the grievance and the case, takinginto account the significance of the grievance and of its consequences for the employee on the one hand and the legitimate interests ofthe union on the other. 4. The union’s decision must not be arbitrary, capricious, discriminatory or wrongful. 5.

The representation by the union must be fair, genuine and not merely apparent, undertaken with integrity and competence, withoutserious or major negligence, and without hostility towards of the employee. [29] Counsel for AUPE also pointed out that the Alberta Labour Relations Board has put out an Information Bulletin that describesthe duty of fair representation that a union will have in acting for an employee that is a member of the union. That bulletin very muchechoes the principles set out in the Gagnon case. [30] There are many parts to the Plaintiff’s claim that AUPE did not fairly represent him.

Firstly, I will deal with those parts that Iwould describe as “alleged technical errors” made in the grievance processes. [31] The Plaintiff complained that he was not given a grievance form and a grievance manual when he first asked Mr.Vandekerkhove for them. He acknowledges that he was given a form of grievance eight days after requesting it, but he was not given theCollective Agreement until long after he had requested it.

Given the assistance that the union did provide to the Plaintiff, I do not findthis as material or prejudicial to the Plaintiff. [32] The Plaintiff complained that his union representative should not have signed the grievance forms on the Plaintiff’s behalf. Ifind nothing wrong in that having been done for the Plaintiff. There is nothing within the Collective Agreement that the grievor isrequired to actually sign the grievance form.

Many times the Plaintiff’s union representative took steps on behalf of the Plaintiffincluding signing of the grievance forms, filing the grievance forms and seeking extensions on filing deadlines. These were oftennecessary because it was not infrequent that the Plaintiff was not working or cooperating with his representative from AUPE on a timelybasis. In my view, none of this constitutes a breach of the union’s duty of fair representation of the Plaintiff. [33] Contrary to the Plaintiff’s assertion, there was nothing false stated within any of the grievance forms. [34] The Plaintiff complained that Mr.

Vandekerkhove should not have been his union representative because he was not a unionrepresentative working at the University. Although no reference was made by the Plaintiff as to the basis for this requirement, it is of nosignificance since I find that Mr. Vandekerkhove did as much as he could for the Plaintiff in a very competent and capable fashion.

Therecord contains substantial evidence supporting this finding. [35] The Plaintiff also complains that the grievance forms were submitted to the wrong person as they were not submitted to anassociate Vice President (Human Resources) for step one of the grievance process and to a Vice President (Finance and Services) forstep two of the grievance process as is stated within the Collective Agreement. However, the Collective Agreement allows forsubmission to a “designee”.

This too is a complaint without merit. [36] The Plaintiff complains that the grievance forms did not incorporate all of the complaints that he wanted to make. However, itis apparent that the form is not designed to incorporate all arguments or complaints. A grievor is given the opportunity to makesubmissions. On more than one occasion the Plaintiff wrote lengthy submissions for consideration. At no time was the Plaintiffprevented from making argument or submission. [37] At the hearing, I asked the Plaintiff what prejudice he had suffered as a result of these technical points that he was raising.

Hecould not identify any prejudice.

[ 38 ] Even if there were some merit to the Plaintiff’s complaints of a technical nature, which I find there is not, they would not amount to a breach of AUPEs duty of fair representation to the Plaintiff. [ 39 ] As stated above, the Plaintiff asserts that AUPE aided in the neglect of himself, if in fact it was not a principal of that neglect. Despite inquiries that I made of the Plaintiff at the hearing, the Plaintiff could not explain what he meant by this. If the Plaintiff’s allegation is that AUPE was negligent in performing its duty of fair representation, there is no evidence to support such a claim.

The affidavit evidence that was filed on behalf of AUPE demonstrates representation at a very high standard. Although the Plaintiff complains that the grievances were totally unsuccessful, it is apparent from the evidence that this was not the fault of his union representatives. If it can be said that something more could have been done on behalf of the Plaintiff in the grievance process, such is not due to any failing on the part of the union representatives, but rather is due to the Plaintiff’s own failure to cooperate in the grievance process.

There was evidence which indicated that the Plaintiff was pursuing other avenues of redress at the same time that the union was seeking to guide the Plaintiff in the grievance process (including with Alberta Labour and the Human Rights Commission). [ 40 ] I find that the AUPE representatives acted honestly, objectively and in good faith at all times. Discrimination [ 41 ] The Plaintiff claims that the conduct of AUPE (and the University) throughout the grievances was arbitrary, discriminatory and in bad faith contrary to

section 9(

c) of the Human Rights Act (“HRA”) . (see paragraph 30 of the Plaintiff’s affidavit filed September 9, 2019).

Section 9(

c) of the HRA states: 9 No trade union, employers’ organization or occupational association shall… (

c) discriminate against any person or member, because of the race, religious beliefs, colour, gender, gender identity, gender expression, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income, family status or sexual orientation of that person or member. [ 42 ] In the case of Stewart v Elk Valley Coal Corp , [2017] SCR 30, the Supreme Court of Canada set out the following test for establishing a prima facie case of discrimination: To make a case of prima facie discrimination, ‘complainants are required to show that they have a characteristic protected from discrimination under the [ Human Rights Code (BC)…]; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact. [ 43 ] In this case the Plaintiff claims that he was treated as if he were mentally ill, but he is not mentally ill, and that this constituted discrimination contrary to the legislation.

Specifically, the treatments complained of were the requests by the University, acquiesced to by AUPE, for the Plaintiff to undergo an independent IME.

AUPE acknowledges that the HRA prohibits discrimination on the basis of ‘perceived disability’ in addition to actual disability: Syncrude Canada Ltd v Saunders , [2015] AJ No 399 . [ 44 ] The Plaintiff’s AUPE representative offered to grieve the Plaintiff’s complaints regarding work conditions at camp and being labelled as mentally ill, but the Plaintiff responded by advising that “he did not wish to file grievances as he wanted ‘[n]o more HR investigation meetings and grievances leading to more harassment and damage of reputation of both the University and the employee,’” (see paragraphs 26 and 27 and Exhibit 24 of the affidavit of Blaine Vandekerkhove). [ 45 ] In his affidavit, Blaine Vandekerkhove stated the following (at paragraph 53): 53 AUPE did not treat the Plaintiff as being mentally ill.

Rather, AUPE attempted to be sensitive to whether or not the Plaintiff had mental health issues, and to advise him as to the best course of conduct regardless his state of mental health. [ 46 ] I find this to be an accurate

summary of all of the conduct of the Plaintiff’s AUPE representatives toward the Plaintiff. In short, no evidence was presented that AUPE discriminated against the Plaintiff. Nor was the union arbitrary, capricious or wrongful in its treatment of the Plaintiff. Intentional infliction of distress [ 47 ] Likewise, there is no evidence that representatives from AUPE inflicted emotional distress upon the Plaintiff. In fact, the evidence establishes that the Plaintiff’s AUPE representatives treated the Plaintiff in a very sensitive and caring fashion.

CONSIDERATION OF PRINCIPLES OF WEIR-JONES [ 48 ] The Plaintiff’s action against AUPE is summarily dismissed pursuant to rule 7.3 of Alberta Rules of Court . In arriving at this conclusion I note the following: The record does allow me to make the necessary findings of fact and apply the law. AUPE, as the moving party, has met the burden of establishing that, considering the facts, the record, and the law, it is entitled to

summary judgment on the merits of the case and that there is no genuine issue for trial. The Plaintiff, as the resisting party has not met the evidentiary burden of persuading the court that there is a genuine issue requiring a trial; or one depending on issues of credibility. This hearing on a

summary basis, is a fair one and produces a just result. [ 49 ] Costs will follow the event on the appropriate column.

Heard on the 20th day of November, 2019. Dated at Edmonton, Alberta this 3 rd day of December, 2019. B.W. Summers M.C.Q.B.A. Appearances: Yau Wah Steve Lam Respondent/Self-Represented Litigant Micah Field Blakely & Dushenski for the Applicant/Alberta Union of Provincial Employees