Lam v University of Calgary, 2021 ABQB 729

Court of Queen’s Bench of Alberta Citation: Lam v University of Calgary, 2021 ABQB 729 Date: 20210910 Docket: 1903 04704 Registry: Edmonton Between: Yau Wah Steve Lam Appellant - and - Governors of the University of Calgary, Derek Lichti, Marcia Buchholz, Tanya Brucker and Alberta Union of Provincial Employees Respondents _______________________________________________________ Oral Reasons for Judgment of the Honourable Mr. Justice J.S. Little _______________________________________________________ I Issue [ 1 ] Mr. Lam appeals the August, 2019 decision of Master Birkett dismissing his claim.

The condition relied upon by Master Birkett is found in Rule 3.68 (2) (a): the Court has no jurisdiction. She made that finding based on evidence before her, which she accepted, that the dispute between the parties was governed exclusively by a collective agreement. II Facts [ 2 ] Very briefly, Mr. Lam was employed as a Surveying Technologist by the University of Calgary (U of

C) from 2012 to 2017, when he was terminated for cause. The employment relationship was governed by a collective agreement between the U of C and the Alberta Union of Public Employees (AUPE), the terms of which included procedures for grievances and arbitration. [ 3 ] Towards the end of his employment, the relationship between Mr. Lam and his employer was rocky. AUPE filed two grievances on his behalf in 2016 and a final grievance of his termination in 2017. It is not clear to me from the record what became of that final grievance. Before Master Birkett, Mr.

Ross on page 6 of the transcript refers to AUPE not pursuing the grievance, and Mr. Lam submits in his written material that he exhausted the recourse contractually available to him. In any event, it is clear that the

collective agreement mechanisms for an employee alleging wrongful dismissal were available and invoked. [4] In 2017, Mr. Lam filed a complaint with the Alberta Human Rights Commission, which dismissed it. [5] Also, in 2017, he filed a complaint with Alberta Employment Standards, which dismissed it. [6] In 2019, Mr. Lam commenced this action claiming damages of $158,000 for wrongful dismissal and damages of $632,000against the university, AUPE, and the three individual defendants who held managerial positions in the university.

That second claimfor damages includes for discrimination, something called injury of dignity, interference with contractual relations, infliction of distress,and conspiracy. [7] The part of his claim against the U of C and the three individuals was dismissed by Master Birkett in August, 2019. The partof his claim against AUPE was dismissed by Master Summers in November, 2019: 2021 ABQB 923. The appeal of that dismissal washeard and dismissed in an unreported decision of Justice Whitling in 2020. In 2021, Mr.

Lam applied essentially to consolidate anappeal to the Court of Appeal of Master Birkett’s dismissal and Justice Whitling’s dismissal, which application was rejected by JusticeCostigan: 2021 ABCA 80. A further application to extend the time to appeal Justice Whitling’s decision was then dismissed by JusticeWatson: 2021 ABCA 145. III Law [8] The standard of review of a Master’s decision is correctness. [9] The Supreme Court of Canada in Weber v Ontario Hydro, (SCC), [1995] 2 SCR 929 tells us to determinewhether the dispute, in its essential character, arises expressly or inferentially from the

interpretation, application, or administration orcontravention of the collective agreement. If so, the mandatory arbitration clauses in the agreement displace the jurisdiction of thecourts. [10] In his factum, Mr. Lam reviews why the various decisions and appeals thus far have been incorrectly decided.

With respect tothis appeal, his argument, insofar as I can understand it, is that after he had exhausted the internal mechanisms of the U of C and those ofthe Employment Standards, Human Rights, and Occupational Health and Safety tribunals, he was forced to commence an action in Courtof Queen’s Bench “to clear the label of mental disability” imposed upon him and that his case fits within an exception to Weber becauseof the magnitude of his claim. [11] What Mr.

Lam needs to understand is that in his case, the collective agreement does address harassment, discrimination, sickleave, overtime, and leaves of absence, all of which underpin his claims in this action, and that Weber does not permit a court to takeconcurrent jurisdiction simply because of the supposed magnitude of the claim. Paragraph 57 of Weber, to which Mr.

Lam refers,speaks to an exception due to the unavailability of a remedy such as an injunction or declaration, not due to magnitude of the claim. [12] Counsel for the Respondents correctly points out that courts retain residual discretion exercisable in cases where interventionis necessary to protect the integrity of the labour relations system. Such intervention is not required here. Mr.

Lam has not pointed outany cracks in the integrity of the collective agreement system which governed his relationship with the U of C other than that it did notprovide him with the result he sought. [13] Thus, Master Birkett correctly determined that the mechanisms in place in the collective agreement displace the jurisdiction ofthis Court to deal with Mr.

Lam’s claims. [14] I note that Master Birkett asked early on in the application before her if the applicants were looking for dismissal under Rule7.3 or striking of pleadings under Rule 3.68 and was told that the application was under Rule 3.68 specifically (Transcript, p. 14). Atpage 26, Master Birkett stated that she was striking the statement of claim under Rule 3.68. The filed order refers to a dismissal of theaction as opposed to it being struck. In my view, nothing turns on that. The ultimate decision was correct. IV Conclusion [15] Accordingly, I dismiss Mr.

Lam’s appeal with costs which I fix at $2500 inclusive of disbursements and GST. Heard on the 10th day of September, 2021. Dated at the City of Edmonton, Alberta this 10th day of September, 2021. J.S. Little J.C.Q.B.A.

Appearances: Mr. Lam for the Self-Represented Appellant Thomas WR Ross, QC for the Respondents