Prodaniuk v Calgary (City), 2021 ABQB 906

Court of Queen’s Bench of Alberta Citation: Prodaniuk v Calgary (City), 2021 ABQB 906 Date: 20211115 Docket: 1901 03329 Registry: Calgary Between: Kimberly Prodaniuk (nee Baird) Plaintiff/Respondent - and - The Corporation of the City of Calgary, City of Calgary Police Service, Chief of Police of the City of Calgary Police Service, and The Calgary Police Association Defendants/Applicants _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice J.T.

Eamon _______________________________________________________ I Introduction [ 1 ] The plaintiff, Ms Prodaniuk, joined the City of Calgary Police Service in March 2008. At the same time, she became a member of the Calgary Police Association (CPA). At all material times, she was (and still is) a union member under a collective agreement and the CPA was (and still is) her bargaining agent.

[ 2 ] In March 2017 Ms Prodaniuk went on stress leave. She says she suffered harassment by other members of the force over a period of years. She says she approached the City and CPA for help, but they refused to respond and instead, suppressed the problem. She says they were motivated by a male dominated sub-culture within the police. She says she suffered to the point where she was forced on leave from her policing career.

She remains on leave to this day. [ 3 ] She sued the City, the Calgary Police Service, the Chief of Police, and CPA for damages, compensation and other remedies. [ 4 ] The defendants applied to dismiss her claim for lack of jurisdiction. [ 5 ] The primary issue I must decide is whether the dispute resolution processes of Alberta labour law assign exclusive jurisdiction over Ms Prodaniuk’s claims to either or both of a labour arbitrator and the Alberta Labour Relations Board. [ 6 ] The City, Calgary Police service and the Chief of Police also submit the claims against them are barred under the Worker’s Compensation Act , RSA 2000, c W-15 , s 21.

For the reasons set out below, it is not necessary to decide this point. II Ms Prodaniuk’s claims and parties’ positions [ 7 ] In her Amended Amended Amended Statement of Claim, and her Affidavit of January 29, 2021, Ms. Prodaniuk details a number of incidents that she alleges occurred from the fall of 2008 through the spring of 2017 while employed in the Calgary Police Service. [ 8 ] I emphasize at the outset that these allegations are not yet tested.

The defendants did not cross-examine on Ms Prodaniuk’s affidavit or otherwise challenge her evidence or set out their version of events, because they say her affidavit is premature, inadmissible and should be struck out (see

Part III below).

I outline Ms Prodaniuk’s allegations and evidence not as fact findings but to explain the nature of her claim for the purpose of deciding whether it can or might proceed in Court or has to be left to the specialized labour relations dispute resolution processes. [ 9 ] Ms Prodaniuk describes, in her affidavit, suffering numerous incidents of harassment and being exposed to a workplace culture in which the incidents were accepted or tolerated, or went unchecked because those in the chain of command and CPA were unwilling to investigate or respond. [ 10 ] The alleged incidents include being subjected to inappropriate sexual conversations and questions by fellow officers while on duty and during police training; being forced to work alone in unsafe situations; being required to perform simulated sexual acts or being humiliated during training for the sex trade unit; being threatened or ostracized by fellow police officers for speaking out about her treatment; being forcefully taken against her will to the location of a bar hosting a wet t-shirt contest during a stay at a facility outside Calgary for police training; damage to her reputation; being effectively or informally demoted or denied opportunities to advance in her career; and being prevented from seeking redress for her concerns or injuries. [ 11 ] Ms Prodanuik alleges that her employer ignored the problem and left her to resolve the issues on her own, through their policy of expecting officers to resolve incidents directly with coworkers, then escalating a complaint through the chain of command. [ 12 ] Ms Prodaniuk alleges she was treated as though the incidents were simply personality conflicts, and was warned that those who make complaints are labelled as a rat and deemed untrustworthy by other officers.

She states that she was transferred or effectively forced to transfer on more than one occasion to avoid harassment. [ 13 ] Ms Prodaniuk states that none of her supervisors suggested she could or should report the sexual harassment or discrimination as a grievance under the collective agreement. In 2012, Ms Prodaniuk accessed the Calgary Police Service’s Respect Matters Program to address her concerns, and launched a complaint. She says that the Calgary Police Service did not meaningfully respond to her complaint.

She says that, among other things, her complaint was referred for handling to a senior member who had previously told her, “the word on the street is that you’re a bit of a bitch.” She described the program as ineffective. [ 14 ] Ms Prodaniuk states that she approached CPA for help with the problematic conduct in 2012, 2016, and 2017. CPA is her bargaining agent and a party to the collective agreement. She alleges that CPA failed to properly address her complaints, and on the first occasion when she sought CPA’s help, it dismissed her as a “sensitive girl”.

She states CPA refused to file a grievance on her behalf for numerous reasons, including that the collective agreement does not cover complaints against other members (“blue on blue” complaints), leaving her with no avenue of redress. [ 15 ] Ms Prodaniuk alleges that the defendants’ refusal or failure to address the misconduct led her to suffer from psychological consequences, culminating in her prolonged stress leave.

She alleges she is unable to return to work at the Calgary Police Service and has suffered loss of earnings, benefits and pension. [ 16 ] Ms Prodaniuk states in her Amended Amended Amended Statement of Claim that the facts amount to harassment, sexual harassment, intentional infliction of emotional distress, intimidation, breach of fiduciary duty, conspiracy, sexual discrimination under s 15 of the Charter , equitable fraud, and constructive dismissal.

She claims that the Chief of Police is vicariously liable for torts committed against her by other members of the Police Service ( Police Act , RSA 2000, c P-17 , s 39(2)). [ 17 ] Ms Prodaniuk also challenges the collective agreement. She claims the limitation period for grievances in the collective agreement is unauthorized and unconscionable, an unconstitutional denial of her access to justice rights, and a violation of her s 15 Charter rights because it is too short. [ 18 ] She further seeks remedies arising out of CPA’s by-laws.

CPA’s objectives, defined in its corporate bylaws, include fostering an environment of integrity, trust and mutual respect between its members and the citizens of Calgary and improving working conditions

for CPA’s members. Ms Prodaniuk claims that CPA’s actions breached the bylaws and are oppressive behaviour entitling her to a remedy under the corporate oppression [1] provisions of the Business Corporations Act , RSA 2000, c B-15 (“ ABCA ”) that are applicable to societies including CPA under the Societies Act , RSA 2000, c S-14 , s 35.

She seeks compensation, an order that CPA be wound up, and permission to bring an action in the name of CPA (a derivative action) against the other defendants in this action “in a forum of convenience”. [ 19 ] The defendants say that the allegations in Ms Prodaniuk’s claim are all workplace claims, and are subject to the dispute resolution mechanism contained in the collective agreement that provides exclusive jurisdiction to a labour arbitrator.

Further, they claim, her complaints about the CPA are essentially claims for breach of CPA’s duty of fair representation, for which exclusive jurisdiction is assigned by law to the Alberta Labour Relations Board. Finally, the defendants say that Ms Prodaniuk’s claims relating to the limitation period and the bylaws are creative attempts to find jurisdiction in this Court, however they do not change the true nature of her claims.

III Basis of application and preliminary issue [ 20 ] The defendants apply to strike Ms Prodaniuk’s claims under rule 3.68(2)(a), which allows the court to strike a claim in cases where the Court has no jurisdiction.

The City, Calgary Police Service and Chief of Police also rely on rule 3.68(2)(d) - abuse of process - but the argument is the same: the Court has no jurisdiction so the action must be struck out. [ 21 ] As mentioned, the defendants submit the matter is in the exclusive jurisdiction of the labour relations regime and the defendants other than CPA also say the claim is precluded by the workers compensation regime. [ 22 ] The Court can only strike a statement of claim under these rules if it is plain and obvious that the court has no jurisdiction, after considering evidence on the surrounding facts ( Kniss v Stenberg , 2014 ABCA 73 , at para 21 , citing Young Estate v TransAlta Utilities Corp , 1997 ABCA 349 at paras 17-18 ).

This test is different than the more commonly utilized rule to strike a claim under 3.68(2)(b) , which is concerned with whether the pleadings disclose a reasonable cause of action.

Under the rule applicable here, the court may consider evidence and does not assume every fact plead is true ( Kniss at para 21 ). [ 23 ] This leads to a preliminary issue on this application, which is whether to strike or ignore the affidavit of Ms Prodaniuk filed January 29, 2021 and the affidavit of Ms Lee filed March 29, 2021 because some or all of the evidence is inadmissible and should not be considered. [ 24 ] Ms Prodaniuk’s affidavit outlines the history of her employment as a police officer and her dealings with co-workers, supervisors, human resources personnel, and CPA in respect of the alleged misconduct described in her claim.

Ms Lee is a legal assistant in a lawyer’s office who provided a Gender Perception Survey obtained by the Calgary Police Service on topics such as sexual harassment in their workplace. [ 25 ] The Defendants say the evidence in these affidavits is not admissible. [ 26 ] The case management judge for this matter held that two of Ms Prodaniuk’s prior affidavits, that dealt with the whole of her claim, could not be relied on for this jurisdictional application. The reasoning behind her ruling was to limit the cost and time spent on cross-examining the Plaintiff for this application.

The case management judge directed Ms Prodaniuk to limit her new affidavit to evidence that was relevant to responding to the jurisdictional application. [ 27 ] Ms Prodaniuk provided a new affidavit on January 29, 2021. The defendants submit that the affidavit repeats and expands on the allegations in her statement of claim, and addresses her whole case on the merits.

They submit this evidence is irrelevant to the jurisdictional application. [ 28 ] The Court’s jurisdiction to adjudicate Ms Prodaniuk’s claims is determined by characterizing the essential nature of the dispute and deciding whether the dispute falls under the ambit of the collective agreement (see for example, Beaulieu v University of Alberta , 2014 ABCA 137 at para 36 and the discussion in

Part V(

a) below). To do so, the Court must consider the facts surrounding the dispute and examine the collective agreement and the relevant legislation to see if exclusive jurisdiction lies outside of the court process ( Beaulieu and Kniss ). [ 29 ] I find that Ms Prodaniuk’s affidavit is admissible because it informs me of the nature of the dispute in this case. Her evidence expands on details of the alleged conduct, by various members of the police service over many years, and the response to her complaints by those in her workplace and the CPA.

This evidence is also relevant to characterizing the nature of Ms Prodaniuk’s alternative claims, including whether the CPA has breached its bylaws or behaved oppressively to its members. [ 30 ] The Defendants submit that Ms Lee’s Affidavit is irrelevant and, further, was already determined to be irrelevant by the case management judge. [ 31 ] The admissibility of Ms Lee’s affidavit depends on the purpose for which it is admitted.

Ms Prodaniuk’s counsel submits it is relevant to interpreting the ambit of the collective agreement, because it corroborates evidence of CPA’s historical position (at odds with its position in this action) that complaints of harassment among members of the Calgary Police Service cannot be subject of a grievance under the collective agreement by showing that most police officers who believed they suffered harassment did not seek redress because they believed nothing would be done about it under the collective agreement. [ 32 ] As explained below (at paras 115-120), the affidavit would be technically admissible if the meaning of the collective agreement were ambiguous.

I concluded the meaning was not ambiguous, therefore the evidence is not admissible and in any event the evidence would not be helpful in construing the meaning of the agreement.

[33] It is not necessary to issue a formal order to strike this affidavit. I am entitled to disregard inadmissible evidence and it is verycommon to do so without issuing a formal order when dealing with affidavits filed in chambers applications. I explain in detail later myapproach to extrinsic evidence of contract

interpretation and how I reviewed and would consider this evidence. The survey does notappear to be confidential or embarrassing. I see no harm in leaving it on the court file as a record of what I reviewed. [34] The application to formally strike these affidavits is refused. IV Issues 1. Is it plain and obvious that this Court does not have jurisdiction over Ms Prodaniuk’s personal claims for her losses? 2. Is it plain and obvious that this Court does not have jurisdiction over Ms Prodaniuk’s other claims? 3. Might this Court exercise its residual jurisdiction? V Issue 1 – Is it plain and obvious that this Court does nothave jurisdiction over Ms Prodaniuk’s personal claims? (

a) Test to Determine Jurisdiction [35] When considering whether jurisdiction lies with a court, or with a statutory labour relations regime, a court applies theexclusive jurisdiction model. This means that when a dispute resolution process is set out in a statutory labour regime that involves finaland binding arbitration, a court will defer to that process and decline to take jurisdiction in a parallel proceeding filed in the courts(Weber v Ontario Hydro, (SCC), [1995] 2 SCR 929 at para 58; Regina Police Assn Inc v Regina (City) Board ofPolice Commissioners, 2000 SCC 14 , [2000] 1 SCR 360 at paras 24-25).

If the dispute does not expressly or inferentially ariseout of the collective agreement, a court may hear a dispute between an employee and employer in a unionized environment (Weber atpara 54). [36] Estey J, speaking for a unanimous Supreme Court, discussed the rationale for this approach in St Anne Nackawic Pulp &Paper v CPU, (SCC), [1986] 1 SCR 704 at pp 718-719: The collective agreement establishes the broad parameters of the relationship between the employer and his employees.

This relationshipis properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which itarises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts atcommon law. ...

The more modern approach is to consider that labour relations legislation provides a code governing all aspects oflabour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees onwhose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which thelegislature has not assigned these tasks. [37] Therefore, the Supreme Court in Weber adopted an approach that gives exclusive jurisdiction to arbitrators for disputes thatarise expressly or inferentially from the ambit of the collective agreement (at para 54). [38] The Supreme Court of Canada recently summarized the exclusive jurisdiction model as follows: [13] It is settled law that the scope of a labour arbitrator’s jurisdiction precludes curial recourse in disputes that arise from acollective agreement, even where such disputes also give rise to common law or statutory claims (St.

Anne Nackawic Pulp & Paper Co.v. Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 S.C.R. 704, at p. 721; Weber, at para. 54; NewBrunswick v. O’Leary, (SCC), [1995] 2 S.C.R. 967; Allen v. Alberta, 2003 SCC 13, [2003] 1 S.C.R. 128, atparas. 12-17; Goudie v. Ottawa (City), 2003 SCC 14, [2003] 1 S.C.R. 141, at paras. 22-23; Bisaillon v. Concordia University, 2006 SCC19, [2006] 1 S.C.R. 666, at para. 30). It is similarly beyond dispute that labour arbitrators may apply human rights legislation to disputesarising from the collective agreement (Parry Sound (District) Social Services Administration Board v.

O.P.S.E.U., Local 324, 2003 SCC42, [2003] 2 S.C.R. 157, at paras. 1 and 28-29; Weber, at para. 56). Indeed, it has been observed that labour arbitration is the primaryforum for the enforcement of human rights in unionized workplaces (E. Shilton, “‘Everybody’s Business’: Human Rights Enforcementand the Union’s Duty To Accommodate” (2014), 18 C.L.E.L.J. 209, at p. 235; P. A. Gall, A. L. Zwack and K. Bayne, “DeterminingHuman Rights Issues in the Unionized Workplace: The Case for Exclusive Arbitral Jurisdiction” (2005), 12 C.L.E.L.J. 381, at p. 397). ... [15] ...

Properly understood, the decided cases indicate that, where labour legislation provides for the final settlement ofdisputes arising from a collective agreement, the jurisdiction of the arbitrator or other decision-maker empowered by this legislation isexclusive. This applies irrespective of the nature of the competing forum, but is always subject to clearly expressed legislative intent tothe contrary.

(Northern Regional Health Authority v Horrocks, 2021 SCC 42 at paras 13, 15). [39] The nature of the dispute is determined by defining its “essential character”, and considering whether the differences betweenthe parties arise from the

interpretation, application, administration or violation of the collective agreement (Weber at para 52 ; Allen vAlberta, 2003 SCC 13 , [2003] 1 SCR 128 at para 15). In some cases, aspects of the alleged conduct may arguably extendbeyond the ambit of the collective agreement but this might not alter the essential character of the dispute (Beaulieu at para 43; Kniss atpara 24). Similarly, the fact incidents occurred outside the workplace does not necessarily alter the essential character of the dispute(Weber at para 52). [40] Whether the dispute falls under the ambit of the collective agreement will depend on

interpretation of the collectiveagreement, as well as through an understanding of what rises inferentially out of the collective agreement. The collective agreementneed not provide for the subject matter of the dispute explicitly (Regina Police Assn at para 25). If the essential character of the disputearises either explicitly, or implicitly, from the

interpretation, application, administration or violation of the collective agreement, thedispute is within the sole jurisdiction of an arbitrator to decide (ibid at para 25). [41] CPA’s counsel points out that the Courts have applied these principles even in cases of serious sexual assault or harassment(K A v Ottawa (City), (ON CA); Rivers v Waterloo Regional Police Services Board, 2018 ONSC 4307, at para 36,app dism 2019 ONCA 267; Greenlaw v Scott, 2020 ONSC 2028; De Facendis v Toronto Parking Authority, 2021 ONSC 1695 at para33).

Of course, each case turns on the essential nature of the dispute, and the meaning of the statute and collective agreement underconsideration. [42] CPA’s counsel submits that the essential nature of the dispute determines the jurisdictional outcome, not necessarily on thequestion whether a specific wrongdoer is or is not a party to the collective agreement. She cited De Facendis v Toronto ParkingAuthority, 2021 ONSC 1695 at para 33, and Greenlaw (where the alleged tortfeasor was a member of a different bargaining unit).

Otherexamples are Ciulla v The Toronto Catholic District School Board, 2021 ONSC 3110 at para 36; Byrne v Ontario, (ON SC) at para 25; Soulos v Leitch, (ON SC) at paras 7-8; and Piko v Hudson's Bay Co, , 41OR (3d) 729 (CA). [43] Laskin JA discusses this aspect of the exclusive jurisdiction model in Piko at pp 733-734: However, the boundaries of Weber have not always been easy to apply. Weber has spawned a large number of cases in Ontario [See Note3 at end of document.] in which unionized employees have sought to avoid arbitration and pursue a claim in the courts.

In some cases,the employee has sought damages in the courts against another employee or manager, not a party to the collective agreement, but for aworkplace wrong. In other cases, the employee has asserted a claim, usually in tort, against the employer (and sometimes individualemployees) for a wrong alleged not to arise under the collective agreement.

Where an employee has sued another employee for a workplace wrong, this court has held that bringing an action against a person whois not a party to the collective agreement will not give a court jurisdiction if the dispute, "in its essential character", still arises under thecollective agreement. For example, in Ruscetta v. Graham [ (ON CA)], the plaintiff had been refused long-termdisability benefits and he had appealed the refusal. In reviewing his employment file for his appeal, he discovered a memo written by afellow employee claiming that the plaintiff was a "problem employee".

The plaintiff sued his employer and the employee who hadwritten the memo for damages for defamation, negligent misrepresentation and breach of fiduciary duty. The motion judge dismissed theaction, relying on Weber. This court agreed. In an endorsement it said that, "[t]he cause of action need only be part of the factual basis ofa dispute arising out of the collective agreement to be subject to resolution under the agreement" (at para. 3). In Dwyer v. Canada Post [ (ON CA)], a postal worker had taken several medical leaves of absence.

His supervisorssuspected the leaves were not justified and wrote a letter to the worker complaining about them and warning that another unjustifiedleave would be considered "fraudulent". The worker then sued the supervisor for damages for defamation and intentionally inflictingnervous harm. The motion judge dismissed the claim holding that, "the essential character of the acts complained of fall within the ambitof the collective agreement" (at para. 13). Again this court agreed.

In an endorsement it held that the motion judge correctly applied theprinciples in Weber. [44] Whether these authorities apply is a matter of statutory

interpretation of the Police Officers Collective Bargaining Act, RSA2000, c P-18 (POCBA), the primary statute that regulates labour relations in Alberta’s municipal police forces. [45] As explained later, I agree that these authorities apply to the labour relations regime under the POCBA. Where the essentialcharacter of the dispute falls within the ambit of the collective agreement, the Court does not have jurisdiction even if some individualdefendants are not bound by the agreement.

The Legislature chose the exclusive jurisdiction model to provide a comprehensive schemethat governs all aspects of the relationship between the parties in a labour relations setting and ensures that disputes be “resolved quicklyand economically, with a minimum of disruption to the parties and the economy” (para 101 below).

The labour law remedies might notbe as extensive as those provided in the Courts, but absent a real deprivation of remedy the Legislature’s choice of exclusive jurisdictionprevails. [46] A court retains residual jurisdiction to hear a case where there would be a “real deprivation of ultimate remedy” (Horrocks atpara 23; Weber at para 57, citing St Anne at 723; Bisaillon v Concordia University, 2006 SCC 19, [2006] 1 SCR 666 at para 42;Beaulieu at para 36).

This principle does not require that the remedies available from the arbitrator must be identical to those availablefrom the Court (Beaulieu at para 48; Thomson v University of Alberta, 2014 ABQB 434 at para 89; Giesbrecht v McNeilly et al, 2008MBCA 22 at para 59; K A v Ottawa (City) at paras 18-21). [47] Ms Prodaniuk’s main argument is that this dispute does not fall under an exclusive labour relations regime because thecollective agreement does not have a mechanism to resolve disputes between members of CPA, including her harassment and assaultallegations, or between her and the City or CPA.

She submits that the collective agreement only permits grievances as between theparties to the agreement, being the City of Calgary and CPA.

[ 48 ] Ms Prodaniuk submits that a reading of the relevant statutes, the collective agreement and the common law support this conclusion, as well as extrinsic evidence which shows that “blue on blue” grievances are not expressly or implicitly treated as grievances under the collective agreement and are sent elsewhere for resolution.

She argues that police officers such as her have no recourse to the labour law scheme for harassment from other officers, and this is a proper case for resolution by this Court. [ 49 ] Ms Prodaniuk alternatively argues that the Court should exercise its residual and constitutional jurisdiction to hear this case. [ 50 ] The Defendants argue that the dispute clearly falls within the ambit of the collective agreement and the grievance procedure set out therein.

Further, the claims against CPA are essentially claims arising from the representational relationship between Ms Prodaniuk and CPA as her bargaining agent under the collective agreement, and that such matters are within the exclusive jurisdiction of the Alberta Labour Relations Board. (

b) Relevant Documents and Legislation [ 51 ] The following provides excepts from relevant documents and a legislative overview that are relevant to determining the jurisdictional questions. (

i) Collective Agreement [ 52 ] Ms Prodaniuk’s employment was governed by a collective agreement throughout her time at the police service. The collective agreement sets out the terms and conditions of employment between members of CPA and the employer, the City of Calgary. [ 53 ] All of the collective agreements, dating from April 1, 2006, are in evidence. Most of the relevant provisions (apart from the revisions to the steps of a grievance made in the 2021 collective agreement) are materially similar.

In the following paragraphs I describe the similarities and important differences. [ 54 ] Each collective agreement provides [2] : PURPOSE AND COVERAGE 1.00 The purpose of this Agreement is to stipulate the rates of pay and working conditions of those Members covered by the Association as mentioned in this Agreement. ... RECOGNITION 1.02(

a) The City of Calgary recognizes the Association as the sole bargaining agent for and on behalf of all Members covered under the scope of this Agreement. 1.02(

b) The Association recognizes that it is the function of the Chief of Police to exercise the regular and customary functions of management, to direct the work and deploy manpower resources of the Calgary Police Service subject however to the terms of this Agreement. [ 55 ] Earlier versions of the collective agreement did not specifically address harassment.

Later iterations of the collective agreement (starting with the 2014-2016 collective agreement) provided: HARASSMENT 8.01 The Calgary Police Service and the Association recognize the negative impact that harassment has in the workplace and they will make every effort to prevent harassment between all CPS employees and outside parties.

Neither the Service, nor the Association, will tolerate, ignore or condone workplace harassment. [ 56 ] Each collective agreement starting with the 2014-2016 version recognized the framework for addressing police misconduct: DISCIPLINE 17.01 Misconduct of a Police Officer is defined in the Alberta Police Act and Police Service Regulation . The Calgary Police Service shall deal with misconduct of a Member in accordance with this Act and Regulation. [ 57 ] Each collective agreement further addresses vacancies and promotions.

Each collective agreement also contains a provision for compensation for “Members, who sustain an occupational injury while carrying out their duty as a Police Officer ...”. [ 58 ] The grievance procedures changed somewhat over the years. The fundamental provision defining who could lodge a grievance (the opening para of

Article 4.01, renumbered

Article 3.01 in the 2021 agreement), and the applicable time limitation (Article 4.02, renumbered 3.02 in the 2021 agreement) were identical throughout Ms Prodaniuk’s employment (a sample is provided in para 60 below). [ 59 ] Each version of the collective agreement provided a series of steps in the grievance procedure.

Earlier versions (which contained minor wording variations) contemplated that (1) members could initially present a grievance to supervisors and if not resolved, an inspector, (2) if not resolved then CPA could take the grievance to the Chief of Police (or designate), and (3) if not resolved, either the City or CPA could submit the grievance to arbitration. In the last version (agreed to in 2021 and effective from January 6, 2018), the members’ rights to present the grievance at supervisor and inspector levels was removed and the CPA was given control over grievances

in the process. [ 60 ] The following provisions are representative of the grievance provisions aside from the changes to the grievance steps in the 2021 collective agreement: GRIEVANCE PROCEDURE 4.01 Either party to this Agreement may lodge a grievance with the other party on a difference, which arises between the parties, bound by this Collective Agreement, as to the

interpretation, application or operation or any alleged violation of this Agreement. A copy of all grievances shall be forwarded to corporate Labour Relations, Human Resources. [...] STEP 1 The Individual Member or group of Members or the Association shall present the grievance orally or in writing to the immediate supervisor.

If a satisfactory settlement is not reached within five (5) working days the grievance may proceed as follows: STEP 2 Within ten (10) working days the aggrieved Member, or group of Members, or the Association may present the grievance in writing to the appropriate Inspector in charge of the Member(s)’s work section. The Inspector shall render his decision in writing within ten (10) working days. If a satisfactory settlement is not reached, STEP 3 may be taken.

STEP 3 If a satisfactory settlement has not been reached, the Association shall have the right to be heard by the Chief of Police or designated Deputy Chief. In making application for a hearing the Association shall deliver to the Chief of Police or designated Deputy Chief within fifteen (15) working days of the date the Inspector rendered his decision, a statement which shall include an outline in writing of the grievance. The hearing shall be held within fifteen (15) working days of the date the application is received.

The Chief of Police or designated Deputy Chief shall, within fifteen (15) working days following the end of such hearing, give his decision in writing to the Association. STEP 4 If a settlement satisfactory to the Association or The City has not been reached, either of the parties may notify the other party in writing within twenty (20) working days of its intent to submit the grievance to an Arbitration Board.

The Arbitration Board shall be comprised in accordance with the Police Officers Collective Bargaining Act . 4.02 Grievances not submitted within sixty (60) days after the circumstances giving rise to such grievance occurred or should reasonably have been known, shall not be considered. 4.03 Where the parties mutually agree, a single arbitrator may be appointed in accordance with the Police Officers Collective Bargaining Act . 4.04 The time limits as set out in the grievance procedure may be extended by any longer period which is mutually agreed to by the parties.

In addition, steps 2 through 3 can be by-passed if mutually agreed to by the parties. ... [ 61 ] The 2021 collective agreement effective from January 6, 2018 revised the grievance steps, and removed direct participation of the members from presenting grievances.

Instead, CPA had control over all steps. (ii) Legislative Regime [ 62 ] Policing in Alberta, and labour relations relating to police officers, are governed by different pieces of legislation, including the POCBA , the Police Act , and the Police Service Regulation , Alta Reg 356/90 . [ 63 ] The POCBA governs collective bargaining between a municipality and a police association.

The Calgary Police Association is an “association” under the POCBA , because CPA’s membership is limited to the police officers of one municipal police service who hold ranks lower than that of inspector and it has as one of objects collective bargaining on behalf of its members ( POCBA , s 1(k)).

The POCBA provides that a collective agreement is an agreement in writing between a municipality and a bargaining agent, which contains the terms and conditions of employment, and is binding on all members ( ibid , s1(e), s 6). [ 64 ] Under s 20 of the POCBA : Every collective agreement shall contain a method for the settlement of differences arising (

a) as to the

interpretation, application or operation of a collective agreement, (

b) with respect to a contravention or alleged contravention of a collective agreement, and (

c) as to whether a difference referred to in clause (

a) or (

b) can be the subject of arbitration between the parties to or persons bound by the collective agreement. [ 65 ] If a collective agreement does not contain such a provision, s 21 deems the grievance procedure set out in that

section to apply. Under this default procedure, if a difference arises between the parties to or persons bound by the collective agreement, the parties will attempt to resolve the dispute and if they are unable to resolve it, a party may submit the difference to arbitration. [ 66 ] If a question arises as to whether a matter between the parties is a difference under the collective agreement, or a matter to which the Police Act or regulations thereunder apply, a reference may be made to the Court of Queen’s Bench ( POCBA , s 26).

[ 67 ] When the grievance procedure uses arbitration or an “other body” to resolve disputes, the POCBA governs the process.

Among these provisions, the award (decision) of the arbitrator, arbitration board, or other body is “binding on the municipality, the members of the bargaining unit and the bargaining agent” ( ibid , s 32), and no award may be appealed to a court and judicial review is permitted ( ibid , s 33). [ 68 ] An association, such as CPA, has a duty to fairly represent all of its members, failing which a member can bring a complaint of “unfair practice” to the Alberta Labour Relations Board ( POCBA , s 37 (d), s 38). The Alberta Labour Relations Board’s jurisdiction to hear disputes is broad, as set out in ss 43-44.

The Board has “exclusive jurisdiction to exercise the powers conferred on it” by the statute and the decision of the Board is “final and conclusive for all purposes” ( ibid , s 44(1)). Board proceedings and decisions are not be questioned or reviewed by any court, except for in the case of judicial review for certiorari or mandamus ( ibid , s 44 (2)(3)). [ 69 ] Alberta law divides jurisdiction between disciplinary matters and employment conditions. The Police Act governs policing and police oversight in Alberta.

It delegates to larger municipalities the responsibility for policing, which in the City of Calgary is done through an independent police force (the Calgary Police Service).

The Act also establishes oversight roles of provincial entities including the Law Enforcement Review Board and municipal police commissions. [ 70 ] The Police Act gives the Chief of Police certain duties in relation to police officer conduct, including “the maintenance of discipline and the performance of duty within the police service, subject to the regulations governing the discipline and performance of duty of police officers” and the “day to day administration of the police service” (s 41). [ 71 ] The Police Act also sets out a framework for dealing with complaints against police officers and the chief of police.

Any person may file a complaint regarding the conduct of an officer (s 42.1). The procedure for dealing with such complaints is set out in ss 43-48, but generally involves the chief of police either handling the complaint informally or conducting an investigation into the complaint, which in some cases will proceed to a hearing by the chief of police. An appeal of the hearing may proceed to the Law Enforcement Review Board. Complaints may also be made against chiefs of police (s 46). [ 72 ] The Police Act specifically refers to the POCBA at

section 60, noting that “none of the matters in sections 16 [3] , 20 [4] , 31 [5] , 37(1) [6] , 41 [7] and 43 to 48 [8] shall be the subject of a collective agreement referred to in the Police Officers Collective Bargaining Act .” [ 73 ] Finally, in terms of the legislative context, the Police Service Regulation under the Police Act prohibits police officers from engaging in improper conduct, including corrupt practice, insubordination, neglect of duty, and discreditable conduct (s 5(1)).

Discreditable conduct is further defined in s 5(2)(e), and includes using oppressive conduct towards a subordinate, using abusive or insulting language to any member of a police service or any member of the public, and doing anything prejudicial to discipline or likely to bring discredit on the reputation of the police service. (iii) Respectful Workplace Policy [ 74 ] The Chief of Police, who has managerial responsibility pursuant to the collective agreement, imposed a Respectful Workplace Policy.

The City, Calgary Police Service and Chief of Police point to this as an example of the exercise of managerial rights under

Article 1.02(

b) of the collective agreement. This policy sets out various workplace behaviour guidelines, including a positive and professional working environment in which all members are treated with respect and dignity. Interactions should be respectful and absent of intimidation, sarcasm, harassment (including sexual harassment) and discrimination. (

c) Discussion (

i) Essential character of claims against City, Calgary Police Service and Chief of Police [ 75 ] It is well established that the essential character of a claim is not determined based on the language in the pleadings, but by looking at the factual circumstances giving rise to the dispute, and assessing whether they arise from the

interpretation, application, administration or violation of the collective agreement ( Horrocks at para 40 and authorities cited therein; also see Greenlaw at para 132 ). [ 76 ] The Plaintiff framed her personal claims widely (paras 16-18 above) including intentional infliction of emotional distress, conspiracy, breach of fiduciary duty, intimidation, breach of her Charter rights, constructive dismissal, and the police chief’s statutory vicarious liability for torts. [ 77 ] The vast majority of the alleged incidents took place while working as a police officer.

One of the alleged incidents (the attempt to force the plaintiff to attend a wet t-shirt contest) occurred out of working hours but while the employees were staying outside Calgary as a group to attend police training.

It is clear from Ms Prodaniuk’s factual allegations and affidavit evidence that her claims are grounded in her interactions in the workplace with co-workers, supervisors, and superiors, and her attempts to redress the alleged harassment issues within the chain of command, the Calgary Police Service’s human resources department and CPA. [ 78 ] The essential character of her claim against the defendants other than CPA is workplace harassment or similar misconduct and the City’s alleged failure to provide safe working conditions that were free from such wrongdoing.

Although the Chief of Police and officers holding the rank of Inspector or higher are not parties to the collective agreement, the essential nature of the claim arises from their alleged wrongdoing and failures in the management or supervision of the workplace and, in the case of the Chief of Police, his vicarious liability for the acts of the members of the police service in relation to the workplace.

Further, as explained later (paras 121- 128), the essential nature of her claims is not a disciplinary matter under the Police Act that would displace the jurisdiction of a labour arbitrator. [ 79 ] I therefore proceed to the second issue in the exclusive jurisdiction analysis: the ambit of the collective agreement.

(ii) Ambit of the collective agreement [80] In my view, the plaintiff’s personal claims against the City, Calgary Police Service and Chief of Police arise expressly orinferentially from the

interpretation, application, operation or alleged violation of the collective agreement. [81] The collective agreement’s purpose is to stipulate the pay “and working conditions” of the members of CPA (collectiveagreement,

Article 1.00). Effective January 6, 2014, the parties added to the collective agreement a stipulation that the Calgary PoliceService and the CPA “will make every effort to prevent harassment between all CPS employees and outside parties” and that neither“will tolerate, ignore or condone workplace harassment” (collective agreement,

Article 8.01). [82] The absence of

Article 8.01 in previous iterations of the collective agreement during Ms Prodaniuk’s employment does notmake any difference in this case. The collective agreement governs conditions of employment. The essential nature of the plaintiff’sclaims are breaches of her human rights or fundamental rights to a safe workplace free of harassment (that are guaranteed under Albertahuman rights and occupational health and safety legislation).

Fundamental employment rights can be considered and remedied by anarbitrator (Parry Sound (District) Social Services Administration Board v Ontario Public Service Employees Union, Local 324(OPSEU), 2003 SCC 42 at para 28, 50-52; Horrocks at para 13; Alberta Union of Provincial Employees v Alberta, 2010 ABQB 760 atparas 37-46; Greenlaw at paras 142-151, 160, 168-171, 174). [83] Exclusive jurisdiction can be displaced in appropriate cases (Horrocks at para 15; Edmonton Police Association v Edmonton(City of), 2007 ABCA 147 at para 14).

Ms Prodaniuk submits that the general statutory regime over labour law in Alberta does notimpose exclusive jurisdiction to the same degree as the laws in some other provinces, particularly Ontario. Further, the wording of thecollective agreement displaces the general presumption that generally a labour arbitrator has exclusive jurisdiction. [84] Ms Prodaniuk’s argument starts with the wording of s 20 of the POCBA, which I set out again for ease of reference: 20 Every collective agreement shall contain a method for the settlement of differences arising (

a) as to the

interpretation, application or operation of a collective agreement, (

b) with respect to a contravention or alleged contravention of a collective agreement, and (

c) as to whether a difference referred to in clause (

a) or (

b) can be the subject of arbitration between the parties to or persons bound by the collective agreement. [85] Her counsel submits that the word “or” in the final part of the sentence - being “between the parties to or persons bound by”[underlining added] - means that collective agreements under the POCBA are only required to have a mechanism to resolve differencesbetween “the parties to” the agreement or between “persons bound by” the agreement, but not necessarily both.

Consequently, thecollective agreement is not required to resolve both types of differences. [86] Her counsel relies on R v Szczerba, 2002 ABQB 660 at para 28 to interpret the word “or”: "Or", which is always disjunctive, is presumed to be inclusive unless it is clear from the context in which it is used that it is meant to beexclusive, and, in my opinion, there has been no rebutting of the presumption of an inclusive "or" in s. 37(1). In that regard, reference ishad to R. Sullivan, Statutory

Interpretation (Toronto: Irwin Law, 1997) at 88-89: "Or" is always disjunctive in the sense that it always indicates that the things listed before and after the "or" are alternatives. However,"or" is ambiguous in that it may be inclusive or exclusive. In the case of the exclusive "or," the alternatives are mutually exclusive: (

a) or(b), but not both; (

a) or (

b) or (c), but only one of them to the exclusion of the others. In the case of the inclusive "or," the alternativesmay be cumulated: (

a) or (

b) or both; (

a) or (

b) or (c), or any two, or all three. [T]he inclusive "or" expresses the idea of "and/or."...

In legislation, "or's" are presumed to be inclusive, but the presumption is rebutted where it is clear from the context that the listedalternatives are meant to be mutually exclusive. [87] Her counsel further relies on the Alberta Court of Appeal decision in Olivia v Strathcona Steel Manufacturing Inc, 1986ABCA 246, which interpreted an identical provision in the Labour Relations Act, RSA 1980, c L-1.1, and noted at para 17: We should point out that a member of a Union is bound by, but not a party to the collective agreement; that the Union enters into thecontract as a principal and not as an agent of the members of the Union; and the agreement is not as previously considered by somecourts, a bundle of agreements between the employer and each member of the Union. [88] Based on this, Ms Prodaniuk argues that s 20 of the POCBA does not require a method for the settlement of differencesbetween persons bound by the collective agreement, such as differences between fellow officers, so long as it provides a method forsettling differences for differences “between the parties”, being the police association and the municipality. [89] To bolster this

interpretation, Ms Prodaniuk relies on case law which observes that s 20 of the POCBA and similar provisionsare different or weaker than similar legislation in Ontario (Royal Alexandra Hospital v AHEU, Local 41, (AB QB),[1981] AJ No. 1003; ATU Local 583 v Calgary (City), 2007 ABCA 121). [90] In particular, counsel submits that in Royal Alexandra Hospital the Court held that the provision in s 20 is different than itsOntario counterparts:

[30] This decision is distinguishable as the Ontario statute requires that arbitration be the means of final settlement of all disputesbetween the parties. The Alberta Labour Act, 1973 requires only that every collective agreement contain a method for the settlement ofdifferences between the parties to the agreement or persons bound by the agreement. This leaves the parties free to agree that thedecision by the employer is the final and binding settlement of the difference.

This is what the parties did in this case. [91] Counsel for Ms Prodaniuk submits that as the parties can agree to a system of dispute resolution that does not requirearbitration, Alberta does not follow an exclusive jurisdiction model. Arbitration is only the default when there is no dispute resolutionmechanism in the collective agreement. In cases where there is a collective agreement, the agreement is what governs.

She argues thatparties to a collective agreement could agree, if they wished, to have their collective agreement settle differences through a reference tothe Court of Queen’s Bench. [92] Ms Prodaniuk’s counsel then focusses on the grievance provisions of the collective agreement. He submits these provisionsdo not cover the abuses allegedly perpetrated on Ms Prodaniuk by other police officers or her employer. The conduct of other officerswere “blue on blue” complaints that are outside the scope of the dispute resolution provisions.

Her claims against her employer are not adifference arising between the contracting parties, and the grievance provision does not apply to disputes arising between her and heremployer. Therefore, exclusive jurisdiction does not apply or the Court should exercise its residual jurisdiction because Ms Prodaniukwould otherwise be deprived of a meaningful remedy. [93] Her counsel makes several arguments in support of this

interpretation. He observes that the POCBA and the Police Act bothemphasize that disciplinary matters and their resolution are under the purview of the chief of police and the Police Act.

Section 41 of thePolice Act states that the chief of police is responsible for the maintenance of discipline and performance of duty for the police serviceand

section 43 sets out how complaints against police officers should proceed. As mentioned above,

section 60 of the Police Actprohibits a collective agreement from dealing with these matters. Counsel argues that these provisions hamstring the ability of acollective agreement under the POCBA to deal with complaints by one member of the police association against another. [94] Further, counsel relies on Ms Prodaniuk’s evidence of her own experience and the evidence of two employees of the Calgarypolice service, regarding the proper

interpretation that should be given to the collective agreement. I will describe the main features ofthis evidence in the following few paragraphs. [95] Ms Prodaniuk deposed that CPA’s president and in-house counsel told her that CPA did not represent its members for sexualharassment matters committed by one officer against another, or “blue on blue” complaints. [96] She also relies on affidavit evidence from a former human resources consultant with the Calgary Police Service, who workedfor the service from mid-2015 to the spring 2019.

The consultant deposed that her office received copies of all grievances filed by theCPA, but that during her time there were no complaints about misconduct by one member against another. [97] Finally, Ms Prodaniuk relies on an email dated 8 August 2016 from a President of the CPA, contained in the affidavit ofanother Calgary Police Service employee. The email states: I think first off you need to understand that a grievance is something that is brought when the [Calgary Police Service] violates the termsof our Collective Bargaining Agreement (CBA).

It can also include discrimination based on one of the protected grounds listed in theAlberta Human Rights Act. Complaints about treatment by other [Calgary Police Service] members are not generally grievable CBA matters, as there are other remedies available (Respectful Workplace & PSR Complaints). In fact, until September 28th, 2015, there wasno specifically grievable clause in our CBA in relation to ill treatment. We now have a Harassment clause which allows us to grievesituations where the CPS fails to take action, once a matter has been brought to their attention for remedy.

The employee / CPA memberstill has an obligation to bring the matter to the attention of the [Calgary Police Service], preferably in writing. ... A PSR is a personal complaint made about a police officer’s conduct under the Police Service Regulation. Where applicable, the CPAwill make members aware of this available option, but we will not lay the complaint as the member’s agent. We take this stance as wemay also be in a position where we need to assist the complained about member. We have obligations to all our members and cannot beseen to be taking sides.

Laying a PSR is a simple matter of putting the complaint in writing and requires no special assistance or skill. Citizens do it effectively on a regular basis. If necessary, we will supply legal assistance to witness officers (including the complainant)and named officers (accused member).

I think that is what you are refereeing to in your email reference of “member against member”. ... [Bold face and underlining in original document] [98] When taken together, Ms Prodaniuk submits that the wording of the collective agreement, the legislation, and the evidence onhow the CPA approached sexual or other harassment allegations, all point to an

interpretation of the collective agreement that excludesofficer-on-officer complaints from the purview of the grievance procedure under the collective agreement.

As such, she argues thecollective agreement does not apply to this dispute, and there is no exclusive jurisdiction that lies with an arbitrator to oust thejurisdiction of this Court. [99] The defendants submit that Alberta law is clear and that the exclusive jurisdiction model applies under the POCBA. [100] I do not agree with the plaintiff’s submission that s 20 of the POCBA does not require a collective agreement to provide adispute resolution mechanism for both “parties to” the agreement and “parties bound by” the agreement. [101] The purpose of labour relations legislation include to provide a comprehensive scheme to govern all aspects of the relationshipbetween the parties in a labour relations setting and ensure that disputes be “resolved quickly and economically, with a minimum ofdisruption to the parties and the economy” (St Anne at para 16 ; Weber at paras 41, 46; Regina Police at para 34 ;

Olivia at para 23-25). In speaking to a provision identical to

section 20 of the POCBA in Alberta’s Labour Relations Act, RSA 1980, c L-1.1, the Alberta Court of Appeal summarized these objectives as follows: [25] I find the same intent in both Acts as that referred to in the St. Anne’s case, that is, the legislature intended ousting thejurisdiction of the court in claims arising out of differences as to the

interpretation, application or operation of a collective agreementwith a view to speedily resolving differences, that could lead to industrial unrest, by a procedure that is more appropriate and informalthan litigation. (Olivia at para 25). [102] I see nothing in the POCBA to suggest the Legislature intended a partial exclusion, where the employer and bargaining agentwould be required to provide a dispute resolution provision (arbitration or otherwise) for disputes between the parties but not among theindividuals working in the workplace, or vice versa.

Such an approach would frustrate the purposes of the exclusive jurisdiction modeland provide the worst outcome of divided jurisdiction leading to cost, delay, potentially inconsistent decisions, and different proceduraland review processes. The plaintiff did not point to any reason why the Legislature would have intended to bifurcate dispute resolutionamong multiple forums or inject the cost and delay of Court proceedings at the risk of creating labour unrest. [103]

Section 20 requires a method to settle differences “between the parties to or persons bound by the collective agreement”. Itmeans all these persons, not some or other of them. The

section uses, in the language of the Szczerba case, an “inclusive or”.

Thisintention is reflected in s 32 of the POCBA, that an award is binding on members bound by, as well as the parties to, the collectiveagreement. [104] I turn to whether the ambit of the collective agreement’s dispute resolution regime includes Ms Prodaniuk’s claims arising fromthe alleged conduct of her employer, co-workers, supervisors, superiors and the Chief of Police, including that her employer or othersfailed to protect her from, or respond to, harassment and other misconduct in the workplace and her claims against the Chief of Police orothers for vicarious liability for the abuses and assaults allegedly committed by other police officers against her. [105] I find that it does cover such claims.

When read as a whole, and within the legislative context, the wording in the collectiveagreement provides a mechanism for an individual police officer to seek relief from harassment or other unlawful or unsafe conditions inthe workplace whether arising from failures to ensure a safe workplace, activity intended or calculated to cover up or hinder complaints,or torts committed against the plaintiff by others in the workplace. [106] The contracting parties provided for settlement of disputes as follows: “Either party to this agreement may lodge a grievancewith the other party on a difference, which arises between the parties, bound by this Collective Agreement....”.

The agreement then setsout a process whereby members shall present the grievance in the first instance to their supervisor and then to an Inspector. If these firststeps do not resolve the matter, CPA has the right of a hearing with the Chief or a designated deputy chief, and then arbitration. [107] As mentioned, the parties to the collective agreement revised the steps of the grievance process under the most recent iteration.Individual members cannot bring the matter forward in the first instance. This change has to be considered in context. CPA is bound tofairly represent its members in grievances.

The agreement does not purport to narrow matters of concern that a member may raise withCPA. The revisions merely change the manner in which the grievance is handled by giving control to CPA over the process. CPA’sconduct in handling grievances, as discussed later, is reviewable by the Alberta Labour relations Board. [108] In applying the objective intention approach to contract

interpretation, I must consider the surrounding circumstances as set outin case law (eg, IFP Technologies (Canada) Inc v EnCana Midstream and Marketing, 2017 ABCA 157 and authorities cited therein).Of course, the surrounding circumstances cannot be used to overwhelm the language chosen by the parties (Sattva Capital Corp vCreston Moly Corp, 2014 SCC 53 , [2014] 2 SCR 633 at para 57). [109] The key circumstances are two-fold. First, the parties knew or ought to have known when they negotiated their collectiveagreement, that it would be binding on every member of the bargaining unit (POCBA, s 6).

Second, the parties knew or ought to haveknown when they negotiated their collective agreement, that the purposes of the POCBA include to provide a comprehensive scheme togovern all aspects of the relationship between the parties in a labour relations setting and ensure that disputes be “resolved quickly andeconomically, with a minimum of disruption to the parties and the economy” (para 101 above). [110] The word “parties” can have more than one meaning in the same document.

In the present context, it might mean the parties tothe contract or the people bound by the agreement, or both. [111] In Rivers, the Court interpreted the word “party” broadly in a labour relations scheme, “in keeping with the legislature’sintention that the Act together with the Collective Agreement ‘provide a complete and comprehensive scheme for police officers relatingto their employment relationship’...” (at para 36 of 2018 ONSC 4307). [112] It is unlikely the contracting parties objectively intended that the phrase “parties, bound by this agreement” means onlycontracting parties, for a number of reasons. [113] First, that

interpretation would leave the words “bound by this agreement” redundant. Contracting parties are always bound bytheir agreements. Earlier in the same sentence the agreement describes CPA and the City as “Either party to this agreement...”. The Courtassumes that contracting parties typically do not intend to include redundant words in their contract - every word should be givenmeaning and effect if reasonably possible.

It appears to me that this sentence of the contract is poorly drafted but was objectivelyintended to mean the contracting entities and the other people bound by the agreement. [114] Second, it is implausible that the City and CPA intended that parties bound by the agreement who suffered losses arising out ofconditions in the workplace would not have access to the speedy and cost effective remedy of labour arbitration, thus undermining theobject and purpose of the collective agreement.

[ 115 ] I have read the extrinsic evidence that the plaintiff’s counsel submits is relevant to interpreting the collective agreement. I will describe how I have treated this evidence and my reasons why, in the following few paragraphs. [ 116 ] Where the meaning of a contract is genuinely ambiguous, extrinsic evidence of the contracting parties’ subsequent conduct may be admitted ( IFP Technologies (Canada) Inc v EnCana Midstream and Marketing , at para 87 ; Shewchuk v Blackmont Capital Inc , 2016 ONCA 912 at paras 46-50 ). The weight of such evidence is variable and fact specific (see Shewchuk at paras 51-56 ). [ 117 ] I do not think that the meaning of

Article 4 (numbered

Article 3 of the 2021 version) is open to reasonable competing

interpretations. Therefore, it is not ambiguous. The evidence is not admissible for the purpose of interpreting the agreement. [ 118 ] Nevertheless, if I had considered it to assist in discerning the meaning of the agreement, I would have concluded that the evidence has little weight. [ 119 ] The evidence does not address the acts of both parties to the contract or show a pattern of both parties over time as to their mutual

interpretation or administration of the dispute resolution provisions of the collective agreement. It merely demonstrates CPA’s view of the scope of the collective agreement – a view which may or may not be correct. At most, it illustrates that CPA executives took the position that the collective agreement did not apply to “blue on blue” complaints. [ 120 ] The evidence also touches on information from which I am asked to infer that members did not think the collective agreement applied to abuse by other members (see para 31 above).

Their choices whether or not to advance a grievance is not relevant to the meaning of the agreement or if it were, it has little weight because it is the opinion of one group of members that may or may not necessarily be correct and there is no evidence that one of the contracting parties - management - concurred in this view. [ 121 ] Turning to Ms Prodaniuk’s last argument, I considered whether the existence of a discipline scheme for police officers outside of the collective agreement alters my analysis on this point.

It does not. [ 122 ] The scheme in the Police Act and Police Service Regulation reserves discipline to a police chief. This is a common approach in police employment relations across Canada. Police officers are governed by both their collective agreements and by the schemes set out in police legislation ( Edmonton Police Assn v Edmonton (City) , 2007 ABCA 14 ; Regina Police Assn at paras 26-27). [ 123 ] This governance does not weaken the exclusive jurisdiction model for labour relations. It simply means that discipline is governed by a different scheme.

Both schemes co-exist and have exclusive jurisdiction over their respective subject matters ( Edmonton Police at paras 14-15). The collective agreement must not be interpreted in a manner that would offend the legislative scheme in the Police Act ( Regina Police Assn at para 30; Police Act , s 60). [ 124 ] There are occasions where a police officer’s actions in the workplace may potentially fall under both the labour relations scheme and the police disciplinary scheme. In some cases, classification may be difficult.

When there is uncertainty, regard must be had to the essential character of the dispute ( Edmonton Police at para 17). To determine the true nature of the dispute, “regard must be had to the grievance filed and the context in which it arose ( ibid at para 18; Regina Police Assn , at paras 25-27). [ 125 ] In this case, no actual grievance was filed, but the nature of Ms Prodaniuk’s allegations are that she was subject to harassment, discrimination, or other misconduct in her workplace by other officers, and was not protected or aided by her employer or CPA.

Although her complaints might have led to disciplinary actions against other officers, and could fit under the definition of “misconduct” in the Regulation , the real nature of her dispute is the working conditions which she was allegedly subject to, and the failure of her employer, the Calgary Police Service, the Chief of Police or the CPA to respond to them. This type of complaint relates to her working conditions, which are governed by the collective agreement.

Again, she was not (and is not in this action) seeking redress from the officers involved or for them to be disciplined. [ 126 ] Based on the information in Ms Prodaniuk’s Amended Amended Amended Statement of Claim and Affidavit, I do not see evidence to suggest that Ms Prodaniuk, her employer, or the CPA saw this as a misconduct/disciplinary matter that was subject to the Police Act . Instead, she was encouraged to deal with the matter on her own or to use the Respect Matters Program.

According to her Affidavit, the approach from some of her superiors was to dismiss her complaints as personality conflicts and resolve the issues by transferring her to other districts. As for the CPA, there was either reluctance or refusal to treat the issue as a grievance, but no suggestion that Ms Prodaniuk launch a misconduct complaint.

I reject the argument that this dispute should be characterized as disciplinary. [ 127 ] Ms Prodaniuk also sought to invoke s 26 of the POCBA , to hear a reference whether the collective agreement or Police Act applies: 26(1) Where a question arises between the parties over whether a matter is a difference as to the

interpretation, application, operation, contravention or alleged violation of the collective agreement or is a matter to which the Police Act and the regulations under that Act apply, either party or any arbitrator before whom the matter arises on the arbitrator's own motion may, by application, refer the matter to a judge of the Court of Queen's Bench. [ 128 ]

Section 26 does not change the analysis. Under the Weber analysis, the Court must determine whether the matters are within or outside the ambit of the collective agreement. It is plain and obvious that they are within that ambit. [ 129 ] In view of the contract language and its context, I conclude that the collective agreement in this case provides dispute resolution for matters arising between the parties to the agreement and persons bound by the agreement. [ 130 ] Consequently, I find that Ms Prodaniuk’s personal complaints arise expressly or inferentially out of the

interpretation, application, operation or alleged violation of the collective agreement, as against the City, the Calgary Police Service and Chief of Police. The issue of whether the regime applies to preclude claims directly against the other officers who assaulted or harassed her does not arise because they are not parties to this action. However, the claims against her employer, the Police Service, or the Chief of Police

as explained above, essentially arise from failing to ensure a safe work environment or vicarious liability for workplace wrongs resultingfrom that unsafe environment. These plainly and obviously arise from the operation and alleged violation of the collective agreement. [131] If I had found that the provisions of the collective agreement did not address dispute resolution among parties bound by theagreement, then s 21 of the POCBA would deem the collective agreement to include a broad dispute resolution leading to arbitration thatwould bind Ms Prodaniuk.

I would have come to the same conclusion, that Ms Prodaniuk’s claims against these defendants are withinthe ambit of the collective agreement. (iii) Personal claims against CPA [132] I come to the same conclusion regarding Ms Prodaniuk’s personal claims against CPA. [133] Ms Prodaniuk claims that on more than one occasion she asked CPA for assistance with harassment or similar misconduct in theworkplace, but it showed great reluctance or refused to file a grievance and blamed Calgary Police Service for tolerating harassment orobstructing attempts at recourse.

Ms Prodaniuk asserts that CPA owed her a duty to deal with her work conditions, and conspired withother defendants to essentially suppress harassment issues. [134] The essential character of her claim against CPA is failure to fulfil its duty as her exclusive bargaining agent and workplacerepresentative to fairly represent her.

This alleged misconduct is a prohibited practice (POCBA, s 37). [135] Ms Prodaniuk had the right to make a complaint against CPA of unfair practice to the Alberta Labour Relations Board (POCBA,s 38).The Labour Relations Board has “exclusive jurisdiction to exercise the powers conferred to it by or under this Act” ... and the“action or decision of the Board ... is final and conclusive for all purposes” (POCBA, s 44(1)).

Further, no “decision, order, directive,declaration, ruling or proceeding of the Board shall be questioned or reviewed in any court ...” (ibid, s 44(2)). [136] The exclusive jurisdiction model applies to the jurisdictional question as between this Court and the Alberta Labour RelationsBoard. The Legislature chose the Alberta Labour Relations Board to consider questions of fair representation, not the courts. TheLegislature also provided the Alberta Labour Relations Board with broad remedial powers, including issuing “a directive to rectify theact in respect of which the complaint is made” (POCBA, s 39(5)).

The Board may also direct the parties to proceed to arbitration andwaive any time-limits including the time limit under the collective agreements in which to launch a grievance (ibid, s 43(1); LabourRelations Code, RSA 2000, c L-1, s 153(3)). [137] In light of these statutory provisions, Alberta courts have no jurisdiction over allegations of breach of the duty of fairrepresentation and such claims must go to the Alberta Labour Relations Board (See Kniss at para 19 and Koenig v Marsh, 2005 ABCA118 at paras 8-9 and 14, applying Gendron v Supply and Services Union of the Public Service Alliance of Canada, Local 50057, (SCC), [1990] 1 SCR 1298).

VI Issue 2 – Is it plain and obvious that the Court does nothave jurisdiction over Ms Prodaniuk’s other claims? (

a) Additional claims against CPA [138] As I reviewed in para 18 above, Ms Prodaniuk advanced several other claims against CPA. She claims that CPA bylaws create acontractual relationship between CPA and its members, and CPA breached this contract when it failed to act on her behalf. She furtherclaims that she is entitled to the oppression remedy. CPA is incorporated under the Societies Act, which incorporates the oppressionprovisions of the ABCA.

She asserts that she is entitled to advance her a claim as a CPA member. [139] The thrust of Ms Prodaniuk’s position on these claims is that breach of contract and oppression claims against CPA must beheard in the Court of Queen’s Bench, not by a labour arbitrator or the Alberta Labour Relations Board. [140] The task is not to conduct a full inquiry into the merits of these claims. Again, the issue before me is whether the jurisdictionover the breach of contract or oppression claims is not sufficiently plain and obvious such that the application to strike must fail in wholeor in part. (

b) Breach of Contract [141] Ms. Prodaniuk argues that Societies Act corporation bylaws create a contractual obligation between the society and its membersand that as a member, she is entitled to enforce them. [142] Traditionally, the bylaws of companies created by memorandum or articles of association created a contractual obligationbetween the company and its shareholders (Theatre Amusement Co v Stone (1914), (SCC), 50 SCR 32 at p 37).

TheCourts applied the same approach to Alberta societies, which were incorporated by articles of association rather than letters patent(Sandhu v Siri Guru Nanak Sikh Gurdwara of Alberta, 2015 ABCA 101 at para 68, leave to appeal ref’d [2015] SCCA No 184, andauthorities cited therein; see also Knox v Conservative Party of Canada, 2007 ABCA 295 at para 27 and Farrish v Delta HospiceSociety, 2020 BCCA 312 at para 46, leave to appeal denied (SCC)). [143] Bylaws, even where they are contract-like, have different characteristics from ordinary contracts.

As discussed in Owners:Condominium Plan No. 7721985 v Breakwell, 2019 ABQB 674 at paras 50-53, bylaws are not the result of bargaining, and they areenacted and amended unilaterally. It is sufficient for this decision to say that bylaws create binding obligations on societies, and its

members are generally entitled to seek relief when the society breaches them. [ 144 ] Ms Prodaniuk claims that CPA breached

Article 3.1(

g) of its bylaws.

Article 3.1(

g) is found under the heading “Association Objectives” and reads: The Calgary Police Association objectives are: ... g. to foster an environment of integrity, trust, and mutual respect between it’s [sic] members and the citizens of Calgary . [ 145 ] Ms Prodaniuk argues that CPA did not perform its obligation under this bylaw in accordance with the doctrine of good faith performance from Wastech Services Ltd. v Greater Vancouver Sewerage and Drainage District , 2021 SCC 7 . [ 146 ] As stated earlier, the essential character of the claim is determined by the facts that gave rise to the dispute ( Beaulieu , summarizing Kniss , at para 43 ). [ 147 ] All of the factual allegations that the plaintiff asserts as a breach of the by-laws relate to CPA’s alleged failure to fairly represent her under the collective agreement.

These claims are within the exclusive jurisdiction of the Alberta Labour Relations Board. (

c) Oppression [ 148 ] The plaintiff asserts a claim of oppression under the Societies Act . She argues that only the Court of Queen’s Bench can hear such a claim. [ 149 ]

Section 35 of the Societies Act states that

Part 17 of the ABCA applies to a society as if it were a corporation.

Section 215 of the ABCA provides: 215(1) The Court may order the liquidation and dissolution of a corporation or any of its affiliated corporations on the application of a shareholder, (

a) if the Court is satisfied that in respect of a corporation or any of its affiliates (

i) any act or omission of the corporation or any of its affiliates effects a result, (ii) the business or affairs of the corporation or any of its affiliates are or have been carried on or conducted in a manner, or (iii) the powers of the directors of the corporation or any of its affiliates are or have been exercised in a manner that is oppressive or unfairly prejudicial to or that unfairly disregards the interests of any security holder, creditor, director or officer, or (

b) if the Court is satisfied that (

i) a unanimous shareholder agreement entitles a complaining shareholder to demand dissolution of the corporation after the occurrence of a specified event and that event has occurred, or (ii) it is just and equitable that the corporation should be liquidated and dissolved.

(2) On an application under this section, the Court may make any order under this

section or

section 242 it thinks fit.

(3) Section 243 applies to an application under this section. [ 150 ] In Sandhu the plaintiff sought to have the defendant society wound up for the board’s practice of excluding potential members who would support the plaintiff’s candidacy for a leadership position. The defendant society was incorporated under the Religious Societies Land Act , which, like the Societies Act , incorporates

Part 17 of the ABCA in the event of an application to wind up the society. The Court applied the oppression remedy but denied the winding up, instead ordering restructuring of the society’s approval process and amending its bylaws. [ 151 ] Ms Prodaniuk has pled a winding-up of the CPA, or alternatively for other oppression remedies including compensation. Therefore, Ms Prodaniuk, as a CPA member, can generally bring an oppression claim against the CPA. [ 152 ] As explained above, the facts of her claim pertain to unfair representation by CPA during her employment.

Matters of unfair representation including compensation for breach of the duty are within the exclusive jurisdiction of the Alberta Labour Relations Board. However, only the Court can issue relief for corporate oppression. I will return to this point in my discussion of the third issue -- the Court’s residual jurisdiction. (

d) Other claims [ 153 ] Ms Prodaniuk claims that the short limitation period in which to proceed with a grievance under the collective agreement is unauthorized, unconstitutional or contractually invalid, and that this Court has jurisdiction to consider these issues. [ 154 ] The essential character of the constitutional claim and contractual invalidity claims arise from the application or operation of the collective agreement.

[155] The exclusive jurisdiction model applies to Charter remedies, “provided that the legislation empowers the arbitrator to hear thedispute and grant the remedies claimed” (Weber at para 67). In my view, the same principle applies to Ms Prodaniuk’s claim that thearbitration clause is contrary to

section 96 of the Constitution Act, 1867. [156] Although an Alberta labour arbitrator does not have jurisdiction to make a binding declaration, they have jurisdiction to refuseto enforce parts of the collective agreement that are unlawful or inoperative because they are contrary to our Constitution(Douglas/kwantlen Faculty Assn v Douglas College, (SCC), [1990] 3 SCR 570 at pp 594-598; AdministrativeProcedures and Jurisdiction Act, RSA 2000, c A-3, s 11; Designation of Constitutional Decision Makers Regulation, Alta Reg 69/2006,ss 1(b)(viii), 2,

Schedule 1). [157] Similarly, I conclude the other claims about the limitation provision including unconscionability are in the jurisdiction of thearbitrator or the Alberta Labour Relations Board. [158] These are questions of mixed law and fact. The arbitrator has jurisdiction to decide such questions arising from their remit: There is not one law for arbitrators and another for the court, but one law for all.

If a contract is illegal, arbitrators must decline to awardon it just as the court would do. (Taylor (David) & Son, Ltd v Barnett, [1953] 1 All E.R. 843 (C.A.), per Lord Denning MR at p 847, approved in Douglas/kwantlen at p597). [159] I do not regard s 29 of the POCBA as precluding an arbitrator from ruling on these questions if they arise in the course of theissues presented in the grievance. The arbitrator can decline to apply a provision if found unlawful. I do not think the Legislature possiblyintended that

section 29 precludes arbitrators from applying Alberta law and creates one substantive law for union members and anotherfor other employees. See Douglas/kwantlen at p 598. [160] If the arbitrator were precluded from granting relief under s 29 of the POCBA, the jurisdiction of the Alberta Labour RelationsBoard includes decisions whether a person is bound by a collective agreement o

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