r v. Kerry, 2017 ONSC 3483

CITATION : Hillier v. Kerry’s Place Autism Services, 2017 ONSC 3483 COURT FILE NO.: 117-16 DATE: 20170608 SUPERIOR COURT OF JUSTICE - ONTARIO RE: BEVERLEY HILLIER, Plaintiff AND: KERRY’S PLACE AUTISM SERVICES, Defendant BEFORE: McSWEENEY, J. COUNSEL: J. Dell’Unto, Counsel, for the Plaintiff/Responding Party D. Ross, Counsel, for the Defendant/Moving Party HEARD: May 23, 2017 ENDORSEMENT [ 1 ] This is a motion by the Defendant employer to strike the Plaintiff’s claim for lack of jurisdiction pursuant to Rule 21.01(3)(a).

The Defendant argues that the court cannot hear the action as it falls within the exclusive jurisdiction of the Ontario Labour Relations Board (OLRB) as it raises labour relations issues. [ 2 ] The Plaintiff, responding, takes the position that she is at liberty to proceed to challenge her dismissal for cause in the courts. [ 3 ] On April 3, 2017, Price J. adjourned this motion to enable the moving party to serve the union, Canadian Union of Public Employees (“CUPE”), with its materials. At the hearing of the motion before me, CUPE counsel P. O’Ryan attended, not gowned.

He advised the Court that CUPE was not taking a position on the motion but that he would answer questions the court might have. Facts [ 4 ] The following facts are not in dispute: (

a) The Plaintiff began her employment with the Defendant in February 2005. (

b) On August 18, 2015, CUPE filed an application for certification with respect to the Defendant’s workplace; (

c) On September 11, 2015, the Plaintiff’s employment was terminated. She was dismissed for cause following an investigation by the employer. The employer concluded that she was responsible for misappropriation of client funds; (

d) The OLRB certified CUPE as the bargaining unit on an interim basis on September 16, 2015; (

e) The Plaintiff met with a union representative and signed a “grievance fact sheet” on January 21, 2016. Some of the information that she provided on this form is as follows: (

i) In the section, “What happened”: a warning letter in April 2015, and termination of her employment on September 11, 2015. (ii) In the section, “Why is this a grievance”: “I was dismissed without just cause.” (iii) In the section, “Want”: “full redress – reinstatement – lost wages – general damages (emotional harm, distress, defamation)”; (iv) In the section, “Employer record of Conduct: Any Relatenformation [sic]”: “Depression – Bereavement.” Relevant Legislation [ 5 ] CUPE filed its application for certification under the Labour Relations Act ( LRA ), 1995, S.O. 1995, c 1 . [ 6 ] There is a time delay between when a union files an application to be certified as the bargaining agent in a workplace, and when it is certified by the OLRB as the exclusive bargaining agent. [ 7 ] During this transitional period, in which a union is moving toward certification but is not yet the recognized, transitional rules are provided under the s. 86(2) of the LRA :

(2) Where a trade union has applied for certification and notice thereof from the Board has been received by the employer, the employer shall not, except with the consent of the trade union, alter the rates of wages or any other term or condition of employment or any right, privilege or duty of the employer or the employees until,

(

a) the trade union has given notice under

section 16, in which case subsection (1) [notice of desire to bargain] applies; or (

b) the application for certification by the trade union is dismissed or terminated by the Board or withdrawn by the trade union. [ 8 ] This “statutory freeze period” comes into effect upon the union’s filing of an application for certification. The parties agree that in this case, the statutory freeze came into effect on August 18, 2015, before the Plaintiff’s employment was terminated on September 11, 2015.

The role of the Union in assisting the Plaintiff following termination [ 9 ] It is agreed that the Plaintiff was not a member of the union, as she was dismissed from employment prior to the certification of the bargaining agent. [ 10 ] In her affidavit on the motion, Ms. Hillier deposed that the union advised that it could not formally represent her, and it did not have a duty to do so, but would have informal discussions on her behalf with the employer. [ 11 ] The union’s position was confirmed its letter to the Plaintiff’s counsel dated August 26, 2016.

The letter describes the assistance it offered to the Plaintiff to help her resolve her dismissal claim, stating “as there was no formal process available at the time of termination through the Union, this discussion [between union and employer] was of an informal nature and not supported through the Collective Agreement.” [ 12 ] The employer representative deposed that during discussions with the union, the union raised a number of incidents that it considered to be unfair labour practices, including the Plaintiff’s dismissal. [ 13 ] Ms.

Hillier deposed that she was not advised of or aware that the union had characterized her dismissal in that way. Ms. Hillier’s evidence on this point was uncontradicted and she was not cross-examined on her affidavit. I accept her evidence with respect to the informal nature of the union’s role on her behalf, and that she did not know the union framed her dismissal as an “unfair labour practice” in its discussions with the Defendant. [ 14 ] The informal discussions between the union and the employer about Ms. Hillier’s dismissal ended in the summer of 2016.

No unfair labour practice complaint was ultimately filed by or on behalf of the Plaintiff with the OLRB. The Pleadings [ 15 ] The Plaintiff issued her Statement of Claim on September 9, 2016. She seeks a range of remedies including damages for wrongful dismissal, malicious prosecution relating to criminal charges brought against her, and damages for psychological harm, harassment, and discrimination. [ 16 ] Her Statement of Claim describes a series of events from 2013 to her dismissal.

She pleads that the employer harassed her and discriminated against her for her health (disability) issues, including during a time when she was grieving the sudden death of her son following an accident that occurred on September 11, 2014.

She contends that this pattern of discrimination/ harassment culminated in the false allegation that she misappropriated funds, which is the basis of the employer’s dismissal for cause. [ 17 ] The Plaintiff pleads that the Defendant knew of her involvement in organizing the workplace and that her manager’s behaviour toward her was influenced “in part” by her involvement in organizing the union. [ 18 ] The Plaintiff takes the position that references in the claim to her organizing activities are not necessary for the prosecution of the claim, and have the effect of “muddying the waters” with respect to what is essentially a wrongful dismissal claim.

She is prepared to amend her claim to remove references to her involvement in union organizing. [ 19 ] The employer has not yet filed its Statement of Defence. Its position on the Plaintiff’s termination, however, is clear on the record and from counsel’s submissions. It continues to deny that the Plaintiff’s dismissal was other than described in the letter of termination – dismissal for cause. The dismissal followed an investigation which predated CUPE’s certification application. It denies that the Plaintiff’s dismissal was related in any way to her activities in helping to bring the union into the workplace.

As referenced earlier, the union takes no position on the motion. ISSUE [ 20 ] The sole issue to be determined on this motion is whether the OLRB has exclusive jurisdiction over Ms. Hillier’s claims. THE LAW [ 21 ] The Defendant provided and relies on the unanimous decision of the Ontario Court of Appeal in Myrtezaj v Cintas Canada Ltd. 2008 ONCA 277 (“ Cintas” ) . In that case, an employee sought to pursue what the court viewed as an unfair labour practice complaint in the courts. The employee had framed his claim as a constructive dismissal.

Cintas describes the two key principles that frame this jurisdictional question during the s. 86(2) statutory freeze period: [2] … On the one side stands the imperative that legislative pronouncements must be respect by the courts. The legislature has put in place a comprehensive statutory scheme requiring employers and employees to take certain disputes to specialized tribunals where these disputes can be resolved in a timely, cost-effective way that minimizes the disruption in the workplace.

This scheme can only work if the courts, except when exercising their supervisory powers through judicial review, stay out of these disputes. [3] On the other side of the jurisdictional dispute stands the individual’s right to access to justice. Those individuals alleged to have

been wronged in the context of the employer/employee relationship, but whose allegations are either not caught by the legislative schemeor cannot be remedied under that scheme must, like any other litigant, have access to the ordinary courts. [22] At para. 55, the Court continued: [55] Having concluded that the Weber [v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929] analysis applies, it remainsto determine whether on that analysis the appellant's complaints are within the exclusive jurisdiction of the Board.

Weber commands atpara. 52 that the court look at "the essential character" of the dispute and not the legal label one of the parties may choose to place on thatdispute.

The "essential character" of the dispute is determined by reference to the factual matrix of that dispute: see Vaughan, supra, atpara. 11. [Emphasis Added] [23] The motion judge’s decision in Cintas ( (ON SC), aff’d 2008 ONCA 277) is also helpful in determiningwhether the Court may have jurisdiction during a statutory freeze period: “The law seems clear that in determining whether or not thecourt has jurisdiction the true character of the issue or issues has to be determined and viewed in the context of the relevant legislativeframework.

In the present case, for example, if the action arises expressly or inferentially, out of the labour relations regime, the matterfalls within the exclusive jurisdiction of the OLRB” (para. 7). ANALYSIS What is the essential nature of the Plaintiff’s claim? [24] The facts of Ms. Hillier’s case are distinguishable from the facts in Cintas. In Cintas, both levels of Court found that the essenceof the employee’s claim was that the employer changed his working conditions during the s. 86 “freeze period”, when it unilaterallyreduced his wages.

Thus, the essential character of the dispute was the type of conduct specifically captured by s. 86 of the LRA, despitethe employee later attempting to reframe his claim as “constructive dismissal”. [25] The “factual matrix” underpinning Ms. Hillier’s claims against the Defendant largely predate the application for unioncertification. It is her abiding view, which is reflected in her Statement of Claim, that she worked hard for her employer and she felt thather work was valued and appreciated. However with a change of manager, starting in March 2013, she began to experience harassment inthe workplace.

She first complained of that harassment in March 2013. The employer did not formally investigate her complaint and theharassment continued, including discrimination relating to her mental health issues which were exacerbated by the sudden death of herson in a motor vehicle accident. [26] Further, the investigation into the Plaintiff’s spending activities and her suspension from work took place prior to CUPE’sapplication for certification.

The plaintiff’s employment was ultimately terminated as a result of that investigation, on the one yearanniversary of her son’s accident. [27] Counsel for the employer submitted that the key question for the employee to ask is “was I dismissed because I was a unionsupporter?” Ms. Hillier does not think that was why she was dismissed. The employer does not think so either, as evidenced by itsabiding position that she was dismissed for cause. The union takes no position. [28] The Plaintiff’s characterization of the dispute is clearly set out in her Statement of Claim.

However, how a party frames anaction is not determinative. A court may find that the essential character of the parties’ dispute is nevertheless covered by the labourrelations regime, where, for example, a Statement of Claim has been “sanitized” to remove references to the employee’s union supportingactivities, in order to escape the exclusive jurisdiction of the OLRB (Cintas, SCJ decision, para. 8). [29] I find that the Plaintiff’s Statement of Claim, and the evidence on this motion, establish that her claims are not allegations thatfall within the prohibitions set out in s. 86(2) of the LRA.

Put in another way, her claim is not that she was fired for helping with unionorganizing. Her Statement of Claim is consistent with the information on the Grievance Fact Sheet that she signed in the months afterher dismissal.

That Grievance Fact Sheet does not reference any union organizing involvement. [30] On the record before me, I conclude that the Plaintiff refers to unionizing efforts in her Statement of Claim only as a part of thenarrative, and not as a basis on which she seeks damages. [31] Although initially the timing of the Plaintiff’s dismissal, being less than a month after CUPE’s application for certification,caused the union to consider that it may have been a retaliatory action, the union did not pursue this characterization of the dismissal, noras mentioned did the employee take that view in completing the Grievance Fact Sheet regarding her termination. [32] The timing of the dismissal also supports the Plaintiff’s position.

The evidence indicates that the employer made its decision todismiss based on the results of the investigation report, which was made available to them in late August 2015. The dismissal followedshortly thereafter. [33] The Defendant’s conduct, in dismissing the Plaintiff for cause, does not amount to an alteration of a term of employment withinthe meaning of s. 86(2) of the Labour Relations Act.

Rather, I find that it was an exercise of management’s right to dismiss an employeefor what it believes to be just cause. [34] Permitting the Plaintiff to proceed with her claim in the courts in this case is consistent with OLRB jurisprudence: LubaGwendoline v Health Care and Service Workers Union Local 304 affiliated with the Christian Labour Association of Canada, (ON LRB); Branchaud v. Retail, Wholesale and Department Store Union District Council of the United Food andCommercial Workers International Union, (ON LRB) at para. 14.

In those cases, the Board declined to hear claimsby employees where the central issue was determined not to be labour relations, even where the employers’ impugned activities hadoccurred within the statutory freeze period. The employees were, in essence, directed to proceed with the Court process:

[ …] the Board said in Muskoka Board of Education , supra at paragraphs 58 and 60, that even where there exists a basis for a statutory freeze violation complaint, the Board may exercise its discretion not to consider such a complaint because adjudicating the merits of an individual employees’ discharge does not serve the labour relations purpose of the freeze and because the applicant has access to common law remedies. Luba Gwendoline , supra, at para. 20 . [ 35 ] The Plaintiff’s counsel concedes that the references in the Statement of Claim to Ms.

Hillier’s support for the union in her workplace “muddied the waters” of the analysis in this case. I agree. This is the obverse of the situation in Cintas : that was a s. 86 breach allegation found by the Court to have been “sanitized” or re-characterized as a constructive dismissal claim. By contrast, this is a wrongful dismissal with “muddied” pleadings which initially obscured the essential character of the claim.

CONCLUSION [ 36 ] On the basis of the foregoing, I find that the essential character of the dispute is a wrongful dismissal claim with human rights dimensions. [ 37 ] The Defendant argues that at least part of the plaintiff’s claim for damages for harassment is barred by the Limitations Act . There is no need to determine at this juncture whether a limitation period applies.

This position may be pleaded by the Defendant in its Statement of Defence. [ 38 ] The Court seeks to do justice between the parties and to identify a process which will provide a timely, fair and just adjudication of the issues between them. [ 39 ] Having found that the essential character of the dispute does not arise from employer actions prohibited by s. 86 of the LRA , the Plaintiff’s complaint is therefore not, per Cintas, “caught by the legislative scheme”. As such the OLRB does not have exclusive jurisdiction over the claim. The Plaintiff is therefore entitled to advance her claim in the courts.

ORDER [ 40 ] I therefore order as follows: (

a) The Defendant’s motion is dismissed. (

b) The Plaintiff is granted leave to amend her claim within 30 days to remove references to her work in support of CUPE in the workplace. (

c) The Defendant shall file its Statement of Defence within 20 days thereafter. [ 41 ] The Plaintiff was successful and is entitled to costs. Her bill of costs was provided and was reasonable. Partial indemnity costs to the Plaintiff fixed at $3,500 inclusive of disbursements and HST, payable by the Defendant within 30 days. McSweeney J. Date: June 8, 2017 CITATION : Hillier v. Kerry’s Place Autism Services, 2017 ONSC 3483 COURT FILE NO.: 117-16 DATE: 20170608

SUPERIOR COURT OF JUSTICE - ONTARIO BEVERLEY HILLIER, Plaintiff AND: KERRY’S PLACE AUTISM SERVICES, Defendant BEFORE: MCSWEENEY, J. COUNSEL: J. Dell’Unto, Counsel, for the Plaintiff/Responding Party D. Ross, Counsel, for the Defendant/Moving Party ENDORSEMENT McSweeney J. DATE: June 8, 2017