Frank Butt v. Ross Mercer, 2019 NLSC 119

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Butt v. Kiewit Energy Corporation , 2019 NLSC 119 Date : June 7, 2019 Docket : 201501G4282 Between: Frank Butt and Ross Mercer Plaintiffs And: Kiewit ENERGY CORPORATION Defendant Brought Under the Class Actions Act , S.N.L. 2001, c. C-18.1 Before: Justice Gillian D. Butler Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: April 17, 2019

Summary: Application to strike a Statement of Claim on jurisdictional grounds (Rule 10.05) or alternatively to stay proceedings under

section 97 of the Judicature Act , dismissed. The nature of the dispute was the alleged mishandling of the Plaintiffs’ personal information, post- employment. The Supreme Court had exclusive subject matter jurisdiction over claims for the statutory tort of breach of privacy by virtue of

section 8 of the Privacy Act and where

section 92 of the Labour Relations Act and

section 8 of the Privacy Act conflicted, the Privacy Act had paramountcy (

section 9 ). Respecting the other causes of action alleged by the Plaintiffs, the Defendant failed to establish that the mandatory arbitration provisions gave exclusive jurisdiction to arbitrators to address the dispute. The events giving rise to the dispute did not involve the Site or the Plaintiffs’ performance of work at the Site. The essential character of the dispute did not arise out of the Collective Agreement. Appearances:

Bob W. Buckingham Appearing on behalf of the Plaintiffs Colm St. R.J. Seviour, Q.C. and Appearing on behalf of the Defendant Koren A. Thomson Authorities Cited: CASES CONSIDERED: Bugden v. St. John’s (City), 2008 NLTD 180; Weber v. Ontario Hydro, (SCC), [1995] 2S.C.R. 929; Bisaillon c. Concordia University, 2006 SCC 19; Regina Police Assn. v. Regina (City) Police Commissioners, 2000 SCC 14;St. Anne-Nackawic Pulp & Paper Co. v. C.P.U., Local 219, (SCC), [1986] 1 S.C.R. 704; Seidel v. TelusCommunications Inc., 2011 SCC 15; Dewey v.

Corner Brook Pulp and Paper Limited, 2019 NLCA 14; TELUS Communications Inc. v.Wellman, 2019 SCC 19; C.U.P.E., Local 133 v. Niagara Falls (City) (2005), 81 C.L.A.S. 1, [2005] O.L.A.A. No. 228 (Ont. Arb.);Rhodes v. Cie Amway Canada, 2013 FCA 38; Hagan v. Drover, 2009 NLTD 160; Hynes v. Western Regional Integrated HealthAuthority, 2014 NLTD(G) 137; Acuren Group Inc. v. Tremblay, 2010 BCSC 689 STATUTES CONSIDERED: Class Actions Act, S.N.L. 2001, c. C-18.1; Judicature Act, R.S.N.L. 1990, c. J-4; Labour Relations Act,R.S.N.L. 1990, c. L-1; Privacy Act, R.S.N.L. 1990, c. P-22; Police Act, 1990, S.S. 1990-91, c.

P-15.01; Business Practices and ConsumerProtection Act, S.B.C. 2004, c. 2; Consumer Protection Act, 2002, S.O. 2002, c. 30;

Interpretation Act, R.S.N.L. 1990, c. L-19 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Butler, J.: INTRODUCTION [1] The Plaintiffs are proposed Representative Plaintiffs in an action brought under the Class Actions Act, S.N.L. 2001, c. C-18.1. A certification hearing has not yet been held and this Application concerns only the individual claims. [2] At all material times, the Plaintiffs were employees or former employees of Kiewit Energy Corporation (“Kiewit”).

The basisof the Proposed Class Action is the theft of a Kiewit computer on which personal employment information of Kiewit employees wasallegedly stored. [3] Kiewit’s Interlocutory Application asks the Court to set aside the Amended Statement of Claim pursuant to Rule 10.05 of theRules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D (the “Rules”) or alternatively, to stay the action pursuant to section 97(1) ofthe Judicature Act, R.S.N.L. 1990, c.

J-4, on the basis that the Court lacks jurisdiction. [4] Kiewit contends that the dispute between the parties falls within the exclusive jurisdiction of the grievance and arbitrationprocess mandated by both

section 92 of the Labour Relations Act, R.S.N.L. 1990, c. L-1 and

Article 17.01 of the Collective Agreementthat applies to the employment relationship between the parties. [5] The Plaintiffs contest the Application arguing that the essential character of the dispute relates to an alleged privacy breach,which occurred outside of the parties’ employment relationship. Specifically, they assert that the Privacy Act, R.S.N.L. 1990, c.

P-22bestows this Court with exclusive jurisdiction over the statutory tort of breach of privacy regardless of any other recourse or remedyavailable to the Plaintiffs as employees under the applicable Collective Agreement. facts [6] The parties agree on the following facts: 1. The allegations against Kiewit stem from the theft of a Kiewit-issued laptop in April 2015. The Plaintiffs allege that a Kiewitemployee may have downloaded their personal information to that laptop and that their information may have been on the laptop when itwas stolen while the employee was in the city of Montreal on Kiewit business.

2. In particular, the Plaintiffs allege that (

a) there were implicit or explicit contractual terms, warranties, or undertakings, by which Kiewit promised to protect their personal information in return for, or as a condition of, employment; and (

b) Kiewit breached those promises by exposing their personal information to loss or theft. 3. If their action is certified as a Class Action, the Plaintiffs propose to represent “all persons who received” an April 24, 2015z letter from Michael Geary (Kiewit Corporate Vice-President, Human Resources), advising that on April 15, 2015, the rental vehicle of a Kiewit employee was burglarized and that a company-issued laptop that “likely” contained the Plaintiffs’ personal information of the type found on a T-4 was stolen. The Defendant admits that this letter was sent to 15,792 individuals. 4.

The Plaintiffs raise several causes of action (all of which Kiewit will be challenging if the matter proceeds to a certification hearing), including breach of contract/warranty, fiduciary duty, and confidence; negligence; intrusion upon seclusion; and breach of the Privacy Act tort. Each assertion relates to the disclosure of the personal information respecting their employment. 5. The Plaintiffs last worked as pipefitters on the Long Harbour nickel processing plant project (the “Project”) in 2014.

Kiewit was an employer, principal contractor, or subcontractor on the Project site, which was situate in Argentia, Newfoundland and Labrador. 6. The Project was declared a “special project” under

section 70 of the Labour Relations Act , by virtue of the Vale Inco Long Harbour Processing Plant Special Project Order , NLR 26/09 (the “ SPO ”). The March 24, 2009 version of the Collective Agreement between the Long Harbour Employers’ Association Inc. and the Resource Development Trades Council of Newfoundland and Labrador was deemed to be the Collective Agreement applicable to the Project pursuant to the SPO (the “Collective Agreement”). 7.

Pursuant to the SPO , the Long Harbour Employers’ Association Inc. was designated as the employers’ organization acting for and on behalf of all employers, all principal contractors, and all subcontractors carrying out work on the Project. The Resource Development Trades Council of Newfoundland and Labrador was designated as the council of trade unions acting for and on behalf of all affiliated unions that represent employees employed on the Project. 8. Kiewit’s membership in the Long Harbour Employers’ Association was mandatory under

Article 3.02 of the Collective Agreement. 9. The Collective Agreement underwent five revisions between its inception on March 24, 2009, and the date of loss, April 15, 2015. Revision 4 (November 21, 2013) of the Collective Agreement was the operative version when the Plaintiffs stopped working on the Project in 2014. 10. Each version confirms that it is the only applicable agreement: 3.05 The Association, the Contractor(s), the council and employee(

s) shall not seek to agree, or agree on any matter within the scope of this Agreement in a manner inconsistent with the terms of this Agreement. No individual agreements, whether in writing or oral are permitted. The Association and the Council may, by written mutual agreement, amend the terms of this Agreement. 11. Further, each version contains a mandatory grievance and arbitration provision, which begins with the following:

ARTICLE 17 GRIEVANCES AND ARBITRATION 17.01 A disciplinary measure for other than just and reasonable cause or a dispute arising out of the

interpretation, application or alleged violation of this Agreement, including a dispute as to whether a matter is arbitrable and including the quantum of discipline, but excluding disputes involving trade jurisdiction, shall be adjusted in accordance with the following procedures: STEP 1: An employee, assisted by his steward if he so desires, shall present to the LHEA Contractor and the RDTC Site Representative within four (4) days after the circumstances giving rise to the issue have occurred or originated or within four (4) days of the employee becoming aware of such circumstances.

If no resolution can be achieved, on day six (6), the Council Representative shall notify the Association Representative of the issue. If still no resolution can be achieved, on day eight (8), the Council Representative shall submit a written grievance to the LHEA Contractor Representative and the Association Representative. Such complaint shall be made in writing, stating the alleged violation, referencing the

Article or Articles of this Agreement alleged to have been violated, and the remedy sought. The LHEA Contractor Representative shall respond to the grievance in writing by day ten (10). Settlement decisions rendered at this Step are solely for the purpose of resolving the grievance and shall not be considered precedential or binding in any other grievance dispute.

STEP 2: Should the decision rendered in Step 1 be unsatisfactory to the employee, or should no decision be rendered, the Council Representative shall by day eleven (11) refer the grievance to Step 2 in which case the Council Representative, The Local Union Representative, the Association Representative, the LHEA Contractor Representative and the employee assisted by his steward, shall submit the grievance within a further two (2) days to the Association and the Contractor’s designated representative on the Site.

STEP 3: Should the matter be referred to Step 3, by day twenty (20), the Council Representative, the Local Union Representative, the Association Representative and the LHEA Contractor Representative, shall meet to discuss the matter. The

Association shall respond to the grievance in writing by day twenty-one (21). If no resolution can be achieved, by day twenty-five (25)the RDTC Grievance Review Committee shall meet to discuss the matter and to determine if the matter will be settled, withdrawn orreferred to arbitration. If no resolution can be achieved through the above procedure, by day twenty-seven (27) either of the Parties mayrefer the matter to arbitration in accordance with the procedure contained in

Article 17.03. issue [7] The question therefore is whether the Plaintiffs may pursue these claims before this Court or if they are required to bedetermined by arbitration. On this Application, the onus lies on the Defendant to establish on a balance of probabilities that the reliefsought is appropriate. LEGAL BASES FOR THE RELIEF SOUGHT Setting Aside the Statement of Claim [8] Bugden v. St. John’s (City), 2008 NLTD 180, at paragraph 21 establishes that Rule 10.05 of the Rules applies to this relief. Itprovides: 10.05.

(1) A defendant may, at any time before filing a defence or appearing on an application, apply to the Court for an order (

a) setting aside the originating document or service thereof on the defendant; (

b) declaring that the originating document has not been duly served on the defendant; (

c) setting aside any order giving leave to serve the originating document on the defendant; or (

d) extending the time for filing a defence or appearing on an application.

(2) The application to the Court for an order referred to in rule 10.05(1) shall not be deemed to be a submission to the jurisdiction of theCourt. Stay [9] The alternative remedy sought is addressed by section 97(1) of the Judicature Act: Stay of proceedings 97.

(1) The court may direct a stay of proceedings pending before it.

(2) A person, whether or not that person is a party to the proceeding (

a) who would have been entitled, if The Newfoundland Judicature Act, 1889 had not been enacted, to apply to the court to restrainthe prosecution of the proceeding; or (

b) who may be entitled to enforce an order, contrary to which proceedings may have been taken, may apply in a

summary way for a stay of the proceedings either generally or where necessary for the purposes of justice, and the courtshall make the order that may be just. ANALYSIS The Test to be Applied [10] Whether under Rule 10.05 or section 97(1), Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929, requires

that I apply the “exclusive jurisdiction model” to determine the appropriate forum for the proceedings in question. In determiningwhether the dispute between the parties arises out of the Collective Agreement, two elements must be considered: (1) the nature of thedispute; and (2) the ambit of the Collective Agreement. [11] Although this is referenced as a jurisdictional test, it is essentially a choice of forum dispute. If the dispute is referred toarbitration, the labour arbitrator determines whether he/she has jurisdiction over the subject matter.

The Facts of the Principal Cases [12] On its facts, Weber involved a dispute over surveillance of an individual employee who was utilizing sick leave benefits. TheSupreme Court of Canada determined that the essential character of the dispute arose out of the collective agreement. No argument waspresented that privacy legislation ousted the jurisdiction of the arbitrator and before me, counsel agree that the Province of Ontario hasno Privacy Act and instead relies on the common law tort of intrusion upon seclusion.

Thus, in the absence of relevant legislationsuggesting otherwise, the court concluded that the dispute fell within the ambit of the collective agreement. [13] The Defendant finds support in the Supreme Court of Canada’s subsequent decision in Bisaillon c. Concordia University, 2006SCC 19, which involved a class action lawsuit respecting the use of pension funds. The court confirmed that the dispute arose out of thecollective agreement, and specifically, that (except as provided for by law), the class action procedure could not alter the jurisdiction ofcourts and tribunals (para. 22).

Therefore, the ambit of the collective agreement was broad enough to cover the claims. [14] In Regina Police Assn. v. Regina (City) Police Commissioners, 2000 SCC 14, an individual police officer resigned to avoiddiscipline but subsequently withdrew his resignation, which the Chief of Police would not accept. The arbitrator appointed under thecollective agreement concluded that she lacked jurisdiction because discipline matters fell within the jurisdiction of arbitrators appointedunder the Police Act, 1990, S.S. 1990-91, c. P-15.01 and Regulations.

In addressing the ambit of the collective agreement, at paragraph26, the Supreme Court of Canada explained that: 26 …In the case at bar, The Police Act and Regulations form an intervening statutory regime which also governs the relationshipbetween the parties. As I have stated above, the rationale for adopting the exclusive jurisdiction model was to ensure that the legislativescheme in issue was not frustrated by the conferral of jurisdiction upon an adjudicative body that was not intended by the legislature.

Thequestion, therefore, is whether the legislature intended this dispute to be governed by the collective agreement or The Police Act andRegulations. If neither the arbitrator, nor the Commission have jurisdiction to hear the dispute, a court would possess residualjurisdiction to resolve the dispute.

I agree … that the approach described in Weber applies when it is necessary to decide which of thetwo competing statutory regimes should govern a dispute. [15] Subsequently, at paragraph 32, the court concluded: 32 Having examined the ambit of the collective agreement, and of The Police Act and Regulations, it is clear that the dispute betweenSgt. Shotton and the Employer did not arise, either explicitly or inferentially, from the

interpretation, application, administration orviolation of the collective agreement. The essential character of the dispute was disciplinary, and the legislature intended for suchdisputes to fall within the ambit of The Police Act and Regulations. As a result, I agree with Vancise J.A. that the arbitrator did not havejurisdiction to hear and decide this matter. [16] In Bugden, the plaintiff employee had been assaulted by a co-worker and sued his employer and union in tort for failure toprovide a safe working environment.

Our Court of Appeal determined on the first prong of Weber that the nature of the dispute arosefrom the employer-employee relationship. However, on the second prong, the Court concluded that the ambit of the agreement could notmake arbitration the exclusive mechanism for resolving serious negligence claims in the processing of a grievance. At paragraph 65, itheld that

section 86 of the Labour Relations Act (while indicating a strong policy preference for settlement of employment-relateddisputes by arbitration) did not, (unlike the legislation considered in Weber) mandate collective agreement arbitration as the exclusivemechanism for resolving those disputes. Instead, as was the case in St. Anne-Nackawic Pulp & Paper Co. v. C.P.U., Local 219, (SCC), [1986] 1 S.C.R. 704, the court held that the language of

section 86 “by arbitration or otherwise” left it open to theparties to agree on some other mechanism. [17] In Seidel v. Telus Communications Inc., 2011 SCC 15, the class action proceeding involved cellphone contracts in whichcustomers agreed to waive any right to commence or participate in a class action against Telus. The court declined to stay the plaintiffs’claims pursuant to

section 172 of the Business Practices and Consumer Protection Act, S.B.C. 2004, c. 2 (the “BPCPA”), because section3 thereof provided that “any agreement that released rights” under the BPCPA was void. A stay was upheld in relation to other claims. [18] The very recent Dewey v. Corner Brook Pulp and Paper Limited, 2019 NLCA 14 case involved a class action proceeding by thePlaintiffs for damages arising from the operation of the Defendant’s water control and hydroelectric power generating system. ThisCourt had granted the Defendant a stay of proceedings on the basis of an arbitration provision in the applicable legislation; our Court ofAppeal concluded that this was an error because

section 14 of the applicable legislation specifically contemplated such an action byproviding that “nothing in the

Schedule in respect of settlement by arbitration “shall be held or construed to prejudice or exclude theright” of the property owner to commence an action in court” (para. 17). [19] Most recently, on April 4, 2019, the Supreme Court of Canada released its decision in TELUS Communications Inc. v. Wellman,2019 SCC 19, which was a class action for damages alleging deceptive practices by the cellphone service provider. The provider’sstandard terms and conditions contained a mandatory arbitration clause for both commercial and consumer customers.

The court: • characterized the essential character of the dispute as over-billing; • confirmed that the central theme emerging from Seidel and its prior related decisions was “that arbitration clauses, … willgenerally be enforced, ‘absent legislative language to the contrary;’” • noted that, “courts are generally to take a ‘hands off’ approach to matters governed by the Arbitration Act” 1991, S.O. 1991, c. 17;

• concluded that the class action subject matter was a dispute addressed by the arbitration provisions; but • determined that provisions of the Consumer Protection Act, 2002, S.O. 2002, c. 30 constituted a legislative override for theconsumer cellphone contracts. Thus, only the business customer claims were stayed. [20] As these decisions confirm, whether, and to what extent, the parties’ freedom to arbitrate is restricted requires a closeexamination of the facts and law of the jurisdiction. As will become apparent, this is a “less than obvious” case (Weber, para. 57).

Prong 1 - The Nature of the Dispute [21] In Weber, consideration of the “character of the dispute” element led to the following guidance: 57 In considering the dispute, the decision-maker must attempt to define its "essential character," to use the phrase of La Forest J.A.in E.C.W.U., Local 691 v. Irving Oil Ltd. (1983), (NB CA), 148 D.L.R. (3d) 398 (N.B. C.A.). The fact that the partiesare employer and employee may not be determinative.

Similarly, the place of the conduct giving rise to the dispute may not beconclusive; matters arising from the collective agreement may occur off the workplace, and conversely, not everything that happens onthe workplace may arise from the collective agreement: E.C.W.U., supra, per La Forest J.A. Sometimes the time when the claimoriginated may be important, as in Wainwright v. Vancouver Shipyards Co. (1987), (BC CA), 38 D.L.R. (4th) 760(B.C. C.A.), where it was held that the court had jurisdiction over contracts pre-dating the collective agreement.

See also Roberts v.Dresser Industries Canada Ltd. (1990), (sub nom. Johnson v. Dresser Industries Canada Ltd.) (ON CA), 75 O.R.(2d) 609 (C.A.). In the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it didnot. Some cases, however, may be less than obvious. The question in each case is whether the dispute, in its essential character, arisesfrom the

interpretation, application, administration, or violation of the collective agreement. [Emphasis added] [22] The ‘where, when, what and why’ enquiry suggested by paragraph 57 of Weber results in the following conclusions of fact: • The parties were in an employee/employer relationship associated with a special project declared under

section 70 of the LabourRelations Act. • The site was in Argentia, Newfoundland and Labrador. Both Plaintiffs ceased to be employees in 2014. • The conduct giving rise to the dispute did not involve the Plaintiffs directly and occurred in Montreal, Quebec, in 2015 when aU.S. Kiewit employee was on business and had her laptop stolen. • The Long Harbour Employers’ Association Inc. and the Resource Development Trades Council of Newfoundland and Labradorwere the parties to the Collective Agreement.

The Employers’ Association is currently registered to do business in the province but as ofthe date of the hearing, was not in good standing.

No evidence was received respecting the status of the Trades Council. • The Plaintiffs were two of almost 16,000 people who received correspondence from Kiewit dated April 24, 2015, advising of thetheft that “may affect the security of some of your personal information.” • The theft was reported to the police and privacy commissioner and the recipients were advised to keep a close eye on their creditcard activity but were not referred to any grievance procedure. • No grievance was filed by either party to this action. • The special project completed in 2016 and, pursuant to

Article 36, the last Collective Agreement expired on the completion of theProject. • The SPO expired in 2018. [23] I am currently addressing only two individual claims in a proposed Class Action based on several alleged torts including thestatutory tort of breach of privacy created by the Privacy Act. [24] In support of the action, the Plaintiffs have referenced, and will rely upon, the employment relationship between the parties andthe duties assumed by Kiewit, by virtue of that relationship (contractually, statutorily, and at common law). [25] The Plaintiffs state that the essential character of the dispute centres on an alleged privacy breach and that

section 8 of thePrivacy Act gives exclusive jurisdiction to this Court to determine the dispute. [26] The Defendant says that the Plaintiffs’ approach is in error and contrary to the enquiry supported in Weber. The Defendantasserts that the issue is not whether the action (defined legally) is independent of the Collective Agreement, but whether the dispute “…in its essential character, arises from the

interpretation, application, administration, or violation of the collective agreement” (Weber, atpara. 57). [27] From the Defendant’s perspective, regardless of how the action is legally framed (i.e. breach of contract, fiduciary duty orprivacy), Kiewit’s alleged duties and obligations arise out of its capacity as the Plaintiffs’ employer. The Defendant relies on Article5.01 of the Collective Agreement: 5.01 The Contractor retains full and exclusive authority for the management of its operations.

The rights of management shall beexercised in accordance with this Agreement. [28] The Defendant refers to C.U.P.E., Local 133 v. Niagara Falls (City) (2005), 81 C.L.A.S. 1, [2005] O.L.A.A. No. 228 (Ont.

Arb.) being a decision of an arbitrator on an allegation of invasion of privacy. In C.U.P.E. , the Management Rights

Article of the applicable Collective Agreement (read with

Article 10 thereof) was more specific than

Article 5.01 (above), and supported the arbitrator’s conclusions that:

a) running the organization as it saw fit included the right to maintain records containing personal employee information; and

b) such files were to be maintained in a secure and confidential fashion (paras. 113-114). [ 29 ] Notwithstanding the different language utilized in the Management Rights Articles, relying upon C.U.P.E. , the Defendant asserts that: • the information allegedly stolen was information collected by the Defendant in relation to the Plaintiffs’ employment; • the data was required by the Defendant in order to process the Plaintiffs’ payroll; • any alleged failure to comply with the duty to keep such information secure and confidential would represent a dispute or difference between the parties’ arising from the Collective Agreement; and • such a dispute must be addressed under the mandatory arbitration provisions of the Collective Agreement. [ 30 ] On the first prong of the enquiry established in Weber , I would characterize the nature of the dispute between the parties as the Defendant’s alleged mishandling of the Plaintiffs’ personal information post-employment.

It arises from the employment relationship because that is how the employer obtained the information. The enquiry needed to resolve this dispute will require assessment of whether a duty was owed to the Plaintiffs by their former employer, how it arose, if that duty was breached and, if so, what remedy may be available to the Plaintiffs. Prong 2 - The Ambit of the Collective Agreement (

i) General [ 31 ] In light of the unusual facts of this case set out in paragraph 22 herein, I can appreciate how the dispute may arguably be characterized as outside the normal employment relationship. However, as was stated in Weber , at paragraph 76 : Isolated from the collective agreement, the conduct complained of in this case might well be argued to fall outside the normal scope of employer-employee relations. However, placed in the context of that agreement, the picture changes.

The provisions of the agreement are broad, and expressly purport to regulate the conduct at the heart of this dispute. [ 32 ] Regina Police Assn. also provides guidance on the second prong of the Weber test. At paragraph 25, the court stated: …Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations. It is clear that the collective agreement need not provide for the subject- matter of the dispute explicitly.

If the essential character of the dispute arises either explicitly , or implicitly , from the

interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide… [Emphasis added] (ii) The Mandatory Arbitration

Article [ 33 ]

Section 86 of the Labour Relations Act requires a collective agreement to “contain a provision for final settlement without stoppage of work, by arbitration or otherwise , of all differences between the parties to or persons bound by the agreement or on whose behalf it was entered into, where those differences arise out of the

interpretation, application, administration or alleged violation of the agreement or a question as to whether a matter is arbitrable”. (Emphasis added) [ 34 ] However,

section 92 is a specific

section that applies only to the construction industry. It provides: 92.

(1) This

section applies only to the construction industry.

(2) Where an employer or employers' organization has entered into a collective agreement, then, notwithstanding anything to the contrary in this Act or in the collective agreement, a dispute or difference between the parties to the collective agreement, including persons bound by the collective agreement, relating to or involving (

a) the

interpretation, meaning, application or administration of the collective agreement or a provision of the collective agreement; (

b) a violation or an allegation of a violation of the collective agreement; (

c) working conditions; or (

d) a question whether a matter is arbitrable, shall be submitted for final settlement to arbitration in accordance with this

section in substitution for an arbitration or arbitration procedure provided for in the collective agreement.

(3) Where a dispute or difference arises between the parties to a collective agreement to which this

section applies, during the period from the date of its termination to the date the requirements of

section 116 have been met, this

section applies to the settlement of the dispute or difference.

(4) Where a dispute or difference arises that the parties are unable to resolve on the day on which the dispute or difference arises, the parties to the dispute or difference shall agree by midnight of that day upon the appointment of a single arbitrator to arbitrate the dispute or difference.

(5) Where 1 of the parties advises the minister that a dispute or difference has arisen and that the parties to the dispute or difference have failed to comply with subsection (4) or (12), the minister shall, as soon as possible, appoint an arbitrator.

(6) The minister may, with the written consent of the employer or employers' organization and the bargaining agent representing the employees, appoint a person to be the arbitrator for the purposes of this

section for the term of the collective agreement or for a term prescribed in the appointment, and where an appointment is made under this subsection, subsections (4) and (5) do not apply.

(7) The arbitrator appointed under subsection (4), (5) or (6), has the powers conferred on an arbitration board by this Act and, without restricting his or her power and authority, the arbitrator's decision is an order and may require (

a) compliance with the collective agreement in the manner stipulated; and (

b) reinstatement of an employee in the case of a dismissal or suspension instead of dismissal with or without compensation.

(8) The decision of the arbitrator shall be made within 48 hours of the time of appointment unless an extension is agreed upon by the parties.

(9) The parties to the dispute or difference are bound by the decision of the arbitrator from the time the decision is made and shall abide by and carry out a requirement contained in the decision.

(10) An arbitrator appointed under this

section who makes a decision in respect of a dispute or difference shall make a report on it and transmit it to the minister and to the parties.

(11) The provisions of this Act relating to an arbitration board apply, with the necessary changes, to and in respect of an arbitrator appointed under subsection (4), (5) or (6).

(12) Where the parties to a dispute or difference agree before midnight of the day on which the dispute or difference arises to invoke a grievance procedure contained in the collective agreement instead of proceeding as required by subsection (4), the parties may so settle the dispute or difference and failing settlement by those means the parties may, notwithstanding anything in this section, proceed to settlement by arbitration under

section 86.

(13) For the purposes of this section, "construction industry" means the on-site constructing, erecting, altering, decorating, repairing or demolishing of buildings, structures, roads, sewers, water mains, pipe lines, tunnels, shafts, bridges, wharves, piers, canals or other works. [ 35 ] I am satisfied therefore that the mandatory arbitration provisions applicable to the within dispute are those stated in

section 92, in substitution for

Article 17 of the Collective Agreement. No explanation was provided for the various amendments made to

Article 17 during the Project given that if the parties to the Collective Agreement understood

section 92 to apply,

Article 17 would have been substituted in full. For purposes of this decision, however, this is not material because both

section 92 and

Article 17 use similar language for the characterization of matters to be submitted to arbitration. [ 36 ] Section 92(2) says:

a dispute or difference between the parties to the collective agreement, including persons bound by the collective agreement, relating to or involving (

a) the

interpretation, meaning, application or administration of the collective agreement or a provision of the collective agreement; (

b) a violation or an allegation of a violation of the collective agreement; (

c) working conditions; or (

d) a question whether a matter is arbitrable, [ 37 ]

Article 17 states: 17.01 …a dispute arising out of the

interpretation, application or alleged violation of this Agreement, including a dispute as to whether a matter is arbitrable and including the quantum of discipline, but excluding disputes involving trade jurisdiction, shall be adjusted in accordance with the following procedures: … [ 38 ] The only substantive difference is that

Article 17 excludes disputes involving trade jurisdiction. This is not such a case. [ 39 ] As the jurisprudence well establishes, the purpose of sections 86 and 92 of the Labour Relations Act is to permit a low-cost, effective means of resolving workplace disputes and in the context of this special project, without stoppage of work. These sections recognize arbitration as an “autonomous, self-contained, self-sufficient process pursuant to which the parties agree to have their disputes resolved” other than by the courts ( TELUS ) and, in the particular circumstances of this case, without work stoppage.

Such access to justice principles are important. [ 40 ] If the laptop had been stolen either on the Site or off-Site but while the Plaintiffs were performing work on-Site, perhaps the Long Harbour Employers’ Association Inc. Contractor Representative and Resource Development Trades Council Site Representative would have been notified.

The process the parties would then have followed would involve appointment of a single arbitrator on the same day the dispute or difference arose (92(4)) or as soon as possible by the Minister of Labour (92(5)). [ 41 ] Because of the manner in which the theft occurred, there was no evidence that any of this was done. (iii) Explicitly Arising from the Agreement [ 42 ] Since the Plaintiffs were unionized employees, the only contract that governs their employment relationship with the Defendant is the Collective Agreement. [ 43 ] There is no express provision in the Collective Agreement that purports to regulate the conduct of the employer in safeguarding the Plaintiffs’ personal information.

Article 10.09 addresses privacy only in the context of the employer’s right to search personal belongings. [ 44 ] It follows that the Plaintiffs’ request to have a duty imposed upon the Defendant to safeguard their personal information requires an

interpretation of the Collective Agreement to resolve the dispute. As such, this would be a matter explicitly addressed under section 92(2) (

a) of the Labour Relations Act (in substitution for

Article 17). [ 45 ] The Plaintiffs also seek a determination that the loss of such information is a breach of this imposed duty. If so, this would represent an alleged violation of the Collective Agreement contemplated by the explicit wording of section 92(2)(

b) of the Act . [ 46 ] Broadly speaking therefore, I am satisfied that a dispute over whether the Defendant owed the Plaintiffs a duty to safeguard personal information and whether such duty was breached, falls within the ambit of

section 92 of the Labour Relations Act in substitution for

Article 17 of the Collective Agreement. The remaining question though is whether the duty to do so, post-employment, falls within the ambit of the section. (iv) Implicitly Arising [ 47 ] It is not only

section 92 of the Labour Relations Act (in substitution for the Mandatory Arbitration Provisions of the Collective Agreement) that must be considered. The whole of the Collective Agreement must be examined to determine if the Agreement contemplates such factual situations. [ 48 ]

ARTICLE 1 - PURPOSE/INTENTION states: 1.01 It is the intention of all the Parties that this Major Project Collective Agreement (“Agreement”) will support and facilitate a safe, healthy, respectful and productive work environment. 1.02 It is the desire of all the Parties that the construction phase of the Nickel Processing Plant will be the construction site of choice in Canada for unionized construction workers from Newfoundland and Labrador. 1.03 The purpose of this Agreement is to establish certain terms and conditions of employment of construction workers employed by Contractors on the Nickel Processing Plant.

The Agreement shall apply to, among other things, rates of pay, benefits, hours of work and

other working conditions so as to promote orderly and productive relations and achieve uninterrupted completion of the project, on time, within budget while maintaining an exemplary safety record. 1.04 this Agreement and its constituent Appendices, Recitals, Schedules, Letters of Understanding and Memoranda of Agreement shall constitute a Collective Agreement for the purpose of the Labour Relations Act when executed by the Parties and shall be administered as such. 1.05 The terms of this Agreement shall apply to all employees performing work on the Nickel Processing Plant within the scope of this Agreement as described in

Article 3. 1.06 The terms of this Agreement, including all Trade Appendices, Recitals, Schedules, Letters of Understanding and Memoranda of Agreement, shall take precedence over any existing or future union contracts or agreements entered into by any Union. In the event that a conflict exists between

Article 1 to

Article 36 of this Agreement and the Trade Appendices to this Agreement, the applicable

Article in the Agreement shall prevail. [ 49 ] As is apparent, this

Article specifically addresses the work environment, rates of pay, benefits, hours of work, and working conditions.

Article 1.05 specifies that the terms of the Agreement are applicable to all employees “performing” work on the Site but did not include those who “had performed” work on the Site. [ 50 ]

Article 5.01 MANAGEMENT RIGHTS is also pertinent. It states: 5.01 The Contractor retains full and exclusive authority for the management of its operations. The rights of management shall be exercised in accordance with this Agreement. [ 51 ] I conclude that “operations” utilized in

Article 5.01 (not a defined term) would relate to the nickel processing plant at the Site. [ 52 ] These Articles would implicitly suggest that disputes arising off-Site and post-employment were not contemplated to be resolved under the provisions of the Collective Agreement. (

v) The Statutory Tort of Breach of Privacy [ 53 ] The Plaintiffs rely on the following sections of the Privacy Act to suggest that the legislature intended this Court to have exclusive jurisdiction for the statutory tort of breach of privacy. Additional remedies 7.

(1) The right of action for violation of privacy under this Act and the remedies under this Act are in addition to, and not in derogation of, another right of action or other remedy available otherwise than under this Act.

(2) This

section shall not be construed as requiring damages awarded in an action for violation of privacy to be disregarded in assessing damages in other proceedings arising out of the same act, conduct or publication constituting the violation of privacy. Court 8. An action for violation of privacy shall be heard and determined by the Trial Division. Paramountcy 9.

(1) This Act applies where there is a violation of the privacy of an individual.

(2) Where there is a conflict between this Act and another Act, whether general or special, this Act prevails.

[54] Specifically, the Plaintiffs argue that sections 7 to 9 of the Privacy Act “manifest(

s) a legislative intent…” to relieve the partiesfrom “their contractual commitment to …arbitration” (Seidel). The question is therefore whether these provisions provide “clearlegislative language” to suggest that the agreement to arbitrate should not be enforced. (Rhodes v. Cie Amway Canada, 2013 FCA 38). [55] For the reasons that follow, I accept that sections 7 to 9 of the Privacy Act do restrict the jurisdiction of an arbitrator appointedunder

section 92 of the Labour Relations Act and the relevant provisions of the Collective Agreement. [56] The actual words of a statute must be read harmoniously with the scheme of the statute, its object, and the intention of thelegislature. As public policy legislation, the Privacy Act requires a broad and generous

interpretation. [57] The legislature’s intention to create the statutory tort of breach of privacy is expressly provided in

section 3 of the Privacy Act,which

section confirms that the statutory right is in addition to other rights of action. [58] The legislature’s choice for the forum of such disputes is also clear. It chose to have all actions for the statutory tort of breachof privacy heard and determined by the Trial Division (section 8) and chose to give the Privacy Act paramountcy over another Act ifthere was conflict (section 9). [59] I conclude therefore that for the statutory tort of breach of privacy, sections 7 to 9 of the Privacy Act provide an explicitlegislative override to the mandatory arbitration provisions of

section 92 of the Labour Relations Act and

Article 17.01 of the CollectiveAgreement. [60] My colleague, Adams, J., explained the features of this statutory tort in Hagan v. Drover, 2009 NLTD 160. “[T]he ‘nature anddegree’ of privacy afforded by the Act is circumscribed by that which is ‘reasonable in the circumstances’” and “the alleged violation ofthe Act must be shown to have been ‘willful’ and ‘without a claim of right’” (at paras. 147 – 149). In determining what is reasonable in the circumstances, the Court must have regard to the “lawful interests of others”.

In determiningwhether there has been a violation of the Act, the Court must have regard to “the nature, incidence and occasion of the Act or conduct”and to “the relationship ... between the parties”. [61] In Hagan, the Court concluded that the terms “willfully” and “without a claim of right” imply restrictions on the nature of thestatutory tort of breach of privacy as follows: 148 In Hollinsworth v. BCTV (1996), 34 C.C.L.T. (2d) 95 (B.C. S.C.) the Court, applying identical provisions to those in theNewfoundland and Labrador Privacy Act considered the phrase "willfully and without a claim of right".

At paragraphs 29-31, Lambert,J.A., stated: 29 I turn first to the word "wilfully". In my opinion the word "wilfully" does not apply broadly to any intentional act that has the effect ofviolating privacy but more narrowly to an intention to do

an act which the person doing the act knew or should have known wouldviolate the privacy of another person. That was not established in this case. 30 I move now to the phrase, "without a claim of right". I adopt the meaning given by Mr. Justice Seaton to that very phrase, "without aclaim of right" in Davis v. McArthur (BC SC), 10 D.L.R. (3d) 250: ... an honest belief in a state of facts which, if it existed, would be a legal justification or excuse ... 31 It is unnecessary in this case to decide whether the honest belief must be a reasonable one. Here, on the evidence the belief was bothhonest and reasonable.

I would not accede to this claim under the Privacy Act. It is not necessary for me to consider the exceptions underthe Act. 149 A similar result was reached in. Peters-Brown v. Regina District Health Board (1995), 26 C.C.L.T. (2d) 316 (Sask.

Q.B.),paragraphs 32-35 [62] Thus, while the Plaintiffs’ claims for breach of the statutory tort are required to be heard in this Court, their pursuit of remediesfor breach of privacy under the common law tort (intrusion upon seclusion) are distinct. (vi) Considerations for the Remaining Claims [63] I will now consider whether the Plaintiffs’ remaining claims for breach of contract, warranty, fiduciary duty and confidence,negligence, and intrusion upon seclusion fall within the mandatory arbitration provision.

[ 64 ] As Weber confirms at paragraph 59 , the exclusive jurisdiction model “…does not preclude all actions in the courts between employer and employee.” Depending on the nature of the dispute and other legislation, another tribunal or court may possess overlapping jurisdiction, concurrent jurisdiction, or themselves be endowed with exclusive jurisdiction. [ 65 ] Additionally, the courts possess residual jurisdiction based on their special powers (see St.

Anne-Nackawic Pulp & Paper Co. ). [ 66 ] Firstly, whether the common law right of action for intrusion upon seclusion exists in this Province has not yet been determined but was certified as a common issue in Hynes v. Western Regional Integrated Health Authority , 2014 NLTD(G) 137. [ 67 ] Since labour arbitrators and judges must apply the same law, I am satisfied that the availability of the common law tort can be addressed in arbitration ( Weber at para. 76 ).

It is no answer to the question of forum that the arbitrator will have no Newfoundland and Labrador jurisprudence to guide him/her. [ 68 ] Secondly, I recognize that while the dispute arose after the employment relationship had ended, this may not alter the essential character of the dispute from one arising out of the Collective Agreement. In Acuren Group Inc. v.

Tremblay , 2010 BCSC 689 , at paragraphs 38 to 41 , the British Columbia Supreme Court stated: 38 Turning to the facts of the case at hand, the essential character of the dispute between the parties is an alleged breach of the employment contract by the improper use of confidential information to compete with Acuren's business. The only employment contract in this workplace that governs the relationship between Acuren and the defendants is the Collective Agreement.

Acuren maintains that pursuant to the Collective Agreement, it was entitled to enact rules to be observed by its employees provided these rules were not inconsistent with the terms of the Collective Agreement. Acuren alleges that the actions of Mr. Tremblay and Mr. Cecchin violated the rules in force in the workplace and, as a consequence, they breached the Collective Agreement. There is no suggestion that the rules promulgated by Acuren constituted a separate employment contract between Acuren and its employees.

Indeed, the existence of such an agreement would violate the union's exclusive bargaining authority. 39 While Acuren argues the actions of the defendants fall outside the scope of their duties as employees, and as such, are beyond the Collective Agreement, I disagree. It could be argued that any wrongful act by an employee was outside the scope of their duties. However, it is the employer's authority to monitor and regulate the conduct of employees in the workplace that is the cornerstone of management rights. In the Collective Agreement, this authority is expressly recognized in

Article 22.01. The rules promulgated by Acuren pursuant to this provision define the parameters of the employee's duty of loyalty to their employer and form the basis of Acuren's claim against the defendants. Thus it is mere sophistry to argue that the dispute does not arise out of the Collective Agreement. 40 The dispute or difference between the parties is also intimately connected with the workplace. It is alleged that the defendants improperly took possession of confidential and proprietary information belonging exclusively to Acuren that they had access to due to their status as employees.

The confidential information originated in the workplace. Computer equipment owned by Acuren was allegedly used to secretly transfer it out of the workplace to a personal laptop owned by Mr. Tremblay. The offending activities also occurred during the course of the employment relationship, albeit during the notice period.

Acuren also took steps to confront the defendants with their wrongful actions prior to the end of the employment relationship. 41 In my view, the fact that the dispute between the parties continues to be on foot after the employment relationship has ended does not deprive the dispute of its essential character as one arising out of the Collective Agreement. A member of the bargaining unit does not lose the benefit of rights acquired while he was an employee, including the right to arbitrate a dispute between himself and his employer, solely because the employment relationship has come to an end.

The rights and obligations of the collective agreement continue to govern the parties' relationship and, in particular, the employees within the bargaining unit, even after the relationship has been terminated by either party. To accept Acuren's argument on this point would do violence to the fundamental nature of the collective bargaining regime and the scheme of the Code.

Just as an employee does not lose the right to grieve his dismissal when his employer acts unilaterally, an employer does not lose the right to grieve a violation of the collective agreement by an employee who subsequently resigns. [ 69 ] In both Acuren and the within the case, the confidential information in issue originated in the workplace.

However, in Acuren , the activity giving rise to the dispute involved emails sent by the former employee from his Acuren laptop to his personal laptop (including client lists) in the ten days prior to his resignation, which is a very different situation than the case before me. [ 70 ] Further, the PURPOSE/ INTENTION

Article in the within case supports application of the Collective Agreement to the workplace (the Site as defined) and to employees working on the Site (not those who had worked on the Site) for a specific Special Project that is now complete. [ 71 ] On the second prong of Weber , I weigh in favour of the Applicant’s position, the following facts established by the evidence and the principles drawn from by the jurisprudence referenced herein: 1. The need to respect arbitration as an autonomous, self-contained settlement procedure that the parties to the Collective Agreement chose to apply to disputes arising; 2.

The obligation to safeguard the Plaintiffs’ personal information arises from their employment with the Defendant; 3. The Collective Agreement is the only contract governing the employment relationship between the Plaintiffs and the Defendant;

4. The subject matter of the dispute (the Defendant’s obligation to safeguard the Plaintiffs’ personal information post-employment) is not explicitly excluded from the mandatory arbitration provisions; 5. Pursuant to

Article 36, the relevant Collective Agreement expired with the completion of construction in 2016, thus the within dispute arose during the currency of the Agreement; 6. While the SPO has been repealed, section 29(1)(

c) of the

Interpretation Act , R.S.N.L. 1990, c. L-19 , protects rights that accrued to the Plaintiffs under repealed legislation. [ 72 ] In favour of the Respondent’s position, I recognize that: 1. The access to justice principle supported by a mandatory arbitrary process without work stoppage does not command the same consideration in this instance where there is no ongoing work; 2. The Collective Agreement does not explicitly contemplate that the dispute arising from the unusual facts of this case must be resolved by arbitration; 3. The Collective Agreement addresses a Special Project which is now complete.

The current status of the parties to it was not established in the evidence, nor was there evidence that the Defendant had taken any steps contemplated by the arbitration provisions of the Collective Agreement in response to the dispute; 4. The PURPOSE/INTENTION

Article suggests that the Agreement applies to the workplace (Site as defined) but the activity giving rise to the dispute is not connected to the Site; 5. The PURPOSE/INTENTION

Article also suggests that the Agreement applies to employees “performing work” on Site, not who had performed work on site; 6. The facts do not engage either the employer’s authority to monitor and regulate the conduct of employees in the workplace or the employees’ duty to their employer ( Acuren at paras. 39-40); and 7. The activity giving rise to the dispute did not involve the Plaintiffs in any manner. (vii) Conclusion on Ambit of the Collective Agreement [ 73 ] The onus is on the Defendant to establish on a balance of probabilities that the dispute falls within the ambit of the Collective Agreement.

In the search for the essential character of the dispute, I find the factors in favour of the Respondent’s position to be more compelling and entitled to greater weight than those that favour the Applicant. [ 74 ] The Defendant has not met the onus of establishing on a balance of probabilities that the dispute falls within the ambit of the Collective Agreement. [ 75 ] I believe my conclusion makes practical common sense.

The Plaintiffs in these circumstances should not be required to resort to an expired Collective Agreement, with the status of the parties to it uncertain, to pursue claims for loss of personal information associated with the theft of a computer from a U.S. Kiewit employee visiting the City of Montreal. I would characterize these circumstances as remote from the Collective Agreement and not contemplated by its terms. CONCLUSION [ 76 ] This Court has exclusive jurisdiction over the Plaintiffs’ claims for the statutory tort of breach of privacy, and “to the extent the arbitration clause” (or

section 92 of the Labour Relations Act ) “purport(

s) to take away a right, benefit, or protection confirmed by the Privacy Act , it is invalid” ( Seidel , para. 31 ). [ 77 ] Respecting all other causes of action alleged by the Plaintiff, the Defendant has not established that the essential character of the dispute arose out of the Collective Agreement.

On the very unusual facts of this case, I conclude that the legislative scheme in issue would not be frustrated by the conferral of jurisdiction on this Court of all remaining claims presented by the Plaintiffs. [ 78 ] The Defendant’s requests to strike the Statement of Claim or stay the proceedings pending arbitration, are denied. [ 79 ] This ruling concerns only the two Plaintiffs’ individual actions.

Whether this proceeding will be certified as a Class Action is a matter to be determined by this Court at a later date ( Seidel , para. 8 ). [ 80 ] The Plaintiffs are entitled to their costs to be taxed on a party and party basis on Column 3. _____________________________ Gillian D. Butler Justice