Gary Benoit PLAINTIFF And: Atlantic Minerals Limited FIRST DEFENDANT and: rob kenny second defendant, 2019 NLSC 229

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : Benoit v. Atlantic Minerals Limited , 2019 NLSC 229 Date : December 18, 2019 Docket : 201904G0137 Between: Gary Benoit PLAINTIFF And: Atlantic Minerals Limited FIRST DEFENDANT and: rob kenny second defendant Before: Justice Garrett A. Handrigan Place of Hearing: Corner Brook, Newfoundland and Labrador Date of Hearing: November 12, 2019

Summary: Gary Benoit sued Atlantic Minerals and Rob Kenny in tort, alleging they acted maliciously towards him by practicing deceit and promulgating false information about shipping schedules. He claimed that he suffered mental distress because of their actions and claimed general and punitive damages from both. The Defendants applied by interlocutory application to strike the claim under Rules 10.05 and 14.24 of the Rules of the Supreme Court, 1986 . The Court allowed the application and struck Mr. Benoit’s statement of claim under Rule 10.05 , for want of jurisdiction in the Court to hear it.

The dispute between Mr. Benoit and the Defendants arises from the collective agreement and Mr. Benoit must follow its

processes to resolve it. The Court ordered Mr. Benoit to pay the Defendants’ costs to be taxed under Column 3 of the Scale of Costs. Appearances: Trevor A. Stagg Appearing on behalf of the Applicant Twila E. Reid and Appearing on behalf of the Defendants Matthew Jacobs Authorities Cited: CASES CONSIDERED: Bugden v. St. John’s (City), 2008 NLTD 180; Weber v. Ontario Hydro, (SCC), [1995] 2S.C.R. 929; Weber v. Ontario Hydro (1992), (ON CA), 60 O.A.C. 201, 37 A.C.W.S. (3d) 218 (Ont. C.A.) STATUTES CONSIDERED: Labour Relations Act, R.S.O. 1990, c.

L.2 RULES CONSIDERED: Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch. D REASONS FOR JUDGMENT Handrigan, J.: INTRODUCTION [1] On June 6, 2019, Gary Benoit issued a statement of claim from this Court asking for judgment against Atlantic MineralsLimited, the First Defendant, for $300,000 and against Rob Kenny, the Second Defendant, for $100,000. Mr. Benoit alleged in hisstatement of claim that the Defendants acted maliciously towards him.

He says they intentionally provided Service Canada with falseinformation causing him to be disqualified from receiving employment insurance benefits; and he alleges generally that they caused him“hardship and suffering” because of their “malicious acts”. [2] Atlantic Minerals and Mr. Kenny filed an interlocutory application on June 25, 2019 to strike Mr. Benoit’s statement of claim. They say in the first instance that this Court has no jurisdiction to hear his claim because the differences between Mr.

Benoit andAtlantic Minerals arise from his employment with them and must be resolved through grievance procedures in a collective agreementbetween the union representing Mr. Benoit and Atlantic Minerals. Otherwise, they say that the statement of claim discloses noreasonable cause of action; that Mr. Benoit’s claim is scandalous, frivolous, vexatious, and an abuse of the process of the Court; and thatit may prejudice, embarrass or delay the fair trial of any proceedings that might result. [3] The Defendants invoke Rules 10.05 and 14.24 of the Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D and askthat the claim be set aside under Rule 10.05 for want of jurisdiction or struck under Rule 14.24 for the other reasons specified above. The Defendants also ask for costs. I will deal with this matter under Rule 10.05 only. [4] I heard the interlocutory application on November 12, 2019 and reserved my ruling until now. The Issues [5] The Defendants’ interlocutory application raises this issue: • Does this Court have jurisdiction to try the claim between the Plaintiff and the Defendants? The Law Rules of the Supreme Court, 1986, S.N.L. 1986, c. 42, Sch.

D [6] Rule 10.05 (1) provides, in part, that “A defendant may, at any time before filing a defence…apply to the Court for anorder (

a) setting aside the originating document…”. Rule 10.05 (2) makes it clear that a defendant who applies under this Rule to strikean originating document does not submit to the jurisdiction of the Court merely by presenting its application.

Case Law [ 7 ] In Bugden v. St. John’s (City) , 2008 NLTD 180 , Green, C.J.T.D. (as he was then) discussed the operation of Rules 10.05 and 14.24 and noted the interplay between them. In particular, he said that both allow a defendant to ask the Court to set aside (or strike) a statement of claim, for want of jurisdiction in the Court to hear the matter.

The learned Chief Justice said a party generally challenging the jurisdiction of the Court to hear a matter, as the Defendants are doing here, should do so under Rule 10.05 because it permits the applicant to place “…the necessary evidentiary foundation for making that determination…before the court.” ( Bugden , paragraph 29 ).

But Green, C.J.T.D. also noted that the “evidentiary foundation” the applicant might present was limited to “…deciding the jurisdictional issue and not the substantive legal merits of the claim.” ( Bugden , paragraph 30 ). [ 8 ] In Bugden , as Green, C.J.T.D. observed (at paragraph 31): …the defendants [who] had only raised jurisdictional arguments and…[had] done so before filing a defence…were entitled to have those issues resolved within an application under Rule 10.05 regardless of the fact they had alternatively sought to raise the same issue under…[Rule] 14.24.

They had not attorned to the jurisdiction and they were entitled to place an evidentiary record before the court for the purpose of resolving that issue. That would include the governing collective agreement, employment background of the plaintiff, circumstances surrounding the making of other complaints in other forums, and other related matters. [ 9 ] So, it is for the Defendants here. [ 10 ] I will consider the Defendants’ claim under Rule 10.05 only. I am satisfied that this Court has no jurisdiction to hear Mr.

Benoit’s claim regardless of how he framed it in his statement of claim, or in the amended statement of claim he filed after the Defendants presented their application to strike. [ 11 ] This is the law I will apply in this matter. I turn now to analyze the jurisdictional issue under Rule 10.05 , starting with the background to the application. Analysis Background [ 12 ] Gary Benoit lives in Mainland, NL. Atlantic Minerals Limited, which mines limestone in Lower Cove, NL employed Mr. Benoit as a truck driver in its Lower Cove quarry from the spring 2015 to July 2017. Mr.

Benoit was a unionized employee, represented by the Industrial Union of Operating Engineers, Local 904. Atlantic Minerals and Local 904 negotiated a collective agreement for the Lower Cove operations. The collective agreement, which was effective from May 1, 2016 to April 30, 2019, covered most of Atlantic Minerals’ employees at the site, including Mr. Benoit. [ 13 ] Atlantic Minerals maintains full production, maintenance and shipping operations at its Lower Cove quarry for approximately nine months of the year, starting in early April and continuing until about the end of December.

For the other months, Atlantic Minerals reduces its operations so that it ceases production and focuses primarily on shipping but also does some routine maintenance. In effect, they simply yield to the challenges of the Newfoundland climate during the harsh winter months of January to April. [ 14 ] Atlantic Minerals lays off most of its workforce during those months and they are eligible for employment insurance benefits, unless they find other work. But, Atlantic Minerals retains the right to recall the workers for short-term work, which consists mainly of loading the boats that transport limestone to market.

To that end, Atlantic Minerals and Local 904 agreed on

Article 6.06 of the collective agreement, which reads: 6.06 RECALL – The Company shall recall employees by notification by phone or email at the last number or email address provided by the employee to the Company and union. Inability to make contact requires notice by registered mail. The employer will provide two (2) weeks’ notice prior to the scheduled start-up. It is the responsibility of the employee to keep company and union informed of their current postal address, email address and phone number where they can be reached.

If an employee is working or has a valid reason, they may refuse a recall without prejudicing their recall rights if the work period for which they are being recalled is less than three (3) weeks. An employee refusing their recall for three (3) weeks or longer shall lose their recall rights and has deemed to sever their employment. [ 15 ] Atlantic Minerals says it attempted to recall Mr. Benoit six times during January and February 2017 to help loading ships taking limestone away from the quarry. It says it used the last phone number Mr. Benoit provided and left voice messages for him, telling Mr.

Benoit they were recalling him for work. Atlantic Minerals says Mr. Benoit did not return their messages. Neither did Mr. Benoit contact Atlantic Minerals to say he was working elsewhere during those months, nor did he offer any other valid reason why he could not return to work. Atlantic Minerals believes that Mr. Benoit deliberately ignored its efforts to contact him and that he flouted his obligations under

Article 6.06 of the collective agreement. [ 16 ] Rob Kenny, the Second Defendant in Mr. Benoit’s claim, is Atlantic Minerals’ human resources manager for the Lower Cove quarry. He oversees layoff and recall procedures for the mine. Mr. Kenny says he is familiar with Mr. Benoit and knows him as a “Quarry Truck Driver” who worked at the mine from 2015 to 2017. Mr. Kenny says Mr. Benoit was a unionized employee, covered by the collective agreement between Atlantic Minerals and Local 904. [ 17 ] Mr. Kenny says that Atlantic Minerals laid Mr.

Benoit off on January 19, 2017, when it reduced its operations because of the weather for the winter months. He says Atlantic Minerals issued a layoff notice to Mr. Benoit and provided him with a record of employment stating that Mr. Benoit was laid off because of “shortage of work”. [ 18 ] Mr. Kenny says he was aware of Atlantic Minerals’ unsuccessful attempts to recall Mr. Benoit for work during January and February 2017. He expected that Mr. Benoit was in receipt of employment insurance benefits at the time because Atlantic Minerals had laid him off for shortage of work. Mr. Kenny believed that Mr.

Benoit deliberately ignored their efforts to recall him and he was

frustrated by Atlantic Minerals’ inability to contact Mr. Benoit, despite the company’s repeated attempts. [19] On March 6, 2017, Mr. Kenny wrote to Service Canada at its address in Corner Brook, NL. He listed the six dates and times,and how Atlantic Minerals tried unsuccessfully to contact Mr. Benoit in January and February 2017; and he asked Service Canada“…unless it is determined that this employee is working elsewhere that Service Canada discontinue EI benefits for Mr. Benoit forthese periods”. (Emphasis in original) Mr.

Kenny also expressed Atlantic Minerals’ general annoyance to Service Canada at beingunable to recall its employees for work: “Our company is becoming more and more frustrated with individual employees who are neededfor a couple days of work for ship loading but who will not report for work while in receipt of EI benefits. We ask that you look into thisparticular matter as soon as possible.”. [20] Service Canada acted on Mr. Kenny’s request. It investigated Atlantic Minerals’ allegations against Mr.

Benoit and notified Mr.Benoit on August 1, 2017 that he had been overpaid employment insurance benefits and it directed Mr. Benoit to repay the overpaidbenefits. Mr. Benoit denied Atlantic Minerals’ allegations and he asked Service Canada to reconsider its decision. Service Canadarejected Mr. Benoit’s request to reconsider on November 3, 2017. [21] Mr. Benoit appealed Service Canada’s denial to the Social Security Tribunal General Division, which dismissed his appeal andthen he appealed to the Social Security Tribunal Appeal Division. On January 31, 2019, the Appeal Division allowed Mr. Benoit’sappeal.

Despite being urged to return the matter to the General Division for reconsideration, a member of the Appeal Division found that“…Section 59 clearly empowers me to make my own assessment in order to render the decision that the General Division should havegiven.”. Which she did when she stated as follows: [26] There is no doubt that the Claimant [Mr. Benoit] was capable of working. The outstanding question is whether the Claimant wasavailable for work and whether he had made reasonable and customary efforts to find suitable employment.

The General Divisionmember fully set out the test and the considerations to determine whether a claimant is available for work and whether a claimant hasmade reasonable and customary efforts to find suitable employment. The parties agree the Claimant’s letter in which he published his jobsearch efforts from December 21, 2016 to April 10, 2017, show (sic) me that he met these tests. I accept the parties’ submissions in thisregard. [22] On June 6, 2019, Mr.

Benoit filed his statement of claim in this Court seeking damages against Atlantic Minerals and Mr.Kenny, claiming that they acted towards him with malice when Mr. Kenny reported to Service Canada on its failed attempts to recall himfor work and asked Service Canada to act upon its complaint. Mr. Benoit represented himself when he filed his statement of claim butsubsequently retained counsel and eventually filed an amended statement of claim, albeit several months after Atlantic Minerals and Mr.Kenny applied to strike his claim. Discussion [23] The Defendants say this Court has no jurisdiction to hear Mr.

Benoit’s claim. They believe that Mr. Benoit’s remedy, if he hasone, lies through the grievance procedure set out in the collective agreement between Atlantic Minerals and Mr. Benoit’s union. TheDefendants rely on Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929. Mr. Weber, who was off work from OntarioHydro for an extended leave of absence, was collecting sick benefits provided for by their collective agreement. Hydro suspected thatMr. Weber was malingering, and it hired private investigators to look into its concerns. The investigators entered Mr.

Weber’s home bypretending to be someone else and surreptitiously gathered information about him. Hydro suspended Mr. Weber’s benefits because ofthe information the investigators provided for them. [24] Like Mr. Benoit, Mr. Weber sued Ontario Hydro in damages. Mr. Weber alleged that the private investigators Ontario Hydrohired, committed acts of trespass, nuisance, deceit and invasion of privacy, while investigating Ontario Hydro’s concerns. OntarioHydro applied for an order dismissing Mr. Weber’s claim.

The judge in first instance allowed the application “…on the grounds that thedispute arose out of the collective agreement depriving the court of jurisdiction”: Weber, paragraph 35. The Ontario Court of Appealagreed with the motions judge and dismissed Mr. Weber’s appeal: Weber v. Ontario Hydro (1992), (ON CA), 60O.A.C. 201, 37 A.C.W.S. (3d) 218 (Ont. C.A.). Mr.

Weber appealed to the Supreme Court of Canada which also dismissed his appeal. [25] McLachlan, J., (as she then was), wrote for the majority on whether parties governed by collective agreements may sue in tortfor issues arising from the employment relationship.

The learned justice discussed three possible analytical models for dealing withthose issues: the concurrent model; the model of overlapping jurisdiction; and the exclusive jurisdiction model. [26] McLachlan, J. settled on the exclusive jurisdiction model which she described this way: “On this approach, the task of the judgeor arbitrator determining the appropriate forum for the proceedings centres on whether the dispute or difference between the partiesarises out of the collective agreement.

Two elements must be considered: the dispute and the ambit of the collective agreement” (Weber,paragraph 51). [27] McLachlan, J. acknowledged that the “…question in each case is whether the dispute, in its essential character, arises from theinterpretation, application or violation of the collective agreement” (Weber, paragraph 57).

She also acknowledged that, while “…it isimpossible to categorize the classes of cases that will fall within the exclusive jurisdiction of the arbitrator”, (Weber, paragraph 58) someexamples have been recognized in other cases: “…wrongful dismissal; bad faith on the part of the union; conspiracy and constructivedismissal; and damage to reputation” (Weber, paragraph 58). [28] She stated her reasons for adopting the exclusive jurisdiction model this way, at paragraph 63: To summarize, the exclusive jurisdiction model gives full credit to the language of s. 45(1) of the Labour Relations Act.

It accords withthis Court's approach in St. Anne Nackawic [Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, (SCC),[1986] 1 S.C.R.704 (SCC)]. It satisfies the concern that the dispute resolution process which the various labour statutes of this countryhave established should not be duplicated and undermined by concurrent actions. It conforms to a pattern of growing judicial deferencefor the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlappinglitigation in the courts.

[ 29 ] McLachlan, J. referred to section 45(1) of the Ontario Labour Relations Act , R.S.O. 1990, c. L.2 , which read at the time: 45.

(1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the

interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable. [ 30 ] McLachlan, J. ultimately accepted Hydro’s assertion that “[t]he dispute in this case arose out of the content of the [Collective] agreement” ( Weber , paragraph 77); even though, “…the conduct complained of in this case might well be argued to fall outside the normal scope of employer-employee relations” ( Weber , paragraph 76).

McLachlan, J. found that the language of the collective agreement dealing with sick leave was very broad and brought the “…medical plan and Hydro’s decisions concerning it expressly within the purview of the collective agreement.” ( Weber , paragraph 77). [ 31 ] I find that the language of the collective agreement between Atlantic Minerals and the Local 904 was also broad enough to embrace the differences between Atlantic Minerals and Mr. Benoit. Let me explain. [ 32 ]

Article 1.01 of the collective agreement has as its objects, “…to maintain a harmonious relationship between the company and its employees, to provide an amicable and equitable method of settling grievances or differences which might possibly arise , to formulate rules to govern the relationship between the union and the company, to promote efficiency, safety and service, as well as to cover wages, hours and working conditions”. (Underlining mine). [ 33 ] Settling differences is one of the most critical aspects of the relationship between a company and its employees and by extension between the company and the union.

The collective agreement sets out the “amicable and equitable method” the parties to it chose to settle their differences in

Article 14.00, entitled “Grievance & Arbitration Procedure”. It defined a “grievance” as “…a complaint of an employee, alleging a violation, misinterpretation, improper application or administration of this agreement.”. [ 34 ] The

Article prescribes steps for the employee to follow in bringing his grievance forward and then discusses the availability of mediation and arbitration and says how to process a grievance. If the grievance is not screened out in the initial stages or settled by mediation, it proceeds to arbitration and the arbitrator’s decision is “…final and binding on both parties”:

Article 14.05. [ 35 ]

Article 6.06, which appears earlier in these reasons, is important to both Atlantic Minerals and Local 904. Production at the Lower Cove limestone quarry is affected significantly by weather, especially the adverse conditions that attend during the winter months in this Province. Atlantic Minerals ceases production at its quarry during January, February and March and limits its operation to routine maintenance and shipping stockpiled product. It ships limestone to market by boat and it relies on its laid off employees to be available to load the boats at the company’s call. [ 36 ] Atlantic Minerals does not have an unfettered right to recall its workers. For example, by

Article 6.06, a worker may refuse recalls for work of fewer than 3 weeks duration if the worker has found other employment or otherwise “has a valid reason”. But barring one or the other, workers are obliged to respond to recalls and are liable to “…lose their recall rights and…[be] deemed to sever their employment”, if they refuse. Workers are also obliged to provide Atlantic Minerals and Local 904 with current telephone numbers and email addresses for the company to use when recalling them. [ 37 ] Atlantic Minerals believed that Gary Benoit ignored their efforts to recall him during January and February 2017.

They say they tried unsuccessfully six times during those two months by calling the telephone number they had on file for him, leaving voice messages saying they wanted him for ship loading and requesting he call them back. Mr. Benoit did not call back. Ultimately, Mr. Kenny wrote to Service Canada and “reported” Mr. Benoit and suggested the agency should investigate whether Mr. Benoit was working elsewhere and possibly receiving employment insurance benefits while so employed. [ 38 ] Mr.

Benoit offers no explanation for why Atlantic Minerals may not have been able to get in touch with him, other than to deny it happened. For example, he says he simply did not get their messages, but offered no possible reasons for the failed communication; such as, the number they were using was not current, he was working elsewhere and did not want to return to work, he was sick or incapacitated and unable to return to work, or any other reason. [ 39 ] Mr.

Benoit simply challenges the accuracy of the information Atlantic Minerals provided to the Social Security Tribunal when he appealed Service Canada’s finding that he had been overpaid benefits and ordered him to repay them. And, underlying his claim, as he says in paragraph 3 of the statement of claim he filed himself, “…AML was out to get me and are acting out of revenge for holding up management at the picket line”. [ 40 ] In the recitation of events I just provided, everything that transpired up to the point that Mr. Kenny wrote to Service Canada on March 6, 2017 to complain about Mr.

Benoit, with one exception, was squarely within the parameters of

Article 6.06 of the collective agreement between Atlantic Minerals and Local 904. I note the following: • Atlantic Minerals laid Mr. Benoit off on January 19, 2017; • Atlantic Minerals had boats to load in January and February 2017 and needed Mr. Benoit’s help; • Atlantic Minerals called the telephone number it had on file for Mr. Benoit and left messages for him to call back; • Mr. Benoit did not call back; and

• Mr. Benoit did not explain why he was not available when Atlantic Minerals called him. [ 41 ] The exception I alluded to is this: Atlantic Minerals did not send Mr. Benoit “notice by registered mail” when it was unable to contact him by telephone or email. [ 42 ] Each of the steps that Atlantic Minerals took to contact Mr. Benoit (or failed to take), and Mr. Benoit’s unavailability would clearly have been subject for a grievance from Mr. Benoit but only after they became “differences” between him and Atlantic Minerals; and that would only happen when Atlantic Minerals took some step to reprimand Mr.

Benoit for his failure to respond to their recall attempts. Perhaps, Atlantic Minerals might have severed Mr. Benoit’s employment with them or notified him they were removing his recall rights, but both actions are contingent on Mr. Benoit refusing their recall, and he had not communicated that to them. [ 43 ] Given Mr. Benoit’s silence and Atlantic Minerals’ inability to contact him, Mr. Kenny chose to do otherwise. He complained to Service Canada and suggested they investigate Mr.

Benoit to see if he was working elsewhere or receiving employment insurance benefits for periods when he could have been working for Atlantic Minerals. In paragraph 17(

i) of the Brief, Mr. Benoit filed in response to Atlantic Minerals’ interlocutory application to strike his statement of claim, Mr. Benoit acknowledges that Mr. Kenny was “…acting on an obligation to report to Service Canada, [when he] provided information to Service Canada stating that the Respondent [Mr. Benoit] was not available for work”. [ 44 ] Claiming, as Mr. Benoit does, that Mr. Kenny acted outside the terms of the collective agreement by reporting him to Service Canada unreasonably limits the scope of the grievance procedure the collective agreement contains.

One of the purposes of the agreement, as I noted earlier, was “to provide an amicable and equitable method of settling grievances or differences which might possibly arise”. Mr. Kenny reported Mr. Benoit to Service Canada when Atlantic Minerals tried six times to recall him; Mr. Benoit questions Mr. Kenny’s choice; and they differ about the remedy Mr. Kenny adopted. The remedy that Atlantic Minerals chose to follow is an arbitrable issue; and its choice, whether it was right or wrong, would have supported a grievance by Mr.

Benoit that would have engaged the grievance procedure prescribed by the collective agreement. [ 45 ] I am reminded of what McLachlan, J. said in Weber to Mr. Weber’s similar claim that the dispute between him and Ontario Hydro fell outside the collective agreement. I quoted part of her response earlier in these reasons but set out the full passage now: “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” ( Weber , paragraph 71). [ 46 ] The difference between Atlantic Minerals and Mr. Benoit was simply about how Atlantic Minerals responded to its inability to contact Mr. Benoit for recall. In Weber , McLachlan, J. said (at paragraph 48): …that the analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed.

The issue is not whether the action , defined legally, is independent of the collective agreement, but rather whether the dispute is one "arising under [the] collective agreement". Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it. (Italics in original; underlining mine) [ 47 ] Mr.

Benoit changed the focus on the differences between himself and Atlantic Minerals when he issued his statement of claim and accused Atlantic Minerals of having committed acts of tortious conduct towards him, for which he seeks damages. If he had advanced through the grievance procedures set out in the collective agreement, the emphasis would have remained on the facts in dispute between himself and Atlantic Minerals and not on the causes of action. [ 48 ] Because of Mr.

Benoit’s precipitous step, the discussion has shifted to whether the action he started operates outside the collective agreement, not whether the dispute arises under the agreement. Let me refocus the discussion by asking whether the dispute arises under the collective agreement; and, if it does, this Court has no jurisdiction to try the matter but must defer to the process Atlantic Minerals and Local 904 defined in their collective agreement to resolve their differences. [ 49 ] The differences between Atlantic Minerals and Mr.

Benoit emerge largely from how Atlantic Minerals engaged the recall provisions of the collective agreement as it tried to get Mr. Benoit to return to work to help load the boats transporting their limestone to market; and then on how Atlantic Minerals reacted when it was unable to contact Mr. Benoit for that purpose. These differences are clearly within the scope of the collective agreement. [ 50 ] In fact, Mr.

Benoit acknowledges their differences arise from the collective agreement and says so in paragraph 11 of his amended statement of claim when he notes that “…employment recall is specifically dealt with in the Collective Agreement”. In paragraph 12, of his amended statement of claim, Mr. Benoit insists that Atlantic Minerals “…are required under the Collective Bargaining Agreement to have commenced a Company Grievance pursuant to

Article 14.02 of the Collective Agreement”. [ 51 ] Mr. Benoit cannot have it both ways. This is the effect of what he says: If Atlantic Minerals feel aggrieved by his failure to respond to their attempts to recall him, they must follow the grievance procedure in the collective agreement; but if he feels aggrieved by Atlantic Minerals’ response to its inability to contact him for recall, he does not have to follow the grievance procedure prescribed for him in the same agreement but can sue Atlantic Minerals in tort. [ 52 ] Mr.

Benoit justifies choosing to sue the company for damages, instead of grieving its actions, by saying Atlantic Minerals stepped outside the collective agreement by reporting him to Service Canada. But he has obscured the analysis by alleging that Atlantic Minerals acted with malice, deceit and by promulgating false information about shipping schedules. His allegations of tortious conduct by Atlantic Minerals are no more than that at this stage. As McLachlan, J. said in Weber , “…the analysis of whether a matter falls

within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed” (Underlining mine). [ 53 ] The facts underpinning the dispute, as I have said several times already, relate to how Atlantic Minerals invoked

Article 6.06 of the collective agreement and how Mr. Benoit failed to respond to their efforts to contact him; and then on how Atlantic Minerals reacted when it was unable to contact him. Mr. Benoit chose to ignore the “facts” when he framed up the “legal issues” that underlie his claim against Atlantic Minerals. He has misdirected the analysis and when I refocus the analysis, it is clear that the dispute between Mr. Benoit and Atlantic Minerals arises from the collective agreement and Mr. Benoit must follow its processes to resolve it. [ 54 ] In the result, I allow the interlocutory application.

I find that this Court has no jurisdiction to try Mr. Benoit’s statement of claim, both in its original form and as amended, and I strike it out under Rule 10.05 of the Rules of the Supreme Court, 1986 . Costs [ 55 ] There is no reason to depart from the usual rule that costs follow the cause. I order Gary Benoit to pay the Defendants’ costs to be taxed under Column 3 of the Scale of Costs.

Summary and Disposition [ 56 ] Gary Benoit sued Atlantic Minerals and Rob Kenny in tort, alleging they acted maliciously towards him by practicing deceit and promulgating false information about shipping schedules. He claimed that he suffered mental distress because of their actions and claimed general and punitive damages from both. The Defendants applied by interlocutory application to strike the claim under Rules 10.05 and 14.24 of the Rules of the Supreme Court, 1986 . [ 57 ] The Court allowed the application and struck Mr.

Benoit’s statement of claim under Rule 10.05 , for want of jurisdiction in the Court to hear it. The dispute between Mr. Benoit and the Defendants arises from the collective agreement and Mr. Benoit must follow its processes to resolve it. The Court ordered Mr. Benoit to pay the Defendants’ costs to be taxed under Column 3 of the Scale of Costs. Order [ 58 ] In the result, I order that: 1. Gary Benoit’s statement of claim against Atlantic Minerals and Rob Kenny (File # 201904G0137) be struck under Rule 10.05 of the Rules of the Supreme Court, 1986 . 2.

Gary Benoit pay the Defendants’ costs to be taxed under Column 3 of the Scale of Costs. _____________________________ Garrett A. Handrigan Justice