Bolduc v Alberta, 2023 ABKB 49

Court of King’s Bench of Alberta Citation: Bolduc v Alberta, 2023 ABKB 49 Date: 20230125 Docket: 2201 06802 Registry: Calgary Between: Debbie Bolduc, Monty Bontrager, Dustin Coleman, Andrew Cowper-Smith, Matthew Fleischer, Jason Guilbault, Anton Halvorson, Geoffrey Hatt, Gavin Heath, Chadwick Hoard, Christopher Langill, Steven Lewyk, Sebastian Leybold, James Robin Lundie, Chad Lysak, Matthew McCarthy, Jason McDonagh, Tyson McDonagh, Glenn Mitchell, Trevor Nakamura, Stephanie Papineau, Michelle Parrill, Eric Porsch, Scott Priddle, Shaun Priddle, Trevor Schwab, Sheila Smart, Gregory Spry, Monika Swierczynski, Duane Vanbeek, Jesse Van Burren Plaintiffs - and - His Majesty the King In Right of Alberta, Atco Gas and Pipelines Ltd., Atco Electric Ltd., Atco Energy Solutions Ltd. and CU Inc.

Defendants _______________________________________________________ Reasons for Decision of Applications Judge J. Farrington _______________________________________________________ [ 1 ] I heard this special chambers application on January 11, 2023. [ 2 ] I begin by briefly describing what this application is, and what is not. It is an application to strike the claims of those of the plaintiffs who work in a unionized environment on jurisdictional grounds. It is not an application based upon the merits of the underlying dispute about vaccinations.

His Majesty the King in Right of Alberta supports the jurisdictional application of the defendants but makes no application of its own at this time. [ 3 ] There are a number of unions involved in this case. There is a collective agreement for each of them. As one example, the collective agreement between ATCO Natural Gas and the Natural Gas Employees Association before the Court provides for arbitration.

The other collective agreements provide similarly. [4]

Section 135 of the Labour Relations Code, RSA 2000, c L-1 provides: 135 Every collective agreement shall contain a method for the settlement of differences arising (

a) as to the

interpretation, application or operation of the collective agreement, (

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

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

a) or (

b) can be the subject of arbitration between the parties to or persons bound by the collective agreement. [5]

Section 145 of the Labour Relations Code allows for challenge to arbitrator decisions in the labour relations process asfollows: 145(1) Subject to subsection (2), no award or proceeding of an arbitrator, arbitration board or other body shall be questioned or reviewedin any court by application for judicial review or otherwise, and no order shall be made or process entered or proceedings taken in anycourt, whether by way of injunction, declaratory judgment, prohibition, quo warranto or otherwise, to question, review, prohibit orrestrain the arbitrator, arbitration board or other body in any of the proceedings of the arbitrator, arbitration board or other body.

(2) A decision, order, directive, declaration, ruling or proceeding of an arbitrator, arbitration board or other body may be questioned orreviewed by way of an application for review to the Board seeking an order under subsection (3) if the application is filed with the Boardno later than 30 days after the date of the decision, order, directive, declaration, ruling or proceeding or reasons in respect of it,whichever is later.

(3) On an application under subsection (2), the Board may (

a) set aside the decision or award, (

b) remit the matters referred to it back to the arbitrator, arbitration board or other body, or to another arbitrator, arbitration board orother body, or (

c) stay the proceedings before the arbitrator, arbitration board or other body.

(3.1) Notwithstanding section 12(2)(i), the Board may award any costs it considers appropriate in the circumstances with respect to anapplication under subsection (2).

(4) An application to the Board under subsection (2) must be on the record and made in accordance with the Board’s rules of procedure. [6]

Section 145.1 of the Labour Relations Act provides for an appeal of Labour Relations Board decisions to the Court ofAppeal on a limited basis and only with permission or leave being granted: 145.1(1) Subject to subsection (2), an appeal lies from a decision of the Board under section 145(3) to the Court of Appeal on a questionof jurisdiction or law after permission to appeal has been obtained.

(2) An application for permission to appeal must be filed and served within 30 days from the day that the decision sought to be appealedfrom was made, or within a further period of time granted by the judge where, in the opinion of the judge, the circumstances warrant it.

(3) Notice of an application for permission to appeal must be given to the parties affected by the appeal and to the Board.

(4) Within 30 days from the date that the permission to appeal is obtained, the Board must forward to the Registrar of the Court ofAppeal the record of the hearing, and its reasons for the decision.

(5) On permission to appeal being granted by a judge of the Court of Appeal, the appeal must proceed in accordance with the practiceand procedure of the Court of Appeal. [7] That is the normal sequence of events in a unionized labour dispute. There is a comprehensive roadmap that begins with thecollective agreement and there are a number of review and challenge opportunities available along the way. Can that route be bypassedor avoided by simply filing an action in Court? [8] The collective bargaining agreements here contemplate a unionized setting and they contemplate mandatory arbitration forworkplace disputes.

No arguments were made based upon the specific wording of any of the collective agreements that they somehow donot provide for arbitration in the ordinary course. Instead, the unionized employees argue that the nature of the claims that they advanceare beyond the scope of the arbitration process. [9] Consideration of the jurisdictional issue necessarily starts with the Supreme Court of Canada decision in Weber v. OntarioHydro, (SCC), [1995] 2 SCR 929.

At paragraph 67 of Weber, McLachlin J, as she then was, provided the followingsummary of the applicable law: I conclude that mandatory arbitration clauses such as s. 45(1) of the Ontario Labour Relations Act generally confer exclusivejurisdiction on labour tribunals to deal with all disputes between the parties arising from the collective agreement. The question in eachcase is whether the dispute, viewed with an eye to its essential character, arises from the collective agreement.

This extends to Charterremedies, provided that the legislation empowers the arbitrator to hear the dispute and grant the remedies claimed. The exclusive

jurisdiction of the arbitrator is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies notpossessed by the statutory tribunal. Against this background, I turn to the facts in the case at bar. [10] That

summary was given after the Court described three potentially different views of the issue that might define the result.The Court discussed the concurrent model, the model of overlapping jurisdiction, and the exclusive jurisdiction model and concludedthat the exclusive jurisdiction model applied. In other words, proceeding through the arbitration route was found to be mandatory unlessan exception could otherwise be demonstrated. [11] The original statement of claim in this matter was only as against the corporate defendants. In the Amended version, HisMajesty the King in Right of Alberta was added.

In the Amended Amended version before the Court the allegations now include andexpand upon alleged coordination between His Majesty and the corporate defendants in imposing vaccine mandates. [12] The framing of the test that emerges from Weber, and the many years of cases following Weber, is that the matter turns onthe “essential character of the dispute”.

All of the parties agree on that formulation for the analysis which must be done. [13] The unionized employees argue that the fact that remedies under both the Charter of Rights and Freedoms and the AlbertaHuman Rights Act, RSA 2000, c A-25.5 are sought make this a dispute that is beyond the arbitration process jurisdictionally.

It is alsoalleged that the corporate defendants acted as agents for the Crown in enacting a mandatory vaccination policy for the workplace, andthat this dispute is therefore outside the arbitration process imposed by the collective bargaining agreement and legislation because HisMajesty is not a party to the collective agreements. [14] After considering the matter, in my view the essential character of this dispute remains a workplace dispute. The corporatedefendants imposed a workplace requirement of mandatory vaccinations. Consequences were to result if the vaccine requirements werenot met.

The consequences included placing employees who did not comply with the standard (and who did not have an exemption) onunpaid leave. It was argued that there were less intrusive means that would have been appropriate such as permitting testing in lieu ofvaccination, but that is part of the merits and reasonableness discussion which could be fully considered by the arbitrator. It is not a partof the jurisdictional issue per se. [15] The dispute is about defining the limits of the employer’s authority over the workplace and what terms it may or may notimpose.

The “essential character of the dispute” remains a workplace dispute. Even if, as argued, His Majesty did require a vaccinationmandate (and that is strongly disputed by His Majesty and the defendants) the dispute between the defendants and the unionizedplaintiffs remains what the employer could or could not require in the workplace. [16] And even if the province did impose a requirement on the defendants to impose such a vaccination policy, the employeedispute with the corporate defendants is still a labour dispute.

Conditions of work were imposed upon the unionized plaintiffs, and theplaintiffs did not agree with those conditions. With respect to the corporate defendants, the recourse against them for workplace disputesremains the labour relations channel for unionized employees. [17] The unionized plaintiffs refer to a general announcement from the province in evidence that assistance would be provided toemployers who imposed mandatory vaccination polices, but no formal regulation or statute appears to have ever been enacted to codifyany of that assistance.

In the end, the policy was imposed by the employer rather than the province. [18] The Court must still consider whether any of the factors argued by the unionized plaintiffs and the remedies sought in theAmended Amended Statement of Claim should make this case an exception to the normal rule. [19] With respect to the Charter of Rights and Freedoms remedies sought, those can be granted in a labour arbitration setting andby the Labour Relations Board.

Further, it is difficult to contemplate how there would be Charter remedies available against a privateemployer. [20] With respect to the allegations under the Alberta Human Rights Act, and leaving aside for the moment that vaccination statusis not an enumerated ground regarding discrimination under the Act, original jurisdiction for those complaints lies with the AlbertaHuman Rights Commission. This Court does not have original jurisdiction to grant remedies under the Alberta Human Rights Act. Itformerly had appellate jurisdiction under

section 37 of the Alberta Human Rights Act, but it would appear that the appellate jurisdictionhas also been recently removed by virtue of the Red Tape Reduction Implementation Act, 2021 (no. 2), SA 2021, c 25. Presumablyjudicial review in an administrative law sense remains an option. [21] Some might take issue with whether an appeal right under the Alberta Human Rights Act is mere red tape, but that was adecision of the legislature.

I note that the Alberta Human Rights Act as now amended does contemplate a transitional appellate regimefor ongoing matters, but I express no opinion on whether or not it would apply here. [22] Further, Northern Regional Health Authority v. Horrocks, 2021 SCC 42 held that a human rights issue was not sufficient todisplace the arbitrator’s exclusive jurisdiction in a unionized labour dispute. [23] I refer to several more cases cited by the parties. [24] The applicants cited Bagri v Quesnel (City), 2022 BCSC 2003. Bagri is a case from British Columbia that is remarkablysimilar on its facts to this case.

I find it to be directly on point, and I agree with its reasoning. It reached the same conclusions that I havereached. [25] The unionized plaintiffs cited Merrifield v. Canada (Attorney General) 2009 ONCA 127 (leave to appeal dismissed) andRegina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14 , [2000] 1 S.C.R. 360. Those werepolice discipline cases. Edmonton (Police Service) v Deluca, 2022 ABCA 86 was a recent case decided by a five judge panel of ourCourt of Appeal and it does not appear to have been cited.

It also deals with police discipline and how to navigate through the variouspossibilities related to jurisdiction. In all of those discipline cases the statutory framework had specific regulated channels for

consideration of the dispute and that informed the result. This is not a discipline case against any particular individual for the conduct of that individual after that conduct has occurred. It is a case about a workplace requirement imposed by the employer that is very much capable of being resolved in the grievance process. [ 26 ] I would add generally that the concept of deferral to arbitration when there is an arbitration agreement is the law of Alberta in other arbitration contexts as well (see EPCOR Power L.P. v.

Petrobank Energy and Resources Ltd ., 2010 ABCA 378 ). [ 27 ] The matter also has some prior history that matters. The unions did grieve the imposition of the vaccination policy. Those grievances were settled and resolved by the affected union(s). Several of the unionized plaintiffs were respectfully of the view that the settlement was inappropriate, and they filed breach of duty of fair representation complaints against their union alleging that their interests were not properly served.

At least one of those complaints has now been formally dismissed. [ 28 ] I express no opinion or finding on the effect of any particular results or decisions that have already been made and I leave those to individual consideration on a case by case basis if they arise. A party cannot generally avoid unfavourable results by starting a new action.

Available appellate review and appropriate judicial review processes might lead to success in some circumstances, but simply starting new actions regarding matters which have already been considered and dealt with is generally not an option. [ 29 ] In the end, the binding law in Canada and Alberta remains Weber , and I must follow Weber and I grant the application to dismiss the Amended Amended Statement of Claim of the unionized plaintiffs as against the corporate defendants in its entirety.

The collective nature of the unionized setting requires that result. [ 30 ] I thank the parties for their very helpful written materials and submissions. They were well presented. If the parties cannot agree on costs they may settle them by appointment before me within three months of release of these reasons. Heard on the 11 th day of January, 2023. Dated at the City of Calgary, Alberta this 25 th day of January, 2023. J. Farrington A.J.C.K.B.A.

Appearances: Grey Wowk Spencer LLP Natalie Johnson and Nielsen Beatty for the Plaintiffs Bennett Jones LLP John Gilmore and Keely Cameron for the Defendants Atco Gas and Pipelines Ltd., Atco Electric Ltd., Atco Energy Solutions Ltd. and CU Inc. Alberta Justice Ryan L. Martin for His Majesty the King in Right of Alberta