Keith Hartt - v. -, 2023 SKPC 23

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2023 SKPC 23 Date: February 28, 2023 File: 2022-11 Location: Melfort _____________________________________________________________________________ Between: Keith Hartt - and - City of Melfort Keith Hartt For the Plaintiff Abby Holtslander For the Defendant _____________________________________________________________________________ DECISION L.W.

STANG, J _____________________________________________________________________________ Introduction [ 1 ] In his statement of claim filed with the Court on May 4, 2022, the plaintiff claims he was an employee of the defendant for 14 years and that his employment was terminated by the defendant on May 12, 2020.

Although not explicitly stated in his statement of claim, it is clear from supporting documents filed that the plaintiff maintains that he was dismissed from his employment without just cause. [ 2 ] The defendant has not filed a reply but rather has applied to have the plaintiff’s claim dismissed on the basis that this Court lacks jurisdiction to adjudicate the plaintiff’s claim. The defendant asserts that since the essential nature of the plaintiff’s claim falls

within the ambit of a collective agreement this Court has no jurisdiction. The defendant relies on

section 6 - 45 of The Saskatchewan Employment Act , SS 2013, c S-15.1 [the Act ] and related jurisprudence as the basis for its assertion. Issue [ 3 ] The sole issue being addressed in this decision is whether the Court has jurisdiction to adjudicate the plaintiff’s claim. Decision [ 4 ] For the reasons set out herein I find that the issues raised in the plaintiff’s claim are issues that would normally be dealt with, and if necessary adjudicated, pursuant to the terms of the collective agreement applicable to the plaintiff’s employment at the time when the plaintiff’s employment was terminated.

Consequently, this Court is without jurisdiction to adjudicate the plaintiff’s claim and it will be dismissed. Undisputed Facts [ 5 ] The plaintiff was a long-term employee of the defendant.

The defendant terminated the plaintiff’s employment on May 12, 2020. [ 6 ] The plaintiff’s employment was within the scope of a collective agreement between the defendant and The Canadian Union of Public Employees, Local Union No. 777 (the Union), dated the 16 th day of October, 2017, to be in effect from January 1, 2017 to December 31, 2020 (the collective agreement). [1] [ 7 ] On May 14, 2020, the plaintiff submitted a grievance disputing the termination of his employment. [ 8 ] After May 14, 2020, there were some negotiations between the defendant and the plaintiff via representation from the Union, to try and resolve the grievance.

Analysis [ 9 ] Following the termination of his employment, which the plaintiff asserts was improper and without cause, he filed a grievance. The Union then, pursuant to the terms of the collective agreement, embarked upon negotiations with the defendant in an effort to resolve the grievance. The plaintiff alleges that the defendant and the Union came to an agreement whereby he would be financially compensated; but that he never received anything pursuant to this agreement because of the “Negligence and miss conduct [ sic ]” of the defendant. [ 10 ]

Section 6 - 45 of the Act reads as follows: 6-45(1) Subject to subsections (2) and (3), all disputes between the parties to a collective agreement or persons bound by the collective agreement or on whose behalf the collective agreement was entered into respecting its meaning, application or alleged contravention, including a question as to whether a matter is arbitrable, are to be settled by arbitration after exhausting any grievance procedure established by the collective agreement. (2) Subsection (1) does not prevent the director of employment standards as defined in

Part II or the director of occupational health and safety as defined in

Part III from exercising that director’s powers pursuant to this Act .

(3) Without restricting the generality of subsection (2), the director of employment standards may issue wage assessments, issue hearing notices, take action to collect outstanding wages or take any other action authorized pursuant to

Part II that the director of employment standards considers appropriate to enforce the claim of an employee who is bound by a collective agreement. [ 11 ] The defendant asserts that the essential nature of the plaintiff’s claim arises from, and is covered by the application of, the collective agreement. If this is so, then

section 6 - 45(1) of the Act applies and this Court lacks jurisdiction. [ 12 ] In its brief of law, the defendant correctly sets out the applicable jurisprudence. In Lapchuk v Saskatchewan , 2015 SKQB 358 , 468 Sask R 170, at paragraph 23 , Justice Ball wrote: [23] The effect of ss. 6-45(1) of the SEA is to remove the jurisdiction of the court to deal with disputes arising from a collective bargaining agreement. Subject to the statutory exceptions set forth in ss. 6-45(2) and (3), all claims arising from the

interpretation, application or violation of a collective agreement, including questions as to whether claims are arbitrable, must be settled by arbitration conducted in compliance with Division 9, Subdivision 3 (i.e. ss. 6-45 to 6-53 inclusive) of the SEA . The Court of Appeal for Saskatchewan wrote as follows in Lapchuk v Saskatchewan (Highways) , 2017 SKCA 68 , at paragraphs 16 and 17 : [16] In Weber v Ontario Hydro , the Supreme Court adopted what it called the “exclusive jurisdiction” model for determining the effect of final and binding arbitration clauses like s. 6 - 45 . Under this approach, an employee must proceed by arbitration rather than the

courts to resolve a workplace dispute. It holds that the courts lack jurisdiction to entertain a dispute that arises out of the collective agreement, subject only to a residual discretionary jurisdiction in courts of inherent jurisdiction to grant relief not available under the statutory arbitration scheme. [17] The Supreme Court has also made it clear that a dispute will be held to come under the collective agreement if it does so either expressly or inferentially. The determining factor is the essential character of the dispute, not the legal packaging in which it is presented.

See: New Brunswick v O’Leary at para 6; Regina Police Assn.

Inc. v Regina (City) Board of Police Commissioners , 2000 SCC 14 at para 25 , [2000] 1 SCR 360 . [ 13 ] I also agree with the jurisprudence cited in paragraph 29 of the defendant’s brief of law, and the established requirement that, in order to determine if the plaintiff’s claim arises out of the collective agreement, I must consider (1) the essential nature of the dispute and (2) the ambit of the collective agreement. [ 14 ] At its core the plaintiff’s claim is based on his assertion that his employment was terminated by the defendant wrongfully and without cause.

Article 26 of the collective agreement sets out the manner in which the defendant can terminate the employment of an employee. As such, correct or wrongful termination of employment is clearly within the ambit of the collective agreement. [ 15 ] The second aspect of the plaintiff’s claim is his assertion that following the submission of his grievance, the defendant and the Union concluded an agreement to settle the grievance; that this settlement included a requirement that the defendant pay a sum of money to the plaintiff; and that the defendant has not complied with that aspect of the settlement.

I would note that the defendant disputes the existence of a settlement agreement, and asserts that in the absence of a settlement agreement there cannot be any failure to comply with its terms. [ 16 ] If a settlement of the grievance was reached it would have been done in the context of the grievance procedures in the collective agreement, which contemplates possible settlement at various stages of the procedure. I also note that the grievance procedure set out in the collective agreement, at

Article 15.2.3, requires that the grievance specify “The remedy or correction required”. As such, it is my view that the terms and validity of resolution of a grievance achieved by negotiated settlement is something that is within the ambit of the collective agreement. Similarly, the factual existence of a settlement or settlement agreement that may have been concluded during the grievance process is also something that is within the ambit of the collective agreement.

Conclusion [ 17 ] Considering that the essential nature of the dispute is: whether the plaintiff’s termination of employment was done in violation of any terms of the collective agreement, and whether the defendant and the plaintiff agreed to resolve the grievance with a negotiated and binding settlement agreement; and that these matters are within the ambit of the collective agreement, I find that the plaintiff’s claim arises out of the collective agreement. Consequently, by operation of

section 6 - 45(1) of the Act this Court does not have jurisdiction to adjudicate this claim. [ 18 ] The plaintiff’s claim is dismissed. [ 19 ] There will be no order regarding costs. _______________________ Stang, J