r v. Ontario Hydro, 2019 NLCA 71

B.B. (appellant) v. Board of Trustees of the Newfoundland and Labrador English School District (first respondent) and W.P. (secondrespondent) (18/17) Indexed As: B.B. v. Newfoundland and Labrador English School District 2019 NLCA 71 5 C.A.N.L.R. 154 Court of Appeal of Newfoundland and Labrador Welsh, O’Brien and Goodridge JJ.A. October 25, 2019

Summary: B.B. was a teacher employed by the Newfoundland and Labrador English School District. B.B. filed a statement of claim against theSchool District’s Board of Trustees and another teacher, W.P., alleging defamation, breach of confidentially and harassment by W.P. Theclaim also alleged that the Board of Trustee should be held vicariously liable for W.P.’s actions.

The applications judge ordered thestatement of claim to be struck out on the basis that the claims were work-related and had been dealt with through the complaintprocedure under the School District’s Respectful Working and Leaning Environments Policy and the grievance procedure under thecollective agreement, which thereby precluded an action in court. B.B. appealed that decision. Held: Appeal allowed, in part.

Welsh J.A. (O’Brien and Goodridge JJ.A. concurring): A dispute involving teachers, in its essential character, engages the application ofthe collective agreement and would be determined by means of settlement or arbitration. The application of the grievance procedure inthe collective agreement would preclude bringing a separate action in court. Similarly, a work-related complaint laid under the SchoolDistrict’s Policy operates to govern labour relations within the workplace and is therefore part of the comprehensive code governinglabour relations in the School District’s workplace.

Therefore, a separate application in court would be precluded whereby the complaintprocedure under the Policy had been engaged (paragraphs 24-39). The applications judge erred in striking the entirety of B.B.’s statement of claim. In assessing whether the entirety or a portion of thestatement of claim should have been struck out, the test to be applied was whether, on the basis of the facts as pleaded, it was plain andobvious that each claim could not succeed. The applications judge erred by failing to apply that test.

Only the portions of the statementof claim that fell within the scope of the School District’s authority over the collective agreement or the Policy should have been struck(paragraphs 40-45). Cases cited: Sparkes v. Imperial Tobacco Canada Ltd., 2010 NLCA 21, 295 Nfld. & P.E.I.R. 267 GRI Simulations Inc. v. Pro-Dive Oceaneering Co., 2004 NLCA 74, 243 Nfld. & P.E.I.R. 50 Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929 (S.C.C.) St. Anne Nackawic Pulp & Paper Co. v.

Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 S.C.R. 704(S.C.C.) Statutes considered: Public Service Collective Bargaining Act, RSNL 1990, c. P-42, section 39(1)

Labour Relations Act , RSNL 1990, c. L-1,

section 86 Rules considered: Rules of the Supreme Court, 1986, SNL 1986, c.42,

Schedule D, rules 14.24 , 38.01 Counsel: Brian D. Wentzell, for the appellant; Ian C. Wallace, for the first respondent; Irene S. Muzychka Q.C., for the second respondent. The appeal was heard on March 14, 2019 before Welsh, O’Brien and Goodridge JJ.A.

The following judgment was filed on October 25, 2019 by Welsh J.A. for the Court. ______________________________________________________________ Welsh J.A.: [ 1 ] B.B., a teacher employed by the Newfoundland and Labrador English School District, filed a statement of claim against W.P., a teacher also employed by the School District, and against the Board of Trustees. The statement of claim alleges defamation, breach of confidentiality and harassment by W.P., and vicarious liability by the Board of Trustees.

The applications judge ordered the statement of claim to be struck out on the basis that the complaints were work-related and had been dealt with by means of the grievance procedure under the collective agreement, which precluded an action in court. B.B. appeals that decision.

BACKGROUND [ 2 ] The following background includes detail to give context to the appeal and to provide the necessary factual background for assessing whether the applications judge erred. [ 3 ] B.B. and W.P. were teachers employed by the Newfoundland and Labrador English School District (the “School District”) in different schools in the same locale. B.B. is the father of children who were attending the school where W.P. was the guidance counsellor. Due to a series of reciprocating emails in 2011, resulting in conflict, the two were directed to participate in mediation, which was held on November 14, 2011.

This was followed by a memorandum of understanding signed by the parties on November 22, 2011, which was intended to deal with the conflict. [ 4 ] However, on January 22, 2013, W.P. filed a complaint under the School District’s Respectful Working and Learning Environments Policy (the “Policy”) alleging harassment by B.B. An investigation under the Policy led to the following determination: 4. Consideration of the evidence presented and the

definitions and procedures outlined in the policy lead to a conclusion that, while an acrimonious and contentions working relationship clearly existed, there is no evidence to substantiate the allegations of harassment made by [W.P.] against [B.B]. The investigation concludes that there was “Personality and Interpersonal Conflict” but that this does not constitute harassment by [B.B.]. 5. A clear [memorandum of understanding entered into in November 2011 and amended in 2012] exists to govern further contact between [W.P.] and [B.B.] in their roles as Guidance Counselor and parent respectively.

It is the stated expectation of the District that this be followed. [ 5 ] This was followed by a letter dated December 9, 2013, from B.B. to the Director of Education for the School District, in which B.B. advised that he was filing a grievance under the collective agreement to which the Province, the Newfoundland and Labrador School Boards’ Association and the Newfoundland and Labrador Teachers’ Association are parties (the “collective agreement”): … After careful review of all the information that is available, I do hereby wish to inform you that I am filing a grievance against the Newfoundland and Labrador English School Board (previously the Eastern School District for whom you have assumed responsibilities) in accordance with

Article 31: Grievance Procedure. I do hereby contend that my rights as determined in accordance with

Article 12: Termination of Contracts;

Article 6: Employment of Teachers;

Article 10: Disciplinary Action; and

Article 36: Positions of Administrative Responsibility, have been violated by the School Board. … I wish to exercise my right to file a grievance against the School Board in accordance with Clause 31.02, i.e., as a result of the “discovery of the incident giving rise to the grievance”. At the examination for discovery, B.B. acknowledged, without elaboration, that, “The grievance was resolved, yes”.

[ 6 ] On January 14, 2014, B.B. filed a complaint of harassment against W.P. under the School District’s Respectful Working and Learning Environments Policy. In response, W.P. submitted that the complaint could not be dealt with under the Policy because the issues related to B.B. as a parent, not as a colleague or teacher. By letter dated April 18, 2014, B.B. reiterated his position that the conduct documented in his complaint constituted harassment, and that the conduct fell “clearly within the scope of the Policy”.

He gave reasons, stating that he relied specifically on the definition of harassment in the Policy and setting out how W.P.’s actions related to his employment. B.B. also emphasized that he had been treated throughout as an employee of the School District, not as a parent, and that he had been encouraged by School District personnel to contact his representative with the Teachers’ Association. [ 7 ] B.B.’s complaint was subsequently forwarded for investigation pursuant to the Policy.

In the investigation report, W.P’s submission that the complaint was not work-related was rejected, with the conclusion that the matter properly fell within the scope of the Policy: It is clear in WP’s submission that her position is that this complaint should not be investigated under the Respectful Working and Learning Environments Policy. The investigators gave this position due consideration. While it is recognized that WP and BB are not on the same work site, both are employees of the School District.

The intent and scope of the policy is not restricted to colleagues solely in the same workplace but is applicable to the entire School District. In a previous investigation (Complaint 13-0001), WP filed a complaint against BB using the same policy, thus considering him a colleague of the School District. While we acknowledge that BB is a parent, he is also a teacher. Any comment made about him to workplace colleagues, both on site and in the District, has the possible impact of lowering his character to colleagues.

To make a statement about the mental stability of BB as a parent may also be equated with his stability as a teacher in the eyes of colleagues. Unlike “non-colleague parents”, these allegations and criticisms are being made in a work environment. The “non-colleague parents” do not have to go to work everyday where colleagues are questioning their competence and abilities.

Given the scope and intent of the policy for all employees of the School District, regardless of work site, it is the position of the investigators that BB’s complaints fall under the Respectful Working and Learning Environments Policy and will be investigated as such. [ 8 ] The investigation report concluded: Having evaluated each of the seven allegations separately, the authors find: 1. Two breaches of confidentiality related to the investigation (Allegations 4 and 5) 2.

Three potential harassment incidents (Allegations 1, 3 and 7) The breaches of confidentiality have been dealt with during the process of the previously filed harassment complaint [by W.P.] (Complaint 13-0001).

It is recommended that no further action be taken in relation to these items. … The number and nature of the incidents found to be problematic and that undermine B.B.’s professional competency and capability, in this case three over the stated period, are sufficient to support a finding of harassment. [ 9 ] Allegation four dealt with “Statements to Outside Agencies” in which a social worker with Child, Youth and Family Services acknowledged that W.P. advised her that she had filed a harassment complaint against B.B.

The report concluded that this was a breach of confidentiality related to the integrity of the process, and that, in future, parties should sign a confidentiality agreement, but that this conduct was not part of a pattern of harassment. [ 10 ] Allegation five dealt with the “Confidentiality of Investigation Process” in which W.P. confirmed that she told B.B.’s ex-spouse about the harassment complaint.

The report concluded that this was a breach of the confidentiality of the process but noted that W.P. had been reprimanded at the conclusion of the complaint she had filed on January 22, 2013. [ 11 ] Regarding the finding that B.B. had been harassed, allegation one dealt with W.P.’s failure to comply with the amended memorandum of understanding. In particular, W.P. acknowledged that she spoke with staff members about the provision in the memorandum requiring a third party to be present during parent-teacher interviews, although that provision had been removed by amendment of the memorandum.

The investigation report stated: “Our findings indicate that this behavior was demeaning and caused personal humiliation to BB as a colleague and employee of the Eastern School District.” [ 12 ] Allegation three dealt with W.P.’s comment, based on her personal opinion, to School District and school administration staff that B.B. was mentally unstable.

The report concluded that the statement made by W.P., as a colleague, had a direct impact on B.B.’s employment status, contributing to his removal as a school administrator, and resulting in the requirement for B.B. to undergo medical evaluation. [ 13 ] Allegation seven dealt with W.P.’s comment to the School District’s Assistant Director of Education, Human Resources, that B.B. posed a threat to his ex-spouse and her children.

The report concluded that this statement was “vexatious and damaging to BB’s character as a colleague and employee of the School District”. [ 14 ] Despite the findings regarding allegations one, three and seven, the investigation report does not specify recommendations or a remedy. Further, the parties have not identified what, if any, remedy or discipline resulted from the finding of harassment. [ 15 ] On November 14, 2014, B.B. filed a statement of claim against W.P. and the School District.

In applying to have the statement of claim struck out, the School District took the position that the issues between B.B. and W.P were work-related. The applications judge stated the School District’s position to be ( 2018 NLSC 19 ): [11] The Collective Agreement provides for arbitration as the dispute resolution procedure. The English School District argues that any

claims of [B.B.] arising out of the employment relationship should be filed as a grievance under the Collective Agreement.

The [School District] therefore takes the position that the Court has no jurisdiction to adjudicate on the dispute between [B.B.] and the [School District and W.P.]. [ 16 ] In assessing the statement of claim, the applications judge concluded: [3] [B.B.] alleges loss of personal and professional reputation, loss of employment position, loss of income, loss of professional and personal status, emotional harm and mental anguish which resulted from defamatory comments about [B.B] to other English School District members and employees which were allegedly made by [W.P.]. [4] [B.B.] further claims [W.P.] breached the confidentiality of [B.B.] on May 30, 2013 by telling employees of the Department of Child, Youth and Family Services (“CYFS”) and his ex-spouse, that [W.P.] had filed a harassment complaint against [B.B.]. [5] [B.B.] alleges [W.P.] informed the English School District that B.B. followed [W.P.] home from school with intent to harass and annoy [W.P.].

That these actions and statements in turn caused harm to his reputation in the eyes of his employer. [6] [B.B.] further alleges in the Statement of Claim that [W.P.] on October 22, 2013 falsely advised the English School District that [B.B.] was required to undergo anger management counselling, with intent to cause harm to [B.B.] in the eyes of his employer. [7] There are numerous other allegations set out in the Statement of Claim against [W.P.] for which [B.B.] holds the English School District vicariously liable. [8] In paragraph 45 of the Statement of Claim, [B.B.] alleges the impugned conduct of [W.P.] was carried out in her capacity as an employee of the English School District and in most if not all cases, with the knowledge of the English School District. [B.B.] claims against the English School District as being vicariously liable for the actions of [W.P.] because the impugned conduct was done in her capacity as an employee of the English School District. [ 17 ] The applications judge concluded that the complaints and grievances among the parties had been dealt with by means of the grievance procedure and that B.B. was, accordingly, precluded from taking an action in court.

As a result, the statement of claim was struck out in its entirety. ISSUES [ 18 ] This appeal engages two issues: first, whether a different analysis applies depending on whether a grievance has been filed under the collective agreement, or a complaint has been laid under the Policy; and second, whether the applications judge erred in striking out B.B.’s statement of claim in its entirety on the basis that an action in court is precluded.

ANALYSIS [ 19 ] The School District applied under rule 38.01 of the Rules of the Supreme Court, 1986 for a determination on a question of law or fact for the purpose of disposing of B.B.’s action by striking out the statement of claim. Rule 38.01 provides, in relevant parts:

(1) The Court may, on the application of any party or on its own motion, at any time prior to a trial or hearing, (

a) determine any relevant question or issue of law or fact, or both; …

(2) Where in the opinion of the Court, the determination of any question or issue under rule 38.01(1) substantially disposes of the whole proceeding, or any cause of action, … the Court may thereupon order the entry of such judgment or make such order, as is just. [ 20 ] The test for determining whether a statement of claim should be struck in whole or in part has been stated by this Court in the context of rule 14.24(1) of the Rules of the Supreme Court, 1986 , which specifically provides for that remedy: The Court may at any stage of a proceeding order any pleading, … or anything therein, to be struck out or amended on the ground that (

a) it discloses no reasonable cause of action …; [ 21 ] While the application to strike the statement of claim in this case was brought under rule 38, the test for striking out the pleadings would be the same as the test that applies under rule 14.24 . That test is stated in Sparkes v. Imperial Tobacco Canada Ltd. , 2010 NLCA 21 , 295 Nfld. & P.E.I.R. 267 : [15] In assessing whether the pleadings disclose a cause of action, the appropriate test is the same as that applied in an application to strike a statement of claim. That is, it must be plain and obvious the action cannot succeed.

The analysis must be conducted on the basis of the facts as pleaded in the statement of claim. … [ 22 ] In GRI Simulations Inc. v.

Pro-Dive Oceaneering Co. , 2004 NLCA 74 , 243 Nfld. & P.E.I.R. 50 , Mercer J.A., for the Court, wrote: [10] … the basic test on an application to strike a statement of claim was not whether the claim may not succeed but whether it cannot succeed … . [ 23 ] The question at issue in this appeal relates to whether an action in court is precluded by the operation of (1) the grievance procedure in the collective agreement that applies to B.B. and W.P. as employees of the School District, and (2) the complaints procedure in the Policy.

Exclusive Jurisdiction over the Dispute [24] In Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929, the Court discussed principles applicable indetermining whether an action in court is precluded by the operation of the provisions of a collective agreement.

McLachlin J., for theCourt on this issue, considered three options: concurrent jurisdiction, overlapping jurisdiction, and exclusive jurisdiction, and adopted thethird. [25] One rationale on which concurrent jurisdiction was rejected is that legislation such as the Labour Relations Act and the PublicService Collective Bargaining Act, as well as collective agreements incorporating grievance and arbitration procedures are intended toprovide a comprehensive code governing labour relations in the workplace. In Weber, McLachlin J., relying on the decision in St. AnneNackawic Pulp & Paper Co. v.

Canadian Paper Workers Union, Local 219, (SCC), [1986] 1 S.C.R. 704, explained whyan action in court would be precluded: [41] … [T]o allow concurrent actions in the courts would be to undermine the purpose of the legislation (at pp. 718-719). The collective agreement establishes the broad parameters of the relationship between the employer and his employees.

This relationshipis properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which itarises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts atcommon law. … The more modern approach is to consider that labour relations legislation provides a code governing all aspects oflabour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees onwhose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which thelegislature has not assigned these tasks. [Emphasis added.] Estey J. concluded, at p. 721, that subject to a residual discretionary power in courts of inherent jurisdiction over matters such asinjunctions, concurrent court proceedings were not available. [26] McLachlin J. added that “simply framing the action in terms of the tort of conspiracy would not be sufficient to take the actionoutside the realm of the collective agreement” (paragraph 42).

She explained: [43] Underlying both the Court of Appeal and Supreme Court of Canada decisions in St. Anne Nackawic is the insistence that theanalysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the disputebetween the parties, not on the basis of the legal issues which may be framed.

The issue is not whether the action, defined legally, isindependent of the collective agreement, but rather whether the dispute is one “arising under [the] collective agreement.” Where thedispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it liesexclusively with the labour tribunal and the courts cannot try it. (Underlining in the original, italics added.) [27] In other words, when assessing whether an action in court is precluded, “what matters is not the legal characterization of theclaim, but whether the facts of the dispute fall within the ambit of the collective agreement” (Weber, at paragraph 44).

Thatconsideration underlies the Court’s rejection of overlapping jurisdiction. McLachlin J. explained: [49] While more attractive than the full concurrency model, the overlapping spheres model also presents difficulties. Insofar as it isbased on characterizing a cause of action which lies outside the arbitrator’s power or expertise, it violates the injunction of the Act andSt.

Anne Nackawic that one must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute. … (Emphasis added.) [28] Finally, in adopting the exclusive jurisdiction model, McLachlin J. considered the question of when a dispute may be said to ariseout of a collective agreement: [52] In considering the dispute, the decision-maker must attempt to define its “essential character” … . The fact that the parties areemployer and employee may not be determinative.

Similarly, the place of the conduct giving rise to the dispute may not be conclusive;matters arising from the collective agreement may occur off the workplace and conversely, not everything that happens on the workplacemay arise from the collective agreement … . In the majority of cases the nature of the dispute will be clear; either it had to do with thecollective agreement or it did not. Some cases, however, may be less than obvious. The question in each case is whether the dispute, inits essential character, arises from the

interpretation, application, administration or violation of the collective agreement. (Emphasis added.) [29] Further, regarding the exclusive jurisdiction model: [51] On this approach, the task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether thedispute or difference between the parties arises out of the collective agreement.

Two elements must be considered: the dispute and theambit of the collective agreement. (Emphasis added.) [30] In applying these principles to this appeal, it is necessary to consider the nature of the allegations in B.B.’s statement of claim inlight of the facts and the dispute underlying the grievance B.B. filed against the School District under the collective agreement and thecomplaint he filed against W.P. under the Policy. Accordingly, to set the stage for the analysis, it is necessary to consider the scope andeffect of both the collective agreement and the Policy.

Scope of the Collective Agreement and the Policy

[31] The scope and effect of the collective agreement and the Respectful Working and Learning Environments Policy have particularrelevance in this appeal because B.B. submits that his involvement in the dispute was as a parent, not as a teacher and, therefore, not asan employee of the School Board. [32] The analysis begins with a review of the relevant provisions of the collective agreement.

Article 31 provides for a grievanceprocedure where a teacher files “a grievance over a matter which is within the scope of authority of a School Board” (article 31.02). Agrievance is defined in

article 42.01(e): “Grievance” means a dispute over the

interpretation, application, administration, or alleged violation of this Collective Agreement. [33] Articles 31.03 to 31.06 set out a procedure directed to achieving a settlement of the grievance. Where settlement is not achieved,provision is made for arbitration. Pursuant to

article 31.07: If the decision of the Director of Education, … does not result in settlement of the grievance, the teacher … may, with the writtenconsent of the [Teachers’ Association], submit the grievance to arbitration in accordance with the procedure set forth under

Article 32. [34] The grievance procedure is binding on the parties to the collective agreement pursuant to

article 32.09: All parties bound by this Agreement shall comply with these provisions for final settlement of a grievance and they shall comply with thedecision of an Arbitration Board appointed in accordance with these provisions and do or, as the case may be, abstain from doinganything required by that decision. (Emphasis added.) [35] These provisions are consistent with the approach to labour relations adopted in provincial legislation. Section 39(1) of thePublic Service Collective Bargaining Act, RSNL 1990, c.

P-42, provides for arbitration in a workplace-related grievance: A collective agreement which does not contain provisions for final settlement, by arbitration or otherwise, of all differences between theparties to or persons bound by the agreement or on whose behalf it was entered into, where those differences arise out of theinterpretation, application, administration or alleged violation of the collective agreement, including a question as to whether a matter isarbitrable, shall be considered to contain those provisions set out in subsection 86(2) of the Labour Relations Act, … The provisions in

section 86 of the Labour Relations Act, RSNL 1990, c. L-1, are substantially the same as those contained in

article 32of the collective agreement. [36] The effect of the above articles of the collective agreement is to provide components of a comprehensive code governing labourrelations in the School District’s workplace. It follows that a dispute involving teachers that, in its essential character, engages theapplication of the collective agreement would fall within the scope of authority of the School District and would be determined by meansof settlement or arbitration. Judicial review would be available to challenge a decision of an arbitration board (Weber v.

Ontario Hydro, (SCC), [1995] 2 S.C.R. 929, at paragraphs 54 and 55). Applying the principles discussed in Weber, the application ofthe grievance procedure in the collective agreement would preclude bringing a separate action in court. [37] The Respectful Working and Learning Environments Policy was adopted by the Eastern School District to deal with harassmentby its employees, including teachers.

Under the Policy, an employee may file a complaint, which is defined to mean an “allegation ofharassment or discrimination submitted in writing to the District.” Harassment is broadly defined in the Policy to include: Any inappropriate behaviour directed at, or offensive to, any employee and that demeans, intimidates, belittles or causes personalhumiliation or embarrassment; … Any behaviour or conduct that is known, or ought reasonably to have been known, to be unwelcome, objectionable or offensive toanother individual. … The following may constitute harassment/discrimination: Criticizing an employee in public. … Statements damaging to a person’s reputation. … [38] A complaint may be dealt with by means of formal mediation, conflict resolution services, the employee assistance program, orformal investigation: The Human Resources Manager or Senior Education Officer will determine, through discussion with the employee, the appropriatecourse of action.

This may include the provision of formal mediation or conflict resolution services, referral to [the employee assistanceprogram] or referral to formal investigation. When a formal investigation is undertaken:

Where it is determined that there has been harassing or discriminating behaviour on the part of a district employee …, corrective or disciplinary measures may be taken, up to and including termination of employment … . (Emphasis added.) [ 39 ] The Policy is not part of, and has not been incorporated by reference into, the collective agreement. However, in light of the above provisions, particularly the resolution procedure and possible remedies, I am satisfied that the Policy is part of the comprehensive code governing labour relations in the School District’s workplace.

That is, similar to a grievance under the collective agreement, a work-related complaint laid under the Policy operates to govern labour relations within the workplace. As such, the Policy engages application of the principles discussed in Weber . Applying those principles, a separate action in court would be precluded, subject to an analysis of the nature of the dispute.

Nature of the Dispute [ 40 ] The next step in the analysis is to define the essential nature or character of the dispute to determine whether it is a matter that arises from the collective agreement or the Policy and is within the scope of authority of the School District, with the result that an action in court is precluded.

That assessment requires consideration of the specific allegations in the statement of claim in relation to the two defendants, the School District and W.P. [ 41 ] B.B. submits that the applications judge erred by failing to recognize that his statement of claim relates to his position as a parent, not as a teacher. That distinction has been a fundamental factor throughout the dispute, beginning in 2011, and is a consideration in characterizing the legal nature of the dispute.

That is, from a legal perspective, if the dispute does not relate to B.B. as a teacher, the collective agreement and Policy would have no application and an action in court would not be precluded. [ 42 ] To the extent that the effects of the conflict are work-related, the dispute between B.B. and W.P. would be characterized, not as a matter between teacher and parent, but as a matter falling within the scope of the collective agreement and the Policy, and subject to the grievance or complaint procedure.

On this point, I reiterate the comments in the 2014 investigation report under the Policy, cited above, and with which I agree: While it is recognized that WP and BB are not on the same work site, both are employees of the School District. The intent and scope of the policy is not restricted to colleagues solely in the same workplace but is applicable to the entire School District. In a previous investigation (Complaint 13-0001), WP filed a complaint against BB using the same policy, thus considering him a colleague of the School District. While we acknowledge that BB is a parent, he is also a teacher.

Any comment made about him to workplace colleagues, both on site and in the District, has the possible impact of lowering his character to colleagues. To make a statement about the mental stability of BB as a parent may also be equated with his stability as a teacher in the eyes of colleagues. Unlike “non-colleague parents”, these allegations and criticisms are being made in a work environment.

The “non-colleague parents” do not have to go to work everyday where colleagues are questioning their competence and abilities. [ 43 ] In assessing whether the entirety or a portion of B.B.’s statement of claim should be struck out, it is necessary to consider each paragraph separately. The applications judge erred when he struck out the entire statement of claim without doing that necessary analysis.

Only those portions of the statement of claim that rely on the essential character of the dispute as falling within the scope of the School District’s authority over the collective agreement or the Policy may be struck. To the extent that the allegations fall outside that scope, the parties have not provided another basis on which to strike any remaining portions of the statement of claim. The test to be applied is whether, on the basis of the facts as pleaded, it is plain and obvious that the claim cannot succeed.

The applications judge erred by failing to apply that test. [ 44 ] Applying the above principles, the following paragraphs of the statement of claim would be struck out. In its essential character, each of these claims is grounded in the dispute resolution process to which the collective agreement and Policy apply, with the result that it is plain and obvious that the claims cannot succeed: 1. Paragraph 9 – allegations communicated to other employees and School District officials regarding B.B.’s aggression towards W.P.; 2.

Paragraphs 13 and 14 – requirement that B.B. attend mediation in 2011, and application of the memorandum of understanding; 3. Paragraph 15 – B.B.’s embarrassment as a result of restrictions imposed on him using the employment-related process; 4. Paragraphs 24, 25, 27 and 28 – allegations communicated to School District officials by W.P. that B.B. was ‘mentally unstable’, and that she felt threatened by him; 5. Paragraph 26 – B.B.’s demotion due to W.P.’s statements; 6. Paragraphs 29 and 30 – allegations regarding application of the “lock down” policy of the school; 7.

Paragraph 35 – just the last sentence which relates to the allegations of causing “harm to [B.B.] in the eyes of his employer”; 8. Paragraph 36 – statements by W.P. to School District officials that B.B. posed a threat to his children and should lose custody of them; 9. Paragraph 42(a) – regarding B.B.’s employment and career advancement; 10. Paragraph 43(b) – regarding B.B.’s loss of employment position; and 11. Paragraph 46A(2) – regarding B.B.’s lost income. [ 45 ] Applying the test for striking out pleadings, the parties have not provided a basis on which to conclude that it is plain and

obvious that the remaining claims cannot succeed. Due to deletion of the above paragraphs, further consequential amendments to the statement of claim may be required.

SUMMARY AND DISPOSITION [ 46 ] In the result, I am satisfied that the applications judge erred by striking out the statement of claim in its entirety. [ 47 ] For the above reasons, I would allow the appeal in part. I would strike out the claims as set out in paragraph 44, above. I would grant B.B. leave to make consequential amendments to the statement of claim. Given the mixed success of the parties, I would order each to bear their own costs of the appeal. Appeal allowed, in part.