Canada Post Corporation v. Snook, 2015 NLCA 49

Date: 20151026 Docket: 14/101 Citation: Canada Post Corporation v. Snook , 2015 NLCA 49 IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR COURT OF APPEAL BETWEEN: CANADA POST CORPORATION, DAVID PARSONS AND CATHERINE READER INTENDED APPELLANTS AND: MARIA SNOOK INTENDED FIRST RESPONDENT AND: CANADIAN UNION OF POSTAL WORKERS, CRAIG DYER AND JAMES GALLANT INTENDED SECOND RESPONDENTS And Docket: 14/102 BETWEEN: CANADIAN UNION OF POSTAL WORKERS, CRAIG DYER AND JAMES GALLANT INTENDED APPELLANTS

AND: MARIA SNOOK INTENDED FIRST RESPONDENT AND: CANADA POST CORPORATION, DAVID PARSONS AND CATHERINE READER INTENDED SECOND RESPONDENTS Coram: Rowe, White and Hoegg JJ.A. Court Appealed From: Supreme Court of Newfoundland and Labrador Trial Division (G) 201401G0556 (2015 NLTD(G) 23) Appeal Heard: May 12, 2015 Judgment Rendered: October 26, 2015 Reasons for Judgment by White J.A. Concurred in by Rowe and Hoegg JJ.A. Counsel: Canada Post Corporation, David Parsons and Catherine Reader Michelle A. Willette Maria Snook Self Represented Canadian Union of Postal Workers, Craig Dyer and James Gallant David J.

Roberts White J.A.: [ 1 ] After finding that Maria Snook’s claims must be arbitrated, the applications judge issued a stay of proceedings instead of striking them out altogether. [ 2 ] Canada Post Corporation, David Parsons and Catherine Reader (the “Employer”) and the Canadian Union of Postal Workers, Craig Dyer and James Gallant (the “Union”) separately apply for leave to appeal, and if leave is granted or unnecessary, appeal the decision of the applications judge.

BACKGROUND [3] Ms. Snook is employed as a letter carrier. For almost twenty years she has had disputes with the Employer and the Union. History [4] Ms. Snook appears to have had five different issues with the Employer and the Union: The 1997 Arbitration [5] In August 1997 Ms. Snook, then a temporary worker, discovered the manager in charge of handing out temporary work hadgiven hours to his son instead of her. The Union head said there was a local agreement allowing the situation. Ms. Snook grieved. Thearbitrator did not award her compensation or restore her seniority.

The 2000 Canadian Industrial Relations Board (CIRB) Complaint [6] In March 2000 Ms. Snook filed a complaint against the Union with the CIRB for representing her poorly in her 1997grievance. The vice-chair of the CIRB said there was no evidence the Union had behaved poorly. The 2001 Human Rights Complaint [7] In 2001 Ms. Snook filed a human rights complaint rooted in the same facts as the 1997 arbitration. The Human RightsCommission found that the allegations fell within the arbitrator’s jurisdiction. The 2004–2005 Lawsuit [8] In 2004 Ms.

Snook sued the Employer and a number of its employees alleging violation of her human rights. In addition torepeating the 1997 allegations, she said the Employer had offered her a job in Labrador City and then—deliberately, intending to applyfinancial pressure—withdrew the offer after Ms. Snook had left her apartment and bought a plane ticket. Hall J. dismissed her claimentirely, concluding that it was within the arbitrator’s jurisdiction (see 2005 NLTD 200). Ms. Snook appealed, but discontinued herappeal. The Current Claim (2014) [9] The current claim (201401G0556) is about medical restrictions (the “Action”).

In her statement of claim Ms. Snook says shecan only work 6% to 33% of a workday, “to be applied on an occasional basis”, but the Employer is ordering her to work 33% of everyworkday, causing flareups. She states that the Employer even suspended her, on one occasion, though the suspension was rescinded andshe was paid for the lost work. Ms. Snook says the Union will not represent her in good faith because it “believes seniority trumps anyrights of injured workers”. She says she cannot bring a grievance without the Union’s support. It is unclear at what stage exactly theUnion did not support her grievance. Ms.

Snook also appears to claim that the Union obstructed her “final appeal with GreatWest/Morneau Shepell on short term disability claim”. What she was appealing is unclear. In any case, she says she was unable toappeal because she would have had to send all her medical documents to James Gallant, the Union’s Regional Grievance Officer, and sherefused because he is not a medical professional. The Order Under Appeal [10] The Union and the Employer applied, under rule 38.01, to set aside Ms. Snook’s statement of claim. The applications judgefound that all Ms.

Snook’s allegations were arbitrable and that he was bound to decline jurisdiction, but that an arbitration might possiblyleave a residual issue for the Court to determine. Instead of setting aside the statement of claim he issued a stay of proceedings. LEAVE TO APPEAL [11] The stay of proceedings is either interlocutory or final. If it is interlocutory, leave to appeal is required. If it is final, leave toappeal is not required. See r. 57.02(1). [12] The difference between final and interlocutory orders was explained by Marshall J.A. in United Food and CommercialWorkers, Local 1252 Fishermen’s Union v.

Cashin et al. (1994), (NL CA), 124 Nfld. & P.E.I.R. 201 (Nfld. C.A.), atpara. 31: [T]he issue whether an order or judgment is to be treated as interlocutory or final depends upon the nature and effect of the disposition. Ifit brought the proceedings at first instance to an end, regardless of whether it actually disposes of the rights between the parties, it isfinal. However, if the disposition’s effect is such that the real matter in dispute between the parties remains to be determined in the veryproceeding from which it issued, the disposition is interlocutory. [13] See similarly Langor v.

Spurrell (1997), (NL CA), 157 Nfld. & P.E.I.R. 301 (Nfld. C.A.); Carroll (Re),2010 NLCA 53. [14] The order in this case raises a nice point. It does not “[bring] the proceedings to an end”. Its failure to end the proceedings isthe nub of this appeal. But nor does it leave “the real matter in dispute between the parties … to be determined in the very proceeding”.

Most of the real matter in dispute will go before a labour arbitrator; the order leaves a tiny window open for the bare possibility thatthese proceedings will ever advance to trial. [15] The classification of orders as final or interlocutory should not be too technical or artificial. The order under appeal ispractically conclusive. The Action has come to a halt and may never resume; the order leaves it hanging indefinitely. I wouldcharacterize the order as final and, as such, leave to appeal is not required.

STANDARD OF REVIEW [16] The applications judge’s decision to impose a stay instead of striking Ms. Snook’s claim was discretionary. The standard ofreview was recently set out by Green C.J.N.L. in Tremblett v. Tremblett, 2013 NLCA 53, 340 Nfld. & P.E.I.R. 135: [3] Because the decision under appeal is a discretionary decision, the standard of appellate review is a deferential one. But thediscretion is not unfettered and is reviewable. Any judicial discretion must always be exercised according to proper legal principle. InLangor v.

Spurrell …, I described the zone of appellate intervention in a discretionary decision of a trial or applications judge this way: [32] … While … discretion must always be exercised judicially upon an evidentiary or other proper basis and according to properprinciples, the applications judge will often have a wide latitude, within the parameters of the applicable principles, to reach a particulardecision according to his or her view of the justice of the particular case. [33] … The court will therefore only interfere with a discretionary order where the judge who made it has exceeded his or herjurisdiction or has failed to apply or has misapplied an applicable principle or made a palpable and overriding error in his or herappreciation of the facts, or the failure to interfere would otherwise cause a manifest injustice.

See Bank of Montreal v. House (H.O.) Ltd.(1976), 10 Nfld. & P.E.I.R. 392 (Nfld. C.A.)… [17] See also Moray Seafoods Ltd. v. Nasco Canada Ltd., 2006 NLCA 29, 256 Nfld. & P.E.I.R. 219, and Eimskip, USA, IcelandicSteamship Inc. v. The Icelandic Steamship Company Limited, 2015 NLCA 17, 365 Nfld. & P.E.I.R. 291. ANALYSIS [18] Arbitration of rights disputes is one of the fundamental features of Canadian labour law. Collective agreements are meant toeliminate work stoppages during the term of a collective agreement and instead resolve disputes between employer and employeeconcerning the

interpretation and operation of a collective agreement through grievance and arbitration. As Estey J. said in St. AnneNackawic Pulp & Paper v. CPU, (SCC), [1986] 1 S.C.R. 704, 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. … [L]abour relations legislation provides a code governing all aspects of labour relations, and … it would offend thelegislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourseto the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks. [19] The fundamental question is “whether the dispute, in its essential character, arises from the

interpretation, application,administration or violation of the collective agreement”: Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929. If itdoes, the Court has no jurisdiction to hear it. [20] The applications judge carefully considered the whole panoply of Ms. Snook’s allegations: wrongful dismissal, interference,harassment, failure to represent in good faith, and conspiracy, amongst others. He observed that all of these causes of action arise out ofMs. Snook’s employment relationship and her collective agreement.

He concluded that the Court has no jurisdiction to hear them; theymust be resolved by an arbitrator under the collective agreement. [21] Normally, these conclusions would justify setting aside the statement of claim. The applications judge entered a stay instead: [15] As discussed with Ms.

Snook and with counsel, in my view the Plaintiff has yet to engage the jurisdiction of the collectiveagreement as mandated by the Canada Labour Code. … [16] … While I cannot speculate as to whether the employer would raise objections to the arbitrator’s exercise of jurisdiction, I wouldassume that, given the history of breakdown in representative relationships between the Plaintiff, the union and the employer, sensitivityto the availability of due process and its engagement would predominate decisions as to the availability of redress for a Plaintiff whoindependently takes steps to preserve access to remedies even if initially in the wrong forum. [17] In my view, I have no alternative but to decline jurisdiction at this time.

On the face of the pleadings and the evidence filed,the Plaintiff must seek relief through the provisions of the collective agreement and the statutory regime governing it that is the CanadaLabour Code.

I cannot at this stage determine if there might be a residual issue for this or another court of competentjurisdiction. [18] Accordingly in the circumstances of this case, while I decline to exercise jurisdiction, I will not grant the specific relief requestedunder Rule 38.01 to dismiss, but I will instead enter a stay of these proceedings until the Plaintiff has exhausted her other remedies asnoted. (Emphasis added.) [22] The applications judge’s reasons for not striking Ms. Snook’s claim can be distilled into three propositions: 1. Ms.

Snook might someday engage the Court’s jurisdiction (though she has not yet). 2. If the Court decides it has no jurisdiction, it will be unable to revisit the issue and hear a subsequent complaint, even if thatcomplaint does engage the Court’s jurisdiction. 3. The Court should leave the courthouse door ajar for Ms. Snook.

[23] Let me analyze these one at a time. Ms. Snook Might Engage the Court’s Jurisdiction Later [24] Someday, with different pleadings, Ms. Snook could engage the Court’s jurisdiction. [25] New facts could demonstrate that the arbitrator is unable to grant the remedy Ms. Snook needs. For example, she might needinterim relief (Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., (SCC), [1996] 2 S.C.R. 495) or a broader range of damages than an arbitrator can grant.

See generally Weber at paragraph54. [26] New facts could also support a new cause of action that does not arise under the collective agreement: 1. The case might take on a criminal aspect. For example, if an employer accuses an employee of a crime, a subsequent maliciousprosecution suit may not fall within the collective agreement: Piko v. Hudson's Bay Co. (1998), (ON CA), 116 O.A.C.92 (C.A.). 2. A complaint against a third party might fall outside the collective agreement, like a union’s complaint against a private investigatorhired by the employer: Campbell v.

Baldwin Agency Security & Investigations Inc. (1999), 93 A.C.W.S. (3d) 276 (Ont. S.C.J.). 3. An arbitrator might decide that some aspects of the complaint, e.g. defamation or nervous shock, fall outside the collectiveagreement: Bentley v. Leonard (1997), 35 C.C.E.L. (2d) 293 (Ont. S.C.J.). [27] These examples are not exhaustive. [28] The applications judge was concerned that, at some point in the future, some unforeseen new facts along these lines might bringMs. Snook within the Court’s jurisdiction. The history of the case amply justifies that concern. Ms.

Snook has been facing off againstthe Employer and the Union since the late 1990s. The dispute has played out within the corporation, her union and before labourarbitrators, the Canadian Human Rights Tribunal, the Canadian Industrial Relations Tribunal, the Federal Court, and the superior courtsin this province. This application is one small

chapter in a long and ongoing saga. It is simply not possible to anticipate what twists andturns might yet happen. [29] But whatever twists and turns may happen, any claim that engages the Court’s jurisdiction must include new facts. Somethingsubstantial has to change to bring Ms. Snook’s dispute within the Court’s jurisdiction. The Consequences of Striking This Claim [30] Litigants cannot bring the same complaints repeatedly and expect different answers. To ensure that decisions have somefinality, attempts to relitigate issues that have already been decided are barred by the principles of res judicata.

It is these principles thatwould determine whether Ms. Snook, having lost this case, would be allowed to bring another similar one. [31] The law of res judicata was recently summarized by Green C.J.N.L. in Guardian Insurance Company of Canada v. RomanCatholic Episcopal Corp. of St. John’s, 2013 NLCA 62, 343 Nfld. & P.E.I.R. 68: [42] It is generally recognized that there are two species of res judicata …: cause of action estoppel and issue estoppel ….

For theformer category, the cause of action in the prior proceeding must be the same (i.e. not “separate and distinct”) from the cause of action inthe current proceeding ….

If the facts relied on to support the cause of action in the prior proceeding constitute substantially the samefacts supporting the cause of action in the current proceeding, the causes of action will be regarded as the same (i.e. not separate anddistinct) for the purposes of cause of action estoppel, even though the actual relief sought in the two proceedings is not the same. … [43] For issue estoppel, on the other hand, the causes of action need not be the same but an issue or question fundamental to thedisposition of the previous litigation must be at issue again in the current litigation …. [44] Where cause of action estoppel is established, the party seeking to relitigate will, subject to limited exceptions, be barred fromretrying the cause of action or any claim or argument which could have been made in the prior action had the party exercised reasonablediligence.

Where issue estoppel is established, the party seeking to relitigate will, subject to limited exceptions, be barred fromchallenging the “material facts and the conclusions of law or of mixed fact and law … that were necessarily (even if not explicitly)determined in the earlier proceedings” …. [32] So, if the Court decides it has no jurisdiction over this case, 1. Issue estoppel will prevent Ms. Snook from attempting to relitigate whether her claims of wrongful dismissal, harassment, and thelike fall within the Court’s jurisdiction. 2. Cause-of-action estoppel will prevent Ms.

Snook from filing another substantially similar claim. Any future claim will have to bebased on a separate and distinct cause of action. 3. Cause-of-action estoppel will also prevent Ms. Snook from reframing her claim by adding facts that she should, with reasonablediligence, have put forward in this proceeding. [33] If new facts emerge that engage the Court’s jurisdiction, then points 1 and 2 will not bar Ms. Snook. Issue estoppel will notapply, because Ms. Snook will be filing a new claim, one over which the Court may have jurisdiction, rather than relitigating her oldclaim.

And cause-of-action estoppel will not apply, because in order for the Court to have jurisdiction over her claims they will have to

be materially different from these ones, even if they involve some of the same facts or events. [34] But what if Ms. Snook’s claim is just missing a few details, facts that do not change the substance of her claim but might engagethe Court’s jurisdiction? For example, what if Ms. Snook already knows that an arbitrator is unable to remedy her complaints? Thenpoint 3 applies, and cause-of-action estoppel may bar her from bringing an otherwise valid claim. Should the Court Leave Its Door Ajar? [35] The effect of the applications judge’s decision is to protect Ms. Snook from cause-of-action estoppel.

Unlike most unsuccessfullitigants, she has been granted an opportunity to try again using facts she should have pleaded the first time around. [36] The applications judge did not point to any special circumstances that might justify another opportunity. He does not appear tohave considered that such is the effect of his decision; he did not analyze res judicata at all. Instead, he reasoned that because Ms. Snookmight raise a residual issue someday her claim should not be dismissed outright. [37] As the analysis above shows, that reasoning is flawed. The possibility that Ms.

Snook might have a claim later is no reason notto strike her claim now. The only effect of the stay is to exempt Ms. Snook from the due-diligence requirement. The applications judgedid not give any reasons for an exemption. None were shown to exist. [38] There is nothing unfair about requiring Ms. Snook to abide by the same rules of res judicata as everyone else. Those rules arenot inflexible or unreasonable.

Even the due-diligence requirement is flexible, as Cromwell J.A. (as he then was) explained in Hoque v.Montreal Trust Co. (1997), 1997 NSCA 153 , 162 N.S.R. (2d) 321 (C.A.): [T]hose issues which the parties had the opportunity to raise and, in all the circumstances, should have raised, will be barred.

Indetermining whether the matter should have been raised, a court will consider whether the proceeding constitutes a collateral attack onthe earlier findings, whether it simply asserts a new legal conception of facts previously litigated, whether it relies on “new” evidencethat could have been discovered in the earlier proceeding with reasonable diligence, whether the two proceedings relate to separate anddistinct causes of action and whether, in all the circumstances, the second proceeding constitutes an abuse of process. (Emphasis in original.) [39] If those rules bar Ms.

Snook from reformulating her claim, it deserves to be barred. CONCLUSION [40] I conclude that leave to appeal is not required and that the applications judge erred in granting a stay. Accordingly, I wouldallow the appeals. For greater certainty, I would dismiss the Action. COSTS [41] I would grant costs to the Employer and the Union both here and below on Column III of the Scale of Costs. ________________________________ C. W. White J.A. I Concur: ________________________________ M. H. Rowe J.A. I Concur: ________________________________ L. R. Hoegg J.A.