Westmoreland v. Gorman, 2003 BCSC 447

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Westmoreland v. Gorman, 2003 BCSC 447 Date: 20030401 Docket: S023141 Registry: Vancouver Between: Don Westmoreland Plaintiff And Shawn Gorman and Seafarer’s International Union of Canada Defendants Before: The Honourable Mr. Justice Cole Reasons for Judgment Counsel for the Plaintiff: J.D. Whyte Counsel for the Defendant Shawn Gorman: In person Counsel for the Defendant Seafarers International Union of Canada: C. Chaichian Date and Place of Hearing: February 18-19, 2003 Vancouver, B.C.

Introduction: [ 1 ] The plaintiff is a marine captain and a member of the Canadian Merchant Service Guild (“Guild”). He is employed with the Washington Marine Group (“Marine”) and claims damages against Shawn Gorman (“Gorman”), a deckhand employed by Washington Marine Group and is a member of the defendant Seafarers International Union (“Seafarers”).

Background: [ 2 ] On the 22nd of November 2001, Gorman wrote a letter to the offices of Marine, the particulars of which were: November 16, 2001 Attn: Steve Thompson, John Armstrong To Whom It May Concern: On the evening of November 16th, 2001 at approximately 2025 hours I was approached the Cates #2 and passed Don Westmoreland, Dave Humphreys and Glen Law. As I was passing them I said, “Have a good evening gentlemen”. Don then asked me if I had got my sunglasses back and I replied “Yes I have, thank you very much”. I was well passed them at this point and continued walking away.

At this point Don charged up to me and said, “Don’t ever leave me a snotty, chicken shit letter like that again”. I stated at the time that the letter he was referring to, was not directed at him or anyone specifically. At this point in time, Don threatened to hit me, was verbally taunting me and was begging for me to hit him. He was approximately 2 inches from my face and was screaming at me. In response I requested that he leave me alone and I attempted to walk away. I managed to put about 15 feet between us when he charged up to me again.

He thought that I had knowledge of damage done to the Cates #2 approximately 2 weeks ago. I told 2 weeks ago in front of Kevin Churney, Gil Nielson and Dave Humphreys that I had no knowledge of any damage done to the Cates #2. He was apparently trying to get some sort of confession out of me. This went on for about 5 minutes where he repeatedly called me a liar. I brought up the discussion of 2 weeks ago about the damage at which point he called me “a

fucking liar” again. He continued screaming at me and was pushing into me with his chest, which I found to be very threatening. I threw my lit cigarette into the water and again attempted to walk again. At this point he accused me of trying to hit him when I threw my cigarette into the water. He resumed the name-calling and abusive language again and called me a “chicken shit” and “big mouth”. Dave Humphreys who was with Glen Law, about 20 feet away were saying “Come on Don, come on” attempting to get Don to leave, I assume. These two individuals heard the whole exchange start to finish.

Don and I were still confronting each other when I commented that “You’re a Captain, you’re acting like a child and you’re being a child”. As he finally left, he remarked “We’ll see who laughs last” and I did not hear what he said after that. Regards, Shawn Gorman [ 3 ] The plaintiff alleges that the allegations were false, defamatory and motivated by malice.

They were published by Gorman and the letter was sent from Seafarers’ office, with a cover letter written on their letterhead, to Marine. [ 4 ] Gorman’s position is that the letter was not defamatory, that the allegations were substantially true and in any event, the contents are protected by qualified privilege. The position of Seafarers is that the plaintiff’s claim is within the exclusive jurisdiction of an arbitrator appointed under the Canadian Labour Code .

In the alternative, Seafarers pleads qualified privilege. [ 5 ] On the 26th of November 2001, the plaintiff wrote to Captain Steve Thompson (“Thompson”), Manager of Personnel Department of Marine denying the allegations that he threaten or hit Gorman, and stating that if he did not receive a written retraction of the allegations and a letter of apology from Gorman and Seafarers by Friday November 30, 2001, he will then take legal action. A carbon copy of the letter was sent to both Seafarers and to Gorman. [ 6 ] When no reply was received, the plaintiff retained Mr. John D.

Whyte, to act on his behalf, and his letter of December 14, 2001 sent both to Gorman, Seafarers and Marine, denied the allegations of assault, setting forth his concern that the letter of November 16 from Gorman was lodged in his permanent personnel file and confirming that Marine would not remove the letter from his file unless it receives a retraction of the letter from Gorman.

The plaintiff demands that the retraction be delivered to the plaintiff no later than Friday January 4th otherwise action for libel will be commenced against both Gorman and Seafarers. [ 7 ] Don McMillan (“McMillan”), Vice-President of Seafarers, met with Gorman in respect to the plaintiff’s solicitor’s letter of the 14th of December 2001.

In view of the fact that there was no overtime or monetary matters in issue, McMillan advised Gorman to abide by the request contained in the letter and to retract his letter of the 16th of November 2001. [ 8 ] On the 25th of January 2000, Gorman hand delivered a note to the plaintiff’s solicitor apologizing for the “unfortunate incident” and stated that he wished to retract any written material that was made during the incident. Gorman said in his evidence at trial that he did not retract the fact that the incident took place because what in fact took place, he said, was true.

Furthermore, he said he only sent the letter dated the 25th of January because he was pressured by his family to do so. [ 9 ] On the 28th of February 2002, the plaintiff’s solicitor wrote a further letter to Gorman advising that the handwritten note retracting the letter had not been received by the deadline, but settlement would still be possible if he signed a letter which was attached and paid the sum of $705.20 in legal expenses by March 7th.

Otherwise, they would commence legal proceedings. [ 10 ] Gorman does not recall receiving the attached letter but said that in any event, he refused to pay the $705.20 because he does not feel that he did anything wrong; he feels that he should not pay for the plaintiff’s expenses. [ 11 ] In June 2002, McMillan had discussions with Thompson from Marine advising that Gorman had decided to withdraw the complaint. On the 13th of June 2002, the letter of complaint was removed from the plaintiff’s file.

On the 17th of June 2002, McMillan sent a letter to Marine confirming that Gorman no longer wishes to proceed with “his grievance of harassment against Captain Westmoreland” (“Westmoreland”) and confirmed that the copy of the complaint has been removed from Westmoreland’s file. The letter then goes on and states: Therefore, the union is hereby withdrawing the above-mentioned grievance but reserves the right to resubmit should Mr.

Gorman not return to a harassment-free workplace. [ 12 ] According to McMillan, they forwarded the complaint to Marine because Gorman requested that it be sent and Seafarers wanted to make sure that no time limits were missed. The position of Seafarers was that this was not a grievance because Seafarers did not think it was something that involved the company (Marine). It was purely between two members of the company.

A grievance does not become such until Seafarers sends a formal letter of grievance. [ 13 ] The plaintiff has been involved in the marine business since 1970 and has been a captain or master since 1973. The first he heard of the November 16th letter from Gorman was when he received a copy of it from Steve Thompson, Personnel Manager of Marine.

He was advised that the letter had gone into his personnel file. [ 14 ] A few days prior to the 16th of November the plaintiff saw a note written by Gorman concerning Gorman’s missing sunglasses that had been left on a ship that Gorman worked on as a deckhand and the plaintiff was the captain.

As the ships work almost continuously, there are two 12-hour shifts but at no time during these events was the plaintiff, the master at the same time that Gorman worked as a deckhand. [ 15 ] According to the plaintiff, on the 13th of November, he was leaving his ship along with Dave Humphreys (“Humphreys”), another master, and Glen Law (“Law”), a deckhand. They were walking along the wharf when Gorman approached them in the opposite direction. The plaintiff says that he asked Gorman if he had found his sunglasses and at that point, Gorman went into a tirade about embarrassing him in front of his peers.

The plaintiff advised him not to leave any more snotty notes on the boat,

Gorman yelled and swore that he can do whatever he wanted to. Apparently Gorman flicked his cigarette and the plaintiff, who did not see exactly what he was doing, thought that Gorman was trying to hit him. He asked Gorman if he was trying to strike him. Gorman replied that if he tried to hit him, he would know it. The plaintiff then started to walk away, Gorman kept yelling and the plaintiff turned around, walked towards the defendant but at no time did he threaten, strike or touch Gorman.

The plaintiff admitted that he raised his voice. [ 16 ] Dave Humphreys recalls the plaintiff asking Gorman whether he found his glasses, telling Gorman that he appreciated if he did not leave any nasty notes on his boat. At that point Gorman started to yell and use foul language towards the plaintiff. At no time did he see the plaintiff touch Gorman. [ 17 ] Glen Law was a member of Seafarers. He recalls Gorman passing the plaintiff, Humphreys and himself, and the plaintiff then turning around and following Gorman for 7-10 feet and the plaintiff telling Gorman not to leave any more notes.

Law does not recall Gorman’s response; did not see any physical contact between the parties. Other than that, Law does not recall very much of what happened. [ 18 ] Gorman’s version of the events was as stated in his letter of November 16, 2001; save and except he stated that the plaintiff threatened to kill him two or three times and call him a bare-faced liar. When asked why he did not put the threat to kill him into his letter, his only reply was he did not know why.

He admitted however that the threat to kill him was more serious than the alleged assault. [ 19 ] Gorman denied going into a tirade and said that he was scared; he was threatened and he was shaken up. He said that he sent the letter to make sure that the company was aware of what had happened and he also wanted his union to be aware of what transpired. [ 20 ] When Gorman gave evidence and when he was cross-examining the plaintiff and the plaintiff’s witnesses, it was apparent that he did not respect authority and the plaintiff in particular. Gorman has carried out a vendetta against the plaintiff.

He refused to remove the letter from the plaintiff’s file when it was suggested to him by Mr. McMillan in late-December or early January. He did not take any steps to remove the letter from the file until the plaintiff retained counsel and incurred costs. [ 21 ] Seafarers did not believe that the statement was true, and they did not have any reason to forward Gorman’s letter. They have total disregard for the interest of the plaintiff, and they forwarded the letter in a reckless manner without concerning or caring whether the statement was true or not. Credibility: [ 22 ] I was most impressed with the plaintiff.

I thought he was fair and objective and did not try to embellish his evidence. Furthermore, the evidence of the plaintiff in respect to the events of the 16th of November is substantiated at least in part by Thompson who I also find was a credible witness. [ 23 ] I am satisfied that Gorman was not a credible witness. I am sure if in fact the plaintiff had threatened to kill Gorman on two or three occasions on the 16th of November 2001, an event Gorman admits is more serious than being hit, then that would have been in his statement.

Gorman, I am satisfied, has a great dislike for the plaintiff and that dislike has turned into a vendetta. I reject the evidence of Gorman whenever it conflicts with that of the plaintiff. Jurisdiction: [ 24 ] The Supreme Court of Canada in Weber v. Ontario Hydro , supra , the Court at ¶51-52 stated: On this approach, the task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether the dispute or difference between the parties arises out of the collective agreement. Two elements must be considered: the dispute and the ambit of the collective agreement.

The question in each case is whether the dispute, in its essential character, arises from the

interpretation, application, administration or violation of the collective agreement… [ 25 ] The Seafarers argued that the essential character of the dispute in this case clearly arises from an

interpretation, application, administration or violation of the collective agreement. It argues that the essential nature of the dispute is the plaintiff’s concerns over derogatory comments placed in his personnel file and his employer’s reaction or potential reaction to those comments. The Seafarers take the position that the contents of a personnel file is a discipline matter which expressly or inferentially arises out of the collective agreement. [ 26 ] The plaintiff argues that the essential nature of the dispute is the libel, and that the letter was merely a secondary issue. He takes the position that the dispute does not arise from the

interpretation, application, administration or violation of the collective agreement, and the court has jurisdiction over the claim. [ 27 ] In Haight-Smith v. Neden (2002), 98 B.C.L.R. (3d) 260 (C.A.), 2002 BCCA 132 , leave to appeal to S.C.C. refused [2002] S.C.C.A. No. 176, the plaintiff, a teacher, sued the principal of her school, and various other staff, for defamation. The court quoted favourably the following passage from Phillips v. Harrison (2000), 2000 MBCA 150 (CanLII) , 196 D.L.R. (4 th ) 69 (Man.

C.A.): Thus, otherwise defamatory statement may be considered to be work related and to be adjudicated pursuant to the alternative dispute mechanism if: 1. the comments concern the employee’s character, history, or capacity as an employee;

2. the comments were made by someone whose job it was to communicate a workplace problem; and 3. the comments were made to persons who would be expected to be informed of workplace problems. [ 28 ] Mendoza v. St. Michael’s Centre Hospital Society (1998), 1998 CanLII 4797 (BC SC) , 53 B.C.L.R. (3d) 177 (S.C.), centered on a dispute between where the plaintiff and defendant had the same employer, but were members of different unions. The defendant wrote comments in an employer communications book provided to the effect that the plaintiff was not doing his job properly.

Further, the defendant made verbal comments to a co-worker questioning the plaintiff’s sexuality. The court concluded that both claims were within the jurisdiction of the court. The comments in the communications book were not made on behalf of the employer and her act could not be attributed to the employer. The comments relating to the plaintiff’s sexuality did not relate to his character or quality as an employee. In both situations, the Board would not be able to make an award against the defendant employee.

The defendant employee was a member of a different union, subject to a different collective agreement, and could not have been said to have been acting on behalf of the employer at the time of the defamation. The court concluded that the Board did not have jurisdiction over the defendant employee in this matter and could not have made a monetary award. [ 29 ] Blanco-Arriba v. British Columbia (2001), 96 B.C.L.R. (3d) 183, 2001 BCSC 1557 per L.

Smith J. at ¶24: It is the essential character of the difference between the parties, not the legal framework in which the dispute is cast, which will be determinative of the appropriate forum for settlement of the issue. [ 30 ] A party is not deprived of an ultimate remedy on the grounds that the remedies available to the arbitrator are different from those available in tort. In Olsen v.

Canada (Correctional Service) 2002 BCSC 594 , Grist J. stated at ¶ 30-31: In assessing whether there would be a loss to the plaintiff in the form of a "real deprivation of ultimate remedy", I note that the cases make clear that the fact that the case may lead to different remedies under one system as opposed to another will not constitute a real deprivation. Here, the remedies under the labour relations regime may be different from those imposed as a remedy associated with a tort claim….

As said in Giorno, and made clear in St.Anne-Nackawic an arbitrator's powers include damages in an appropriate case, but more importantly, and notwithstanding that arbitration awards may not duplicate tort damages, the procedure does provide a means to an ultimate remedy. [ 31 ] In Haight-Smith v. Neden , supra , the court concluded that it did not have the jurisdiction to hear the claims for work-related defamation against members of the collective agreement. However, there were three defendants who were not members of the collective agreement.

The court assessed those claims on the basis of qualified privilege because that was how the issue was argued by the parties and address by the trial judge. The court made the following comment at ¶ 46-47: Three of the respondents are not members of the same union as the appellant. The appellant's claims against them were dealt with by the parties and the trial judge under the rubric of qualified privilege.

That is how they will be dealt with on this appeal as well, but I note that in at least one case, the suggestion is made that Weber applies to the employee's claims whether or not the persons against whom the claims are made are covered by the same collective agreement. Most of the cases following Weber that I have reviewed deal with disputes that arise between members of the same union or between employees and employers or their representatives who are bound by the employee's collective agreement. In Giorno, however, the respondent, Mr.

Pappas, had no managerial responsibility over the appellant and was not an employee covered by the collective agreement. Goudge J.A. nonetheless held (at paras. 26-9): Despite this, given that this dispute arises under the collective agreement the principle in Weber applies.

As Laskin J.A. said in Piko, supra, at para. 13: Where an employee has sued another employee for a workplace wrong, this court has held that bringing an action against a person who is not a party to the collective agreement will not give a court jurisdiction if the dispute, "in its essential character", still arises under the collective agreement. Laskin J.A. was referring to the endorsement of this court in Ruscetta v. Graham, 1998 CanLII 2118 (ON CA) , [1998] O.J. No. 1198 (C.A.), [reported at 36 C.C.E.L. (2d) 177], leave to appeal to the Supreme Court of Canada refused October 15, 1998, [1998] S.C.C.A.

No. 220, and Dwyer v. Canada Post, [1997] O.J. No. 1575 (C.A.) , [summarized 70 A.C. (3d) 816]. These decisions simply reflect the principle in Weber. Where, as here, the essential character of the dispute is covered by the collective agreement, the arbitration process allows the employee to seek an appropriate remedy. While the remedy at arbitration may be against the employer rather than the fellow employee, the remedy is nonetheless real. To preclude the employee from suing another employee for the workplace wrong in such circumstances does not deprive the employee of an ultimate remedy for that wrong.

Rather, it prevents the undercutting of the dispute resolution process that is given exclusive statutory jurisdiction over disputes that arise under the collective agreement. [emphasis added] [ 32 ] The reasoning in Mendoza , supra, focuses on the dispute as between the two employees as opposed to the holistic labour relations focus advocated by Giorno , supra, and Haight-Smith , supra . The position in Giorno , supra , and Haight-Smith , supra , is more consistent with the principles in Weber , supra, including the exclusive jurisdiction model.

If two employees were engaged in a dispute involving work-related defamation, the arbitrator would clearly have exclusive jurisdiction over the dispute. To permit an employee to proceed against an person employed by the same employer, but subject to a different collective agreement, in court for work-related defamation undermines the exclusive jurisdiction of the arbitrator over matters which expressly or inferentially

arise from the collective agreement. [ 33 ] Discipline is a subject matter for grievance. The Guild collective agreement provides: 1.11(

A) Grievance – Any difference concerning the

interpretation, application or operation of this Agreement or any alleged violation thereof, including any question as to whether any matter is arbitrable shall be dealt with without stoppage of work in the following manner: (

i) a regular Officer shall not be disciplined or discharged without just cause. (ii) Should an Officer be required to meet with his employer regarding a disciplinary action he shall be entitled to have a Guild representative in attendance. (iii) Letter of discipline to an Officer covered by this Agreement shall be copied to the Guild. [ 34 ] Disciplinary matters are clearly within the scope of the collective agreement, and are the subject of grievance proceedings.

Placement of the letter on the personnel file is a form of discipline, and its continued presence on the file could have been the subject of a grievance. [ 35 ] The fact that the plaintiff cast the legal framework of the dispute in terms of a defamation claim against parties who are not subject to the collective agreement does not change the fact that the essential nature of the dispute is plaintiff’s discontent at the contents of his personnel file.

Despite the fact that the employer took the position that it would not remove the letter unless Gorman requested it be removed, the policy and the contents of the personnel file were within the control of the employer. [ 36 ] The plaintiff’s letters clearly indicate that he wants the removal of the letter from the file and a letter of apology, and that he will only take legal action if the letter is not retracted. Marine had a policy that it would not remove the letter unless the complainant withdrew the complaint.

A written retraction of the complaint was dated January 25 th , 2002, but the employer did not remove the letter from the file until June 7 th , 2002. In a letter dated June 17 th , 2002, the Seafarers stated that it reserved the right to resubmit the grievance of harassment. [ 37 ] It is clear that the essential nature of this dispute is the continued presence of the letter on the personnel file. Further, it is clear that the employer has control over the contents of the personnel file. [ 38 ] The result of this decision is that the plaintiff will not recover damages in tort against the defendants.

However, I do not accept that that would amount to a real deprivation of ultimate remedy. The remedy the arbitrator is empowered to grant may differ from the remedy available under tort law, but it is no less real. Further, the fact that the remedy may be against the employer as opposed to the fellow employee does not amount to a deprivation of remedy. [ 39 ] I dismiss the plaintiff’s claims on the grounds that the court does not have jurisdiction. Costs [ 40 ] While the defendants were successful in the event, I find that their conduct disentitles them to their costs.

The defendant Gorman’s conduct indicates that he has a personal vendetta against the plaintiff. I did not find him to a be credible witness. The defendant Seafarers forwarded the complaint when there was no basis to do so, and no honest belief in the contents of the letter. Further, the Seafarers reserved the right to reinstitute grievance proceedings upon the removal of the letter from the plaintiff’s file. [ 41 ] Under the circumstances in this case, I find that each party should bear their own costs. “F.W. Cole, J.” The Honourable Mr. Justice F.W.

Cole April 15, 2003 – Corrigendum to the Reasons for Judgment issued by Mr. Justice F.W. Cole advising the following has been brought to my attention. In paragraph 2, last line of page 2, the word “lair” should read “liar”. In paragraph 5, second line, the word “and” should be deleted after “Department of Marine” and on the third line, “or hit Gorman”, the word “and” should be added after the comma after “Gorman”. In paragraph 6, first line, “White” should read “Whyte”; on the second line, the word “send” should be “sent”; and on the last line, the word “liable” should be “libel”.

In paragraph 7, second line, the word “solicitor” should read “solicitor’s”. In paragraph 9, first line, the word “writes” should read “wrote”. In paragraph 11, second last line, the word “compliant” should read “complaint” and the word “Westmorland’s” should read “Westmoreland’s”. In paragraph 14, second line, the word “Gorman” should read “Gorman’s” and in the second last line, the word “plaintiff”, should read “plaintiff”. In paragraph 26, second line, the word “liable” should read “libel”.

In paragraph 28, fourth line, the word “provided” should be deleted. In paragraph 31, last line, the word “47-47” should read “46-47”. In paragraph 36, first line, the word “plaintiff” should read “plaintiff’s”. In paragraph 37, first line, the word “is the” should be inserted after “this dispute”. In paragraph 40, fourth line, the word “compliant” should read “complaint”.