Haynes v. Government of Nunavut, 2022 NUCJ 15

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: Haynes v. Government of Nunavut, 2022 NUCJ 15 Date: 2022-04-12 Docket: 22-18-198 CVC Registry: Iqaluit Appellant: Dr. Janet Haynes -and- Respondent: Government of Nunavut __________________________________________________________________ Before: Justice Lyons Counsel (Plaintiff): Self-Represented Counsel (Defendant): C.

McNicol Location Heard: Iqaluit, Nunavut Date Heard: March 15, 2022 Matters: Application seeking relief pursuant to Rule 129 to dismiss the plaintiff’s action, or in the alternative, to strike out the statement of claim of the plaintiff. REASONS FOR DECISION (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] This is a motion brought by the defendant, the Government of Nunavut (“GN”), to dismiss the plaintiff’s action, or in the alternative, to strike out the statement of claim of the plaintiff. The GN seeks its relief pursuant to Rule 129 asserting the Nunavut Court of Justice (“NCJ”) does not have jurisdiction over the subject matter of the claim. II. FACTS [ 2 ] The plaintiff, Dr. Janet Haynes (“Dr. Haynes”), is an impressively credentialled social worker having obtained the following professional designations: a Bachelor of Social Work (Honours); a Master of Social Work; and a PhD.

In August 2015, Dr. Haynes submitted a job application to the GN expressing interest in being considered for the role of Supervisor of Children and Family Services in Gjoa Haven, Nunavut. The position, reference no. 17-502424, required the successful candidate to have a bachelor’s degree in social work. Dr. Haynes was qualified for the position and was ultimately successful in competing for the job. [ 3 ] The position was for a three-year term running from January 4, 2016, to January 4, 2019. Dr.

Haynes’ salary, according to the letter of offer (the “employment offer”) provided to her on November 30, 2015, was set at step 1 of pay range 18 of the GN pay grid. This equated to $93, 951.00 per year with a northern living allowance of $26, 354.00. [ 4 ] The employment offer, tendered as Exhibit “C” to Dr. Haynes’ affidavit of October 29, 2021, attached the job description for position 17-502424. It did not include an organizational chart of the GN department Dr. Haynes was being hired into. [ 5 ] Through the employment offer the GN advised Dr.

Haynes that she would be responsible for the duties and responsibilities as stated in the job description. The offer also advised that additional duties and responsibilities may be assigned to Dr. Haynes by her supervisor. [ 6 ] The employment offer stated the employment relationship would be governed by the Collective Bargaining Unit. The employment offer also stated Dr.

Haynes would be on probation for a period of 12 months and that her employment could be terminated at any time during the probationary period for any of the following causes: • Any material breach of the provisions of the employment agreement by Dr. Haynes. • Any falsification or material omission of information or documents submitted by Dr. Haynes for the purposes of the employment agreement, including but not limited to, application form, cover letter, resume, certificates. • Any serious violation of any local, territorial or federal law, including,

an act of dishonesty, such as, embezzlement or theft by Dr. Haynes. • Any intentional or grossly negligent disclosure of the Employer’s confidential information by Dr. Haynes. • Consistent poor performance on Dr. Haynes’ part, after being advised of the required standards and given reasonable opportunity to improve the performance. • Any omission, commissions or other conduct by you, which would constitute cause at law, in addition to the above specified clauses.

[ 7 ] Dr. Haynes agreed with the terms of her written employment offer and accepted the position. Dr. Haynes had applied for the position while residing in Duluth, Minnesota. Upon acceptance of the offer, she moved her belongings and her life to Gjoa Haven and took residency in GN staff housing prior to commencing work in January 2016. [ 8 ] On January 15, 2016, less than two weeks after starting in the position, Dr. Haynes communicated, via email, with Ann Rose Kerkovius, Regional Manager of Child & Family Services. The purpose of the communication was to advise that Dr.

Haynes wished to discuss a serious contractual issue. Dr. Haynes’ concerns related to her being informed on January 8, 2016, after starting in the position, that she would be supervising both Kugaaruk and Taloyoak in addition to Gjoa Haven. Dr. Haynes maintained the supervision of the additional two (2) communities was never mentioned to her during the interview or in the employment offer. It is intimated that should such representations have been made further negotiations relating to her employment, including salary, would have needed to take place. [ 9 ] From January through May 2016 Dr.

Haynes continued to communicate with both the GN and the Nunavut Employees Union (“NEU”) in aid of seeking assistance with correcting the contractual issue impacting her employment. Dr. Haynes communicated with her regional manager, her union representative, Director of her department, the NEU President, and the Executive Director and Regional Manager of Human Resources to rectify the contractual issue. [ 10 ] Dr. Haynes’ communications on the contractual issue appear to have been responded to with some empathy but little substance. Dr.

Haynes’ regional manager, in an email dated January 25, 2016, acknowledged that the supervision of the additional communities should have been addressed in the interview “prior to your accepting the employment…” Despite this acknowledgement, the GN refused to alter the contract to take into consideration the additional communities. [ 11 ] Dr. Haynes has alleged that the NEU advised her that the issue of the supervision of the additional communities should have been a point of negotiation at the contractual stage. The NEU is alleged to have advised Dr.

Haynes that contractual negotiations did not fall within relief available under the collective agreement and consequently the NEU refused to file a grievance on her behalf on this issue. [ 12 ] On May 11, 2016, the GN terminated Dr. Haynes’ employment on probation. There is no evidence in the materials filed indicating which of the bulleted points listed in the employment offer were the grounds justifying probationary termination. Attached as Exhibit “D” to the affidavit of Hillary Burns, Manager of Employee Relations, is the Rejection of Probation letter sent to Dr.

Haynes by Jeff Chown, then Comptroller General of Nunavut. [ 13 ] The letter reads: Dear Ms. Haynes, The Deputy Minister of Family Services has recommended that you be rejected on probation from your position as Supervisor, Children and Family Services in Gjoa Haven, NU for the reason of unsuitability. Your appointment commenced January 4 th , 2016, and you are on a 12 month probation. After reviewing the information provided to me, I have decided to accept the recommendation of the Deputy Minister of Family Services and terminated your employment with the Government of Nunavut effective immediately.

Please note that since you have been rejected on probation, you will be ineligible for applying for employment with the Government of Nunavut for a period of 2 years. Please ensure that you contact your Benefits Officer so that you can be advised of your pension and insurance options. [ 14 ] Dr. Haynes contacted the union again on May 20, 2016, this time to advise of her termination. The NEU communicated to Dr. Haynes that it would not be able to assist her in filing a grievance for the termination.

[15] In a responding May 20 email to Dr. Haynes, President of the NEU Bill Fennell stated: Ms. Haynes, As I explained to you on the phone it is near impossible to win a grievance for rejection on probation, I was not under the impression youdid not want to proceed with a grievance. As I told you even if you do file ones (sic) once it goes to arbitration PSAC will not proceed asit is not winnable. After our conversation of last week, I understood you wanted me to approach Employee Relations and ask them to pay for your removal. I informed you that they would likely want you to sign a memorandum of understanding.

You said to go ahead with this but if the MOUstated you could not take legal action or file a grievance you would not sign it as you intend to take legal action. I must inform you thatyou cannot both file a grievance and take action through the legal system. You must choose one or the other. I suggested to youthat you should leave Gjoa Haven as it was no doubt a drain on any savings you may have at this time. In the end I agreed to go to Employee Relations and try to negotiate your removal. I have had conversations with the Director ofEmployee relations and Job Evaluation.

I will speak to them again if possible today if not early next week. In the meantime, I would again urge you to take your possessions back to your home base and to limit the cost of the hotel in Gjoa Havento you. [16] Dr. Haynes’ termination 4-months into her three-year term resulted in her being prevented from applying for another GN positionfor two years. She lost her GN housing and was out of pocket for moving expenses. Prior to being terminated, Dr.

Haynes was alsoprohibited from applying for another GN job while she was on probation. [17] Subsequent to being advised by the NEU that her matter was contractual and not related to the Collective Agreement, and afterattempting to file a grievance through the NEU to no avail, Dr. Haynes sought relief by commencing this action in the NCJ. III. ISSUES [18] The defendant’s motion raises the following issue: A. Should the plaintiff’s action be dismissed for want of jurisdiction? IV.

POSITIONS OF THE PARTIES [19] The defendant submits that “the matters in dispute are governed by the Collective Agreement and remedies must be sought underthe Collective Agreement through the grievance process, not in Court.” The defendant has submitted that Rule 129(1)(

b) of the Rulesallow this court, at any stage of proceeding, to order that the action be stayed or dismissed. [20] The defendant relies upon Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929 as authority for the propositionthat “where a claim may properly be advanced under the grievance/arbitration process in a collective bargaining agreement, that claimmay not be advanced in court, either alternatively or additionally. [21] The plaintiff disputes that the contractual dispute falls under the Collective Agreement and as such states that she is not preventedfrom prosecuting the claim in the NCJ. Relying on the reasoning of the British Columbia Court of Appeal in Wainwright v. Vancouver

Shipyards Co. Ltd., (BC CA) Dr. Haynes asserts that her breach of contract claim arises out of “a contract governed bycommon law principles” and not the Collective Agreement. V. RULE 129 [22] Rule 129 states: A. The Court may, at any stage of a proceeding, order that:

a) Any pleading in the action be struck out or amended, on the ground that: (

i) It discloses no cause of action or defence, as the case may be, (ii) It is scandalous, frivolous or vexatious, (iii) It may prejudice, embarrass, or delay the fair trial of the action, or, (iv) It is otherwise an abuse of the process of the Court; and

b) The action be stayed or dismissed or judgment be entered accordingly. [23] It is not for the Court, at this stage of proceedings, to determine the merits of Dr. Haynes’ legal claims. The Court received fromthe parties, out of necessity, lengthy affidavits detailing the subjective portrayals of the employment relationship and contract formationbetween plaintiff and defendant. However, it would ultimately be left to the trial judge to determine liability and potential damagessuffered by the plaintiff if this motion is not successful.

For present purposes, the evidence submitted is used only in the determination asto whether the moving party has proven, on a balance of probabilities, that it is plain and obvious the action should be dismissed orstruck on account of a lack of this Court’s jurisdiction. This is a significant burden for any moving party. VI. ANALYSIS A. Is it plain and obvious that the claims made by the plaintiff are within the purview of the collective agreement?

What is theessential character of the dispute? [24] I am not satisfied that it is plain and obvious the claims made by the plaintiff are within the purview of the Collective Agreementand outside of this Court’s jurisdiction. As such, I must dismiss the defendant’s motion to strike as brought under Rule 129. [25] There is no shortage of jurisprudence touching upon the plain and obvious test when determining jurisdiction of a superior court in a labour dispute and the consequent utilization of Rule 129[1] to dismiss such a claim. In A-Channel Edmonton v.

C.E.P., 2003 ABQB841 , Justice Belzil stated: The Alberta Court of Appeal, in Young Estate v. Transalta-Utilities Corp., 1997 ABCA , 1997 ABCA 349 , [1997] A.J.No.1114, in paras 16 to 18, commented on Rule 129 applications where it is alleged that a Court’s jurisdiction has been ousted: 16 Rule 129 does not refer specifically to situations where it is alleged that the court’s jurisdiction has been ousted as does thecorresponding Ontario rule: R. 21.01(3)(a).

It is appropriate, however, to apply under Rule 129 where the jurisdiction of the Courtis challenged on the ground that another forum has exclusive jurisdiction: Stevenson and Cote, Alberta Civil Procedure Handbook,1998, p. 83. 17 The Amended Statement of Claim should not be wholly or partly struck out under Rule 129 unless it is beyond doubt or plain

and obvious that the claims made on behalf of Young are within the purview of the collective agreement and their resolutionexclusively reserved to the grievance and arbitration procedure: See Cerny v. Canadian Industries Limited et al, (ABCA), [1972] 6 W.W.R. 88 (Alta. A.D.), and Pearson v. The Canadian Radio-Television and Telecommunications Comm., 1997 ABCA276 , [1997] A.J. No. 849 (C.A.), and cases cited therein. [26] There is also an abundance of case law establishing when the Court’s jurisdiction should be ousted in favour of a collectiveagreement. In Abrams v.

Oishi, 2009 ABQB, Master Hanebury summarized the law on this issue as follows: Case Law considering Court’s Jurisdiction in Labour Relations Issues [31] A long line of cases before the Supreme Court of Canada have resulted in the principle that the courts will defer to thecomprehensive legislative schemes provinces have put in place for labour relations. That court has upheld a single jurisdictional model,while recognizing the existence of a discretionary residual jurisdiction of the courts to hear cases in unusual circumstances. [32] In St. Anne Nackawic Pulp & Paper v.

CPU (SCC), [1986] 1 S.C.R. 704, the court held that it has nojurisdiction to consider claims arising out of rights created by a collective agreement. The grievance and arbitration procedures providedfor in the legislation and in the terms of the collective agreement provide the exclusive recourse open to the parties to the agreement forits enforcement. [33] In Weber v. Ontario Hydro (SCC), [1995] 2 S.C.R. 929, the court set out the analysis to be undertaken todetermine whether a matter falls within the collective agreement.

The court said that “the issue is not whether the action, defined legally,is independent of the collective agreement, but rather whether the dispute is one ‘arising under [the] collective agreement’”. When thedispute arises, either expressly or inferentially, under the collective agreement, then the jurisdiction to resolve it lies exclusively with thelabour tribunal and the courts have no jurisdiction. [34] To determine where jurisdiction lies, the decision maker must define the “essential character” of the dispute. In each case thequestion is whether, in its essential character, the dispute arises from the

interpretation, application, administration or violation of thecollective agreement. Constructive dismissal, noted the court, is a claim which the courts have found to be within the collectiveagreement and subject to its terms. Finally, the court in Weber noted, there is a remaining residual jurisdiction left with the courts incertain circumstances to consider a dispute subject to a collective agreement, such as where the necessary remedy cannot be granted byan arbitrator. [27] Dr. Haynes’ case at trial will be determined on the facts admitted into evidence.

The legal significance of the job advertisement,representations made during the job interview and afterwards, omissions to the job offer, material reliance on the contract as agreed to,will all play a role in determining what, if any, liability, and what, if any, damages, will flow from the alleged breach of contract. [28] The facts outlined above in this decision are taken at face value on this motion and are not held to any scrutiny at this interlocutorystage. It is precisely for this reason that motions to strike are uphill and difficult battles for applicants in many cases. [29] Justice S.M.

O’Brien, in Cassaday v. Corus Entertainment Inc., 2019 ONSC 2561 articulates this sentiment succinctly atparagraphs 10 and 11: [10] The motion to strike is a tool that must be used with care. A court should only strike out a claim or dismiss an action in plainand obvious cases, and where the court is satisfied “the case is beyond doubt.” (R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 SCR 45 at para 21; Hunt v. Carey Canada Inc., (SCC), [1990] 2 SCR 959, at para 33). Further, atthe interlocutory stage, courts should not dispose of matters of law that are not fully settled in the jurisprudence.

Such issues should bedecided at trial on the basis of a full evidentiary record. (Reynolds v. Smith, 2007 ONCA 166, at para 13). [11] In this case, in my view, the jurisprudence is not fully settled. Moreover, the cases appear to turn on their facts, meaning that

the availability of a full evidentiary record is important. [ 30 ] The applicant correctly relies on Weber in support of its position that issues arising under the Collective Agreement are within the exclusive jurisdiction of arbitration. I would not have had any difficulty granting a motion to strike had the evidence tendered on the motion shown, plainly and obviously, that Dr. Haynes’ dispute was one that arose from the

interpretation, application, administration, or violation of the collective agreement. I will now discuss why I have found the defendant has failed the Weber test. VII. ESSENTIAL CHARACTER [ 31 ] The statement of claim, filed by Dr. Haynes’ as a self-represented litigant, describes how the dispute originated at a time when the contract of employment was being negotiated, prior to Dr. Haynes having any ties to, or protection under, the Collective Agreement. Dr. Haynes has pled that the employment offer provided to her failed to include an organizational chart which would have informed Dr.

Haynes that three communities would be under her supervision, not just Gjoa Haven. Dr. Haynes has alleged the GN’s omission resulted in a breach of contract and consequently damages being suffered. [ 32 ] The way in which Dr. Haynes has framed her pleadings, tying the dispute to the failure of the GN during the bargaining stage of the hiring process to advise her of the extent of her role, alleviates concern the Court is treading on the exclusive jurisdiction of the collective agreement. The essential character of the dispute, as pled, appears to be one arising from the formation of the contract.

Put another way, it is not plain and obvious that the dispute relates solely to the

interpretation, application, administration, or violation of the collective agreement. [ 33 ] The defendant/applicant acknowledged that this was a breach of contract case at paragraph #7 of its pre-hearing brief where it states: the Plaintiff filed a Statement of Claim against the Defendant seeking various losses and damages stemming from the alleged breach of the employment contract and rejection on probation. [ 34 ] There is an inevitable appearance of overlap of jurisdiction in this case stemming from the timing and fallout of the alleged breach of contract. Ms.

Haines considered and entered an employment contract prior to joining the collective bargaining unit. Ms. Haines voiced concerns with the contract after commencing employment as a unionized employee. This overlap however is in appearance only and does not detract from the breach of contract action. [ 35 ] Dr. Haynes has vigorously pled that the damages suffered resulted from the first breach of contact with the GN failing to mention the two additional communities.

This is where the cause of action arises and where the litigation train leaves the station. [ 36 ] It is arguable there was no relief or remedy available to Dr. Haynes through the arbitration process that could have placed her in the same position she would have been had the breach not taken place. If provided the full contractual picture at the time of the offer being made Dr. Haynes may have neglected to take the job or may have been successful in negotiating a higher pay grade owing to the number of communities for which she would be responsible.

Damages related to the claims as pled clearly fall outside of the jurisdiction of the Collective Agreement as Dr. Haynes was not a member of the NEU until she formally agreed to the contract of employment. The way the claim has been pled cements this as a breach of contract where the breach occurred prior to Dr. Haynes falling under the protection of the NEU. [ 37 ] It is possible Dr. Haynes may have had a successful case in arbitration seeking redress for her firing. However, Dr. Haynes’ claim is framed as a breach of contract and the damages sought are not focused on reinstatement.

As such, the arbitrator would have been without jurisdiction to award the remedies claimed. [ 38 ] Accepting the facts as pled, and the affidavit evidence as tendered, I do not find it plain and obvious that the claim is within the exclusive jurisdiction of the collective agreement. [ 39 ] The application to strike is dismissed, with cost payable forthwith in accordance with the below. VIII. COSTS

[ 40 ] Having dismissed the application to strike, I am exercising my discretion to award costs to the plaintiff, payable forthwith, in the all-inclusive amount of $15,000.00. This sum is intended to compensate Dr. Haynes’ for her time required to prepare responding materials, as well as cover her expenses to travel to Iqaluit from Alberta to respond to the unsuccessful motion and to reflect the success she has had on the motion. Dated at the City of Iqaluit this 12th day of April 2022, ___________________ Justice C. Lyons Nunavut Court of Justice