Lapchuk v Saskatchewan (Highways), 2017 SKCA 68

Court of Appeal for Saskatchewan Docket: CACV2809, CACV2863 Citation: Lapchuk v Saskatchewan (Highways) , 2017 SKCA 68 Date: 2017-08-29 Between: David Brian Lapchuk Appellant (Plaintiff) And The Government of Saskatchewan and Her Majesty the Queen in Right of Saskatchewan, as represented by The Minister of the Department of Highways for the Province of Saskatchewan and Tom Davies and Scott Kreutzer and Brendon Pylatuk and Lyle Heinemann and Saskatchewan Government and General Employees Union and Larry Buchinski Respondents (Defendants) Before: Richards C.J.S., Jackson and Caldwell JJ.A.

Disposition: Appeals dismissed Written reasons by: The Honourable Chief Justice Richards In concurrence: The Honourable Madam Justice Jackson The Honourable Mr. Justice Caldwell On Appeal From: 2015 SKQB 358 , Regina and 2016 SKQB 72 , Regina Appeal Heard: February 23, 2017 Counsel: David Barth for the Appellant Kyle McCreary for the Respondent, Government of Saskatchewan Heather Robertson for the Respondent, Saskatchewan Government and General Employees Union Richards C.J.S. I. Introduction [ 1 ] David Lapchuk, the appellant, was injured at work.

As a result of a variety of circumstances rooted in the injury and the aftermath of it, Mr.

Lapchuk ultimately commenced an action in the Court of Queen’s Bench against his employer (the respondent, Government of Saskatchewan), two of his workplace managers (the respondents, Tom Davies and Scott Kreutzer), two of his co-workers (the respondents, Lyle Heinemann and Brendon Pylatuk), his union (the respondent, Saskatchewan Government and General Employees Union), and a Union labour relations officer (the respondent, Larry Buchinski). [ 2 ] Two separate applications were brought in the Court of Queen’s Bench to strike aspects of Mr. Lapchuk’s amended statement of claim.

When the dust had settled, the whole of the amended statement of claim had been struck on the basis that the Court had no jurisdiction because Mr. Lapchuk’s disputes were ones that had to be addressed in either the context of the arbitration process established between the Union and the Government or in proceedings before the Labour Relations Board. [ 3 ] Mr. Lapchuk appeals from the Queen’s Bench decisions insofar as they struck: (

a) his claim in “negligent misrepresentation”, (

b) his claim in conspiracy, and (

c) his claim in detinue and conversion. [ 4 ] As explained below, I conclude that Mr. Lapchuk’s appeals must be dismissed. The judges who struck his amended statement of claim relied on the proper legal principles and applied them correctly to the circumstances at hand. II. background [ 5 ] The factual background of these appeals were summarized as follows in the decision of Ball J.: [4] The plaintiff was employed by the Government as a Program Operator in the Ministry of Highways and Infrastructure [MHI].

He was a member of a bargaining unit represented by the SGEU pursuant to a certification order issued by the Saskatchewan Labour Relations Board under The Trade Union Act , RSS 1978, c T-17 (since rep) [ TUA ] (now The Saskatchewan Employment Act , SS 2013, c S-15.1 [ SEA ]). His terms and conditions of employment were established by a collective bargaining agreement negotiated on his behalf by the SGEU. [5] On October 17, 2012 the plaintiff was assigned to work with a group that included his co-workers Heinemann and Pylatyk.

They attended at a service station in Fort Qu’Appelle at lunchtime with Heinemann and the plaintiff in one MHI vehicle and Pylatyk in another. Shortly after the plaintiff’s vehicle was parked, he had an altercation with an employee of the service station. The plaintiff asserts that the employee assaulted him.

The Government says that the altercation occurred because the plaintiff “violated professional standards and employer policies and procedures.” [ 6 ] The plaintiff claims that as a result of the assault he suffered physical and psychological injuries including an injury to his right shoulder and an aggravation of a pre-existing post-traumatic stress disorder [PTSD]. He claims that Heinemann and Pylatyk not only failed to protect him, but that they “conspired to create the confrontation” and “knew or ought to have known” that he would be injured.

[ 7 ] The plaintiff’s statement of claim asserts that the Government and its managers were negligent because they failed to provide him with self-defence training. He claims that this failure was contrary to MHI safety policies and Occupational Health and Safety [OHS] requirements for dangerous occupations. [ 8 ] As his injuries were work related, the plaintiff applied to the Workers’ Compensation Board [WCB] for benefits.

He claims that upon his return to work he made it clear to Davies that he had PTSD and that he required self-defence training, but the Government and Davies did not accommodate his permanent injury and refused to provide the training. [ 9 ] In September 2013, the plaintiff was advised by MHI that he was being transferred to a new work team and a new office. Although he had been instructed to vacate his office, he continued to work in his old one.

He claims that he was the owner of special ergonomic equipment (primarily a chair and a desk) purchased for him by Saskatchewan Government Insurance a number of years earlier to accommodate an injury he had sustained in a car accident. He asserts that when he was instructed to move to a new office, his ergonomic equipment was wrongfully removed from his old office. His statement of claim, which refers to the plaintiff as “David”, reads: 27. The special ergonomic equipment was valued at over $7000.00 and was personally owned by David, and not by MHI or the Government.

David claims against the Defendants MHI, Kruetzer, and Davies, for the torts of detinue and conversion and trespass to property. 28. On September 16 to 18 David returned to work. However, the non-ergonomic chair that he was provided with aggravated his right shoulder injury and David’s doctor was forced to notify WCB that MHI’s action had reinjured David. 29.

MHI demanded David return to work on September 23 so he did. [ 10 ] The plaintiff’s amended statement of claim asserts that his managers and co-workers failed to assist the R.C.M.P. in serving Pylatyk with a subpoena to attend the assault trial of the person who assaulted him, and that as a result the charges were stayed. Based on this assertion, he claims that “the defendants and its servants and/or agents” were negligent.

He does not relate that claim to any particular remedy. [ 11 ] The plaintiff’s statement of claim then turns to the SGEU and Bushinski (whose name, as it appears throughout the documentary evidence, is properly spelled “Buchinski”) [collectively, the Union Defendants]. His claim asserts that Bushinski, an SGEU Labour Relations Officer, failed to represent him adequately and that, as a consequence, he was “required” to terminate Bushinski’s services as his union representative.

Other similar claims are that the Union Defendants “failed to protect [his] employment rights”; “failed to represent [him] against abuses committed by his employer with respect to WCB”; and “aided and abetted the other defendants in their actions.” [ 12 ] After the plaintiff returned to work on September 23, 2013, the following events occurred: • On September 30, 2013 the Government suspended the plaintiff for three days for refusing to accept its direction to vacate his office.

He returned to work on October 4, 2013 and was placed on administrative leave for one month; • On October 23, 2013, the plaintiff, represented by the SGEU, filed a grievance against the Government in relation to this three day suspension [Suspension Grievance]; • On October 28, 2013, the Government terminated the plaintiff’s employment.

One of the grounds for his termination was that he had violated professional standards and employer policies and procedures in relation to the altercation that occurred in Fort Qu’Appelle on October 17, 2012; • On November 5, 2013, the plaintiff filed a complaint under The Occupational Health and Safety Act, 1993 , SS 2013, c O 1.1 (now

Part III of the SEA ) alleging that the Government had terminated his employment because he had raised health and safety issues with his employer; • On or about November 8, 2013, the plaintiff filed a complaint under The Saskatchewan Human Rights Code , SS 1979, c S-24.1 [ Human Rights Code ] alleging that the Government had discriminated against him by removing his specialized equipment and/or terminating his employment on the basis of his disability. • On November 19, 2013, the plaintiff, represented by SGEU, grieved the termination of his employment [Termination Grievance], seeking full redress including lost wages and benefits under the collective bargaining agreement; • On November 29, 2013, a WCB appeal officer determined that the WCB did not support the plaintiff’s claim that his ongoing right shoulder difficulties were related to the altercation that occurred on October 17, 2012.

The WCB appeal officer also determined that by July 12, 2013, the plaintiff had recovered from any PTSD arising from the incident he encountered on October 17, 2012 (See affidavit of David Brian Lapchuk sworn November 12, 2014, Exhibit H); • On December 31, 2013, the plaintiff filed an application with the Saskatchewan Labour Relations Board [SLRB] (LRB File No. 353-13) claiming that SGEU and Bushinski, in his role as SGEU Labour Relations Officer, failed to adequately represent him and, as a consequence, he was “forced” to terminate Bushinski as his representative.

The application also alleged that SGEU discriminated against him on the basis of medical issues. LRB File No. 353-13 has not yet been dealt with on the merits; • On January 22, 2014, an OHS Officer dismissed the plaintiff’s complaint filed November 5, 2013. The plaintiff appealed that decision to the Director of OHS; • On March 26, 2014, the Director of OHS dismissed the plaintiff’s appeal of the January 22, 2014 OHS decision;

• On April 13, 2014, the plaintiff appealed the decision of the OHS Director to a special adjudicator to be appointed pursuant to s.56.3 of The Occupational Health and Safety Act.

His appeal remains pending; • On July 8, 2014, the plaintiff commenced this action against the defendants; • On August 15, 2014 the Government Defendants filed its statement of defence in this action; • On October 15, 2014, the Union Defendants filed their application to strike out the plaintiff’s claim; • On October 17, 2014 the Government Defendants filed their application to strike out the plaintiff’s claim; • On March 20, 2015, the plaintiff’s original statement of claim in this action was amended to include claims of conspiracy againstall of the defendants. … [14] The Suspension Grievance and the Termination Grievance have been submitted to arbitration and have been the subject of anarbitration hearing chaired by Arbitrator Sheila Denysiuk, Q.C. from September 14 to September 18, 2015.

The court was informed thatthe hearing has been adjourned to hear further evidence in November 2015. [15] An application to determine whether the Human Rights Commission has jurisdiction to hear the complaint filed November 8,2013 has been adjourned sine die pending completion of the arbitration hearing. [6] In addition to his Queen’s Bench action, Mr. Lapchuk pursued concurrent proceedings in other forums including: (a)arbitration of a grievance pursuant to the collective agreement between the Union and the Government, (

b) a complaint to the LabourRelations Board alleging that the Union had breached its duty to fairly represent him, (

c) a complaint of discrimination under TheOccupational Health and Safety Act, 1993, SS 1993, c O-1.1, (

d) a complaint under The Saskatchewan Human Rights Code, SS 1979, cS-24.1, alleging discrimination by reason of disability, and (

e) an application for benefits under The Workers’ Compensation Act, 1979,SS 1979, c W-17.1. [7] Two more recent developments have been drawn to the Court’s attention. First, by way of a decision dated November 18,2015, the Workers’ Compensation Board has held that Mr. Lapchuk’s claim is barred by s. 43 of The Workers’ Compensation Act, 2013,SS 2013, c W-17.11, to the extent it relates to workplace injuries. Second, by way of a decision in August of 2016, Mr. Lapchuk’sgrievance against his termination has been dismissed by arbitrator Sheila Denysiuk, Q.C.

III. the queen’s bench decisions [8] The Government and Messrs. Davies, Kreutzer, Pylatuk, and Heinemann (the Government Defendants) applied for an orderpursuant to Rule 3-14 of The Queen’s Bench Rules dismissing the whole of Mr. Lapchuk’s amended statement of claim save for theclaim in detinue and conversion. They argued that the Court of Queen’s Bench had no jurisdiction to hear the claim. Simultaneously, theUnion also applied, pursuant to Rule 3-14, for an order striking out the whole of the amended statement of claim on the same basis. [9] These two applications were heard by Ball J. See: 2015 SKQB 358.

He began his analysis by considering the applicationmade by the Government Defendants. He referred to Weber v Ontario Hydro, (SCC), [1995] 2 SCR 929, and NewBrunswick v O’Leary, (SCC), [1995] 2 SCR 967, and the principle that, where an arbitration process is available, therecan be no concurrent proceedings in court. Justice Ball then observed that the essential character of the large part of Mr. Lapchuk’sclaims was that he had been wrongly suspended and then terminated from his employment.

As a result, Ball J. found that these issues fellwithin the scope of the arbitration being conducted under the collective agreement between the Union and the Government. [10] Justice Ball went on to observe that the nature of the remaining issues between Mr. Lapchuk and the Government Defendantsarose from Mr. Lapchuk’s assertion that the Government Defendants had failed to accommodate (or discriminated against him by reasonof) a disability caused by injuries said to have been sustained during the course of his employment.

In this regard, Ball J. noted that thecollective agreement prohibited discrimination against employees and that Mr.

Lapchuk had also filed complaints under TheOccupational Health and Safety Act, 1993 and The Saskatchewan Human Rights Code before he had begun his Queen’s Bench action.Justice Ball did not purport to resolve which of those forums should address the issue of alleged discrimination but he did find that, nomatter which of them was used to address the matter, the Court of Queen’s Bench did not have concurrent jurisdiction. [11] As for the Union’s application, Ball J. concluded that the essential character of Mr. Lapchuk’s dispute with the Union andMr.

Buchinski was that they had failed to fairly and adequately represent him. As a result, Ball J. held this was a matter that was withinthe exclusive jurisdiction of the Labour Relations Board pursuant to s. 25.1 of The Trade Union Act, RSS 1978, c T-17 (repealed), and s.6-59 of The Saskatchewan Employment Act, SS 2013, c S-15.1. [12] In the end result, Ball J. struck all of Mr. Lapchuk’s claims against all of the defendants with the exception of the claim fordetinue and conversion against the Government Defendants.

Even there, he noted that his ruling was simply a function of how theGovernment Defendants had cast their application and said the ruling did not preclude a subsequent application to strike the detinue andconversion part of the claim. [13] In light of Ball J.’s comments, the Government Defendants then applied to strike the balance of Mr. Lapchuk’s amendedstatement of claim. That application was heard by Megaw J. See: 2016 SKQB 72. Justice Megaw concluded Mr.

Lapchuk’s claim forthe return of his property was inextricably intertwined with the facts surrounding his employment situation and his ultimate terminationfrom his position with the Government. As a result, Megaw J. determined that Mr. Lapchuk’s remedy was to be found in the arbitrationforum, not in the Court of Queen’s Bench. He struck the claim in detinue and conversion.

IV. analysis [14] Mr. Lapchuk contends that Ball and Megaw JJ. erred in striking his amended statement of claim. He seeks to overturn theirdecisions in relation to his claims in (

a) what he calls “negligent misrepresentation”, (

b) conspiracy, and (

c) detinue and conversion. Iwill briefly consider each of these matters in turn. However, to begin, it may be useful to briefly review the legal principle that underpinsthis appeal. A. Legal Principles [15] There is no dispute about the basic legal concept that is central to the resolution of this appeal. The foundation of the requiredapproach is s. 6-45 of The Saskatchewan Employment Act (formerly s. 25(1) of The Trade Union Act).

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

Part II or the director of occupational health andsafety as defined in

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

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

Part II that the director of employmentstandards considers appropriate to enforce the claim of an employee who is bound by a collective agreement. [16] In Weber v Ontario Hydro, the Supreme Court adopted what it called the “exclusive jurisdiction” model for determining theeffect of final and binding arbitration clauses like s. 6-45. Under this approach, an employee must proceed by arbitration rather than thecourts to resolve a workplace dispute.

It holds that the courts lack jurisdiction to entertain a dispute that arises out of the collectiveagreement, subject only to a residual discretionary jurisdiction in courts of inherent jurisdiction to grant relief not available under thestatutory arbitration scheme. [17] The Supreme Court has also made it clear that a dispute will be held to come under the collective agreement if it does soeither expressly or inferentially. The determining factor is the essential character of the dispute, not the legal packaging in which it ispresented. See: New Brunswick v O’Leary at para 6; Regina Police Assn.

Inc. v Regina (City) Board of Police Commissioners, 2000 SCC14 at para 25, [2000] 1 SCR 360. B. Negligent Misrepresentation [18] Mr. Lapchuk’s amended statement of claim is not particularly easy to digest. His claim for what he calls “negligentmisrepresentation” is found in the following paragraphs of the amended statement of claim: 32. Bushinski, in his role as Labour Relation Officer for SGEU, was supposed to be representing David at the accommodationsmeeting. Bushinski also openly dismissed the medical evidence provided by David’s medical care providers.

David was forced toterminate Bushinski as his representative and the accommodations meeting was to be adjourned and rescheduled with a proper SGEULabour Relations Officer. 33. Since then David has been advised by WCB that Bushinski had, prior to the accommodation meeting, contacted WCB and advisedWCB that he knew nothing of accommodations reports and all he knew was that David was being fired for refusing to move his desk.MHI made a similar call and report to WCB. As result, WCB decided David’s WCB claim was a labour relations issue.

WCB refused toprovide David with WCB benefits. … 45. … The injuries occasioned to the Plaintiff are by reason of the negligence on the part of the Defendants and its servants and/oragents, particulars of which are as follows: … m. SGEU and Bushinski failed to protect David's employment rights with respect to WCB; n. SGEU and Bushinski failed to represent David against abuses committed by his employer with respect to WCB; o. MHI, Kreutzer, Davies, and SGEU and Bushinski failed to provide accurate information to WCB; p.

MHI, Kreutzer, Davies, and SGEU and Bushinski failed to provide David's records of accommodation to WCB[.] [19] I begin by observing that the tort of negligent misrepresentation, in the context of proceedings where Mr. Lapchuk is theplaintiff, would involve a representation made to Mr. Lapchuk by a person with special skill, judgment or knowledge. It would notinvolve a representation made to a third party like the Workers’ Compensation Board. See: Queen v Cognos Inc., (SCC), [1993] 1 SCR 87; Hercules Managements Ltd. v Ernst & Young, (SCC), [1997] 2 SCR 165.

[20] Nonetheless, and focusing on the appeal as it was presented, it is clear enough that the essential nature of the negligentmisrepresentation issue arises out of Mr. Lapchuk’s employment and Mr. Buchinski’s representation of him with respect to duty toaccommodate and discipline matters. Mr. Lapchuk’s attempt to split off one aspect of Mr. Buchinski’s work – communications with theWorkers’ Compensation Board – is artificial and denies the substance of what Mr. Buchinski was doing and the role he was playing as aUnion official. Workers’ compensation is not something foreign to the operation of the collective agreement. After all,

article 23 of theagreement in force between 2012 and 2016 takes specific account of how workers’ compensation benefits are integrated with benefitsunder the collective agreement. [21] Mr. Lapchuk’s complaint, at bottom, is a complaint about the adequacy of the representation provided to him by the Unionand Mr. Buchinski. This is a matter expressly addressed by The Trade Union Act (which was in force during some of the time periodrelevant here) and The Saskatchewan Employment Act.

The features of those two Acts that set out an employee’s substantive entitlementsread as follows: The Trade Union Act 25.1 Every employee has the right to be fairly represented in grievance or rights arbitration proceedings under a collective bargainingagreement by the trade union certified to represent his bargaining unit in a manner that is not arbitrary, discriminatory or in bad faith.

The Saskatchewan Employment Act 6-59(1) An employee who is or a former employee who was a member of the union has a right to be fairly represented by the union thatis or was the employee’s or former employee’s bargaining agent with respect to the employee’s or former employee’s rights pursuant toa collective agreement or this Part.

(2) Without restricting the generality of subsection (1), a union shall not act in a manner that is arbitrary, discriminatory or in bad faith inconsidering whether to represent or in representing an employee or former employee. An employee who alleges a contravention of these provisions must proceed by way of an application to the Labour Relations Board.

See:The Trade Union Act, ss. 5 and 42; The Saskatchewan Employment Act, s. 6-60. [22] Justice Ball made no error in concluding that the negligent misrepresentation claim was a matter that had to be pursued as aduty of a fair representation complaint before the Labour Relations Board, not as a civil claim in the Court of Queen’s Bench. Hisdecision is wholly consistent with the case law in this area. See, for example: Moldowan v Saskatchewan Government Employees Union(1995), (SK CA), 126 DLR (4th) 289 (Sask CA); University of Saskatchewan Faculty Association v Floyd (1996), (SK CA), 148 Sask R 315 (CA). C.

Conspiracy [23] Mr. Lapchuk’s claim for conspiracy is set out in paragraphs 47.1 to 47.5 of his amended statement of claim: 47.1 The Government and Pylatuk and Heinemann conspired to create a confrontation with Bellegarde. Pvulatuk conspired, to hidewhat happened with Bellegarde from both the Government and the RCMP and Provincial Court. 47.2 The Government and Kreutzer and SGEU and Bushinski conspired to have WCB Benefits denied to the Plaintiff.

The Defendantsfurther conspired to not to get the Plaintiff's ergonomic equipment returned. 47.3 The Government and Kreutzer and Davies conspired to terminate David to hide the fact that he had been working as a uniformedofficer without the proper training and to take the blame for the Bellegarde incident. 47.4 The Government and Kreutzer and Davies conspired to terminate David in retribution for complaining to OHS. 47.5 If SGEU decides not to forward David's grievance, SGEU conspired with the Government not to do so. [24] Justice Ball, perhaps somewhat generously, summarized Mr.

Lapchuk’s conspiracy claim as follows at paragraph 29 of hisdecision: … distilled to the basics he claims that: co-workers conspired to cause him to engage in an altercation with a member of the public duringthe course of his employment; he was injured in the altercation because his employer failed to provide adequate OHS training; hisemployer failed to accommodate his injuries, thereby discriminating against him by reason of a disability; his union failed to adequatelyrepresent him in his efforts to seek accommodation for his disability and to obtain WCB benefits; and, all of the defendants conspiredwith all of the other defendants to bring about these results. [25] As is apparent, the essence of the conspiracy claim concerns the propriety of Mr.

Lapchuk’s suspension and ultimatedismissal by the Government and, perhaps to some extent, the Union’s conduct in representing him throughout all of this. Mr. Lapchukcannot avoid this reality simply by framing his complaint as a “conspiracy”. See: Bergman v The Canadian Union of Public Employees,Local 608, (BCSC) at paras 26–33; Forster v Canadian Airlines International Ltd. (1993), (BCSC), 109 DLR (4th) 731 (BCSC).

As the Supreme Court said in New Brunswick v O’Leary at paragraph 6, “… it is the essentialcharacter of the difference between the parties, not the legal framework in which the dispute is cast, which will be determinative of theappropriate forum for settlement of the issue”. [26] I conclude that Ball J. made no error in finding that the conspiracy claim had to be pursued by way of the grievance andarbitration procedure.

D. Detinue and Conversion [ 27 ] Mr. Lapchuk alleges in his amended statement of claim that personally-owned special ergonomic equipment, principally a desk and chair as I understand it, were wrongfully taken from him. The relevant features of the amended statement of claim say this: 26. Shortly after receiving his new chair, Instead Davies and Kreutzer wrongfully removed David’s existing ergonomic equipment from his office. They also moved his office. They also deliberately or negligently lost his written accommodation for the special ergonomic equipment. David complained to their manager Dave Smith.

Dave Smith told David that he didn’t care. Dave Smith said he would support Davies and Kreutzer over David even if the managers acted illegally. Dave Smith further told David he would bury him with lawyers. Kreutzer told the Regina Police Service the ergonomic equipment belonged to MHI. 27. The special ergonomic equipment was valued at over $7000.00 and was personally owned by David, and not by MHI or the Government. David claims against the Defendants MHI, Kruetzer, and Davies, for the torts of detinue and conversion and trespass to property. … 41.

As a result of the theft of his ergonomic equipment chair and his injuries, David lost his job and has suffered economic loss, including loss of wages, benefits, and pension and loss of insurability for life insurance . 42. David has to pay $1500.00 per month for medications prescribed as a result of Bellegarde’s assault, the theft of the ergonomic equipment chair , and the mental suffering suffered due to the actions of the Defendant’s in this action. David claims special damages in an amount to be proven at trial.

David further claims for the cost of future care. [ 28 ] Justice Megaw struck this feature of the amended statement of claim on the basis that the Court of Queen’s Bench had no jurisdiction because the dispute over the property in question was subject to arbitration. Mr. Lapchuk argues that, because return of the property was not raised with the arbitrator by the Union, proceedings in the Court of Queen’s Bench are the only way the property can be recovered.

He contends that The Saskatchewan Employment Act does not purport to take away the right of an employee to sue in tort. [ 29 ] I am not persuaded by these submissions. First, whether the Union did or did not pursue the return of Mr. Lapchuk’s possessions in the context of the arbitration is neither here nor there. The issue for purposes of resolving the jurisdictional point at stake in this appeal is whether the essence of the dispute about Mr. Lapchuk’s property is something arising out of the collective agreement.

It is not whether the Union has diligently or properly advanced a grievance or arbitration on his behalf. Mr. Lapchuk acknowledges that the Union could have sought the return of his property in the context of the arbitration. Accordingly, this aspect of his submissions must fail. [ 30 ] I also see no merit in Mr. Lapchuk’s argument to the effect that The Saskatchewan Employment Act does not purport to prohibit employees from commencing tort claims. That is a mischaracterization of the point in issue here.

Weber v Ontario Hydro and its progeny require that a dispute is to be arbitrated when, in its essence, it arises out of the collective agreement. There need not be an express statutory prohibition against bringing claims in court for this principle to engage. See, for example: Hemmings v University of Saskatchewan , 2002 SKCA 96 , 216 DLR (4th) 343. [ 31 ] Here, the dispute over Mr. Lapchuk’s property is tightly bound up with, and part and parcel of, what Mr. Lapchuk says were his wrongful suspension and termination. The essential nature of the dispute is a matter that is subject to arbitration.

As a result, Megaw J. made no error in making a finding to this effect and then, as a result, striking this aspect of Mr. Lapchuk’s amended statement of claim. V. conclusion [ 32 ] I conclude that Mr. Lapchuk’s appeals must be dismissed. Justices Ball and Megaw correctly determined that his amended statement of claim should be struck. The Government and the Union are entitled to one set of costs each. “Richards C.J.S.” Richards C.J.S. I concur. “Jackson J.A.” Jackson J.A. I concur. “Caldwell J.A.” Caldwell J.A.