Livingston v Saskatchewan Human Rights Commission, 2022 SKCA 127

Court of Appeal for Saskatchewan Docket: CACV3817 Citation: Livingston v Saskatchewan Human Rights Commission , 2022 SKCA 127 Date: 2022-11-02 Between: Andy Livingston Appellant (Plaintiff/Respondent) And Saskatchewan Human Rights Commission and Norma Gunningham-Kapphahn Respondents (Defendants/Applicants) Before: Caldwell, Kalmakoff and McCreary JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice McCreary In concurrence: The Honourable Mr. Justice Caldwell The Honourable Mr.

Justice Kalmakoff On appeal from: 2021 SKQB 84 , Saskatoon Appeal heard: September 16, 2022 Counsel: Marcus Davies for the Appellant Robert Affleck for the Respondents McCreary J.A. I. INTRODUCTION [ 1 ] Andy Livingston appeals from a Chambers decision of a Court of Queen’s Bench judge in which the judge struck Mr. Livingston’s action on the ground that the Court did not have jurisdiction to hear and determine it because it was within the exclusive jurisdiction of a labour arbitrator.

The action was also struck as an abuse of process, as it was duplicative of grievance proceedings pursuant to a collective bargaining agreement: Livingston v Saskatchewan Human Rights Commission , 2021 SKQB 84 , 72 CCEL (4th) 307 . [ 2 ] While Mr. Livingston frames them differently, it is my view that the issues for this Court’s consideration are whether the Chambers judge erred when he determined that the court did not have jurisdiction to hear and adjudicate Mr.

Livingston’s action, or when he found that the action was an abuse of process because it created a multiplicity of proceedings. [ 3 ] For the reasons that follow, the appeal must be dismissed. II. BACKGROUND [ 4 ] Mr. Livingston was employed by the Saskatchewan Human Rights Commission [SHRC] for many years. SHRC is a unionized workplace and Mr. Livingston was a member of the bargaining unit represented by the Canadian Union of Public Employees, Local 1871 [Union]. [ 5 ] Mr. Livingston has cerebral palsy and uses a wheelchair.

In 2018, issues arose respecting the level of workplace accommodation SHRC was providing to Mr. Livingston. In July 2018, the Union filed a grievance alleging that SHRC had failed to accommodate Mr. Livingston. On October 31, 2018, Mr. Livingston filed a human rights complaint with SHRC, naming SHRC and Norma Gunningham-Kapphahn, SHRC’s executive director, as the respondents [Complaint]. The Complaint alleged that SHRC had failed to accommodate Mr. Livingston in the course of his employment. [ 6 ] Shortly after Mr. Livingston filed the Complaint, Ms. Gunningham-Kapphahn questioned several of Mr.

Livingston’s co- workers about the issues he had raised in it. Mr. Livingston took the position that, in doing so, she wrongfully disclosed personal and confidential information about him that was contained in the Complaint. [ 7 ] In February of 2020, Mr. Livingston filed the statement of claim that is the subject of this appeal, alleging that SHRC and Ms. Gunningham-Kapphahn had committed the tort of breach of privacy and had breached a duty of procedural fairness owed to him. III.

STANDARD OF REVIEW [ 8 ] In Northern Regional Health Authority v Horrocks , 2021 SCC 42 at para 9 ; 462 DLR (4th) 585 [ Horrocks ], the Supreme Court adopted a correctness standard for questions concerning the jurisdictional lines between courts and tribunals and held that determinations as to the “essential character of the dispute” in such matters are reviewable for their correctness.

Further, once the facts have been established without error, a question as to whether an action amounts to an abuse of process is a question of law that is reviewable on the standard of correctness: Housen v Nikolaisen , 2002 SCC 33 at para 33 , [2002] 2 SCR 235; St-Jean v Mercier , 2002 SCC 15 at paras 48–49 , [2002] 1 SCR 491; and Walker v Mitche ll , 2020 SKCA 127 at para 16 , [2021] 4 WWR 555.

IV. ANALYSIS A. The subject matter of the claim falls exclusively within the jurisdiction of alabour arbitrator [9] In his decision, the Chambers judge correctly identified that, when an employee is represented by a certified bargaining agentand the terms of their employment are governed by a collective bargaining agreement, the employee is not entitled to bring an individualcivil claim against the employer if the essential nature of that claim is subsumed by the terms of the collective agreement, as per s. 6-45(1)of The Saskatchewan Employment Act, SS 2013, c S-15.1 [SEA].

Instead, an arbitrator appointed under the collective agreement hasexclusive jurisdiction to hear and determine all issues that arise under that agreement. [10] Surrendering the right to bring an individual civil claim is a cost of the significant powers and rights an employee achieves bybargaining collectively.

Under the exclusive jurisdiction model adopted by the Supreme Court of Canada in Weber v Ontario Hydro, (SCC), [1995] 2 SCR 929 [Weber], and more recently in Horrocks, and now codified in s. 6-45(1) of the SEA, courts ofinherent jurisdiction lack the jurisdiction to entertain disputes that arise out of a collective agreement, subject only to a residualdiscretionary jurisdiction to grant relief not available under the statutory arbitration scheme: Lapchuk v Saskatchewan (Highways), 2017SKCA 68 at para 16, citing Weber. [11] Human rights legislation and the base protections provided by employment standards legislation are incorporated into allcollective bargaining agreements: Parry Sound (District) Social Services Administration Board v O.P.S.E.U., Local 324, 2003 SCC 42,[2003] 2 SCR 157.

Labour arbitrators have jurisdiction over a variety of tort claims, such as conspiracy, interference with contractualrelations, deceit, negligent misrepresentation, infliction of mental distress, negligence and defamation: Blanco-Arriba v British Columbia,2001 BCSC 1557 at para 39, 96 BCLR (3d) 183. Arbitrators also have been found to have jurisdiction over remedies arising from tortiousactivity, such as aggravated and punitive damages: Moznik v Richmond (City), 2006 BCSC 1848 at para 80, 62 BCLR (4th) 374.

Finally,labour arbitrators have determined that they have jurisdiction to consider whether an employee’s privacy rights have been breached in thecourse of employment and to apply specific privacy legislation. See, for example: United Steelworkers, Local 7552 v Agrium (2009), 185LAC (4th) 296 (WL) (Sask LA) (Arbitrator: William F.J. Hood); and Retail, Wholesale and Department Store Union, Local 496 v PrinceAlbert Co-operative Association Ltd., (Sask LA) (Chair: William F.J. Hood).

This was also recognized in Weber,where the appellant’s claims included the tort of breach of privacy and the Court found that claim, among others, fell within the exclusivejurisdiction of a labour arbitrator. [12] Nevertheless, Mr. Livingston argues that his cause of action against SHRC and Ms. Gunningham-Kapphahn does not arisefrom the employment relationship. Rather, he contends the claim arises from actions taken by Ms. Gunningham-Kapphahn acting forSHRC as the statutory body responsible for receiving and investigating human rights complaints from the general public. Mr.

Livingstonsays his claim is directed at the integrity of SHRC’s powers and processes, as governed by its enabling statute, The Saskatchewan HumanRights Code, 2018, SS 2018, c S-24.2 [Code]. In oral argument, he contended that the “real issue” in his action is whether the respondentsbreached a duty of procedural fairness owed to him in respect of the Complaint he filed with SHRC as the statutory body which overseessuch complaints. [13] The Chambers judge, however, found that the essential nature of the dispute between Mr. Livingston and the respondents arosefrom Mr. Livingston’s employment with SHRC.

The Chambers judge expressly rejected Mr. Livingston’s argument that his civil action intort was taken against the respondents qua a statutory body. In making this determination, the Chambers judge identified as key the pointin time at which the respondents had allegedly disseminated Mr. Livingston’s personal information. The claim alleges that they committedthe tort of breach of privacy when Ms. Gunningham-Kapphahn spoke to SHRC employees about an incident in which Mr. Livingston hadbeen trapped in a room while at work. Thereafter, Ms.

Gunningham-Kapphahn filed reports with the Occupational Health and SafetyBranch and the Workers’ Compensation Board respecting the incident. On the basis of these facts, the Chambers judge found that therespondents had disseminated the information giving rise to the alleged breach of privacy in their capacity as Mr. Livingston’s employer. [14] The Chambers judge’s finding – that the essential nature of Mr. Livingston’s dispute arose from his employment relationshipwith SHRC – is amply supported by the record. It is also supported by the pleadings in Mr. Livingston’s civil claim.

Paragraphs 7, 8 and 9of the statement of claim detail that the alleged breach of privacy occurred when Mr. Livingston’s personal information was disclosed tohis co-workers and to the workplace-regulating statutory bodies mentioned above. In addition, the bulk of the damages alleged in theclaim relate to Mr. Livingston’s employment and include “loss of employment opportunity”, “loss of reputation”, and “loss of dignity”, allresulting from the alleged improper disclosure of personal information within and concerning the workplace. [15] Having found that the respondents disseminated Mr.

Livingston’s personal information in their capacity as Mr. Livingston’semployer, the Chambers judge found that the essential nature of Mr. Livingston’s claim of breach of privacy arose in the context of hisemployment relationship with SHRC. Because the terms of this relationship were governed by a collective agreement, the Chambers judgedetermined that the jurisdiction to hear and adjudicate such issues rested exclusively with a labour arbitrator appointed under thatcollective agreement.

For the reasons I have explained, there is no error in this determination. [16] As an aside, had the Chambers judge found that the respondents were acting in the capacity of a statutory body, rather than asan employer, this action would very likely have been barred by s. 43 of the Code, in any event. That

section prohibits commencing anaction or proceeding against SHRC and its employees, among other persons, for loss or damage suffered by reason of anything done ingood faith pursuant to or in exercise or supposed exercise of any power conferred by the Code, or in carrying out or supposed carrying outof any duty imposed by the Code. Mr. Livingston’s statement of claim does not plead that the respondents acted in bad faith, which, givens. 43 of the Code, would be necessary to establish that an action lies against the respondents.

Nevertheless, I recognize this was not raisedas an issue in the Court of Queen’s Bench and, in light of that, I merely flag it in passing. B. The claim is an abuse of process because it created a multiplicity of

proceedings [ 17 ] The Chambers judge also determined that the claim should be struck as an abuse of process because it created a multiplicity of proceedings. Citing British Columbia (Workers’ Compensation Board) v Figliola , 2011 SCC 52 , [2011] 3 SCR 422, he noted that multiplicity of proceedings is a basis for finding a proceeding to be an abuse of process. The Chambers judge found that the grievance arbitration process under SHRC’s collective agreement with the Union was capable of addressing the subject of the action and that a grievance arbitration hearing had been scheduled.

He concluded that it was therefore an abuse of process to attempt to proceed in court on the same issue. [ 18 ] I agree with the Chambers judge’s reasoning on this issue. He did not err when he struck the claim as an abuse of process because it gave rise to a multiplicity of proceedings. V. CONCLUSION [ 19 ] In the result, I would dismiss the appeal and award the respondents the costs of this appeal, calculated in the usual way. “McCreary J.A.” McCreary J.A. I concur. “Caldwell J.A.” Caldwell J.A. I concur. “Kalmakoff J.A.” Kalmakoff J.A.