IN THE SUPREME COURT OF NOVA SCOTIA
Citation: Nelson v. Halifax (Regional Municipality), 2005 NSSC 210
Date: 20050616
Docket: SH 168672
Registry: Halifax
Between:
Halifax Regional Municipality
Applicant/Defendant
v.
Dennis Nelson
Respondent/Plaintiff
D E C I S I O N
Judge: The Honourable Justice Suzanne M. Hood
Heard: June 14, 2005 in Halifax, Nova Scotia
Written Decision: August 3, 2005
Counsel: Karen Lynn Brown, for the applicant/defendant
William Joseph Chisholm, for the respondent/plaintiff
By the Court: (Orally)
[1] There was an Agreed Statement of Facts provided by counsel.
[2] The defendant, Halifax Regional Municipality (“HRM”), seeks summary judgment pursuant to Civil Procedure Rule 13. Because the Agreed Statement of Facts was filed, there are no facts in dispute. Therefore, the question is whether there is an arguable issue to try, and the onus is on the plaintiff to show he has a real chance of success. These factors are set out in decisions such as Binder v. Royal Bank of Canada (2003), 216 N.S.R. (2d) 363 (N.S.S.C.) (a decision of Justice Moir) and the Court of Appeal decision in United Gulf Developments Ltd. v. Iskandar, 2004NSCA35, both of which referred to the test from Guarantee Co. of North America v. Gordon Capital Corp. (1999), 178 D.L.R. (4th) 1 (S.C.C.), a decision of the Supreme Court of Canada.
[3] Halifax Regional Municipality says the courts have no jurisdiction to hear matters falling within the ambit of a collective agreement and that an arbitrator has exclusive jurisdiction in a case such as this. They say this is because Mr. Nelson alleges hearing loss as an on-the-job injury which HRM submits is within the collective agreement. Among the Supreme Court of Canada decisions are Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; New Brunswick v. O’Leary, [1995] 2 S.C.R. 967; and Vaughan v. Canada, [2005] S.C.J. No. 12 which recognize the broad powers given to the grievance and arbitration process and say that the courts should exercise restraint in usurping those powers.
[4] The principal Nova Scotia case relying on Weber and O’Leary is the decision in Pleau v. Canada (Attorney General), [1999] N.S.J. No. 448 where Justice Cromwell set out what are three inter-related considerations. In paras. 50-52 Justice Cromwell sets them out as follows:
First, consideration must be given to the process for dispute resolution established by the legislation and collective agreement. Relevant to this consideration are, of course, the provisions of the legislation and collective agreement, particularly as regards the question of whether the process is expressly or implicitly regarded as an exclusive one. Language consistent with exclusive jurisdiction, the presence or absence of privative clauses and the relationship between the dispute resolution process and the overall legislative scheme should be considered.
Second, the nature of the dispute and its relation to the rights and obligations created by the overall scheme of the legislation and the collective agreement should be considered. In essence, this involves a determination of how closely the dispute in question resembles the sorts of matters which are, in substance, addressed by the legislation and collective agreement. What is required is an assessment of the ‘essential character’ of the dispute, the extent to which it is, in substance, regulated by the legislative and contractual scheme and the extent to which the court’s assumption of jurisdiction would be consistent or inconsistent with that scheme.
Third, the capacity of the scheme to afford effective redress must be considered. Simply put, the concern is that where there is a right, there ought to be a remedy.
[5] The first thing to look at is the dispute resolution provisions of the Act and the collective agreements. The Trade Union Act, R.S.N.S. 1989, c. 475 refers to resolving disputes “by arbitration or otherwise”. The first collective agreement which is relevant to this case referred to: a party “may” go through the grievance/arbitration procedure. The second collective agreement which was in effect from 1991 to 1997 used the word “shall” and said these matters shall be the subject matter of a grievance. Therefore, the process of dispute resolution in this case is exclusively reserved for the grievance/arbitration procedure.
[6] I move on to the second consideration which is to make an assessment of the essential character of the dispute and how it relates to the overall scheme of the legislation and the collective agreement; how closely the dispute resembles matters addressed in the collective agreement; and, furthermore, how the court’s assumption of jurisdiction would be consistent or inconsistent with that scheme.
[7] Mr. Chisholm for Mr. Nelson says the essential characteristic of this dispute is the negligence claim. He focuses on the remedy.
[8] Ms. Brown for HRM says the essential characteristic of the claim is that it is a claim for on-the-job injury and she focuses on the underlying facts of the claim.
[9] In the Supreme Court of Canada decision in Allen v. Alberta, [2003] 1 S.C.R. 128, the court said at para 12:
... disputes arising out of the interpretation, application or violation of a collective agreement should be dealt with exclusively under the grievance procedure established in accordance with the agreement or the relevant labour legislation. As a general rule, provided though that they fall within the ambit of the collective agreement, such disputes should be disposed of by labour arbitrators and regular civil courts do not retain concurrent jurisdiction over them.
[10] The issue for me is whether this dispute arises from the interpretation, application, administration or violation of the collective agreement and whether the dispute arises explicitly or inferentially out of the collective agreement.
[11] In Weber, Justice McLachlin, as she then was, posed the question in para. 32:
When may parties who have agreed to settle their differences by arbitration under a collective agreement sue in tort?...
[12] In Weber at paras. 33-35, the facts were set out as follows:
33 Mr. Weber was employed by Ontario Hydro. As a result of back problems, he took an extended leave of absence. Hydro paid him the sick benefits stipulated by the collective agreement. As time passed, Hydro began to suspect that Mr. Weber was malingering. It hired private investigators to investigate its concerns. The investigators came on Mr. Weber’s property. Pretending they were someone else, they gained entry to his home. As a result of the information obtained, Hydro suspended Mr. Weber for abusing his sick leave benefits.
34 Mr. Weber responded by taking the matter to his union, which filed grievances against Hydro on August 28, 1989. One of the grievances alleged that Hydro’s hiring of the private investigators violated the terms of the collective agreement. Among other things, the union asked the arbitrator to require Hydro to give an undertaking to discontinue using private security firms to monitor health absences, and to pay Mr. Weber and his family damages for mental anguish and suffering arising out of the surveillance. The arbitration commenced on March 8, 1990 and was subsequently settled.
35 In the meantime, on December 27, 1989, Mr. Weber commenced a court action based on tort and breach of his Charter rights, claiming damages for the surveillance. The torts alleged were trespass, nuisance, deceit, and invasion of privacy. Weber’s claims under the Canadian Charter of Rights and Freedoms were for breaches of his rights under ss. 7 and 8. ...
[13] The conclusion in that case was that the court action could not stand, although that was not the decision with respect to the Charter matter.
[14] The Ontario Labour Relations Act, R.S.O. 1990, c. L.2, s. 45(1) provides for mandatory arbitration and, as Mr. Chisholm pointed out, the Nova Scotia Act does not. However, the collective agreement in effect between 1991 and 1997 required arbitration. In the Weber decision, the Supreme Court of Canada concluded that the exclusive jurisdiction model was the one which applies to matters such as that.
[15] In determining whether the dispute arises from the collective agreement, in para. 51 of the Weber decision Justice McLachlin said:
... Two elements must be considered: the dispute and the ambit of the collective agreement.
and at para. 54 she said of the exclusive jurisdiction model:
This approach does not preclude all actions in the courts between employer and employee. Only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts; ...
[16] McLachlin, J. referred to St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, in paragraph 41 where she said:
41 ... In St. Anne Nackawic, the employer, after obtaining an interim injunction against the striking union, sued the union in tort for damages caused by its illegal strike.
[17] She went on and quoted from Justice Estey in the Nackawic decision as follows:
The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law ... The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks.
[18] In para. 42 Justice McLachlin referred to the fact that at the New Brunswick Court of Appeal it was said:
... that simply framing the action in terms of the tort of conspiracy would not be sufficient to take the action outside the realm of the collective agreement.
[19] She then said in para. 43:
43 Underlying both the Court of Appeal and the Supreme Court of Canada decisions in St. Anne Nackawic is the insistence that the analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed. 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’. Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it.
[20] I must look at the facts surrounding this dispute and not the legal issues. Mr. Nelson was a firefighter employed by the City of Dartmouth and later by HRM. He was a member of the IAFF and his employment relationship was governed by the collective agreement. He says that his hearing was damaged on the job. On the job injuries are dealt with in the collective agreement.
[21] The first collective agreement provided in clause 16.04:
16.04 If an employee should lose time as the result of injury while on duty or in the execution of firefighting duties, the time lost shall not be considered part of his sick leave and the employee shall receive full pay during his absence.
[22] The second collective agreement provided in clause 27.06:
27.06 If an employee should lose time as the result of a bona fide injury while on duty or in the execution of firefighting duties, the time lost shall not be considered as part of his sick leave. With respect to injury and sickness the availability of suitable alternative duties will be determined by the Employer in consultation with the employee, insurance carrier and health professionals.
[23] That collective agreement also provided in clause 32.06:
32.06 The Union will put in place coverage for occupational injuries as previously discussed and will confirm the detail in writing. The Employer will opt out of Nova Scotia Workers’ Compensation Act coverage for Union members within sixty (60) days of signing the collective agreement.
and in part of clause 32.07:
32.07 ... Payment of this amount is the Employer’s total liability with regard to occupational injury or illness which would otherwise be covered under the Workers’ Compensation Act as amended from time to time.
[24] Finally, clause 32.10 said:
32.10 Employees will not pursue any civil action against the Employer and the employees will hold the Employer harmless for any injury or illness received on duty which would otherwise be covered under the Workers’ Compensation Act, as amended from time to time.
[25] Mr. Nelson also went on sick leave in September 1996. He was under the first collective agreement at that time. There was an agreement for his return to work on certain conditions but HRM did not accept that the hearing loss was an on-the-job injury. A grievance was filed by Mr. Nelson and he said that the City or HRM violated Article 16.04 of the previous agreement by failing to recognize the hearing loss as an on-the-job injury. That grievance was filed in February 1998. The grievance went through steps 1 and 2 under the collective agreement but was withdrawn because of the back to work agreement which had previously been entered into in 1996.
[26] In my view, these are the facts surrounding the dispute, the principal one of which is that the hearing loss was allegedly caused by an on-the-job injury.
[27] Regardless of how that is framed legally, that is the basis of the negligence claim now made. The negligence alleged arises from the employment governed by the collective agreement. I therefore conclude that the present action arises out of the employer/employee relationship and was governed by the collective agreement. A grievance procedure was begun with respect to the on-the-job injury alleged by Mr. Nelson but that grievance procedure did not continue.
[28] Before he retired, Mr. Nelson was subject to another collective agreement which dealt with on-the-job injuries and went on further to provide that, once the employer provided a payment to the union based on the Workers’ Compensation Board Industry rate for firefighters that was “the Employer’s total liability with respect to occupational injury or illness which would otherwise be covered under the Workers’ Compensation Act”. That agreement also provided that the employee would not pursue any civil action for any injury on duty.
[29] The third factor to which Justice Cromwell referred in the Pleau decision was the capacity of the scheme of grievance and arbitration and the legislation to afford effective redress. That is, as he said, where there is a right there ought to be a remedy.
[30] Mr. Chisholm says that the inability to come to the courts if summary judgment is granted will prevent Mr. Nelson from having a remedy. However, in the Supreme Court of Canada decision in Vaughan v. Canada, [2005] S.C.J. No. 12, Justice Binnie said in para. 39:
39 ... While the absence of independent third-party adjudication may in certain circumstances impact on the court’s exercise of its residual discretion (as in the whistle-blower cases) the general rule of deference in matters arising out of labour relations should prevail.
[31] In Nova Scotia Union of Public Employees, Local 2 v. Halifax Regional School Board, [1998] N.S.J. No. 434, Justice Cromwell said in para. 28:
28 ... In some cases, court action may be barred even though there is no remedy available through the arbitration process. For example, if a grievance is time barred, there may be no remedy available at arbitration and yet the Court may also decline jurisdiction: Piko v. Hudson’s Bay Co., (1997), 24 O.T.C. 238 (Gen. Div.). Similarly, a union may decide not to proceed with an individual employee’s grievance or settle it against the employee’s wishes and yet the Court may not take jurisdiction in the individual’s court action raising essentially the same complaint: ... The premise of such decisions is that all of the employees’ rights, substantive and procedural, in the given area are exhaustively codified in the collective agreement. There are no others to be asserted in Court.
[32] Justice Cromwell referred to the Piko decision where the claim for unjust dismissal could not be brought in the courts but an arbitrator had previously dismissed it as statute barred.
[33] I therefore conclude that this is not sufficient reason to allow the lawsuit to continue. Certain provisions of the collective agreement gave Mr. Nelson a remedy through arbitration. A scheme was set up under the collective agreement to provide coverage for occupational injuries.
[34] In my view, these provide a complete remedy for Mr. Nelson. If, for whatever reason they were not used or did not provide him a remedy that he considers adequate, I cannot conclude this is reason for the courts to become involved in a matter exclusively to be dealt with in accordance with the Trade Union Act and the relevant collective agreement. This is a comprehensive scheme to deal with matters of the employee/employer relationship.
[35] Of the cases cited to me, there were few in which the courts found that they did have jurisdiction. In Piko, although the unjust dismissal claim could not be dealt with in the courts, the malicious prosecution claim could be. The court there concluded that the employer went outside the collective agreement and called in police and a criminal prosecution was undertaken. It was therefore no longer a labour relations dispute.
[36] In Pleau, the claims were as set out by Justice Cromwell in the decision. He said at para. 80:
The allegations include:
- conspiracy to cause injury, loss and damage;
- intentional and malicious conduct designed to discredit the plaintiff, Paul Pleau’s, character and veracity,
- defamation in the course of an investigation into allegations made by Mr. Pleau in relation to the improprieties in his workplace,
- abuse of office and authority,
- breach of fiduciary duty; and
- negligent exercise of authority.
[37] In the following paragraph he specifically referred to parts of the statement of claim alleging more detail about those very things. That action was permitted to continue in the courts.
[38] In Quebec Human Rights Commission v. Quebec (Attorney General), [2004] 2 S.C.R. 185, some union members were alleging discriminatory provisions in the collective agreement and the dispute was, in part, with their own union. In Regina Police Ass’n Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, the arbitrator declined jurisdiction because a separate statute, The Police Act, governed matters of discipline and dismissal of police officers. In my view, this is a very different situation from that in those cases. This one is more like Weber where the allegation was of a tort as well as a Charter breach.
[39] Mr. Chisholm relies on the recent decision of Justice Murphy in Imperial Oil v. AOWU (2004), 227 N.S.R. (2d) 1 (S.C.). In that case, Justice Murphy concluded that the matter could be dealt with by the courts. The facts in summary were:
... The defendants, unionized and non-unionized employees, elected to receive a severance package and enhanced pension benefits upon the sale of their employer’s business - The employees also sought and obtained a partial wind-up of the employer’s pension plan - The employer brought an action claiming the employees committed a breach of contract (severance agreement) in seeking a partial wind-up - The employer sought relief in contract and, alternatively, sought relief based on restitution, constructive trust and unjust enrichment - The employees challenged the court’s jurisdiction - ...
[40] Justice Murphy concluded that he did not accept that the dispute arose from a collective agreement. He referred to the Trade Union Act which did not make arbitration mandatory but he also referred to the collective agreement in that case which provided that the employees “may”, not shall, seek redress through arbitration.
[41] Justice Murphy quoted from Pleau. He said in para. 44:
[44] The essential character of the present dispute does not arise from the collective bargaining process, or from the interpretation, application, administration or violation of a collective agreement. Rather, it relates to the interpretation of individual TCSAP contracts involving all the Defendants, the terms of which were subsequently incorporated into the Agreement with respect to some Defendants. ... The ‘essential character’ of the present dispute does not involve interpretation or application of the Agreement, it arises from interpretation of TCSAP and Releases executed by the Defendants - these were documents with genesis outside the Agreement, which were subsequently adopted and incorporated or referenced in the Agreement, which contains provisos that disputes may be referred to arbitration.
[42] He also referred to the fact that not all the employees in issue were union members and to the Judicature Act, R.S.N.S. 1989, c. 24 which directs that a multiplicity of proceedings should be avoided.
[43] Justice Murphy then concluded in paras. 50-52:
[50] The essential character of the dispute is not interpretation of a collective agreement, but of TCSAP and the Release, and the Plaintiffs seek remedies arising from breach of contract by non-union members and unjust enrichment, which an arbitrator has no jurisdiction to award.
[51] The integrity of the collective bargaining process and respect for arbitration provisions in collective agreements are very important, but in my view they do not override the need to avoid multiple and perhaps conflicting decisions on the same issue, a matter which goes to he integrity of the judicial system as a whole.
[52] Application of the factors enumerated in Pleau suggests that the Court should exercise jurisdiction with respect to disputes involving all Defendants in this case, and a multiplicity of legal proceedings should be avoided.
[44] In my view, that case was not analogous to this. There was no mandated arbitration procedure; there were non-union defendants; not taking jurisdiction would result in a multiplicity of proceedings with possible conflicting results.
[45] I therefore conclude that there is not an arguable issue in this case. Based upon the Agreed Statement of Facts, I conclude that Mr. Nelson has no real chance of success at trial. Summary judgment is granted for the defendant, HRM.
COSTS
[46] In my opinion, there appears no reason not to award costs in this case. I will award costs in the amount of $500.00 payable forthwith.
Hood, J.