Ever since the Supreme Court decisions in Weber(PDF),O'Leary(PDF),and Concordia(PDF), it is well established that any cause of action whose essential character arises from a collective agreement falls under the exclusive jurisdiction of an arbitrator. But what if a dispute involves not only a unionized employee and an employer but also colleagues? In other words, can a unionized employee personally sue a colleague in civil and common law courts for damages that occurred while at work? According to the recent Court of Appeal decision in Barber c. J.T.(PDF - available in French only),apparently not.
This case involved a unionized employee ("JT") who worked for the federal government. JT was known for being discrete and not sharing the details of her personal life. In November 2009, JT decided to consult another federal government employee ("Barber"), responsible for the Employee Assistance Program (the "EAP"), about a personal concern. During the consultation, JT revealed to Barber that over the last few weeks, she dreamed that she was killing her father.
Barber considered that this was a death threat and interrupted the consultation to ask her colleague ("Nadel"), also responsible for the EAP, to contact the police. When the police arrived, they questioned JT about her statements and decided that a psychiatric assessment needed to be conducted at the hospital. The assessment concluded that she did not present any danger.
The human resources staff, several executives, and even the building security guards were informed of the details discussed during the meeting with JT. When JT reported for work the next day, her immediate supervisor ("Schneider") informed her that due to the information given in the context of the EAP, she had to provide a medical certificate attesting that she was mentally fit to return to work.
When she finally returned to work, JT had the feeling that her colleagues knew why she had been absent. She was uneasy and had the impression that she was being talked about. She then asked to be transferred to another department. The transfer was so unsuccessful, that JT was unable to carry out her duties.
JT then decided to institute proceedings before the Superior Court of Quebec, seeking damages for stress, anxiety, and harm to her reputation. Barber, Nadel, Schneider, and the Attorney General of Canada, as the employer, were named in the suit.
At trial, the Superior Court held that it had jurisdiction to hear the matter and condemned Barber, Nadel and the Attorney General of Canada to pay damages in the amount of $174,319.00 to JT.
Decision of the Court of Appeal
Before the Court of Appeal, the defendants argued that the dispute fell under the exclusive jurisdiction of the arbitrator. After analyzing the provisions of the Public Service Labour Relations Act (the "Act"), the Court of Appeal overruled the Superior Court's decision and held that only an arbitrator had jurisdiction to decide the dispute. It therefore dismissed the action against the employer as well as against Barber and Nadel.
The Court noted that the arbitrator has exclusive jurisdiction over almost every category of employment-related dispute. In other words, under the Act, jurisdiction to hear a dispute in which a public servant has a right to grieve is removed from the civil and common law courts. According to the Court of Appeal, in such circumstances the question is whether the essential character of the dispute concerns a dispute related to the conditions of employment. The Court added that a dispute cannot circumvent the grievance procedure even if it is related to a personal conflict between public servants.
The Court of Appeal's conclusion could apply in other jurisdictions since the provisions of the Act are similar to other Canadian labour relations laws, including the Canada Labour Code, the Quebec Labour Code, and the Ontario's Labour Relations Act, 1995.
Nevertheless, it is surprising that the Court rejected the action against Barber and Nadel since they are not parties to the collective agreement and because courts have held on a number of occasions that an arbitrator does not have jurisdiction over a third party who is not a party to the collective agreement.
Finally, given that the Court of Appeal limited its analysis to the nature of the dispute and not to the identity of the parties involved, the conclusion resulting from this decision is that a unionized employee cannot sue another employee before civil and common law courts for actions that occurred during or in the course of employment. However, one may wonder whether the Court's conclusion would have been the same had the action not involved the employer. No application for leave to appeal this decision to the Supreme Court of Canada has been filed.