Ever since the Supreme Court decisions in Weber, O'Leary and Concordia, it is well established that any legal 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 unionised employee and an employer, but also other employees? In other words, can a unionised employee personally sue a colleague for damages that occurred while at work in the civil courts in Quebec or the common law courts in the rest of the country? According to the recent Quebec Court of Appeal decision in Barber v JT, apparently not.
This case involved a unionised employee (JT) who worked for the federal government. JT was known for being discreet and not sharing details of her personal life. In November 2009 JT decided to consult another federal government employee (Barber), responsible for the employee assistance programme, about a personal concern. During the consultation, JT revealed to Barber that over the last few weeks, she had dreamt that she was killing her father.
Barber considered that this was a death threat. As such, Barber interrupted the consultation to ask her colleague (Nadel), also responsible for the programme, 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 presented no 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 programme, she had to provide a medical certificate attesting that she was mentally fit to return to work.
When she finally returned to work, JT felt 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 sue in the Quebec Superior Court. She claimed damages for stress, anxiety and harm to her reputation. She did not just sue her employer; she also added Barber, Nadel and Schneider as defendants.
At trial, the Quebec Superior Court decided that it could hear the matter and ordered Barber, Nadel and the employer to pay damages in the amount of C$174,319.00 to JT.
Before the Quebec Court of Appeal, the defendants argued that the dispute fell under the exclusive jurisdiction of the arbitrator. After analysing the Public Service Labour Relations Act, the Quebec Court of Appeal overruled the first-instance decision and confirmed that only an arbitrator had jurisdiction to decide the dispute. It therefore dismissed the lawsuit 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. According to the court, in such circumstances the question is whether the essential character of the dispute concerns a dispute relating to the conditions of employment. The court added that a dispute cannot circumvent the grievance procedure, even if it relates to a personal conflict between employees.
Although this was a decision from Quebec, the conclusion could apply in other jurisdictions, as the provisions of the Public Service Labour Relations Act are similar to other Canadian labour relations laws (eg, the Canada Labour Code, the Quebec Labour Code and the Ontario Labour Relations Act, 1995).
Nevertheless, it is surprising that the court rejected the action against Barber and Nadel, given that:
- they were not parties to the collective agreement; and
- the courts have repeatedly said that an arbitrator does not have jurisdiction over a third party who is not a party to the collective agreement.
One may wonder whether the conclusion would have been the same had the employer not been a defendant; that remains to be seen.
For further information on this topic please contact Stéphane Fillion or Romeo Aguilar Perez at Fasken Martineau DuMoulin LLP by telephone (+1 604 631 3131) or email (email@example.com or firstname.lastname@example.org). The Fasken Martineau DuMoulin LLP website can be accessed at www.fasken.com.
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