Docket: T-1390-16
Citation:
2016 FC 1269
Vancouver, British Columbia, November 14, 2016
PRESENT: Prothonotary Roger R. Lafrenière
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BETWEEN:
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DARREN OMAN
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Plaintiff
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and
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HUDSON BAY PORT
COMPANY
DBA PORT OF
CHURCHILL
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Defendant
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ORDER AND REASONS
[1]
On August 18, 2016, the Plaintiff, Darren Oman,
commenced an action in damages against the Defendant, Hudson Bay Port Company,
alleging wrongful or constructive
dismissal. The salient facts as alleged in the Statement of Claim may be
summarized as follows.
I.
Allegations in the Statement of Claim
[2]
The Plaintiff was employed since 2008 as a
stevedore by the Defendant, a federally incorporated company which operates the
transportation business for the Port of Churchill, Manitoba. As an employee, he
was also a member of the Public Service Alliance of Canada, UCYE Local 50503
Union (PSAC), which had entered into a collective agreement governing the
relationship between the parties (Collective Agreement).
[3]
On December 3, 2013, the Plaintiff’s employment
was terminated by the Defendant for disciplinary reasons. The Plaintiff grieved
the disciplinary action and the matter proceeded to arbitration pursuant to the
terms of the Collective Agreement. On December 15, 2015, an arbitrator found
that the Plaintiff was wrongfully terminated and ordered the Defendant to
reinstate the Plaintiff at the start of the 2016 season.
[4]
Due to concerns for his health and safety, and
possible retaliation by the Defendant, the Plaintiff submitted a letter on
March 18, 2016 offering to waive his right to return from work in exchange for
payment of his lost wages and punitive damages. The Plaintiff claims that the
Defendant did not respond to his letter but instead advised PSAC that it would
seek legal action against the Plaintiff.
[5]
The Plaintiff alleges that the Defendant “wrongfully and/or constructively dismissed him without just
and without reasonable or any notice” on or about June 16, 2016 by
sending him a letter which “unilaterally and
substantially” altered the terms of the Plaintiff’s employment.
According to the Plaintiff, he was offered a lower paying position and his
employment was made conditional pending the results of a disciplinary hearing.
[6]
The Plaintiff treated the Defendant’s conduct as
a repudiation of his contract of employment. Since he had not been reinstated
as ordered by the arbitrator, the Plaintiff did not consider himself bound by
the grievance procedure contained within the Collective Agreement and concluded
that he had standing to commence a civil action.
II.
Defendant’s Motion to Strike
[7]
The Plaintiff claims general, special and
punitive damages because the dismissal by the Defendant was conducted “in a harsh, vindictive reprehensible, and malicious manner
that constituted an arbitrary and willful breach of the plaintiff's contract
for employment.”
[8]
The Defendant has moved to strike the Statement
of Claim under Rule 221(1) of the Federal Courts Rules [FCR] on
the grounds that the Federal Court does not have jurisdiction to adjudicate the
matters alleged or grant the relief claimed in the Statement of Claim, and that
the proceeding constitutes an abuse of process.
[9]
On a motion to strike out a pleading under Rule
221(1) of the FCR, the applicable test is whether it is “plain and obvious” that the claim discloses no
reasonable cause of action: Hunt v Carey, 1990 CanLII 90 (SCC), [1990] 2
SCR 959, [1990] SCJ No. 93 at paragraph 32 (QL). The "plain and
obvious" test applies to the striking out of pleadings for lack of
jurisdiction in the same manner as it applies to the striking out of any
pleading on the ground that it evinces no reasonable cause of action. The lack
of jurisdiction must be "plain and obvious" to justify a striking out
of pleadings at this preliminary stage.
[10]
Rule 221(2) provides that no evidence is
admissible on a motion to strike a statement of claim as disclosing no cause of
action. However, where the motion is based upon a want of jurisdiction, the
motion may be supported by evidence: MIL Davie Inc v Hibernia Mgmt & Dev
Co 1998 CanLII 7789 (FCA), [1998] FCJ No. 614, 226 NR 369 (FCA).
[11]
In support of its motion, the Defendant filed
the affidavit of Jeffrey McEachern sworn October 12, 2016 (McEachern Affidavit)
which sets out evidence with respect to the Plaintiff’s employment with the
Defendant. This includes a copy of the Collective Agreement between the
Defendant and PSAC which governs the parties; particulars about the termination
of the Plaintiff’s employment on December 3, 2013 and the grievance pursued by
PSAC on behalf of the Plaintiff; a copy of the arbitration award issued on
December 15, 2015 setting aside the termination and substituting a period of
suspension until the following spring; and a summary of events that transpired
following the arbitration award. As the McEachern Affidavit establishes
necessary facts going to the Court’s jurisdiction, I am satisfied that the
evidence is properly before the Court on this motion.
III.
Issue to be Determined
[12]
The Plaintiff alleges at paragraphs 23 to 31 of
the Statement of Claim that he was wrongfully dismissed or constructively
dismissed on or about June 16, 2016. The
point of this motion is not to quarrel with the allegations made by the
Plaintiff. He is, of course, entitled to his opinion and belief. The simple
issue before me is whether this Court has jurisdiction to entertain the
Plaintiff’s claim.
IV.
Analysis
[13]
The Plaintiff submits that he was not an
employee when he received the Defendant’s letter dated June 16, 2016. According
to the Plaintiff, the Defendant’s conduct constituted a
pre-employment breach of contract and is at the heart of his cause of action.
However, the Plaintiff is raising arguments and taking legal positions that are
not supported by any evidence.
[14]
The uncontradicted evidence before me
establishes that the Plaintiff was an employee at the time of the alleged
termination of employment in June 2016. The Plaintiff’s earlier dismissal was
set aside on December 15, 2015 by an arbitrator, who substituted a period of
suspension until the following spring. It follows that the Plaintiff was
immediately reinstated as an employee (albeit under suspension) and that he was
fully entitled to recall rights under Articles 11.03, 11.06 and 9.04(d) of the
Collective Agreement.
[15]
On March 18, 2016, the Plaintiff wrote a letter
to the Defendant, as alleged at
paragraph 20 of the Statement of Claim. The Plaintiff fails to mention,
however, that he requested payment of $265,000.00 for back pay, interest and damages “for all the pain, suffering and humiliation” he and
his family suffered because of “previous discrimination in the arbitration”.
He also fails to mention that he offered to “walk away
to forget all the pain, suffering and humiliation” the Defendant put him
through over the previous 2½ years upon payment of the amount of $530,000.00,
failing which he would “take everything public and call
every news station and reporters in the country and tell all about the
discrimination tactics used by [the Defendant] to violate [his] rights and
freedoms” during the arbitration hearing.
[16]
The Defendant wrote to the Plaintiff on June 16,
2016, pursuant to Article 11 of the Collective Agreement, to provide a Notice
of Recall to Work. The Plaintiff was informed that if he intended to accept the
callback to work, a disciplinary interview would be conducted with union
representation prior to his return to work to discuss the correspondence that
he sent to the Defendant in the off season.
[17]
The Plaintiff did not return to work. On July 5,
2016, the Vice President of Local PSAC submitted a letter stating that: “(i)n the absence of resignation from Mr. Oman, this letter
will serve as his resignation...”. The Plaintiff’s employment was
terminated effective July 8, 2016. No grievance was filed by the Plaintiff in
respect to any of the matters that arose following the issuance of the arbitral
award.
[18]
The Plaintiff’s
tort action for wrongful dismissal or constructive dismissal cannot stand as
the provisions of the Collective Agreement are broad and expressly regulate the
conduct at the heart of this dispute. Parliament has
created statutory remedies and institutions designed specifically to provide
redress to persons aggrieved and the court should not lightly intervene before
those statutory remedies have been exhausted – and even then, only by way of
judicial review.
[19]
Claims over which the courts have been found to
lack jurisdiction include wrongful dismissal, constructive dismissal and wide
range of workplace disputes covered by a collective agreement. In the seminal
decision of Weber v Ontario Hydro, 1995 CanLII 108 (SCC), [1995]
2 SCR 929 [Weber], the Supreme Court of Canada determined that where the
subject matter of a dispute is one that is covered by a statutory scheme or
collective agreement, the court should, as a general rule, defer jurisdiction
to the mechanisms set out in the applicable scheme (paras. 50-58 and 67).
[20]
The Federal Court is a court of statutory
jurisdiction. The tri-partite test for Federal Court jurisdiction was set out
in ITO International Terminal Operators Ltd v Miida Electronics Inc, 1986
CanLII 91 (SCC), [1986] 1 S.C.R. 752 at 766. There must be: (1) a statutory grant
of jurisdiction by Parliament; (2) an existing body of federal law essential to
the disposition of the case; and (3) the law must be a law of Canada. The
Federal Court of Appeal held in Canadian Pacific Ltd v United Transportation
Union, [1979] 1 FC 609 that a claim arising out of a collective agreement
was brought under a “statute of Parliament” for the purposes of section 23 of
the Federal Courts Act, because collective agreements are sustained by
the Canada Labour Code. However, the Court also held that the Canada
Labour Code gave labour arbitrators exclusive jurisdiction to resolve the
parties’ disputes, as later confirmed in Weber.
[21]
In Vaughan v Canada, [2005] 1 S.C.R. 146,
2005 SCC 11 (CanLII), the Supreme Court emphasized that regard must be had to
the facts giving rise to the dispute rather than the legal characterization of
the wrong to determine whether there is an adequate alternative remedy
(para.11). In all but the most unusual circumstances, the court should decline
jurisdiction and defer to statutory grievance schemes (para. 2).
[22]
The substance of the allegations made by the
Plaintiff in the Statement of Claim relates to a labour dispute between an
employee and his employer. The allegations set out at paragraphs 7 to 15 have
already been adjudicated and are res judicata. The balance of the
allegations relate to events that arose following the issuance of the arbitral
award. These are matters that clearly fall within the ambit of the grievance
procedure.
[23]
The Plaintiff was fully entitled to file a
grievance to challenge any decision made by his employer to terminate his
employment, as specifically provided in Article 7 of the Collective Agreement.
These remedies must be exhausted before the Plaintiff can turn to the court. Even
then, the relief must be sought by way of judicial review, and not through an
action. Alternatively, he could have taken steps to enforce the arbitral award
if he considered the terms of the Defendant’s letter dated June 16, 2016 to
have breached or frustrated the reinstatement order.
V.
Conclusion
[24]
Based on the foregoing, and for the reasons
provided in the Defendant’s written representations, which I adopt and make
mine, I conclude that it is plain and obvious that the Federal Court does not have
jurisdiction to entertain the Plaintiff’s claim. Accordingly, the Statement of
Claim shall be struck in its entirety.
[25]
As for costs, I see no reason to deviate from
the general rule they should follow the event. The Defendant has requested that
costs be awarded on a solicitor-client basis on the grounds that the
Plaintiff’s action is scandalous, frivolous and vexatious and constitutes an
abuse of process. However, solicitor-client costs are very much the exception
in this Court and should only be awarded when one party engages in conduct that
deserves sanction, which has often been described as conduct that is
“reprehensible, scandalous or outrageous”: Young v Young, 1993
CanLII 34 (SCC), [1993] 4 S.C.R. 3 at para 66; Louis Vuitton v Lin
Pi-Chu Yang, 2007 FC 1179 (CanLII) at para 55; Chrétien v Gomery,
2011 FCA 53 (CanLII) at para 3). No such conduct on the party of the Plaintiff
has been established by the Defendant. In the exercise of my discretion, I
hereby fix the costs of the motion and the action in the lump sum of $1,000.00,
inclusive of disbursements and taxes.
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