Date: 20071022
Docket: T-818-07
Citation: 2007
FC 1094
Toronto, Ontario, October 22, 2007
PRESENT: Madam Prothonotary Milczynski
BETWEEN:
DENNIS BOISSONNEAULT and
RODNEY LLOYD HOFF
Plaintiffs
and
CANADA POST CORPORATION,
ASSOCIATION OF POSTAL OFFICIALS OF CANADA,
ALTERNATIVE DISPUTE RESOLUTION SERVICES
and
(CANADIAN HUMAN RIGHTS COMMISSION)
Defendants
REASONS FOR ORDER AND ORDER
[1]
This
motion to strike the statement of claim and dismiss the action is brought by
Canada Post Corporation (“Canada Post”) and the Association of Postal Officials
of Canada (“APOC”). The Canadian Human Rights Commission (the “Commission”) or
the Alternative Dispute Resolution Services group of the Commission did not
file a separate motion. The Commission, however, filed submissions consenting
to an order that would strike the entire claim.
[2]
Upon
review of the statement of claim, it is plain and obvious that many of the
claims as advanced by the Plaintiff, Dennis Boissonneault arise from his
employment with Canada Post and the interpretation or application of the terms
of the applicable collective agreement that governed the terms and conditions
of his employment. The claims fall within the exclusive jurisdiction of the
grievance and arbitration procedure provided by a collective agreement. Those
that do not fall within the scope of the collective agreement between Canada
Post and APOC, fall within the scope of the collective agreement between Canada
Post and the Canadian Union of Postal Workers (“CUPW”) – (claims that Mr. Boissonneault
was not paid the proper amount between 1998-2000).
[3]
The claims
advanced by the Plaintiff, Rodney Lloyd Hoff are ancillary claims all of which
arise from the employment relationship between Mr. Boissonneault and Canada
Post. The allegations do not disclose a reasonable cause of action as against
any of the Defendants that may be advanced by Mr. Hoff.
[4]
For the
reasons set out below, I conclude that all of the claims should be struck, and
the action dismissed in its entirety. The essential character of the dispute
falls within the scope of the collective agreement, and as against Canada Post
and APOC, cannot succeed by way of this action. With respect to the
Commission, any challenge of a decision of the Commission made in respect of
the Plaintiffs, must be taken by way of application for judicial review
pursuant to section 18.1 of the Federal Courts Act, (see: Grenier v.
Canada, [2005] FCA 348).
Background Facts
[5]
As set out
in the written submissions of Canada Post, Mr. Boissonneault commenced employment
with Canada Post on November 9, 1998. He was first a temporary letter carrier,
and then on March 5, 2001, he became a part-time mail service courier – a
position he held until September 26, 2001.
[6]
During
that time, Mr. Boissonneault was represented by CUPW and was bound by the
collective agreement between Canada Post and CUPW. This collective agreement
governed the terms and conditions of employment, including applicable pay rates
and pension, and also provided for a grievance and arbitration procedure for
disputes arising out of the collective agreement – including disputes relating
to termination of employment, alteration of existing working conditions,
payments of premiums, allowances or other benefits and any discriminatory
application of such premium, allowance or financial benefit.
[7]
Mr.
Boissonneault became a supervisor at Canada Post in 2001. As such, he
commenced being represented by APOC and bound by the collective agreement
between Canada Post and APOC. During the relevant time in this proceeding,
there were two collective agreements. One was in force from June 7, 2001 to
March 31, 2005; and the other was and continues in force from April 1, 2005 to
March 31, 2009.
[8]
The terms
of the collective agreement between Canada Post and APOC govern the terms and
conditions of employment, including such matters as termination, pay and
benefits, staffing procedures, harassment and discrimination. The collective
agreement also provides for a grievance and arbitration procedure for
differences between the parties arising out of the interpretation, application,
administration or alleged violation of the collective agreement.
[9]
Thus at
all material times relevant to this proceeding, Mr. Boissonneault has been
represented by a union – either CUPW or APOC, and his employment has at all
times been governed by the terms of a collective agreement.
[10]
Nonetheless,
in May of 2007, Mr. Boissonneault commenced this action, claiming in excess of
$17 million in damages based on allegations of workplace harassment, discrimination,
dismissal and various torts. The statement of claim also alleges that Mr.
Boissoneault was not paid properly while he was a letter carrier. Mr.
Boissonneault’s spouse, Mr. Hoff, claims damages for what essentially is the
harm alleged to have been caused to Mr. Hoff as a result of the treatment of
Mr. Boissoneault.
[11]
Certain of
the allegations relate to the actions of the Alternative Dispute Resolution
Services group of the Commission and their actions in mediating a settlement
between Mr. Boissonneault and Canada Post. Other allegations relate to the
failure of APOC to take appropriate action to represent Mr. Boissonneault.
Analysis
[12]
Rule
221(1) of the Federal Courts Rules provides that the Court may strike
out pleadings, with or without leave to amend, if it is satisfied that the
pleadings:
(i)
disclose
no reasonable cause of action or defence, as the case may be;
(ii)
are
immaterial or redundant;
(iii)
are
scandalous, frivolous or vexatious;
(iv)
may
prejudice or delay the fair trial of the action;
(v)
constitute
a departure from a previous pleading; or
(vi)
are
otherwise an abuse of the process of the Court.
[13]
It is well
settled that the courts have no jurisdiction with respect to matters which
arise out of the interpretation, application, administration or alleged violation
of a collective agreement that contains a binding arbitration clause. The
Supreme Court of Canada stated in Weber v. Ontario
Hydro (1995), 125 D.L.R. (4th) 583 (SCC), at pp.603-604:
Disputes which expressly or inferentially
arise out of the collective agreement are foreclosed to the courts…to
summarize, the exclusive jurisdiction model gives full credit to the language
of section 45(1) of the Labour Relations Act….It satisfies the concerns
that the dispute resolution process which the various labour statutes of this
country have established should not be duplicated and undermined by concurrent
actions. It conforms to a pattern of growing judicial deference for the
arbitration and grievance process and correlative restrictions on the rights of
parties to proceed with parallel or overlapping litigation in the courts.
[14]
In
determining whether the jurisdiction of this Court has been ousted, the
principles to be taken into account provide:
1. Labour arbitrators have exclusive
jurisdiction to resolve employment disputes arising
directly or inferentially out of a collective agreement.
2. Courts have adopted a deferential
approach when evaluating whether a particular dispute
arises out of a collective agreement.
3. There is a two-stage analysis to determine
whether the dispute, in its essential character,
arises in any way from the collective agreement:
(i) Courts
should define the essential character of the dispute by looking at the
surrounding
facts – as opposed to how the dispute might be characterized legally;
(ii) Then,
determine if that factual context falls within the scope of the collective agreement,
either implicitly or explicitly. (Lavigne v. Canada Post Corporation,
[2006] FCJ No. 1689 (FC); Bisaillon
v. Concordia University,
[2006] 1 S.C.R. 666).
[15]
I find
that the essential character of the Plaintiffs’ dispute as against Canada Post
involves issues related to alleged wrongful dismissal, pay, payment of
benefits, promotion, transfer and improper treatment. These are matters that
arise out of the employment relationship and out of the interpretation,
application or administration of the collective agreement either between Canada
Post and CUPW or Canada Post and APOC. Each respective collective agreement
contains provisions for a grievance and arbitration procedure. Accordingly,
that is the only appropriate forum for the resolution of these matters.
[16]
Specifically,
the Plaintiffs have made allegations as follows:
-
sexual
harassment – this is explicitly addressed in Art. 49 of the collective
agreement between Canada Post and APOC;
-
discrimination
– this is specifically addressed in Art. 43 and Art. 49 of the same collective
agreement;
-
aggravated
or constructive dismissal – this is specifically addressed in Art. 14.10 of the
collective agreement;
-
unjust pay
definition – pay rates and salaries are set out in Part IV and Appendix A of
the collective agreement between Canada Post and APOC; and Art. 35 and Appendix
A of the Collective Agreement between Canada
Post and CUPW;
-
that Mr.
Boissonneault was improperly denied health and welfare benefits coverage –
these are set out in Art. 26 of the collective agreement between Canada Post
and APOC;
-
that Mr.
Boissonneault experienced loss of salary while collecting long-term disability
benefits. The disability insurance plan, including entitlement to long-term
disability benefits is incorporated by reference in the collective agreement
between Canada Post and APOC in Art. 26. Salaries and wage rates are set out
in Appendix A of the collective agreement between Canada Post and APOC; and
-
that Mr.
Boissonneault suffered a loss of promotion and/or improper transfer.
Promotions and transfers are addressed in Art. 43 of the APOC collective
agreement.
[17]
As against
APOC, any complaint or dispute that the union did not advance claims properly
through the grievance or arbitration process or otherwise denied the assistance
that was required to be forthcoming, can only be the subject of an allegation
of a violation of the duty of fair representation.
[18]
As against
the Commission, any complaint or dispute that the Commission’s decision or
decisions were invalidly made or wrong or improper, can only be the subject of
an application for judicial review (Grenier v. Canada, [2005] FCA 348).
[19]
With
respect to the claims of Mr. Hoff, it is clear from the pleading that whatever
damages he is claiming, flow from the dispute between Mr. Boissoneault and
Canada Post, between Mr. Boissoneault and his union, and former union; and
between Mr. Boissoneault and the Canadian Human Rights Commission or its
Alternative Dispute Resolution Services group. Mr. Hoff has never been an
employee of Canada Post, and has never been a member of APOC. The Statement
of Claim does not disclose an independent or a reasonable cause of action that
Mr. Hoff may assert against any of the Defendants.
ORDER
THIS COURT ORDERS that
1.
The
statement of claim is struck without leave to amend.
2.
The action
is dismissed.
3.
If any of
the Defendants are seeking costs and the parties cannot agree, the parties may
file,
within twenty days of the date of this Order,
written submissions no longer than three (3) pages in length.
“Martha Milczynski”
Email this Content