by Stéphane Fillion and Romeo Aguilar Perez
It is well established in Canada that any legal action whose essential character arises from a collective agreement falls under the exclusive jurisdiction of an arbitrator, not the courts. Clearly, that includes a dispute between a unionized employee and his or her employer.
But what if a dispute involves not only a unionized employee and an employer but also other employees? In other words, can a unionized employee personally sue a colleague for damages that occurred while at work in the courts? According to a recent Quebec Court of Appeal decision in Barber c. J.T., apparently not.
This case involved a unionized employee (JT) who worked for the Canadian federal government. JT was known for being discreet 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 (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 this a death threat. As such, Barber 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 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 Superior Court of Quebec. She claimed damages for stress, anxiety, and harm to her reputation. But she didn’t just sue her employer. She added Barber, Nadel, and Schneider as defendants.
At trial, the Superior Court decided that it was able to hear the matter and ordered Barber, Nadel, and the employer to pay damages in the amount of $174,319 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 Court of Appeal overruled the Superior Court’s decision and said 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 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 employees.
Although a decision from Quebec, the Court of Appeal’s conclusion could apply right across Canada. This is because the provisions of the Public Service Labour Relations Act are similar to other Canadian labor relations laws in other provinces.
Nevertheless, it is surprising that the court rejected the action against Barber and Nadel. Why? Because:
• They are not parties to the collective agreement; and
• 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, however, whether the Court of Appeal’s conclusion would have been the same had the employer not been a defendant. That remains to be seen.