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COLLECTIVE AGREEMENTS - Civil actions - When available - Scope

Wednesday, August 09, 2017 @ 8:44 AM  

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Appeal by the plaintiff, Speck, from the dismissal of his action. The appellant was a unionized Crown employee from June 2002 until February 2014, when his employment was terminated following an investigation into alleged misconduct. Approximately one year prior to his termination, the appellant was reprimanded for sending a disrespectful email to a supervisor. He was suspended with pay in February 2013 while an investigation was carried out under the Crown's Discrimination and Harassment Prevention and Violence Prevention policies. Following his termination, the appellant commenced a claim pleading conspiracy to injure and unlawful means conspiracy, misfeasance in public office, abuse of process, defamatory libel, and slander. The respondents were the Crown, several Crown managers, and Docherty, a third-party hired by the Crown to investigate alleged the misconduct. The respondents successfully brought a motion to dismiss the action on the basis that it fell under the terms of the collective agreement and therefore was within the exclusive jurisdiction of the Grievance Settlement Board. The motion judge held the essential nature of the claim arose out of the collective agreement. Speck raised several grounds of appeal, including assertions that the motion judge misstated the legal test, erroneously held the claims fell within the ambit of the collective agreement and failed to rule impartially.

HELD: Appeal dismissed. The motion judge did not err in applying the legal test or in characterizing the pleadings in the claim as arising out of the collective agreement. The Crown did not step outside the collective agreement when it suspended the appellant under the Public Service of Ontario Act. Suspensions fell within the interpretation, administration, application or violation of the collective agreement, even if non-disciplinary. With respect to the claims against the third-party investigator, Docherty, the question was not how Docherty was labelled, but the substance of his alleged conduct. All of Docherty's conduct as described in the statement of claim was properly characterized as falling within the disciplinary procedures of the collective agreement. The collective agreement expressly stipulated that no employee could be disciplined or discharged without just cause. As a result, it was implicit that the Crown's managerial rights extended to investigating allegations of wrongdoing to determine if there was just cause to discipline or discharge an employee. The Crown’s reliance on a third-party investigator did not take the matter outside the scope of the collective agreement, as the essential character of the investigation fell within the ambit of the agreement. There was no substance to the allegation of bias.

Speck v. Ontario, [2017] O.J. No. 3218, Ontario Court of Appeal, K.M. Weiler, K.M. van Rensburg and G. Huscroft JJ.A., June 21, 2017. Digest No. TLD-August72017005