Employer argues previous actions addressed same issues
The Manitoba Court of King's Bench has dismissed a worker’s constructive dismissal claim because it falls under the exclusive jurisdiction of a labour arbitrator and had been addressed in other labour actions.
The worker was a unionized employee with the City of Winnipeg’s Police Service beginning in December 2000. The certified collective bargaining agent of which the worker was a member was the Winnipeg Police Association (WPA).
In December 2017, the worker applied for a lateral transfer to the city’s Community Relations Diversity Unit. A few months later, she learned that she wasn’t selected for the transfer and appealed through the WPA, but the city advised that she wouldn’t be transferred at that time.
About one year later, in April 2019, the worker filed a human rights complaint alleging that the transfer decision was discrimination on the basis of her ancestry. The Manitoba Human Rights Commission found that the worker had actively engaged her union on the same issues as those in her complaint. Since the labour process and the human rights complaint process overlapped and both could address human rights issues, the commission dismissed the complaint as an abuse of process.
Duty of fair representation
In April 2022, the worker resigned from her employment. The following month, she filed an application to the Manitoba Labour Board alleging that the WPA breached its duty of fair representation and committed an unfair labour practice. She also argued that she was constructively dismissed because of the actions of both the city and the WPA.
The board dismissed her application, finding that the WPA communicated with the worker and determined not to pursue her complaint over the transfer rejection. There was no suggestion that the WPA’s actions were discriminatory, arbitrary, or in bad faith, said the board, adding that the worker hadn’t requested to file a grievance about a possible constructive dismissal or any assistance relating to her resignation.
The board later dismissed an application for review and reconsideration by the worker.
In June 2023, the worker sued the city for constructive dismissal and breach of fiduciary duty owed to her as an employee. The city moved to strike the worker’s claim in its entirety on the grounds that the subject matter was the same as that of her human rights complaint and Labour Board application. The city also argued that the constructive dismissal claim was “scandalous and vexatious” and an abuse of process.
Jurisdiction of labour dispute
The court agreed with the city's argument that the core issues in the worker’s claim – related to an employment dispute from the transfer decision - had already been addressed by the Human Rights Commission and Labour Board. It found that the worker’s constructive dismissal claim was “an improper attempt to have this court reconsider the [human rights complaint] dismissal and [Labour Board] reconsideration dismissal.” The proper forum for such a reconsideration would be a judicial review of either decision rather than a new claim before the court, as both the commission and the board had jurisdiction to make such orders, said the court.
The court also noted that labour arbitrators hold exclusive jurisdiction over disputes arising from collective agreements, as provided for in the Manitoba Labour Relations Act. In addition, the Supreme Court of Canada previously ruled that employees can’t circumvent arbitration provisions in collective agreements, even where human rights issues are involved, unless the legislature provides otherwise through legislation.
The worker argued that her claim was outside the exclusive jurisdiction of the arbitrator, citing earlier case law that considered the impact of permissive grievance language in collective agreements. However, the court found that those precedents had been addressed by the Supreme Court of Canada, which acknowledged the statutory mechanisms available to challenge union inaction, such as filing an unfair labour practice complaint — something that the worker had done before the Labour Board.
The court determined the worker’s claim - framed as a constructive dismissal and breach of fiduciary duty – was related to a dispute tied to the collective agreement. As such, it fell within the exclusive jurisdiction of a labour arbitrator and not the courts.
No constructive dismissal grievance
The court noted that the worker had brought her issues to the WPA, which declined to file a grievance, and the board hadn’t found a failure of the WPA to meet its duty of fair representation under the Labour Relations Act.
The court also found that the worker’s claim contained scandalous and vexatious allegations and failed to disclose a reasonable cause of action or include sufficient material facts to support constructive dismissal.
The court accepted the city’s motion and struck the worker’s statement of claim in its entirety. See Duncan v. The City of Winnipeg, 2025 MBKB 33.
