Managers' comments came in context of workplace; collective agreement governs all workplace disputes
A defamation action by two workers against their managers is not within its jurisdiction and should be taken to a labour arbitrator, the Nova Scotia Supreme Court has ruled.
The Metro Regional Housing Authority (MRHA) is an agency of the Nova Scotia provincial government responsible for the administration and delivery of affordable housing solutions for low-income residents of the province. MRHA’s workforce is unionized.
On Oct. 30, 2020, two MRHA workers claimed to have witnessed a shooting while they were at work. They each applied for permanent impairment benefits by the Nova Scotia Worker’s Compensation Board (WCB), claiming that they sustained psychological injuries from witnessing the shooting. The WCB granted them benefits.
After the shooting, members of MRHA’s management team sent e-mails to each other implying that there was no supporting evidence of shots fired that day in the community. They also met with the two workers and implied that they didn’t believe that the shooting happened.
Defamation action
The workers felt that the managers essentially accused them of lying about the shooting, which they believed was defamatory and intentionally inflicting mental suffering on them. As a result, the workers filed a statement of claim against the managers on Jan. 5, 2023, at the Nova Scotia Supreme Court seeking damages “resulting from the defamatory statements of the [managers] and the ancillary negligent or intentional infliction of mental suffering that followed.”
The workers also argued that the MRHA’s conduct through its managers amounted to an “indirect attack” on their worker’s compensation benefits.
On Sept. 7, the managers filed a motion for summary judgment to dismiss the workers’ claim on the basis that it relied on a cause of action that was in the “exclusive jurisdiction” of labour arbitration, since the workers were unionized.
The workers countered that the dispute arose outside of the ambit of their collective agreement, so the court had jurisdiction to hear the case. They argued that the collective agreement grievance provisions only applied to suspensions of work and discharges.
Arising from collective agreement
The court noted that anytime a dispute between an employer and employees arises either expressly or inferentially from the collective agreement, courts have no jurisdiction to hear it. The Nova Scotia Trade Union Act (TUA) generally prevent the brining of civil actions in labour disputes, said the court.
The court also noted that the Supreme Court of Canada identified two conditions when a court could retain jurisdiction in a labour dispute – the dispute doesn’t arise from the collective agreement, and a remedy is required that an arbitrator isn’t empowered to grant.
The arbitrator pointed out that, in this case, the workers were seeking a remedy in the form of damages, which was a remedy that labour arbitrators can award. As a result, the action didn’t meet the second condition of the Supreme Court’s test, the court said, adding that arbitral jurisdiction had expanded to include “all disputes arising out of the workplace” including “the types of damage awards associated with the torts of negligence, intentional interference with economic relations, defamation, and the like.” This includes tort claims such as defamation, said the court.
“The remedy sought by the [workers’] (damages by way of defamation) can clearly be awarded by an arbitrator,” said the court.
As a result, the action came down to the first condition, whether the dispute arose from the collective agreement.
Labour dispute
The court once again referred to the TUA, which states that every collective agreement should provide for “final and binding settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or persons bound by the agreement…” This gives arbitrators exclusive jurisdiction over disputes between the parties to a collective agreement, the court said.
The court found that, regardless of whether the managers actually defamed the workers or not, the alleged defamation occurred “entirely within the workplace context,” as the managers’ statement arose from their job duties and within the context the workplace.
The court referred to a three-part test to determine whether allegedly defamatory statements arise from the collective agreement, as established by the Manitoba Court of Appeal – the comments concern the employee’s character, history, or capacity as an employee; the comments were made by someone whose job it is to communicate a workplace problem; and the comments were made to persons who would be expected to be informed of workplace problems.
In this case, the court found that the managers’ comments about the shooting directly concerned the history of the two workers and indirectly concerned their character and capacity as employees, as they were related to the workers’ ability to work. The comments also were made by managers who communicated the statements as part of their positions, said the court.
The court also found that there was no evidence to suggest that MRHA or the managers did anything to put the workers’ WCB benefits in jeopardy.
The court determined that the issues in dispute arose out of a workplace incident that was subject to the collective agreement, as it was “inextricably bound up with and related to the [workers’] employment” and fell under the exclusive jurisdiction of a labour arbitrator.
The motion to dismiss the workers’ claim was granted. See Ashley v. Nova Scotia (Attorney General), 2024 NSSC 104.
