B.C. Supreme Court says it has jurisdiction to hear complaint
Ferreira v. Richmond (City), 2004 CarswellBC 2846, 38 C.C.E.L. (3d) 48 (B.C. S.C.)
The British Columbia Supreme Court has ruled it has jurisdiction to hear an action for an employee’s whistleblowing as it isn’t covered by the collective bargaining agreement he worked under.
Jose Mario Ferreira began working for the City of Richmond, B.C. in 1978. He was a member of the Canadian Union of Public Employees (CUPE), the exclusive bargaining agent for employees of the city.
Ferreira claimed that between 1998 and 2002, while working in the roads department, he noticed irregular practices by other employees and supervisors. He told a superior, which caused him to be harassed by employees and supervisors, he claimed. This caused him depression and anxiety and he was unable to work as a result.
He claimed the city failed to treat him fairly, ensure other employees would not harass him and provide a safe workplace. He filed an action against the city for personal injury, negligent supervision and breach of fiduciary duty. He also sought damages against the individual city employees for personal injury and pain and suffering.
The city claimed those issues were not within the jurisdiction of the court. Ferreira’s complaints stem from workplace conduct which arose from his employment. The collective agreement covered this, and arbitrators can use the province’s Human Rights Code and the federal Charter of Rights and Freedoms to resolve them, it argued.
Ferreira said the collective agreement did not touch on the conduct complained about, and was therefore within the jurisdiction of the court.
The B.C. Supreme Court referred to Pleau v. Canada (Attorney General), a 1999 Nova Scotia Court of Appeal ruling, in deciding the matter. The main considerations were:
•Does the governing legislation show a strong preference for a particular resolution process?
•Is the essential character of the dispute governed, expressly or by implication, by the legislation and the collective agreement?
•Is there effective redress for the complaints?
If the answers to these three questions are yes, then the legislation’s dispute-settling mechanism should generally be respected by the courts.
The court ruled in favour of Ferreira. The first and third tests were satisfied, but there was no expressed provision of the collective agreement that dealt with Ferreira’s complaints. Some of them fall within the Human Rights Code, but not all of them do. For example, the threat to burn or kill him are actionable independent of the code. Furthermore, the essence of his complaints was not that he was discriminated against because of his race, sexual orientation or place of origin. His complaint was that he was harassed because of his whistleblowing. An arbitrator could not cover the full scope of his claim by reference to the code, the court said.
The court noted that not all tort actions between employee and employer come within the jurisdiction of a labour arbitrator, even when they occur in the workplace. “This matter does not… arise from the interpretation, application, administration or violation of the collective agreement. This dispute is far outside the spectrum of typical employment disputes”, it concluded.
For more information see:
• Pleau v. Canada (Attorney General) (1999) 182 D.L.R. (4th) 373 (N.S. C.A.)
The British Columbia Supreme Court has ruled it has jurisdiction to hear an action for an employee’s whistleblowing as it isn’t covered by the collective bargaining agreement he worked under.
Jose Mario Ferreira began working for the City of Richmond, B.C. in 1978. He was a member of the Canadian Union of Public Employees (CUPE), the exclusive bargaining agent for employees of the city.
Ferreira claimed that between 1998 and 2002, while working in the roads department, he noticed irregular practices by other employees and supervisors. He told a superior, which caused him to be harassed by employees and supervisors, he claimed. This caused him depression and anxiety and he was unable to work as a result.
He claimed the city failed to treat him fairly, ensure other employees would not harass him and provide a safe workplace. He filed an action against the city for personal injury, negligent supervision and breach of fiduciary duty. He also sought damages against the individual city employees for personal injury and pain and suffering.
The city claimed those issues were not within the jurisdiction of the court. Ferreira’s complaints stem from workplace conduct which arose from his employment. The collective agreement covered this, and arbitrators can use the province’s Human Rights Code and the federal Charter of Rights and Freedoms to resolve them, it argued.
Ferreira said the collective agreement did not touch on the conduct complained about, and was therefore within the jurisdiction of the court.
The B.C. Supreme Court referred to Pleau v. Canada (Attorney General), a 1999 Nova Scotia Court of Appeal ruling, in deciding the matter. The main considerations were:
•Does the governing legislation show a strong preference for a particular resolution process?
•Is the essential character of the dispute governed, expressly or by implication, by the legislation and the collective agreement?
•Is there effective redress for the complaints?
If the answers to these three questions are yes, then the legislation’s dispute-settling mechanism should generally be respected by the courts.
The court ruled in favour of Ferreira. The first and third tests were satisfied, but there was no expressed provision of the collective agreement that dealt with Ferreira’s complaints. Some of them fall within the Human Rights Code, but not all of them do. For example, the threat to burn or kill him are actionable independent of the code. Furthermore, the essence of his complaints was not that he was discriminated against because of his race, sexual orientation or place of origin. His complaint was that he was harassed because of his whistleblowing. An arbitrator could not cover the full scope of his claim by reference to the code, the court said.
The court noted that not all tort actions between employee and employer come within the jurisdiction of a labour arbitrator, even when they occur in the workplace. “This matter does not… arise from the interpretation, application, administration or violation of the collective agreement. This dispute is far outside the spectrum of typical employment disputes”, it concluded.
For more information see:
• Pleau v. Canada (Attorney General) (1999) 182 D.L.R. (4th) 373 (N.S. C.A.)
