Can an employee who is subject to a collective agreement, sue his or her employer in the civil courts, for wrongful acts committed during the course of the employee's employment? In the case of K.A. v. Ottawa (City,)1 the Ontario Court of Appeal held they could not, even if the claims alleged sexual assault and even if the employee who it was alleged committed the assault was a co-defendant in the claim.
Two employees of the City of Ottawa commenced a civil action against the City alleging that the City was vicariously liable for alleged sexual assault and sexual harassment by a supervisor. They claimed that the acts were committed during working hours and that as a result, the City had failed to provide them with a safe work environment. The employees were members of a union and subject to a collective agreement. The City of Ottawa brought a motion to strike out the claims on the basis that:
- the dispute was subject to the exclusive jurisdiction of the grievance and arbitration process set out in the collective agreement;
- the claims of sexual harassment (including sexual assault) were claims of discrimination under the Canadian Human Rights Act ("CHRA"); and
- sexual harassment is not a tort subject to a civil claim.
The motions court struck the claims of sexual harassment and found that they were properly subject to the grievance and arbitration process of the collective agreement. The claims of sexual assault, however, were allowed to continue in the Superior Court. The City appealed.
The Ontario Court of Appeal allowed the appeal and the Statement of Claim was struck out in its entirety. In arriving at its decision, the Court found that claims of physical contact, even those capable of amounting to assault, could form part of a pattern of conduct of sexual harassment as defined under human rights legislation. It is well settled that the duty to enforce human rights legislation is incorporated into collective agreements and an employer is required to act in a manner that upholds the requirements of such legislation. The Court of Appeal set out the two step analysis from the Supreme Court of Canada case Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General)2: 1) what does the legislation say; and 2) what is the nature of the dispute and does the legislation suggest the exclusive jurisdiction of the arbitrator to resolve the dispute? On the application of this test, the Court found that the provisions of the Canada Labour Code gave exclusive jurisdiction over this work place dispute concerning sexual harassment, including claims of assault, to the arbitrator.
Further, the collective agreement had a comprehensive grievance and arbitration procedure and as the claims pled that the conduct arose in the workplace, the plaintiffs could not avoid arbitration by simply pleading a common law tort.
Applying the leading case of Weber v. Ontario Hydro3 that requires the decision maker to find the essential character of the dispute to determine the arbitrator's jurisdiction, the Court of Appeal held:
Gap in Remedy
The employees also argued before the Court of Appeal that the court should maintain jurisdiction on the basis that the Plaintiffs may receive a lower damage award in arbitration due to the limits that the CHRA imposed as to the amount of damages that may be awarded. The cap of $20,000 for pain and suffering, and the cap of $20,000 for willful or reckless discrimination under the CHRA, appears to set a limit on damages at $40,000, (plus compensation for any lost wages or expenses incurred as a result of the discriminatory practice).
In analyzing the case, the Court of Appeal began with the assumption, without making any determination on damages, that the damages that the plaintiffs would receive by way of arbitration would be less than the amount a court could award in an action for sexual assault. Its inquiry was therefore whether that cap or limit on damages provided a basis for the Court to assume jurisdiction over the dispute. As the Court may exercise its inherent remedial jurisdiction where an arbitrator does not have the power to grant the required remedy, the question in this case was whether the plaintiffs would be deprived of an ultimate remedy as a result of the cap on damages. However, the Court of Appeal determined that the difference in monetary damages that could be awarded at arbitration did not amount to a remedial gap sufficient to justify the exercise of the Court's inherent remedial jurisdiction over this case. The arbitrator had the power to remedy the wrong, and therefore the matter, was properly the subject of the grievance and arbitration process.
Claims against Employees
What effect, if any, did the fact that the plaintiffs included, as a defendant, another employee? The Ontario Court of Appeal, applying Giorno, held:
"Giorno has been consistently followed for the proposition that where the dispute arises out of the collective agreement, it will not matter that the plaintiff seeks redress against a fellow employee, as Weber still demands that the dispute be heard by an arbitrator..."
In the result, the jurisdiction of the arbitrator applied to the entirety of the claims made in the Statement of Claim. Neither the limit on potential damages nor the fact that an employee was a co-defendant in the claim were sufficient to take the claim out of the adjudication process.
1  O.J. No. 1827 (C.A.)
2  25 C.R. 185:
3  2 S.C.R. 929
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