Masjoody v. Trotignon, 2022 BCCA 135 (CanLII), <https://canlii.ca/t/jnlfd>
The BC Supreme Court found that the subject-matter of the dispute were governed by a collective agreement and Dr. Masjoody’s pleadings were struck (Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, 1995 CanLII 108; 2021 BCSC 1502). The “essential character” of the dispute concerned treatment at his workplace and involved the interpretation, application, administration or alleged violation of the collective agreement. SFU terminated his employment in 2020 for “disruptive and insubordinate workplace and workplace-related conduct.” Briefly, Dr. Masjoody characterized the conduct of SFU and Dr. Trotignon as a conspiracy that “involved unlawful actions of defamation and sexual harassment.” The court concluded that it did not have jurisdiction. Dr. Masjoody was required to utilize the mandatory dispute resolution procedures under the collective agreement. The collective agreement contained a provision dealing with harassment. He appealed unsuccessfully.
The Court of Appeal found that the Supreme Court Justice correctly applied the framework under Weber (2021 BCSC 1502, para. 44):
- The two elements to be considered are the dispute and the ambit of the collective agreement (para. 51);
- Nature of the Dispute: In considering the dispute, the decision maker must attempt to define its “essential character”. The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement (para. 52). In considering the “essential character” of the dispute, the judge must not rely on the legal characterization of the claim as set out in the pleadings, but rather to the facts giving rise to the dispute (para. 43);
- Ambit of Collective Agreement: If the nature of the dispute is one coming within the ambit of the collective agreement, concurrent or independent court proceedings are not available (para. 45). Only disputes which “expressly or inferentially” arise out of the collective agreement are beyond the jurisdiction of the court (para. 54); and
- While the category of cases is not closed, common types of causes of action that have been brought where the court lacked jurisdiction include wrongful dismissal, bad faith on the part of the union, conspiracy and damage to reputation (para. 53).
In Phillips v. Harrison, 2000 MBCA 150, the Manitoba Court of Appeal determined that defamatory statements are work‑related and subject to collective agreement arbitration considering: (1) the comments concern the employee’s character, history, or capacity as an employee; (2) the comments were made by someone whose job it was to communicate a workplace problem; and (3) the comments were made to persons who would be expected to be informed of workplace problems. While the BCCA noted that “the Phillips framework is a useful, but not exclusive, means of examining whether defamatory statements are subject to mandatory dispute resolution procedures within collective agreements. The broader Weber framework continues to govern.” Even if the Phillips framework did not indicate that defamatory statements are work‑related, it is necessary, for the court to “dig deeper to determine if the defamatory statements nevertheless arise out of the interpretation, application, administration or violation of the collective agreement.” [para. 36]
The BCCA noted: “One element is Dr. Trotignon’s complaint to the Human Rights Office at SFU. The other element is comprised of various communications by members of the SFU administration which he calls “corporate defamation.” [para. 37] The BCCA concluded:
[42] Applying the Phillips framework, there is no dispute that the second and third criteria are met. The comments at issue were made by people whose job it was to communicate workplace problems and to people who would be expected to be informed of such problems. The amended notice of civil claim makes clear that the first criteria is also met. The comments at issue concern Dr. Masjoody’s “character, history, or capacity as an employee.”
….
[44] Even if the allegedly defamatory statements did not meet the first Phillips criteria, applying the broader Weber framework leads to the same conclusion.
Similarly, the conspiracy claims also fell within the ambit of the collective agreement.