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Labour - Remedial LRA Exclusivity (Weber) - Defamation. Bala v. Vanrivong
In Bala v. Vanrivong (Ont Div Ct, 2025) the Ontario Divisional Court dismissed a plaintiff unionized worker's appeal from a Small Claims dismissal, here where the lower court granted a "motion to strike the claim finding that the Act is clear in that the right to grieve is in lieu of the right to bring an action".
Here the court considers the Weber doctrine in the context of defamation:[31] Two, if an employee feels aggrieved because of any occurrence or matter affecting his or her terms and conditions of employment, s. 208(1)(b) of the Act provides that the employee is entitled to present an individual grievance.
[32] Conflicts related to an employee’s terms and conditions of employment have been found to include allegations of defamation, such as those alleged in the Appellant’s Small Claims Court action: Bron v. Canada (Attorney General), 2010 ONCA 71, 99 O.R. (3d) 749, at paras. 9, 14, 19 and 20; Thompson, at paras. 38-40.
[33] Three, I disagree with the Appellant’s assertion that the dispute with the Respondent arose outside the employment relationship, thereby not invoking the provisions of the collective agreement.
[34] The Appellant’s claim against the Respondent concerns a conversation that she had with the Respondent at the workplace about her managers and co-workers. In the Appellant’s Statement of Claim, she states that she met the Respondent in the lobby of the NHQ, and the discussion between them was about her manager and co-workers. The appellant alleges that the Respondent published on Facebook “false statements about me to others maliciously on social media, identifying me as the instigator and thereby destroying my reputation and created an environment where I could no longer work for the same employer.”
[35] There is no doubt that the essential character of the Appellant’s claim against the Respondent is employment related. The subject matter concerns statements made by and about colleagues and/or former colleagues. It happened at the workplace, and the alleged damages and/or consequences of these statements relate to her reputation in the workplace environment.
[36] Fourth, even if the Appellant did not exercise her right to grieve, as alleged, the court still does not have jurisdiction to deal with a workplace dispute such as the one in this case.
[37] The Court of Appeal for Ontario provides a helpful explanation of the applicability of sections 236(1) and (2) of the Act, stating, “Subject to the exception identified in s. 236(3), which has no application here, s. 236(1) declares that the right granted under the legislation to grieve any work related dispute is “in lieu of any right of action” that the employee may have in respect of the same matter. Section 236(2) expressly declares that the exclusivity of the grievance process identified in s. 236(1) operates whether or not the employee actually presents a grievance… [t]he result of the language used in ss. 236(1) and (2) is that a court no longer has any residual discretion to entertain a claim that is otherwise grievable under the legislation…”: Bron, at para. 29.
[38] In sum, the events referred to in the Appellant’s Statement of Claim pertain entirely to matters arising during the Appellant’s employment as a federal public servant. The Appellant’s terms and conditions of employment were either grieved by the Appellant or could have been grieved by the Appellant under the Act’s comprehensive grievance mechanism. Deputy Judge Iturregui appropriately concluded that s. 236 of the Act ousts the court’s jurisdiction to hear the matter.
[39] Therefore, Deputy Judge Iturregui was correct to dismiss the Appellant’s claim pursuant to r. 12.02(1) [SS: 'striking pleadings'] of the Small Claims Court Rules.
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