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Civil and Administrative
Litigation Opinions
for Self-Reppers


Labour - Remedial LRA Exclusivity (Weber) - Exception: Malicious Prosecution

. Joseph v. Canada School of Public Service

In Joseph v. Canada School of Public Service (Div Court, 2023) the Divisional Court considered (and denied) an appeal by an employer defendant (who was governed by a collective agreement) from an interlocutory order, here that "dismissed the defendants’ motion to stay or dismiss the plaintiff’s claims" [under RCP 21.01(3)(a) - 'court has no jurisdiction over the subject matter of the action'], here where the issues revolved around the Weber bar upon civil actions and the court cited two cases where this doctrine was excepted for 'police involvement':
[9] Ms. Joseph also brought this lawsuit in which she is self-represented.

[10] The motion judge recognized that under the federal labour statute, issues concerning the terms and conditions of Ms. Joseph’s employment cannot be the subject of a lawsuit in this court. Labour issues are subject to grievance proceedings only. As a result, the judge dismissed all of Ms. Joseph’s claims except the two privacy torts pleaded against the employer and Mr. Leduc.



[14] The judge below made no errors of law. He understood the breadth accorded to considerations of whether a matter falls within the category of grievable claims. In para. 11 of the decision, he wrote:
[11] I would emphasize that what is grievable is not restricted only to issues arising from the collective agreement but also includes the application of federal statutes regulations and government directives in the workplace. This would include the Privacy Act, the alleged breach of which features prominently in the Plaintiff's allegations in her statement of claim.
[15] The judge considered two decisions of the Court of Appeal in Piko v. Hudson's Bay Co., 1998 CanLII 6874 (ONCA) and Rukavina v. Ottawa (Police Service Board), 2020 ONCA 533. In both cases, the Court of Appeal held this court has jurisdiction to hear actions against employers who reported misconduct to the police leading to criminal charges being brought. The Court of Appeal held such claims to be outside the scope of grievable employment issues.

[16] After reviewing the pleadings, the evidence permitted to be adduced on the motion, and the law, the motion judge held:
[29] In the Court's opinion, the allegations in the statement of claim alleging the torts of breach of privacy and intrusion upon seclusion directly relate to the employer's actions in involving the police. Assuming for the purposes of this motion that the pleaded allegations are true, the privacy breaches arose in the context of the police involvement and the information provided to the police by the employer. Based on the rulings of the Court of Appeal, referred to above, the essential character of these torts, relating to police involvement and potential resort to the criminal process, are not matters arising from the collective agreement. As such, they are actionable in the courts. The Defendant's security officer, Mr. Leduc, who interacted with the police as well as the employer, the CSPS on a vicarious liability basis, may be sued in the courts.
. Rukavina v. Ottawa (Police Services Board)

In Rukavina v. Ottawa (Police Services Board) (Ont CA, 2020) the Court of Appeal considered when a malicious prosecution lawsuit by a police officer against other police officers and the police board, was governed the collective agreement (as in Weber) or could proceed as a lawsuit. The court found that the action could proceed, as the appropriate issue was what the "essential nature" of the facts were [paras 30-66]:
[52] The facts relating to Mr. Rukavina are notably different. Mr. Rukavina is not alleging that he was unfairly disciplined by his employer. Rather, he is alleging that he was wrongfully charged with criminal offences after his fellow officers lied to the SIU and that his superior officers acted in a manner that continued to mislead the SIU. The allegations do not pertain to discipline. At their highest, these are allegations of criminal activity, knowingly and intentionally misleading a criminal investigation.


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Last modified: 21-02-24
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