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| Julia Brewster |
Background
Gabriel, a surveyor employed by Surerus Pipeline Inc., commenced a civil action alleging he was assaulted at work by a co-worker, David Pecquery. Gabriel claimed that Surerus was vicariously liable for Pecquery’s conduct or, alternatively, negligent in failing to properly supervise or manage him. Gabriel further alleged wrongful dismissal, asserting that his termination was a direct consequence of reporting the assault.
Surerus and Pecquery argued the claims should be dismissed because the court lacked jurisdiction. The matters should be resolved by the collective agreement between the company and the union as all workplace disputes are resolved through the arbitration process. Pecquery applied to strike the claim or
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The employer’s jurisdictional objections were based on Surerus’ position that the claims fell within the exclusive jurisdiction of an arbitrator under the grievance procedure in the collective agreement. The agreement expressly provided that “any differences or disputes between the company and the union, or between the company and an employee or employees, relating to the interpretation, application, administration or alleged violation of this Agreement” must be referred to arbitration, and that the arbitrator’s decision “shall be final and binding.”
Secondly, claims for personal injuries sustained in the course of employment fall within the exclusive jurisdiction of the WCB under s. 127 of the Act. Pursuant to s. 122, the Act grants the WCB sole authority to determine who qualifies as a worker or an employer, and whether the incidents in question arose out of and in the course of employment.
Finally, s. 133 of the Act permits either the court or a party to request that WCAT determine whether, at the time the cause of action arose, an individual was a worker and whether the injury arose out of and in the course of that worker’s employment.
Issues in chambers
The chambers judge concluded that the evidence presented by Surerus was “not cogent enough” to establish whether the collective agreement applied to Gabriel’s employment. She further held that only the WCAT has authority to determine whether a claim is barred, as s. 127 of the Act requires an assessment of underlying employment relationships and circumstances, a matter within WCAT’s exclusive jurisdiction. Accordingly, the court cannot strike such a claim; it must instead be referred to WCAT through a s. 311 application.
Lastly, the chambers judge rejected the application for a stay of proceedings, reasoning that no active WCAT application had been made and that a stay would unfairly prejudice Gabriel, while Pecquery had not yet suffered any prejudice given the early stage of the proceedings.
Appeal
The B.C. Court of Appeal held that the chambers judge erred in her analysis of the collective agreement by misinterpreting both the pleadings and the evidence before her. However, the court found no error in her refusal to strike the claim on the basis of WCB jurisdiction. Finally, the BCCA concluded that the judge erred in declining to grant a stay of proceedings pending the WCAT’s determination.
The court observed that Gabriel’s own pleadings acknowledged his union membership and his coverage under the collective agreement. As a result, the essential character of his claims amounted to workplace grievances and employment disputes, matters that necessarily fall within the scope of the collective agreement. Relying on Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, the court applied the “Weber analysis,” which asks whether a dispute, in its essential character, arises from the interpretation, application, administration or violation of a collective agreement. Weber further recognizes that courts lack jurisdiction over claims such as wrongful dismissal, bad faith by a union, conspiracy, constructive dismissal and damage to reputation. Because Gabriel’s claims fit squarely within this framework, the court concluded they expressly arose out of the collective agreement, and thus an arbitrator had the authority to grant a remedy.
With respect to WCB jurisdiction, the Court of Appeal emphasized that the board’s adjudication policy expressly acknowledges the unique issues raised by assault-based claims and the difficulty of clearly defining the scope of its exclusive authority. The court held that this case was precisely the type that “calls out for the WCAT’s adjudication upon the question ‘whether the action is (entirely or partly) one the right to maintain which is taken away by the statute,’” and accordingly upheld the chambers judge’s refusal to strike the claim against Pecquery.
Finally, on the issue of a stay, the Court of Appeal reframed the central question as whether there was a serious issue as to WCB’s exclusive jurisdiction over all or part of the claims against Surerus and Pecquery. The court concluded that the only remaining inquiry was whether the balance of convenience favoured a stay. Significant weight was placed on the irreparable harm of wasted litigation costs, noting that the very purpose of a stay is to avoid unnecessary expense. Since there was a real possibility that WCAT might ultimately determine the matter fell within its jurisdiction, the case properly belonged before WCAT. Importantly, granting a stay would not indefinitely bar Gabriel’s claims: s. 311 of the Act permits courts or parties to request a WCAT ruling directly, and the stay would remain in effect only until such a ruling was made. The court therefore allowed a stay of proceedings.
Employers’ takeaways
Establish and document bargaining unit membership
- The court held that, while the chambers judge erred in finding it unclear, the record, including Gabriel’s own pleadings, established that he was a member of the bargaining unit.
- This underscores the importance for employers to:
- Maintain clear and accessible documentation confirming an employee’s bargaining unit status.
- Carefully review an employee’s own pleadings as their assertions can provide critical evidence supporting jurisdictional arguments.
- Maintain clear and accessible documentation confirming an employee’s bargaining unit status.
Assaults and workplace misconduct can trigger multiple jurisdictions
- Gabriel’s claim combined assault and wrongful dismissal, raising overlapping questions of collective agreement arbitration and WCB jurisdiction.
- When defending a workplace-injury related claim, employers should:
- Apply early for a stay pending WCAT review to avoid unnecessary trial preparation costs that may later be wasted if the court’s jurisdiction is ousted.
- Remember that WCB and WCAT have exclusive jurisdiction to determine whether workplace injuries, including those stemming from assaults, are barred by s. 127 of the Workers Compensation Act.
- Apply early for a stay pending WCAT review to avoid unnecessary trial preparation costs that may later be wasted if the court’s jurisdiction is ousted.
Julia Brewster is a summer articling student at Roper Greyell LLP. She is interested in all areas of labour and employment law.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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