Lapchuk v. Saskatchewan et al., (2015) 468 Sask.R. 170 (QB)

• Judge: Ball, J.
• Court: Court of Queen's Bench of Saskatchewan (Canada)
• Case Date: November 10, 2015
• Jurisdiction: Saskatchewan
• Citations: (2015), 468 Sask.R. 170 (QB);2015 SKQB 358

Lapchuk v. Sask. (2015), 468 Sask.R. 170 (QB)

MLB headnote and full text

Temp. Cite: [2015] Sask.R. TBEd. NO.045

David Brian Lapchuk (plaintiff) v. The Government of Saskatchewan and Her Majesty the Queen in Right of Saskatchewan, as represented by the Minister of the Department of Highways for the Province of Saskatchewan and Tom Davies and Scott Kreutzer and Brendon Pylatyk and Lyle Heinemann and Saskatchewan Government and General Employees' Union and Larry Bushinski (defendants)

(2014 Q.B.G. No. 1453; 2015 SKQB 358)

Indexed As: Lapchuk v. Saskatchewan et al.

Saskatchewan Court of Queen's Bench

Judicial Centre of Regina

Ball, J.

November 10, 2015.

Summary:

The plaintiff was employed by the Ministry of Highways and Infrastructure (MHI). He alleged that he was injured during a confrontation with a member of the public. The plaintiff applied to the Workers' Compensation Board (WCB) for benefits. MHI transferred the plaintiff to a new work team and office. The plaintiff was suspended for three days for refusing to vacate his office. He filed a grievance. One month later, MHI terminated the plaintiff's employment. The plaintiff filed complaints under the Occupational Health and Safety Act and the Human Rights Code (Sask.) and a grievance of the termination. His WCB claim was denied. The plaintiff filed an application with the Saskatchewan Labour Relations Board, alleging that his union and Bushinski, the union's labour relations officer, failed to represent him adequately. Both grievances went to arbitration. A hearing regarding the human rights complaint had been adjourned, pending completion of the arbitration hearing. The plaintiff commenced the within action against the government, two managers and two co-workers (the government defendants) and the union and Bushinski (the union defendants). Against the government defendants, the plaintiff alleged negligence, failure to accommodate, conspiracy and a claim of detinue, conversion and trespass to property regarding special ergonomic equipment that was in the plaintiff's original office. Against the union defendants, the plaintiff alleged a failure to represent him or to protect his employment rights. The government and union defendants applied under Queen's Bench Rule 3-14 to dismiss the action on the basis that the court lacked jurisdiction, except for the claim of detinue, conversion and trespass against the government defendants.

The Saskatchewan Court of Queen's Bench allowed the applications as applied for. The government defendants were not precluded from applying to strike the claim of detinue, conversion and trespass.

Editor's Note: For a related decision, see (2015), 468 Sask.R. 166.

Courts - Topic 8050

Provincial courts - Saskatchewan - Court of Queen's Bench - Jurisdiction - Labour disputes - The plaintiff was employed by the Ministry of Highways and Infrastructure (MHI) - He alleged that he was injured during a confrontation with a member of the public - The plaintiff applied to the Workers' Compensation Board (WCB) for benefits - MHI transferred the plaintiff to a new work team and office - The plaintiff was suspended for three days for refusing to vacate his office - He filed a grievance - One month later, MHI terminated the plaintiff's employment - The plaintiff filed complaints under the Occupational Health and Safety (OHS) Act and the Human Rights Code (Sask.) and a grievance of the termination - His WCB claim was denied - Both grievances went to arbitration - A hearing regarding the human rights complaint had been adjourned, pending completion of the arbitration hearing - The plaintiff commenced the within action against, inter alia, the government, two managers and two co-workers, alleging negligence, failure to accommodate, conspiracy and a claim of detinue, conversion and trespass to property regarding special ergonomic equipment that was in the plaintiff's original office - The defendants applied under Queen's Bench Rule 3-14 to dismiss the action, except for the claim of detinue, conversion and trespass, on the basis that the court lacked jurisdiction - The Saskatchewan Court of Queen's Bench allowed the application as applied for - The essential character of the dispute was the sustainability of the plaintiff's suspension and termination - These were matters that fell under the exclusive jurisdiction of an arbitrator acting under the collective agreement - The assertion of a conspiracy did nothing to alter the essential character of the dispute - The grievances and the OHS and human rights complaints all raised the same issues as the action - No matter which alternate forum assumed jurisdiction over the discrimination complaints, the court did not have concurrent original jurisdiction - The defendants were not precluded from applying to strike the claim of detinue, conversion and trespass - See paragraphs 20 to 35 and 40 to 44.

Courts - Topic 8050

Provincial courts - Saskatchewan - Court of Queen's Bench - Jurisdiction - Labour disputes - The plaintiff was employed by the Ministry of Highways and Infrastructure (MHI) - He alleged that he was injured during a confrontation with a member of the public - The plaintiff applied to the Workers' Compensation Board (WCB) for benefits - MHI transferred the plaintiff to a new work team and office - The plaintiff was suspended for three days for refusing to vacate his office - He filed a grievance - One month later, MHI terminated the plaintiff's employment - The plaintiff filed complaints under the Occupational Health and Safety Act and the Human Rights Code (Sask.) and a grievance of the termination - His WCB claim was denied - The plaintiff filed an application with the Saskatchewan Labour Relations Board (SLRB), alleging that his union and Bushinski, the union's labour relations officer, failed to represent him adequately - Both grievances went to arbitration - A hearing regarding the human rights complaint had been adjourned, pending completion of the arbitration hearing - The plaintiff commenced the within action against, inter alia, the union and Bushinski, alleging a failure to represent him or to protect his employment rights - The defendants applied under Queen's Bench Rule 3-14 to dismiss the action on the basis that the court lacked jurisdiction - The Saskatchewan Court of Queen's Bench allowed the application - The plaintiff's action raised the issue of fair representation - The law was well settled - This was a matter that was within the sole and exclusive jurisdiction of the SLRB - The assertion of a conspiracy did nothing to alter the essential character of the dispute - See paragraphs 36 to 43.

Labour Law - Topic 9076

Public service labour relations - Remedies - Civil action - When available - [See both Courts - Topic 8050 ].

Labour Law - Topic 9655

Public service labour relations - Collective agreement - Civil action - Jurisdiction - [See both Courts - Topic 8050 ].

Practice - Topic 9

General principles and definitions - Dispensing with compliance with rules - The plaintiff was dismissed from his employment with Ministry of Highways and Infrastructure - He commenced an action against the government, two managers and two co-workers (the government defendants) and the union and his union representative (the union defendants) - The government defendants filed a statement of defence - Subsequently, both the government and the union defendants applied under Queen's Bench Rule 3-14 to dismiss the action on the basis that the court lacked jurisdiction - As the union defendants had not filed a statement of defence, they were explicitly entitled to object to the court's jurisdiction under rule 3-14 - The government defendants asked the court to apply the curative provision of rule 1-6(4)(d) to allow the matter to proceed - The Saskatchewan Court of Queen's Bench allowed the application - It was in the overall interests of justice to hear the government defendants' application on its merits - See paragraphs 16 to 18.

Cases Noticed:

Kaufmann v. Saskatchewan Government and General Employees Union et al. (2012), 401 Sask.R. 164; 2012 SKQB 285, refd to. [para. 18].

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 24].

New Brunswick v. O'Leary, [1995] 2 S.C.R. 967; 183 N.R. 229; 163 N.B.R.(2d) 97; 419 A.P.R. 97, refd to. [para. 24].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23; 2000 SCC 14, refd to. [para. 26].

Blass v. University of Regina Faculty Association (2012), 400 Sask.R. 169; 2012 SKQB 247, refd to. [para. 27].

Hemmings v. University of Saskatchewan et al. (2002), 223 Sask.R. 295; 277 W.A.C. 295; 2002 SKCA 96, refd to. [para. 27].

Eckel v. Saskatoon (City) et al. (2009), 338 Sask.R. 255; 2009 SKQB 287, refd to. [para. 27].

Brown v. Saskatchewan Power Corp. (2008), 318 Sask.R. 144; 2008 SKQB 191, refd to. [para. 27].

T.L. et al. v. Conseil scolaire fransaskois (2014), 436 Sask.R. 196; 2014 SKQB 23, refd to. [para. 35].

Maurice v. Health Sciences Association of Saskatchewan (2009), 336 Sask.R. 275; 2009 SKQB 283, refd to. [para. 39].

Moldowan v. Saskatchewan Government Employees Union et al. (1995), 134 Sask.R. 210; 101 W.A.C. 210 (C.A.), refd to. [para. 39].

Floyd v. University of Saskatchewan Faculty Association et al. (1996), 148 Sask.R. 315; 134 W.A.C. 315 (C.A.), refd to. [para. 39].

Chabot v. Canadian Union of Public Employees, Local 4777, 2007 CanLII 68749 (Sask. L.R.B.), refd to. [para. 42].

Harabulya v. United Steel, Paper and Forestry, Rubber, Manufacturing Energy, Allied Industrial and Service Workers International Union (United Steelworkers), Local 9042, 2006 CanLII 10958 (Ont. L.R.B.), refd to. [para. 42].

Forster v. Canadian Airlines International Ltd. (1993), 109 D.L.R.(4th) 731 (B.C.S.C.), refd to. [para. 43].

Bergman v. Canadian Union of Public Employees, Local 608 et al. (1999), 11 B.C.T.C. 81; 1999 CarswellBC 1200 (S.C.), refd to. [para. 43].

Statutes Noticed:

Queen's Bench Rules (Sask.) - see Rules of Court (Sask.), Queen's Bench Rules.

Rules of Court (Sask.), Queen's Bench Rules, rule 1-6(4)(d) [para. 17]; rule 3-14 [para. 16].

Counsel:

David R. Barth, for the plaintiff;

Kyle T. McCreary, for the Government defendants;

Heather L. Robertson, for SGEU and Larry Bushinski.

These applications were heard by Ball, J., of the Saskatchewan Court of Queen's Bench, Judicial Centre of Regina, who delivered the following reasons for decision on November 10, 2015.