Summary
In a recent decision, the Ontario Divisional Court (the “Court”) reaffirmed that civil courts do not have jurisdiction over issues that are fundamentally workplace disputes governed by a collective agreement or statutory grievance procedures – in this case, allegations of defamation between coworkers.
While the decision in Bala v. Vanrivong, 2025 ONSC 5800, involves a federally regulated employer, it is an interesting decision for a number of reasons applicable to unionized workplaces on a broader scale.
The Facts
The Appellant and Respondent were both employees within the federal public service. After a workplace conversation, the Respondent relayed her version of events to other employees in an online conversation. The Appellant alleged that the Respondent falsely claimed she had made negative comments about her manager and co-workers, creating a hostile work environment and damaging her workplace reputation.
The Appellant filed a Small Claims Court action for defamation. The Respondent successfully brought a motion to strike the Appellant’s defamation claim, arguing that the Small Claims Court lacked jurisdiction due to the exclusive jurisdiction of the grievance procedures under the Federal Public Sector Labour Relations Act (“FPSLRA”)and the collective agreement.
The Small Claims Court agreed and dismissed the claim. The Appellant appealed and sought leave to introduce various documents, including written submissions and affidavits, doctor’s notes, chat transcripts, and correspondence, as fresh evidence.
The Decision
Whether to Admit Fresh Evidence
The first issue the court dealt with was whether to allow the Appellant’s motion to admit fresh evidence on appeal.
The Court began its analysis by setting out the test for fresh evidence on appeal, which requires the consideration of four factors:
- whether the fresh evidence could not have, by the exercise of due diligence, been available at trial;
- whether the fresh evidence is relevant in that it bears upon a decisive or potentially decisive issue;
- whether the fresh evidence is credible in the sense that it is reasonably capable of belief; and
- whether the fresh evidence, if believed, is such that it could reasonably, when taken with the other evidence adduced at trial, have affected the result.
The Court refused to admit any of the Appellant’s fresh evidence, finding that they either did not deal with the key jurisdiction issue or that there were no compelling reasons why the proposed documents that were potentially relevant could not have been introduced at trial if the Appellant had exercised due diligence.
The only fresh evidence the Court considered as potentially admissible was the Appellant’s affidavit in which she alleged that she never filed a grievance against the Respondent because her union advised her that it was a civil matter. One of the Appellant’s grounds of appeal was that the Small Claims Court had incorrectly made a finding that she had filed a grievance against the Respondent that was deemed to be unfounded. The Court still did not admit this document as it would not have affected the outcome of the motion to strike. The Court reasoned that the exclusive jurisdiction of the grievance procedures under the FPSLRA operates irrespective of whether the Appellant grieved the facts underlying her claims against the Respondent.
Whether the Small Claims Court Erred
The Court then considered whether the Small Claims Court had made factual or legal errors in dismissing the Appellant’s defamation claim, finding it had not.
The Court found that the allegations of defamation pertained entirely to matters arising during the Appellant’s employment as a federal public servant. In reaching this conclusion, the Court stated:
[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.
As a result, the Court found that the dispute either was or could have been grieved by the Appellant under the FPSLRA’s comprehensive grievance mechanism as it relates to workplace disputes.
The Court concluded that the Small Claims Court was correct to dismiss the Appellant’s claim as being outside of its jurisdiction.
Ineffective Legal Representation
The Appellant raised one other ground of appeal, claiming that her legal representative had misstated the facts and chronology when arguing the motion to strike. The Appellant further stated that she was ill at the time of filing the documents and her legal representative never contacted her to clarify the information, such that the decision ought to be overturned on this basis.
The Court noted that allegations of ineffective legal assistance in a civil matter are properly raised by way of a negligence action brought by the client against their legal representative. However, there are some civil cases which give rise to a public interest that transcends the private interests of the litigants and requires that they be permitted to raise the incompetence of the legal representative as a ground for setting aside the judgment.
The Court held that this was not such a case and that, even if the Appellant could advance ineffective assistance of a legal representative as a valid ground of appeal, it would be inconsequential as it again would not have affected the result of the motion to strike. Even if the Appellant’s legal counsel had submitted materials respecting whether she had or had not previously filed a grievance, the exclusive jurisdiction of the FPSLRA would govern.
Takeaways
This case highlights that civil courts do not have jurisdiction over issues that are fundamentally workplace disputes governed by collective agreement or statutory grievance procedures.
The concept of exclusive jurisdiction is not specific to the federal jurisdiction. If a unionized employee is covered by a collective agreement containing a grievance/arbitration process, the civil courts will have no jurisdiction over disputes arising from the employment relationship which were or could have been grieved. As can be seen from this case, a central issue can be whether the dispute could be characterized as workplace related.
Previous cases have indicated that defamation claims between co-workers can fall within the category of grievable workplace matters. This case makes clear that even online messages, in this case through Facebook, are considered workplace related if the subject matter relates to the workplace, co-workers, and potential effects on the employment relationship.
As a final point, this decision highlights the importance of effective legal counsel to avoid the situation in which the Appellant found herself. The Court’s analysis regarding the Appellant’s motion to admit fresh evidence underscores the importance of engaging in due diligence at the trial level to ensure that all available evidence has been brought forward. The consequences of failing to do so can be harsh and are unlikely to be saved by a motion to admit fresh evidence on appeal.
Need More Information?
For more information or assistance with labour and employment matters, contact Ryan Parry at rparry@filionlaw.com or your regular lawyer at the firm.