Administrative law – Labour law – Collective agreements – Jurisdiction of court – Defamation – Qualified privilege
Haight-Smith v. Neden,  B.C.J. No. 375, British Columbia Court of Appeal, February 27, 2002, Esson, Ryan and Levine JJ.A.
If the “essential character” of the dispute arises from the interpretation, application, administration or violation of the collective agreement, then the dispute must be dealt with by the dispute resolution process provided by the collective agreement and labour relations statutes and not by litigation in the courts: Weber v. Ontario Hydro,  2 S.C.R. 929, Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners,  1 S.C.R. 360. The Courts retain jurisdiction over disputes which do not expressly or inferentially arise out of the collective agreement and where a remedy is required that an arbitrator is not empowered to grant, to avoid a “real deprivation of ultimate remedy”.
With respect to the defamation claims, the Court applied the analysis in Phillips v. Harrison (2000), 196 D.L.R. (4th) 69 (Man.CA):
Thus, otherwise defamatory statements may be considered to be work-related and to be adjudicated pursuant to the alternative dispute mechanism if:
1. The comments concern the employee’s character, history, or capacity as an employee;
2. The comments were made by someone whose job it was to communicate a workplace problem; and
3. The comments were made to a person who would be expected to be informed of workplace problems.
Applying this test, there was no question that the “essential character” of the dispute arose under the collective agreement. All of the alleged defamatory statements related to the Appellant’s character, history and capacity as an employee. All were made by someone whose job it was to communicate a workplace problem: her immediate and indirect supervisors, representatives of her employer, her fellow teachers and other coworkers. Similarly, all of the comments were made to persons who would be expected to be informed of workplace problems, including parents and students who dealt directly with the Appellant.
Finally, the three Respondents (the school secretary, support worker and custodian) not covered by the collective agreement were protected by the defence of qualified privilege as the statements were made on an occasion of duty and not for any other improper purpose. On the evidence, there was no finding of malice.
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