The court does not have the jurisdiction to hear a professor’s claims against the University based on the torts of non-sexual common law harassment, intimidation, and unlawful interference with economic interests. In the result, the action was dismissed. The essential nature of the dispute related to the working conditions of employees and the failure of the University to take adequate measures to ensure a safe and harassment free working environment. The appropriate forum for the resolution of the dispute was the grievance and arbitration procedure set out in the collective bargaining agreement.

27. August 2002 0

Administrative law – Labour law – Arbitration – Collective agreements – Working conditions – Jurisdiction of court – Universities – Jurisdiction

Hemmings v. University of Saskatchewan, [2002] S.J. No. 457, Saskatchewan Court of Appeal, July 30, 2002, Vancise, Sherstobitoff and Jackson JJ.A.

A tenured professor commenced an action against the University for intimidation, intentional infliction of harm, unlawful interference with economic interests and non-sexual common law harassment, which she claims to have caused her emotional distress. She had been harassed at the University by a former boyfriend and had requested the University change locks and take adequate measures to protect her and her laboratory. In chambers, the judge found that the matters in dispute did not arise under the collective bargaining agreement and were not in their essential character a dispute regarding the meaning, interpretation, or violation of the collective agreement. Therefore, he refused to strike the Statement of Claim as against the University.

Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it (Weber v. Ontario Hydro, [1995] 2 S.C.R. 929). The allegations in the Statement of Claim essentially relate to the terms and conditions of the professor’s employment. All of the incidents including harassment, the vandalism of her research and the destruction of animals took place in the Department at the University. She alleged that the University failed to take adequate action to ensure safe and secure working conditions. It was also significant that she availed herself of the grievance and arbitration process of the collective agreement but was not satisfied with the result and subsequently sought the redress of the court.

A collective agreement by its very nature deals with the terms and conditions of employment and the working conditions of employees. Here, the essential nature of the dispute is a failure to comply with the obligations under the collective agreement to ensure safe working conditions. Thus, the appropriate forum for the resolution of the dispute is the grievance and arbitration procedure set out in the collective bargaining agreement and the Statement of Claim was struck against the University.

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