Federal worker sues colleague for defamation but hits legal roadblock

The Ontario Superior Court of Justice recently dealt with an appeal by a federal employee who attempted to sue a colleague for defamation in Small Claims Court.

The two workers had a conversation in a workplace lobby that became the subject of online discussion among other federal public servants.

The worker claimed that her colleague spread false information about what she had said during their conversation, damaging her reputation and creating an environment in which she could no longer work for the same employer.

The worker started a Small Claims Court action seeking damages for defamation. However, her colleague brought a motion to strike the claim, arguing the court had no jurisdiction to hear workplace disputes between federal employees.

The colleague argued that federal labour relations legislation requires such matters to be resolved exclusively through internal grievance procedures, not civil courts.

The case raised a fundamental question with broad implications for federal employees: can workers sue colleagues in civil court for workplace-related disputes, or must they use internal grievance processes? 

Legislative framework and grievance rights

The parties were governed by federal labour relations legislation providing that if an employee feels aggrieved because of any occurrence or matter affecting terms and conditions of employment, the employee is entitled to present an individual grievance. 

The legislation states that the right to grieve is "in lieu of" any right of action that the employee may have in respect of the same matter. Another provision expressly declares that the exclusivity of the grievance process operates whether or not the employee actually presents a grievance.

The colleague brought a motion to strike the worker's claim, arguing that jurisdiction lies exclusively with grievance procedures under the federal legislation and collective agreements.

The colleague argued that the Small Claims Court does not have jurisdiction to hear the matter because the jurisdiction lies exclusively with the grievance procedures and the collective agreements which govern the parties. The deputy judge heard the motion to strike the claim.

The worker sought leave to introduce fresh evidence on appeal, including written submissions, doctor's notes, social media transcripts, email correspondence, privileged settlement offers, emails with the union, and an affidavit. 

The fresh evidence requirements on appeal require consideration of whether the evidence could not have been available at trial by exercise of due diligence, whether the evidence is relevant to a decisive issue, whether the evidence is credible, and whether the evidence could reasonably have affected the result.

Worker's grounds of appeal outlined

The worker raised multiple grounds of appeal. The worker argued the incorrect representation of grievance filing, claiming she did not file a grievance against the colleague.

The worker alleged an erroneous conclusion regarding grievance outcome, arguing the deputy judge incorrectly concluded that the worker filed a grievance.

The worker argued misrepresentation of employment status, claiming the deputy judge erroneously portrayed the worker's employment status as employed when the worker was retired.

The worker alleged misrepresentation of resolution, arguing the deputy judge wrongfully assumed that internal grievance procedures resolved the issue between the parties.

The worker claimed legal representation errors, arguing her legal representative filed documents containing significant errors, including the false claim that the worker had filed and lost a grievance.

The worker argued that the deputy judge relied upon inaccurate information and failed to consider the worker's submissions during the hearing.

The worker claimed mischaracterisation of the claims, arguing the deputy judge misrepresented the worker's decision to file a civil claim as a failure to follow grievance procedures.

The worker submitted that the union recommended that she pursue the matter through the Small Claims Court.

The worker also argued that the deputy judge erred in concluding that sections of the legislation oust the jurisdiction of the Small Claims Court, submitting that defamation is a common law tort actionable independently of any collective agreement.

Court's analysis of fresh evidence

The court found it was not persuaded that the fresh evidence could not have, by the exercise of due diligence, been available at trial.

The court stated: "There are no compelling reasons why the documents proposed to be introduced by [the worker] as fresh evidence could not have been produced at trial." The court found much of the fresh evidence was not relevant as it did not deal with the issue of jurisdiction, which was the basis of the motion to strike the claim.

Most documents, such as written submissions, annotations to transcripts, email correspondence between the parties, and privileged settlement communications, were inadmissible as they were not evidence.

Other documents, such as doctor's notes, reference letters, and other email communication, may have been relevant to the hearing of the defamation claim, but they were not relevant to the question of jurisdiction.

The court noted the only fresh evidence that could possibly be admissible was the worker's affidavit, where she alleged that she never filed a grievance because her union advised her that it was a civil matter. However, the court found this evidence was contrary to the submissions and evidence the worker brought before the deputy judge.

The court stated that even if the worker's affidavit was possibly admissible, it would not have affected the result because the relevant provision operates irrespective of whether the worker grieved the facts underlying her claims.

Jurisdiction regardless of grievance filing

The court found the deputy judge properly relied upon the worker's own evidence filed and presented at the hearing of the motion to strike.

The court stated that even if it accepted the worker's position that her evidence was wrong or filed in error by her legal representative, and accepted the worker's submission that she never filed a grievance, this was nonetheless of no consequence.

The court found that during the alleged defamation incident, the worker was not retired but rather was an employee of the public service and as such had grievance rights under the legislation.

The court noted that even if the worker retired after the incident, federal court authority confirmed that former employees may grieve any issue that arose during the course of their employment.

The court stated that conflicts related to an employee's terms and conditions of employment have been found to include allegations of defamation.

The court disagreed with the worker's assertion that the dispute arose outside the employment relationship. The court noted that the worker's claim concerned a conversation at the workplace about her managers and co-workers.

The worker stated she met the colleague in the lobby of the national headquarters, and the discussion was about her manager and co-workers.

The court found: "There is no doubt that the essential character of [the worker's] claim against [the colleague] 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."

Exclusive jurisdiction of grievance process

The court found that even if the worker did not exercise her right to grieve, the court still did not have jurisdiction to deal with a workplace dispute.

The court referred to the appellate authority explaining the applicability of the relevant legislative provisions.

The court stated: "Subject to the exception identified in s. 236(3), which has no application here, s. 236(1) declares that the right granted under the legislation to grieve any work related dispute is 'in lieu of any right of action' that the employee may have in respect of the same matter."

The court noted the legislation expressly declares that the exclusivity of the grievance process operates whether or not the employee actually presents a grievance.

The court stated: "The result of the language used in ss. 236(1) and (2) is that a court no longer has any residual discretion to entertain a claim that is otherwise grievable under the legislation."

The court found that the events referred to in the worker's statement of claim pertained entirely to matters arising during the worker's employment as a federal public servant. The court concluded that the deputy judge appropriately concluded that the legislation ousts the court's jurisdiction to hear the matter.

Legal representation assistance claim rejected

The worker argued that her legal representative failed to include correct information when responding to the motion to strike.

The legal representative misstated the facts and chronology. The worker said she was ill at the time of filing documents, and her legal representative never contacted her to clarify the information.

The worker acknowledged signing the documents, trusting that the legal representative had properly followed her instructions.

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 the legal representative.

However, there are some civil cases in which the nature of the claim gives rise to a public interest that transcends the private interests of the litigants and requires that the worker be permitted to raise the incompetence of the legal representative as a ground for setting aside the judgement. The court found this was not one of those cases.

The court stated that even if the worker could advance ineffective assistance of legal representative as a valid ground of appeal, it would be inconsequential because it would not have affected the result.

The court found the relevant provision operates whether or not the employee actually presents a grievance.

The court stated: "Had the legal representative filed the correct documents, [the worker's] claim still would have been dismissed."

The worker's motion to admit fresh evidence and the appeal were dismissed.