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Court has jurisdiction over defamation action brought by unionized employee against employer

Jurisdiction: - British Columbia
Sector: - Education

The BC Court of Appeal has overturned a lower court decision that held that a public school teacher's defamation action against his principal and school board was a matter that arose under the collective agreement and was thus not within in the court's jurisdiction.


The teacher, while off on a medical leave, attended the school and caused a disturbance that resulted in criminal charges and disciplinary action by the BC College of Teachers. (The College's disciplinary action was subsequently overturned by the court on the basis that the teacher had been incompetent due to his medical condition).

As part of the same court action, the teacher brought the defamation action in relation to comments the principal had allegedly made to a police officer.

The school board took the position that, based on the principles set out in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, the collective agreement governing the teacher's employment was a bar to the court's jurisdiction to hear his defamation action. The lower court agreed with the school board on the basis that the teacher's lawyer had "conceded" this point at the hearing.

BC Court of Appeal's Decision

On an examination of the trial transcript, the BC Appeal Court found that the teacher's lawyer had not in fact conceded this point, and thus the teacher was allowed to advance his case on the merits on appeal.

Applying the Weber principles the court then determined that the "essential character" of the dispute did not arise either explicitly or implicitly from the interpretation, application, administration or violation of the collective agreement. As such, it was not a labour relations matter within the sole jurisdiction of an arbitrator.

In reaching this conclusion the BC Appeal Court noted that:

  • the fact the parties are employer and employee is not in and of itself determinative; and
  • the place at which the conduct in question occurred is not determinative either, as "matters arising from the collective agreement may occur off the workplace and conversely, not everything that happens on the workplace may arise under the collective agreement."

The BC Appeal Court then drew on a three-part framework articulated by the Manitoba Court of Appeal in Phillips v. Harrison, 2000 MBCA 150, to examine the defamatory statements. Specifically, the court in Phillips stated that the comments could be considered work related if they:

  1. concern the employee's character, history, or capacity as an employee;
  2. were made by someone whose job it was to communicate a workplace problem; and
  3. were made to persons who would be expected to be informed of workplace problems.

After reviewing the facts against this framework, the BC Appeal Court concluded that:

Despite the close connection to [the teacher's] employment, I am satisfied that what more aptly described as a "problem at the workplace", than as a "workplace problem.The police were not called because of anything done by [the teacher] qua teacher. Rather, they became involved because he was causing a disturbance at the school...(para. 43).

The Court went on to say that even if it had found that the "essential character" of the dispute arose under the collective agreement, it was not covered by the specific provision in the collective agreement that was being relied on by the school board.

Stuart v. Hugh 2009 BCCA 127