Three Waterloo police officers are taking their case to the Ontario Court of Appeal after a Superior Court judge denied them class action certification on the basis the case did not fall under the court’s jurisdiction.
The three officers in the case have brought allegations that the Waterloo Regional Police Services Board breached the female officers’ s. 15 Charter right to be free from gender-based discrimination, are liable through the tort of harassment and are guilty of systemic gender-based discrimination and harassment. Of the 778-officer force in Waterloo, 23 per cent are female. The representative plaintiffs are officers Angelina Rivers, Sharon Zehr and Barry Zehr.
The plaintiffs also allege that the Waterloo Regional Police Services Association failed to provide a workplace free of gender-based discrimination and harassment, failed to ensure proper investigation of their complaints and “discouraged or ignored” their complaints and told them speaking out would harm their career, according to the decision.The plaintiffs also claim male police officers would refuse to respond to calls for backup from female police officers who had complained of sexual harassment.
“So their lives were literally put in danger by their male co-workers, as retaliation for having complained about various incidents,” says Douglas Elliott, partner at Cambridge LLP, who acted for the plaintiffs.
The defendants challenged the court’s jurisdiction under Weber v. Ontario Hydro, a Supreme Court case from 1995 in which an Ontario Hydro employee, accused of abusing sick-leave benefits, argued his employer’s use of a private investigator violated his union’s collective agreement and his Charter rights. The court found that when the “essential character” of the dispute arises from the collective agreement, the mandatory arbitration clause in the Labour Relations Act precludes the court jurisdiction.
Fatal to the certification motion was that although systemic negligence, sexual harassment and discrimination are violations of the officers’ collective agreement and the Human Rights Code, they fall under the category of “workplace discrimination” and do not violate common law, the decision states.
“The Court of Appeal is going to be looking at its old jurisprudence through an entirely different context,” says Elliott.
Typically, courts do not interfere in collective bargaining situations, because, historically, as exemplified in the Winnipeg general strike, they had done so to crush employees for the employers, says Elliott.
“Now, we are faced with this ironic situation where the courts stepping back means that the employees’ rights are going to be sacrificed,” he says. “I'm hoping that the Court of Appeal is going to look at its previous jurisprudence and say, ‘Well, that’s not what we were contemplating when we said there ought to be deference to human rights tribunals or a deference to collective bargaining regimes.’ The courts have inherent jurisdiction.”
According to the decision, the plaintiffs’ employment is governed by their collective agreements, which provide for binding arbitration under the Police Services Act and must deal with all complaints, according to s. 48(1) of the Ontario Labour Relations Act.
“Complaints and grievances about discrimination or sex-based harassment by the board, its management or any members are arbitrable under the collective agreements and are clearly within the jurisdiction of a specialized labour arbitrator to adjudicate,” the decision states.
Elliott says the Weber principles are being extended into situations where employees do not have the protection of the Labour Relations Act.
“I'm hoping that the Court of Appeal is going to see the injustice of that outcome in this situation and that they are going to either refine their jurisprudence on this issue or they’re going to overturn it,” he says.
“When you have a government actor who is therefore bound by the Charter of Rights, who is engaging in systemic charter violations and human rights violations, going back 40 years, and the administrative remedies or labour relations remedies that have been put in place to address it have clearly failed, It strikes me that the court has an obligation to deliver justice to these women,” says Elliott.
Cherri Greeno, media relations co-ordinator for the Waterloo Regional Police Service, directed Legal Feeds to a July 13 press release, which states that the decision “in no way diminishes the board’s and police service’s commitment to provide a safe, inclusive, equitable and non-discriminatory workplace for all of its members both uniform and civilian professionals.”
The WRPS statement also indicates that the police service is addressing systemic discrimination through its hiring in 2016 of an equity, diversity and inclusion officer and that the police service and police services board “will not be making any further comment in relation to the decision.”
“The defendants should not regard this result as a vindication of current practices,” Baltman wrote in her decision. “I have considerable sympathy for the plaintiffs’ desire to have this litigated in court. Even on the limited and contradictory evidence before me, it is apparent that this case raises serious, triable issues relating to the workplace culture. The allegations are very troubling and will require close scrutiny should this matter proceed to another forum for adjudication.”
Elliott said the decision is one made only “on procedure.”
“So she was not suggesting that the allegations of harassment and institutionalized neglect were without foundation. She was simply saying that she didn't believe the courts were in a position to do anything about it.”
Legal Feeds asked the three lawyers representing the defendants for comment. Jodi Martin and Caroline Jones of Paliare Roland Rosenberg Rothstein LLP responded but could not obtain permission from their client, the Waterloo Regional Police Association, in time to go on the record.
In an emailed statement, James Bennett, who acted for the Waterloo Regional Police Services Board, said: “As counsel for the Waterloo Region Police Services Board I am pleased that Justice Baltman completely agreed with our position based on SCC and OCA precedents that the grievance and arbitration process provided for in the Collective Agreement and the Police Services Act and the Ontario Human Rights Tribunal processes are the appropriate mechanisms and forums for the adjudication and resolution of the Plaintiff’s allegations. It is also significant that Justice Baltman agreed that the Plaintiff’s proposed class action does not meet the test under the Class Proceedings Act to be certified."
Bennett also commented that the rulings are "completely consistent with precedent case law and reinforces the legitimacy of the grievance and arbitration process prescribed by Ontario legislation and the remedies available at the Human Rights Tribunal both of which involve specialized, neutral adjudicators."
"I want to stress that while Justice Baltman reached the correct result in this case her decision in no way diminishes my clients’ commitment to provide a safe, inclusive equitable and non- discriminatory workplace for all its uniform and civilian members.”
Editor's note: Story updated on July 19, 9:48 a.m. to include comment from James Bennett.