Counsel:
G.J. Baugh, Counsel for the Plaintiff
A. Wade, Counsel for the Defendant
¶ 1 STROMBERG-STEIN J. (orally):— I am going to borrow liberally from counsels' arguments; I am not going to refer to the numerous case authorities that counsel have referred to in their arguments in this ruling.
¶ 2 The underlying dispute concerns the administration of the Cement Masons Apprenticeship and Trade Promotion Fund (the "fund"). The dispute forms the subject matter of allegedly defamatory statements pleaded by the plaintiff in this action.
¶ 3 The fund was created by a collective agreement between the Construction Labour Relations Association of British Columbia ("CLRA"), and the Operative Plasterers and Cement Masons International Association, Local 919. Pursuant to the collective agreement, the fund was set up as a trust fund to be jointly administered by a board of trustees that comprised an equal number of union and management trustees.
¶ 4 Between June 21, 1991 and November 28, 2002, monies were expended from the fund without the participation of trustees appointed by CLRA, because no management trustees had been appointed when funds were expended.
¶ 5 On November 28, 2002, CLRA sent a grievance letter to the union concerning the administration of the fund. Further, on December 13, 2002, the fund's Board of Directors wrote to Local 919 demanding immediate and full restitution of improper expenditures. At this time the defendant was the business manager and secretary of Local 919.
¶ 6 On December 23, 2002, the defendant wrote to Mike McDevitt, who was the CLRA's Labour Relations Officer and the fund's acting chair appointed by the trustees. In part, the defendant stated that:
... Obviously, the funds have been under union control for a number of years. The only signing officers were in fact union officers. These facts as they are currently presented leave me with the opinion that the union is in fact 100% liable for the actions of any union officers that had given themselves signing authority unilaterally. ... |
¶ 7 This is the first letter that the plaintiff pleads is a defamatory statement.
¶ 8 The plaintiff was the vice-president of the International Union, for which Local 919 is a B.C. Branch. On January 3, 2003, the plaintiff initiated union disciplinary charges against the defendant. By letter dated January 6, 2003, the union set a hearing date of January 17, 2003, to hear the complaint.
¶ 9 On January 13, 2003, Mr. Edgar, counsel for the defendant, wrote to the union with respect to the pending charges. It is part of this letter that forms the basis of the plaintiff's second allegation of defamation. In that letter counsel for the defendant stated in part:
Specifically, our preliminary review makes it clear that the issues which arise are inextricably intertwined with issues which involve Vice President Mary Thompson, and whether or not she (and others) have misappropriated over $300,000 of trust funds from Local 919's apprenticeship trust. |
¶ 10 The grievance letter was never heard on its merits. The matter was settled between CLRA and Local 919 on February 11, 2004. The grievance itself is withdrawn. The trustees of the fund were neither a party nor a signatory to the collective agreement between CLRA, its members, and Local 919.
¶ 11 The defendant argues that at the heart of the plaintiff's action is a question of whether the fund was improperly administered by Local 919 officers, including the plaintiff, from 1991 to 2002. The defendant has relied on a number of authorities considering the question of whether this court has jurisdiction over the subject matter of this action, or whether jurisdiction rests with an arbitrator pursuant to the collective agreement, which depends on the essential character of the difference between the parties and not the legal framework in which the dispute is cast. Here, the defendant argues that the real dispute arises under a collective agreement, and the jurisdiction to resolve it lies exclusively with the labour tribunal and not with this court.
¶ 12 The essential character of the dispute, as cast by the defendant, is that the real dispute is whether Local 919 and its officers, including the plaintiff, violated the collective agreement in their administration of the trust fund.
¶ 13 The position of the defendant is set out in summary in its argument as follows:
| (a) | both the plaintiff and defendant at the respective material times were union officers having rights and responsibilities arising out of the collective agreement; |
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| (b) | they were involved in the trust funds dispute, which had its foundation in the collective agreement; |
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| (c) | that the dispute was resolved by settlement pursuant to the grievance procedure provided for in the collective agreement; and |
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| (d) | the plaintiff by this action is seeking to litigate the precise issue that forms a basis for the grievance that could have been arbitrated pursuant to the collective agreement that has now been settled. |
¶ 14 For these reasons, it is the position of the defendant that this court has no jurisdiction to adjudicate the plaintiff's action, and that the action should be dismissed.
¶ 15 The position of the plaintiff, as set out in the plaintiff's argument, is that the defendant has not raised the jurisdiction issue in his pleadings; therefore, he should be foreclosed from relying on it. Further, the defendant has, in fact, filed a counterclaim.
¶ 16 I am not going to deal with the matter on that basis. I am going to deal with it on the alternative basis presented by the plaintiff.
¶ 17 The position of the plaintiff is that the plaintiff's claim against the defendant is not a grievance under any collective agreement; rather, it is a tort claim for damages for defamation and the court retains jurisdiction over defamation claims. Plaintiff's counsel has provided a number of authorities that stand for that proposition.
¶ 18 I agree with the plaintiff that the dispute between the plaintiff and the defendant does not rise under a collective agreement; nor does it relate to any labour dispute over which the Labour Relations Board would have jurisdiction. The plaintiff was not an officer of Local 919 of the Operative Plasterers and Masons International Association; nor was she employed under any collective agreement between Local 919 and any member of the CLRA.
¶ 19 I agree with the position of the plaintiff that the plaintiff could not avail herself of the grievance procedures set forth in any such collective agreement with respect to her defamation claims against the defendant.
¶ 20 The defendant has not put in evidence the specific wording of the collective agreement being relied upon as a basis to deprive this court of jurisdiction. The defendant should have put it in evidence so that this court could have regard to the specific terms of the collective agreement.
¶ 21 I am satisfied that there is no evidentiary or factual basis for this court to rule that it lacks jurisdiction as a result of the provisions of that collective agreement. Regardless, the plaintiff is not a party to that collective agreement, and could not avail herself of any grievance procedure under that collective agreement with respect to the alleged defamatory statements for which she is suing the defendant.
¶ 22 Further, I agree with the plaintiff's argument that neither the defendant's letter of December 23, 2002, nor his counsel's letter of January 13, 2003, the alleged defamatory publications, formed any part of the grievance process under the collective agreement in place between Local 919 and CLRA. The grievance was never heard on its merits. It was withdrawn by CLRA on February 11, 2004. The trustees of the fund were not parties nor signatories to the collective agreement between CLRA, its members, and Local 919. Further, the fund was a trust fund administered by a board of trustees.
¶ 23 In my view, it is the court that has jurisdiction in this case; not an arbitrator appointed under a collective agreement. As a result, the defendant's application for judgment on the issue of jurisdiction is dismissed.
¶ 24 I have concerns, and concern has been expressed by the plaintiff, that the defendant is litigating in instalments, seeking judgment on discrete issues only. I have only dealt with this one issue because there is not sufficient time to deal with all of the other issues, but it appears that there may be some validity to that concern.
¶ 25 Having read all of the material, I will just comment that I have serious doubts whether any of the remaining issues are suitable for disposition under Rule 18A. Certainly it will not assist in the effective resolution of the matter; nor is it a good use of court time or resources. You can take my comments for what they are worth; in my view the remaining matters should go to a full trial.
¶ 26 With respect to costs?
(SUBMISSIONS ON COSTS)
¶ 27 I am satisfied that the appropriate order to be made is costs in the cause.
(FURTHER SUBMISSIONS)
¶ 28 THE COURT: Getting back to my comment at the outset, this matter should be mediated or there should be a settlement conference. This is expensive litigation, and somebody should attempt to sit down and resolve it without further litigation. Are the parties interested in setting it down for a settlement conference?
(SUBMISSIONS BY COUNSEL)
¶ 29 THE COURT: It seems to me that counsel should try and force the issue by getting the parties together to try to resolve this because it does not seem to be a matter that should go to trial.
STROMBERG-STEIN J.
QL UPDATE: 20040518
cp/i/qw/qlrds/qlsnv