Even if the court did have jurisdiction, the action would not obtain class action certification because “it does not identify a viable cause of action,” said the ruling.
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 that 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.
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.
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.
In her decision, Baltman wrote that the “defendants should not regard this result as a vindication of current practices.”
“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,” said the ruling.
Cherri Greeno, media relations co-ordinator for the Waterloo Regional Police Service, referred 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.”
In an emailed statement, James Bennett, who acted for the Waterloo Regional Police Services Board, said he was “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,” said the email statement.
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.”