



COURT OF APPEAL FOR ONTARIO

CITATION: Donovan v. Waterloo (Police
Services Board), 2022 ONCA 199

DATE: 20220310

DOCKET: C69467

Strathy C.J.O., Roberts and
Sossin JJ.A.

BETWEEN



Kelly
Lynn Donovan



Plaintiff/Responding Party (Appellant)

and

Waterloo Regional Police
Services Board and Bryan Larkin

Defendants/Moving Parties (Respondents)



Kelly Lynn Donovan, acting in person

Donald B. Jarvis and Clifton Yiu, for
the respondents

Heard: February 14, 2022 by video conference

On appeal from the order of Justice Thomas
A. Bielby of the Superior Court of Justice, dated April 19, 2021, with reasons
reported at 2021 ONSC 2885, and from the costs order, dated May 28, 2021.

REASONS FOR DECISION

[1]

This is an appeal from the motion judges order
pursuant to r. 21.01(3)(a) of the
Rules of Civil Procedure
, R.R.O.
1990, Reg. 194, dismissing this action for lack of jurisdiction.

Background to
the Appellants Resignation and this Action

[2]

The appellant is a former police officer,
employed by the respondent Waterloo Regional Police Services Board (the
Board). Her employment was subject to the terms of a collective agreement.
The respondent Bryan Larkin (Larkin) was the Chief of Police.

[3]

The following is a brief summary of the events
giving rise to these proceedings.

[4]

In May 2016, the Board gave the appellant notice
of an investigation under the
Police Services Act
, R.S.O. 1990, c.
P.15 (the 
PSA
) related to her alleged disclosure of confidential
information to the Board. On June 2, 2016, the appellant filed an application
with the Human Rights Tribunal of Ontario (the HRTO), alleging that that
Board had discriminated against her on the basis of sex and marital status.

[5]

In February 2017, the appellant took medical
leave for post-traumatic stress disorder as a result of observing an accidental
shooting while studying to become a police constable at the Ontario Police
College in February 2011.

[6]

On June 8, 2017, the appellant entered into an
agreement (the Resignation Agreement) with the Board. The appellants
bargaining agent, the Waterloo Regional Police Association, was a party to the
Resignation Agreement. That agreement expressly recognized that the appellant
and the Board had an employee-employer relationship and that the appellant had
notified the Board that she would be resigning her employment effective June
25, 2017.

[7]

The Resignation Agreement recited the parties
desire to fully resolve and settle the outstanding matters between them,
namely the appellants HRTO application and the Boards investigation into the
appellant and the potential charges she faced under the
PSA
. It stated
that the parties agreed upon full and final settlement of all matters related
to [the appellants] employment with or cessation of employment with the Board,
and all other outstanding matters between them. It was a term of the
Resignation Agreement that the terms and existence of the agreement would be
kept confidential except as required by law, disclosure to immediate family, or
disclosure to professional persons providing advice. The parties also agreed to
exchange releases and the appellant signed a full and final release that was
appended to the Resignation Agreement.

[8]

Although the Resignation Agreement is redacted,
it is apparent that the appellant was paid some compensation in respect of her
legal expenses incurred in connection with the HRTO proceedings and the potential
PSA
charges. She was also paid a lump sum payment, net of applicable
deductions and remittances required by law, presumably as compensation for the
termination of her employment.

[9]

In May 2018, the appellant commenced this
action, alleging a breach of the Resignation Agreement, seeking monetary
damages and reinstatement to employment. She pleaded that Larkin had breached
the Resignation Agreement because he had sworn an affidavit in defence of a
class action against the Board, in which he allegedly disclosed information
capable of identifying her as having resigned from the police force. The
affidavit was allegedly posted on a website maintained by plaintiffs counsel
in the class action.

[10]

In June 2018, the Board filed an application for
contravention of settlement with the HRTO, alleging that the appellant had
repeatedly contravened the terms of the Resignation Agreement by stating that
she had been constructively dismissed by the Board. The appellant filed a
response and her own application for contravention of settlement in July 2018,
alleging that Larkin breached the Resignation Agreement by swearing the
affidavit in the class action.

[11]

On February 1, 2019, Favreau J., as she then
was, dismissed a motion brought by the appellant to dismiss the Boards
application to the HRTO, finding that the Superior Court had no jurisdiction to
do so:
Donovan v. (Waterloo) Police Services Board
, 2019 ONSC 818, 49
C.P.C. (8th) 141. At para. 56 of her reasons, Favreau J. observed that it would
be open to the appellant to raise before the HRTO the issue of jurisdiction over
the enforcement of the Resignation Agreement and to respond to the Boards
position concerning the effect of that agreement:

during the hearing of this motion, I sought
assurances from the Board that it would not impede Ms. Donovans ability to
make substantive arguments before the Human Rights Tribunal despite the fact
that she may have missed some deadlines. In response, the Boards counsel gave
an undertaking in court not to take the position before the Tribunal that Ms.
Donovan is out of time to raise substantive arguments in response to the
application. Therefore, subject to the Tribunals ability to control its own
process, at the Tribunal hearing Ms. Donovan should be allowed to raise issues
she may wish to address about the Tribunals jurisdiction over enforcement of
the Resignation Agreement and to fully respond to the Boards position that the
Resignation Agreement precludes her from speaking publicly about the matters
the Board claims are captured by the confidentiality provision of the agreement.

The Motions in the Superior Court of Justice

[12]

The respondents originally brought a motion to
strike this action on three grounds: (i) r. 21.01(1)(b) (no reasonable cause of
action); (ii) r. 21.01(3)(a) (no jurisdiction over the subject matter); and
(iii) r. 21.01(3)(d) (frivolous or vexatious or an abuse of process). Doi J.
(the original motion judge) dismissed the action under r. 21.01(1)(b),
without leave to amend. While the other two grounds were fully argued before
the original motion judge, he did not rule on them.

[13]

On October 25, 2019, this court allowed the
appellants appeal from the order of the original motion judge, set aside the
order dismissing the action and granted the appellant leave to amend her
statement of claim as against Larkin:
Donovan v. Waterloo Regional Police
Services Board
, 2019 ONCA 845. No issues had been raised before this court
with respect to the grounds that were not addressed by the original motion
judge and this court did not address those grounds.

[14]

The statement of claim has gone through four
iterations, the current being a Fresh as Amended Statement of Claim, discussed
below. Pursuant to this courts order, the appellant filed an Amended Amended
Statement of Claim on January 29, 2020.

[15]

Shortly thereafter, counsel for the respondents
sought directions from the original motion judge concerning the two issues that
had not been addressed by his order. He determined that a fresh motion should
be brought before another judge, pursuant to r. 59.06(1) of the
Rules of
Civil Procedure
(sometimes referred to as the slip rule).

[16]

The appellant subsequently filed a Fresh as Amended
Statement of Claim on November 23, 2020. The motion to dismiss the action for
want of jurisdiction was heard by a different judge (the second motion judge)
on February 23 and March 1, 2021. In reasons released April 19, 2021, the
second motion judge dismissed the action on the ground that the essential
character of the dispute involved the appellants employment, which had been covered
by a collective agreement and was subject to the dispute resolution and
arbitration provisions of that agreement: referring to
Weber v. Ontario
Hydro
, [1995] 2 S.C.R. 929; and
Desgrosseillers v. North Bay General
Hospital
, 2010 ONSC 142.

This Appeal

[17]

The matter now comes to us on appeal.

[18]

The issue of jurisdiction calls for us to
consider the pleading in the Fresh as Amended Statement of Claim. In her claim
for relief, the appellant claims against both respondents, jointly and
severally, for breach of contract, misfeasance in public office and negligence.
She also claims separately against Larkin for damages for misfeasance in public
office.

[19]

The appellant pleads that:

·

she entered into a Resignation Agreement on June
8, 2017, which contained a non-disclosure and confidentiality clause, requiring
the parties to keep the existence and terms of the agreement confidential;

·

Larkin took retaliatory action against her as a
result of her complaints to the respondent Board concerning his conduct;

·

Larkin swore an affidavit in defence of a class
action lawsuit against the respondents that claimed damages for systemic and
institutional gender-based discrimination and harassment;

·

attached to Larkins affidavit was a chart
listing HRTO complaints commenced by female employees of the Board within the
preceding five years, including their status or resolution;

·

the affidavit was published on the public
website of the law firm advancing the class action lawsuit;

·

although the affidavit did not identify the
claimants, the chart contained sufficient information to enable the appellant
to be identified as someone who had filed a human rights complaint and had
voluntarily resigned from the Board;

·

by swearing and delivering the affidavit, Larkin
used her, to attempt to stop the efforts of the [appellants] female
colleagues in their fight for justice;

·

the class action was dismissed as a result of a
motion that relied on Larkins affidavit;

·

Larkin was aware of the terms of the Resignation
Agreement, including that it was confidential;

·

by swearing the affidavit, Larkin deliberately
involved her in the class action lawsuit and violated the terms of the
Resignation Agreement, knowing that it would impede her recovery from
post-traumatic stress disorder;

·

in January 2018, the Board appealed a WSIB claim
she had made. Although she does not explicitly plead it, she is presumably
asserting that the Board breached the Resignation Agreement by engaging in
further legal proceedings against her; and

·

she claims the relief as set out in paragraph 1
of the Statement of Claim for two distinct and separate breaches of the
resignation agreement by the defendant Board and the individual defendant.

[20]

The appellant raises five grounds of appeal,
which we address in order.

(1)

Improper Procedure

[21]

The appellant submits that the motion was not
properly before the second motion judge because it could have been addressed by
way of a r. 59.06 motion brought before the original motion judge and prior to
the appeal, by filing a cross-appeal to this court, or filing a r. 59.06 motion
to this court.

[22]

We do not accept this submission.

[23]

As the issue of jurisdiction was not addressed
by the original motion judge or by either party on the previous appeal to this
court, there is no impediment to raising it on this appeal.

[24]

The matter was properly before the second motion
judge, although not pursuant to the slip rule. Rather, a remedy was available
under r. 59.06(1) of the
Rules of Civil Procedure
, to ... obtain
other relief than that originally awarded. Alternatively, it was open to the respondents
to bring a free-standing motion to raise the issue of the courts jurisdiction,
given the delivery of the Fresh as Amended Statement of Claim.

(2)

Jurisdiction

[25]

The appellant submits the Superior Court of
Justice has jurisdiction over her claims and that jurisdiction has not been
removed by arbitral agreement. She relies on
Skof v. Bordeleau
, 2020
ONCA 729, 456 D.L.R. (4th) 236, leave to appeal refused, [2021] S.C.C.A. No. 17.
She argues that there is nothing in the applicable collective agreement to oust
the courts jurisdiction and that as a former member of the police force and no
longer a member of the bargaining unit, she has no standing before the Ontario
Police Arbitration Commission. She submits that, as in
Skof
, she is
seeking a remedy for misfeasance in public office, which does not fall within
the jurisdiction of an arbitrator. She submits that the principles in
Weber
and
St. Anne Nackawic Pulp & Paper v. CPU
, [1986] 1 S.C.R.
704, have no application.

[26]

Skof
is plainly
distinguishable because this court found, at para. 17, the dispute related to
disciplinary proceedings in a regulatory context and did not fall within the
collective agreement. This basis alone justified the second motion judge in
distinguishing
Skof
.

[27]

The second motion judge did precisely what the
authorities require. He searched for the essential character of the dispute
and found, at para. 80, that the Resignation Agreement was executed in the
ambit of the collective agreement and took its essential character from the collective
agreement. It was the product of a negotiated agreement of all outstanding employment
matters between the parties. We see no error in this characterization.

[28]

However, the motion judge did not grapple with
the question of whether the appellant will be permitted, under the collective agreement
or the Resignation Agreement, to invoke the grievance procedure now that she is
no longer employed by the respondent. This affects the outcome.

[29]

In
Skof
, explicit provisions of the
memorandum of agreement unequivocably provided that the collective agreement
did not apply to the appellant in that case, other than with respect to his
salary and benefits, while he was on a leave of absence as the president of the
Ottawa Police Association. As a result, there was no question that the
grievance procedure under the collective agreement was not available to him.

[30]

Here, there is no evidence that the appellant
will be permitted to invoke the grievance procedure now that she is no longer
an employee. The collective agreement is silent with respect to this issue. Moreover,
the Resignation Agreement provides in para. 1 that upon her resignation, she
ceases to be an employee of the Board for any and all purposes at law
whatsoever.

[31]

The record does not permit us to decide this
issue. An arbitrator is best placed to interpret the collective agreement and
the Resignation Agreement and determine whether the appellant is precluded from
invoking the grievance procedure to pursue her remedies.

(3)

Bad Faith

[32]

The appellant submits that in pursuing this
matter, the respondents are acting in bad faith by failing to raise the issue
of jurisdiction in a timely way and that they are using the court process for
an improper purpose. As we find the respondents were entitled to have the issue
of jurisdiction determined, this submission fails.

(4)

Apprehension of Bias

[33]

In her factum, the appellant makes an allegation
of reasonable apprehension of bias against the second motion judge.

[34]

The motion occupied two days, February 23 and
March 1, 2021. Due to the pandemic, the hearings were heard remotely. There was
a Zoom bombing during the first hearing, when unknown persons viewing the
hearing remotely displayed what has been described as sexually explicit and
racist imagery on the screens of all viewers.

[35]

The appellant states that following the hearing,
CBC news published an article that insinuated that she was to blame for the
disruption, because she had shared the public Zoom link with her followers, presumably
referring to her followers on social media. In her factum, she states that she
had distributed the Zoom link and the courts Zoom User Guide for Remote
Hearings to her followers and pointed out to them the section that explains
that court permission was required to share screens. She states that she
believed her followers would only be able to observe the proceeding.

[36]

Subsequently, prior to the March 1, 2021 hearing,
the Regional Senior Judge gave directions that the Zoom details of the March 1,
2021 hearing were not to be published or distributed without the prior written
order of the presiding judge or the Regional Senior Judge.

[37]

On the basis of the foregoing, the appellant
states that she believes that she was wrongfully blamed for the Zoom bombing
incident, and that this resulted in an apprehension of bias against her
because the second motion judge decided in favour of the respondents, which was
a marked departure from established legal principles.

[38]

The appellant did not pursue this issue in oral
submissions, possibly because she had reached the end of her time allocation. However,
she did not expressly withdraw the submission. Asserting that a judge has
departed from the law because of bias against a litigant is a very serious
allegation. Although the appellant is self-represented, her written materials
and oral submissions demonstrated a high level of sophistication. She clearly
appreciates the meaning and consequences of her words. In this case, there was
no evidentiary basis for the allegation, and it can be described as spurious.
Her submission therefore fails.

(5)

Litigation Efficiency

[39]

The appellant submits that the second motion
judge erred in failing to convert the motion before him to a motion for
judgment as the best way to achieve the most just, most expeditious, and least
expensive result, in accordance with r. 37.13(2)(a) of the
Rules of Civil
Procedure
.

[40]

The short answer to this submission is that this
was not fully argued before the second motion judge, and it would not have been
appropriate for him to grant it in these circumstances, nor would it be
appropriate to grant on this appeal: see
McCracken v. Canadian National
Railway Company
, 2012 ONCA 445, 111 O.R. (3d) 745, at para. 141.

Conclusion

[41]

For these reasons, we agree with the respondents
submission that the appellants claims are subject to determination pursuant to
the procedures set out in the collective agreement and the
PSA
. To the
extent that the claim seeks relief that is not available under the collective
agreement or the
PSA
, it is subject to the jurisdiction of the HRTO,
in which both parties have asserted claims that are currently outstanding.

[42]

We therefore dismiss the appeal. In the
particular circumstances of this case, however, we vary the order of the
Superior Court by staying this action until such time as the appellants
remedies under the collective agreement and in the HRTO have been exhausted.

[43]

Only at that point will this court determine
whether it should exercise any residual discretion it may have to grant relief
that is not available under the statutory labour arbitration regime or in the
HRTO.

[44]

In her supplementary notice of appeal, the
appellant indicates that she also wishes to appeal from the costs award below. In
light of our disposition of the appeal and given that the appellant made no arguments
to support this position separately, we see no basis to overturn the costs
award below.

[45]

We did not hear submissions on costs of the
appeal. Costs may be addressed by written submissions. The respondents shall
have 15 days within which to deliver their submissions. The appellant shall
have 15 days after receipt of the respondents submissions to reply. The costs
submissions shall be limited to five pages in length, excluding costs outlines.

G.R.
Strathy C.J.O.
L.B. Roberts J.A.
L. Sossin J.A.


