Court File No. 99-CV-181999
SUPERIOR COURT OF JUSTICE
BETWEEN:
JETTE STEWARD
Plaintiff
- and -
3M CANADA INC., BASIL (BUZZ) HARGROVE,
JULIE WHITE, AL SEYMOUR, and JIM FLEETWOOD
Defendants
PLAINTIFF'S FACTUM
PART I - THE NATURE OF THE MOTION/CASE
1. These motions are brought by the Defendant, employer and various members of a trade union to dismiss the Plaintiff's action seeking damages for conspiracy, breach of fiduciary duty and intentional infliction of mental distress for alleged want of jurisdiction in this Honourable Court.
2. It is the Plaintiff's contention that the Defendant's motions must fail for the following reasons
1. The principle of law set out in Weber V. Ontario Hydro does not apply, where as here, the Plaintiff has been effectively deprived a remedy in the statutory forum;
2. Issue estoppel does not apply on these facts.
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PART II- THE FACTS:
2. The Plaintiff worked for 3M Canada Inc. in its London factory for more than 30 years doing unskilled, repetitive and laborious work. Virtually every factory job in the plant involves excessive repetitive movements of one kind or another. In some jobs there is excessive standing; in others excessive and repetitive bending; on others it may be repetitive twisting; and yet on others it may be a combination.
Plaintiff's Responding Affidavit - Sworn Affidavit of Jette Steward Para 2,3 3. The Plaintiff worked at 3M not because she derived any particular enjoyment or satisfaction form the work so much as it provided her with the means as a single mother to care for her family. It is undisputed that 3M had knowledge of the fact that she was a single mother of two children.
Plaintiff's Responding Affidavit - Sworn Affidavit of Jette Steward Para 2,3
Plaintiff's Responding Affidavit -
Sworn Affidavit of Jette Steward
Para 2,3
3. The Plaintiff worked at 3M not because she derived any particular enjoyment or satisfaction form the work so much as it provided her with the means as a single mother to care for her family. It is undisputed that 3M had knowledge of the fact that she was a single mother of two children.
Plaintiff's Responding Affidavit Sworn Affidavit of Jette Steward Para 4,5
Plaintiff's Responding Affidavit
Para 4,5
4 The Plaintiff was always a dedicated and competent worker and this fact is reflected in the fact the she was never ever disciplined by 3M in the years that she worked for them. In addition, although she was unionized she never had any contact with the union at 3M for the vast majority of the 30 some years that she worked there.
Plaintiff's Responding Affidavit Sworn Affidavit of Jette Steward Para 6,7
Para 6,7
5 The Plaintiff's difficulties at work started as a direct result of work-related injuries and disabilities which she experienced at 3M. After close to 20 years of repetitive bending and lifting she severely injured her lower back, neck and shoulder area. Plaintiff's Responding Affidavit
5 The Plaintiff's difficulties at work started as a direct result of work-related injuries and disabilities which she experienced at 3M. After close to 20 years of repetitive bending and lifting she severely injured her lower back, neck and shoulder area.
Para 8
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6 Commencing in 1981 the Plaintiff began experiencing frequent episodes of wrist, arm and shoulder problems. On or about May 18th 1991 she injured her hip and low back attempting to pick up aluminum sticks to load into a machine. As a result, she was off work for a little over a year and received full compensation from WCB
Plaintiff's Responding Affidavit Sworn Affidavit of Jette Steward Para 9,10,11
Para 9,10,11
7. From July to October 1992 the Plainitff was involved in a work trial program which was agreed to by her doctor(Finestone), WCB(Linda Catheral) and the employer. The goal of this program was to try to get the Plaintiff into performing the duties of Relief Helper The work trial was not successful as the Plaintiff was unable to perform for more than six hours. 3M's physiotherapist, Gary Lapenski, recommended that Dr. Finestone would refer Plaintiff to Mr Bert Chesworth, Physiotherapist for extensive treatment
Plaintiff's Responding Affidavit Sworn Affidavit of Jette Steward Para 13
Para 13
Income cut-off in Dec./92
8. On or about December 10th, 1992 Plaintiff received a letter from WCB demanding a return of her December, 1992 cheque and informing her that her benefits were terminated effective December 10th 1992 She was not provided with any reason for this action. At or about the same time, Mr. Randy Mason of the CAW had the Plaintiff's WCB file in his possession and this file contained Dr. Finestone's written recommendation dated October 22nd 1992 that she was totally disabled for another year in order to obtain additional physiotherapy from Mr. Chesworth.
Plaintiff's Responding Affidavit Sworn Affidavit of Jette Steward Para 14,15
Para 14,15
9. Dr Finestone referred the Plaintiff to Mr. Chesworth and she commenced seeing him in January 1993. She saw him three times a week for half a day each time up until August 1993.
Plaintiff's Responding Affidavit Sworn Affidavit of Jette Steward Para 16.
Para 16.
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Union agrees with 3M
no medical evidence to
support Plaintiff's claim
No income for 8 months:
10.. After receiving the December 10th, 1992 letter from WCB the Plaintiff sought assistance from her bargaining agent by speaking to Jim Fleetwood. He advised her in no uncertain terms that 3M the employer had made it known to him that the Plaintiff had "no medical evidence" to support her claim and the union concurred in this position The Plaintiff went without income from December 10th, 1992 to some time in August, 1993.
Plaintiff's Responding Affidavit Sworn Affidavit of Jette Steward Para 17, 18
Para 17, 18
11.. In or about July, 1993 the Plaintiff was sent for tests on her neck, should and arm by Dr Larson, her family doctor. These tests revealed that she had nerve damage in her left arm Test results with respect to her neck and down to the shoulder blade revealed that there was a disk protrusion and Dr. Brown recommended that she see a surgeon, which was arranged for December, 1993.
Plaintiff;s Responding Affidavit Sworn Affidavit of Jette Steward Para 19, 20
Plaintiff;s Responding Affidavit
Para 19, 20
The Operator's Job
12 From January 1994 to May, 1994 the Plaintiff worked weekends as an Operator This particular position entails working with a partner whereby one job is quite labour intensie and the other is what is referred to in the plant as a "light job". The "light job" is generally reserved for the more senior of the two partners. Plant practice was such that these two workers would decide among themselves as to which of the two workers would do what. 3M denied her the right to have accesss to the easier job and ordered her to work on a job which aggravated rather than accomodated her condition (Inventory Job)
Sworn Affidavit of Jette Steward Para 27, 29 Statement of Claim - para 10(1)(a)
Para 27, 29
Statement of Claim - para 10(1)(a)
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13. On or about March 15th, 1994 the Plaintiff filed a grievance challenging 3M's decision to deny her access to the easier Operator's Position. This grievance was never resolved
Plaintiff's Responding Affidavit Sworn Affidavit of Jette Steward Para 28 Statement of Claim, para 10(3)(c)
Para 28
Statement of Claim, para 10(3)(c)
14. The Plaintiff lasted about a week on the Inventory Job. She went to a medical professional who wrote to 3M informing them that this job was not appropriate for the Plaintiff. She filed a grievance on or about May16th, 1994 claiming violation of her seniority rights. She did not ever see the grievance form listed as Exhibit "B" to the employer's affidavit.
Plaintiff's Responding Affidavit Sworn Affidavit of Jette Steward Para 30, 31
Para 30, 31
3M retains Medical Consultant / Doctor
to examine and evaluate Plaintiff:
15. 3M hired one Dr. Barry Deathe to examine and evaluate my condition so as to make recommendations to 3M Dr. Deathe examined the Plaintiff and recommended to 3M that I be returned to the operators job
Plaintiff's Responding Affidavit Sworn Affidavit of Jette Steward Para 32, 33, 34 and Exb "C"
Para 32, 33, 34 and Exb "C"
16. Dr Death's report was completed on or about July 23rd. 1994 and his conclusion is radically different from that characterized on the 3M Plant Grievance Report which is exhibit "B" in the employer's affidavit
Plaintiff's Responding Affidavit Sworn Affidavit of Jette Steward Para 24
Para 24
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3M dismisses Plaintiff prior
to receipt of their consultant's
medical report and union goes
along with this:
17. Plaintiff was advised by one Dr. O'Neil, a doctor affiliated with 3M that she ought not to report for work because he had spoken to Dr. Deathe with respect to her FAE and 3M determined that she could no longer work in the plant. In an attempt to mislead the OLRB 3M stated in their Schedule A at para 8 "It was the company physician's understanding on the basis of this conversation the Applicant was medically precluded from performing the weekend Operator's work. The company, in turn, provided this information to the Union" IT IS NOTEWORTHY THAT THE COMPANY DID NOT SUBMIT A COPY OF THE MAY 16th, 1994 GRIEVANCE - NOR DID THEY MAKE ANY MENTION OF IT IN THE OLRB MATERIALS. THE TRADE UNION DOES NOT MENTION THE RESOLUTION OF THE MAY 16,1994 GRIEVANCE FOUND AS EXHIBIT "B' IN 3M'S RECORD IN ITS MATERIALS BEFORE THE OLRB.
Plaintiff's Responding Affidavit Sworn Affidavit of Jette Steward Para 33, - 3M's Record Tab J, K
Para 33, - 3M's Record Tab J, K
Evidence of conspiracy
to defeat Plaintiff's rights
under collective agreement
and elsewhere:
18. "The employee participated in a functional abilities evaluation and an independent medical examination. The medical evaluations identified significant medical restrictions for the employee. The results indicate the employee is medically unable to perform her job in the Abrasive making Department or any other job in the London plant."
3M Motion Record - Tab B
19. "Overall we do not see any reason why she should not be able to return to the operators job by a further and probably final work trial... In summary, Ms. Steward's permanent work restrictions should be as follows:
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1. Avoidance of working at or above the shoulder level; and a particular avoidance of repetitive neck rotation and neck extension. 2. Avoidance of [repetitive bending] and twisting and of [repetitive lifting]. 3. Avoidance of repetitive pushing and pulling particularly with the right upper extremity.
1. Avoidance of working at or above the shoulder level; and a particular avoidance of repetitive neck rotation and neck extension.
2. Avoidance of [repetitive bending] and twisting and of [repetitive lifting]. 3. Avoidance of repetitive pushing and pulling particularly with the right upper extremity.
2. Avoidance of [repetitive bending] and twisting and of [repetitive lifting].
3. Avoidance of repetitive pushing and pulling particularly with the right upper extremity.
Plaintiff's Responding Record Sworn Affidavit of Jette Steward Dr. B Deathe Report at tab c, p.4
Plaintiff's Responding Record
Dr. B Deathe Report at tab c, p.4
20. According to the trade union's submissions before the OLRB, "The union participated in the selection of a neutral doctor at the London Regional Evaluation Centre for the injured worker (St. Mary's Campus). The Applicant attended an appointment at that Centre on June 9th, 1994. The union was able to persuade the company to pay for the cost of the independent assessment.. A report dated July 23,1994 regarding the Applicant's status was received by the parties on or about that date."
3M's Motion Record - Tab K para 13, 14, 15
21. Plaintiff contacted Jim Fleetwood in or about July 1994 to find out what the outcome of Dr. Deathe's findings were and he advised me that "we do not have the authority to look into your records and you will not have access to this report because 3M paid $2,500 for it."
Para 38
Confronted with Dr. Deathe's
Report union officials had no
choice but to "act" to
reinstate me:
22. After receiving Dr. Deathe's report the Plaintiff provided a copy to each of the Reps working for her bargaining agent, namely, Julie White, Jim Fleetwood, and Al Seymour and Peter Janzen. She filed a grievance dated August 12th, 1994 seeking loss of income from May 13,1994.
Plaintiff's Responding Record Sworn Affidavit of Jette Steward Para 40
Para 40
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3M Reinstates to a job
which was entirely inconsistent
with the recommendations of
Dr. Deathe (the expert which union and employer agreed on)
with the union's consent:
23. In September, 1994 Plaintiff received a letter from 3M advising her to return to work on or about September 12th, 1994 in Sample Warehouse 40 hours a week. This job involved lifting heavy boxes. This job involved repetitive lifting, bending and was simply not suited to my condition. This job was entirely inconsisent with the recommendation.
Sworn Affidavit of Jette Steward Para 41
Para 41
24. 3M stubbornly insisted that the Plaintiff must do the "Inventory Job". This was a makeshift job for her. It required her to work in filthy, back-breaking and de-humanizing conditions. At the end of a shift her face was covered with black soot like a coal miner She was denied shower time although all other jobs carrier shower time at the Maker
Plaintiff's Responding Record Sworn Affidavit of Jette Steward Para 47
Para 47
25. On or about October 26th, 1994 the Plaintiff was dismissed for refusing to perform the "back-breaking" work which 3M and the union wanted her to do. She remained off work until today with no income except for E.I. benefits and some WSIB compensation.
Plaintiff's Responding Record Sworn Affidavit of Jette Steward Para 48
Para 48
26. The Plaintiff grieved this dismissal under her collective agreement. The substance of this grievance was that she was not being accommodated by the employer based on her rights under the Human Rights Code, WCB Act and the collective agreement. At this point in time - the trade union had the Plaintiff believe that her discrimination grievance of May 16th, 1994 was still alive and pending arbitration on March 29th, 1995.
Plaintiff's Responding Record Sworn Affidavit of Jette Steward
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Para 50
Plaintiff has surgery
on neck:
27. On or about March 1, 1995 the Plaintiff had surgery on her neck. It was felt by Dr. Barr that if successful - there was a 70% chance of full recovery. Jim Fleetwood and Al Seymour were notified of this fact by the Plaintiff on or about March 8th, 1995
Plaintiff's Responding Record Sworn Affidavit of Jette Steward Para 52, 53
Para 52, 53
Union refused to
take Plaintiff's grievance
to arbitration and cuts
a "sweetheart" deal with
3M during collective agreement
negotiations:
28. On or about March 29th, 1995 Ms. Julie White attended at the Plaintiff's residence and advised her that Mr. Al Seymour was not taking her discharge grievance to arbitration and that the only available option was to sign an agreement presented to her dated March 29th, 1995 This agreement was arrived at by 3M and the union during negotiations for a new collective agreement.
Plaintiff's Responding Record Sworn Affidavit of Jette Steward Para 54 - Exb. "G" at p.24
Para 54 - Exb. "G" at p.24
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29. "The company agrees to reinstate the Grievor as an employee of the Company as of October 26,1994 and to grant her eligibility for sickness and accident or long-term disability benefits in accordance with the Company's non-occupational insurance policy for the Benefit Period."
"If the Grievor fails to abide by any of the terms and conditions of this Agreement, she will be deemed by the parties to have resigned her employment with the Company." Such resignation is irrevocable. In the event a grievance is filed relating to her resignation, an arbitrator shall have no jurisdiction but to uphold the resignation if the evidence, based on the balance of probabilities, established that she did not abide by the terms and conditions of this Agreement, or any one of them. In this regard the Company, the union and the Grievor agree that the collective agreement has been modified as it applies to the Grievor only with regard to the above mentioned deemed resignation."
3M's Motion Record Agreement dated March 29th, 1995 at para 1, 7
3M's Motion Record
Agreement dated March 29th, 1995 at para 1, 7
Julie White induced Plaintiff
to sign March 29th, 1995
Agreement by misrepresenting
significant facts:
30. Julie White..... " So the important thing is to get your job back. You'll get benefits - Back pay benefits. Close to ten thousand dollars, probably, by the time you add it up. You won't have any problem getting benefits. You've had surgery." Julie White... "Jette, you're gonna waste all the money that you've got left on a lawyer that's not going to do, probably dick all for you and I am gonna be honest about it, because Jette, I can't see how you can get anthing better than the way it is now. I personally don't. Jette Steward... "You'll put in writing I'll get benefits ? Julie White........ "I can't put in writing but I'll tell you .... your son asked me if I would fight. I can't put in writing that you'll get benefits Jette. I'm not the person who issues the benefits. But would we fight for you ? Absolutely, to the very end. Once we get it, yes I believe you would"
30. Julie White..... " So the important thing is to get your job back. You'll get benefits - Back pay benefits. Close to ten thousand dollars, probably, by the time you add it up. You won't have any problem getting benefits. You've had surgery."
Julie White... "Jette, you're gonna waste all the money that you've got left on a lawyer that's not going to do, probably dick all for you and I am gonna be honest about it, because Jette, I can't see how you can get anthing better than the way it is now. I personally don't.
Jette Steward... "You'll put in writing I'll get benefits ?
Julie White........ "I can't put in writing but I'll tell you .... your son asked me if I would fight. I can't put in writing that you'll get benefits Jette. I'm not the person who issues the benefits. But would we fight for you ? Absolutely, to the very end. Once we get it, yes I believe you would"
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Plaintiff's Responding Record Sworn Affidavit of Jette Steward Words of Julie White - Tab G p.6 and 7
Words of Julie White - Tab G p.6 and 7
Alleged failure to comply
with Agreement was act
of third party doctor:
31. The alleged breach of the March 29th, 1995 Agreement by the Plaintiff resulted from her family doctor indicating on the benefit application form that her injuries/disability was work-related.
Plaintiff's Responding Record Sworn Affidavit of Jette Steward 56
56
32. The Minutes of Settlement with respect to the alleged settlement of the Plaintiff's June 8th, 1995 grievance called for reinstatement for the limited purpose - not to active employment either now or in the future" and is signed by C. White, of counsel for 3M The Plaintiff is not a party to this document which provides that if she does not agree to it she is deemed to have resigned her employment
3M's Motion Record Minutes of Settlement Para 2, 4
Minutes of Settlement
Para 2, 4
OLRB Proceeding:
33.
"At issue in the complaint was the union's handling of two termination grievances on behalf of the applicant. The first grievance was in respect of the applicant's termination from employment on October 26,1994... As a result of having failed or refused to apply for benefits and consequently being absent without leave the grievor's employment was again terminated on June 6,1995 The union filed a grievance and pursued it.
3M's Motion Record OLRB Decision dated Aug.14, 1998 Tab M para 3 and 16
OLRB Decision dated Aug.14, 1998
Tab M para 3 and 16
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34.
"Accordingly, it appears appropriate for the Commission to exercise its discretion, and not deal with the complaint."
3M's Motion Record OHRC section 34 Case Analysis Tab Q page 3 of 3 para l9
OHRC section 34 Case Analysis
Tab Q page 3 of 3 para l9
35. The question of whether or not the bargaining agent failed to meet its duty of fair representation to the Plaintiff by not pursuing accommodation of her work related injuries under the collective agreement and the Human Rights Code was not considered by the Vice Chair on the Plaintiff's unfair representation complaint.
Plaintiff's Responding Record Sworn Affidavit of Jette Steward Para 62
Para 62
36. The Plaintiff has suffered an economic loss of $1,250,000. She has also suffered aggravated damages as a result of the conduct of the Defendants The Plaintiff also seeks punitive damages and the right to be heard by jury of her peers.
Plaintiff's Responding Record Sworn Affidavit of Jette Steward Para 67, 68 - Statement of Claim
Para 67, 68 - Statement of Claim
PART Ill - THE ISSUES & LAW:
THE ISSUES
37.
1. Does there exist any common or statutory law which ousts the inherent jurisdiction granted to this Honourable Court by the Constitution Act and Courts of Justice Act to hear cases dealing with conspiracy, breach of fiduciary duty and to otherwise exercise its equitable jurisdiction, where as here, the acts and omissions of the Defendants are alleged to have deprived the Plaintiff of her collective agreement or statutory remedies?
2. Do the pleadings display a viable cause of action? 3. What are reasonable costs in the circumstances ?
2. Do the pleadings display a viable cause of action?
3. What are reasonable costs in the circumstances ?
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THE LAW
38
Courts shall administer concurrently all rules of equity and the common law." Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails:" Courts of Justice Act, s.96(1) and (2)
Courts shall administer concurrently all rules of equity and the common law."
Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails:" Courts of Justice Act, s.96(1) and (2)
Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails:"
Courts of Justice Act, s.96(1) and (2)
39
IT IS RESPECTFULLY SUBMITTED THAT the proposition of law advanced by the Defendants to oust this Court's inherent jurisdiction to hear the Plaintiff's case is flawed on two scores: 1..Inferior tribunals like the OLRB and the OHRC can deal with matters within the scope of their enabling legislation but this does not mean that these inferior tribunals can oust the constitutional jurisdiction of this Court to deal with allegations of wrong-doing by parties subject to the jurisdiction of such inferior tribunals who are alleged to have prevented or perverted the course of justice before such tribunals;
IT IS RESPECTFULLY SUBMITTED THAT the proposition of law advanced by the Defendants to oust this Court's inherent jurisdiction to hear the Plaintiff's case is flawed on two scores:
1..Inferior tribunals like the OLRB and the OHRC can deal with matters within the scope of their enabling legislation but this does not mean that these inferior tribunals can oust the constitutional jurisdiction of this Court to deal with allegations of wrong-doing by parties subject to the jurisdiction of such inferior tribunals who are alleged to have prevented or perverted the course of justice before such tribunals;
2... Inferior tribunal do not have inherent jurisdiction as does this Court The Defendants can not point to any rule of law or statute which ousts this Courts equitable jurisdiction in the particular circumstances of this case.
Fraud
40
Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service,... is guilty of an indictable offence..
Criminal Code of Canada - s.380(1)
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Falsifying Employment Record:
41.
Every one who, with intent to deceive, falsifies an employment record by any means, including the punching of a time clock, is guilty of an offence punishable on summary conviction.
Criminal Code of Canada - s.398
Can the allegations against the Defendants
both in the Statement of Claim and in the
Plaintiff's responding affidavit be characterized
as criminal in nature?
42.
ABSOLUTELY. IT IS RESPECTFULLY SUBMITTED THAT the acts and omission of the Defendants complained of in the Statement of Claim, namely, a conspiracy among the Defendants to effectively deprive the Plaintiff of any rights or remedy under the collective agreement"and agreed to keep the Defendant, employer's WCB liability to minimum by deliberately providing false and prejudicial information to WCB otherwise frustrate, impede and defeat any claim which she may make to WCB" is clearly an offence under sections 380 or 398 of the Criminal Code of Canada
43
CLEARLY, IT COULD NOT BE SAID that exhibit "B" in 3M's original motion record is anything short of a pre-meditated, deliberate falsehood which by design would deprive the Plaintiff of her livelihood and reduce the Defendant employer's liability under the WSIB legislation. At the very least it is a prima facie falsification of an employment record
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The Law of Equity:
44.
Justice administered according to fairness as contrasted with the strictly formulated rules of common law. It is based on a system of rules and principles which originated in England as an alternative to the harsh rules of common law and which were based on what was fair in a particular situation.. The term equity denotes the spirit and habit of fairness, justness, and right dealing which would regulate the intercourse of men with men....A system of jurisprudence collateral to, and in some respects independent of, "law"; the object of which is to render the administration of justice more complete, by affording relief where the courts of law are incompetent to give it, or to give it with effect, or by exercising certain branches of jurisdiction independently of them.
Black's Law Dictionary, Fifth Edition - at p.484
Rules of Equity which
are germane to this case:
45
1. Equity deems that to be done which ought to be done. 2. Equity does not assist those with dirty hands. 3. Equality is equity.
1. Equity deems that to be done which ought to be done.
2. Equity does not assist those with dirty hands.
3. Equality is equity.
Rule I
46. IT IS RESPECTFULLY SUBMITTED THAT the record before the Court reveals that the Plaintiff was able to perform the duties of the Operators Job - a job which only required her to work two days per week for a full salary and both the employer and the various named members of her bargaining agent steadfastly denied her this position and provided her with work which was outside of her medical restrictions.
Plaintiff's responding Motion Record Sworn affidavit of Jette Steward - para 27, 63, 41, 44, 48
Plaintiff's responding Motion Record
Sworn affidavit of Jette Steward - para 27, 63, 41, 44, 48
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47
FURTHER, IT IS RESPECTFULLY SUBMITTED THAT the record before this Honourable Court clearly shows through Exhibit "B" in 3M's original Motion Record that both 3M and the named union officials were prepared and did in fact employ deceitful and bad faith tactics in an attempt to terminate the Plaintiff's employment
3M Motion Record - Sworn Affidavit of Mr. Kunsch - Exhibit "B", "E" , "H"
Plaintiff's Responding Motion Record Sworn Affidavit of Jette Steward - Exhibit "C"
Plaintiff's Responding Motion Record
Sworn Affidavit of Jette Steward - Exhibit "C"
48
IT IS RESPECTFULLY SUBMITTED THAT the record before this Honourable Court shows that the Plaintiff filed two grievances with respect to her denial of the Operator's Job, namely, on or about March 15, 1995 and May15th, 1994. The record before the Court shows clearly that neither of these grievances, although very legitimate, were ever pursued and in fact were withdrawn as a part of the March 29th1995 settlement.
Plaintiff's Responding Motion Record Sworn Affidavit of Jette Steward - para 28, 35, 63 3M Motion Record - Tab E (Agreement)
Sworn Affidavit of Jette Steward - para 28, 35, 63
3M Motion Record - Tab E (Agreement)
49
6..."The following grievances filed by the Grievor prior to the signing of this Agreement are hereby Withdrawn
1....... Grievance No.2-94, filed March 15,1994, 2 ........Grievance No.9-94, filed May 16,1994."
1....... Grievance No.2-94, filed March 15,1994,
2 ........Grievance No.9-94, filed May 16,1994."
7.
"If the Grievor fails to abide by any of the terms and conditions of this Agreement, she will be deemed by the parties to have resigned her employment with the Company. Such resignation is irrevocable. In the event a grievance is filed relating to her resignation an arbitrator shall have no jurisdiction but to uphold the resignation if the evidence, based on the balance of probabilities, established that she did not abide by the terms and conditions of this Agreement, or any one of them. In this regard the Company, the Union and the Grievor agree that the collective agreement has been modified as it applies to the Grievor only with regard to the above mentioned deemed resignation." - 17 - 3M Motion Record - Affidavit of Mr. Kunsch March 29th Agreement - Tab E
"If the Grievor fails to abide by any of the terms and conditions of this Agreement, she will be deemed by the parties to have resigned her employment with the Company. Such resignation is irrevocable. In the event a grievance is filed relating to her resignation an arbitrator shall have no jurisdiction but to uphold the resignation if the evidence, based on the balance of probabilities, established that she did not abide by the terms and conditions of this Agreement, or any one of them. In this regard the Company, the Union and the Grievor agree that the collective agreement has been modified as it applies to the Grievor only with regard to the above mentioned deemed resignation." - 17 -
"If the Grievor fails to abide by any of the terms and conditions of this Agreement, she will be deemed by the parties to have resigned her employment with the Company. Such resignation is irrevocable. In the event a grievance is filed relating to her resignation an arbitrator shall have no jurisdiction but to uphold the resignation if the evidence, based on the balance of probabilities, established that she did not abide by the terms and conditions of this Agreement, or any one of them. In this regard the Company, the Union and the Grievor agree that the collective agreement has been modified as it applies to the Grievor only with regard to the above mentioned deemed resignation."
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3M Motion Record - Affidavit of Mr. Kunsch March 29th Agreement - Tab E
3M Motion Record - Affidavit of Mr. Kunsch
March 29th Agreement - Tab E
50
IT IS RESPECTFULLY SUBMITTED THAT no where in the Agreement does it stipulate that the Grievor was to instruct her medical doctor on how to fill out the required forms In their letter to the Plaintiff advising that she has breached the Settlement 3M does not indicate how this breach occurred.
3M Motion Record - Tab E and F Plaintiff's Responding Record Affidavit of Jette Steward - para 55, 56
3M Motion Record - Tab E and F
Affidavit of Jette Steward - para 55, 56
51
IT IS RESPECTFULLY SUBMITTED THAT the minutes of Settlement dated April 17th 1996 represents yet another bad faith exercise to deprive the Plaintiff of a statutory or collective agreement remedy.
52
IT IS RESPECTFULLY SUBMITTED THAT the Defendants' motion seeking to dismiss the within action for a want of jurisdiction in this Court must fail for the following reasons
1...The facts of this case are clearly distinguishable from those in Weber v Ontario Hydro and like cases;
2...Constitutionally, section 96 Courts will always have jurisdiction to adjudicate a matter where the Plaintiff has been denied a remedy in the statutory or collective bargaining forum;
3...The Law of Equity was merged with our common law and was not extinguished. In fact, section 96 (2) of the Courts of Justice Act specifically holds that where a rule of equity conflicts with a rule of equity the rule of equity prevails;
4. Accordingly, the matters raised in this case are within the jurisdiction of this Honourable Court and must proceed to be heard in accordance with law by either a superior court judge sitting alone or with a jury of the Plaintiff's peers
Piko v. Hudson's Bay Co. [1998] O.J. No~4714 (Ont.C.A.) leave to appeal to SCC denied September 16,1999
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53 The law is clear that the test to dismiss an action on the basis of failing to disclose a viable cause of action is very high.
Nash et al v. CIBC 27 O.R. (3d) I Hunt v. Carey[1990] 2 S.C.R. 959
Nash et al v. CIBC 27 O.R. (3d) I
Hunt v. Carey[1990] 2 S.C.R. 959
54... IT IS RESPECTFULLY SUBMITTED THAT the final word on the question of issue estoppel is found in the Court of Appeal decision written by Mr Justice Laskin in Minott v. O'Shanter. Essentially, the court ruled that this is a matter of judicial discretion which must be employed sparingly to avoid injustice. This is a question for the trial judge to determine based on all of the circumstances of the case.
Minott v. O'Shanter [1999] 42 O.R (3d) 321 (Ont. C.A.)
55.. The potential long term social and policy implications which may flow from circumscribing the jurisdiction of the court to hear these and other cases and to send them off to labour arbitrators and the like has not gone unnoticed by labour law scholars, such as Prof Brian Etherington at the Faculty of Law at the University of Windsor In a recent publication entitled, "Promises, Promises. Notes on Diversity and Access to Justice" which was publised in the Queen's .Law Journal he wrote
Giving jurisdiction over the protection of individual rights and diversity interests to private collective processes and institutions appears quite questionable in public policy terms especially when one is considering the enforcement of constitutional and quasi-constitutional minority equality rights. "Promises, Promises: Notes on Diversity and Access to Justice" (2000) Queen's Law Journal p.63
Giving jurisdiction over the protection of individual rights and diversity interests to private collective processes and institutions appears quite questionable in public policy terms especially when one is considering the enforcement of constitutional and quasi-constitutional minority equality rights.
"Promises, Promises: Notes on Diversity and Access to Justice" (2000) Queen's Law Journal p.63
56.. IT IS SUBMITTED THAT it is premature to adjudicate on the issue of venue for trial at this time and based on the record before the court. It is suggested that this issue be held in abeyance pending a pre-trial and the parties can put their best foot forward on that issue at that time.
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PART IV - ORDER REQUESTED:
57. The Plaintiff seeks and order dismissing the Defendants' motions along with costs fixed and payable forthwith of $7,500. All of which is respectfully submitted ______________________
57. The Plaintiff seeks and order dismissing the Defendants' motions along with costs fixed and payable forthwith of $7,500.
All of which is respectfully submitted
______________________
Ernest J. Guiste
Counsel for the Plaintiff
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SCHEDULE B
Every one who, by deceit, falsehood or other fraudulent means, whether or not it is a false pretence within the meaning of this Act, defrauds the public or any person, whether ascertained or not, of any property, money or valuable security or any service... is guilty of an indictable offence.
Canada Criminal Code, s.380(1)
Every one who, with intent to deceive, falsifies an employment record by any means, including the punching of a time clock, is guilty of an offence punishable on summary conviction
Canada Criminal Code, s. 398
Courts shall administer concurrently all rules of equity and the common law. Where a rule of equity conflicts with a rule of the common law, the rule of equity prevails
Courts of Justice Act, s. 96(1) and (2)
