Electronic Communications Eavesdropping

Posted by Johannes Schenk on January 16th, 2007 — Posted in Employment Law, Human Rights Law

Check out this Washington Post Article on electronic eavesdropping.

Sulz Decision Affirmed

Posted by Johannes Schenk on January 3rd, 2007 — Posted in Employment Law, Human Rights Law, Labour Law

I had written about the Sulz decision in an earlier post and which has now been affirmed by the BC Court of Appeal. The decision is significant because it addresses the jurisdictional argument raised by cases such as Vaughan and Pleau and sides with the Pleau line of authority.

Madam Justice Levine had this to say on the matter of jurisdiction:

[30] In Phillips, the plaintiff, a civilian employee of the R.C.M.P., brought an action for defamation against her immediate supervisor. The complaint was investigated internally, and found not to constitute harassment. The plaintiff had the option to grieve the decision under the R.C.M.P. Act, but instead she resigned and started the action. Madam Justice Steel, writing for the Manitoba Court of Appeal, found, after considering the principles in Weber, that the court had jurisdiction over the claim. As in Pleau, which considered the PSSRA, the statutory scheme under the R.C.M.P. Act did not provide for independent third party adjudication. The grievance procedure led to a final decision, subject to judicial review, by the Commissioner, an employee of the R.C.M.P. The Court held this procedure did not provide effective redress. It also found that the grievance procedure in the statute did not oust the jurisdiction of the court, and the dispute was not covered by a collective agreement.

[31] In Vaughan, Binnie J. did not criticize Cromwell J.A.’s analysis in Pleau of the factors the court considers in determining whether it should exercise jurisdiction in a workplace dispute. He found them inapplicable to the PSSRA, on the facts in Vaughan. Mr. Justice Binnie was explicit in his reasons for judgment that he was considering the scheme of the PSSRA as it applied to employment benefits provided to federal government employees by regulation. He expressly excluded “whistle-blower” cases from his conclusion that the lack of independent adjudication did not justify court intervention. Vaughan did not consider jurisdiction in the context of the tort of negligent infliction of mental distress by a superior officer in the R.C.M.P., not governed by the PSSRA but the R.C.M.P. Act.

[32] This case is more like Pleau and Phillipps than Vaughan. The obvious difference from Vaughan is the factual difference: it does not involve a dispute over employment benefits, but a real tort claim for injuries suffered as a result of the conduct of a manager. Furthermore, most of the respondent’s loss for which she was compensated in damages, her past and future loss of income, was not suffered during the course of the respondent’s employment. Her income loss occurred after she was discharged, when she was no longer governed by, or could claim any benefit from, the grievance process under the R.C.M.P. Act. The respondent’s formal complaint resulted in a determination that Smith had harassed her. The internal process was then spent: there was nothing more to grieve. Nor could the internal process provide compensation for her loss. In that respect, the statutory scheme did not provide effective redress.

The decision is significant for those trying to argue their way around Vaughan.