Slip, Fall and Grieve? McInnes, and using the grievance process to address tort claims
A recent decision of the Nova Scotia Court of Appeal provides trade unions an opportunity to reflect on the wide scope of grievances that are captured under the collective agreement and that may be filed on behalf of members.
While the case does not make new law in this province, it highlights the opportunity (and obligation) of union officers to look beyond violations of the collective agreement and employment-related legislation (such as the Human Rights Act and Occupational Health and Safety Act), and consider grievances for “civil” claims such as defamation, privacy violations, assault and battery, and sometimes even personal injuries.
The McInnes decision
In Cape Breton-Victoria Regional Centre for Education v. McInnes, 2025 NSCA 15, the Court ruled that a teacher was not allowed to bring a “slip and fall” claim against her employer in court, because of her status as a unionized employee.
The injuring event, a “slip and fall” in a school parking lot upon arrival at work, took place in 2015. Years later, in 2018, the member filed a Notice of Action in civil court, seeking damages for her injuries.
The Notice of Action named her employer, the Regional Centre for Education, which then brought a third-party claim against its snow-removal contractor.
Eventually, in 2022, the Centre brought a motion to amend its defence to add a claim that the court had no jurisdiction, and then to dismiss McInnes’ action for that reason.
Essentially, the Centre’s argument was that because she was a unionized employee and the event happened as she arrived at work, and on workplace property, the “essential character” of the claim fell within the scope of the collective agreement and thus within the exclusive jurisdiction of a labour arbitrator. Therefore, if McInnes wanted to make a claim for damages from the slip and fall, her only option would have been to pursue it through a grievance at the time it happened.
The Supreme Court agreed with this position, found it had no jurisdiction over her claim, and issued a stay of proceedings. Taking exception to the Supreme Court’s issuance of a stay, which can be a temporary measure, the Centre appealed, resulting in the Court of Appeal decision referenced above. The Court of Appeal agreed that the Court had no jurisdiction over McInnes’ claim—but found the Supreme Court erred by only entering a stay of proceedings. The Court of Appeal found that the only permissible outcome was to dismiss the claim outright, and it did so.
How does McInnes fit into existing law about the jurisdiction of arbitrators vs. courts?
It is well established that labour arbitrators have exclusive jurisdiction over all claims that, in their essential character, arise from the collective agreement. Foundational cases include St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704, and Weber v. Ontario Hydro, 1995 CanLII 108 (SCC).
The exclusive jurisdiction of labour arbitrators means that unionized employees are completely unable to pursue claims over such matters in court. There are some narrow exceptions to this—namely, that some statutes like Nova Scotia’s Human Rights Act are designed to allow "concurrent jurisdiction” (meaning human rights claims can be advanced at arbitration and at the Human Rights Commission), and that courts retain jurisdiction over remedies that arbitrators cannot give, such as injunctions.
McInnes is consistent with this established body of law. What makes it interesting is that it is such a clear factual illustration of the principle, even in the case of a classic “personal injury” matter such as a slip and fall accident: if the matter arises at the workplace (and is not captured by the Workers’ Compensation regime) then the only option for a unionized employee seeking a remedy is to pursue the claim via the grievance process.
Conditions that may trigger a tort claim in a grievance
While in McInnes the member did not approach the union to file a grievance, there will sometimes be options to do so. Union officers should think broadly when considering options for grievances, and remember that in addition to grieving any direct violations of the collective agreement and violations of employment-related legislation, they should consider whether there are any “tort claims.”
“Tort claims” simply refers to a wide category of civil wrongs, such as defamation, privacy violations and battery, that could normally be pursued by an individual in court, but within a unionized environment, may have to be grieved.
McInnes, together with similar Nova Scotia cases such as Gillan v. Mount Saint Vincent University, 2008 NSCA 55, makes it clear that personal injury cases such as slip and falls are within the exclusive jurisdiction of labour arbitrators if certain conditions are met. These conditions, which should trigger a union officer to at least consider filing a grievance dealing with a “tort” matter, would include the incident:
- taking place on workplace property,
- happening while carrying out work duties or
- involving coworkers and workplace relationships.
Key takeaways for union officers
The McInnes decision highlights three key takeaways for union officers:
- Claims by union members involving torts should be carefully considered by union officials. If the claims arise out of the workplace context, they can be grieved. Indeed, the grievance process may be the member’s only option for having such claims considered.
- To be grievable, these torts do not have to constitute a direct violation of the collective agreement or legislation—it is enough that they arise out of the workplace (and this requirement has been interpreted quite broadly).
In some cases, a grievance should include all three types of violation. For example, if someone is injured at work there may be reference in the grievance to specific collective agreement articles, to the occupational health and safety legislation, and to tort claims in negligence. It is better to be inclusive at the initial stages. - When filing such a grievance, union officers should describe the date and alleged facts of the incident in enough detail that it is clear what is being pleaded. They should also use broad language when describing the remedy, which should include not only income loss and direct financial losses, but also general and aggravated damages.
The information provided here does not constitute legal advice and is based on details available at time of writing. Perspectives and interpretations around this information will vary depending on the individual circumstances to which they may apply. Consult legal counsel for information and advice relevant to your individual circumstances.
