Date: 20011113
Docket: T-133-99
Neutral Citation: 2001 FCT 1233
B E T W E E N:
WILLIAM THOMAS VAUGHAN
Plaintiff
(Appellant)
- and -
HER MAJESTY THE QUEEN
Defendant
(Respondent)
REASONS FOR ORDER AND ORDER
HENEGHAN J.
[1] Mr. William Thomas Vaughan (the "Appellant") appeals from the Order of Prothonotary Aronovitch made on January 31, 2000, in which she granted the motion brought by the Defendant Respondent pursuant to the Federal Court Rules, 1998, Rule 221, to strike out his Statement of Claim on the grounds that it discloses no cause of action.
[2] The effect of the Order made by the Prothonotary is to terminate the action commenced by the Appellant. The disposition of this appeal turns on the standard of review applicable to appeals from an order of a Prothonotary. That standard is set out by the Federal Court of Appeal in Canada v. Aqua-Gem Investments Ltd., [1993] 2 F.C. 425 at page 463 as follows:...as to the standard of review to be applied by a motions judge to a discretionary decision of a prothonotary. Following in particular Lord Wright in Evans v. Bartlam, [1937] A.C. 473 (H.L.), at p. 484, and Lacourcière, J.A., in Stoicevski v. Casement (1983), 43 O.R. (2d) 436 (Div. Ct.), discretionary orders of prothonotaries ought not to be disturbed on appeal to a judge unless:
(a) they are clearly wrong, in the sense that the exercise of discretion by the prothonotary was based upon a wrong principle or upon a misapprehension of the facts, or
(b) they raise questions vital to the final issues of the case.
Where such discretionary orders are clearly wrong in that the prothonotary has fallen into error of law (a concept in which I include a discretion based upon a wrong principle or upon a misapprehension of the facts), or where they raise questions vital to the final issue of the case, a judge ought to exercise his own discretion de novo.
[3] Since the Order in question is dispositive of the action, the approach on this appeal requires the exercise of discretion as if the initial motion to strike the Statement of Claim were before the Court. The point of commencement is to assess the Statement of Claim by the test applicable to the striking out of a pleading.
[4] That test was considered by the Supreme Court of Canada in Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959, 117 N.R. 321 (S.C.C.) where Wilson J., writing for the Court said at page 975:...assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action?
[5] The second point to be considered is that, upon a motion to strike a pleading, the matters alleged in that pleading are assumed to be true. The relevant facts alleged in the Appellant's Statement of Claim are as follows:
[4] The plaintiff was employed as a Mechanical Engineer with the Department of Public Works from 1975 to 1996. In October 1994, the plaintiff was informed that he was surplus to requirements due to lack of work effective October 12, 1994 with a scheduled lay-off date of April 12, 1995.
[5] Article 1.1.14 of the Work Force Adjustment Directive (WFAD), which has been deemed to be part of the plaintiff's collective agreement, provides that the surplus period is to be extended until at least one reasonable job offer is made. On February 17, 1995, a job was offered to Mr. Vaughan. It was, however, conditional.
[6] In the meantime, Mr. Vaughan had become aware of a further alternative to either accepting or rejecting the offer made to him, namely, to leave the public service under the terms of the Early Retirement Incentive (ERI) benefit program.
[7] On March 6, 1995, he requested ERI benefits, effective April 1, 1995 and confirmed his decision to retire from the public service on May 24, 1995. As benefits are not available under the ERI program if an employee has received a reasonable job offer before leaving the public service, Mr. Vaughan's request for ERI benefits was denied on the grounds that he had received such an offer.
[8] The plaintiff grieved the determination that the job offer made on February 17, 1995 was a reasonable offer and alleged that the provisions of the WFAD had been contravened. The National Joint Council which considered the grievance found in Mr. Vaughan's favour and extended his surplus period.
[9] On December 24, 1996, in response to the decision of the National Joint Council, the plaintiff was offered an unconditional indeterminate position equivalent to the position previously occupied by him. He accepted the offer on January 10, 1997. Roughly a week later in a telephone conversation, he informed the Regional Director of his prior commitments in the private sector and requested that he be given several months to fulfill his professional responsibilities. He was informed by letter, that his appointment was effective February 17, 1997, and that failure to report for duty would be considered a refusal of the reasonable job offer.
[10] On February 13, 1997, the plaintiff informed the respondent that he intended to take his grievance to the next level because the job offer did not address the substance of his March 4, 1996 grievance, that is, his entitlement to ERI benefits. The defendant deemed this step on the part of the plaintiff to constitute the refusal of a reasonable job offer. At the next level of the grievance process, the Executive Committee of the National Joint Council concluded that the first job offer was not within the intent of the WFAD. The grievance was then referred to the Public Service Staff Relations Board for adjudication.
[11] The adjudicator upheld the National Joint Council and concluded that the plaintiff's layoff of February 23, 1996, was invalid and that his surplus period should have been extended. The adjudicator also concluded that the plaintiff's refusal to report for work, as of February 17, 1997, constituted the refusal of a reasonable job offer resulting in the plaintiff being laid off as of that date and entitled to separation benefits pursuant to the WFAD. As to the plaintiff's claim for ERI benefits, the adjudicator concluded that he did not have jurisdiction to consider the ERI claim since eligibility for ERI did not arise from the collective agreement.
[6] The Appellant claims:
(a) a declaration that the Plaintiff was entitled to Early Retirement Incentive ("ERI") benefits as of April 1, 1995 in accordance with the Retirement Compensation Arrangements Regulations, No. 2, amendment, SOR 95-169 which was enacted pursuant to ss. 10 and 28(1) of the Special Retirement Arrangements Act, S.C. 1992, c. 46, Sch. I;
(b) damages in an amount equivalent to the loss of ERI benefits from April 1, 1995, to the date of the judgment;
(c) pre-judgment and post-judgment interest on all amounts awarded;
(d) costs of this action on a solicitor and client scale;
(e) such further and other relief as this Honourable Court may deem just.
Appellant's Submissions
[7] The Appellant submits that he has a viable cause of action, notwithstanding the apparent bar created by operation of the Public Service Staff Relations Act, R.S., c. P-35, s. 1 (the "Act"). He says that his case falls outside the framework created by the Act for the determination of disputes arising between members of the Public Service and the Federal Government as employer.
[8] The Appellant argues that the Prothonotary erred in concluding that the statutory regime set forth in the Act precludes access to the court, prior to and independent of participation in the grievance procedure provided by the Act. Specifically, the Appellant submits that the Act provides no means for a third-party adjudication of his claim for entitlement to the Early Retirement Incentive ("ERI"). He says that the statutory grievance procedure provided in the Act does not provide him with an adequate and meaningful remedy since it does not provide for a full adjudication, on the merits for his claim to entitlement to the ERI. Furthermore, that process does not provide for an ultimate award of the ERI, or equivalent benefits, to him.
[9] The Appellant distinguishes the decision of the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 and New Brunswick v. O'Leary, [1995] 2 S.C.R. 967 from his situation. He argues that these cases deal with the following matters which are not present in his case:
(a) the collective agreements and statutory schemes required that the complaints in issue be addressed by arbitration;
(b) the arbitrator had the legal power to consider the issues; and
(c) the arbitrator had sufficient remedies to fully resolve the complaints.
[10] The Appellant also argues that there is conflicting jurisprudence of the Federal Court of Appeal respecting the remedies available to him. In this regard, the Appellant refers to the decisions in Banerd v. Canada (Deputy Minister of National Revenue), [1996] F.C.J. No. 260 (C.A.) (QL) and Johnson-Paquette v. Her Majesty the Queen (1998), 159 F.T.R. 42, [1998] F.C.J. No. 1741 (F.C.T.D.)(QL), affirmed (2000), 253 N.R. 305, [2000] F.C.J. No. 441 (F.C.A.)(QL) .
[11] In Banerd, supra, the Federal Court of Appeal dealt with an appeal from a decision of the Trial Division to strike out a statement of claim on the basis of lack of jurisdiction. The plaintiff, a member of the federal public service, sought a declaration that his employment had been improperly terminated. The Court of Appeal considered the issue of whether the plaintiff could have sought relief under the Act.
[12] Mr. Banerd was entitled to file a grievance concerning the alleged improper termination of employment pursuant to section 91 of the Act but could not refer the matter to adjudication pursuant to section 92. In the result, the Court of Appeal concluded, at paragraph 6, that the Act "could provide no relief of any kind to a person in the plaintiff's position who had been laid off". It also concluded that no other statutes might yield relief for the alleged breach. The Federal Court of Appeal allowed the appeal, with the effect of restoring the Plaintiff's Statement of Claim.
[13] On the other hand, in Johnson-Paquette, supra, the Federal Court of Appeal concluded that the existence of a statutory grievance procedure in the Act bars an employee in the Federal Public Service from pursuing an action arising from a grievable dispute, even when that dispute cannot be referred to an independent adjudication. The Court did not refer to the prior decision of Banerd, supra, in its decision.
[14] The Appellant also refers to decisions of provincial appellate courts which have considered the jurisdictional issues when statements of claim have been presented by persons who are members of the federal public service. In Danilov v. Canada (Atomic Energy Control Board) (1999), 125 O.A.C. 130, 48 C.C.E.L. (2d) 34 (Ont. C.A.) (leave to appeal to the Supreme Court of Canada denied; (2000), 260 N.R. 399), the Ontario Court of Appeal decided that the statutory grievance provision of section 91 of the Act did not preclude a claim for severance pay, since that claim could not be referred to adjudication pursuant to section 92 of the Act. At paragraphs 9 and 10 of its decision, the Court said:
9. Finally, we do not think that the existence of the statutory grievance procedure provided by the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the "PSSRA") justifies the dismissal of this action. That procedure does not permit the plaintiff to take this dispute to binding adjudication by a third party. He can do no more than raise it as a complaint with his employer. Moreover, unlike the circumstances in Johnson-Paquette v. Canada (1998), 159 F.T.R. 42, the plaintiff here did not agree through collective bargaining to have the grievance procedure in the PSSRA serve as his dispute resolution mechanism.
10. Hence the rationale of Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 is simply not applicable. Where the statutory grievance procedure is neither agreed to, nor is a mechanism providing final and binding adjudication of this dispute, that procedure cannot be said to have exclusive jurisdiction over the dispute to the exclusion of the courts.
[15] The Nova Scotia Court of Appeal also accepted jurisdiction over a claim for damages on behalf of a public service employee in Pleau Canada (Attorney General) (1999), 182 D.L.R. (4th) 373 (N.S.C.A.) (leave to appeal to the Supreme Court of Canada denied; (2000), 262 N.R. 399). That court found that the collective agreement did not address the substance of the plaintiff's complaint and accordingly, the matter could not be referred to adjudication pursuant to section 92 of the Act. See page 17 of Appellant's Motion Record.
Respondent's Submissions
[16] The Respondent takes the contrary view and argues that the cause of action advanced by the Appellant in his Statement of Claim is beyond the jurisdiction of this court, on the grounds that the Act creates a complete code for the determination and adjudication of disputes arising relative to employment in the Public Service of Canada. Furthermore, the Respondent argues that the weight of judicial authority is in its favour, to the effect that this court is without jurisdiction over the Appellant's cause of action, and relies on the recent decision of the Federal Court of Appeal in Johnson-Paquette, supra.
[17] The Respondent says that the Act exclusively provides the remedies available to an employee seeking relief against the Federal Government. Further, it pleads that the appropriate course to be followed by the Appellant, in seeking redress against his employer for alleged interference with his employment, was the pursuit of the steps outlined in section 91 of the Act, which could have led ultimately to pursuit of an application for judicial review.
[18] As well, the Respondent outlines the Appellant's status as a federal civil servant. He was employed by the Department of Public Works and Government Services. That Department is listed in Schedule I of the Financial Administration Act , R.S.C. 1985, c. F-11, as amended and is covered by Part I of Schedule I of the Act. Pursuant to section 2(1) of the Public Service Employment Act, R.S.C. 1985, c. P-33 as amended, the "deputy head" in the Appellant's collective agreement is the Deputy Minister of Public Works and Government Services.
[19] The grievance procedure available to the Appellant is governed by the Act and his collective agreement. Section 100(4) of the Act provides as follows:
| 100(4) For the purposes of any provision of this Act respecting grievances, the employer shall designate the person whose decision on a grievance constitutes the final or any level in the grievance process and the employer shall, in any case of doubt, by notice in writing, advise any person wishing to present a grievance, or the Board, of the person whose decision thereon constitutes the final or any level in the process. |
100(4) Pour l'application des dispositions de la présente loi concernant les griefs, l'employeur désigne les personnes dont la décision en cette matière constitue un palier de la procédure applicable, y compris le dernier. En cas de doute, il communique par écrit les noms de ces personnes à quiconque voulant déposer un grief, ou à la Commission. |
|
[20] The steps of the grievance procedure are detailed in clause 35.06 of the collective agreement governing the Appellant's employment which provides:
35.06 There shall be no more than a maximum of four (4) steps in the grievance procedure. These steps shall be as follows:
(a) Step 1 - first level of management;
(b) Steps 2 and 3 in departments or agencies where such steps are established - intermediate step(s);
(c) Final Step - Chief Executive or Deputy Head or his authorized representative [emphasis added]
[21] According to the Respondent, the Appellant had access to this grievance procedure which ultimately would lead to a hearing by the Deputy Minister or delegate. That person has authority to grant the relief sought by the aggrieved employee and furthermore, the decision of that person is subject to judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended.
[22] The Respondent argues that the Appellant cannot sidestep the provision of section 18(3) of the Federal Court Act, supra, simply by commencing an action against Her Majesty the Queen as Defendant, when his right of redress lies elsewhere. The Respondent suggests that by commencing an action in this way, the Appellant is seeking judicial review of a decision relative to non-accessibility to the ERI without having previously pursued the route of redress provided in the Act.
Issue
[23] Did the Prothonotary err in concluding that it was plain and obvious that the Plaintiff's Statement of Claim discloses no cause of action?
Analysis
[24] In my opinion, the following facts are critical to the disposition of this appeal:
1. That the Appellant was formerly employed in the Federal Public Service;
2. That the applicable collective agreement provided for a grievance process;
3. That the Appellant is seeking a declaration of entitlement to certain benefits, specifically the ERI; and
4. That the ERI is related to the former employment of the Appellant.
[25] These facts attract certain legal consequences having regard to the Act, specifically sections 91, 92 and 96, as follow:
| 91. (1) Where any employee feels aggrieved (a) by the interpretation or application, in respect of the employee, of (i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or (ii) a provision of a collective agreement or an arbitral award, or (b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii), in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act. Limitation (2) An employee is not entitled to present any grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies, or any grievance relating to any action taken pursuant to an instruction, direction or regulation given or made as described in section 113. Right to be represented by employee organization (3) An employee who is not included in a bargaining unit for which an employee organization has been certified as bargaining agent may seek the assistance of and, if the employee chooses, may be represented by any employee organization in the presentation or reference to adjudication of a grievance. Idem (4) No employee who is included in a bargaining unit for which an employee organization has been certified as bargaining agent may be represented by any employee organization, other than the employee organization certified as bargaining agent, in the presentation or reference to adjudication of a grievance. R.S., c. P-35, s. 90. Adjudication of Grievances Reference to Adjudication Reference of grievance to adjudication 92. (1)Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to (a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award, (b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4), (i) disciplinary action resulting in suspension or a financial penalty, or (ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or (c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty, and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication. Approval of bargaining agent (2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit, to which the collective agreement or arbitral award referred to in that paragraph applies, signifies in the prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings. Termination under P.S.E.A. not grievable (3) Nothing in subsection (1) shall be construed or applied as permitting the referral to adjudication of a grievance with respect to any termination of employment under the Public Service Employment Act. Order (4) The Governor in Council may, by order, designate for the purposes of paragraph (1)(b) any portion of the public service of Canada specified in Part II of Schedule I. 96. (1) Subject to any regulation made by the Board under paragraph 100(1)(d), no grievance shall be referred to adjudication and no adjudicator shall hear or render a decision on a grievance until all procedures established for the presenting of the grievance up to and including the final level in the grievance process have been complied with. Decision requiring amendment (2) No adjudicator shall, in respect of any grievance, render any decision thereon the effect of which would be to require the amendment of a collective agreement or an arbitral award. Binding effect (3) Where a grievance has been presented up to and including the final level in the grievance process and it is not one that under section 92 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken thereon. |
91. (1) Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d'une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu'il s'estime lésé : a) par l'interprétation ou l'application à son égard : (i) soit d'une disposition législative, d'un règlement - administratif ou autre -, d'une instruction ou d'un autre acte pris par l'employeur concernant les conditions d'emploi, (ii) soit d'une disposition d'une convention collective ou d'une décision arbitrale; b) par suite de tout fait autre que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses conditions d'emploi. Restrictions (2) Le fonctionnaire n'est pas admis à présenter de grief portant sur une mesure prise en vertu d'une directive, d'une instruction ou d'un règlement conforme à l'article 113. Par ailleurs, il ne peut déposer de grief touchant à l'interprétation ou à l'application à son égard d'une disposition d'une convention collective ou d'une décision arbitrale qu'à condition d'avoir obtenu l'approbation de l'agent négociateur de l'unité de négociation à laquelle s'applique la convention collective ou la décision arbitrale et d'être représenté par cet agent. Droit d'être représenté par une organisation syndicale (3) Le fonctionnaire ne faisant pas partie d'une unité de négociation pour laquelle une organisation syndicale a été accréditée peut demander l'aide de n'importe quelle organisation syndicale et, s'il le désire, être représenté par celle-ci à l'occasion du dépôt d'un grief ou de son renvoi à l'arbitrage. Idem (4) Le fonctionnaire faisant partie d'une unité de négociation pour laquelle une organisation syndicale a été accréditée ne peut être représenté par une autre organisation syndicale à l'occasion du dépôt d'un grief ou de son renvoi à l'arbitrage. S.R., ch. P-35, art. 90. Arbitrage des griefs Renvoi à l'arbitrage Renvoi d'un grief à l'arbitrage 92. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur : a) l'interprétation ou l'application, à son endroit, d'une disposition d'une convention collective ou d'une décision arbitrale; b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques; c) dans les autres cas, une mesure disciplinaire entraînant le licenciement, la suspension ou une sanction pécuniaire. Approbation de l'agent négociateur (2) Pour pouvoir renvoyer à l'arbitrage un grief du type visé à l'alinéa (1)a), le fonctionnaire doit obtenir, dans les formes réglementaires, l'approbation de son agent négociateur et son acceptation de le représenter dans la procédure d'arbitrage. Exclusion (3) Le paragraphe (1) n'a pas pour effet de permettre le renvoi à l'arbitrage d'un grief portant sur le licenciement prévu sous le régime de la Loi sur l'emploi dans la fonction publique. Décret (4) Le gouverneur en conseil peut, par décret, désigner, pour l'application de l'alinéa (1)b), tout secteur de l'administration publique fédérale spécifié à la partie II de l'annexe I. 96. (1) Sauf règlement pris par la Commission aux termes de l'alinéa 100(1)d), le renvoi d'un grief à l'arbitrage de même que son audition et la décision de l'arbitre à son sujet ne peuvent intervenir qu'après l'observation intégrale de la procédure applicable en la matière jusqu'au dernier palier. Décision entraînant une modification (2) En jugeant un grief, l'arbitre ne peut rendre une décision qui aurait pour effet d'exiger la modification d'une convention collective ou d'une décision arbitrale. Décision définitive et obligatoire (3) Sauf dans le cas d'un grief qui peut être renvoyé à l'arbitrage au titre de l'article 92, la décision rendue au dernier palier de la procédure applicable en la matière est finale et obligatoire, et aucune autre mesure ne peut être prise sous le régime de la présente loi à l'égard du grief ainsi tranché. |
|
[26] The parties agree that section 92 is not determinative of the issue in this case, since the Appellant's complaint is not related to the situations described in section 92(1). It appears, having regard to the allegations in the Statement of Claim, that the adjudication process available to the Appellant is the one identified in section 91. By operation of section 96(3), once that adjudication process reaches the fourth level, the decision of the Adjudicator becomes final for the purposes of the Act.
[27] In Gregoire Panagopoulos v. Her Majesty the Queen, [1990] F.C.J. No. 234 (F.C.T.D.)(QL), the court found that the Act establishes a complete code for the resolution of employment related disputes arising between members of the Federal Civil Service and their employer, Her Majesty the Queen.
[28] In Weber, supra, the Supreme Court of Canada was asked to consider whether federal employees governed by the PSSRA are entitled to seek the assistance of the court in the resolution of disputes arising out of the collective agreement. McLachlin J. (as she then was), writing for the majority, adopted a model for jurisdiction of the court which says that if the essential character of the dispute arises under the collective agreement, then the arbitrator shall have exclusive jurisdiction over the dispute, as provided for by the legislation. Disputes that expressly or inferentially arise out of the collective agreement are thus precluded from being litigated in the courts. McLachlin J. (as she then was), says, at page 957, that "The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement."
[29] This issue of jurisdiction was considered by the Federal Court of Appeal in Johnson-Paquette, supra, where the court affirmed the decision of the trial judge in striking out the action taken by a federal civil servant against her employer. The Federal Court of Appeal said as follows:10. Parliament's will to exclude the intervention of the courts in labour relation disputes may therefore be expressly stated or arise by necessary implication. Where, as is the case for the PSSRA, Parliament has, through legislation, adopted what is obviously intended as a full code for the resolution of labour disputes in a given sector of activity and has made the outcome of the legislated processes final and binding on those concerned, it would offend the legislative scheme to permit recourse to ordinary courts which have not been assigned with these tasks. In order to give effect to such schemes, Parliament must be taken as having excluded recourse to the ordinary courts. [References omitted]
[30] In my opinion, the same reasoning applies in the present case. The adjudicative process under section 91 of the Act was the available remedy for the Appellant by virtue of subsection 91(1)(a)(i). The ERI to which he seeks a declaration of entitlement is a matter related to the terms and conditions of employment. Access to that benefit could only arise in relation to employment in the Federal Civil Service and is governed by regulations enacted pursuant to the Special Retirement Arrangements Act, supra.
[31] I am bound to follow the decision in Weber, supra, and Johnson-Paquette, supra. The adequacy of relief available pursuant to the adjudicative provisions of the Act is not the issue, but whether the Appellant can pursue an action against his employer when he has failed to follow the procedure mandated by the Act.
[32] There is no doubt that the Appellant could have sought judicial review of any decision made at the end of the section 91 process. He chose not to do so. It is neither necessary nor appropriate for me to speculate on the range of remedies that could be available following judicial review had he pursued that route, except to observe that there is no evidence that the Respondent would have failed to respect the decision of the court and any directions concerning the process for determining entitlement to the benefit in issue.
[33] In the result, the appeal is dismissed with costs.
ORDER
The appeal is dismissed with costs.
"E Heneghan"
J.F.C.C.
November 13, 2001
OTTAWA, Ontario