Date: 20010516
Docket: T-817-00
Neutral Citation: 2001 FCT 496
BETWEEN:
SELWYN PIETERS
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
[1] The Defendant seeks an order striking out the Plaintiff's claim without leave to amend. I must accept the facts as pleaded in the Statement of Claim. In order for the Defendant to succeed, it must be "plain and obvious" that the Plaintiff's claim discloses no reasonable cause of action and, taking the facts in the Statement of Claim as proved, I must be satisfied that the claim cannot succeed.
[2] The Plaintiff states that there are serious issues affecting both his important constitutional rights as an African Canadian male to equality in employment with the Government of Canada and to protection from discriminatory and bad faith discharge by the Registry of the Federal Court. In addition, he submits that his claim discloses the serious issues of: defamation; wrongful discharge; breach of contract; unlawful interference with economic interest; abuse of public office; intentional infliction of mental suffering; and injury to his career and reputation.
[3] If it were not for the Plaintiff's Charter arguments, I could dismiss the Statement of Claim on the grounds that the Plaintiff was subject to a limited term contract. He accepted a term position as a registry officer with the Registry of the Federal Court for the period from June 14, 1999 to December 14, 1999. His contract was not renewed. The Plaintiff filed a grievance by mail on January 12, 2000 alleging that the employer's decision not to renew his employment contract was inequitable, vindictive and resulted in wrongful (constructive) dismissal. His grievance was dismissed on February 16, 2000.
[4] On February 25, he submitted a Grievance Transmittal Form for the grievance to be heard at the final level. The union representative advised him on March 29, 2000, that there would be an issue of jurisdiction to hear his grievance under the Public Service Staff Relations Act, R.S.C. 1985, c.P-35 (the "PSSRA"), as the adjudicator for the Public Service Staff Relations Board had declined jurisdiction pursuant to section 96(3) of the PSSRA to hear grievances that followed the application of a specified term under section 25 of the Public Service Employment Act, R.S.C. 1985, c. P-33 (the "PSEA"). She advised him that he would have to consider whether he could obtain his remedies elsewhere.
[5] On June 27, 2000, the Plaintiff's grievance was dismissed at the final level by Mr. Biljan, Administrator of the Federal Court of Canada. In his letter, Mr. Biljan stated:
...I find that your grievance was filed outside the prescribed time limits as provided in Article 18.10 of your collective agreement and, is therefore denied. Furthermore, regardless of the issue of timeliness, your employment was not a "dismissal" but rather the expiration of a "specified term" under section 25 of the Public Service Employment Act.
See Eskasoni School Board/Eskasoni Band Council v. MacIsaac, [1986] F.C.J. No. 263 (C.A.) 137, wherein the Court held that the word "dismissal" does not include embracing the failure of an employer to renew a contract for a fixed term of employment. If it were not for the Charter remedies, this would be the end of the matter.
[6] The Defendant submits that if the foregoing is not sufficient to terminate the case, then the fact that the party could have sought judicial review of the grievance decision or could have referred the matter to an adjudicator, along with subsequent judicial review of the adjudicator's decision, is sufficient. During this process, the Plaintiff would have had the right to raise the Charter issues and obtain a remedy in that fashion.
[7] Pursuant to Article M-38.02 of the Collective Agreement, the Plaintiff was a party to the Collective Agreement. The Plaintiff went through the grievance procedure and at no time did he raise sections 7, 15 and 24.1 of the Charter. According to the Supreme Court of Canada in Murray Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, if the Plaintiff had chosen to refer the matter to an adjudicator, an adjudicator would have had jurisdiction to deal with the Charter issues. In addition, if the adjudicator had not dealt with the Charter arguments raised, then the Federal Court would have had the authority to do so.
[8] The Public Service Employment Act (the "PSEA"), the Financial Administration Act R.S.C. 1985, c. F-11 (the "FAA"), and the Public Service Staff Relations Act (the "PSSRA") are the main statutes that govern labour relations between the Queen in right of Canada and her employees. The PSEA deals with the appointment of public servants by the Public Service Commission. Section 21 of the PSEA provides the mechanism by which an appointment to a position in the public service can be appealed. The FAA makes the Treasury Board responsible for personnel management in the public service of Canada on behalf the Queen. This includes the determination of the terms and conditions of employment as well as powers with respect to personnel management. Under the PSSRA, an employee who feels aggrieved by the interpretation or application of a provision of a collective agreement is entitled to present a grievance as was done by the Plaintiff. This right is subject to the limitation that the employee grievance be approved and represented by the employee's bargaining agent.
[9] Finally, the PSSRA contains a prohibitive clause which provides that a decision taken at the final level in the grievance process is final, and no further action can be taken in respect of the grievance in question. This is subject to the right of the Applicant to seek judicial review of the adjudication process under the Federal Court Act, R.S.C. 1985, c. F-7.
[10] The courts have clearly established that the PSSRA is a complete code governing relations between Her Majesty and Her employees, and that under the above clauses, the grievance procedure is the only recourse available to public servants. As a result, if an employee's complaints are remediable at all, they are remediable under the PSEA and the PSSRA.
[11] In his first level grievance presentation, the Plaintiff outlined the conditions and treatment to which he claims to have been subjected to, which included:
a) being denied proper training and assistance;
b) being subject to unjustified criticism;
c) not being provided with the support required to meet his needs for job success;
d) being over-supervised and over-monitored;
e) being subjected to work overloading and being overextended;
f) being the subject of rude, condescending, abrupt and humiliating treatment;
g) being the subject of on-going scapegoating and unfairness;
h) being selectively denied professional development and other opportunities that were available to other term PM-01 registry officers (because of all of the above he believed that his job was threatened);
i) the employer was oblivious to his difficulties and failed to do anything about them;
j) he was constructively dismissed by the employer's decision to not renew;
and he then says that all of the foregoing acts were done in bad faith and as a result of this conduct he experienced a loss of self-esteem and self-confidence, humiliation, loss of dignity and emotional distress.
[12] It is clear that the foregoing matters could be dealt with under the grievance procedure. This case resembles that of Johnson-Paquette v. Canada, [2000] F.C.J. No. 441 (C.A.) where Noël J. stated at paragraph 1:
In my view, the motions Judge came to the correct conclusion when she held that the appellant's action could not proceed before the Trial Division of this Court having regard to the dispute resolution process which was available to her and of which she availed herself under the Public Service Staff Relations Act (PSSRA).
He then goes on to say at paragraph 2 that:
In Weber v. Ontario Hydro, [supra] the Supreme Court held that where a collective agreement provides an arbitrator with jurisdiction over a dispute, and another forum is not expressly provided for by legislation, the arbitrator shall have jurisdiction exclusive of the Courts.
[13] The Plaintiff relies on Danilov v. Canada (Atomic Energy Control Board), [1999] O.J. No. 3735 (Ont. C.A.), but the Federal Court of Appeal, on facts that are very similar to the case before me, expressly points out that it distinguishes Danilov, supra from the case before it, since the Plaintiff in the Court of Appeal case was party to a collective bargaining agreement, unlike the plaintiff in Danilov.
[14] In Johnson-Paquette, supra, Noël J. stated at paragraph 6:
More importantly however, this grievance procedure is the dispute resolution process which was adopted by the parties to the collective agreement to resolve employment related disputes of the nature raised by the appellant in her grievance. The appellant adhered to the collective agreement and availed herself of that process. This takes the present matter squarely outside the ambit of the decision of the Ontario Court of Appeal in Danilov v Canada (Atomic Energy Control Board) where the Court noted that unlike the present situation, the plaintiff in that case had not agreed through collective bargaining to have the grievance procedure in the PSSRA serve as his dispute resolution mechanism. [emphasis added]
[15] I agree that the Plaintiff's claim raises very important Charter issues, but the Plaintiff could have presented these issues before an adjudicator. If the adjudicator had refused to hear such issues, the Plaintiff would have been entitled to present them to the Federal Court on an application for judicial review of the adjudicator's decision. The Federal Court of Appeal in Johnson-Paquette, supra decision is binding upon me, and in any event its reasoning is very persuasive. Noël J. went on to state at paragraph 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.
At paragraph 11 Noël J. stated:
Section 17(1) of the Federal Court Act provides the trial division of this Court with jurisdiction in all cases where relief is claimed against the Crown "except as otherwise provided in this Act or any other Act". In my view, the motion Judge came to the correct conclusion in this instance when she held that the PSSRA provides otherwise.
[16] The Plaintiff also raised the issue of defamation. However, the facts that are pleaded do not disclose any question of defamation. In any event, the Supreme Court of Canada held in Weber, supra that where the facts fall within the authority of the arbitrator, innovative pleading will not overcome the legislative prohibition. At page 955, McLachlin J. as she then was, stated:
While more attractive than the full concurrency model, the overlapping spheres model also presents difficulties. In so far as it is based on characterizing a cause of action which lies outside the arbitrator's power or expertise, it violates the injunction of the Act and St. Anne Nackawic that one must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute. It would also leave it open to innovative pleaders to evade the legislative prohibition on parallel court actions by raising new and imaginative causes of action, as remarked by La Forest J.A. in the Court of Appeal decision in St. Anne Nackawic, at pp. 694-95. This would undermine the legislative purposes underlying such provisions and the intention of the parties to the agreement. This approach, like the concurrency model, fails to meet the test of the statute, the jurisprudence and policy.
[17] I decline to exercise my judicial discretion to permit this action to go forward. The Charter issues are not being ignored, however such issues must be dealt with in the manner suggested by the Federal Court of Appeal in Johnson-Paquette, supra.
[18] I find that the Plaintiff could have proceeded by way of an adjudication and judicial review thereof, or by judicial review of the filed grievance. The Court could have dealt with the Charter issues under either of these scenarios. However, the Plaintiff did not raise the Charter in the process of the grievance procedure.
[19] The Defendant's motion is granted. The Plaintiff's claim is struck without leave to amend. The Plaintiff's motion is dismissed, since the questions set out therein are not relevant to the findings in this case.
"W.P. McKeown"
JUDGE
Ottawa, Ontario
May 16, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-817-00
STYLE OF CAUSE: SELWYN PIETERS V. HER MAJESTY THE QUEEN
NOTICE OF MOTION DISPOSED OF IN WRITING
REASONS FOR ORDER OF: THE HONOURABLE JUSTICE MCKEOWN.
DATED: MAY 16, 2001
WRITTEN REPRESENTATIONS BY:
SELWYN PIETERSFOR PLAINTIFF ACTING ON HIS OWN BEHALF
KATHRYN HUCALFOR DEFENDANT
SOLICITORS OF RECORD:
MR. MORRIS ROSENBERGFOR DEFENDANT
DEPUTY ATTORNEY GENERAL OF CANADA
OTTAWA, ONTARIO