Date: 20010420
Docket: T-1759-00
Neutral Citation: 2001 FCT 342
Between:
NORMAND CLEROUX
Plaintiff/Respondent
- and -
THE ATTORNEY GENERAL OF CANADA
Defendant/Moving Party
REASONS FOR ORDER
PINARD, J.:
[1] The defendant brings this motion to strike the plaintiff's Statement of Claim on essentially three grounds: that the Federal Court has no jurisdiction to entertain the matter, pursuant to Rule 419(1)(a) and (f);that it is an abuse of the process of the Court, pursuant to Rule 419(1)(f); or that it fails to disclose a reasonable cause of action, pursuant to Rule 221(1)(a) (Federal Court Rules, C.R.C., c. 663).
[2] The plaintiff was employed as a Mechanical Inspector with the Department of National Defence from July 13, 1987 to June 28, 1994. On May 10, 1994, the plaintiff was informed that he was suspended from duty without pay for misconduct. In a letter dated June 28, 1994, the plaintiff was informed of the termination of his employment.
[3] The plaintiff's employment with the federal government, as that of all Public Service Alliance of Canada (PSAC) members, is governed by a collective agreement, the Master Agreement between the PSAC and the Treasury Board, made pursuant to the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRA). Article M-38.02 of the Master Agreement sets out a grievance procedure for any employee who feels that he or she "has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer in matters other than those arising from the classification process":
M-38.02 Subject to and as provided in section 90 [now section 91] of the Public Service Staff Relations Act, an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause M-38.05 except that,
(a) where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee's specific complaints, such procedure must be followed, . . .
Subsections 91(1) and 92(1) encompass the applicable grievance process under the PSSRA:
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.
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.
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.
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.
[4] During his tenure with National Defence, the plaintiff took advantage of the above grievance procedure on numerous occasions. Many of these grievances made it to the final level of the grievance procedure and were reviewed by the Director General of Employee Relations whose decisions are final and binding on most matters. The plaintiff brought grievances accusing management and the Department of National Defence of, among other things, harassment, conspiracy, preferential treatment of his colleagues, the ruination of his career, unjustified court martial-like hearings, and abuse of authority. All of these grievances were denied at the final level by the Director General of Employee Relations, after thorough investigations and reviews, and were not pursued further by the plaintiff.
[5] The plaintiff also brought several grievances with respect to his suspensions and the ultimate termination of his employment. These were ultimately referred to adjudication in accordance with the collective agreement. Between April 1995 and August 1996, during 39 hearing days, the Public Service Staff Relations Board (PSSRB) heard seven grievances filed by the plaintiff.
[6] The PSSRB allowed the grievances in part. The indefinite suspension and termination were set aside and a 15-day suspension substituted in their place. The PSSRB did, however, find the plaintiff guilty of misconduct. In the end, the PSSRB awarded the plaintiff compensation for lost wages and benefits for the one-half month time period between his indefinite suspension and termination. As the plaintiff did not wish to be reinstated, the PSSRB further determined that the plaintiff was entitled to compensation for lost wages and benefits for an 18-month period starting from the June 28, 1994 date of termination. In the conclusion of his decision, the adjudicator indicated: "As requested, I remain seized of the matter should the parties express difficulty in applying my decision."
[7] The plaintiff, obviously unsatisfied with the remedies awarded by the PSSRB, brought an action for damages before the Ontario Superior Court of Justice on April 2, 1998. The Court dismissed the action on the basis that it had no jurisdiction to entertain the claim which stemmed from a workplace dispute and was governed by the collective agreement. The plaintiff then brought the present action before this Court claiming substantially the same remedies as in the action before the Ontario Superior Court of Justice, including:
- lost benefits and wages resulting from an alleged failure by the employer to find an alternate position for the plaintiff in the Federal Government;
- damages for loss of reputation;
- legal fees incurred in the grievance process;
- that he was harassed in the workplace between 1991 and 1994;
- that he was mistreated by the defendant employer;
- that he was denied his right to a fair and impartial hearing; and
- that he has suffered from nervous shock as a result of alleged mistreatment by the defendant.
[8] The defendant submits that this Court lacks the jurisdiction over the subject-matter of this action because of the availability of recourse to alternative bodies of dispute resolution within the employment context (see Townsend v. Canada (1994), 74 F.T.R. 21). I agree. In the present matter, the PSSRA, in subsections 91(1) and 92(1), and article M-38.02 of the Master Agreement made pursuant to that Act, provide remedies for public servants in the position of the plaintiff. The arbitration procedure set out thereunder, through which the plaintiff did bring most of his labour grievances, confers exclusive jurisdiction on the arbitrators to resolve disputes arising out of collective agreements (see St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, [1986]1 S.C.R. 704; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 and New Brunswick v. O'Leary, [1995] 2 S.C.R. 967).
[9] In Weber, supra, the Supreme Court of Canada determined that the exclusive jurisdiction model was the approach to follow. This approach would foreclose all actions to the Courts "which expressly or inferentially arise out of the collective agreement" (see Weber, at page 963). To decide whether a particular claim or dispute falls within the scope of the collective agreement, one must consider the "essential nature" of the dispute and the ambit of the collective agreement.
[10] In this case, the plaintiff claims damages for the loss of earnings and benefits resulting from the alleged failure by the employer to find him an alternate position in the Federal Government; legal fees incurred in the grievance process; damages for loss of reputation; and costs. He further alleges that he was harassed in the workplace between 1991 and 1994, that he was mistreated by the defendant employer, that he was denied his right to a fair and impartial hearing and that he has suffered from nervous shock as a result of alleged mistreatment by the defendant. Regardless of how the plaintiff has characterized his claim, the subject-matter is rooted in the lengthy and continuing dispute with his employer. It is clear that all the claims relate to incidents which fell within the purview of the collective agreement and the PSSRA. The general subject-matter of the plaintiff's claim, therefore, is outside the jurisdiction of this Court.
[11] Further, the plaintiff has already grieved most of the matters raised in his Statement of Claim and pursued those grievances to the final level in the grievance procedure provided by the collective agreement and the PSSRA. The questions of whether the plaintiff was, among other things, the victim of abuse of authority, harassment, conspiracy, court martial-like hearings, preferential treatment, and damage to reputation by his employer were already addressed through the grievance procedure. The Director General of Employee Relations concluded that all of the plaintiff's allegations of misconduct by the employer were unfounded.
[12] As the Court stated in Johnson-Paquette v. Canada (1998), 159 F.T.R. 42, it is improper for the plaintiff to seek judicial review of a grievance officer's decision by way of an action for damages in tort. Similarly, the proper recourse for challenging the decision of the PSSRB or the fairness of the hearing is a judicial review application, not an action.
[13] Finally, I must emphasize that one of the matters raised by the plaintiff, namely that the employer should have attempted to find him another position in the Federal Government, flows directly from the PSSRB's decision, which dealt with the question of reinstatement, wherein the PSSRB declared itself to remain seized of the matter and its implementation. As such, it is under the exclusive jurisdiction of that adjudicative body.
[14] Additionally, there exists in section 23 of the PSSRA a mechanism for ensuring that the terms of an adjudicator's order are carried out.
[15] For all of the above reasons, I find that the Court has no jurisdiction to hear this action. It is beyond a doubt that the Statement of Claim discloses no reasonable cause of action, is an abuse of the process of the Court and, therefore, should be struck.
[16] Costs against the plaintiff.
JUDGE
OTTAWA, ONTARIO
April 20, 2001