Date: 20050520

Docket: T-2079-01

Citation: 2005 FC 728

Montreal, Quebec, May 20, 2005

PRESENT:      MADAM JUSTICE TREMBLAY-LAMER

BETWEEN:

CHANTAL-ANNICK TREMBLAY

Plaintiff

and

HER MAJESTY THE QUEEN

Defendant

REASONS FOR ORDER AND ORDER

[1]                This is a motion for an order allowing the defendant's appeal from Prothonotary Morneau's April 8, 2005 order dismissing the motion to dismiss the action for want of jurisdiction.

[2]                The motions judge on a motion to dismiss must take the facts set out in the statement of claim as proven (Canada (Attorney General) v. Inuit Tapirisat of Canada, [1980] 2 S.C.R. 735).

[3]                It will help to identify the key facts from the statement of claim.

[4]                The plaintiff was appointed on September 9, 1989, to a position with the Canadian Security Intelligence Service (CSIS) under section 8 of the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 (the Act).

[5]                The plaintiff was dismissed on July 7, 1999, by the Director of CSIS, under the combined effect of subparagraph 8(1)(b)(i) of the Act and paragraph 11(2)(g) of the Financial Administration Act, R.S.C. 1985, c. F-11, after he denied her the security clearance necessary for the performance of her duties.

[6]                The plaintiff complained to the Security Intelligence Review Committee under subsection 41(1) and paragraph 42(3)(a) of the Act, and it conducted an investigation under subsection 48(2) of the Act.

[7]                On completion of its investigation, the Review Committee made a report with recommendations to the Director of CSIS.

[8]                After receiving the report, the Director of CSIS maintained his decision of July 7, 1999. No application for judicial review of the recommendation of the Review Committee was made under sections 18 and 18.1 of the Federal Courts Act, R.S.C. 1985, c. F-7.

[9]                Nor was any application for judicial review of the July 7, 1999 decision of the Director of CSIS and subsequent decision to maintain it made under sections 18 and 18.1 of the Federal Courts Act.

[10]            On November 23, 2001, under the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50, the plaintiff brought an action in extracontractual civil liability based essentially on the unlawfulness of her dismissal.

[11]            The plaintiff's whole cause of action is based on the claim that the decision of the Director of CSIS to revoke the plaintiff's security clearance was made without regard for certain administrative policies and without regard for all of the relevant information.

[12]            The plaintiff also claims that the decision to dismiss her was made in violation of the principles of procedural fairness.

[13]            On May 7, 2003, following discussions held in the course of the pre-trial conference, this Court made an order allowing the plaintiff to file and serve a motion under subsection 18.1(2) of the Federal Courts Act for an extension of time to apply for judicial review of the July 7, 1999 decision of the Director of CSIS or any other relevant decision.

[14]            In addition, in the event of this Court's refusal to extend the time for filing an application for judicial review, this Court ordered the defendant to bring a motion for summary judgment.

[15]            On July 9, 2003, this Court dismissed the plaintiff's motion for an extension of time to apply for judicial review of the July 7, 1999 decision of the Director of CSIS.

[16]            The plaintiff did not appeal that decision.

[17]            The defendant then brought a motion for summary judgment dismissing the plaintiff's action.

[18]            On December 19, 2003, Pinard J. referred the matter to the trial judge because he felt the matter should go to trial for a full and fair determination of the rights of the parties, on the procedure as well as on the merits. That decision was based on Gilmour v. Canada, [2000] F.C.J. No. 1880 (F.C.T.D.) (QL), Sweet v. Canada, [1999] F.C.J. No. 1539 (F.C.A.) (QL), andZarzour v. Canada, [2000] F.C.J. No. 2070 (F.C.A.) (QL). The case law has since evolved. The Federal Court of Appeal has delivered judgment in Canada v. Tremblay, [2004] 4 F.C.R. 165 (F.C.A.) and the Supreme Court of Canada, in Vaughan v. Canada, [2005] S.C.J. No. 12 (QL).

[19]            Following these recent decisions, the defendant brought a motion to dismiss for want of jurisdiction in this Court to hear the plaintiff's action under section 17 of the Federal Courts Act, which motion was dismissed by Prothonotary Morneau, thereby giving rise to this appeal.

PRELIMINARY COMMENT

[20]            The Court has before it a motion to dismiss, and the issue is whether the Federal Court has jurisdiction to hear the plaintiff's action, which is scheduled to be heard on the merits in a few weeks. Despite the short time and complexity of the issue, it would not be appropriate for the Court to refer the matter to the trial judge, as that judge will be no better placed to settle the issue, because the discovery and hearing will not produce any evidence other than what is already alleged in the statement of claim. Lack of jurisidiction ratione materiae is a fundamental issue that must, barring exceptional circumstances, be settled by the judge at the first opportunity (Société Asbestos Ltée v. Lacroix, [2004] Q.J. No. 9410 (QL); Québec (Attorney General) v. Charest, [2004] Q.J. No. 13504 (QL)).

ANALYSIS

[21]            The defendant argues essentially that Prothonotary Morneau erred in law in declining to follow the principles established in Tremblay, supra, which clearly states that there is no cause of action against the decisions of federal boards, commissions or other tribunals unless those decisions are first declared unlawful on judicial review under sections 18 and 18.1 of the Federal Courts Act. The plaintiff argues that the decision to revoke her security clearance and dismiss her is not an operative decision because she is not asking for reinstatement, as she is medically unfit to do her job, which distinguishes this case from Tremblay, supra.

[22]            With respect, that distinction is not, in my view, valid. In that case, the Federal Court of Appeal dismissed an individual's application for reinstatement and damages, after a decision by his former employer, the Canadian Forces, to impose mandatory retirement. Desjardins J.A. stated, at paragraph 14, that "[t]he invalidity of this decision is at the heart of [the employee's] claim and the relief sought depends on this alleged invalidity." Reinstatement can be ordered only if the decision is declared invalid, and the only way for that to happen is by way of judicial review. Desjardins J.A. concluded that damages can only be claimed once the reinstatement is ordered.

[23]            In this case, although the plaintiff is admittedly not seeking reinstatement, the fact remains that the crux of the issue lies in the lawfulness or unlawfulness of the decisions by the Review Committee to recommend to the Director of CSIS that he deny her security clearance and by the Director of CSIS to approve her dismissal. In this sense, the decision to dismiss the plaintiff is not "moot" because the relief sought truly depends on the lawfulness of those decisions. The unlawfulness or unreasonableness of a federal board, commission or other tribunal's decision and breach of natural justice are principles that flow from the very essence of judicial review.

[24]            Thus, in my view, the plaintiff cannot proceed by way of action, as the invalidity of the decision is at the heart of her claim and the relief sought depends on that alleged invalidity.

[25]            I recognize that in Zarzour, supra, the Federal Court of Appeal distinguished between operative and inoperative decisions. Subsequently, however, in Canada (Attorney General) v. Boucher, [2005] F.C.J. No. 352 (F.C.A.) (QL), at paragraph 3, the Court of Appeal recognized that the merits of a damage suit against the Correctional Service of Canada (CSC) "depend in part on the unlawfulness or arbitrariness of the CSC decision."

[26]            Similarly, in this case, it cannot be said that the decisions to revoke the plaintiff's security clearance and dismiss her no longer have any legal effects, because the merits of the damage suit depend on the lawfulness or unlawfulness of those decisions.

[27]            In addition, allowing this case to proceed as an action would in my view run counter to the principles established by the Supreme Court of Canada in Vaughan,supra, in which the Court held that a federal public servant had to follow the process set out in sections 91 et seq. of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, (the PSSRA) and could not bring an action against his employer, because judicial review of the decision was the only avenue open to him. The Court stated at paragraph 42 that it "was not open to him to ignore the PSSRA scheme and litigate his claim to [early retirement incentive] benefits in the courts by dressing it up as a 'negligence' action." In its decision, the Supreme Court repeatedly stressed, at paragraph 39, for example, that while the courts retain a residual jurisdiction, they "should not jeopardize the comprehensive dispute resolution process contained in the legislation by permitting routine access to the courts."

[28]            In the case at bar, since the decision leading to her dismissal was the decision to revoke her security clearance, which was necessary for the performance of her duties, it would admittedly have been pointless for the plaintiff to file a grievance challenging her dismissal, because, absent bad faith on the part of CSIS, an adjudicator appointed under section 92 of the PSSRA would not have jurisdiction to determine the validity of the decision to revoke her security clearance (see Sullivan v. Canadian Security Intelligence Service, [2003] C.P.S.S.R.B. No. 23 (Q.L.)).

[29]            She also could not present a grievance challenging the loss of her security clearance to her employer under section 91 of the PSSRA, because an alternative administrative procedure for redress was available to her under another federal Act: a complaint to the Security Intelligence Review Committee under subsection 42(1) and paragraph 42(3)(a) of the Canadian Security Intelligence Service Act, supra.

[30]            Under that scheme, the Review Committee is authorized to review the validity of the denial of a security clearance. The Committee has broad investigatory powers. The investigation may include a hearing at which all parties are entitled to be represented by counsel and to call and examine witnesses. On completion of its investigation, the Review Committee provides a report containing any recommendations that the Committee considers appropriate, and those findings of the investigation that the Committee considers it fit to report to the complainant (Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385). Only after considering the report does the Director of CSIS decide whether or not to maintain his decision to deny the security clearance. That decision is subject to judicial review. So it is a comprehensive scheme for redress in the event of loss of security clearance.

[31]            I am therefore of the view that when the statutory scheme (whether it is a grievance under section 91 of the PSSRA or a complaint, as in this case) is comprehensive and provides a solution to the problem, it should not be routine or easy to bypass that scheme and bring an independent action. And I am not satisfied that the circumstances in the case at bar are like the "whistle-blower cases" mentioned in Vaughan, supra, which may warrant recourse to this Court beyond the statutory scheme and quite apart from an application for judicial review.

[32]            In short, the decision-maker could have overturned the decision on the plaintiff's security clearance, thereby providing the relief sought. Unfortunately for her, that did not happen. However, that does not entitle her to proceed by way of this action against the Crown.

[33]            The Prothonotary therefore erred in law in declining to follow the principles established in Tremblay, supra, and more recently in Vaughan, supra.

[34]            The Court does not have jurisdiction to hear the plaintiff's action; her statement of claim is accordingly struck, without costs.

ORDER

THE COURT ORDERS:

[1]                This Court does not have jurisdiction to hear the plaintiff's action.

[2]                The plaintiff's action is dismissed for want of jurisdiction.

[3]                The plaintiff's statement of claim is struck.

[4]                No costs.

"Danièle Tremblay-Lamer"