Lavigne v. Canada Post Corporation, 2006 FC 1345

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2006 FC 1345

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Date: 20061108

Docket: T-831-06

Citation: 2006 FC 1345

Ottawa, Ontario, November 8th, 2006

PRESENT: The Honourable Mr. Justice de Montigny

BETWEEN:

ROBERT LAVIGNE

Plaintiff

and

CANADA POST CORPORATION and ROBERT PEPIN

Defendants

REASONS FOR JUDGMENT AND JUDGMENT

[1] Robert Lavigne is a Canada Post employee in Montreal, and a member of the Canadian Union of Postal Workers (the Union). He has come to this Court seeking relief against both Canada Post and his manager, Robert Pepin. Mr. Lavigne has made various allegations against both parties. The question before me, however, is not whether any of Mr. Lavigne’s allegations have merit. Rather, the defendants now claim this Court has no jurisdiction to hear the case.

[2] In his Statement of Claim, Mr. Lavigne accuses the defendants of negligence and malfeasance, as well as harassment. He also claims Canada Post has violated the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.), and that both defendants have violated the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50. In total, he is claiming $330,000 in relief.

[3] These allegations stem from a series of disputes Mr. Lavigne had at work after taking a disability leave in 2003. He has been diagnosed with panic disorder with agoraphobia.

Canada Post’s Contract with Sun Life

[4] When Mr. Lavigne came back to work in October 2004, he was receiving disability payments from Sun Life, Canada Post’s insurer. When Sun Life cancelled those payments in 2005, Mr. Lavigne asked Canada Post to see a copy of its contract with Sun Life. Canada Post refused – hence Mr. Lavigne’s negligence and malfeasance claim. He is claiming $25,000 in damages for loss of enjoyment of life and $25,000 in punitive damages against Canada Post.

Translation of Documents

[5] In trying to resolve the issue of his cancelled disability payments, Mr. Lavigne asked Canada Post to translate some French documents from his personal medical file into English. Canada Post refused, and so Mr. Lavigne claims it has breached paragraph 36(1)(a)(i) of the Official Languages Act. This section imposes a duty on all federal institutions to make their services and widely-used work instruments available to all officers and employees in both official languages. He is claiming $10,000 for loss of enjoyment of life and $20,000 in punitive damages against Canada Post.

Harassment Allegations

[6] Mr. Lavigne says the harassment issue can be traced back to a meeting in February 2006, during which he told Mr. Pepin that his disability precluded him from working weekends. He explained that the direct bus from his home to the Canada Post plant where he works only runs weekdays, and to take any less direct route would cause him severe anxiety and possibly panic attacks. He also claimed taking taxis would simply be too expensive.

[7] After this meeting, Mr. Lavigne was still scheduled to work weekend shifts. This has led to several altercations with Mr. Pepin and other supervisors at Canada Post. They follow a general pattern: Mr. Lavigne will miss work or refuse to perform a particular task, citing his disability. When reprimanded or questioned, he will refer to the February 2006 meeting, and claim the defendants are already aware of his medical limitations. He claims this treatment amounts to harassment, contrary to the parties’ collective agreement. He believes the defendants are building up a case against him, and eventually plan to fire him.

[8] He claims Mr. Pepin is directly liable for $25,000 in damages for loss of enjoyment of life and $50,000 in punitive damages. He claims Canada Post is vicariously liable for the harassment, and for its failure to investigate, report on and stop the alleged harassment. He claims the same heads and amount of damages against Canada Post, as well as $100,000 for breaching its fiduciary duties.

[9] Mr. Lavigne acknowledges the Union’s collective agreement, but says he cannot resort to its grievance procedure because he has a complaint against the Union pending at the Canadian Human Rights Commission. Thus, he argues, the Union would not represent him impartially in a grievance against the defendants, and this Court is his only option for relief.

[10] Overall, Mr. Lavigne is asking the Court for the following orders in the main action:

• That Canada Post provide him a copy of its Medical Disability Contract with Sun Life;

• That Canada Post provide him a copy of the French documents from his medical file translated into English;

• That both defendants provide Mr. Lavigne with a letter of apology, and post the letter in the Leo Blanchette plant for 180 days;

• That the defendants are liable for a total of $330,000 in damages.

[11] Of course, none of these issues is directly before me. My task is to determine whether this Court has the jurisdiction to hear the parties’ substantive claims. Bearing this in mind, I now turn to the issues at stake in this motion.

ISSUES

[12] As a unionized employee, Mr. Lavigne is subject to the provisions of the Union’s collective agreement with Canada Post. Thus, I must determine if Mr. Lavigne’s claims fall within the exclusive jurisdiction of a labour arbitrator – and beyond this Court’s authority. If so, Mr. Lavigne’s only recourse is to pursue his claims through the grievance and arbitration procedure set out in the collective agreement. To resolve this issue, I will refer extensively to Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 [Weber], in which the Supreme Court adopted the exclusive jurisdiction model as the appropriate framework to govern labour disputes.

[13] Second, I will apply the general test used to determine the Federal Court’s statutory and constitutional jurisdiction. It is widely known as the “ITO test,” from the case ITO-International Terminal Operators Ltd. v. Miida Electronics Inc., [1986] 1 S.C.R. 752 [ITO]. Even if Mr. Lavigne’s arguments make it past the Weber analysis, they will also have to pass this threshold, as this Court cannot take jurisdiction of a case that falls outside the parameters set by the ITO test.

[14] Mr. Lavigne has asked the Court to issue an injunction, preventing the defendants from scheduling him to work weekend shifts. As I see it, I can only address this issue after finding in favour of this Court’s jurisdiction. If the Court has no jurisdiction over the underlying action, it will also have no jurisdiction to deal with the injunction.

Thus, the issues are:

1. Do the Canada Labour Code, R.S.C. 1985, c. L-2 and the parties’ collective agreement oust this Court’s jurisdiction, by giving labour arbitrators exclusive jurisdiction to deal with Mr. Lavigne’s claims?

2. Alternatively, does the ITO test oust this Court’s jurisdiction on statutory and constitutional grounds?

3. If this Court does have jurisdiction under either of the preceding analyses, is Mr. Lavigne entitled to an injunction preventing the defendants from scheduling him to work weekend shifts?

ANALYSIS

[15] This issue raises precisely the same question the Supreme Court addressed in Weber, above, at paragraph 37: When does labour legislation providing for binding arbitration preclude employees and employers from suing each other in court? Since Weber is generally acknowledged as the leading authority on labour law jurisdiction, I will recount Weber’s most important lessons. The Supreme Court has cited those lessons with approval time and again - most recently, in Bisaillon v. Concordia University, 2006 SCC 19 [Bisaillon].

[16] In Weber, an employee filed grievances against his employer, Ontario Hydro, because it had hired private investigators to see if he was abusing his sick leave benefits. However, he also initiated an action in court, based on both tort and the Canadian Charter of Rights and Freedoms. Ontario Hydro applied to strike the court action, and was ultimately successful.

[17] The Weber decision endorsed the model of exclusive jurisdiction for labour arbitrators. According to this model, a dispute arising expressly or inferentially from a collective agreement must proceed by arbitration. Courts are, by definition, excluded from the process (Weber, above, at paragraphs 50 and 54).

[18] The Court rejected two other approaches that, until Weber, above, had raised doubts about the extent of the judiciary’s role in labour disputes. First, the Court rejected the concurrent model of jurisdiction. Under this model, the same facts could give rise to independent arbitration and court proceedings, depending on the issues raised. Second, the Court rejected the model of overlapping jurisdiction. This model suggested that certain issues may be the proper subject of a court action, as they could exceed the traditional boundaries of arbitration clauses in collective agreements.

[19] The Court described the benefits of the exclusive jurisdiction approach in paragraph 58 of Weber, above:

…the exclusive jurisdiction model gives full credit to the language of s. 45(1) of the Labour Relations Act. It accords with this Court’s approach in St. Anne Nackawic. It satisfies the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions. It conforms to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlapping litigation in the courts: see Ontario (Attorney-General) v. Bowie (1993), 110 D.L.R. (4th) 444 (Ont. Div. Ct.), per O’Brien J.

[20] The Supreme Court also confirmed the proper analytical approach to determine if an employment dispute falls within an arbitrator’s exclusive jurisdiction. At paragraph 52 of Weber, above, the Court wrote: “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.”

[21] As for determining the “essential character” of a dispute, the Court made it clear that the relevant issue is whether the facts surrounding the parties’ dispute arise under the collective agreement. It would be inappropriate to focus on a legal characterization of the dispute (Weber, above, at paragraph 43).

[22] The Court’s discussion in Weber has thus translated into a set of overriding principles that govern employment disputes:

1. Labour arbitrators have exclusive jurisdiction to resolve employment disputes arising directly or inferentially out of a collective agreement;

2. Courts have adopted a deferential approach when evaluating whether a particular dispute arises out of a collective agreement;

3. There is a two-stage analysis to determine whether the dispute, in its essential character, arises in any way from the collective agreement:

a. Courts should define the essential character of the dispute by looking at the surrounding facts – as opposed to how the dispute might be characterized legally (Bisaillon, above, at paragraph 31);

b. Then, determine if that factual context falls within the scope of the collective agreement, either implicitly or explicitly (Bisaillon, above, at paragraph 32).

Applying the Weber Principles to This Case

“…Or Otherwise…”

[23] As a preliminary issue, Mr. Lavigne has argued that Weber, above, is distinguishable from this case. The provision that was at issue in Weber, subsection 45(1) [now 48(1)] of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, is similar – but not identical – to subsection 57(1) of the Canada Labour Code. Specifically, only the federal provision contains the words, “or otherwise,” as in: “Every collective agreement shall provide for the final settlement without stoppage of work, by arbitration or otherwise…” The full text of these provisions is contained in the Appendix at the end of these reasons.

[24] Mr. Lavigne argues this difference in wording opens the door to giving this Court jurisdiction. He claims the words “or otherwise” suggest this Court can be viewed as an alternative forum to arbitration.

[25] I cannot accept this argument. To do so would run counter to years of labour jurisprudence asserting the importance of the principles from Weber, above. I cannot simply disregard these principles when reading subsection 57(1). They represent the fabric of Canadian labour law, and must inform my interpretation of any aspect of the Canada Labour Code. As such, I find that such indirect language is not sufficient to give this Court jurisdiction.

[26] Before leaving this issue, a word must be said about the Federal Court of Appeal’s decision in Canadian Pacific Ltd. v. United Transportation Union, [1979] 1 F.C. 609. The Court in that case was faced with the question of determining jurisdiction over a labour dispute. While the Court ultimately held that the parties had assigned jurisdiction to an arbitrator, Justice William Ryan discussed the meaning of section 155 of the Canada Labour Code – the predecessor to subsection 57(1):

38 Section 155 establishes a system for the final settlement, without stoppage of work, of disputes arising under collective agreements. Every collective agreement must contain a provision for final settlement of the types of differences specified in subsection (1). The parties to an agreement are thus under a duty to provide for such final settlement by arbitration or by some other means. If they fail to fulfil this duty (possibly by a good faith failure to select a method), the Board itself is to make the provision on the application of either party, and the provision so determined becomes part of the collective agreement. It is within this context that the effect of the closing words of section 23 of the Federal Court Act must be determined. And it is my view that in this case the selection, by the parties, of arbitration as the means of final settlement did constitute a special assignment of jurisdiction to determine the issues posed by the present action.

39 It is true that the parties might have chosen another method; it is also true that they might have failed to choose a method and, accordingly, the Canada Labour Relations Board might have had to furnish a provision for final settlement on application by a party. I, of course, recognize that the duty of the Board to furnish such a provision arises only when one of the parties makes an application. Subsection 155(1) does, however, itself require that every collective agreement shall provide a method for final settlement without stoppage of work, and the parties to the agreement have chosen arbitration as that method. It is not necessary to speculate on what the situation would have been if they had not done so. [Emphasis added]

[27] Thus, the Court appears to have acknowledged that parties could “opt out” of arbitration, by selecting another method of dispute resolution. Mr. Lavigne claims the Union and Canada Post have done just that, choosing to have disputes settled in this Court. He claims we can find evidence of this in two parts of the collective agreement:

1. Appendix “N,” which outlines the agreement’s disability insurance plan appeal process; and

2. Clause 56.08, which addresses an employee’s right to seek compensation for harassment at common law and under any applicable legislation.

[28] I cannot accept this submission for a number of reasons. First, the Federal Court of Appeal’s decision predates the Supreme Court’s decision in Weber, above, and the interpretation given to the words “or otherwise” must be adjusted accordingly. Secondly, it is not at all clear that Justice Ryan had in mind the possibility of referring a dispute to the Court when he mentioned that the parties might choose “another method”. He may simply have alluded to other non-judicial methods of resolving a dispute, like mediation and conciliation. But even if I was prepared to accept that the words “or otherwise” in section 57(1) could entitle parties to choose the courts as an alternate means of dispute resolution, neither of the two sections of the collective agreement invoked by Mr. Lavigne supports such a conclusion. These sections are so specific, so discrete, that they cannot possibly be interpreted as reflections of the parties’ intentions to override an arbitrator’s exclusive jurisdiction.

[29] Appendix “N” of the collective agreement deals with processing a claim for disability compensation. While Mr. Lavigne has made numerous claims, none involves a claim under Canada Post’s disability insurance plan. Rather, he wants to see a copy of Canada Post’s contract with Sun Life. The discussion about taking a claim to court is thus not relevant.

[30] Clause 56.08 deals with seeking compensation for harassment under common law or any applicable legislation. Nothing in this section expressly allows a complainant to seek redress in court, and indeed Canada Post has argued convincingly that this clause addresses a complainant’s substantive options – not the proper forum in which to raise a complaint.

[31] Overall, Appendix “N” and clause 56.08 of the collective agreement seem to provide arbitrators with options when resolving disputes between employee and employer. They do not, however, represent the parties’ desire to give this Court jurisdiction over any dispute arising out of the collective agreement.

[32] I am therefore confident that Weber, above, is perfectly applicable to this case, and will now submit Mr. Lavigne’s claims to its framework. Article 9 of the parties’ collective agreement outlines its grievance and arbitration procedure. Thus, if any of Mr. Lavigne’s three claims below are covered expressly or implicitly by the agreement, then pursuant to Weber, above, such claims can only be heard by an arbitrator. The relevant provisions from the collective agreement are attached in the Appendix at the end of these reasons.

a. Sun Life Disability Contract

[33] This dispute can be characterized as a disagreement about whether Mr. Lavigne is entitled to a copy of the Sun Life Disability Contract with Canada Post. This is directly covered under the collective agreement, at clause 30.07 (Copies of Plan Documents). Clause 30.06 defines “plan documents,” and that definition includes the employee Disability Insurance Plan. Therefore, Mr. Lavigne must pursue this claim through the grievance and arbitration procedure outlined in article 9 of the collective agreement. This Court has no jurisdiction to hear it.

b. Translation of Mr. Lavigne’s Medical File

[34] Mr. Lavigne claims that Canada Post’s failure to translate certain documents from his medical file is a violation of paragraph 36(1)(a)(i) of the Official Languages Act. The defendants have argued that the essential character of this dispute is Mr. Lavigne’s substantive access to his medical file. I agree. Thus, the remaining question is whether the dispute, characterized in this way, is covered under the collective agreement.

[35] The defendants claim this dispute arises expressly from clause 10.03 of the collective agreement (Access to Personal File). Yet, that clause does not mention anything about an employee’s medical file. Indeed, this clause is part of article 10 of the agreement, which deals with discipline, suspension and discharge.

[36] However, even if this dispute is not covered under the collective agreement, I am prepared to reject jurisdiction on the basis of both the ITO test, which I will discuss below, and the internal requirements of the Official Languages Act.

[37] Mr. Lavigne cannot simply allege a breach of the Official Languages Act in this Court. That Act has its own procedures for launching complaints. Specifically, Mr. Lavigne must first make a formal complaint to the Commissioner of Official Languages. Then, the Commissioner will decide whether to investigate that complaint, and finally, whether to make any recommendations to the government. Coming to the Court at this stage is premature.

c. Harassment Allegations

[38] While Mr. Lavigne claims this dispute is about harassment based on disability, the defendants have argued that would be a legal, rather than factual, description of the conflict. Instead, they believe the dispute is best characterized as a disagreement over scheduling, addressed in article 14 of the collective agreement (Hours of Work). Alternatively, they argue it is about discipline and suspension, addressed in clause 10.01(a) of the collective agreement (Discipline, Suspension and Discharge – Just Cause and Burden of Proof). Finally, they claim, it could be characterized as a dispute about Mr. Lavigne’s right to refuse particular work, pursuant to clause 33.13 of the collective agreement (Right of Refusal).

[39] Regardless of whether I conclude this dispute is about hours of work, discipline, refusal to do particular work, or harassment, in each of those cases the dispute arises out of the collective agreement. Indeed, harassment itself is expressly covered under clause 56.09. The Court has no jurisdiction to hear the harassment claim.

[40] Thus, all three of Mr. Lavigne’s claims are outside this Court’s jurisdiction under the Weber analysis. However, even if I were to find otherwise, I have also concluded his claims would not survive this Court’s test for statutory and constitutional jurisdiction. Indeed, I believe his arguments fall short on both the first and second branches of the ITO test.

ITO Test for Statutory and Constitutional Jurisdiction

[41] The power of the federal Parliament to establish federal courts is not unlimited. It is confined within the parameters set out in section 101 of the Constitution Act, 1867. That provision authorizes the federal Parliament to establish courts “for the better administration of the laws of Canada.” This section has given rise to an abundant body of case law, which the Supreme Court of Canada summarized in a three-part test in its decision ITO, above. The ITO test will always be applied to determine if the Federal Court has jurisdiction over a case. It is not specific to labour disputes. The test was formally articulated by the Supreme Court in ITO, above, as a product of its decisions in Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, and McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654.

[42] The test has three requirements, and a claimant must meet all of them for this Court to have jurisdiction:

1. There must be a statutory grant of jurisdiction by the federal Parliament;

2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction;

3. The law on which the case is based must be a “law of Canada” as the phrase is used in section 101 of the Constitution Act, 1867.

Statutory Grant of Jurisdiction

[43] Mr. Lavigne alleges that the first stage of the ITO test is met since subsections 17(1), 17(2), 23(c) and 48 of the Federal Courts Act, R.S.C. 1985, c. F-7 confer jurisdiction to the Federal Court to hear his claims. These sections are reproduced in the Appendix at the end of these reasons.

1. Subsections 17(1), 17(2) and section 48 of the Federal Courts Act

[44] Canada Post has submitted – and I agree – that subsections 17(1), 17(2), and section 48 of the Federal Courts Act cannot be considered statutory grants of jurisdiction for the simple reason that they only apply to actions against the Crown. Canada Post, while a Crown corporation, is not the Crown per se. Rather, it is an agent of the Crown.

[45] This finding requires an appreciation of the difference between an action against the Crown, and an application for judicial review. Applications against the Crown are addressed at sections 17 and 48 of the Federal Courts Act, while judicial review is dealt with under sections 18 and 28 of the same Act. While a party can apply for judicial review against one of Canada Post’s decisions, this is because Canada Post is considered a “federal board,” pursuant to subsection 2(1) of the Federal Courts Act. Thus, decisions from a “federal board” can be subject to judicial review. But judicial review is an entirely separate procedure from actions against the Crown. And actions against the Crown are, by their very nature, more restricted.

[46] The Federal Court of Appeal discussed the scope of subsection 17(1) in Varnam v. Canada (Minister of National Health and Welfare), [1988] 2 F.C. 454 [Varnam]. The Court found that subsection 17(1) only contemplated relief against the Federal Crown (Varnam, at paragraph 14). Justice James Hugessen reflected on the Federal Court’s unique jurisdiction, at paragraph 16, writing: “…as a statutory court, we must not hesitate to exercise the jurisdiction which has been granted to us but we should not seek to extend it beyond what has been clearly intended by the words of the statute.”

[47] In Rasmussen v. Breau, [1986] 2 F.C. 500, the Federal Court of Appeal rejected jurisdiction over a claim of conversion against the Canadian Saltfish Corporation, a Crown agent corporation. The Court held that section 17 of the Federal Court Act only applied to the Crown eo nomine, or “under that name.” It would not apply to a statutory corporation acting as an agent of the Crown (Rasmussen, at paragraphs 12 and 23).

[48] In Gracey v. Canadian Broadcasting Corp., [1991] 1 F.C. 739 [Gracey], Justice Paul Rouleau declined jurisdiction to hear a libel suit against the CBC. Applying the first branch of the ITO test, he determined section 17 of the Federal Court Act was not a statutory grant of jurisdiction at page 746, writing:

Subsections 17(1) to (3) of the Federal Court Act apply to cases where relief is sought against the Crown. Subsection 17(4) only refers to actions against the Crown eo nomine and does not include an action by or against a Crown agency. As the style of cause in the plaintiff's statement of claim is presently worded, none of these sections confers jurisdiction on this Court since the Crown is not named as a party to the proceedings and the named defendants are neither Crown officers or servants.

[49] Thus, the jurisprudence is quite clear that these sections are not a statutory grant of jurisdiction for a claim against Canada Post, as it is not the Crown eo nomine.

2. Subsection 23(c) of the Federal Courts Act

[50] Having decided that neither of subsections 17(1), 17(2) and section 48 provides a statutory grant of jurisdiction for Mr. Lavigne’s claims, there still remains the question of whether subsection 23(c) can pass the first branch of the ITO test. That section is reproduced in the Appendix at the end of these reasons.

[51] At issue here is the phrase, “Except to the extent that jurisdiction has been otherwise specially assigned…” The defendants claim that in this case, jurisdiction has been assigned - to an arbitrator, pursuant to subsection 57(1) of the Canada Labour Code.

[52] This Court will refuse jurisdiction where it has been specifically assigned to an arbitrator. That is precisely what happened in both McKinlay Transport Ltd. v. Goodman, [1979] 1 F.C. 760 and Canadian Pacific Ltd. v. United Transportation Union, above.

[53] As I have already explained, Mr. Lavigne argues that subsection 57(1) is not entirely closed to granting this Court jurisdiction, by virtue of the words “…or otherwise…” And, for the reasons I outlined earlier in this decision, I have dismissed this argument. Thus, in this context, that conclusion means jurisdiction has been assigned to an arbitrator under the parties’ collective agreement and subsection 57(1) of the Canada Labour Code. Subsection 23(c) is therefore not a statutory grant of jurisdiction.

[54] Thus, Mr. Lavigne has failed the ITO test, as he would need to pass all three requirements to succeed. In any event, however, I will proceed to the second stage of the test, for further confirmation that this case belongs in front of an arbitrator.

Nourishing Body of Federal Law

[55] This second stage of the ITO test will be met if there is a law of Canada that is essential to the disposition of the case and nourishes the statutory grant of jurisdiction (ITO, above, at paragraph 15). In Canada (Human Rights Commission) v. Canadian Liberty Net, [1998] 1 S.C.R. 626, the Supreme Court provided some guidance on this branch of the test. Justice Michel Bastarache wrote, at paragraph 43:

The requirement that there be valid federal law which nourishes the statutory grant of jurisdiction serves primarily to ensure that federal courts are kept within their constitutionally mandated sphere. As Wilson J. noted in Roberts, supra, the second and third requirements set out in ITO, supra, of a nourishing body of federal law, and its constitutional validity, go hand in hand (at p. 330):

While there is clearly an overlap between the second and third elements of the test for Federal Court jurisdiction, the second element, as I understand it, requires a general body of federal law covering the area of the dispute, i.e., in this case the law relating to Indians and Indian interests in reserve lands . . . [Emphasis added.]

The dispute over which jurisdiction is sought must rely principally and essentially on federal law. If the dispute is only tangentially related to any corpus of federal law, then there is a possibility that assuming jurisdiction would take the Federal Court out of its constitutionally mandated role.

[56] In this case, Mr. Lavigne submits any one of the following can be considered a nourishing body of federal law:

1. The Collective Agreement

[57] According to Mr. Lavigne, the collective agreement is a federal law that nourishes the statutory grant of jurisdiction in subsection 23(c) of the Federal Courts Act. While I have concluded that subsection 23(c) is not a statutory grant of jurisdiction in this case, I am prepared to accept – in theory – that the collective agreement is a federal law. In Canadian Pacific, above, at paragraph 23, the Federal Court of Appeal held that a claim arising out of a collective agreement was brought under a “statute of Parliament” for the purposes of section 23 of the Federal Courts Act, because collective agreements are sustained by the Canada Labour Code.

[58] However, the Court in Canadian Pacific, above, also held that the Canada Labour Code gave labour arbitrators exclusive jurisdiction to resolve the parties’ disputes. I have arrived at the same conclusion in this case, as I discussed earlier in the Weber analysis. I cannot conclude that this collective agreement explicitly assigns jurisdiction to the Federal Court.

2. Canada Post’s Workplace Policy

[59] In contrast to the collective agreement, Canada Post’s internal workplace harassment policy is not anchored in the Canada Labour Code – or any federal statute, for that matter. It is a purely administrative document, with no legislative “hook” that might entitle it to the same treatment as the collective agreement. Thus, the policy cannot be considered “federal law” for the purpose of this analysis.

3. Crown Liability and Proceedings Act

[60] This Court has already decided that the Crown Liability and Proceedings Act cannot satisfy the second branch of the ITO test in respect of actions against Crown corporations. I can do no better than quote from the decision of my colleague Justice Rouleau in Gracey, above, at page 753:

I do not think that sections 3, 15, 21 and 36 of the Crown Liability Act are capable of supporting the jurisdiction of this Court over any type of civil action simply because the Crown in Right of Canada or one of its agents is a party defendant to the action and, the Act itself is concerned with the Crown’s tortious liability. This is not, in my view, what the Supreme Court of Canada envisioned when it spoke of “existing and applicable federal law” in the Quebec North Shore, McNamara and ITO cases; that is, a body of law essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.

These sections cannot properly be construed as conferring jurisdiction on the Federal Court to entertain this type of action because they cannot properly be read as being free from all limitations. They must be confined to actions and suits in relation to some subject-matter, legislation in regard to which is within the legislative competence of the federal Parliament. That legislation must, in turn, give a complete right of action, by creating an obligation and conferring a remedy.

[61] Accordingly, I am of the view that the Crown Liability and Proceedings Act cannot be considered as an applicable federal law for the purpose of conferring jurisdiction to this Court.

4. The Official Languages Act and the Canadian Human Rights Act

[62] Finally, Mr. Lavigne claims that either the Official Languages Act or the Canadian Human Rights Act would satisfy the second stage of the ITO test and qualify as a nourishing body of federal law. Yet like the complaints and investigative procedure in the Official Languages Act, which I discussed earlier in this decision, the Canadian Human Rights Act has its own procedures in place to follow before taking a claim to court. To label either piece of legislation a nourishing body of federal law would circumvent those schemes, and thus this argument must fail.

5. ROBERT PEPIN

[63] Until this point, my analysis has centred on Mr. Lavigne’s claims against Canada Post, and its position as a Crown corporation. I would note that all the sections discussed in the analysis about Canada Post, as well as subsection 17(5) of the Federal Courts Act, are incapable of serving as a statutory grant of jurisdiction in an action against Mr. Pepin. As an employee of a Crown corporation, he cannot be sued under provisions relating to actions against the Crown. He is neither the Crown, nor a Crown officer.

[64] For further evidence, we can consult sections 12 and 13 of the Canada Post Corporation Act, R.S.C. 1985, c. C-10, which make it clear that Mr. Pepin is not part of the federal public administration:

12. The Corporation may employ such officers and employees and may engage the services of such agents, advisers and consultants as it considers necessary for the proper conduct of its business, and may fix the terms and conditions of their employment or engagement, as the case may be, and pay their remuneration.

13. (1) Except as provided in subsections (2) and (4), every person employed or engaged pursuant to section 12 is deemed not to be employed in the federal public administration. [Emphasis added]

CONCLUSION

[65] For all these reasons, I will grant the defendants’ motion to strike Mr. Lavigne’s Statement of Claim, as this Court has no jurisdiction over the matter. Accordingly, I cannot make any decision regarding Mr. Lavigne’s motion for an injunction.

JUDGMENT

THIS COURT ORDERS AND ADJUDGES the defendants’ motion to strike Mr. Lavigne’s Statement of Claim is granted, as this Court has no jurisdiction over the matter. Accordingly, I cannot make any decision regarding Mr. Lavigne’s motion for an injunction.

"Yves de Montigny"

Judge

SCHEDULE “A”

Canada Labour Code, R.S.C. 1985, C. L-2

57. (1) Every collective agreement shall contain a provision for final settlement without stoppage of work, by arbitration or otherwise, of all differences between the parties to or employees bound by the collective agreement, concerning its interpretation, application, administration or alleged contravention.

57. (1) Est obligatoire dans la convention collective la présence d’une clause prévoyant le mode — par arbitrage ou toute autre voie — de règlement définitif, sans arrêt de travail, des désaccords qui pourraient survenir entre les parties ou les employés qu’elle régit, quant à son interprétation, son application ou sa prétendue violation.

Ontario Labour Relations Act 1995, S.O. 1995, c. 1, Schedule A

48. (1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable. 1995, c. 1, Sched. A, s. 48 (1).

48. (1) Chaque convention collective contient une disposition sur le règlement, par voie de décision arbitrale définitive et sans interruption du travail, de tous les différends entre les parties que soulèvent l’interprétation, l’application, l’administration ou une prétendue violation de la convention collective, y compris la question de savoir s’il y a matière à arbitrage. 1995, chap. 1, annexe A, par. 48 (1).

Official Languages Act, R.S.C. 1985, c. 31 (4^th supp.)

36. (1) Every federal institution has the duty, within the National Capital Region and in any part or region of Canada, or in any place outside Canada, that is prescribed for the purpose of paragraph 35(1)(a), to

(a) make available in both official languages to officers and employees of the institution

(i) services that are provided to officers and employees, including services that are provided to them as individuals and services that are centrally provided by the institution to support them in the performance of their duties, and

36. (1) Il incombe aux institutions fédérales, dans la région de la capitale nationale et dans les régions, secteurs ou lieux désignés au titre de l’alinéa 35(1)a) :

a) de fournir à leur personnel, dans les deux langues officielles, tant les services qui lui sont destinés, notamment à titre individuel ou à titre de services auxiliaires centraux, que la documentation et le matériel d’usage courant et généralisé produits par elles-mêmes ou pour leur compte;

Federal Courts Act, R.S.C. 1985, C.F. 7

17. (1) Except as otherwise provided in this Act or any other Act of Parliament, the Federal Court has concurrent original jurisdiction in all cases in which relief is claimed against the Crown.

(2) Without restricting the generality of subsection (1), the Federal Court has concurrent original jurisdiction, except as otherwise provided, in all cases in which

(a) the land, goods or money of any person is in the possession of the Crown;

(b) the claim arises out of a contract entered into by or on behalf of the Crown;

(c) there is a claim against the Crown for injurious affection; or

(d) the claim is for damages under the Crown Liability and Proceedings Act.

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5) The Federal Court has concurrent original jurisdiction

(a) in proceedings of a civil nature in which the Crown or the Attorney General of Canada claims relief; and

(b) in proceedings in which relief is sought against any person for anything done or omitted to be done in the performance of the duties of that person as an officer, servant or agent of the Crown.

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23. Except to the extent that jurisdiction has been otherwise specially assigned, the Federal Court has concurrent original jurisdiction, between subject and subject as well as otherwise, in all cases in which a claim for relief is made or a remedy is sought under an Act of Parliament or otherwise in relation to any matter coming within any of the following classes of subjects:

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48. (1) A proceeding against the Crown shall be instituted by filing in the Registry of the Federal Court the original and two copies of a document that may be in the form set out in the schedule and by payment of the sum of $2 as a filing fee.

17. (1) Sauf disposition contraire de la présente loi ou de toute autre loi fédérale, la Cour fédérale a compétence concurrente, en première instance, dans les cas de demande de réparation contre la Couronne.

(2) Elle a notamment compétence concurrente en première instance, sauf disposition contraire, dans les cas de demande motivés par :

a) la possession par la Couronne de terres, biens ou sommes d’argent appartenant à autrui;

b) un contrat conclu par ou pour la Couronne;

c) un trouble de jouissance dont la Couronne se rend coupable;

d) une demande en dommages-intérêts formée au titre de la Loi sur la responsabilité civile de l’État et le contentieux administratif.

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(5) Elle a compétence concurrente, en première instance, dans les actions en réparation intentées :

a) au civil par la Couronne ou le procureur général du Canada;

b) contre un fonctionnaire, préposé ou mandataire de la Couronne pour des faits — actes ou omissions — survenus dans le cadre de ses fonctions.

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23. Sauf attribution spéciale de cette compétence par ailleurs, la Cour fédérale a compétence concurrente, en première instance, dans tous les cas — opposant notamment des administrés — de demande de réparation ou d'autre recours exercé sous le régime d'une loi fédérale ou d'une autre règle de droit en matière :

c) d’ouvrages reliant une province à une autre ou s’étendant au-delà des limites d’une province.

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48. (1) Pour entamer une procédure contre la Couronne, il faut déposer au greffe de la Cour fédérale l'original et deux copies de l'acte introductif d'instance, qui peut suivre le modèle établi à l'annexe, et acquitter la somme de deux dollars comme droit correspondant.

Agreement between Canada Post Corporation and the Canadian Union of Postal Workers (expires January 31, 2007)

10.01 Just Cause and Burden of Proof

(a) No disciplinary measure in the form of a notice of discipline, suspension or discharge or in any other form shall be imposed on any employee without just, reasonable and sufficient cause and without his or her receiving beforehand or at the same time a written notice showing the grounds on which a disciplinary measure is imposed.

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10.03 Access to Personal File

Upon written request from an employee, he or she and/or his or her Union representative shall have access to his or her official personal file in the presence of an authorized representative of the Corporation. The file should be made available within twenty-four (24) hours following the day of the written request, providing such file is available locally and, in all cases, within five (5) calendar days after the request. Where an employee’s file is available for review and/or examination, reports as described in paragraph 10.02(c) are to be removed prior to such review and/or examination.

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30.06 Disability Insurance Plan

(a) The parties agree that the Disability Insurance Plan shall be available to all regular employees subject to eligibility requirements set by the plan.

(b) The parties agree that enrolment in the Disability Insurance Plan will continue to be mandatory for part-time employees hired after March 10, 1985.

(c) The premium will be paid by employees and the Corporation based on a fifty (50) – fifty (50) proportion. The parties agree that the premium payable by the part-time employees will not be higher that the premium payable by full-time employees.

(d) During the life of his collective agreement, the parties may agree to modify the level of benefits provided for under the Disability Insurance Plan.

(e) The Corporation administers the Disability Insurance Plan. However, the payment of benefits under the plan shall be the exclusive responsibility of the insurance carrier. Consequently, the grievance and arbitration procedure shall not apply in case of disagreement between the employee and the insurance carrier and such disagreements shall be resolved in accordance with Appendix “N”.

30.07 Copies of Plan Documents

Within sixty (60) days of the signing of the collective agreement, the Corporation will provide the Union with copies of the plan documents referred to in clauses 30.02, 30.04, 30.05 and 30.06. The Corporation will provide the Union with amended versions of the plan documents should there be changes to the plan documents during the term of the collective agreement.

The Corporation agrees to engage in meaningful consultation with the Union at least ninety (90) days prior to the introduction of changes to premiums for those plans covered under clauses 30.02, 30.03 and 30.04. During such consultation, the Corporation will provide the Union with information respecting how such premiums were calculated.

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33.13 Right of Refusal

(a) An employee has the right to refuse to do particular work if he or she has reasonable grounds to believe that the performance of this work will endanger his or her health, safety or physical well-being, or may similarly endanger another employee.

(b) The employee may not however exercise the right granted him or her under paragraph 33.13(a) if the refusal to perform this work places the life, health, safety or physical well-being of another person in immediate danger or if the danger that could justify the refusal is inherent in the kind of profession, trade or occupation exercised by the employee.

(c) When an employee refuses to do particular work in accordance with paragraph 33.13(a):

(i) he or she shall inform his or her supervisor and Union representative without delay;

(ii) he or she shall suffer no loss of salary during the period for which he or she withdraws his or her services;

(iii) he or she is entitle to be present while the investigation provided for hereinafter is conducted;

(iv) until the situation is remedied, no other employee may be assigned to use or operate the machine, apparatus, material or object, or be assigned to the part of the work which is the subject of the investigation, unless it is this person’s duty to establish safe conditions;

(v) until the situation giving rise to the refusal to work is corrected, the Corporation may assign temporarily the employee to another job providing that it is similar to his or her own, that the employee does not suffer any loss of salary and that such assignment does not violate the provisions of the collective agreement

(d) As soon as the Corporation is informed by the employee, it shall ensure that the necessary investigations, inspections and analyses of the situation giving rise to the refusal to work are conducted; they shall be conducted in the presence of a Union representative and the employee concerned. Should the employee concerned or the Union representative choose not to be present, the investigation may nevertheless proceed.

(e) When the employee seeks, for frivolous reasons, to dishonestly take advantage of this clause, the Corporation will consider the said employee liable to disciplinary measures.

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56.08 Compensation

A complaint filed pursuant to this article shall not be construed as restricting in any way the right of an employee who has been subjected to harassment to claim and obtain compensation at common law or under any applicable legislation.

56.09 Right to Grieve

Nothing in the above provision shall be construed as restricting or limiting the right of an employee or the right of the Union to use the grievance and arbitration procedure in cases of harassment.

10.01 Cause juste et fardeau de la preuve

(a) Aucune mesure disciplinaire sous forme d’avis disciplinaire, de suspension ou de congédiement, ou sous toute autre forme, n’est imposée à une employée ou un employé sans cause juste, raisonnable et suffisante, ni sans que lui soit remis au préalable ou en même temps un avis écrit indiquant les motifs pour lesquels cette mesure disciplinaire est imposée.

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10.03 Accès au dossier personnel

Sur demande écrite d’une employée ou d’un employé, elle ou il est (ou) sa représentante ou son représentant syndical ont accès au dossier personnel officiel de l’employée ou l’employé en présence d’une représentante ou d’un représentant autorisé de la Société. Le dossier doit être disponible dans les vingt-quatre (24) heures qui suivent le jour où la demande écrite a été faite, s’il est disponible au niveau local et, dans tous les cas, dans les cinq (5) jours civils suivant la demande. Lorsque le dossier d’une employée ou d’un employé est disponible pour examen, les rapports mentionnés à l’alinéa 10.02 c) doivent être retirés au préalable.

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30.06 Régime d’assurance-invalidité

a) Les parties conviennent que le régime d’assurance-invalidité est offert à l’ensemble des employées et employés réguliers sous réserve des conditions d’admissibilité du régime.

b) Les parties conviennent que l’adhésion au régime d’assurance-invalidité continue d’être obligatoire pour les employées et employés è temps partiel embauchés après le 10 mars 1985.

c) La prime est payée dans des proportions respectives de cinquante pour cent (50 p. 100) par la Société et les employées et employés. Les parties conviennent que les employées et employés à temps partiel paient une prime qui n’est pas plus élevée que celle payée par les employées et employés à temps plein.

d) Les parties peuvent s’entendre pendant la durée de la présente convention collective pour modifier le niveau des prestations du régime d’assurance-invalidité.

e) La Société administre le régime d’assurance-invalidité. Toutefois, le paiement des prestations prévues par le régime est la responsabilité exclusive de l’assureur. En conséquence, la procédure de règlement des griefs et d’arbitrage ne s’applique pas dans les cas de mésentente entre une employée ou un employé et l’assureur et ceux-ci doivent être résolus de la manière prévue à l’annexe « N ».

30.07 Exemplaires des documents relatifs aux régimes

Dans les soixante (60) jours suivant la signature de la convention collective, la Société transmet au Syndicat des exemplaires des documents décrivant les régimes mentionnés dans les clauses 30.02, 30.04, 30.05 et 30.06. La Société transmet au Syndicat les versions modifiées des documents décrivant les régimes si des modifications leur sont apportées pendant la durée de la convention collective.

La Société convient de s’engager dans une consultation significative avec le Syndicat au moins quatre-vingt-dix (90) jours avant l’introduction de modifications des primes applicables aux régimes visés aux clauses 30.02, 30.03 et 30.04. Durant la consultation, la Société fournira l’information relativement au calcul des primes.

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33.13 Droit de refus

a) Une employée ou un employé a le droit de refuser d’exécuter un travail si elle ou il a des motifs raisonnables de croire que l’exécution de ce travail l’expose à un danger pour sa santé, sa sécurité ou son intégrité physique ou peut avoir pour effet d’exposer une autre employé ou un autre employé è un danger semblable.

b) L’employée ou l’employé ne peut cependant exercer le droit que lui reconnaît l’alinéa 33.13a) si le refus d’exécuter ce travail met en péril immédiat la vie, la santé, la sécurité ou l’intégrité physique d’une autre personne, ou si le danger qui pourrait justifier son refus est inhérent au genre de profession, de métier ou de fonction qu’elle ou il exerce.

c) Lorsque l’employée ou l’employé refuse d’exécuter un travail conformément à l’alinéa 33.13 a) :

i) elle ou il doit aviser sans délai sa superviseure ou son superviseur et sa représentante ou son représentant syndical;

ii) elle ou il ne subit aucune perte de salaire pendant qu’elle ou il retire ses services;

iii) elle ou il a le droit d’être présent pendant que s’effectue l’enquête prévue ci-après;

iv) jusqu’à ce que la situation soit rétablie, aucune autre employée ni aucun autre employé ne peut être affecté à l’utilisation ou à l’opération de la machine, de l’appareil, du matériel ou de la chose, ni affecté à cette partie du travail qui fait l’objet de l’enquête, sauf s’il s’agit d’une personne dont la tâche consiste à établir des conditions sécuritaires;

v) jusqu’à ce que la situation ayant provoqué le refus de travailler soit corrigée, la Société peut affecter temporairement l’employée ou l’employé à une autre tâche pourvu qu’elle soit similaire à la sienne, qu’il n’y ait pas de perte de salaire pour l’employée ou l’employé et qu’une telle affectation ne soit pas faite en violation des dispositions de la convention collective.

d) Dès que la Société est avisée par l’employée ou l’employé, elle doit s’assurer que les enquêtes, inspections et analyses nécessaires sont faites quant à la situation qui a provoqué le refus de travailler; celles-ci doivent être faites en présence d’une représentante ou d’un représentant syndical et de l’employée ou de l’employé en question. Si l’employée ou l’employé ou la représentante ou le représentant syndical décide de ne pas être présent, l’enquête peut quand même être conduite.

e) Lorsque l’employée ou l’employé cherche pour des raisons frivoles, à prendre malhonnêtement avantage de la présente clause, elle ou il sera considéré par la Société comme étant passible de sanctions disciplinaires.

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56.08 Indemnité

Une plainte déposée en vertu du présent article ne restreint en aucune façon le droit d’une employée ou d’un employé qui a fait l’objet de harcèlement de réclamer et d’obtenir une indemnité en vertu du droit commun ou de toute législation applicable.

56.09 Le droit au grief

Rien aux présentes ne restreint le droit d’une employée, d’un employé ou du Syndicat d’avoir recours à la procédure de règlement des griefs et d’arbitrage en matière de harcèlement.

FEDERAL COURT

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.: T-831-06

STYLE OF CAUSE: Robert Lavigne v.

Canada Post Corporation and Robert Pepin

PLACE OF HEARING: Montréal, Quebec

DATE OF HEARING: September 7^th, 2006

REASONS FOR JUDGMENT

AND JUDGMENT: de Montigny J.

DATED: November 8, 2006

APPEARANCES:

MR. ROBERT LAVIGNE SELF REPRESENTED

ME AZIM HUSSAIN FOR THE DEFENDANTS

SOLICITORS ON THE RECORD:

MR. ROBERT LAVIGNE SELF REPRESENTED

Montréal, Quebec

ME AZIM HUSSAIN FOR THE DEFENDANTS

Ogilvy, Renault

Montréal, Quebec

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Lavigne v. Canada Post Corporation, 2006 FC 1345

Citations2006 FC 1345

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2006 FC 1345