Sauve v. Canada, docket T-2199-97

Date: 19981112

Docket: T-2199-97

    

BETWEEN:

     GARY SAUVE

     PLAINTIFF

     - AND -

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA

     DEFENDANT

     REASONS FOR JUDGMENT

TEITELBAUM J.:

[1]      The plaintiff, Gary Sauve, on or about October 10, 1997, commenced an action against Her Majesty the Queen (Crown) claiming for "a Declaration that the RCMP has violated its own internal policies and procedures in the manner in which it has discriminated against ex-Special Constables in matters involving career advancement" as well as claiming "General and Punitive Damages" (see paragraph one of plaintiff"s Statement of Claim).

[2]      On August 17, 1998, the defendant filed a Notice of Motion for an Order pursuant to Rule 221 of the Federal Court Rules for:

(1)      An Order striking out the Statement of Claim;

         or

(2)      in the alternative, granting the Defendant an extension of time of 30 days from the date of the Order of this Honourable Court disposing of this motion within which to deliver a Statement of Defence.

[3]      The grounds for the said motion are, as stated in the Notice of Motion:

1.      The allegations contained in the Statement of Claim are in essence a challenge to a series of Royal Canadian Mounted Police ("RCMP") staffing decisions.

2.      The Royal Canadian Mounted Police Act ("RCMP Act") sets out a procedure for resolving a broad range of internal grievances which culminates at the final level in a decision by the Commissioner.

3.      The Plaintiff has filed an internal grievance with the RCMP concerning these allegations.

4.      The Plaintiff should be required to exhaust his internal remedies within the RCMP grievance system.

5.      If the Plaintiff is unsatisfied with the results of the grievance process, section 32(1) of the RCMP Act specifically references that while the Commissioner"s decision is "final and binding", it is subject to an application for judicial review to this Honourable Court.

6.      The Defendant has undertaken that it will not oppose any request by the Plaintiff for an extension of time in order to pursue his internal remedies, namely the next level in the RCMP grievance process.

7.      The Statement of Claim:

a)      discloses no reasonable cause of action;

b)      is scandalous, frivolous and vexatious; and,

c)      is otherwise an abuse of process of the Court.

7.      The Royal Canadian Mounted Police Act, ss. 31-36

8.      Federal Court Rules, 1998, Rules 221(1)(a), 221(1)(c), 221(1)(f), and 8

[4]      The matter came before me for hearing on October 13, 1998. At the hearing, by consent, the plaintiff filed an Amended Statement of Claim.

[5]      Counsel for defendant informed the Court that her Notice of Motion for an Order to Strike need not be amended as her Notice of Motion is not affected by the Amended Statement of Claim and all the grounds alleged remain the same.

[6]      Rule 221(1) and (2) of the Federal Court Rules state:

221. (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it (a) discloses no reasonable cause of action or defence, as the case may be, (b) is immaterial or redundant, (c) is scandalous, frivolous or vexatious, (d) may prejudice or delay the fair trial of the action, (e) constitutes a departure from a previous pleading, or (f) is otherwise an abuse of the process of the Court, and may order the action be dismissed or judgment entered accordingly. (2) No evidence shall be heard on a motion for an order under paragraph (1)(a).

221. (1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout ou partie d'un acte de procédure, avec ou sans autorisation de le modifier, au motif, selon le cas : a) qu'il ne révèle aucune cause d'action ou de défense valable; b)qu'il n'est pas pertinent ou qu'il est edondant; c) qu'il est scandaleux, frivole ou vexatoire; d) qu'il risque de nuire à l'instruction équitable de l'action ou de la retarder; e) qu'il diverge d'un acte de procédure antérieur; f) qu'il constitue autrement un abus de procédure. Elle peut aussi ordonner que l'action soit rejetée ou qu'un jugement soit enregistré en conséquence. (2) Aucune preuve n'est admissible dans le cadre d'une requête invoquant le motif visé à l'alinéa (1)a).

[7]      As is evident, no evidence shall be heard on a motion for an order under paragraph 1(a). On consent, the parties filed, as evidence, a Grievance Presentation and the decision of R.L.J. Mercier, Assistant Commissioner, Commanding Officer "A" Division with regard to the presented grievance.

[8]      I allowed the filing of the said two documents because of the consent and the Amended Statement of Claim makes mention of same.

[9]      In the Amended Statement of Claim, plaintiff is no longer asking for a Declaration but now, in paragraph 1 asks for:

1. The Plaintiff claims:

(a)      General and Punitive Damages in an unspecified amount for breach of contract; namely, the violation of the internal policies and procedures respecting harassment and discrimination, which form an integral part of the Plaintiff"s employment contract with the RCMP;

(b)      Prejudgment and postjudgment interest;

(c)      Costs on a solicitor and client basis; and,

(d)      Such further and other relief as this Honourable Court deems just.

FACTS

[10]      In an application to strike, the allegations contained in the Statement of Claim are taken as proven.

[11]      The plaintiff joined the Royal Canadian Mounted Police (RCMP) as a special constable, regular member in 1986. In or around 1990, he was promoted to Regular Constable, Regular Member. The plaintiff requested a transfer to Criminal Operations in or around 1991 "at which time he was advised by RCMP Staffing that members of ex-Special Constables would be transferred in two years". In or around 1992, plaintiff was advised that the two year time period had been increased to three years.

[12]      The plaintiff continued his pursuit of a transfer to Criminal Operations in 1993 and was advised by Staffing that at least 20 Constables from ex-Special Constables would be transferred to Criminal Operations. No such transfers transpired.

[13]      The plaintiff continued his efforts to be transferred during 1995 and 1996. During this period, he received a number of positive responses "which responses unanimously turned negative as soon as it became evident that the plaintiff was from E/SP" (ex-Special Constable).

[14]      As a result of the above and for the reasons that the plaintiff learned that an informal policy exists throughout the RCMP, whereby E/DPS members are not considered for certain transfers/promotions, the plaintiff filed a grievance through the internal grievance procedure on September 29, 1995.

[15]      After what appears to me to be considerable delay, on or about January 19, 1998, some three years and three months later, the Assistant Commissioner denied the plaintiff"s grievance and "refused to address the plaintiff"s allegations of discrimination and harassment on the basis that the internal grievance procedure was not the proper forum for the disposition of those complaints" (see paragraph 15 of the Amended Statement of Claim).

[16]      As a result of the above, on or about October 10, 1997, the plaintiff commenced the present action because, as he states in paragraph 16 of his Amended Statement of Claim "The Plaintiff therefore states the within action represents his only means of advancing these complaints at this late stage".

[17]      It is the defendant"s submission that the plaintiff"s action does not disclose a reasonable cause of action, is scandalous, frivolous and vexatious and is an abuse of the process of the Court, all because the plaintiff has failed to exhaust his internal remedies pursuant to section 31(1) of the RCMP Act, which states:

31. (1) Subject to subsections (2) and (3), where any member is aggrieved by any decision, act or omission in the administration of the affairs of the Force in respect of which no other process for redress is provided by this Act, the regulations or the Commissioner's standing orders, the member is entitled to present the grievance in writing at each of the levels, up to and including the final level, in the grievance process provided for by this Part.

31. (1) Sous réserve des paragraphes (2) et (3), un membre à qui une décision, un acte ou une omission liés à la gestion des affaires de la Gendarmerie causent un préjudice peut présenter son grief par écrit à chacun des niveaux que prévoit la procédure applicable aux griefs prévue à la présente partie dans le cas où la présente loi, ses règlements ou les consignes du commissaire ne prévoient aucune autre procédure pour corriger ce préjudice.

[18]      Section 32(1) of the RCMP Act states:

32. (1) The Commissioner constitutes the final level in the grievance process and the Commissioner's decision in respect of any grievance is final and binding and, except for judicial review under the Federal Court Act, is not subject to appeal to or review by any court.

32. (1) Le commissaire constitue le dernier niveau de la procédure applicable aux griefs; sa décision est définitive et exécutoire et, sous réserve du contrôle judiciaire prévu par la Loi sur la Cour fédérale, n'est pas susceptible d'appe ou de révision en justice.

[19]      Thus, it is apparent that after the plaintiff had filed his level 1 grievance and lost, he should have appealed the level 1 decision for a final decision with the Commissioner pursuant to section 32(1). If the plaintiff had lost his grievance before the Commissioner, it was his right to bring that final decision before the Federal Court of Canada by means of an application for judicial review.

[20]      Where a grievance procedure, as prescribed in a statute, constitutes an adequate alternate remedy, it ought to be completely followed before turning to the Courts (see Couture v. Canada (1997) F.C.J. No. 1324).

[21]      There is no doubt that because the plaintiff had not exhausted his remedies pursuant to the grievance procedure found in the RCMP Act, the present motion to strike should normally be allowed.

[22]      However, plaintiff, and I repeat, in his Statement of Claim, paragraph 15 states that "In dismissing the grievance, the Assistant Commissioner refused to address the plaintiff"s allegations of discrimination and harassment, on the basis that the internal grievance procedure was not the proper forum for the disposition of those complaints".

[23]      In his reasons for his decision, in relation to the issue of discrimination, Assistant Commissioner Mercier states, at pages 8 and 10 of his decision:

I share the findings of the GAB as they pertain to the grievor"s allegations of discrimination and harassment. Policy in the Admin. Man. is specific and in place to address these types of complaints. I have no intention of delving into these issues here as it is not the proper forum. The grievor is encouraged to acquaint himself with the relevant chapters of the Admin. Man. and should he feel a need should submit complaints as per policy.

I share the finding of the GAB that the grievor has not been treated differently than any other ex-S/Cst. This does not construe that I find that their treatment has been completely acceptable. I am, however satisfied that Rotational Policy implemented within "A" Division will redress the apparent wrong.

I also share the GAB"s finding with respect to the grievor"s allegations of Harassment and Discrimination that the grievance process is not the proper forum for lodging complaints.

[24]      It is obvious that if the grievance procedure were effective and would be available to resolve all the issues put forth, then the full grievance procedure, all steps, would have to be completed before resorting to the Court.

[25]      I am not convinced that because an administrative manual may have in place a method to address this type of complaint (discrimination) that this fact would prevent a plaintiff access to the Court if the procedure set out in the manual were not followed.

[26]      In that it was found by the Assistant Commissioner that the grievance procedure was not adequate or was not the proper forum to deal with allegations of discrimination and harassment, I am satisfied that there would be no purpose for the plaintiff to appeal to the next level of the grievance procedure. The plaintiff"s allegation in paragraph 15 is taken as proven.

[27]      Therefore, defendant"s motion to strike is denied with costs.

[28]      The defendant is granted an extension of time of 30 days from the date of this judgment within which to serve and file a Statement of Defence.

"Max M. Teitelbaum"

J.F.C.C.

Ottawa, Ontario

November 12, 1998