Rhéaume v. Canada, 2003 FCT 44

Date: 20030117

Docket: T-1747-02

Neutral citation: 2003 FCT 44

BETWEEN:

CHARLOTTE RHÉAUME

Plaintiff

and

HER MAJESTY THE QUEEN

and

PUBLIC SERVICE

ALLIANCE OF CANADA

and

CUSTOMS EXCISE UNION

DOUANES ET ACCISE (CEUDA)

Defendants

REASONS FOR ORDER

RICHARD MORNEAU, PROTHONOTARY

[1]        The Court has before it motions by the defendant Her Majesty the Queen (hereinafter "the Queen") and the defendants the Public Service Alliance of Canada and Customs Excise Union Douanes et Accise (CEUDA) (hereinafter collectively "the union") respectively to strike the plaintiff's statement of claim and dismiss her action based on Rule 221(1)(a) and (f) of the Federal Court Rules (1998) ("the Rules").

[2]        The Queen argued essentially as grounds of challenge that the Federal Court did not have jurisdiction to hear the plaintiff's action, in view of the fact that the disputed facts have to do with the employer-employee relationship and that the grievance procedure laid down in the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, as amended ("the P.S.S.R.A."), and the collective agreement is the only proper remedy.

[3]        The Queen further argued that the plaintiff could not ask this Court to direct the Queen to appoint the plaintiff to an AU-02 position, since such an application is in the nature of a mandamus and there is no legal duty laid upon the Queen to act in this way in the case at bar.

[4]        The union argued that the plaintiff had presented no valid cause of action against it.

Background

[5]        The facts essential to understanding the motions at issue appear to be the following.

[6]        The plaintiff had held a permanent position as PM-02 in the federal Customs and Revenue Agency since it was created on November 1, 1999, and had previously held the same position in the Department of National Revenue.

[7]        In the early 1990s the Governments of Canada and Quebec concluded the agreement regarding the administration by Quebec of Part IX of the Excise Tax Act dealing with the goods and services tax.

[8]        Under that agreement responsibility for making decisions interpreting the GST, which was part of the plaintiff's duties, was transferred to the Government of Quebec.

[9]        The agreement was implemented gradually, so that it became fully effective in early 1999.

[10]      This transfer of duties eliminated the Department of National Revenue's operational requirements for GST interpretation positions in Quebec.

[11]      Consequently, on January 1, 1999 the Department of National Revenue declared all positions in the technical interpretation service in Quebec, including the plaintiff's, to be obsolete.

[12]      On October 29, 1999 the plaintiff filed a grievance in which essentially she asked to be treated like her peers in other provinces, to have her position reclassified at a higher level retroactive to January 1, 1999, and to be compensated accordingly.

[13]      The plaintiff's grievance can be said to be in three parts, namely classification, description of duties and demotion.

[14]      At the time the plaintiff filed her grievance she was subject to a collective agreement.

[15]      On June 27, 2001 the plaintiff's grievance was dismissed at the final level.

[16]      After taking this decision to arbitration, the union on October 10, 2002 withdrew the part of the grievance relating to the description of duties.

[17]      At the present time, the plaintiff is still proceeding with her grievance of October 29, 1999, alleging that she was demoted, which is disputed by her employer.

[18]      On November 28, 2001 the plaintiff filed an application for a hearing with the Public Service Commission.

[19]      On January 25, 2002 the Public Service Commission informed the Queen that it would not take further action on this application for a hearing, as the decision to fill or reclassify positions and to organize and classify the duties in the plaintiff's position was entirely within the Department's discretion.

Analysis

[20]      The conclusions of the plaintiff's statement of claim read as follows:

[TRANSLATION]

The plaintiff's cause of action is the following:

The plaintiff asks the Court:

(a)           TO ALLOW this action, the amount claimed exceeding $50,000, interest and costs not included;

(b)           TO ORDER all the defendants to pay the plaintiff her salary at the AU-02 level from January 1, 1999 onwards;

(c)           TO ORDER the defendants to pay her interest at the rate specified in the Interest Act on the arrears of salary (art. 1607 C.C.Q., s. 49 of the Quebec Charter);

(d)           TO ORDER the employer to grant the plaintiff all rights and fringe benefits and other advantages associated with the higher AU-02 group and level;

(e)           TO ORDER the employer to appoint the plaintiff or to confirm her forthwith in the AU-02 position, or any position at a higher level, with all privileges and advantages as well;

(f)            TO ORDER the employer to move the plaintiff's duties back to Montréal within a reasonable time and assign them to her;

(g)           TO ORDER the defendants to compensate the plaintiff within a reasonable time for her future losses of salary, and retirement pension;

(h)           TO ORDER the defendants to pay the plaintiff exemplary damages forthwith in view of the tax consequences on the salary owed by the defendants to the plaintiff;

(i)            TO RESERVE the plaintiff's rights and remedies for all damages which may result in future from these events.

[21]      It seems clear that the facts which gave rise to the case at bar result from the plaintiff's employment situation and her relations with her employer.

[22]      It appears that the plaintiff filed a grievance and a complaint with the Public Service Commission based essentially on the same facts as those which are the subject of the statement of claim.

[23]      The grievance was processed up to the final level and was subsequently taken to arbitration by the plaintiff, assisted by the union, in accordance with s. 91 of the P.S.S.R.A. and the applicable collective agreement.

[24]      It appears that the latter lay down a grievance resolution procedure which is a complete and exclusive code applicable to resolution of the present dispute, to the exclusion of any other remedy under the ordinary law (see Johnson-Paquette v. Canada, [2002] F.C.J. No. 441).

[25]      This conclusion applies even if the plaintiff's union has withdrawn the part of her grievance dealing with her description of duties before arbitration (see Adams v. Canada, [2002] J.Q. No. 1029).

[26]      In accordance with s. 17 in limine of the Federal Court Act, R.S.C. 1985, c. F-7 ("the Act"), the Federal Court does not have jurisdiction to hear the action at bar, which is exclusively a matter for the P.S.S.R.A. (see s. 17(1) of the Act; Johnson-Paquette v. Canada, supra; Adams v. Canada, supra; Cléroux v. Canada (Attorney General), [2001] F.C.J. No. 586; and DeWolfe v. Canada (Solicitor General), [2001] F.C.J. No. 773).

[27]      Additionally, the principal conclusion of the statement of claim asked the Court to direct the Queen to appoint the plaintiff to an AU-02 position.

[28]      This conclusion amounts to an application for mandamus against the Queen.

[29]      The Crown enjoys immunity from injunctions and from mandamus (see Centre d'information et d'animation communautaire (C.I.A.C.) v. The Queen, [1984] 2 F.C. 866; Grand Council of the Crees v. The Queen, [1982] 1 F.C. 599; and s. 22 of the Crown Liability and Proceedings Act).

[30]      In any case, even if the plaintiff were seeking this conclusion by the proper means, namely by an application for judicial review, the Court could not allow it in view of the absence of an essential requirement for issuing a mandamus, namely the legal duty to act (see Apotex v. Canada, [1994] 1 F.C. 742, at 766-767).

[31]      The other conclusions of the statement of claim dealing with compensation are only incidental conclusions pertaining to the appointment sought by the plaintiff.

[32]      Consequently, the statement of claim against the Queen should be dismissed since it discloses no cause of action and is an abuse of process, as provided in s. 221(1)(a) and (f).

[33]       On the union's motion to strike and to dismiss, it appeared from the plaintiff's statement of claim that her claims related to the duty of representation between a union and a member in a staffing, posting, restructuring of positions and classification process.

[34]      The plaintiff cannot bring an action against the union for this failure to act as she has a remedy laid down in s. 23 of the P.S.S.R.A. The plaintiff must file a complaint with the Public Service Staff Relations Board in order to assert her rights as a member of a union organization. If the plaintiff is not satisfied with the Board's decision she then has available, under s. 18.1 of the Act, a remedy by judicial review in the Federal Court.

[35]     The Public Service Staff Relations Board has exclusive jurisdiction to decide any complaint from an individual regarding a breach of s. 10(2) of the P.S.S.R.A. (see ss. 21(1) and 23(1) and (2) of the P.S.S.R.A.).

[36]      In the case at bar the plaintiff did not exhaust the procedure laid down in the P.S.S.R.A. or the subsequent remedy by judicial review. As a consequence of the P.S.S.R.A., this Court has no jurisdiction to rule on the question of the union's duty of representation. The plaintiff cannot bring an action for damages for a civil delict against the union when the Act gives the Public Service Staff Relations Board exclusive authority to resolve the dispute (see Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Johnson-Paquette v. Canada, [1998] F.C.J. No. 1741 (T.D.)).

[37]      Consequently, the Court allows the motion by the Queen and the union, strikes out the plaintiff's statement of claim and dismisses her action, with costs to each of the defendants. Additionally, as discussed at the hearing, the Court dismisses the various counter-motions made by the plaintiff in her records in reply to the motions at issue.

Montréal, Quebec

January 17, 2003

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                                                          SOLICITORS OF RECORD

FILE:                                                                               T-1747-02

STYLE OF CAUSE:                                                     CHARLOTTE RHÉAUME

Plaintiff

and

HER MAJESTY THE QUEEN

and

PUBLIC SERVICE ALLIANCE OF CANADA

and

CUSTOMS EXCISE UNION DOUANES ET ACCISE (CEUDA)

Defendants

PLACE OF HEARING:                                                Montréal, Quebec

DATE OF HEARING:                                                  December 9, 2002

REASONS FOR ORDER BY: RICHARD MORNEAU, PROTHONOTARY

DATED:                                                                           January 17, 2003

APPEARANCES:

Charlotte Rhéaume                                                            for the plaintiff

Diane Pelletier                                                                  for the defendant Her Majesty The Queen

Lise Leduc                                                                         for the defendants Public Service Alliance of

Andrew Wray                                                                  Canada and Customs Excise Union Douanes

et Accise (CEUDA)

SOLICITORS OF RECORD:

Morris Rosenberg                                                              for the defendant Her Majesty The Queen

Deputy Attorney General of Canada

Raven, Allen, Cameron & Balantyne                                for the defendants Public Service Alliance of

Ottawa, Ontario                                                                Canada and Customs Excise Union Douanes

et Accise (CEUDA)