Desrosiers v. Canada (Attorney General), 2004 FC 1601

Date: 20041116

Docket: T-1401-04

Citation: 2004 FC 1601

BETWEEN:

                               MARC DESROSIERS and MARIA LE BOUTHILLIER

                                                                                                                                             Plaintiffs

                                                                           and

                                             ATTORNEY GENERAL OF CANADA

                                                                                                                                           Defendant

                                                        REASONS FOR ORDER

HARRINGTON J.

[1]                Employment related disputes within the Public Service of Canada are subject to a grievance procedure. The grievance officer is appointed by, is paid by and is part of the management against whom the complaint has been laid. The question in this case is whether Parliament has authorized grievance officers to apply the Charter of Rights and Freedoms ("Charter") and to grant appropriate remedies, including damages, should it be found that an employee's guaranteed rights and freedoms have been infringed or denied.

[2]                The plaintiffs, Marc Desrosiers and Maria Le Bouthillier, are psychologists in the employ of Correctional Service Canada ("CSC"). Until recently the job requirement was that psychologists be licensed by a provincial board or college of psychologists. It was not a requirement that the psychologists be registered in the province in which they worked. Marc Desrosiers and Maria Le Bouthillier are licensed to practice in Québec but are employed by CSC in a Federal correctional institution located in Nova Scotia.

[3]                Recently, the CSC, for what it calls "operational reasons", has changed that policy. Psychologists are now required to be registered in the province in which they provide service. Although the plaintiffs have apparently been "grandfathered" in their current positions, this change of policy can adversely affect their working future. In the case of Mr. Desrosiers, he has already been eliminated from competition for job transfers to other provinces because he is not licensed for autonomous practice there.

[4]                The plaintiffs have taken action in this Court, not only in their own name, but they also propose a class action on behalf of all CSC psychologists. They seek a declaration that this new job requirement violates their mobility rights guaranteed under section 6 of the Charter (Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982), as well as the provisions of the Corrections and Conditional Release Act, S.C. 1992, c. 20. They also seek damages arising from the alleged breach of Charter, special damages, interest and costs. Section 24(1) of the Charter provides:

[5]                The Statement of Claim, taken as standing alone, discloses an arguable case against the Crown, over which this Court has jurisdiction pursuant to section 17 of the Federal Courts Act R.S.C., 1985, c. F-7. Certainly the claim is not so bereft of merit, assuming the allegations to be true, that it is plain and obvious that it should be dismissed before the Attorney General, on behalf of the CSC, has to put in a Statement of Defence.

[6]                However, the first step in the Attorney General's defence has been to move to have the action struck on the grounds that this Court is without jurisdiction. The Attorney General has yet to take a position on the merits of the claim. He says that any action before this Court is premature because Parliament has put in place an all-inclusive multilevel grievance process. It is only after that process has been exhausted that the matter can come before this Court by way of judicial review, not by way of an ordinary action.

[7]                He submits that Parliament, by enacting the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, ("PSSRA") and the Public Service Employment Act, R.S.C. 1985, c. P-33, ("PSEA") has ousted the otherwise original jurisdiction of this Court and has provided for a dispute resolution mechanism which, if they are right, will give Mr. Desrosiers and Ms. Le Bouthillier all they seek, including damages for breach of their Charter rights.

[8]                Counsel for Mr. Desrosiers and Ms. Le Bouthillier say that Parliament never intended that the application of the Charter be left in the hands of grievance officers who do not carry out judicial or quasi-judicial functions. To hold otherwise would mean that Parliament has sanctioned a breach of one of the cornerstones of natural justice, that a dispute be resolved by an impartial decision-maker. Furthermore, they say that grievance officers cannot give a full and effective remedy.

ISSUE

[9]         Should the statement of claim be struck pursuant to Federal Court Rule 221 on the grounds that it discloses no reasonable cause of action within the jurisdiction of this Court? Put another way, does the PSSRA oust the original jurisdiction of the Federal Court under section 17 of the Federal Courts Act and section 24 of the Charter?

ANALYSIS

[10]       It is inevitable that employment disputes will arise from time to time in both the private and public sectors. Parliament, the provincial legislatures and parties by way of collective agreements, usually do not call upon courts to be the initial decision-makers. Private tribunals under collective agreements, or grievance or arbitral procedures sanctioned by law have been established with a view to keeping these disputes away from the courts. In theory, it is faster and cheaper to resolve disputes in private rather than before a judge who has no expert knowledge of labour relations. In principle, it is better that all aspects of a dispute be resolved in the same place and at the same time.

[11]            Section 91 of the PSSRA is a default provision. If there is no administrative procedure for redress in another act of Parliament:

he or she is entitled to present the grievance through a series of levels.

[12]            Section 92 of PSSRA goes on to provide that in certain circumstances an employee who has presented a grievance up to and including the final level may refer it to adjudication, meaning to a third party arbitrator. Section 92 applies in such instances as the interpretation of a collective agreement, a disciplinary action resulting in suspension or a financial penalty, termination of employment or demotion. It is common ground that section 92 has no application in this case.

[13]            There is another act which may provide recourse, the Public Service Employment Act ("PSEA"). When Mr. Desrosiers was ruled ineligible to compete for an out-of-province transfer, because he was not licensed in that province, he filed a grievance under section 91. The "management decision on grievance" held that the grievance pertained to the fact that he was precluded from entering a job competition based on qualifications required for the position. The grievance was ruled invalid because employees concerned about essential qualifications for a competition may complain to the Public Service Commission which is empowered under section 12. 1 of the PSEA to conduct an inquiry and review the qualifications to ensure that they set out a selection process based on merit. Section 12.1 reads:

[14]            In other words, management characterized the complaint as pertaining to "qualifications ... for appointment to any position..." rather than the application of a direction "dealing with terms and condition of employment".

[15]            The Statutes serve as a backdrop to a collective agreement between the Treasury Board and the Professional Institute of the Public Service of Canada which covers a number of groups including psychologists. The agreement is exhibited to the affidavit of Linda Brouillette, Director General of Labour Relations at CSC. Although evidence is not normally permitted on an application to strike a statement of claim for not disclosing a cause of action, the courts have allowed evidence when the basis of the motion is lack of jurisdiction (MIL Davie Inc. v. Hibernia Management and Development Co., [1998] 226 N.R. 369).

[16]            The collective agreement sets out two separate grievance procedures, both of which operate in concert with the PSSRA. The procedure, which on its face has application here, is found in clause 34.05, which mirrors and is expressly subject to section 91 of the PSSRA. Accordingly, it does not apply if there is another administrative procedure provided by Parliament to deal with the specific complaint, i.e. section 12.1 of the PSEA.

[17]            I should immediately put to rest the submission on behalf of the plaintiffs that they have been given a "run-around" in that Mr. Desrosiers's grievance under section 91 has already been dismissed. As far as I am concerned, the new requirement that psychologists be licensed by the provincial board in which they carry out their duties serves both as a direction "dealing with terms and condition of employment" under section 91 of PSSRA and as a qualification established for appointment to a position under section 12.1 of PSEA. There is concurrent jurisdiction under both sections. However, Mr. Desrosiers had framed his grievance as relating to his view that the qualifications established did not afford a basis for selection according to merit within the meaning of section 12.1. The Attorney General submits that no grievance has been filed which has been directed at the management decision to require, as a term and condition of employment, that psychologists be registered in the province in which they provide service. He is right. To quote from his reply memorandum "the Defendant invites the Plaintiffs to pursue such process".

[18]            The last decade has seen a wealth of jurisprudence dealing with statutes enacted by Parliament and the provincial legislatures which are designed to restrict the jurisdiction of superior courts of record over labour disputes. I begin with Weber v. Ontario Hydro, [1995] 2 S.C.R. 929. Hydro suspended its employee, Weber, for allegedly abusing his sick leave benefits. Although his grievances were settled, he commenced a court action based on tort and breach of Charter rights. Hydro moved to have the action struck as section 45(1) of the Ontario Labour Relations Act R.S.O. 1990, c. L.2, repealed by S.O. 1995, c.1, required every collective agreement to:

...provide for the final and binding settlement by arbitration... of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement.

The Supreme Court held, in a 4-to-3 decision, that the section of the Act ousted the Court's jurisdiction over both the tort and the Charter claim.

[19]            McLachlin J., speaking for the majority, reviewed the three different positions that courts had up to then taken on the effect of final and binding arbitration clauses in labour legislation. One was the concurrent model which contemplated that an action could proceed notwithstanding that it arose in an employment context. That view was exemplified by the proposition that a collective agreement could not deprive the Court of its jurisdiction over tort claims. The second model was that of overlapping jurisdiction which would allow a court action if it raised issues which went beyond the traditional subject matter of labour law. This model would cover certain tort claims and Charter claims. The third model, the one accepted by the Court, was the exclusive jurisdiction model, which required the decision-maker to attempt to define the "essential character" of the dispute. If the dispute expressly or inferentially arises out of the collective agreement, no originating action may be taken before the courts. That is not to say that there may not be a statutory or common law right of judicial review.

[20]            McLachlin J. summarized the law as follows:

67. I conclude that mandatory arbitration clauses such as s. 45(1) of the Ontario Labour Relations Act generally confer exclusive jurisdiction on labour tribunals to deal with all disputes between the parties arising from the collective agreement. The question in each case is whether the dispute, viewed with an eye to its essential character, arises from the collective agreement. This extends to Charter remedies, provided that the legislation empowers the arbitrator to hear the dispute and grant the remedies claimed. The exclusive jurisdiction of the arbitrator is subject to the residual discretionary power of courts of inherent jurisdiction to grant remedies not possessed by the statutory tribunal. Against this background, I turn to the facts in the case at bar.

[21]            She found in that case that an arbitrator under the Ontario Act had the power to grant Charter remedies, being damages and declarations. She said:

61.    ... [T]he power and duty of arbitrators to apply the law extends to the Charter, an essential part of the law of Canada: ... In applying the law of the land to the disputes before them, be it the common law, statute law or the Charter, arbitrators may grant such remedies as the Legislature or Parliament has empowered them to grant in the circumstances. ...

See also Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1

S.C.R 360.

[22]            Those in dissent were of the view that arbitrators did not have the power under section 24 of the Charter to remedy Charter violations. They could not award a remedy because they were not courts of competent jurisdiction.

[23]            The Federal Court of Appeal has applied the exclusive jurisdiction model set out in Weber to the PSSRA and has held that section 91 comprises a comprehensive scheme designed to oust the jurisdiction of the Court (Johnson-Paquette v. Canada (2000), 253 N.R. 305; Public Service Alliance of Canada v. Canada (Treasury Board) (2001), 205 F.T.R. 270 aff'd at 2002 FCA 239, [2002] F.C.J. No. 850 (QL); Vaughan v. Canada, [2003] 3 F.C. 645).

[24]            The facts of Vaughan are quite different from the facts before us. Vaughan did not raise Charter issues but did raise the issue that a management appointed grievance officer is not an independent adjudicator. Both the Nova Scotia and Ontario Courts of Appeal have held that the jurisdiction of the courts is not ousted if the decision maker contemplated by the Statute is not an independent adjudicator (Pleau v. Canada (Attorney General), [1999] 181 N.S.R. (2d) 356 (CA); Guenette v. Canada (Attorney General) (2002), 60 O.R. (3d) 601 (CA)). However, in Vaughan, Sexton J.A., with whom Richard C.J. concurred, took inspiration from the decision of the Supreme Court in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781 and was of the view that absent a constitutional challenge the statutory scheme prevailed over the common law principle of natural justice that audi alteram partem required an impartial adjudicator.

[25]            Sexton J.A. said:

17. ... One must look at the legislation to determine Parliament's intention. Examination of the legislation itself, along with the nature of the dispute itself are the determining factors. Thus, the choice in the PSSRA not to have independent adjudicators as part of the statutory scheme must be respected. It should be noted, however, that where constitutional or Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitutional Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 4]] arguments are engaged this principle may not apply.

18. However, neither constitutional or Charter arguments are in issue in this case. There is no constitutional challenge to section 91 of the PSSRA. No Charter argument was advanced by the appellant.

[26]            Evans J.A. concurred the Vaughan result. He noted that the provincial Courts of Appeal are opposed to the exclusiveness of the remedial scheme established by section 91 of the PSSRA. Unlike Sexton J.A., he was not convinced as a general proposition that the comprehensive nature of the scheme set forth in section 91 of the PSSRA ousted the jurisdiction of the Court to oversee lower tribunals on issues of natural justice:

158. ...the comprehensive nature of the scheme does not in itself establish a sufficiently clear legislative intention that it is exclusive as to warrant the Court's omitting to consider the fairness of the statutory process.

[27]            He concluded:

160. Consequently, although the absence of access to impartial adjudication is, in my view, a relevant consideration to determining whether Parliament intended the section 91 process to exclude the Court's jurisdiction under section 17 of the Federal Court Act, I do not regard it as sufficient in this case to conclude that it outweighs the countervailing considerations that I have outlined above.

[28]            The considerations he set out included the broad range of remedies available to the Federal Court on judicial review, pursuant to section 18.1 of the FCA, including the powers to admit affidavit evidence, to order a decision-maker to perform a legal duty, to declare rights and to direct that an application proceed as an action. Vaughan is currently before the Supreme Court. In fact it was heard and reserved in May, but a re-hearing was ordered last month ([2003] S.C.C.A. No. 165).

[29]            Subsequent to Vaughan, the Supreme Court again dealt with application of the Charter in labour relations in Nova Scotia (Workers' Compensation Board) v. Martin, [2003] 2 S.C.R. 504. The issue was whether certain Workers' Compensation programs dealing with chronic pain violated section 15(1) of the Charter. Not being successful before the Board, Martin, and the appellant in a related case, Laseur, appealed to the Workers' Compensation Appeals Tribunal on the grounds that the programs infringed the Charter. The Appeals Tribunal affirmed its jurisdiction to apply the Charter. The Board appealed to the Nova Scotia Board of Appeal which held that the Tribunal did not have jurisdiction to consider the constitutional validity of the Act in the light of the Charter. The Supreme Court maintained the appeals by Martin and Laseur, and held that the Appeals Tribunal could properly consider and decide Charter issues in that the Legislature had expressly conferred upon it authority to decide questions of law. Gonthier J., speaking for the Court, reminded us that the Constitution is, under section 52(1) of the Constitution Act, 1982, the supreme law of the land. Charter disputes do not take place in a vacuum, so that factual findings and the record compiled by an administrative tribunal as well as its informed and expert view will often be invaluable to a reviewing court. In any event, administrative tribunal decisions based on the Charter are subject to judicial review on a correctness standard.

[30]            He said:

29. From this principle of constitutional supremacy also flows, as a practical corollary, the idea that Canadians should be entitled to assert the rights and freedoms that the Constitution guarantees them in the most accessible forum available, without the need for parallel proceedings before the courts...

...

31. ... An error of law by an administrative tribunal interpreting the Constitution can always be reviewed fully by a superior court...

[emphasis added]

[31]            To hold that the Charter issues in this case may start off in court would subject the parties to parallel proceedings. Plaintiffs' submission that the new job requirement violates the essential health care provisions of the Corrections and Conditional Release Act, is certainly subject to the grievance procedure.

[32]            In Martin, the Court was of the view that if the legislation implicitly or explicitly grants the tribunal jurisdiction to interpret or decide any question of law, then the tribunal will be presumed to have jurisdiction to interpret or decide that question in the light of the Charter, unless that power was removed by legislation.

[33]            Section 91 of PSSRA explicitly grants grievance officers the jurisdiction to interpret questions of law, and thus the Charter which forms part of the Constitution. The remaining questions are whether Parliament removed that jurisdiction from grievance officers, as opposed to third party adjudicators, and whether a grievance officer can give Mr. Desrosiers and Ms. Le Bouthillier a full and effective remedy, should their claims have merit.

[34]            Gonthier J. pointed out that the Appeals Tribunal in Martin was fully adjudicative in its nature, independent of the Workers' Compensation Board. However, he went on to say:

54. I hasten to add, however, that while the presence of an adjudicative process is an important factor in finding an implied power to decide questions of law, its absence would not by itself be determinative. An examination of the statutory scheme as a whole may lead to the conclusion that the legislature intended a non-adjudicative body to consider and decide questions of law.

[35]            Section 91 of the PSSRA gives an express power to decide questions of law. There is nothing implied about it. Thus, as Gonthier J. said:

40. In cases where the empowering legislation contains an express grant of jurisdiction to decide questions of law, there is no need to go beyond the language of the statute. An express grant of authority to consider or decide questions of law arising under a legislative provision is presumed to extend to determining the constitutional validity of that provision.

[36]            This brings me to the final point. In my view, the grievance officer has jurisdiction to grant damages and declaratory relief. The plaintiffs argue that no employer representative, designated to reply to a grievance, has unfettered authority to compel payment of sums of money out of the Consolidated Revenue Fund. Limits on authority will vary with budgetary allotments, and whether the expenditure has been appropriated under Part III of the Financial Administration Act, R.S.C. 1985, c. F-11. This point is highly theoretical and can be discounted. It was argued in Vaughan that a final level decision favourable to him might not be implemented by the Treasury Board. However, as noted by Evans J.A. at paragraph 150, counsel "was unaware of instances where this had happened and there was no evidence in the record to substantiate his concern."

DISPOSITION

[37]       Relying on Weber, Vaughan and Martin, I conclude that the action is premature. The motion is allowed. The statement of claim is struck in its entirety. The Attorney General shall have his costs.

(Sgd.) "Sean Harrington"

Judge

Vancouver, British Columbia

November 16, 2004

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                       T-1401-04

STYLE OF CAUSE:                                       MARC DESROSIERS and MARIA LE BOUTHILLIER

AND

ATTORNEY GENERAL OF CANADA

PLACE OF HEARING:                                             OTTAWA, ONTARIO

DATE OF HEARING:                                               NOVEMBER 4, 2004

REASONS FOR ORDER :                                      HARRINGTON J.

DATED:                                                           NOVEMBER 16, 2004

APPEARANCES:

Dougald Brown                                                 FOR PLAINTIFFS

Christopher Rootham

Alexander Gay                                                  FOR DEFENDANT

SOLICITORS OF RECORD:

Nelligan O'Brien Payne                                                 FOR PLAINTIFFS

Ottawa, Ontario

Morris Rosenberg                                              FOR DEFENDANT

Deputy Attorney General of Canada