Date: 20040109
Docket: T-1789-03
Citation: 2004 FC 27
OTTAWA, ONTARIO, FRIDAY, THIS 9TH DAY OF JANUARY, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
SELWYN PIETERS
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Mr. Selwyn Pieters is an employee with the Immigration and Refugee Board (the "IRB"). In his position with the IRB, he is a member of the Public Service Alliance of Canada ("PSAC") and subject to the terms of a collective agreement between the Treasury Board and PSAC (the "Collective Agreement"). As the result of an incident on April 24, 2003, Mr. Pieters,alleges that he was harassed in the workplace. He has filed a complaint under the Treasury Board's Policy on the Prevention and Resolution of Harassment in the Workplace (the "Harassment Policy") and a number of grievances under the Collective Agreement concerning the incident.
[2] Mr. Pieters has also initiated two separate legal proceedings with this Court that are related to the incident. The first of these is an application for judicial review filed September 29, 2003 wherein he seeks judicial review of the failure of Linda Brouillette, Director of Human Resources and Anti-Harassment Co-ordinator at the IRB, to provide him with the substance of a harassment complaint against him, pursuant to "Step 2" of the Harassment Policy. The second proceeding is an action commenced by way of Statement of Claim seeking damages for defamation, injurious falsehood and for damage suffered by the commission of a tort of intentional infliction of mental harm (Court file T-1681-03).
[3] This motion relates to the first - the application for judicial review. The Respondent has brought this motion pursuant to Rule 221(1)(a) of the Federal Court Rules, 1998, for an Order striking out Mr. Pieters' Notice of Application, dated September 29, 2003, without leave to amend.
[4] In his complaint filed under the Harassment Policy, Mr. Pieters alleges that he was harassed by a number of other employees of the IRB, including Natalka Cassano. Mrs. Cassano's workstation is where the incident on April 24, 2003 took place.
[5] On April 28, 2003, Mrs. Cassano filed a harassment complaint against Mr. Pieters under the same policy. Her complaint also related to the incident on April 24, 2003 and the subsequent complaints filed by Mr. Pieters.
[6] On being informed that he was the subject of a harassment complaint made by Mrs. Cassano, commencing with an e-mail sent on May 7, 2003, Mr. Pieters made several requests for disclosure of the specific details of the complaint. Ms. Brouillette was held accountable for dealing with this request.
[7] On September 29, 2003, Mr. Pieters commenced this application, wherein, in addition to requesting disclosure of the details of Mrs. Cassano's complaint, Mr. Pieters also seeks declarations that Linda Brouillette acted ultra vires the Financial Administration Act, R.S.C. 1985, c. F-11 (the "FAA"), the Harassment Policy, and sections 7 and 15(1) of the Charter of Rights and Freedoms (the "Charter"). In addition to these declarations, the Mr. Pieters seeks the following:
· an Order of mandamus compelling Linda Brouillette to disclose to Mr. Pieters the substance of Mrs. Cassano's allegations against him;
· an Order of damages pursuant to section 24(1) of the Charter for breach of the Applicant's constitutional rights; and
· costs.
[8] By letter dated October 20, 2003, Ms. Brouillette provided Mr. Pieters with the details of Mrs. Cassano's harassment complaint.
Issues
[9] In this motion, the issues raised are:
1. Is the jurisdiction of the Court to deal with this matter ousted on the basis that the internal mechanisms provided pursuant to the Public Service Staff Relations Act, R.S., c. P-35, s. 1 ("PSSRA")constitute a complete code governing workplace relations between the Crown and its employees?
2. Given that Mr. Pieters has been provided with the requested information on the complaint of Mrs. Cassano, is the application moot?
3. Does the Court have jurisdiction to award damages in the context of a judicial review application?
[10] If the answer to the first question is 'yes', this application for judicial review should be struck and there is no need to consider the second and third issues. In the event that the answer to the first question is negative, it would still be necessary for Mr. Pieters to persuade me that the application is not moot or that I should allow the matter to continue in spite of the fact that he now has the details of the complaint. Only in the event that I conclude that this application can be heard (Issue #1) and should be heard (Issue #2) by the Court, do I need to address the third issue raised.
[11] For the reasons that follow, I conclude that this application for judicial review cannot be heard by this Court.
Analysis
[12] It is agreed by the parties that applications for judicial review are intended to be expeditious proceedings. Courts will grant interlocutory motions to strike out applications only in exceptional cases, where the application is bereft of any possibility of success (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., [1995] 1 F.C. 588 (C.A.)). It is obvious that a matter that is beyond the jurisdiction of the Court is "bereft of any possibility of success" and should be struck. The application for judicial review filed by Mr. Pieters is, in my view, a case which falls within the exception.
[13] The Respondent argues that the Court does not have the jurisdiction to hear Mr. Pieters' application for judicial review on the basis that the internal mechanisms provided pursuant to the PSSRA constitute a complete code governing workplace relations between the Crown and its employees.
[14] As discussed in my decision allowing the motion of the Defendant, Her Majesty the Queen, to strike Mr. Pieters' Statement of Claim (Citation: 2004 FC 26; Court file: T-1681-03), the first step to be undertaken is for this Court to determine the essential character of the dispute between the parties. If the essential character of the claim is one that falls within the ambit of a particular statutory scheme, then this scheme ousts the jurisdiction of the Court (Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 at 956-958).
[15] In this case, Mr. Pieters is raising procedural issues with respect to the handling of Mrs. Cassano's harassment complaint. Mr. Pieters' objection to Ms. Brouillette's conduct is no more than a grievance concerning adherence to internal procedures in the workplace. This is directly and unambiguously a workplace matter. For the same reasons as I expressed in Pieters 2003 #1, supra, it follows that the jurisdiction of this Court is ousted by the complete code for resolution of workplace disputes set out in the Collective Agreement and the PSSRA. Although this motion deals with an application for judicial review, rather than an action as in Pieters 2003 #1, supra, the reasoning and principles set out in that decision are equally applicable to this motion.
[16] Mr. Pieters also relies on Rule 64 of the Federal Court Rules, 1998, which states as follows:
| Declaratory relief available - No proceeding is subject to challenge on the ground that only a declaratory order is sought, and the Court may make a binding declaration of right in a proceeding whether or not any consequential relief is or can be claimed (emphasis added).
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Jugement déclaratoire - Il ne peut être fait opposition à une instance au motif qu'elle ne vise que l'obtention d'un jugement déclaratoire, et la Cour peut faire des déclarations de droit qui lient les parties à l'instance, qu'une réparation soit ou puisse être demandée ou non en conséquence.
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[17] In my view, Rule 64 does not assist the Applicant. This Rule states that this Court cannot refuse to hear a claim solely because a party seeks a declaration. However, the Rule cannot operate in the absence of an underlying application. Rule 64 speaks to relief and not to the proceedings. In other words, there must be some basis on which the application is brought and not merely some abstract desire to obtain clarification or a hammer with which to negotiate further. The Court functions and provides judicial oversight in the face of some alleged actions. Absent a factual foundation within the jurisdiction of the Court, remedies are meaningless. In this case, the Court is declining to judicially review a decision because its jurisdiction is ousted by the operation of the Collective Agreement and PSSRA. The nature of the remedy sought by Mr. Pieters is a secondary issue and need only be considered if this Court first satisfies itself that it has the jurisdiction to review Ms. Brouillette's conduct.
Conclusions
[18] Given the conclusion that this Court has no jurisdiction to hear this matter, it is not necessary to consider whether Mr. Pieters' application is moot or whether this Court can award damages in the context of a judicial review.
[19] For these reasons, this motion by the Respondent will be allowed. The Respondent seeks costs in the amount of $750. In the circumstances of this case, the costs will be awarded as requested.
ORDER
THIS COURT ORDERS THAT:
1. The Application commenced by way of the Notice of Application filed September 29, 2003 is dismissed, without leave to amend;
2. Costs, in the amount of $750, are awarded to the Respondent.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1789-03
STYLE OF CAUSE: SELWYN PIETERS v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 6, 2004
REASONS FOR ORDER
AND ORDER BY: Snider, J.
DATED: January 9, 2004
APPEARANCES BY:
Mr. Selwyn Pieters For the Applicant
Mr. Joseph Cheng For the Respondent
SOLICITORS OF RECORD:
Selwyn Pieters For the Applicant
Toronto, Ontario
Morris Rosenberg For the Respondent
Deputy Attorney General of Canada
FEDERAL COURT
Date: 20040109
Docket: T-1789-03
BETWEEN:
SELWYN PIETERS
Applicant
- and -
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR ORDER
AND ORDER
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