Galarneau v. Canada (Attorney General), 2004 FC 718

Date: 20040518

Docket: T-2414-03

Citation: 2004 FC 718

BETWEEN:

HÉLÈNE GALARNEAU

Plaintiff

and

THE ATTORNEY GENERAL OF CANADA

and

CORRECTIONAL SERVICE OF CANADA (CSC)

Defendants

REASONS FOR ORDER

RICHARD MORNEAU, PROTHONOTARY

Introduction

[1]        The defendants' motion at bar raises the question of whether in a class action this Court should dismiss, before the motion for authorization is heard, the plaintiff's action filed with a class action in mind.

[2]        The defendants sought to have this action dismissed on the ground that this Court lacked jurisdiction ratione materiae, essentially because a grievance and arbitration procedure existed under the collective agreement signed between the parties.

[3]        The defendants drew this question to the Court's attention through a motion to strike the plaintiff's statement of claim and dismiss her action pursuant to paragraphs 208(d) and 221(1)(a) of the Federal Court Rules, 1998 (the Rules).^[1]

[4]        It appeared that the question raised is probably being considered in this Court for the first time.

Background

[5]        The plaintiff Hélène Galarneau is a correctional officer employed by Correctional Service Canada pursuant to the Corrections and Conditional Release Act, S.C. 1992, c. 20.

[6]        In her statement of claim Ms. Galarneau asked to be allowed to represent:

[TRANSLATION]

Any person working or having worked in a penitentiary in Quebec as Correctional Officer 1 or 2, and who in his or her workplace was or is currently exposed to smoke resulting from the use of tobacco.

[7]        The plaintiff complained that her employer, the defendants, did not observe the obligations to which it was subject under the Non-Smokers' Health Act, R.S.C. 1985 (4th Supp.), c. 15, as amended (paragraphs 4.16 to 4.21 and 7.1 to 7.4 of the statement of claim): she alleged that correctional officers were illegally exposed to secondary cigarette smoke in performing their duties.

[8]        This exposure to secondary smoke allegedly deprived employees of equality and security contrary to section 7 of the Canadian Charter of Rights and Freedoms (paragraphs 7.5 to 7.6 of the statement of claim).

[9]        Additionally, in the plaintiff's submission exposure to secondary smoke was an infringement of occupational health and safety pursuant to the Canada Labour Code, R.S.C. 1985, c. L-2, as amended (paragraph 7.7 of the statement of claim).

[10]      The plaintiff alleged that these infringements were civil wrongs which were a basis for damages, punitive damages and an injunction: hence the proceeding at bar.

[11]      Pursuant to the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the PSSRA), the plaintiff and all correctional officers she sought to represent are employed by Her Majesty in right of Canada, represented by the Treasury Board.

[12]      The plaintiff is also a member of the Union of Canadian Correctional Officers, which is the sole representative of the plaintiff and all Correctional Service employees in the group she is seeking to represent at the Treasury Board.

[13]      On April 2, 2001, the plaintiff and all correctional officers through their union signed a collective agreement, the Convention entre le Conseil du Trésor et le Syndicat des agents correctionnels du Canada - CSN Groupe : Services correctionnels (non surveillants et surveillants) (the collective agreement).

[14]      Questions concerning labour relations and working conditions, conditions of employment and remuneration for the plaintiff as a correctional officer, as well as for all members of the group she is seeking to represent in the class action, are governed by parts 2, 3, 4 and 5 of the collective agreement.

[15]      In particular, the collective agreement describes the measures which the employer should take regarding occupational health and safety. Inter alia, clause 18.01 of the collective agreement provides that:

[TRANSLATION]

The employer shall take every reasonable measure involving the workplace health and safety of employee(s). It shall respond sympathetically to suggestions by the bargaining agent in this connection, and the parties undertake to consult regarding the adoption and rapid implementation of all reasonable procedures and practices designed to prevent or reduce the risk of workplace accidents.

[Emphasis added.]

[16]      The collective agreement further provides a final procedure for settlement of any dispute when an employee feels aggrieved by the employer's inaction on measures involving the occupational health and safety of employees. Clause 20.02 of the collective agreement provides that:

[TRANSLATION]

Subject to section 91 of the Public Service Staff Relations Act, and in accordance with the provisions of the said section, an employee who considers that he or she has been unfairly treated or who is aggrieved by the employer's action or inaction regarding matters other than those arising from the classification process is entitled to file a grievance . . .

[17]      Section 91 of the PSSRA provides:

[18]      Further, in the Canada Labour Code relied on by the plaintiff, Parliament has set out a complete legislative scheme governing labour relations where occupational health and safety are involved.

[19]      Under Part II of the said Code, titled "Occupational Safety and Health", an employee who believes a situation exists which may result in an accident or illness related to holding employment, should file a complaint in this regard with his or her hierarchical supervisor, and in the absence of a settlement the said complaint may be the subject of an inquiry, a decision by a health and safety officer and, finally, a decision by the appeal officer (sections 127.1 et seq. of the said Code).

Analysis

[20]      I intend to undertake this analysis by considering first whether the defendants' motion should be regarded as premature.

[21]      If that is not the case, and accordingly the said motion may be filed before the hearing of the motion for authorization, we will consider whether the essence of the action brought by the plaintiff exhausts the Court's jurisdiction in favour of the procedures laid down in the collective agreement and the Canada Labour Code to settle disputes between the plaintiff and her employer.

I.          Whether defendants' motion to dismiss premature

[22]      Relying essentially on certain judgments of the provincial courts in Quebec, the plaintiff argued that ideally it should be for the judge who has to decide on the merits of the class action to deal with the alleged lack of jurisdiction of the Court ratione materiae.

[23]      In the worst case scenario, the plaintiff maintained that this question should be referred to the judge who has to rule pursuant to subsection 299.12(3) and section 299.17 of the Rules on the motion to authorize the action as a class action.

[24]      In rebuttal of this position, the defendants argued that the very wording of the Rules indicates that their motion is admissible, since the proceeding initiated by the plaintiff is at this stage already an "action" and it is possible to set up paragraphs 208(d) and 221(1)(a) of the Rules against an action.

[25]      I think this position of the defendants is tenable and it is not weakened by the fact that Rule 299.1, which refers to use of the Rules on actions, may be regarded as limited to "class actions", that is an action once it has been authorized to proceed as a class action. Rule 299.1 reads:

[26]      In other words, if the plaintiff's action at bar cannot be challenged at this stage via Rule 299.1, the fact remains that it is still an ordinary action and so paragraphs 208(d) and 221(1)(a) of the Rules are directly and immediately available.

[27]      I also do not think that paragraph 299.18(1)(a) of the Rules is a bar to the defendants' motion at this stage, since by its structure it is limited to determining whether a valid cause of action exists. Determining this Court's jurisdiction ratione materiae is a different matter. Paragraph 299.18(1)(a) reads:

[28]      Further, even if we refer to precedent, it appears that it is possible to make a motion for lack of jurisdiction ratione materiae even before the stage when the action is authorized as a class action.

[29]      It should be borne in mind, first, that this Court's rules on class actions are not based exclusively on the model of any one province, but are drawn from systems existing in Quebec, Ontario and British Columbia.

[30]      As mentioned by the writers Sgayias et al. in their volume titled Federal Court Practice (2004 edition), at page 652:

The new class action rules for the Federal Court were adopted following extensive consultation stimulated by the discussion paper, Class Proceedings in the Federal Court of Canada, published by the Rules Committee in June 2000. The Committee drew upon the experience under the legislative schemes of Quebec, Ontario and British Columbia. However, neither the Committee's initial proposals nor the final rules are modelled on any one of the provincial schemes.

[31]      In this Court, in Always Travel Inc. v. Air Canada, [2003] F.C.J. No. 288, Hugessen J. in making a scheduling order at the start of a contemplated class action considered the possibility that the defendants would make preliminary motions. At paragraph 1 of that judgment, the Court indicated:

[1]            This is a proposed class action proceeding in which I have been appointed as case management judge. At a first case management conference held on November 26, 2002, I heard all counsel and then I gave an order directing first, that the plaintiffs had leave to file an amended statement of claim, and second, that the defendants should file all their preliminary motions by January 13, 2003 including a motion to extend the time for the filing of the statements of defence. The actual terms of the relevant parts of that order are as follows:

1.              Plaintiffs are to serve and file an amended statement of claim no later than December 6, 2002.

2.              All preliminary motions by defendants are to be served and filed by January 13, 2003, including the motion for extension of time to file their defence.

[32]      In Holmes v. London Life Insurance Co. (2000), 50 O.R. (3d) 388, the Ontario Superior Court indicated the following, at 391:

[7] Where the class proceeding is by way of a civil action with a statement of claim, significant issues are routinely dealt with prior to certification. This can include a determination of the merits through summary judgment by way of a Rule 20 motion to the effect that there is no genuine issue for trial. Indeed, the Ontario Court of Appeal has approved the procedure of pre-certification summary judgment motions: Stone v. Wellington (County) Board of Education (1999), 29 C.P.C. (4th) 320 (Ont. C.A.) at p. 322.

[8] It is also not uncommon for a Rule 21 motion to be brought by a defendant asserting that the statement of claim does not disclose any reasonable cause of action.

[9] Rules 20 and 21 apply to civil actions and not to a proceeding commenced by application. An application is summary by nature and is generally a less expensive and more expeditious procedure for determining a dispute: see Zavitz Technology Inc. v. 146732 Canada Inc. (1991), 49 C.P.C. (2d) 26 (Ont. Gen. Div.) at paras. 43-45. In this sense, an application by its inherent nature involves a streamlined procedure that is similar to that seen in respect of motions under Rules 20 and 21. The applicant in the case at hand chose to proceed by way of application.

[33]      In 2001, in Moyes v. Fortune Financial Corp., [2001] O.J. No. 4455, that same Court, dismissing a motion for summary judgment before the stage at which the class action was authorized, nevertheless made a point of indicating the following regarding preliminary motions:

Having said that, however, I do not wish to be seen as attempting to lay down any general rule that does not allow of exceptions. I recognize that there are some preliminary motions which may necessarily need to be determined in advance of a certification motion. The most obvious is a motion under Rule 21 for a determination that the claim does not disclose a reasonable cause of action. While the existence of a reasonable cause of action is a consideration on the certification motion, the practical reality is that, if the defendant can establish there is no reasonable cause of action revealed by the statement of claim at all, there would be a strong argument in favour of determining that discreet issue before all of the costs attendant on a certification motion were incurred by the parties.

[34]      On the situation in Quebec, I think like the defendants that the prevailing line of authority in that province is that it is proper to raise the lack of jurisdiction ratione materiae at the first opportunity. A very complete review of the position is contained in the reasons of Crépeau J. of the Quebec Superior Court in that Court's judgment of December 17, 2002, in Option Consommateurs v. Servier Canada inc., [2002] J.Q. No. 5672.

[35]      Since it will support their analytical viewpoint, it is worth citing this judgment, at paragraph 64, the stage where the Court is reviewing the comments of the writer Yves Lauzon and the judgment of Taschereau J. in Laprise v. Boisclair, S.C. (Québec) No. 200-06-000006-000:

[TRANSLATION]

64        CLASS ACTION: YVES LAUZON, Éditions Yvon Blais Inc., 2001. At page 22, Mr. Lauzon writes:

In view of this procedural structure peculiar to the class action, and in particular the very nature of the authorization procedure, the courts have systematically dismissed preliminary motions on points which are expressly part of the authorization argument under articles 1002 and 1003 C.C.P.

65        At the same time, the writer goes on:

Further, in the logic of the principle stated above, preliminary motions on points other than those covered in the authorization criteria have been held to be admissible because they did not overlap that procedure.

66        The writer adds:

Jurisdiction ratione materiae:

Motions to dismiss relying on lack of jurisdiction ratione materiae in the Superior Court have accordingly been found admissible at the authorization stage. This is a fundamental question which must be raised at the first opportunity. It must be decided first, because the Court must necessarily have jurisdiction ratione materiae to rule on the authorization criteria.

67        On jurisdiction ratione loci, Yves Lauzon notes that in Masson the Court of Appeal suggested that this point could and should be decided by the judge hearing the motion for authorization, as the trial judge had done.

68        The writer also cited two other judgments of the Superior Court on a motion for a declinatory exception, dealing with jurisdiction ratione loci at the authorization stage, namely:

Larochelle v. St-Hubert, [1998] J.Q. No. 4704, Superior Court of Longueuil, No. 505-06-000001-979, March 24, 1998, Gilles Mercure J.: What disposition would you like?

Recherches Internationales Québec v. Cambior, [1998] Q.J. No. 2554, Montréal Superior Court, Maughan J., J.E. 98-1905.

69        Laprise v. Boisclair, Superior Court, Québec District, No. 200-06-000006-000, Georges Taschereau J.

70        In a motion for authorization to bring a class action by the applicant recipient of employment assistance benefits v. The Minister of Solidarité sociale and the Attorney General of Quebec, Georges Taschereau J. allowed a motion for a declinatory exception on the ground of lack of jurisdiction of the Superior Court ratione materiae before the motion for authorization was heard. The motion for authorization was dismissed on the declinatory exception on the ground that the applicant had to apply to the Tribunal administratif of Quebec, on which the Act respecting administrative justice had conferred exclusive jurisdiction over decisions of the Minister made pursuant to the Act respecting income support and employment and social solidarity.

71        Relying on articles 1010.1 and 1012 C.C.P., the Court wrote:

The jurisdiction ratione materiae of a court with a case before it is a question of substance, and a declinatory exception based on the want of such jurisdiction can be raised under any circumstances pursuant to article 165 C.C.P.

Art. 165

The defendant may ask for the dismissal of the action if:

1. There is lis pendens or res judicata;

2. One of the parties is incapable or has not the necessary capacity;

3. The plaintiff has clearly no interest in the suit;

4. The suit is unfounded in law, even if the facts alleged are true.

This rule is a rule of public order. Thus, a Court hearing a motion on this question must make a ruling at once. Other arguments and the substance of the case itself should not be decided by a Court which might later be found to lack jurisdiction.

. . . . .

If the Superior Court does not have jurisdiction ratione materiae over a case, logically it is hard to conceive how it would have any more jurisdiction to hear the motion for authorization to file a class action. Its jurisdiction ratione materiae to dispose of the motion for leave to bring a class action is essentially based on its jurisdiction ratione materiae on the substance of the case.

72        In Ville de Montréal v . La Procureur Générale du Québec et Paolo Vena, 500-06-000102-000, François Bélanger J. in a judgment of September 6, 2000, allowed a declinatory exception to a motion for authorization to bring a class action.

73        The Court said the following:

The applicants argued in limine litis that this Court should recognize it does not have jurisdiction because of the subject-matter before it, and moreover, the respondent does not have the necessary legal interest.

After hearing the parties and considering the extensive precedents cited, this Court first comes to the conclusion that a declinatory exception ratione materiae may be made to the action initiated by the respondent.

74        The motions for declinatory exceptions ratione materiae were allowed with costs.

75        On appeal, by a judgment rendered on September 11, 2002, from the bench, the Court of Appeal affirmed the judgment of François Bélanger J., adding that only the Municipal Court had jurisdiction to dispose of any application regarding costs and decide any point of law relating to the action the appellant Paolo Vena wished to bring, and it accordingly dismissed the appeal with costs.

[Emphasis added.]

[36]      In analysis, Crépeau J. summarized as follows his understanding of the state of the law on declinatory exceptions ratione materiae:

[TRANSLATION]

DECLINATORY EXCEPTIONS RATIONE MATERIAE:

103      Yves Lauzon is categorical: such exceptions should be heard before the authorization.

104      In Hotte v. Servier, the Court of Appeal in a case of lis pendens allowed the motion before authorization.

105      Georges Taschereau J. allowed the motion before authorization.

106      The Court of Appeal upheld the judgment of Bélanger J. in Procureure Générale et Paolo Vena and allowed the declinatory exception before authorization.

107      In Laboratoires Abbott, Ryan J. disallowed it at the authorization stage but Laberge J. allowed it on the merits of the action.

108      In Projet Genèse et Garantie Universelle, Guthrie and Trudel JJ. disallowed the declinatory exception before authorization and referred the decision back to the authorization judge.

109      Accordingly, with all due respect, we can conclude that in general the Superior Court and the Court of Appeal have remained faithful to the decision in Thompson v. Masson and referred motions for declinatory exceptions ratione loci back to the authorization judge.

110      At the same time, in questions of jurisdiction ratione materiae or lis pendens, the Court of Appeal and the Superior Court have decided on the Court's jurisdiction before authorization in three cases and two judges have referred the motion back to the authorization.

111      Prof. Lauzon recommends the approach preliminary to authorization.

(See also the judgment by the Quebec Superior Court on June 13, 2003, in Nutri-Mer inc. v. Avantage Link inc., [2003] J.Q. No. 7469, at paragraphs 8 to 19.)

[37]      At the same time, the plaintiff vigorously argued that at the present stage the class action aspect of the proceeding at bar has not yet been defined and that a series of points of law and fact can only be decided upon as a whole at the stage of the merits, or at least at the authorization stage.

[38]      I think this argument by the plaintiff rests squarely on a false dilemma, where determining the Court's jurisdiction ratione materiae is concerned. Allowing such an argument would give the rules of this Court on class actions a power of conferring jurisdiction. That cannot be the case. Further, as Taschereau J. clearly stated in a passage from Laprise, supra, at paragraph [35], regarding the rule of jurisdiction ratione materiae:

[TRANSLATION]

This rule is a rule of public order. Thus, a Court hearing a motion on this question must make a ruling at once. Other arguments and the substance of the case itself should not be decided by a Court which might later be found to lack jurisdiction.

. . . . .

If the Superior Court does not have jurisdiction ratione materiae over a case, logically it is hard to conceive how it would have any more jurisdiction to hear the motion for authorization to file a class action. Its jurisdiction ratione materiae to dispose of the motion for leave to bring a class action is essentially based on its jurisdiction ratione materiae on the substance of the case.

[39]      This approach of determining jurisdiction ratione materiae on a preliminary basis in relation to the individual action filed is clearly also taken by the Superior Court in Nutri-Mer inc., supra, paragraph [36], at paragraph 16 of the said judgment, and by Langlois J. of the Quebec Superior Court at paragraph 29 of her judgment of January 16, 2004, in Union des consommateurs v. Dell Computer Corporation, [2004] J.Q. No. 155.

[40]      Consequently, it is clear that we may conclude that in the case at bar the defendants' motion raising this Court's want of jurisdiction ratione materiae is not premature. It is now necessary to consider whether the essence of the action brought by the plaintiff exhausts the jurisdiction of this Court in favour of the procedures laid down in the collective agreement and the Canada Labour Code to settle the dispute between the plaintiff and her employer.

II.        This Court's jurisdiction on the action brought by the plaintiff

[41]      I agree with the defendants - and the plaintiff did not really dispute this aspect - that it is clear from reading her statement of claim that the essence of the action brought by her arises from her working conditions as a correctional officer. In fact, the plaintiff referred to an occupational health and safety infringement as the basis for her action.

[42]      Taking the allegations of fact in the plaintiff's statement of claim as proven, it is clear the latter has a remedy under the collective agreement or the Canada Labour Code, to which she expressly referred in her pleadings.

[43]      It appeared that in a series of judgments rendered in the last 20 years, the Supreme Court of Canada has several times ruled on the lack of jurisdiction of ordinary courts to settle disputes on working conditions when a dispute settlement procedure exists in the matter.

[44]      A consensus clearly emerges from these judgments: traditional courts are not competent to hear disputes arising out of a collective agreement or those governed by labour relations legislation.

[45]      Accordingly, in St. Anne Nackawic Pulp & Paper v. CPU, [1986] 1 S.C.R. 704 (St. Anne), after obtaining an interlocutory injunction against an illegally striking union, an employer brought an action in tort against the union for damages caused by the illegal strike. The employer argued that, when it can be said that the application is purely a common law application and does not depend on the collective agreement for its validity, the compulsory arbitration clause in the Act does not apply.

[46]      The Court rejected this argument before concluding, at 718 and 719, that allowing concomitant actions at law would have the effect of undermining the purpose of the Act:

The collective agreement establishes the broad parameters of the relationship between the employer and his employees. This relationship is properly regulated through arbitration and it would, in general, subvert both the relationship and the statutory scheme under which it arises to hold that matters addressed and governed by the collective agreement may nevertheless be the subject of actions in the courts at common law. These considerations necessarily lead one to wonder whether the Miramichi case, supra, and cases like it, would survive an objection to the Court's jurisdiction if decided today. The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks.

[47]      Later, at 721, it confirmed the evolution of the law on the point:

What is left is an attitude of judicial deference to the arbitration process. This deference is present whether the board in question is a 'statutory' or a private tribunal (on the distinction in the labour relations context, see [1982] 2 S.C.R. 888">Roberval Express Ltée v. Transport Drivers, Warehousemen and General Workers Union, Local 106, [1982] 2 S.C.R. 888, [1962] S.C.R. 318">Howe Sound Co. v. International Union of Mine, Mill and Smelter Workers (Canada), Local 663, [1962] S.C.R. 318, affirming (1961), 29 D.L.R. (2d) 76, Re International Nickel Co. of Canada and Rivando, [1956] O.R. 379 (C.A.)). It is based on the idea that if the courts are available to the parties as an alternative forum, violence is done to a comprehensive statutory scheme designed to govern all aspects of the relationship of the parties in a labour relations setting. Arbitration, when adopted by the parties as was done here in the collective agreement, is an integral part of that scheme, and is clearly the forum preferred by the legislature for resolution of disputes arising under collective agreements. From the foregoing authorities, it might be said, therefore, that the law has so evolved that it is appropriate to hold that the grievance and arbitration procedures provided for by the Act and embodied by legislative prescription in the terms of a collective agreement provide the exclusive recourse open to parties to the collective agreement for its enforcement.

[48]      In Gendron v. Supply and Services Union of the Public Service Alliance of Canada, [1990] 1 S.C.R. 1298, the Supreme Court of Canada again had to determine the jurisdiction of the ordinary courts, this time under the Canada Labour Code. In that case, the Court had to rule on the Superior Court's jurisdiction to hear a claim by an employee based on the failure of a union to perform its duty of fair representation. On this occasion, therefore, the procedure was set out in the Act, not the collective agreement.

[49]      Applying the same principles as were stated in St. Anne, L'Heureux-Dubé J. wrote:

It is clear then that this Court has enunciated a principle of deference, not only to decision-making structures under the collective agreement but as well to structures set up by labour legislation and in general, to specialized tribunals operating within their fields of expertise. When the relevant statute requires collective agreements to provide for the final and binding settlement of disputes, it becomes difficult if not impossible to distinguish St. Anne, supra, and similarly reasoned cases on the basis that the issue in those cases concerned the relationship between contractual dispute resolution and the jurisdiction of the ordinary courts, not the relationship between statutory dispute resolution and the courts. The concern that recourse to the ordinary courts may jeopardize the comprehensive dispute resolution process contained in labour relations legislation is one that arises in this latter situation as well. Allowing parties to disputes which, by their very nature, are those contemplated and regulated by labour legislation, to have recourse to the ordinary courts would fly in the face of the demonstrated intention of Parliament to provide an exclusive and comprehensive mechanism for labour dispute resolution, particularly in the context of the present case.

[50]      In Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 (Weber), the Supreme Court of Canada again ruled on the lack of jurisdiction in ordinary courts to hear disputes arising out of collective agreements, in connection with a claim for damages, in particular under the Canadian Charter of Rights and Freedoms (the Charter).

[51]      A majority of the Court adopted "the exclusive jurisdiction model" as follows:

The final alternative is to accept that if the difference between the parties arises from the collective agreement, the claimant must proceed by arbitration and the courts have no power to entertain an action in respect of that dispute. There is no overlapping jurisdiction. [at 956]

. . . . .

In the majority of cases the nature of the dispute will be clear; either it had to do with the collective agreement or it did not. Some cases, however, may be less than obvious. 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. [at 956]

[52]      Summarizing the exclusive jurisdiction model, the Court concluded at 959:

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 . . .

[53]      On the claim pursuant to the Charter, the Court wrote:

In applying the law of the land to 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. For example, a labour arbitrator can consider the Charter, find laws inoperative for conflict with it, and go on to grant remedies in the exercise of his powers under the Labour Code: Douglas/Kwantlen Faculty Assn. v. Douglas College, supra. If an arbitrator can find a law violative of the Charter, it would seem he or she can determine whether conduct in the administration of the collective agreement violates the Charter and likewise grant remedies. [at 960]

[54]      The rules stated above are also applicable in class actions. The unanimous judgment of the Quebec Court of Appeal in Carrier v. Québec, [2000] J.Q. No. 3048, per Gendreau J.A., in comments echoing those of Taschereau J. in Laprise (see paragraph [35], supra), affirmed at paragraph 55 of his decision that the class action had not altered the Court's jurisdiction ratione materiae:

[TRANSLATION]

The provisions of the Code of Civil Procedure on class actions are purely procedural and create no substantive rights. Thus, it cannot be concluded from the fact that the class action must be brought in the Superior Court that a special system has been created which supersedes the rules on jurisdiction.

[55]      In Bisaillon v. Concordia University, [2003] J.Q. No. 4279, the Quebec Superior Court had before it a motion to dismiss in circumstances similar to those at bar. In that case, the plaintiff wished to represent all the members of the Concordia University retirement plan in an action for damages and a motion for a declaratory judgment.

[56]      Most of the Concordia University employees belonged to the union with which the university had a collective agreement.

[57]      The Superior Court accordingly had before it a motion to dismiss on the ground that it lacked jurisdiction to hear the motion for authorization of the class action. It was argued that only the arbitrator provided for by the collective agreement had jurisdiction to hear the dispute. Citing Weber, the Court wrote at paragraph 51:

[TRANSLATION]

In Ste-Anne Nackawic, the Court of Appeal and the Supreme Court of Canada both emphasized that the analysis of whether a case falls under the exclusive arbitration clause should be based not on the legal questions which may be raised but on the facts surrounding the dispute between the parties. The question is not whether the action, defined in legal terms, is independent of the collective agreement, but whether the dispute is one "arising under the collective agreement". If, regardless of how it may be classified in legal terms, the dispute arises from the collective agreement, only the labour tribunal can hear it, to the exclusion of courts of law.

[58]      It is true that the Superior Court's judgment in Bisaillon was reversed on appeal (see the Quebec Court of Appeal judgment of March 31, 2004, in case 500-09-013 403-035). However, the fundamental rules stated by the Superior Court still stand since the Quebec Court of Appeal reversed the trial judgment on the ground that, at paragraph 10 of its decision, it considered that the subject of the dispute had nothing to do with the collective agreement under consideration.

[59]      The plaintiff nevertheless raised two arguments against this exclusive settlement procedure contained in the collective agreement and the Canada Labour Code.

[60]      First, she argued that nothing in the collective agreement, the PSSRA or the Canada Labour Code provides that employees are bound to proceed by grievance or by the dispute resolution procedure set out therein, since clauses 20.02 and 20.23 of the collective agreement, subsection 91(1) of the PSSRA and the sections of the Canada Labour Code state that the employee "is entitled to" or "may" file a complaint with arbitration or submit a grievance. Consequently, it should be understood that employees who have other remedies are entitled to use them.

[61]      I think this reasoning is clearly wrong. It is apparent that an employee does not have to use a remedy. However, if he wishes to act he must do so exclusively through the grievance or complaint procedures. The exclusive and binding nature of these procedures was recently confirmed by this Court as follows, in Bédirian v. Attorney General of Canada, 2004 FC 566 (judgment of Tremblay-Lamer J., dated April 14, 2004).

[12]     The right of a public employee, unionized or not, to file a grievance and to refer it to arbitration is specifically provided in the PSSRA.

. . . . .

[14]     In Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, the Supreme Court of Canada adopted the exclusive jurisdiction model when a dispute is within the jurisdiction of the arbitrator or adjudicator.

[15]     In Regina Police Ass. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, the Court held that the key question in each case is whether the essential character of a dispute, in its factual context, arises either expressly or inferentially from a statutory scheme.

[16]     The comprehensiveness of the schemes provided by the PSSRA was affirmed by the Federal Court of Appeal in Johnson-Paquette v. Canada (2000), 253 N.R. 305. Noël J.A., speaking for the Court, stated:

[10] Parliament's will to exclude the intervention of the courts in labour relation disputes may therefore be expressly stated or arise by necessary implication. Where, as is the case for the PSSRA, Parliament has, through legislation, adopted what is obviously intended as a full code for the resolution of labour disputes in a given sector of activity and has made the outcome of the legislative processes final and binding on those concerned, it would offend the legislative scheme to permit recourse to ordinary courts which have not been assigned with these tasks. In order to give effect to such schemes, Parliament must be taken as having excluded recourse to the ordinary courts.

[Emphasis added.]

[62]      The same position on the binding nature was taken by Rouleau J. of this Court on March 8, 2004, at paragraph 11 of his judgment in Brenda Bonner v. Via Rail Inc., [2004] F.C. 406, as follows (decision since appealed to the Federal Court of Appeal on April 15, 2004, case A-210-04):

[11]          I do not agree with this submission. The jurisprudence is well established that any dispute which arises from a collective agreement must be settled following a mandatory arbitration process. The Supreme Court of Canada recently confirmed this principle of law in Goudie v. City of Ottawa, 2003 S.C.C. 14, wherein it stated as follows:

It is well established that a dispute between an employer and an employee that arises in its essential character from the interpretation, application, administration or violation of a collective agreement is to be determined not in the courts but according to the arbitration provisions in the collective agreement.

                                    . . .

The principle that disputes arising under a collective agreement should be resolved by labour arbitrators, not courts, is based on legislative intent. In St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, Estey J. laid down the general principle at pp. 718-19:

The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks.

Subsequent cases have confirmed that if the dispute between the parties in its "essential character" arises from the interpretation, application, administration or violation of the collective agreement, it is to be determined by an arbitrator in accordance with the collective agreement, and not by the courts. See Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, at paras. 41 and 52, and Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14">2000 SCC 14, at paras. 23 and 25.

[63]      Further, this exclusive and binding nature must apply whether or not the employee has initiated the resolution procedure in the collective agreement or Canada Labour Code. Otherwise it would mean that access to the ordinary courts is subject to the wishes of the employee. Such a result is inconceivable.

[64]      Secondly, the plaintiff argued that her action contains as a remedy an application for an injunction and that in Weber the Supreme Court of Canada referred, with reference to its decision in St. Anne, to the residual power of the ordinary courts to issue injunctions in labour relations matters.

[65]      I think this argument clearly takes us into a false trail in the case at bar.

[66]      In St. Anne the Supreme Court, at 729 inter alia, referred to this power in the courts to issue injunctions, but in connection with illegal strikes and in the absence of other effective measures. I do not think that in Weber the Supreme Court sought to go in any further when it discussed the judgment of Estey J. in St. Anne at 957 and 959.

[67]      There is no question of prohibiting an illegal strike here. Further, at subsections 127.1(6), 128(8), 129(6) and 145(2) the Canada Labour Code sets out an effective procedure that would allow the plaintiff to terminate the dangerous situation to which she refers:

[68]      It is this same logic that was referred to by the Ontario Court of Appeal in Gaignard v. Canada (Attorney General), [2003] O.J. No. 3998, when on October 17, 2003, it indicated the following, at paragraph 18 of its judgment:

18             The third consideration is whether the arbitration process provided by the collective agreement can furnish an effective remedy for the dispute. The remedy need not be identical to that which the court would provide, but it must be responsive to the wrong complained of. The arbitration process does not acquire exclusive jurisdiction if the result is a real deprivation of any ultimate remedy. McLachlin J. put this point as follows in Weber at pp. 958-959:

It might occur that a remedy is required which the arbitrator is not empowered to grant. In such a case, the courts of inherent jurisdiction in each province may take jurisdiction. This Court in St. Anne Nackawic, [1986] 1 S.C.R. 704, confirmed that the New Brunswick Act did not oust the residual inherent jurisdiction of the superior courts to grant injunctions in labour matters (at p. 724). Similarly, the Court of Appeal of British Columbia in Moore v. British Columbia (1988), 50 D.L.R. (4th) 29, at p. 38, accepted that the court's residual jurisdiction to grant a declaration was not ousted by the British Columbia labour legislation, although it declined to exercise that jurisdiction on the ground that the powers of the arbitrator were sufficient to remedy the wrong and that deference was owed to the labour tribunal. What must be avoided, to use the language of Estey J. in St. Anne Nackawic (at p. 723), is a "real deprivation of ultimate remedy".

[69]      Accordingly, the plaintiff's action in the case at bar is not asking the Court to seek to exercise its residual power over injunctions. Further, as illustrated by the following passage from Mundle v. Canada, [1994] F.C.J. No. 1342, at paragraphs 8 to 12, the obtaining of an injunction against the government is prohibited and, when it is allowed in special situations, it must be sought by an application for judicial review:

8          I have concluded that the stay or injunction should not be granted because I do not believe the plaintiff-applicant has raised a serious issue.

9          In my view the relief sought can only be obtained in judicial review proceedings. This action is framed as an action against the Crown and against one of the Ministers of the Crown. According to the jurisprudence of the Federal Court of Appeal [see footnote 3 below] an injunction may not be granted against the Crown. It has also been held in the Trial Division that injunctive relief is not available against any Minister of the Crown in Crown proceedings except perhaps where it is alleged he is doing something beyond his authority [see footnote 4 below]. This position has been codified by statute in section 22 of the Crown Liability and Proceedings Act [see footnote 5 below] which provides as follows:

22. (1) Where in proceedings against the Crown any relief is sought that might, in proceedings between persons, be granted by way of injunction or specific performance, a Court shall not, as against the Crown, grant an injunction or make an order for specific performance, but in lieu thereof may make an order declaratory of the rights of the parties.

(2) A Court shall not in any proceedings grant relief or make an order against a servant of the Crown that it is not competent to grant or make against the Crown.

This, it must be emphasized, pertains to proceedings against the Crown. Such proceedings properly involve the contractual or proprietary obligations or interests of the Crown, its civil liability, its fiduciary duties, etc. Judicial review under section 18 of the Federal Court Act is not a proceeding against the Crown. Rather it is a proceeding to review decisions of federal boards, commissions or other tribunals, or federal officers, and is normally brought against those who were adverse in interest to the applicant in respect of that decision. Section 18 is also broad enough to cover proceedings against the Attorney General of Canada to obtain declaratory relief against him. It is clear that pursuant to paragraph 18(1)(a) the Court can issue an injunction against federal boards, commissions, officers, etc. in such proceedings. It was surely not the intention of Parliament to abolish, by section 22 of the Crown Liability and Proceedings Act, the right to an injunction under section 18 of the Federal Court Act. This makes clear that the two sections are dealing with different kinds of proceedings.

Note 3: Grand Council of the Crees (of Quebec) et al v. The Queen et al [1982] 1 F.C. 599.

Note 4: Whelan v. Minister of National Defence et al (1985), 10 Admin. L.R. 2000 (F.C.T.D.).

Note 5: R.S.C. 1985, c. C-50.

10        The net result is that an injunction or a stay in the nature of an injunction can be sought against servants of the federal Crown in the course of judicial review but not otherwise. The power to grant such a stay has been expressly given to the Trial Division in the present section 18.2 of the Federal Court Act, and that power had been held to exist by implication prior to that time. Thus the plaintiff cannot succeed on this application for an injunction, made in the course of an action against the Crown because in such an action he cannot obtain injunctive relief against the Crown or against a servant of the Crown.

11        Nor can the plaintiff obtain a stay or injunction under subsection 18(1) of the Federal Court Act because of the provisions of subsection 18(3) which are as follows:

18. (3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.

This is not an application under section 18.1 which has its own procedure and a timetable thought appropriate for judicial review.

12        While I would be somewhat reluctant to dismiss this application solely on procedural grounds, valid though they are, I am of the view that the plaintiff could not succeed even if his proceedings were properly framed.

(Mundle was followed in McKay v. Canada (Minister of Fisheries and Oceans), [1998] F.C.J. No. 1818, paragraphs 2 to 4).

[70]      Accordingly, it can be concluded on this aspect of our analysis that the essence of the action brought by the plaintiff exhausts this Court's jurisdiction in favour of the procedures provided in the collective agreement and the Canada Labour Code for resolution of the dispute between the plaintiff and her employer.

[71]      For all these reasons, the motion to strike the plaintiff's statement of claim and dismiss her action under paragraphs 208(d) and 221(1)(a) of the Rules will be allowed with costs. An order will be made accordingly.

Montréal, Quebec

May 18, 2004

Certified true translation

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

                                     FEDERAL COURT

                              SOLICITORS OF RECORD

DOCKET:                                                                   T-2414-03

STYLE OF CAUSE:                                                   HÉLÈNE GALARNEAU

                                                                                                 Plaintiff

and

THE ATTORNEY GENERAL OF CANADA

and

CORRECTIONAL SERVICE OF CANADA (CSC)

                                                                                           Defendants

PLACE OF HEARING:                                             Montréal, Quebec

DATE OF HEARING:                                               April 22, 2004

REASONS FOR ORDER BY:                                  Richard Morneau, prothonotary

DATED:                                                                      May 18, 2004

APPEARANCES:

Pierre Sylvestre                                                             for the Plaintiff

Iris Montini

André Lespérance                                                         for the Defendants

Marie Marmet

SOLICITORS OF RECORD:

Sylvestre, Charbonneau, Fafard                                     for the Plaintiff

Montréal, Quebec

Morris Rosenberg                                                          for the Defendants

Deputy Attorney General of Canada