Vaughan v. Canada, docket T-133-99

                                            

     Date: 20000131

Docket: T-133-99

BETWEEN:

WILLIAM THOMAS VAUGHAN

Plaintiff

- and -

HER MAJESTY THE QUEEN

Defendant

REASONS FOR ORDER AND ORDER

ARONOVITCH P.

[1]      Mr. Vaughan and Ms. Edwards, the plaintiff in Court file T-385-99, have commenced separate actions for damages in tort against the defendant. The defendant has moved to strike out the actions for want of cause of action on the basis that the Court has no jurisdiction to entertain these claims. The two actions deal with similar facts and are sought to be struck on the same basis. As a result, pursuant to the Court"s Order dated June 18, 1999, the applications were ordered to be heard together.

[2]      While it is common ground that the same principles of law apply to the two cases, the facts in each are sufficiently different to have led me to separate conclusions. I have therefore chosen to write separate reasons.

[3]      For the purposes of this motion, the plaintiff"s assertions of fact are to be taken as proved. I will therefore commence with a summary of the facts as alleged in his claim.

[4]      The plaintiff was employed as a Mechanical Engineer with the Department of Public Works from 1975 to 1996. In October 1994, the plaintiff was informed that he was surplus to requirements due to lack of work effective October 12, 1994 with a scheduled lay-off date of April 12, 1995.

[5]      Article 1.1.14 of the Work Force Adjustment Directive (AWFAD@), which has been deemed to be part of the plaintiff"s collective agreement, provides that the surplus period is to be extended until at least one reasonable job offer is made. On February 17, 1995, a job was offered to Mr. Vaughan. It was, however, conditional.

[6]      In the meantime, Mr. Vaughan had become aware of a further alternative to either accepting or rejecting the offer made to him, namely, to leave the public service under the terms of the Early Retirement Incentive (AERI@) benefit program.

[7]      On March 6, 1995, he requested ERI benefits, effective April 1, 1995 and confirmed his decision to retire from the public service on May 24, 1995. As benefits are not available under the ERI program if an employee has received a reasonable job offer before leaving the public service, Mr. Vaughan"s request for ERI benefits was denied on the grounds that he had received such an offer.

[8]      The plaintiff grieved the determination that the job offer made on February 17, 1995 was a reasonable offer and alleged that the provisions of the WFAD had been contravened. The National Joint Council which considered the grievance found in Mr. Vaughan"s favour and extended his surplus period.

[9]      On December 24, 1996, in response to the decision of the National Joint Council, the plaintiff was offered an unconditional indeterminate position equivalent to the position previously occupied by him. He accepted the offer on January 10, 1997. Roughly a week later in a telephone conversation, he informed the Regional Director of his prior commitments in the private sector and requested that he be given several months to fulfill his professional responsibilities. He was informed, by letter, that his appointment was effective February 17, 1997, and that a failure to report for duty would be considered a refusal of the reasonable job offer.

[10]      On February 13, 1997, the plaintiff informed the respondent that he intended to take his grievance to the next level because the job offer did not address the substance of his March 4, 1996 grievance, that is, his entitlement to ERI benefits. The defendant deemed this step on the part of the plaintiff to constitute the refusal of a reasonable job offer. At the next level of the grievance process, the Executive Committee of the National Joint Council concluded that the first job offer was not within the intent of the WFAD. The grievance was then referred to the Public Service Staff Relations Board for adjudication.

[11]      The adjudicator upheld the National Joint Council and concluded that the plaintiff"s layoff of February 23, 1996, was invalid and that his surplus period should have been extended. The adjudicator also concluded that the plaintiff"s refusal to report for work, as of February 17, 1997, constituted the refusal of a reasonable job offer resulting in the plaintiff being laid off as of that date and entitled to separation benefits pursuant to the WFAD . As to the plaintiff"s claim for ERI benefits, the adjudicator concluded that he did not have jurisdiction to consider the ERI claim since eligibility for ERI did not arise from the collective agreement.

[12]      In the result, the plaintiff alleges that the defendant is negligent and has breached its duty of care to him as a member of the public service in refusing to accept his claim for ERI. He seeks a declaration that he was entitled to ERI as well as damages in the amount of ERI benefits he would have received from April 1, 1995 to the date of judgment.

The grievance regime under the Public Service Staff Relations Act

[13]      Mr. Vaughan"s employment with the federal government is governed by a collective agreement, the Master Agreement between the Treasury Board and the Professional Institute of the Public Service of Canada ("PIPS") made pursuant to the Public Service Staff Relations Act1 (the "PSSRA").

[14]      The payment of ERI as such, is not a specified term of the collective agreement, and is made available in accordance with the Retirement Compensation Arrangement Regulations2, made pursuant to the Special Retirement Arrangements Act3. Clause 35.05 of the Master Agreement, being the applicable collective agreement, provides however, that an employee who has been treated unjustly or considers himself or herself aggrieved "by an action or lack of action by the Employer" "is entitled" to present a grievance as provided in section 91 of the PSSRA .

[15]      I set out, below, subsections 91(1) and 92(1) of the PSSRA in their entirety. The two statutory provisions, together with clause 35.05 of the collective agreement, encapsulate the applicable grievance continuum under the PSSRA.

91.(1)      Where any employee feels aggrieved

(a)      by the interpretation or application, in respect of the employee, of

(i)      a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or

(ii)      a provision of a collective agreement or an arbitral award, or

(b)      as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),

in respect of which no administrative procedure for redress is provided in or under and Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to an including the final level provided for by this Act.

92.(1)      Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a)      the interpretation or application in respect of the employee of a provision of a collective agreement on an arbitral award,

(2)      in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

(i)      disciplinary action resulting in suspension or a financial penalty, or

(ii)      termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or

(3)      in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication. [emphasis added]

[16]      Essentially, a public service employee, in Mr. Vaughan"s circumstances, has a number of levels at which he may present a grievance for adjudication. There is a broad entitlement to grieve under clause 35.05 of the collective agreement as well as section 91 which encompasses both matters arising directly out of the collective agreement and more generally, grievances relating to statutory or other terms of employment. That being said, only certain grievances, culminating at the final level provided for under section 91, may go on to adjudication. Section 92 sets out the nature of grievances which may thereafter be referred to adjudication. These are principally matters arising from the interpretation and application of the collective agreement.

[17]      Section 91 grievances that may not be referred to adjudication pursuant to section 92 are final. Subsection 96(3) of the PSSRA provides that no further action thereon may be taken under the Act:

(3)      Where a grievance has been presented up to and including the final level in the grievance process and it is not one that under section 91 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken thereon.

[18]      To distinguish the nature of the various forms of grievance adjudication, I note that the "adjudicators" at the various grievance levels pursuant to section 91 are not neutral third parties. Rather, they are public service employees in supervisory capacities and may ultimately include the Deputy Minister of a given department. I will refer to these as "grievance officers". The section 92 adjudicator, on the other hand, is a third party neutral adjudicator akin to an arbitrator appointed pursuant to the various labour statutes which impose binding arbitration. The adjudicator has the power and authority to apply the law and issue a binding judgment. The decision of the grievance officer at the final level, as well as that of the adjudicator, is subject to judicial review pursuant to section 18.1 of the Federal Court Act .

The jurisprudence

[19]      Historically, this Court has found the grievance regime provided in the PSSRA to be exhaustive4. In Panagopoulos the Court stated:

"The Public Service Staff Relations Act is a complete code governing the relationship between Her Majesty and her employees. Under the provisions cited above, the grievance procedure is the only remedy open to the plaintiff."

[20]      More recently, the Supreme Court of Canada in Weber v. Ontario Hydro5 was called upon to consider whether parties who had agreed to settle their differences by arbitration under a collective agreement could sue in tort. Weber has subsequently been considered and applied by this Court in determining its jurisdiction to entertain claims in tort from employees whose labour and employment relations are governed by the PSSRA6.

[21]      Weber concerns an employee of Ontario Hydro who was suspended for abusing sick leave. The employer, who suspected Mr. Weber of malingering, hired a private investigator to investigate. The investigator came on to Mr. Weber"s property, and Mr. Weber was subsequently suspended on the basis of the information uncovered by this visit. He grieved the suspension, alleging that the hiring of the private investigator violated the collective agreement. Mr. Weber also commenced a court action seeking damages for the employer"s breach of his rights under the Canadian Charter of Rights and Freedom ("the Charter"). The Ontario Court of Appeal found that the tort action could not stand7. Madame Justice MacLachlin, writing for the majority at the Supreme Court of Canada, agreed with the finding of the Court of Appeal and held that the Charter claim was also precluded by the Ontario Labour Relations Act and the terms of the collective agreement.

[22]      The legislation in Weber, as with most labour statutes, provides for mandatory binding arbitration of all differences arising from the collective agreement. Having reviewed various models for reconciling specialized labour arbitration with the principle of access to the Courts, the Supreme Court concluded that the exclusive jurisdiction model was the approach to follow. This allows the proper deference to the collective bargaining regime and precludes proceedings in a multiplicity of forums by individuals who had agreed to settle their differences through collective bargaining. To decide the appropriate forum in respect of any particular claim or dispute, one has to consider the "essential nature" of the dispute and the ambit of the collective agreement.

"This approach does not preclude all actions in the Courts between employer and employee, only disputes which expressly or inferentially arise out of the collective agreement are foreclose to the Courts."8 [emphasis added]

[23]      A further element was determined to be critical by the Supreme Court, namely the power of the arbitrator to hear the dispute and grant the remedies claimed. The dissenting Justices found that arbitrators are not courts of competent jurisdiction for the purposes of granting Charter remedies. Her Ladyship concluded however, that an arbitrator has the power to apply the law of the land and was able to grant the remedies sought, essentially damages arising out of the breach of the Charter. In the context of that discussion she observed:

"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."9

[24]      Weber was considered in Watt v. Canada10, where both the Trial Division and Court of Appeal dismissed a motion to strike for want of a cause of action. In the Trial Division, Mr. Justice Denault stated:

Insofar as the plaintiff Watt is seeking damages for alleged tortious conduct on the part of the defendants, and to the extent that the conduct alleged is not characterized as either wrongful dismissal, bad faith on the part of the union, conspiracy and constructive dismissal or damage to reputation, it can be argued that, prima facie, the nature of the present dispute seemingly engages the exclusive jurisdiction of the Courts.

[25]      Justice Denault had earlier concluded, with regard to plaintiff"s claim for negligent misrepresentation and abuse of public office, that the applicable collective agreement could not have provided him with the "pecuniary remedy" which he was seeking. The Court retained jurisdiction.

[26]      The Federal Court of Appeal agreed with Justice Denault"s reasoning and conclusion:

...Nevertheless, it is our opinion that he made no mistake in his analysis of the causes of action that sustain the statement of claim and in his conclusion that, at first blush, neither of them falls clearly under the exclusive grievance and arbitration provisions of the collective agreement. The alleged negligent misrepresentations and so-called abuse of public office of which the plaintiff says he was the victim would have taken place prior to the existence of the employment relationship which, in our view, was sufficient reason to refuse to accept that the provisions of the collective agreement would necessarily preclude the action.

Counsel has insisted on the Supreme Court decision of Weber v. Ontario Hydro as authority for his submissions. While it is true that the action there was somewhat similar to the present one, there was a decisive difference between the two: the dispute in Weber, the cause of action, had

arisen during the employment relationship.11 [emphasis added]

[27]      More recently, Madame Justice Tremblay-Lamer, on facts similar to the case at bar, struck out a statement of claim in Johnson-Paquette12. Here the plaintiff alleged negligence in relation to the failure of senior managers to properly deal with her complaints of sexual assault. The plaintiff grieved up to the final level under section 91 of the PSSRA, and was denied. Her grievance was not adjudicable pursuant to section 92 of the PSSRA.

[28]      The decision in Johnson-Paquette held that the negligent conduct of the federal public service employer should be grieved under the collective agreement, by virtue of section M-38.02 of the agreement. ( The language of the section is identical to that of section 35.05 of the Master Agreement referred to above). By virtue of this clause, the employer"s action (or inaction) brings the dispute, at least implicitly, within the bounds of the collective agreement. Thus, Lamer-Tremblay J. held that, by the rule set out in Weber, this Court had no jurisdiction. Her Ladyship concluded:

Where a collective agreement grants exclusive jurisdiction to resolve differences to an arbitrator and another forum is not expressly provided by legislation, the Supreme Court has held, in the case of Weber v. Ontario Hydro, that the arbitrator shall have jurisdiction, exclusive of the Courts, subject only to judicial review.

Underlying both the Court of Appeal and Supreme Court decisions in St. Anne Nackawic is the insistence that the analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed. The issue is not whether the action, defined legally, is "arising under [the] collective agreement". Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the Courts cannot try it.

In the present case, the plaintiff has not exhausted the grievance procedure provided under the PSSRA and the resulting judicial review. She is attempting to seek judicial review of the grievance officer's decision by way of an action for damages in tort - this she cannot do13.

[29]      The defendant argues that the Court"s lack of jurisdiction to entertain this action in tort is beyond doubt. The facts, it is argued, are on all fours with Johnson-Paquette and I am therefore bound to strike the action.

[30]      The plaintiff argues, as was argued in Johnson-Paquette, that the decisions of the Supreme Court of Canada in Weber and in St. Anne Nackawic Pulp & Paper v. C.P.V., on which Weber is founded, have no application where the statutory scheme, such as provided in the PSSRA, is not mandatory and provides no possibility of a meaningful remedy to the aggrieved individual. A grievance regime, where the ultimate decision maker is not an adjudicator and does not have power or authority to apply the law and award damages, fails to meet the preconditions stated in Weber to preclude the jurisdiction of the Court. The plaintiff submits that the Court has jurisdiction to hear a claim in negligence where the basis of the claim can be grieved under section 91 but cannot be the subject of a section 92 adjudication.

[31]      Madame Justice Tremblay-Lamer, in Johnson-Paquette, considered the issue of whether the grievance officer in that case was able to grant the remedy sought. Her Ladyship concluded in the affirmative. This is a question to be determined having regard to the particular relief sought in each case. Following the hearing of the motion, counsel were asked to make further submissions in that regard, as well as to comment on Olmstead v. Canada, [1990] 2 F.C. 484 (TD), which deals with the issue of a statutory scheme which is not mandatory. The case was not considered by the Court in Johnson-Paquette.

[32]      Most recently, and following the submissions of the parties in response to the request of the Court, a number of decisions have issued dealing with the application of Weber to the PSSRA grievance regime. Two of these, a decision of the Ontario Court of Appeal in Danilov v. Canada (Atomic Energy Control Board)14 and the Nova Scotia Court of Appel in Pleau v. Canada (Attorney General)15, were brought to the Court"s attention by the plaintiff who relies on them. Although theses cases are not binding on this Court, they do provide some relevant analysis of the issues at play in the case before me. The third decision is the recent decision of the Federal Court of Appeal in Bouchard16.

[33]      In Danilov, the Ontario Court of Appeal had under consideration the termination of the employment of a non unionized employee. The Court concluded that the grievance process under the PSSRA, which would not have resulted in binding adjudication, could not preclude Mr. Danilov"s action. The Court distinguished Johnson-Paquette on the basis that the latter dealt with employees subject to collective agreement. Mr. Danilov had not agreed through collective bargaining to have the grievance procedure in the PSSRA serve in the resolution of his disputes with his employer.

[34]      In Pleau, the Court was faced with a motion to strike the plaintiffs" claims against the federal Crown for the alleged misconduct by federal public servants. The Court was asked to dismiss the plaintiffs" case on the basis of the principles set out in Weber v. Ontario Hydro.17 After a detailed review of jurisprudence, the Court established the considerations that are relevant when a court is asked to decline to hear a dispute that is governed by labour agreements and statute. These considerations include the nature of the process established by the collective agreement and legislation; the nature of the dispute; and the nature of the remedy available to the parties.

[35]      The Court in Pleau held that the PSSRA and the Collective Agreement - which are the same in the case before us - were not mandatory regimes and thus "entitled to considerably less deference than those under consideration in Weber and related cases."18 However, a "permissive regime" was not considered automatically to lead to the conclusion that the Court had jurisdiction to hear the case: "an express grant of exclusive jurisdiction is not necessary to sustain judicial deference to the statutory dispute resolution process."19 The Court continued with an analysis of the nature of the dispute between the parties, noting that the "scope of the grievance procedure ... is broad enough to cover these complaints."20 However, the Court concluded that although the dispute "arises out of the employment relationship, it does not arise under the Collective Agreement; the Collective Agreement does not address the conduct complained of in this action."21

[36]      In its final volley, the Court in Pleau examined the availability of an effective remedy to the plaintiffs if they were denied access to the Courts. Given the nature of the dispute, the Court concluded that "access to the grievance procedure without the right to test the outcome by adjudication on the merits by a third party does not constitute effective redress for the alleged wrongdoing in this case."22 As a result, the Court decided to maintain jurisdiction and hear the case. However, the following qualification is provided at the end of the judgment:

I have concluded that, in the circumstances of this case, the grievance procedure is not the exclusive method of dispute resolution. However, given the comprehensive nature of the scheme in this collective bargaining context, I think that, to paraphrase Justice L'Heureux-Dubé in Gendron, it was intended that under this scheme the Courts should have but a small role as decision-makers at first instance in employment related disputes. I emphasize that the scope of court involvement which I find in this case is very narrow indeed. This is a case in which the dispute

is admittedly outside the scope of the adjudication process and in which the employee has not had recourse to the grievance procedure. I do not intend to, and do not address in these reasons, the availability of court actions where one or both of these elements is not present. In my view, confining the scope of court action within this narrow sphere is essential to ensuring effective redress and is not unduly intrusive into the collective bargaining relationship. 23

[37]      Finally, in Bouchard, the Federal Court of Appeal revisited the decision in Weber and considered the issue of the permissive nature of the scheme. The Court concluded that, although the federal grievance scheme found in the PSSRA is permissive and does not expressly preclude alternate remedies, the modern judicial approach is to remove jurisdiction from the Courts where the litigation arises expressly or implicitly from the collective agreement.

Mais selon l'approche moderne prévalant en matière de relations de travail, les litiges qui résultent expressément ou implicitement de la convention collective échappent aux tribunaux qui, toutefois, "possèdent une compétence résiduelle fondée sur leurs pouvoirs particuliers", tel par exemple le pouvoir d'émettre une injonction en cas de grève illégale (Weber, précité, à la page 957 et St. Anne Nackawic, précité, à la page 728). Se classent parmi les sujets à l'égard desquels les tribunaux n'ont pas de compétence: un congédiement déguisé ou injustifié, la mauvaise foi de la part du syndicat, une coalition et le préjudice à la réputation (Weber, précité, à la page 957).24

[38]      The Court proceeded to apply this conclusion to the situation at hand, holding that the case amounted to a constructive dismissal and thus fell into one of the exceptions laid out in Weber:

Dans le cas qui nous est soumis, l'appelante a, selon ses allégations, démissionné suite au harcèlement dont elle était victime en milieu de travail de la part de ses supérieurs. Il serait certes possible pour un arbitre de conclure légalement que le refus des intimés, dans les circonstances, de réintégrer l'appelante dans ses fonctions constitue un congédiement déguisé (constructive dismissal). En conséquence, je crois que la Cour n'a pas compétence pour entendre la demande de contrôle judiciaire de l'appelante et que la requête en radiation de ladite demande est bien fondée.25

[39]      The decision in Bouchard supports the conclusion drawn in Johnson-Paquette.

Application to the Case at Bar

[40]      The standard to be applied in a motion to strike for want of a cause of action is that the Court, having taken the facts as proved, must be satisfied beyond doubt that the claim cannot succeed. It must be "plain and obvious"26 that the plaintiff"s claim discloses no reasonable cause of action. Having considered the cases and the submissions of the parties, on the facts of this case, I find that I am bound by the decision in Johnson-Paquette as further supported by the recent decision in Bouchard and must grant the motion to strike, for the following reasons.

[41]      In my view, the alleged negligent conduct of the defendant employer is covered under the broad ambit of section 35.05 of the Master Agreement. This same conclusion was reached by Tremblay-Lamer J. in Johnson-Paquette on the basis of an identical provision of a collective agreement. In any case, there is no doubt that the essential nature of this dispute implicitly arose out of the collective agreement as determined in Bouchard. The dispute deals exclusively with entitlement to work-related benefits.

[42]      I note that the Public Service Staff Relations Board adjudicator concluded that, for the purposes of his mandate, the present dispute does not fall within the ambit of the collective agreement. As stated above, that finding is on the basis that entitlement to ERI benefits is not, as such, an explicit or specified term of the collective agreement and its denial is thus not adjudicable pursuant to section 92 of the PSSRA. However, the terms of section 35.05 of the Master Agreement and section 91 of the PSSRA are much broader and, in my opinion, provide sufficient ground for submission of the dispute to a section 91 grievance process.

[43]      I am mindful of argument by counsel for the plaintiff to the effect that the grievance officer acting pursuant to section 91 of the PSSRA does not possess the full range of powers of a section 92 adjudicator - or a judge of this Court. Mr. Vaughan"s claim is for damages in the amount of his ERI benefits. Although I agree that the grievance officer does not have the judicial authority necessary to reach a decision on the merits of his action in tort, nevertheless, it is common ground that the grievance officer (the deputy head for a final level grievance) has full authority to provide the ERI benefits. It is exclusively the entitlement to these benefits which is sought by the plaintiff and claimed in substance by way of his court action. Moreover, the grievance officer"s final decision to allow or refuse such entitlement is thereafter subject to judicial review under section 18 of the Federal Court Act.

Conclusion

[44]      I concluded that I am bound by the decision of this Court in Johnson-Paquette which held that the negligent conduct of the employer fell under the terms of the collective agreement and a meaningful remedy was available. This case is directly applicable to the facts at hand. Here, the employer"s failure to provide ERI benefits falls within the scope of this decision, and the plaintiff may obtain the substance of the very relief sought in this action, through the section 91 grievance process. Accordingly, on the narrow basis of the facts in this case, I find that the Court has no jurisdiction to hear this action. It is beyond doubt that the statement of claim discloses no reasonable cause of action and should be struck.

                    

[45]      The plaintiff has sought, as an alternative, leave to convert this action to an application for judicial review and to extend the time for doing so. It is not clear which decision would be the subject of such a review. In any event, I do not have jurisdiction to extend time. In the result, the motion is granted without prejudice to the plaintiff"s prerogative to bring an application for judicial review as well as seek leave for an extension of time. Costs in this matter, fixed in the amount of $1,400, are awarded to the defendant.

"Roza Aronovitch"

Prothonotary

__________________

     ¹      Public Service Staff Relations Act, R.S.C. 1985, c. P-35, sections 91, 92, 96(3).

     ²      Retirement Compensation Arrangement Regulations, No. 2, SOR/95289.

     ³      Special Retirement Arrangements Act. S.C. 1992, c.46, Sch. 1.

     ⁴      Panagapoulos v. Her Majesty the Queen, [1990] F.C.J. No. 234.          Banerd v. Canada (M.N.R), [1994] F.C.J. No. 1665 (T.D.) (Reversed on appeal on the basis that the PSSRA could not "provide relief of any kind to a person in the plaintiff"s position."          Banerd v. Canada (Deputy Minister of National Revenue), [1996] F.C.J. No. 260 (C.A.) at paragraph 6.     

     ⁵      Weber v. Ontario Hydro [1995], 2 S.C.R. 929.     

     ⁶      Watt v. Canada (Transport), [1997] F.C.J. No. 780 (T.D.) Affirmed on appeal as Said v. Canada (M.C.I.), [1998] F.C.J. No. 49 (C.A.). (Court file A-448-97)          Johnson-Paquette v. Canada, [1998] F.C.J. No. 1741 (T.D.). On appeal.          Bouchard v. Canada, [1999] F.C.J. No. 1807 (C.A.)

     ⁷      Weber v. Ontario Hydro, [1992], 11 O.R. (32) 609.

     ⁸      Weber supra at page 15.     

     ⁹      Weber (S.C.C.), supra at paragraph 57.     

     ¹⁰      Watt (TD), supra.

         ¹¹      Watt (CA), supra, at paragraphs 2 and 3.

     ¹²      Johnson-Paquette, supra, at paragraph 25.     

     ¹³      Johnson-Paquette, supra, at paragraph 22.

     ¹⁴      Danilov v. Canada, [1990] O.J. No. 3735 (CA).     

     ¹⁵      Pleau v. Canada (Attorney General), [1999] N.S.J. No. 448 (CA).

     ¹⁶      Bouchard, supra.

     ¹⁷      [1995] 2 S.C.R. 929.

         ¹⁸      Pleau, supra at paragraph 74.

     ¹⁹      Pleau, supra at paragraph 39. Note that this conclusion is not inconsistent with the position of the Federal Court of Appeal as set out in Bouchard v. Canada (Minister of National Defense), [1999] F.C.J. 1807 (FCA).

     ²⁰      Pleau, supra at paragraph 85.     

     ²¹      Pleau, supra at paragraph 88. It is useful to note that in Pleau supra, the plaintiffs allege a wide range of claims in tort, including conspiracy to cause injury, intentional and malicious conduct, defamation, abuse of office, breach of fiduciary duty, and negligent exercise of authority. The nature of the dispute is quite different than that before us, which relates exclusively to eligibility for employment-related benefits (ERI).         

     ²²      Pleau, supra at paragraph 95. Emphasis added.     

     ²³      Pleau, supra at paragraph 102. Emphasis added.         

     ²⁴      Bouchard, supra, at paragraph 25.

     ²⁵          Bouchard, supra, at paragraph 26.     

     ²⁶      Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959.