Date: 20100305
Docket: T-997-09
Citation: 2010 FC 254
St. John’s, Newfoundland and Labrador, March 5, 2010
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
R.
MAXINE COLLINS
Plaintiff
and
HER
MAJESTY THE QUEEN
Defendant
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Ms.
R. Maxine Collins (the “Plaintiff”) commenced this action by filing a Statement
of Claim on June 22, 2009. In that Statement of Claim, she alleged various
wrongful acts in the administration of the Income Tax Act, R.S.C. 1985,
c. 1 (5th Supp.) and the Privacy Act, R.S.C. 1985, c. P-21. She
alleged the violation of rights pursuant to the Canadian Charter of Rights
and Freedoms, Part I of the Constitution Act, 1982, being schedule B
to the Canada Act 1982 (U.K.), 1982, c. 11. She claimed that the relief
sought by her Statement of Claim was grounded in the Federal Courts Act,
R.S.C. 1985, c. F-7, the Federal Courts Rules, SOR/98-106 (the “Rules”)
and the Crown Liability and Proceedings Act, R.S.C. 1985, c. C-50.
[2]
By
Order of Prothonotary Milczynski made on September 14, 2009, the action was
stayed pending the appointment of a solicitor for the Plaintiff on the basis
that the original Statement of Claim disclosed a proposed class action.
Pursuant to the Rules, a plaintiff in such a representative proceeding must be
represented by a solicitor.
[3]
By
Order made on September 21, 2009, Mr. Justice Campbell granted leave to the
Plaintiff to amend the Statement of Claim, to show that she is bringing the action
on her own behalf and not as a representative plaintiff.
[4]
By
Amended Amended Notice of Motion dated October 22, 2009, the Defendant seeks to
strike out the Plaintiff’s Amended Statement of Claim.
Facts
[5]
For
the purpose of a motion to strike, the allegations set out in the Statement of
Claim are presumed to be true.
[6]
The
Plaintiff was employed by the Canada Revenue Agency (the “CRA”), working in the
Toronto West Tax Services Office, between November 2005 and November 2007. She
was a probationary employee for a one-year period from the date of hire and
worked with other probationary employees who were known as the “probationary
team”. In late February, early March 2006, she became aware of comments from
the members of the probationary team concerning personal bankruptcy. As she had
a prior personal bankruptcy she presumed that someone had improperly accessed
her personal tax information.
[7]
In
July 2006, the Plaintiff made a request pursuant to the Privacy Act to the
Access to Information and Privacy (“ATIP”) Directorate of CRA seeking
the identity of all employees who had accessed her personal income tax account
from January 1, 2005 until the date of her request. The information that she
received showed that her personal income tax account had been accessed by a
co-worker, Mr. Perry Zanetti, in the Toronto West Tax Services Office and a
Manager, Mr. Edwin D. Williams, in the Headquarters Processing System Section.
The information provided to the Plaintiff did not disclose the names of any
members of the probationary team.
[8]
The
Plaintiff requested an investigation relative to the Toronto West Tax Services
Office. Upon learning that an investigation had taken place, she asked for the
results of the investigation. She was not provided with those results, allegedly
on the basis that protection of confidentiality precluded
discussion of the investigation results.
[9]
In
early 2007, Mr. Zanetti was fired by the CRA “for allegedly having had
unauthorized access to thousands of tax payers accounts”.
[10]
The
Plaintiff says that she is unaware of any other actions taken by the CRA to
“curtail unauthorized access” to her personal income tax account. She sought
assistance from the Union of Taxation Employees (“UTE”), a branch of the Public
Service Alliance of Canada (“PSAC”). Assistance was denied, purportedly on the
grounds that the UTE was representing the employees who had made unauthorized
access.
[11]
In
January 2007, the Plaintiff asked the Office of the Privacy Commission (the
“OPC”) to conduct an independent investigation. This request was refused.
[12]
In
May 2007, the Plaintiff asked the Assistant Commissioner of Southern Ontario
Region of the CRA for a transfer to another government department or agency.
This request was refused and she was referred back to the Director of the
Toronto West Tax Services Office to conduct an investigation.
[13]
In
May 2007, the Plaintiff requested the assistance of the President of PSAC in
obtaining a transfer from the CRA. Her request was not answered and no
assistance was given.
[14]
Also
in May 2007, the Plaintiff asked the Public Service Human Resources Management
Agency of Canada to assist her. That Agency referred her back to Mr. Hillier,
Assistant Commissioner of Southern Ontario Region of the CRA.
[15]
In
June 2007, the Plaintiff “sought protection” from Public Service Integrity
Canada pursuant to the Public Servants Disclosure Protection Act, S.C. 2005,
c. 46. Her request was denied in writing on November 22, 2007.
[16]
In
September 2007, the Plaintiff attempted to make a complaint respecting the work
environment pursuant to Part II of the Canada Labour Code, R.S.C. 1985,
c. L-2. She says that she was “thwarted” in this regard because the
representative of the UTE advised that the Director of the Toronto West Tax
Services Office had not appointed a management representative as required under
the Canada Labour Code.
[17]
In
September 2007, the Plaintiff made a complaint to the Royal Canadian Mounted
Police (the “RCMP”) pursuant to subsection 244(1) of the Income Tax Act.
That statutory provision says that it is an offence for anyone to access
confidential information collected under the Income Tax Act.
[18]
The
Plaintiff alleges that the CRA deliberately withheld information about the
availability of a different complaint process pursuant to subsection 239(2.2) of
the Income Tax Act. She claims that employees of the CRA are not advised
that violation of subsection 241(1) of the Income Tax Act constitutes an
offence pursuant to subsection 239(2.2) of the Income Tax Act.
[19]
The
Plaintiff also alleges that the Criminal Code, R.S.C. 1985, c. C-46 in
subsection 126(1) makes contravention of an “Act of Parliament” an offence
punishable by way of indictment.
[20]
In
October 2007, the Plaintiff requested the results of the investigation and
according to para. 70 of her Amended Statement of Claim, the RCMP “denied that
an investigation had taken place”.
[21]
In
November 2007, the Plaintiff resigned from the CRA.
[22]
In
January 2008, the Plaintiff made a request under the Privacy Act to the
ATIP Directorate of the CRA asking for the names of all CRA employees who had
accessed her personal income tax account on an unauthorized basis.
[23]
Also
in January 2008, the Plaintiff made a request to the ATIP Directorate of the
CRA pursuant to the Access to Information Act, R.S.C. 1985, c. A-1 requesting
copies of all reports of investigations conducted by the CRA relative to
unauthorized access to her income tax account by CRA employees.
[24]
In
February 2008, the Plaintiff received a reply to her access request. That reply
consisted of a heavily edited report from the CRA. The CRA purportedly relied
on subsection 19(1) of the Access to Information Act in making
redactions.
[25]
In
January 2008, the Plaintiff also made a request to the RCMP, pursuant to the Access
to Information Act, for copies of all investigative reports relating to
unauthorized access to her personal income tax account by employees of the CRA.
She received some written materials from the RCMP in February 2008, including
copies of internal memoranda “purporting to confirm the RCMP’s position that
they did not conduct an investigation”. The RCMP also redacted information
pursuant to subsection 19(1) of the Access to Information Act.
[26]
The
Plaintiff had also made a request to the RCMP in January 2008 pursuant to the Privacy
Act, again seeking the names of all employees of the CRA who had made
unauthorized access to her personal income account.
[27]
According
to her Amended Statement of Claim, the RCMP ultimately responded to this
request by providing the same documents that they had provided in reply to her
request under the Access to Information Act.
[28]
In
February 2008, the Plaintiff filed a complaint with the OPC against the RCMP.
She alleges that the OPC verbally advised her that no file would be opened.
[29]
In
the same month, that is February 2008, the Plaintiff filed a complaint against
the CRA with the OPC, on the basis that the CRA had failed to provide full
disclosure of the names of the CRA employees who had accessed her personal
income tax file without authorization. She was advised by the OPC in October
2008 that there was no basis for her complaint in that regard.
[30]
In
February 2008, the Plaintiff filed complaints against both the CRA and the RCMP
with the Information Commissioner. As of the date of filing her Amended
Statement of Claim, she had not received a report of the “proposed
investigation”.
[31]
On
February 22, 2008, the Plaintiff wrote a letter to the Information Commissioner
asking that all her complaints be jointly considered.
[32]
In
January 2009, the Plaintiff filed an application for judicial review in this
Court relative to the “actions” of the Privacy Commissioner regarding her
complaints against the CRA and the RCMP, allegedly for breach of the Privacy
Act.
[33]
The
Plaintiff relies on the foregoing history of events to support a claim against the
Defendant, seeking the recovery of the following relief:
a.
The sum of
$500,000.00 in general damages against the Defendant for:
i.
Misfeasance
in public office;
ii.
Negligence
in deliberately failing to enforce statutory provisions; and
iii.
Violations
of the Canadian Charter of Rights and Freedoms.
b.
The sum of
$1,000,000.00 in punitive damages;
c.
Interest
pursuant to the Federal Courts Act;
d.
Costs of
this action on a solicitor and client basis; and
e.
Such
further relief as This Honourable Court may deem just.
Discussion and
Disposition
[34]
The
present Motion to strike the Plaintiff’s Amended Statement of Claim is governed
by Rules 221(1)(a) and (c) which provide as follows :
|
221.
(1) On motion, the Court may, at any time, order that a pleading, or anything
contained therein, be struck out, with or without leave to amend, on the
ground that it
(a)
discloses no reasonable cause of action or defence, as the case may be,
…
(c)
is scandalous, frivolous or vexatious,
|
221.
(1) À tout moment, la Cour peut, sur requête, ordonner la radiation de tout
ou partie d’un acte de procédure, avec ou sans autorisation de le modifier,
au motif, selon le cas :
a)
qu’il ne révèle aucune cause d’action ou de défense valable;
…
c)
qu’il est scandaleux, frivole ou vexatoire;
|
[35]
Pursuant
to Rule 221(2), no evidence can be submitted in support of a motion to strike when
the basis of that motion is Rule 221(1)(a).
[36]
The
legal test upon a motion to strike a pleading is set out in the decision of the
Supreme Court of Canada in Hunt v. Carey Canada Inc., [1990] 2 S.C.R.
959, that a pleading will be struck out if there is no reasonable chance of
success.
[37]
In
the present case, the Plaintiff is purporting to make a claim for damages for
the alleged non-enforcement of those provisions of the Income Tax Act
for unauthorized disclosure of confidential information, for the alleged
non-commencement of proceedings pursuant to the Criminal Code, the
alleged failure of the OPC to commence an investigation, the alleged failure of
Public Service Integrity Canada to act and the alleged failure of the
Information Commissioner to act.
[38]
Insofar
as the Plaintiff tries to ground an action upon breach of a statute, the
allegations must fail. There is no such thing as a right of action for breach
of legislation, as discussed by the Supreme Court of Canada in Canada v.
Saskatchewan Wheat Pool, [1983] 1 S.C.R. 205 at p. 225 as follows:
For
all of the above reasons I would be adverse to the recognition in Canada of a nominate tort of statutory breach. Breach of statute,
where it has an effect upon civil liability, should be considered in the
context of the general law of negligence. Negligence and its common law duty of
care have become pervasive enough to serve the purpose invoked for the
existence of the action for statutory breach.
[39]
In
order to obtain a remedy for any alleged statutory breach, the Plaintiff must
establish a breach of the common law duty of care. The Plaintiff, in her oral
submissions responding to the Defendant’s motion, indicated that she can rely
on the test in Anns v. Merton London Borough Council, [1978] A.C. 728,
to advance a novel duty of care. The criteria for advancing a claim in
negligence against the Defendant was dealt with by the Supreme Court of Canada
in Childs
et al v. Desormeaux, [2006] 1 S.C.R. 643 when
the Supreme Court of Canada stated the Canadian view of the “Anns” test as follows:
(1) is
there "a sufficiently close relationship between the parties" or
"proximity" to justify imposition of a duty and, if so,
(2) are
there policy considerations which ought to negative or limit the scope of the
duty, the class of persons to whom it is owed or the damages to which breach
may give rise.
[40]
It
is clear from the Plaintiff’s Amended Statement of Claim that she is alleging
that a positive duty lies upon the Defendant to bring forth charges and
prosecute pursuant to subsection 239(2.2) of the Income Tax Act. That
subsection provides as follows:
|
(2.2)
Every person who
(a)
contravenes subsection 241(1), or
(b)
knowingly contravenes an order made under subsection 241(4.1)
is
guilty of an offence and liable on summary conviction to a fine not exceeding
$5,000 or to imprisonment for a term not exceeding 12 months, or to both.
|
(2.2)
Commet une infraction et encourt, sur déclaration de culpabilité par procédure
sommaire, une amende maximale de 5 000 $ et un emprisonnement maximal de 12
mois, ou l’une de ces peines, toute personne :
a)
soit qui contrevient au paragraphe 241(1);
b)
soit qui, sciemment, contrevient à une ordonnance rendue en application du
paragraphe 241(4.1).
|
[41]
I am
unaware of such positive duty. It is long-established that both law enforcement
officials and prosecutors enjoy discretion as to the laying of charges and the
prosecution of charges. In this regard, I refer to the decision in R. v.
Beaudry, [2007] 1 S.C.R. 190 and Krieger v. Law Society of Alberta, [2002]
3 S.C.R. 372.
[42]
The
Plaintiff here is not alleging a negligent investigation as accepted by the
Supreme Court of Canada in Hill v. Hamilton-Wentworth Regional Police
Services Board, [2007] 3 S.C.R. 129. Rather, she alleges negligence in
failure to investigate or negligence in failure to prosecute and those causes
of action are not known to the law in Canada. A cause of action is not reasonable simply
because it is novel; see Prentice v. Canada (Attorney General), [2006] 3 F.C.R 135 (C.A.).
[43]
Subsection
239(2.2) of the Income Tax Act is a quasi-criminal provision with penal
consequences.
[44]
In
my opinion, the principles of police and prosecutorial discretion apply to a
decision to proceed relative to subsection 239(2.2) of the Income Tax Act.
In my view, that discretion is diametrically opposed to the recognition of a
duty, within the scope of the Anns test, for which a breach could sustain
an action in negligence for failing to investigate or prosecute.
[45]
If
there is no duty of care, there can be no reasonable cause of action in
negligence for the choice of the CRA and the RCMP in not proceeding with charges
under subsection 239(2.2) of the Income Tax Act.
[46]
The
Plaintiff also advanced a claim for misfeasance in public office. In Odhavji
Estate v. Woodhouse, [2003] 3 S.C.R. 263, Mr. Justice Iacobucci identified
the essential elements of the tort of misfeasance in public office as follows:
In
my view, there are two such elements. First, the public officer must have
engaged in deliberate and unlawful conduct in his or her capacity as a public
officer. Second, the public officer must have been aware both that his or her
conduct was unlawful and that it was likely to harm the plaintiff…
[47]
It
is clear from her Amended Statement of Claim that the Plaintiff alleges that
the failure of the CRA and the RCMP to lay charges and prosecute offences under
subsection 239(2.2), by itself, constitutes misfeasance in public office.
[48]
For
the reasons given above, the fact that charges were not laid, in the exercise
of discretion by those authorized to make the decision in that regard, cannot
be an “unlawful act”, as required to establish the tort of misfeasance in
public office.
[49]
As
well, the Plaintiff has not pleaded any material facts to even show that there
was an unlawful act or that the public officers had knowledge that their
actions were unlawful or that there was an intention to personally harm her. In
these circumstances, the Plaintiff has failed to show a reasonable cause of
action relative to the tort of misfeasance in public office; see Chavali v.
Canada (2002), 291 N.R. 311 (F.C.A.).
[50]
The
Plaintiff also complains that her Charter rights were breached. However,
she neither identifies which right nor any material facts that might support
such a claim.
[51]
A
claim for a Charter breach cannot be advanced in a vacuum but must be
supported by evidence and facts; see MacKay v. Manitoba, [1989] 2 S.C.R.
357 and Danson v. Ontario (Attorney General) (1987), 60
O.R. (2d) 676 (C.A.).
[52]
It
follows that there is no reasonable cause of action in the Plaintiff’s Amended
Statement of Claim for a Charter breach.
Availability of Judicial Review
[53]
I
turn now to the Plaintiff’s allegations relative to the several federal tribunals,
that is the OPC, the Information Commissioner and Public Service Integrity Canada.
[54]
In
my opinion, all of the allegations of the Plaintiff relative to these federal
tribunals are amenable to judicial review pursuant to section 18.1 of the Federal
Courts Act, section 41 of the Privacy Act or section 41 of the Access
to Information Act.
[55]
At
the hearing on November 9, 2009, the Plaintiff argued that complaints against
the OPC and the Information Commissioner are not subject to judicial review.
She referred to the decision in Murdoch v. Canada (Royal Canadian Mounted
Police),
[2005] 4
F.C.R. 340 (F.C.)
in support of her submissions.
[56]
In
my opinion, the Plaintiff is mistaken in her interpretation of that decision. I
understand that the decision in Murdoch stands for the proposition that
recommendations made by the OPC and the Information Commissioner are not
subject to review.
[57]
There
is nothing novel in that proposition. Subsection 18.1(3) of the Federal
Courts Act provides that a decision of a federal tribunal can be reviewed
by the Court. A recommendation is not a decision; see Pieters v. Canada (Attorney General), [2008] 2 F.C.R. 421 (F.C.).
[58]
Paragraphs
29(1)(a) and (b) of the Privacy Act says that the Privacy Commission
shall receive and investigate complaints that allege improper disclosure of
information, as follows:
|
29.
(1) Subject
to this Act, the Privacy Commissioner shall receive and investigate
complaints
(a)
from individuals who allege that personal information about themselves held
by a government institution has been used or disclosed otherwise than in
accordance with section 7 or 8;
(b)
from individuals who have been refused access to personal information
requested under
subsection
12(1);
…
|
29.
(1) Sous
réserve des autres dispositions de la présente loi, le Commissaire à la
protection de la vie privée reçoit les plaintes et fait
enquête
sur les plaintes:
a) déposées par des individus
qui prétendent que des renseignements personnels les concernant et détenus
par une institution fédérale
ont été
utilisés ou communiqués contrairement aux articles 7 ou 8;
b) déposées par des individus
qui se sont vu refuser la communication de renseignements
personnels,
demandés en vertu du paragraphe 12(1);
…
|
[59]
Section
30 of the Access to Information Act is similar, as follows:
|
30. (1) Subject to this Act, the
Information Commissioner shall receive and investigate complaints
(a)
from persons who have been refused access to a record requested under this
Act or a
part thereof;
…
|
30.
(1) Sous
réserve des autres dispositions de la présente loi, le Commissaire à
l’information
reçoit
les plaintes et fait enquête sur les plaintes :
a) déposées par des personnes
qui se sont vu
refuser
la communication totale ou partielle d’un document qu’elles ont demandé en
vertu de la présente loi;
…
|
[60]
If
dissatisfied with the refusal of the OPC and the Information Commissioner to
act on her complaints, she had an alternate remedy, that is an application for
judicial review before the Federal Court.
[61]
My
opinion in this regard is supported by section 41 of the Privacy Act and
section 41 of the Access to Information Act. Section 41 of the Privacy
Act provides as follows:
|
41. Any individual who has been refused
access to personal information requested under subsection 12(1) may, if a complaint
has been made to the Privacy Commissioner in respect of the refusal, apply to
the Court for a review of the matter within forty-five days after the time
the results of an investigation of the complaint by the Privacy Commissioner
are reported to the complainant under subsection 35(2) or within such further
time as the Court may, either before or after the expiration of those
forty-five days, fix or allow.
|
41.
L’individu qui
s’est vu refuser communication de renseignements personnels demandés en vertu
du paragraphe 12(1) et qui a déposé ou fait déposer une plainte à ce sujet
devant le Commissaire à la protection de la vie privée peut, dans un délai de
quarante cinq jours suivant le compte rendu du Commissaire prévu au
paragraphe 35(2), exercer un recours en révision de la décision de refus
devant la Cour. La Cour peut, avant ou après l’expiration du délai, le
proroger ou en autoriser la prorogation.
|
[62]
Section
41 of the Access to Information Act is similar, as follows:
|
41. Any person who has been refused access
to a record requested under this Act or a part
thereof may,
if a complaint has been made to the Information Commissioner in respect of
the
refusal, apply
to the Court for a review of the matter within forty-five days after the time
the results of an investigation of the complaint by the Information
Commissioner are reported to
the
complainant under subsection 37(2) or within such further time as the Court
may, either before or after the expiration of those forty-
five days, fix
or allow.
|
41.
La personne
qui s’est vu refuser communication totale ou partielle d’un document demandé
en
vertu de la présente loi et qui a déposé ou fait déposer une plainte à ce
sujet devant le Commissaire à l’information peut, dans un délai de
quarante-cinq jours suivant le compte rendu du Commissaire prévu au
paragraphe 37(2), exercer un recours en révision de la décision de refus
devant la Cour. La Cour peut, avant ou après l’expiration du délai, le
proroger
ou en
autoriser la prorogation.
|
[63]
The
Plaintiff claims that she did not get a positive answer to her request for
assistance to Public Service Integrity Canada. The Public Servants Disclosure Protection
Act
is intended to provide protection against reprisals in the workplace. That Act
defines “reprisal” in subsection 2(1) as follows:
|
“reprisal” means any of the
following measures taken against a public servant because the public servant
has made a protected disclosure or has, in good faith, cooperated in an
investigation into a disclosure or an investigation commenced under section
33:
(a) a disciplinary measure;
(b) the demotion of the public
servant;
(c) the termination of
employment of the public servant, including, in the case of a member of the
Royal Canadian Mounted Police, a discharge or dismissal;
(d) any measure that adversely
affects the employment or working conditions of the public servant; and
(e) a threat to take any of the
measures referred to in any of paragraphs (a) to (d).
|
«
représailles » L’une ou l’autre des mesures ciaprès prises à l’encontre d’un
fonctionnaire pour le motif qu’il a fait une divulgation protégée ou pour le
motif qu’il a collaboré de bonne foi à une enquête menée sur une divulgation
ou commencée au titre de l’article 33 :
a) toute sanction disciplinaire;
b) la rétrogradation du
fonctionnaire;
c) son licenciement et,
s’agissant d’un membre de la Gendarmerie royale du Canada, son renvoi ou
congédiement;
d) toute mesure portant atteinte
à son emploi ou à ses conditions de travail;
e) toute menace à cet égard.
|
[64]
In
my opinion, the Plaintiff’s complaints about the workplace do not fall within
this definition and accordingly, did not fall within the mandate of Public
Service Integrity Canada.
[65]
In
any event, the Plaintiff had filed a complaint with the Integrity Commissioner,
presumably pursuant to section 19.1 of the Public Servants Disclosure
Protection Act. Subsections 19.1(1) and (4) provide as follows:
|
19.1 (1) A public servant or a former public
servant who has reasonable grounds for believing that a reprisal has been
taken against him or her may file with the Commissioner a complaint in a form
acceptable to the Commissioner. The complaint may also be filed by a person
designated by the public servant or former public servant for the purpose.
…
(4) Subject to
subsection 19.4(4), the filing of a complaint under subsection (1) precludes
the complainant from commencing any procedure under any other Act of
Parliament or collective agreement in respect of the measure alleged to
constitute the reprisal.
|
19.1
(1) Le
fonctionnaire ou l’ancien fonctionnaire qui a des motifs raisonnables de
croire qu’il a été victime de représailles peut déposer une plainte auprès du
commissaire en une forme acceptable pour ce dernier; la plainte peut
également être déposée par la personne qu’il désigne à cette fin.
…
(4)
Sous réserve du paragraphe 19.4(4), s’il dépose une plainte au titre du
paragraphe (1), le fonctionnaire ou l’ancien fonctionnaire ne peut intenter
de recours au titre de toute autre loi fédérale ou de toute convention
collective à l’égard des prétendues représailles.
|
[66]
Section
19.4 requires the Integrity Commissioner to make and communicate a decision as
to whether or not he will deal with a complaint. Subsections 19.4(1), (3) and
paragraphs 19.4(4)(a) and (b) are relevant and provide as follows:
|
19.4 (1) The Commissioner must decide
whether or not to deal with a complaint within 15 days after it is filed.
…
(3) If the
Commissioner decides not to deal with a complaint, he or she must send a
written notice of his or her decision to the complainant and set out the
reasons for the decision.
(4) If the
Commissioner decides not to deal with a complaint and sends the complainant a
written notice setting out the reasons for that decision,
(a)
subsection 19.1(4) ceases to apply; and
(b) the
period of time that begins on the day on which the complaint was filed and
ends on the day on which the notice is sent is not to be included in the
calculation of any time the complainant has to avail himself or herself of
any procedure under any other Act of Parliament or collective agreement in
respect of the measure alleged to constitute the reprisal.
…
|
19.4
(1) Le
commissaire statue sur la recevabilité de la plainte dans les quinze jours
suivant son dépôt.
…
(3)
Dans le cas où il décide que la plainte est irrecevable, le commissaire
envoie par écrit sa décision motivée au plaignant.
(4)
Dans le cas prévu au paragraphe (3) :
a) le paragraphe 19.1(4) cesse
de s’appliquer;
b) la période qui commence le
jour où la plainte a été déposée et qui se termine le jour où la décision
motivée est envoyée au plaignant n’est pas prise en compte dans le calcul du
délai dont dispose le plaignant pour intenter tout recours prévu par toute
autre loi fédérale ou toute convention collective à l’égard des prétendues
représailles.
…
|
[67]
The
Integrity Commissioner advised the Plaintiff, in writing, that he would not
deal with her complaint. At that time, the Plaintiff had the option to seek
judicial review against the decision, refusing to deal with her complaint, if
she wished to complain about the lawfulness of the conduct of the administrative
decision-maker; see Detorakis v. Canada (Attorney
General), 2010 FC 39.
[68]
The
Plaintiff also alleged that the CRA had failed to properly address her
complaints respecting the workplace environment. She makes this allegation with
respect to the Canada Labour Code. This complaint was not addressed
because the CRA did not appoint a management representative.
[69]
Subsection
127.1(1) of the Canada Labour Code imposes an obligation upon the
employer and the employee to resolve workplace health and safety concerns.
Subsection 127.1(1) provides as follows:
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127.1 (1)
An employee who believes on reasonable grounds that there has been a
contravention of this Part or that there is likely to be an accident or
injury to health arising out of, linked with or occurring in the course of
employment shall, before exercising any other recourse available under this
Part, except the rights conferred by sections 128, 129 and 132, make a
complaint to the employee’s supervisor.
(2) The employee and the supervisor shall
try to resolve the complaint between themselves as soon as possible.
|
127.1
(1) Avant de
pouvoir exercer les recours prévus par la présente partie — à l’exclusion des
droits prévus aux articles 128, 129 et 132 — , l’employé qui croit, pour des
motifs raisonnables, à l’existence d’une situation constituant une
contravention à la présente partie ou dont sont susceptibles de résulter un
accident ou une maladie liés à l’occupation d’un emploi doit adresser une
plainte à cet égard à
son supérieur hiérarchique.
(2)
L’employé et son supérieur hiérarchique doivent tenter de régler la plainte à
l’amiable
dans les
meilleurs délais.
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[70]
If
the complaint cannot be resolved by the employer and the employee, it may be
referred for investigation. Subsection 127.1(3) provides as follows:
|
(3) The employee or the supervisor
may refer an unresolved complaint to a chairperson of the work place
committee or to the health and safety representative to be investigated jointly
(a) by an employee member and
an employer member of the work place committee; or
(b) by the health and safety
representative and a person designated by the employer.
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(3) En
l’absence de règlement, la plainte peut être renvoyée à l’un des présidents
du comité local ou au représentant par l’une ou l’autre des parties. Elle
fait alors l’objet d’une enquête tenue conjointement, selon le cas :
a) par deux membres du comité
local, l’un ayant été désigné par les employés — ou en leur nom — et l’autre par
l’employeur;
b) par le représentant et une
personne désignée par l’employeur.
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[71]
The
Plaintiff claims that this investigation never occurred due to a failure of the
CRA to appoint an employer member.
[72]
Again,
the Plaintiff had the option of pursuing administrative law relief, by way of
an application for judicial review, relative to the failure of the CRA to
facilitate an investigation.
[73]
The
Plaintiff could have taken another course. She could have refused to work, as
contemplated by subsection 128(1) of the Canada Labour Code which
provides as follows:
|
128. (1) Subject to this section, an
employee may refuse to use or operate a machine or thing, to work in a place
or to perform an activity, if the employee while at work has reasonable cause
to believe that
(a) the
use or operation of the machine or thing constitutes a danger to the employee
or to another employee;
(b) a
condition exists in the place that constitutes a danger to the employee; or
(c) the
performance of the activity constitutes a danger to the employee or to
another employee.
|
128.
(1) Sous
réserve des autres dispositions du présent article, l’employé au travail peut
refuser d’utiliser ou de faire fonctionner une machine ou une chose, de
travailler dans un lieu ou d’accomplir une tâche s’il a des motifs
raisonnables de croire que, selon le cas :
a) l’utilisation ou le
fonctionnement de la machine ou de la chose constitue un danger pour
lui-même ou un autre employé;
b) il est dangereux pour lui de
travailler dans le lieu;
c) l’accomplissement de la tâche
constitue un danger pour lui-même ou un autre employé.
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[74]
A
refusal to work could have led to an investigation pursuant to section 128 and
129 of the Canada Labour Code. The results of any such investigation
would have led to the possibility of an appeal to an appeals officer.
Ultimately, the findings upon any such appeal could have been the subject of
judicial review under the Federal Courts Act; see Martin v. Canada (Attorney General), [2005] 4 F.C.R. 637 (C.A.).
[75]
It
is clear that a challenge to the lawfulness of an exercise of statutory
authority can be made only upon an application for judicial review; see Grenier
v. Canada, [2006] 2 F.C.R. 287 (C.A.). The Plaintiff,
according to her Amended Statement of Claim, sought judicial review in January
2009 relative to the action of the Privacy Commissioner. However, she
discontinued that proceeding in April 2009. She did not say if she had filed
any other applications for judicial review. By attempting to challenge the
actions of the OPC, the Information Commissioner, or the Integrity Commissioner
in this action, she is trying to make a collateral attack on those
administrative decision-makers. That is not permitted under the current
legislative regime.
[76]
For
the foregoing reasons, the Plaintiff has failed to disclose a reasonable cause
of action with respect to the several agents and agencies which she has
identified. The Amended Statement of Claim will be struck. The Defendant shall
have her costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the motion is
granted, the Amended Statement of Claim is struck, costs to the Defendant.
The parties
are to make brief submissions on costs as follows:
i)
the
Defendant, by March 10, 2010;
ii)
the
Plaintiff, in response, by March 17, 2010; and
iii)
the
Defendant, in reply, if any, by March 23, 2010.
“E.
Heneghan”
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