Docket: T-1881-11
Citation: 2012 FC 292
Vancouver, British Columbia, March 6, 2012
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
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GEORGE EDWARD BOULOS
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
Respondent, the Deputy Attorney General of Canada, seeks an
order dismissing the application for judicial review on the grounds that the
proceeding is both premature and untimely.
Facts
[2]
The
facts relevant to this motion are not in dispute. They can be gleaned from the
Notice of Application, the Applicant’s affidavit dated November 25, 2011 filed
in support of the underlying application, and the affidavit of Anne Law dated
March 25, 2011 filed by the Respondent on this motion.
[3]
The
Applicant was employed as an income/excise tax auditor at the Burnaby-Fraser
Tax Services Office of the Canada Revenue Agency (CRA). In April 2010, the
Applicant referred to adjudication six grievances before the Public Service
Labour Relations Board (PSLRB) under paragraph 209(1)(b) of the Public
Service Labour Relations Act, SC 2003, c.22 [PSLRA].
[4]
By
letters dated May 10, 2010 and June 2, 2010, the CRA raised objections to the
jurisdiction of the PSLRB to hear all six grievances. The Applicant responded
to the CRA’s objections by letters dated May 27, 2010 and June 8, 2010.
[5]
On
April 6, 2011, Ms. Martine Paradis, a Case Management Officer with the PSLRB,
wrote to the parties to advise them of instructions issued by the
adjudicator who had been assigned to the grievance files. The adjudicator was
of the view that the employer’s objections to the adjudicator’s jurisdiction
and other preliminary matters could not be adequately addressed by means of
a pre-hearing conference call. As a result, the adjudicator issued various
directions to address pre-hearing concerns. The Applicant’s request for leave
to amend his grievances by adding an award for exemplary damages and his
requests for disclosure of information were denied. The adjudicator set out in
detail the order of proceedings for the hearing of the grievances.
[6]
The
Applicant submitted a letter on April 11, 2011 questioning the adjudicator’s decisions.
The Applicant expressed concern that the PSLRB’s letter did not make reference
to his letter dated June 8, 2010. He therefore asked that the denial of his
requests for disclosure of information be reconsidered.
[7]
By
letter from the PSLRB dated August 27, 2011, the Applicant was informed that a new
adjudicator (Adjudicator) had been assigned to hear his grievances. The letter
stated that the Adjudicator had analyzed the adjudication files and requested
that the Applicant make submissions by September 7, 2011 as to why the
Applicant’s grievances, other than the one alleging wrongful dismissal (PSLRB
Reference No. 566-34-3617), were adjudicable. The Applicant responded
on August 21, 2011 that most or all of the issues raised had already been
addressed in his letters dated April 22, 2010, May 27, 2010 and June 8, 2010.
[8]
On
September 13, 2011, the Adjudicator directed the Applicant to confirm that no disciplinary
action had been imposed by the employer in relation to three grievances, and to make
submissions regarding the adjudicability of the two other grievances. The
Applicant did not comply with the directions, and instead submitted a letter
dated September 15, 2011 requesting clarification of the directions,
and the intentions of the Adjudicator.
[9]
On
September 19, 2011, the Adjudicator determined that the CRA’s jurisdictional
objections would be dealt with by written submissions, except for the grievance
alleging wrongful dismissal, and fixed a timetable for submission of the
parties’ written arguments.
[10]
By
letter dated September 21, 2011, the Applicant took issue with the Adjudicator’s
decision to deal with the jurisdictional issues by way of written submissions
on the grounds that he would be deprived of procedural fairness. His letter
concludes as follows:
With respect to the
adjudicator’s decision to
deal with the jurisdictional issues by way of written submissions without first
seeking the parties’ positions for such a course, I am hereby raising my
exception to this decision and course of action since I know that, in order to
at least prove the element that my grievances relate to discipline for which I
have the onus of supporting, I intently desire or require the evidence that is
only available through the oral testimony of witnesses. I will otherwise be
deprived of procedural fairness. It further makes little sense to me to
fragment and scatter the separate the separate jurisdictional elements that
need to be supported for paragraph 209(1)(b) of the PSLRA to apply to my
largely inextricably intertwined grievances to be adjudicable through
duplication of effort particularly when I have both very limited resources and
am also self-represented and since I will also need to support “discipline” in
my termination grievance at an oral hearing since the Employer is also
objecting to the Board’s jurisdiction to hear that grievance on a similar
basis. Such inefficient or duplication of proceedings is also known to me to be
generally avoided by the Board in similar situations and so I could only guess
why this adjudicator would [chose] to stray from that normal practice which
even the past adjudicator, whose recusal I felt compelled to seek, knew to
avoid.
[11]
On
October 4, 2011, the Adjudicator directed that the Applicant be informed that
the decision to proceed on the basis of written submissions would stand, and
that the Applicant was expected to fully participate in the process. The next
day, the Applicant reiterated his objections to the adjudicator’s decision and
repeated his concerns about the lack of procedural fairness.
[12]
On
October 7, 2011, the Adjudicator confirmed that the directions on the written
submission process would stand. The Applicant submitted another letter on
October 8, 2011 asking the Adjudicator to confirm “what appears to be an
inevitable outcome”. By letter from the PSLRB dated October 12, 2011, the
Applicant was advised that the Adjudicator could not prejudge the case before
he or she considers all submissions.
[13]
The
Applicant did not file any written submissions as directed by the Adjudicator.
He instead brought the present application for judicial review to challenge the
adjudicator’s decisions dismissing the Applicant’s objections to the written
submission process being used to deal with the jurisdictional objections raised
by the CRA. The proceeding was commenced in error before the Federal Court of
Appeal and was subsequently transferred to the Federal Court by Order of Mr. Justice
David Stratas dated November 17, 2011.
[14]
In
deference to the Court, the Applicant’s grievances have been held in abeyance
by the PSLRB pending disposition of the present application.
Analysis
[15]
In
David
Bull Laboratories (Canada) Inc v Pharmacia Inc, [1995] 1 FC 588 (CA) [David Bull
Laboratories], the Federal Court of Appeal concluded that the direct and
proper way to contest an originating notice of motion which the respondent
thinks to be without merit is to appear and argue at the hearing of the motion
itself. The rationale for this ruling was that judicial review proceedings are
designed to proceed expeditiously and motions to strike
have the potential to unduly and unnecessarily delay their determination.
[16]
However,
the Federal Court of Appeal also recognized in David Bull Laboratories
that there may be some exceptions to the general rule, as expressed at para 15:
This is not to say that there is no
jurisdiction in this Court either inherent or through Rule 5 by analogy to
other rules, to dismiss in summary manner a notice of motion which is so
clearly improper as to be bereft of any possibility of success. Such cases must
be very exceptional and cannot include cases such as the present where there is
simply a debatable issue as to the adequacy of the allegations in the notice of
motion.
[17]
Proceedings
that are premature fall within the limited category of exceptional cases. Both the Federal Court
of Appeal and this Court have consistently declined jurisdiction and
dismissed applications to judicially review tribunal decisions where the
process before the tribunal has not been exhausted.
[18]
In Greater
Moncton International Airport Authority v Public Service Alliance of Canada, 2008 FCA
68, the
Federal Court of Appeal concluded that judicial review of interlocutory
decisions should only be undertaken in the most exceptional of circumstances. The
basic concern in limiting a party’s access to the Court to challenge an interlocutory
decision is that the litigation may become unnecessary in light of the
tribunal’s ultimate decision.
[19]
Moreover,
in Canada (Border
Services Agency) v CB Powell Limited, 2010 FCA 61, the
Federal Court of Appeal confirmed that parties must exhaust their rights and remedies
under the administrative process before pursuing any recourse to the courts.
Mr. Justice David Stratas, speaking for the Court, stated as follows at
para 31:
Administrative law judgments and
textbooks describe this rule in many ways: the doctrine of exhaustion, the
doctrine of adequate alternative remedies, the doctrine against fragmentation
or bifurcation of administrative proceedings, the rule against interlocutory
judicial reviews and the objection against premature judicial reviews. All of
these express the same concept: absent exceptional circumstances, parties
cannot proceed to the court system until the administrative process has run its
course. This means that, absent exceptional circumstances, those who are
dissatisfied with some matter arising in the ongoing administrative process
must pursue all effective remedies that are available within that process; only
when the administrative process has finished or when the administrative process
affords no effective remedy can they proceed to court. Put another way, absent
exceptional circumstances, courts should not interfere with ongoing
administrative processes until after they are completed, or until the
available, effective remedies are exhausted.
[20]
The
Applicant seeks to challenge the Adjudicator’s decision to determine the CRA’s
jurisdictional objections by way of written submissions; however, no decision
on the merits of the employer’s objections has yet been made. In the
circumstances, I agree with the Respondent that the present proceeding is
premature.
[21]
The
application for judicial review is based on speculation by the Applicant that the
Adjudicator will ignore his submissions and that the outcome of his grievances
is pre-determined and inevitable. It remains that the adjudicator is master of
his or her own proceedings. In fact, section 227 of the PSLRA
specifically authorizes an adjudicator to decide any matter referred to
adjudication without holding an oral hearing.
[22]
The
Applicant does not dispute that there are three options open to the Adjudicator
after considering the written submissions of the parties. First, the Adjudicator
could grant the employer’s
objections and dismiss some or all of the five grievances on the basis that he
or she has no jurisdiction to hear them. Second, the Adjudicator could dismiss
the employer’s objections and rule that he or she has jurisdiction to hear the
grievances. Third, the Adjudicator could conclude that it is impossible, based
on the written submissions filed by the parties, to decide the issue without
having an oral hearing.
[23]
In
any of the above three scenarios, an application for judicial review may become
unnecessary in light of the Adjudicator’s decision based on the record before
him or her. Being
substantially in agreement with the written representations filed on behalf of
the Respondent, which I adopt and make mine, I conclude that the decision being
impugned in the Notice of Application is interlocutory, as opposed to
jurisdictional, in nature, and that no special circumstances have been
established that would warrant the Court’s intervention at this stage. The Applicant
should simply wait for the Adjudicator to rule on the matters before him or her
and then decide whether there are any grounds for judicial review.
[24]
The
Applicant complained in his letter dated September 21, 2011 about
fragmentation, inefficiencies and duplication of the proceedings that would
result from the written submission process dictated by the Adjudicator.
Ironically, the Applicant has, by bringing the present application, continued the
very mischief he sought to avoid.
[25]
I
conclude that there are no exceptional circumstances in the present case that
would warrant the Court’s early intervention. The application for judicial
review shall accordingly be dismissed.
[26]
In
light of the above conclusion, it is not necessary to address the Respondent’s
alternative argument that the proceeding should be dismissed on the grounds
that it is untimely. As for costs of the motion, I see no reason to deviate
from the general rule that costs should follow the event.
ORDER
THIS COURT
ORDERS that:
1.
The
application for judicial review is dismissed.
2.
Costs
of the motion, hereby fixed in the amount of $750.00, inclusive of
disbursements and taxes, shall be paid by the Applicant to the Respondent.
“Roger
R. Lafrenière”
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