Date:
20131018
Docket:
T-1318-13
Citation:
2013 FC 1047
Ottawa, Ontario,
October 18, 2013
PRESENT: The
Honourable Madam Justice Gagné
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
JUDGMENT AND JUDGMENT
[1]
This
is in response to a motion submitted by the respondent and moving party, the
Attorney General of Canada, for an order dismissing the application for
judicial review by the applicant and responding party, George Edward Boulos, of
an interlocutory decision rendered by the Public Service Labour Relations Board
[the Board], on the grounds that the proceeding is premature.
[2]
For
the reasons discussed below, I will grant the moving party’s motion and dismiss
the application.
Background
[3]
Mr.
Boulos was employed as an income/excise tax auditor at the Canada Revenue
Agency [the CRA]. In April 2010, he referred six grievances to adjudication before
the Board under paragraph 209(1)(b) of the Public Service Labour Relations
Act, SC 2003, c. 22 [the Act]. They were originally scheduled to be heard
from May 31 to June 3, 2011.
[4]
On
June 2, 2010, the CRA raised objections to the jurisdiction of the Board to
hear the grievances on the basis that they were not related to a disciplinary
action resulting in termination, demotion, suspension or financial penalty.
[5]
On
March 17, 2011, Mr. Boulos requested that the assigned adjudicator order the CRA
to provide him with the residential and mailing addresses of ten individuals
employed or formally employed by it. The CRA objected to having to disclose the
residential and mailing addresses of its current and former employees due to
privacy concerns.
[6]
On
May 25 or 26, 2011, a few days prior to the hearing, the issue of the
disclosure of the personal addresses of current and past employees was
discussed during a pre-hearing conference call. The CRA accepted to facilitate
service of summonses (if issued by the Board) to its current employees by
serving them at the workplace. At that stage, there were only two individuals
no longer at the employ of the CRA, out of the ten sought by Mr. Boulos for the
issuance of summonses.
[7]
The
affidavit of Matthew Yaworski, a Labour Relations advisor for the CRA, claims
that the
adjudicator, Michèle A. Pineau then denied Mr. Boulos’ request for an order to
disclose employees and ex-employees’ personal addresses on
the basis that the information sought was personal information pursuant to the Privacy
Act, RSC,
1985, c P-21. Mr. Boulos, however, denies that a conclusion on the subject was
reached at that time.
[8]
Either
way, the
hearing scheduled for May 31 to June 3, 2011 was postponed, since it was too
late at that point to issue and serve summonses.
[9]
On
May 27, 2011, counsel for the CRA confirmed by email to Mr. Boulos that the CRA
would facilitate to the best of its abilities the service of summonses to
employees of the CRA, if such summonses were eventually to be issued by the
Board.
[10]
Shortly
after the pre-hearing conference call, Mr. Boulos sent a request in writing to
the Board for the adjudicator Pineau to recuse herself from the file. However,
on August 2, 2011, Ms. Pineau decided that the issue had become moot as her
mandate as an adjudicator would end in December, 2011, and her schedule was
fully booked until then.
[11]
The
grievances were therefore assigned to Mr. Renaud Pacquet [the Adjudicator].
[12]
On
September 19, 2011, the Adjudicator determined that the CRA’s objections to the
jurisdiction of the Board to hear the grievances would be dealt with by way of
written submissions, with the exception of one of the grievances.
[13]
On
October 27, 2011, Mr. Boulos filed an application for judicial review before
the Federal Court of Appeal to challenge the Adjudicator’s decision to deal
with some of his grievances in writing. On November 17, 2011, the Federal Court
of Appeal ordered the transfer of file to this Court.
[14]
In
January 2012, the moving party filed a motion to dismiss the application for
judicial review, on the basis that it was premature and untimely.
[15]
On
March 6, 2012, Prothonotary Roger Lafrenière agreed with the moving party and dismissed
the application for judicial review (Boulos v Attorney General of Canada, 2012 FC 292 [Boulos]). In doing so, he held, at para 23, that:
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.
[16]
On
April 25, 2013, Madam Justice Snider dismissed Mr. Boulos’ motion for an
extension of time to appeal the order.
[17]
On
October 4, 2012, following the completion of the written submissions process
before the Board, the Adjudicator determined that he did not have sufficient
information to rule on the objections filed by the CRA and decided that a
hearing would be called to hear evidence and arguments on the merit of all six
grievances and the objections.
[18]
On
October 15, 2012, Mr. Boulos filed for bankruptcy and the Attorney General
filed a proof of claim with the Trustee, in an attempt to recover the amount of
$1,250 due to the Receiver General for Canada (following the above mentioned orders
of the Federal Court).
[19]
On
March 19, 2013, the Board scheduled the hearing for April 29 to May 3, 2013.
[20]
On
April 3, 2013, Mr. Boulos once again raised the issue of the disclosure of the personnel
addresses of his witnesses and the Adjudicator directed that a pre-hearing
teleconference be held to discuss this matter along with other procedural
issues.
[21]
On
April 18, 2013, the CRA determined that five out of the ten persons identified
as potential witnesses by Mr. Boulos were still employed by the CRA and
reiterated to Mr. Boulos that it agreed to provide assistance for the service
of summonses to these five employees. The CRA was also ready to assist Mr.
Boulos in serving one of its former employees with who it was still in contact.
[22]
On
April 19, 2013, during the pre-hearing conference call, the Adjudicator decided
that the issue regarding the disclosure of ex-employees’ addresses (the
remaining four witnesses from Mr. Boulos’ list) would be dealt with by way of
written submissions. The Adjudicator also decided once again that the hearing
would be postponed.
[23]
On
June 25, 2013, the Adjudicator decided that he would not order the CRA to
disclose the requested information. The Adjudicator reiterated the
confidentiality of the information sought, and he noted that each party had the
onus of reaching and finding its own witnesses. However, the Adjudicator also noted
that Mr. Boulos had raised valid concerns regarding the difficulty for him to
reach the witnesses in question and he proposed the following alternative:
I propose that the employer make the arrangements to
serve the summons to these four witnesses at the addresses that it has on file,
and that the grievor pays the employer for the costs associated with serving
the summonses.
[24]
The
hearing is now scheduled to be held on February 25-28, 2014.
[25]
The
CRA has not objected to the Adjudicator’s proposal. However, the Adjudicator’s
proposal has not yet been implemented, as the CRA has yet to receive any
summonses from Mr. Boulos. Instead, Mr. Boulos has applied for judicial review of
that interlocutory decision before this Court.
Analysis
[26]
This
is Mr. Boulos’ second application for judicial review of an interlocutory
decision in relation to his grievances before the Board. Once more, the
application does not raise a pure question of jurisdiction, nor exceptional circumstances
to warrant the Court’s intervention at this time. Before applying for judicial
review, Mr. Boulos must exhaust all of the rights and remedies available under
the administrative process. He has failed to do so.
[27]
As
Prothonotary Lafrenière has already explained to Mr. Boulos at para 17 of Boulos,
“courts have consistently declined jurisdiction and dismissed applications to
judicially review tribunal decisions where the process before the tribunal has
not been exhausted.”
[28]
As
the Federal Court of Appeal notes in Greater Moncton International Airport
Authority v Public Service Alliance of Canada, 2008 FCA 68 at para 1, the
basic concern in limiting a party’s access to the Court to challenge an
interlocutory decision “is that such litigation may become unnecessary in light
of the Board’s ultimate decision in this matter.”
[29]
The
Federal Court of Appeal, in Canada (Border Services Agency) v CB
Powell Limited, 2010 FCA 61, reiterates this, in saying:
[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.
[30]
Moreover,
as the Supreme Court of Canada states in Halifax (Regional Municipality) v Nova Scotia (Human
Rights Tribunal),
2012 SCC 10 at para 35:
early
judicial intervention risks depriving the reviewing court of a full record
bearing on the issue; allows for judicial imposition of a “correctness”
standard with respect to legal questions that, had they been decided by the
tribunal, might be entitled to deference; encourages an inefficient
multiplicity of proceedings in tribunals and courts; and may compromise
carefully crafted, comprehensive legislative regimes.
[31]
Mr.
Boulos contends that the Adjudicator’s failure to exercise his jurisdiction
under paragraph 226(1)(e) of the Act provides grounds for his application for
judicial review. This argument is without merit. Assuming Mr. Boulos in fact
meant paragraph 226(1)(a) of the Act, the Adjudicator is not required to compel
witnesses, but may do so – this decision is of his own prerogative. If
he does however, section 18 of the Public Service Labour Relations Board
Regulations, SOR 2005/79 provides that he may “require that an application
for a summons contain the name and address of the witness to be summoned…” Accordingly,
there is no issue of jurisdiction before the Court. Mr. Boulos’ application for
judicial review is in fact dealing with an interlocutory decision, one that is of
a procedural nature.
[32]
Mr.
Boulos alternatively contends that the Adjudicator’s refusal to order the
disclosure of the personal addresses of the individuals in question will
prevent him from calling them as witnesses, and, accordingly, will be fatal to
the outcome of the adjudication process. As such, despite the lack of
jurisdiction, these exceptional circumstances should justify the Court’s
intervention.
[33]
Mr.
Boulos cites Canada (Attorney General) v Quadrini, 2011 FCA 115 [Quadrini],
as an instance where the Federal Court of Appeal granted an application for
judicial review of an interlocutory order by the Board. In Quadrini, the
Board had ordered the CRA to provide an affidavit sworn by its solicitor
describing the nature of the contents of pages that had been redacted from an
exhibit on the ground that they were subject to solicitor-client privilege. The
Federal Court of Appeal allowed the application for judicial review, noting at
para 29 that:
It is widely acknowledged that the protection of the
confidentiality of legal advice communicated by lawyers to their clients is of
fundamental importance to the administration of justice. […] Disclosure is
permitted only when it is an “absolute necessity… as restrictive a test as can
be formulated short of an absolute prohibition in every case”: Goodis v Ontario (Correctional Services), 2006 SCC 31 at para 20.
[34]
The
Federal Court of Appeal thus held that solicitor-client privilege was considered
to fall under the category of exceptional circumstances for the Court to allow
an application for judicial review of an interlocutory decision, as the law
only allows for the breach of solicitor-client privilege in very rare and
specific instances. As such, the information in question in Quadrani was
to remain confidential.
[35]
Mr.
Boulos’ circumstances do not measure up to the exceptional circumstance of solicitor-client
privilege in Quadrani. Ultimately, it is Mr. Boulos’ responsibility to
reach and find his own witnesses; ordering the CRA to divulge the addresses of
current and former CRA employees would in fact facilitate Mr. Boulos’ efforts. However,
there are other ways for Mr. Boulos to find the witnesses in order to serve
summonses. The Adjudicator has in fact suggested one such way.
[36]
I
also note that, on a broader level, similarly to the Federal Court of Appeal in
Quadrani, the Adjudicator has not allowed Mr. Boulos access to the
information he seeks because the law, in our case the Privacy Act, forbids
its disclosure. One should read Quadrani to mean that the unlawful disclosure
of confidential information is the exceptional circumstance required for the
Court to allow for an application for judicial review of an interlocutory
decision. Applications for judicial review therefore should not be allowed for
the inverse situation.
[37]
At
its essence, Mr. Boulos’ position in respect of his claims of exceptional
circumstances is based on mere speculation. Considering the legitimate privacy
considerations at issue in providing Mr. Boulos with the requested information,
the Adjudicator proposed a reasonable compromise that should not prove to be
fatal to the outcome of the adjudication process.
[38]
Moreover,
the CRA has shown itself willing to serve the summonses to the witnesses still
at its employ, as well as to serve at their last known addresses those
witnesses who no longer work at the CRA. There are no grounds to believe Mr.
Boulos’ allegations that, owing to the “bad faith” of the CRA, it may deliberately
choose to frustrate the aforementioned process. Accordingly, there is no reason
to suggest that the Adjudicator’s decision will have a detrimental impact on
the outcome of the grievances.
[39]
As
to Mr. Boulos’ argument that the proposed arrangement would require him to pay
for the services of a process server, I am sensitive to Mr. Boulos’ precarious
financial situation and the additional costs he would bear as a result.
However, the moving party is not required to bear the costs attached to service
of summonses because of Mr. Boulos’ impecuniosity. In any event, should a solution
not be reached in this respect, Mr. Boulos can, should he so choose, raise this
issue in a judicial review of the final decision of the Adjudicator on
the merit of his case.
[40]
In
fact, the same reasoning extends to any procedural unfairness suffered by Mr.
Boulos from any other future interlocutory decision or order made by the
Adjudicator. Mr. Boulos must wait for the Adjudicator to rule on his
grievances. Ultimately, the Adjudicator may very well find in his favour,
rendering the issue before this Court, or any other future interlocutory decision
or order, moot. If not, Mr. Boulos can then decide whether there are any
grounds for judicial review.
Conclusion
[41]
For
these reasons, I will grant the motion to dismiss and I will dismiss the
application for judicial review. I will award costs to the moving party in the
amount of $750.00.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The
motion to dismiss is granted;
2. The
application for judicial review of the Public Service Labour Relations Board’s
interlocutory decision, rendered on June 25, 2013, is dismissed;
3. Costs
of the motion, hereby fixed in the amount of $750.00, inclusive of disbursement
and taxes, shall be paid by the applicant to the respondent and moving party.
“Jocelyne Gagné”
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