Docket: T-87-16
Citation:
2016 FC 649
Ottawa, Ontario, June 10, 2016
PRESENT: The Honourable Mr. Justice Fothergill
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BETWEEN:
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RICHARD TUDOR
PRICE
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Plaintiff
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and
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ATTORNEY
GENERAL OF CANADA
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Defendant
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ORDER AND REASONS
I.
Introduction
[1]
The Attorney General of Canada [Attorney
General] has brought a motion pursuant to Rule 221 of the Federal Courts
Rules, SOR/98-106 [the Rules] to strike the statement of claim filed by
Richard Tudor Price without leave to amend. The Attorney General says that this
Court is without jurisdiction to adjudicate Mr. Tudor Price’s claims, and the
statement of claim is frivolous or vexatious, or is otherwise an abuse of
process.
[2]
For the reasons that follow, I have concluded
that the grievance procedure found in the Public Service Labour Relations
Act, SC 2003, c 22, s 2 [PSLRA] provides the only forum in which Mr.
Tudor Price may seek relief for the mistreatment he allegedly suffered at the
hands of his supervisors and employer. It is therefore appropriate to strike
the statement of claim in its entirety without leave to amend (Bron v Canada
(Attorney General), 2010 ONCA 71 [Bron]).
II.
Background
[3]
Mr. Tudor Price is a former federal public
servant. He began working at Agriculture and Agri-Food Canada [AAFC] in 1982
and was employed in various executive positions throughout his career. He seeks
damages and costs arising from his alleged mistreatment by senior managers at
AAFC.
[4]
In July 2010, Mr. Tudor Price was informed that
his performance rating for the 2009-2010 review period was “succeeded minus”. Performance ratings determine the
amounts payable to employees as performance awards. For employees nearing
retirement, a performance rating may also affect the amount of their pensions.
[5]
Mr. Tudor Price complained about his performance
rating to the Acting Director General for Executive Group Services, Human
Resources Branch, and eventually to the Assistant Deputy Minister [ADM], Human
Resources. Mr. Tudor Price alleged that in November 2010, he and the ADM, Human
Resources verbally agreed that his 2009-2010 performance rating would be
changed to “succeeded”; that he would receive
the same performance rating for 2010-2011 if he received positive performance
reviews; and, in return, he would resign from the public service by June 30, 2011.
The ADM, Human Resources denied agreeing to these terms.
[6]
Mr. Tudor Price retired from AAFC at the end of
June 2011. On August 2, 2011, he was informed that his performance rating for
his final year of employment was “succeeded minus”.
This resulted in performance pay that was $4,760 less than the amount he would
have received with a rating of “succeeded”, and
it also affected his pension.
[7]
On August 5, 2011, Mr. Tudor Price filed a
formal grievance in which he requested that his performance rating be changed
to “succeeded”.
[8]
In November 2011, a group of AAFC officials met
to discuss Mr. Tudor Price’s grievance. They prepared a document titled “Grievor Performance Explanation”, which was provided
to the ADM, Human Resources on December 14, 2011. The document was not provided
to Mr. Tudor Price prior to the hearing of his grievance.
[9]
On February 24, 2012, the ADM, Human Resources
Branch denied Mr. Tudor Price’s grievance in a “Final
Level Grievance Decision”.
[10]
Mr. Tudor Price subsequently referred his
grievance to the Public Service Labour Relations Board [the Board]. In May
2013, the Board found that his grievance was not eligible for adjudication
under the PSLRA (Tudor Price v Deputy Head (Department of Agriculture and
Agri-Food), 2013 PSLRB 57). The Board denied Mr. Tudor Price’s grievance
and rejected the allegations that his treatment by AAFC officials amounted to
bad faith or disguised discipline:
[48] I find that the grievor’s bad faith
argument is based on a series of assumptions he made, none of which were
established by any compelling evidence, and that it clearly lacks the necessary
credence to bring his grievance within the scope of section 209 of the Act.
[…]
[52] What transpired in this case was not
the work of senior managers motivated by bad faith or a desire to punish or
discipline an employee for reasons unrelated to his performance. Rather, it was
the collective effort of a Committee specifically mandated to review and
approve the performance assessments of a group of executives and to ultimately
assign appropriate performance ratings to each of them, subject to the deputy
minister’s approval.
[11]
Mr. Tudor Price sought judicial review of the
Board’s decision. On March 31, 2014, Justice Gleason agreed that the Board
lacked jurisdiction over Mr. Tudor Price’s claim and dismissed his application
for judicial review.
[12]
In light of the Court’s ruling, Mr. Tudor Price
sought judicial review of the “Final Level Grievance
Decision” of the ADM, Human Resources. On June 1, 2015, Justice Heneghan
allowed the application on grounds of procedural fairness. She found that the
AAFC decision-maker had improperly relied on documents and materials that were
not disclosed to Mr. Tudor Price (Price v Canada (Attorney General), 2015
FC 696).
[13]
On February 12, 2016, Mr. Tudor Price was
informed that the redetermination of his grievance had resulted in a favourable
decision. His performance rating for the 2010-2011 review period was changed to
“succeeded”, and his pay and pension benefits
were adjusted accordingly.
[14]
Despite his apparent success, on March 7, 2016,
Mr. Tudor Price filed an application for judicial review of the decision to
allow his grievance. Mr. Tudor Price says that the final level decision-maker:
failed to deal with his allegations of bad faith and damage to his reputation;
failed to consider the allegation that his resignation was invalid because it
was induced by deceit; unreasonably refused to allow an amendment of the
grievance to include additional allegations; provided inadequate reasons; and
failed to consider remedies such as damages for injury to reputation and
reinstatement. Mr. Tudor Price has asked this Court to return the matter to
AAFC for a full de novo hearing that addresses all of his allegations
and proposed remedies. He has also requested that his application for judicial
review be converted into an action so that he may seek damages from this Court
for abuse of authority, misfeasance in public office, and other torts allegedly
committed by AAFC officials. The application for judicial review is currently
pending before this Court (Court File No. T-400-16).
[15]
On January 15, 2016, Mr. Tudor Price filed the
statement of claim in the present action, in which he alleges that the “actions of AAFC officials in processing his grievance in
2011 constitute misfeasance in public office”.
[16]
On February 12, 2016, the Attorney General moved
to strike Mr. Tudor Price’s statement of claim under Rule 221(a), (c) and (f),
pursuant to which the Court may, at any time, order that a pleading be struck
on the ground that it: (a) discloses no reasonable cause of action; (c) is
scandalous, frivolous or vexatious; or (f) is otherwise an abuse of the Court’s
process.
III.
Issues
[17]
The Attorney General’s motion to strike Mr.
Tudor Price’s statement of claim raises two issues.
A.
Should the statement of claim be struck for want
of jurisdiction?
B.
Should the statement of claim be struck because
it is frivolous or vexatious, or otherwise an abuse of the Court’s process?
IV.
Analysis
[18]
A motion to strike under Rule 221 will succeed
only if it is plain and obvious that the claim discloses no reasonable cause of
action (Hunt v Carey Can Inc., [1990] 2 S.C.R. 959, [1990] 1 WDCP (2d) 523
(SCC)). In cases where matters are not fully settled by the jurisprudence, the
Court should hesitate to strike a motion for want of jurisdiction because
complex questions of statutory interpretation are better left for argument at
trial (Committee for Monetary and Economic Reform (“COMER”) v R, 2016 FC
147 at para 68).
A.
Should the statement of claim be struck for want
of jurisdiction?
[19]
The Attorney General says that the allegations
contained in Mr. Tudor Price’s statement of claim are wholly related to his
employment, and may therefore be pursued only by way of grievance in accordance
with the PSLRA. Mr. Tudor Price responds that he was no longer an employee of
AAFC at the time of the alleged misfeasance, and the PSLRA does not therefore
oust this Court’s jurisdiction. He also maintains that allegations of malice
and corruption are beyond the scope of the grievance process.
[20]
Employment-related disputes may be grieved in
accordance with s 208(1) of the PSLRA, which provides as follows:
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208. (1) Subject to subsections (2) to (7), an employee is
entitled to present an individual grievance if he or she feels aggrieved
(a) by the
interpretation or application, in respect of the employee, of
(i) a provision
of a statute or regulation, or of a direction or other instrument made or
issued by the employer, that deals with terms and conditions of employment,
[...]
(b) as a result
of any occurrence or matter affecting his or her terms and conditions of
employment.
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208 (1) Sous réserve des paragraphes (2) à (7), le fonctionnaire a le
droit de présenter un grief individuel lorsqu’il s’estime lésé :
a) par
l’interprétation ou l’application à son égard :
(i) soit de toute
disposition d’une loi ou d’un règlement, ou de toute directive ou de tout
autre document de l’employeur concernant les conditions d’emploi, […]
b) par suite de
tout fait portant atteinte à ses conditions d’emploi.
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[21]
The Attorney General says that Mr. Tudor Price’s
complaints fall under both ss 208(1)(a)(i) and (b) of the PSLRA, because they
concern the application of the employer’s performance review policies and the
grievance process. They are also matters affecting Mr. Tudor Price’s terms and
conditions of employment.
[22]
Citing Bron at paragraph 33, the Attorney
General submits that s 236 of the PSLRA “explicitly
ousts” this Court’s jurisdiction over claims that may be the subject of
a grievance under s 208 of the PSLRA. Section 236 of the PSLRA provides as
follows:
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236. (1) The right of an employee to seek redress by way of
grievance for any dispute relating to his or her terms or conditions of
employment is in lieu of any right of action that the employee may have in
relation to any act or omission giving rise to the dispute.
(2) Subsection
(1) applies whether or not the employee avails himself or herself of the
right to present a grievance in any particular case and whether or not the
grievance could be referred to adjudication.[…]
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236 (1) Le droit de recours du fonctionnaire par voie de grief
relativement à tout différend lié à ses conditions d’emploi remplace ses droits d’action en
justice relativement aux faits — actions ou omissions — à l’origine du
différend.
(2) Le paragraphe
(1) s’applique que le fonctionnaire se prévale ou non de son droit de
présenter un grief et qu’il soit possible ou non de soumettre le grief à
l’arbitrage. […]
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[23]
Subsection 206(2) of the PSLRA addresses a
former employee’s right to grieve, and provides as follows:
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206. (2) Every reference in this Part to an “employee” includes a
former employee for the purposes of any provisions of this Part respecting
grievances with respect to
(a) any
disciplinary action resulting in suspension, or any termination of employment,
under paragraph 12(1)(c), (d) or (e) of the Financial Administration Act.[…]
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(2) Les dispositions de la présente partie relatives aux griefs
s’appliquent par ailleurs aux anciens fonctionnaires en ce qui concerne :
a) les mesures
disciplinaires portant suspension, ou les licenciements, visés aux alinéas
12(1)c), d) ou e) de la Loi sur la gestion des finances publiques; […]
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[24]
Mr. Tudor Price says that he is not concerned
with a “disciplinary action resulting in suspension, or
any termination of employment”. He submits that the grievance process is
not available to him because he does not fall within the PSLRA’s definition of “former employee”.
[25]
The Attorney General admits that, on its face,
the definition of “employee” in s 206(2) appears
to limit the rights of former employees to grieve matters related to their
suspension or termination. However, the Attorney General describes s 206(2) as
an enabling rather than a limiting provision, and says that jurisprudence
supports a broad interpretation of a former employee’s right to grieve under s
208 of the PSLRA. The Attorney General submits that the determinative question
is not whether an individual was still employed at the time the dispute arose,
but rather whether the matter relates to the individual’s employment.
[26]
The Federal Court of Appeal has held that s
90(1) of the former Public Service Staff Relations Act, the predecessor
to s 208(1) of the current PSLRA, must be read so as to include any person who
feels “aggrieved as an employee” (R v Lavoie (1977),
[1978] 1 FC 778 at para 10, [1977] 2 ACWS 81 (Fed CA) [Lavoie]).
Although Lavoie concerned an alleged disciplinary dismissal, this Court
has interpreted the decision as preserving the right of former employees to
grieve where “the matter giving rise to the grievance
arose during the course of the individual’s employment, where the individual
was aggrieved as an employee” (Salie v Canada (Attorney General), 2013
FC 122 at para 61 [Salie]).
[27]
In Salie, Justice Mactavish reviewed the
leading jurisprudence governing the question of a former employee’s right to
grieve, including Gloin v Canada (Attorney General) (1977), [1978] 2 FC
307 (Fed CA) at para 8; PIPSC v Solicitor General, [1979] CPSSRB No 6
(Can PSSRB) at para 28; Hunt v Canada (Treasury Board), [1997] CPSSRB No
84 (Can PSSRB) at para 6; and Glowinski v Canada (Treasury Board), 2006
FC 78). Justice Mactavish concluded that the disputes in each of the cases
related either to “the rejection of an individual while
on probation (in one case, for potentially disciplinary reasons), or related to
matters that arose while the individual was still employed in the Public
Service”. She observed that “[n]one of the cases
involved a dispute that arose long after the individual ceased to be a
government employee” (at para 59).
[28]
The dispute in Salie concerned an
employer’s mistaken and duplicative grant of severance pay to an employee,
which the employer attempted to recover approximately two years after the
employee left the public service. In that context, Justice Mactavish held that
the grievance process was not available to Mr. Salie because he had not been “aggrieved as an employee”. She therefore accepted
jurisdiction over the matter.
[29]
Counsel for the Attorney General, in her role as
Officer of the Court, also referred to Martell v Canada (Attorney General),
2016 PECA 8 [Martell], a recent decision of the Prince Edward Island
Court of Appeal. The case concerned a former employee of the Royal Canadian
Mounted Police [RCMP], who brought an action for damages arising from harassment
that allegedly occurred while she was employed by the RCMP and also after her
resignation. The Attorney General brought a preliminary motion seeking to have
the proceeding dismissed. The Court of Appeal agreed with the motions judge
that the claims relating to the period of employment covered by a collective
agreement should be struck for want of jurisdiction. The Court of Appeal held
at paragraph 22:
The motions judge found that the PSLRA and
the Collective Agreement constitute a comprehensive and exclusive employment
dispute resolution. I agree. An employee cannot escape the provisions
of the PSLRA and the Collective Agreement by resigning and suing.
[30]
However, the appeal was allowed with respect to
the motions judge’s order to strike the claims relating to the allegations
concerning actions that occurred after the employee’s resignation. The Court of
Appeal noted at paragraph 37:
Claims of abuse, threats, and harassment
which occurred long after the employment relationship ended cannot be
considered matters in which the essential character of the dispute is rooted in
the appellant’s term of employment with the RCMP. To phrase it another way, the
claims the appellant raised regarding events that occurred subsequent to
resignation are not exclusively the proper subject of collective bargaining,
and the PSLRA or Collective Agreement do not provide a remedy for these claims.
[31]
In my view, the present case may be
distinguished from both Salie and Martell. The complaints
advanced by Mr. Tudor Price in this case are clearly rooted in his employment
relationship with AAFC. They relate to matters that arose while he was employed
in the public service, including the circumstances that precipitated his
retirement from AAFC, his final performance rating, and the manner in which
senior AAFC officials processed his grievance. Mr. Tudor Price is
therefore “aggrieved as an employee”.
[32]
It is telling that Mr. Tudor Price in fact
availed himself of the grievance process. He alleges at paragraph 36 of his
statement of claim that the “actions of AAFC officials in
processing his grievance in 2011 constitute misfeasance in public office”
[emphasis added]. His claim for damages is inextricably connected to the
initial grievance, which he filed while he was still an employee of AAFC.
[33]
Mr. Tudor Price’s bald allegations of bad faith,
malice and corruption do not bring his claims outside the scope of the
grievance process (see, e.g., Tipple v Canada (Attorney General),
2012 FCA 158).
[34]
I am satisfied that the grievance process found
in the PSLRA provides the only forum in which Mr. Tudor Price may seek relief
for the mistreatment he allegedly suffered at the hands of his supervisors and
employer. It is therefore appropriate to strike the statement of claim in its
entirety without leave to amend (Bron). Whether the AAFC properly
adjudicated all of the allegations and remedies advanced by Mr. Tudor Price in
his grievance is another matter, and will be addressed in his concurrent
application for judicial review (Court File No. T-400-16).
B.
Should the statement of claim be struck because
it is frivolous or vexatious, or otherwise an abuse of the Court’s process?
[35]
In light of my decision regarding this Court’s
lack of jurisdiction over the subject-matter of Mr. Tudor Price’s statement of
claim, it is unnecessary to determine whether it is also scandalous, frivolous
or vexatious contrary to Rule 221(1)(c), or an abuse of the Court’s process
contrary to Rule 221(1)(f). I would simply note that the relief sought in
paragraph 45 (lost salary, pay-at-risk and pension benefits) has already been
granted through the grievance process.
[36]
Similarly, the relief sought in paragraph 46
(costs associated with Mr. Tudor Price’s litigation with AAFC since August
2011) has been adjudicated by this Court and in other fora: Justice Gleason
declined to award costs in Mr. Tudor Price’s application for judicial review of
the Board’s decision; Justice Heneghan awarded Mr. Tudor Price costs in the
judicial review of the first final level grievance decision; the decision-maker
in the second final level grievance decision declined to award costs. Mr. Tudor
Price has sought judicial review of that decision, and the costs associated
with that proceeding will therefore be considered in that context.
[37]
The only remaining relief sought by Mr. Tudor
Price in this action is found in paragraph 47 of his statement of claim, in
which he seeks general, special and aggravated damages, together with interest,
for injury to his reputation and mental distress. Mr. Tudor Price’s allegation
of misfeasance in public office was not addressed in the redetermination of his
grievance. Again, whether the decision-maker should have considered this aspect
of his claim will be considered in the context of his application for judicial
review of that decision.
V.
Costs
[38]
The Attorney General seeks costs, and has
presented a draft Bill of Costs in the amount of $1,680.00 (excluding
disbursements). Mr. Tudor Price represented himself in this matter. The issues
were somewhat complex for a lay litigant, and his submissions were well-considered.
Given all of the circumstances, I exercise my discretion to award lump sum
costs to the Attorney General in the amount of $1,000.00, inclusive of
disbursements and interest.
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