Marshall v. Canada, 2007 FCA 215

Date: 20070530

Docket: A-43-06

Citation: 2007 FCA 215

CORAM:       NADON J.A.

                        PELLETIER J.A.

                        RYER J.A.

BETWEEN:

JOSEPHINE E. MARSHALL

Appellant

and

HER MAJESTY THE QUEEN,

the PUBLIC SERVICE ALLIANCE OF CANADA

and the UNION OF PUBLIC SERVICE EMPLOYEES

Respondents

Heard at Halifax, Nova Scotia, on May 30, 2007.

Judgment delivered from the Bench at Halifax, Nova Scotia, on May 30, 2007.

REASONS FOR JUDGMENT OF THE COURT BY:                                             PELLETIER J.A.

Date: 20070530

Docket: A-43-06

Citation: 2007 FCA 215

CORAM:       NADON J.A.

                        PELLETIER J.A.

                        RYER J.A.

BETWEEN:

JOSEPHINE E. MARSHALL

Appellant

and

HER MAJESTY THE QUEEN,

the PUBLIC SERVICE ALLIANCE OF CANADA

and the UNION OF PUBLIC SERVICE EMPLOYEES

Respondents

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Halifax, Nova Scotia, on May 30, 2007)

PELLETIER J.A.

[1]               This is an appeal from the decision of Mr. Justice Blais of the Federal Court granting the respondents' motion for summary judgment.

[2]               Blais J. granted summary judgment on the basis that the Federal Court did not have jurisdiction to entertain the appellant's action in damages arising from her dismissal from the federal public service. When Blais J.'s decision is read carefully it appears that the judge, following the decision of the Supreme Court of Canada in Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146, declined to intervene notwithstanding the apparent absence of independent third party adjudication of the appellant's claims, on the ground that the integrity of the statutory scheme set out in the Public Service Staff Relations Act, R.S.C. 1985 c. P-35 (s. 91) (the Act), required the courts to defer to the statutory scheme except in exceptional circumstances.

[3]               While we agree with the learned judge's conclusion, we get there by a different route.

[4]               The appellant seeks to have the Federal Court award her damages for wrongful dismissal. Disciplinary dismissal is a matter which is arbitrable under the terms of the Act and the appellant exercised that right. Before an adjudicator appointed under the Act, she argued that her layoff was pretextual and that she had been fired for disciplinary reasons. Had the arbitrator accepted that characterization he would have been in a position to decide whether the disciplinary dismissal was warranted, and if not, to give the appellant the appropriate relief.

[5]               The arbitrator, after having carefully considered all of the exhibits put before him, and having assessed the evidence led, concluded that the appellant had not convinced him that management "acted in such a way as to enable me to conclude at the end that Mrs. Marshall was discharged for disciplinary reason, using the layoff route to get rid of her." (A.B., vol. 2, at page 563).

[6]               Having put her case to an independent adjudicator and lost, the appellant cannot attempt to relitigate the very same issues in the Federal Court. Since the appellant had the benefit of an independent third party adjudication, Blais J. was correct to say that the Federal Court ought not to hear an action claiming the same relief.

[7]               To the extent that the appellant relies upon allegations of wrongful conduct preceding her dismissal, she is on the horns of a dilemma. If she claims relief in respect of those matters as a separate head of liability, and assuming the Federal Court had jurisdiction, then she is caught by the relevant limitation periods, all of which expired long before she issued her claim. If she relies upon those incidents in support of her claim for wrongful dismissal, they were dealt with by the adjudicator when he dismissed her grievance.

[8]               That is sufficient to dispose of the claim against the Crown.

[9]               The case against the unions must also fail. Blais J. did not specifically refer to those claims but it is clear from his reasons that he intended to dispose of the action as a whole.

[10]           The Federal Court has no jurisdiction to deal with claims between subject and subject, except where that right is provided by statute. For example, it enjoys that jurisdiction in maritime matters by virtue of section 22 of the Federal Courts Act. In this case, counsel was not able to point to any disposition which would give the Court jurisdiction over a labour union in respect of an alleged breach of the duty of fair representation.

[11]           For that reason, the claim against the union respondents should also be dismissed.

[12]           As a result, the appeal will be dismissed with costs.

"J.D. Denis Pelletier"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                              A-43-06

STYLE OF CAUSE:                                                              JOSEPHINE E. MARSHALL v. HER MAJESTY THE QUEEN ET AL

PLACE OF HEARING:                                                        HALIFAX, NOVA SCOTIA

DATE OF HEARING:                                                          MAY 30, 2007

REASONS FOR JUDGMENT OF THE COURT BY:       NADON J.A.

                                                                                                PELLETIER J.A.

                                                                                                RYER J.A.

DELIVERED FROM THE BENCH BY:                            PELLETIER J.A.

APPEARANCES:

SOLICITORS OF RECORD: