[1] The issue in this case is whether the Appellant, a former employee of the Respondent who seeks early retirement incentive benefits (ERI benefits) under a federal statute and regulation, is obliged to pursue his claim through the grievance procedure set out in section 91 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ["PSSRA"] or is able to elect to pursue his claim through an action launched in the Trial Division of this Court. It is my view that Parliament by section 91 of the PSSRA has ousted the jurisdiction of the Court over the dispute in issue. The decisions of this Court in Johnson-Paquette v. Canada (2000), 253 N.R. 305 (F.C.A.) ["Johnson-Paquette"] and Public Service Alliance of Canada v. Canada (Treasury Board) [2001], F.C.J. No. 858 (T.D.); affirmed [2002] F.C.J. No. 850 (C.A.) ["PSAC"] are consistent with this outcome.

[2] The facts in this case and the relevant legislative framework are clearly set out in the reasons of Evans J.A. and hence need not be repeated here.

Previous Jurisprudence

[3] In my opinion, this Court decided in PSAC and Johnson-Paquette that the statutory scheme in the PSSRA ousts the jurisdiction of the Court. Therefore, what remains to consider is the nature of the dispute in the present case - that is - does it fall under the provisions of the statutory scheme of the PSSRA.

[4] In Johnson-Paquette, the Federal Court of Appeal applied the exclusive jurisdiction model set out by the Supreme Court of Canada in Weber v. Ontario, [1995] 2 S.C.R. 929 ["Weber"] to the PSSRA scheme. Under this model, the jurisdiction of the Court is ousted if the dispute between the parties arises from the collective agreement. This model is applicable to the grievance procedure set out in sections 91 and 92 of the PSSRA, as this process was adopted by the parties in Johnson-Paquette through the collective agreement. Since the dispute between the parties arose from the employment relationship, Noël J.A. concluded that the courts did not have jurisdiction to hear the action, even though two of the plaintiff's claims were not covered by section 92 of the PSSRA, and, therefore, were not subject to independent third party adjudication. He stated the following at para. 10:

Parliament's will to exclude the intervention of the courts in labour relation disputes may therefore be expressly stated or arise by necessary implication. Where, as is the case for the PSSRA, Parliament has, through legislation, adopted what is obviously intended as a full code for the resolution of labour disputes in a given sector of activity and has made the outcome of the legislated processes final and binding on those concerned, it would offend the legislative scheme to permit recourse to ordinary courts which have not been assigned with these tasks. In order to give effect to such schemes, Parliament must be taken as having excluded recourse to the ordinary courts.

[5] Johnson-Paquette was followed by the Federal Court in PSAC, which involved an application for judicial review of a decision of the Commissioner of the Canadian Grain Commission. The Applications judge dealt with two issues: (1) does the applicant have standing to bring this application for judicial review; and, (2) should this application for judicial review be struck as a result of the statutory grievance procedure provided for under the PSSRA [para 15]. When dealing with the latter issue, the Applications judge stated at para. 60:

In the present matter, I find that the PSSRA establishes a comprehensive scheme for the resolution of employment-related disputes between employees of the federal public service and their employer. I reached the same conclusion in Johnson-Paquette v. Canada (1999), 159 F.T.R. 42 at paras. 20, 21, and 23.

Then, quoting the Federal Court of Appeal's decision in Johnson-Paquette, the Applications judge concluded at para. 62 that the differences between the PSSRA scheme and the scheme in Weber did not take the PSSRA outside the exclusive jurisdiction model. Therefore, the Court did not have jurisdiction.

[6] The Court of Appeal upheld the Trial Division's decision in PSAC on the jurisdiction issue. The Chief Justice stated:

In our view, the application judge (2001 FCT 568) correctly concluded that the appellant could not seek to circumvent the statutory grievance procedure provided in the Public Service Staff Relations Act (PSSRA) by bringing an application for judicial review of a decision of the Commissioner of the Canadian Grain Commission, pursuant to section 18.1 of the Federal Court Act. .....

The comprehensiveness of the PSSRA scheme for the resolution of employment-related disputes between employees of the federal public service and their employer has been affirmed by this Court in Johnson-Paquette v. Canada, [2000] 253 N.R. 305, [2000] F.C.J. No. 441 (C.A.).

In my opinion, the standing issue does not cloud the clarity of this statement by the Chief Justice in PSAC as an authority on the jurisdiction point because this Court spoke clearly to the issue of jurisdiction when upholding the trial decision. There is no question that the comprehensiveness of the PSSRA scheme was deemed to oust the jurisdiction of the Court.

[7] To determine whether the PSSRA scheme ousts the jurisdiction of the Court in this case, this Court must refer to the criteria outlined by the Supreme Court of Canada in Weber and Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360 ["Regina Police Association"]. As stated above, the Supreme Court of Canada has adopted the exclusive jurisdiction model as the test for determining if Parliament has ousted the jurisdiction of the Court. The criteria for the application of this model focuses on the central nature of the dispute and either the interpretation of the collective agreement in situations where the collective agreement governs, or, as here, the interpretation of the statutory scheme.

[8] In Weber, the Court considered the interpretation of a collective agreement. McLachlin J. (as she then was) for the majority stressed the following:

On this approach, the task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether the dispute or difference between the parties arises out of the collective agreement. Two elements must be considered: the dispute and the ambit of the collective agreement.

In considering the dispute, the decision-maker must attempt to define its "essential character". ... The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement. [para. 51 and 52]

McLachlin J. (as she then was)(as she then was) also stressed at para. 57 that:

It might occur that a remedy is required which the arbitrator is not empowered to grant. In such a case the courts of inherent jurisdiction in each province may take jurisdiction. What must be avoided ... is a "real deprivation of ultimate remedy".

[9] The task for determining the appropriate forum in Weber centred on whether the dispute or difference between the parties arose out of the collective agreement. McLachlin J. stated at para. 51 that "two elements must be considered: the dispute and the ambit of the collective agreement". She did not state that whether the party has access to an independent adjudicator is an important consideration in applying this test. As correctly stated by Heneghan J. when applying Weber at para. 28 in the decision below in our case:

...if the essential character of the dispute arises under the collective agreement, then the arbitrator shall have exclusive jurisdiction over the dispute, as provided for by the legislation. Disputes that expressly or inferentially arise out of the collective agreement are thus precluded from being litigated in the courts.

Therefore, the relevant considerations according to Weber are the nature of the dispute and the ambit of the relevant collective agreement.

[10] In Regina Police Association, the Court considered the interpretation of a statutory scheme. Bastarache J. embraced the exclusive jurisdiction model. He stated at para. 25 that, in determining whether the Court has jurisdiction,

...the decision-maker must determine whether, having examined the factual context of the dispute, its essential character concerns a subject matter that is covered by the collective agreement. Upon determining the essential character of the dispute, the decision-maker must examine the provisions of the collective agreement to determine whether it contemplates such factual situations.....If the essential character of the dispute arises either explicitly, or implicitly, from the interpretation, application, administration or violation of the collective agreement, the dispute is within the sole jurisdiction of an arbitrator to decide.

[11] The Court in Regina Police Association expanded the jurisdictional test from the interpretation of collective agreements to the interpretation of statutory schemes:

To summarize, the underlying rationale of the decision in Weber, supra, is to ensure that jurisdictional issues are decided in a manner that is consistent with the statutory schemes governing the parties. The analysis applies whether the choice of forums is between the courts and a statutorily created adjudicative body, or between two statutorily created bodies. The key question in each case is whether the essential character of a dispute, in its factual context, arises either expressly or inferentially from a statutory scheme. In determining this question, a liberal interpretation of the legislation is required to ensure that a scheme is not offended by the conferral of jurisdiction on a forum not intended by the legislature. [para. 39, my emphasis]

[12] It should be emphasized that in the case before us, Mr. Vaughan argues that he is entitled to receive the ERI benefits under the early retirement incentive program, which arise from regulation and not from the collective agreement. The dispute, therefore, involves the interpretation or application of a regulation, The Retirement Compensation Arrangements Regulations, No. 2, S.O.R. 95-169 (Reg. No. 2) under the Special Retirement Arrangements Act, 1992 S.C., c. 46, Sch. 1, and, thus, falls under the ambit of section 91(1) of the PSSRA.

[13] Section 91 of the PSSRA states as follows:

91. (1) Where any employee feels aggrieved

(a) by the interpretation or application, in respect of the employee, of

(i) a provision of a statute, or of a regulation, by law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment,

.....

in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act. [my emphasis]

[14] The key question in this case is whether the essential character of the ERI dispute, in its factual context, arises expressly or inferentially from a statutory scheme. The character of the dispute is rooted in the employment relationship as it relates to retirement benefits. The dispute at hand in Mr. Vaughan's case, involves the interpretation of a regulation _which is caught by section 91(1)(a)(i) and thus arises from the statutory scheme contained in section 91(1)(a)(i) of the PSSRA. This Court in PSAC and Johnson-Paquette has already determined that once the essential nature of the dispute is found to arise under section 91(1)(a)(i), then the jurisdiction of the Court is ousted. Therefore, the jurisdiction of the Court is ousted in this case.

Independent Adjudicator

[15] Counsel for the appellant argues that even though Mr. Vaughan's claim falls within the ambit of the section 91 scheme, he can elect to assert his claim before the courts on the ground that the statutory scheme applicable in these circumstances does not provide for an independent adjudicator.

[16] In spite of the fact that the issue in The case of Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781 (SCC) is somewhat different than that in our case, the Supreme Court's comments on independent adjudication are relevant. In Ocean Port, the Court upheld the appropriateness of tribunals lacking independent adjudicators when Parliament expressly legislated, or by necessary implication, allowed for this.

[17] SSpecifically, the Supreme Court stated at para. 19 that, absent a constitutional challenge, the statutory scheme prevails over common law principles of natural justice. The Court held that one must not elevate a principle of natural justice (the right to an independent adjudicator) to constitutional status. Therefore, as mentioned in Ocean Port:

absent constitutional constraints, the degree of independence required of a particular government decision maker or tribunal is determined by its enabling statute. It is the legislature or Parliament that determines the degree of independence required of tribunal members. The statute must be construed as a whole to determine the degree of independence the legislature intended. ... It is not open to a court to apply a common law rule in the face of clear statutory direction. [para. 20 and 22]

Independence of tribunal members, therefore, "can be ousted by express statutory language or necessary implication" [para. 22].One must look at the legislation to determine Parliament's intention. The fact that the legislation does not provide for an independent adjudicator is not a factor to consider in determining Parliament's intention. Examination of the legislation itself, along with the nature of the dispute itself are the determining factors. Thus, the choice in the PSSRA not to have independent adjudicators as part of the statutory scheme must be respected. It should be noted, however, that where constitutional or Charter arguments are engaged this principle may not apply.

[18] However, neither constitutional or Charter arguments are in issue in this case. There is no constitutional challenge to section 91 of the PSSRA. No Charter argument was advanced by the Appellant.

[19] The intent of Parliament is clear. Based on the ambit of the statutory scheme and the nature of the dispute (being directly related to employment issues), section 91 of the PSSRA is the exclusive route. Section 91 is engaged and could have been resorted to by the Appellant, and judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended would have been available. While the statutory scheme may oust the jurisdiction of courts to entertain the claim it does not oust the supervisory jurisdiction of this Court on judicial review. In particular, questions of procedural fairness can be addressed as of right on judicial review of the decision-maker's decision.

[20] The consideration of an independent adjudicator seems to have originated in Pleau v. Canada (Attorney General), [1999] N.S.J. No. 448 (C.A.) [Pleau] and Guenette v. Canada, [2002] O.J. No. 3062 (C.A.) ["Guenette"]. In Pleau, the Nova Scotia Court of Appeal concluded that the case did not fall within the scope of the principle set out by the Supreme Court of Canada in Weber. In other words, the Court's jurisdiction had not been ousted by the PSSRA scheme. To determine whether the jurisdiction of the Court had been ousted by the PSSRA, the Court of Appeal examined three major considerations which it synthesized from its interpretation of Weber: (1) the process for dispute resolution established by the legislation and collective agreement; (2) the nature of the dispute; and, (3) the capacity of the scheme to afford effective redress. The Court concluded that "no adequate redress was provided for" in that case [para. 96]. This conclusion was based on the fact that there was no mechanism for binding adjudication by a third party:

The Collective Agreement provides no standards for assessing the claims and no process for adjudication of them on their merits by a third party. .....

In my opinion, access to the grievance procedure without the right to test the outcome by adjudication on the merits by a third party does not constitute effective redress for the alleged wrongdoing in this case. .....

This case shares with Danilov the feature that neither the statute nor the Collective Agreement provide, in relation to this dispute, a mechanism for binding adjudication by a third party. [para. 85, 95 and 101, my emphasis]

Therefore, purportedly deriving its support from McLachlin J. in Weber, the Court suggested that there could be no effective redress if there was no independent adjudicator. However, in my opinion, that was not what McLachlin J. was referring to in Weber. Rather, McLachlin J. merely addressed the availability of the remedy, and whether that remedy could actually be provided by the adjudicator:

It might occur that a remedy is required which the arbitrator is not empowered to grant....What must be avoided...is the real deprivation of ultimate remedy [para. 57 of Weber].

Therefore, whether the tribunal can provide effective redress must also be considered when determining jurisdiction, but only in the sense of actually being able to provide a remedy. No such issue arises in the present case.

[21] Also, iInterestingly, in Pleau the Court emphasized that the scope of court involvement found in this case was very narrow, and limited its conclusions to the facts of the case before it:

I emphasize that the scope of court involvement which I find in this case is very narrow indeed. This is a case in which the dispute is admittedly outside the scope of the adjudication process and in which the employee has not had recourse to the grievance procedure. I do not intend to, and do not address in these reasons, the availability of court actions where one or both of these elements is not present. In my view, confining the scope of court action within this narrow sphere is essential to ensuring effective redress and is not unduly intrusive into the collective bargaining relationship. [para 102, my emphasis]

In Pleau, the conspiracy, fiduciary duty, and mental distress claims brought by the Pleau family against the government, it was conceded, could not and should not have been presented before the adjudicator in the grievance process previously used by Mr. Pleau. Therefore, Mr. Pleau did not have recourse to the grievance process with respect to these claims. However, in our case Mr. Vaughan did have recourse to the grievance procedure with respect to the action brought in the court. The Pleau case can be distinguished on this basis.

[22] In Guenette, the Ontario Court of Appeal adopted the concept of an independent adjudicator as a consideration in determining whether or not the jurisdiction of the Court had been ousted by Parliament. The Court stated:

Regarding the second consideration relating to the types of disputes falling within the dispute resolution process, Cromwell J.A. noted that the plaintiff's claim did not involve the terms of the collective agreement and thus was not referable to third party adjudication. [at para. 45]

Moving from this statement, the Court added at para. 50, as a fourth consideration in the test for determining the intention of Parliament to oust the jurisdiction of the Court, the "lack of recourse to a specialized and autonomous decision-making body under s. 91". It is perhaps significant that the Ocean Port case was not considered by the Court in Guenette.

[23] Counsel for the appellant sought support for his position in the Pleau and Guenette decisions. However, both Pleau and Guenette can be distinguished based on the nature of the dispute in those cases. In the Pleau case, there was no such direct relation or integral connection to employment. Mr. Pleau and his family sued the government for damages based on conspiracy to cause injury, breach of fiduciary duty, and mental distress. The wife and child were not employees of the Public Service of Canada and hence the nature of their action was not integral to the employment process. Thus, the dispute as a whole could not have been submitted to the grievance procedure. It is understandable therefore that the whole action was allowed to proceed in the courts.

[24] Likewise, in Guenette, the employees commenced an action against the government claiming damages and seeking an award of $350 million as punitive, exemplary and aggravated damages to establish a non-profit advocacy organization with a mandate to represent and protect the rights of all government employees, particularly relating to issues of abuse of power, harassment, and principles of integrity [para. 3]. Indeed in Guenette it was conceded by the Attorney General of Canada that the claims of the employees were not subject to adjudication under the PSSRA, and it is hence understandable that the Court allowed the action to proceed.This claim, too, was beyond or outside the typical employment process and relationship. The claims in question in Pleau and Guenette were not central to the employment relationship and the relief sought in those cases was beyond that typically sought in a grievance process.

[25] In conclusion, I would say that in the face of clear statutory directions, it is not open to a court to disregard the scheme on the basis that it does not provide for an independent adjudicator.

[26] Accordingly, I would dismiss the appeal, without costs.

"J. Edgar Sexton"

J.A.

"I concur

J. Richard C.J."

EVANS J.A. (concurring reasons)

A. INTRODUCTION

[27] This is an appeal by William Thomas Vaughan from a decision of the Motions Judge to strike Mr. Vaughan's statement of claim against his employer, the Queen in right of Canada. The decision is reported as Vaughan v. Canada, (2001) 213 F.T.R. 144, 2001 FCT 1233. The statement of claim alleges that the employer negligently failed to take the steps necessary to enable Mr. Vaughan to receive the benefit of a statutory early retirement incentive ("ERI") program, and requests damages and a declaration that Mr. Vaughan is entitled to ERI benefits.

[28] The issue to be decided in this appeal is whether employees in the federal public service may elect to pursue redress in the courts in respect of work-related disputes arising from their employment, rather than resort to a statutory grievance procedure that does not provide for neutral third-party arbitration.

[29] Counsel for Mr. Vaughan maintains that the scheme established by the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, ("PSSRA") cannot be regarded as impliedly excluding the Court's jurisdiction over actions by employees in the federal public service against their employer, the federal Crown, when the action is based on conduct that could be the subject of a grievance under section 91 of the PSSRA and resolved through the internal grievance procedure. He relies on recent decisions of provincial courts of appeal to support his position and on the inadequacy of the statutory procedure to remedy workplace grievances that cannot be referred to a neutral Adjudicator under section 92.

[30] In response, counsel for the Attorney General says that Parliament impliedly intended the dispute resolution mechanisms established by the PSSRA and the master collective agreement to be exhaustive. He relies on decisions of this Court as dispositive. Accordingly, he submits, the Motions Judge was correct to strike out the appellant's statement of claim as disclosing no reasonable or probable cause of action because the Court's jurisdiction over it has been impliedly excluded by statute.

[31] This appeal raises yet again the scope of the principle established in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, and its subsequent elaboration: namely, the exclusiveness of comprehensive schemes for resolving, outside the courts, disputes arising from the relationship between employers and employees. The question to be decided in this appeal is whether the Weber principle applies when the scheme established for resolving employment-related disputes dose not comply with common law standard of procedural fairness because the decision-maker is an employee of one of the parties, the Crown.

[32] The tide of recent jurisprudence in provincial courts of appeal from Newfoundland to British Columbia is running strongly against the exclusiveness of the remedial scheme established by section 91 of the PSSRA, even where, as here, the statutory provisions have been reproduced and elaborated in the collective agreement applicable to the employee who is seeking a determination of the dispute by the court. In contrast, Federal Court case law points almost as decisively to the opposite conclusion.

B. FACTUAL BACKGROUND

[33] The facts asserted in the statement of claim that are relevant to this appeal can be shortly described. Mr. Vaughan was employed as a mechanical engineer with the Department of Public Works from 1975 until 1996, when he was laid off. He had been notified in October 1994 that he was surplus to requirements and would be laid off as of April 12, 1995. Under the 1991 Work Force Adjustment Directive ("WFAD"), a service-wide agreement, every indeterminate employee whose services are no longer required because of a work force adjustment is entitled to receive one reasonable job offer within the public service before being laid off. As a result of consultations with the National Joint Council ("NJC"), the WFAD was deemed to be part of the collective agreement between Mr. Vaughan's bargaining agent and the Crown.

[34] In a letter dated February 17, 1995, Mr. Vaughan was offered another position in the public service; the effective date of his appointment was to be determined later. In a letter of March 6, 1995, Mr. Vaughan advised his employer that he understood that an early retirement incentive program would soon become available to employees who had been declared surplus and that this created an alternative to his either accepting or rejecting the job offer that he had received.

[35] Mr. Vaughan requested that ERI benefits be provided to him as of April 1, 1995, the date when the program was due to come into effect.

[36] In April 1995, Mr. Vaughan was informed that his lay-off date had been extended until July 12, 1995. He received an information package about the ERI program in May which, as anticipated, had come into force on April 1, 1995. Benefits under this program were not available to employees who had received a reasonable offer of employment before leaving the federal public service.

[37] In a letter of May 24, 1995, Mr. Vaughan reiterated his interest in receiving ERI benefits and his intention to have left the public service as of April 1, 1995. He also stated that he did not regard the job offer that he had received in February as "reasonable" because it was subject to conditions. Nonetheless, the respondent advised him in July 1995 that his application for ERI benefits had been refused, on the ground that he had already received a reasonable job offer. Further, since he had not accepted that offer, he would be laid off. In January 1996, Mr. Vaughan was advised that his lay-off would be effective as of February 23, 1996, and his surplus status was extended until then.

[38] In a letter dated March 4, 1996, Mr. Vaughan filed a grievance alleging non-compliance with the WFAD and, in December 1996, his grievance was allowed at the second level of the grievance process by the Executive Committee of the NJC, which found that the job offer was not reasonable and that his lay-off was therefore not in accordance with the WFAD. Just before Christmas, Mr. Vaughan was offered an unconditional indeterminate appointment equivalent to his previous position.

[39] On receiving this letter, Mr. Vaughan advised his regional director that his employment in the private sector made it unlikely that he would be able to start in his new position for several months. Nonetheless, he was told that the position was effective as of February 17, 1997, and that failure to report for work on that date would be regarded as a rejection of the offer of employment. In a letter dated February 13, 1997, Mr. Vaughan told his employer that he intended to take his grievance to the next level of the process, because the respondent had not addressed the substance of his grievance letter of March 4, 1996, namely, his claim for ERI benefits. The respondent treated this letter as a rejection of the offer of employment.

[40] Following the decision of the Executive Committee of the NJC, Mr. Vaughan's grievance was referred to an independent adjudicator under section 92 of the PSSRA. The Adjudicator confirmed the conclusion of the Executive Committee of the NJC that the job offer made to Mr. Vaughan in February 1995 was not reasonable, and that his lay-off as of February 23, 1996, was contrary to the WFAD and thus invalid. As a result, his surplus status should have been extended until February 17, 1997. The Adjudicator also held that the second offer was reasonable and that Mr. Vaughan's failure to report for work on February 17, 1997, as directed, constituted a rejection of the offer. The Adjudicator ordered that Mr. Vaughan be paid the separation benefits to which he was entitled under the collective agreement. However, he also stated that he had no jurisdiction to determine Mr. Vaughan's eligibility for ERI benefits, because they arose from statute, and not from the collective agreement.

[41] No further proceedings were instituted in respect of the Adjudicator's decision. However, on January 29, 1999, Mr. Vaughan filed the statement of claim that has given rise to the present proceedings.

C. THE DECISION OF THE TRIAL DIVISION

[42] The Crown's motion to strike Mr. Vaughan's statement of claim was granted by Prothonotary Aronovitch: Vaughan v. Canada (2000), 182 F.T.R. 199. The Prothonotary found that Mr. Vaughan's complaint that he had been denied his right to ERI benefits could be the subject of a grievance under section 91 of the PSSRA. She carefully reviewed the case law, from both this Court and the appellate courts of Ontario and Nova Scotia, on the scope of the exclusiveness principle established by the Supreme Court of Canada in Weber.

[43] On the basis of the decision in Johnson-Paquette v. Canada (2000), 253 N.R. 305 (F.C.A.), the Prothonotary concluded that the grievance procedure established by section 91 of the PSSRA, and reproduced in the Master Collective Agreement between the Crown and Mr. Vaughan's bargaining agent, impliedly excluded the Court's jurisdiction over his statement of claim. Mr. Vaughan's cause of action was workplace-related and arose from the employment relationship, since it was in essence based on his claim to be entitled to ERI benefits and could therefore have been the subject of a grievance under section 91.

[44] The Prothonotary's order was upheld on appeal by Heneghan J. She added to the reasons given by the Prothonotary the observation that it was not for the Court to assess the adequacy of the remedy available to Mr. Vaughan under section 91. Noting that an adverse decision by a grievance officer could have been the subject of an application for judicial review to the Trial Division under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, Heneghan J. stated (at para. 32) :

It is neither necessary nor appropriate for me to speculate on the range of remedies that could be available following judicial review had he pursued that route, except to observe that there is no evidence that the Respondent would have failed to respect the decision of the court and any directions concerning the process for determining entitlement to the benefit in issue.

D. LEGISLATIVE FRAMEWORK

[45] The following statutory provisions are central to the disposition of this appeal.

Public Service Staff Relations Act, R.S.C. 1985, c. P-35

91. (1) Where any employee feels aggrieved

(a) by the interpretation or application, in respect of the employee, of

(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or

(ii) a provision of a collective agreement or an arbitral award, or

(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),

91. (1) Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d'une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu'il s'estime lésé_:

a) par l'interprétation ou l'application à son égard_:

(i) soit d'une disposition législative, d'un règlement - administratif ou autre -, d'une instruction ou d'un autre acte pris par l'employeur concernant les conditions d'emploi,

(ii) soit d'une disposition d'une convention collective ou d'une décision arbitrale;

b) par suite de tout fait autre que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses conditions d'emploi.

...

(3) An employee who is not included in a bargaining unit for which an employee organization has been certified as bargaining agent may seek the assistance of and, if the employee

chooses, may be represented by any employee organization in the presentation or reference to adjudication of a grievance.

(4) No employee who is included in a bargaining unit for which an employee organization has been certified as bargaining agent may be represented by any employee organization, other than the employee organization certified as bargaining agent, in the presentation or reference to adjudication of a grievance.

92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

(i) disciplinary action resulting in suspension or a financial penalty, or

(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or

(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

...

(3) Le fonctionnaire ne faisant pas partie d'une unité de négociation pour laquelle une organisation syndicale a été accréditée peut demander l'aide de n'importe quelle organisation syndicale et, s'il le désire, être représenté par celle-ci à l'occasion du dépôt d'un grief ou de son renvoi à l'arbitrage.

(4) Le fonctionnaire faisant partie d'une unité de négociation pour laquelle une organisation syndicale a été accréditée ne peut être représenté par une autre organisation syndicale à l'occasion du dépôt d'un grief ou de son renvoi à l'arbitrage.

92. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur_:

a) l'interprétation ou l'application, à son endroit, d'une disposition d'une convention collective ou d'une décision arbitrale;

b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;

c) dans les autres cas, une mesure disciplinaire entraînant le licenciement, la suspension ou une sanction pécuniaire.

(2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit, to which the collective agreement or arbitral award referred to in that paragraph applies, signifies in the prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.

...

(2) Pour pouvoir renvoyer à l'arbitrage un grief du type visé à l'alinéa (1)a), le fonctionnaire doit obtenir, dans les formes réglementaires, l'approbation de son agent négociateur et son acceptation de le représenter dans la procédure d'arbitrage.

...

96(3) Where a grievance has been presented up to and including the final level in the grievance process and it is not one that under section 92 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken thereon.

100(4) For the purposes of any provision of this Act respecting grievances, the employer shall designate the person whose decision on a grievance constitutes the final or any level in the grievance process and the employer shall, in any case of doubt, by notice in writing, advise any person wishing to present a grievance, or the Board, of the person whose decision thereon constitutes the final or any level in the process.

96(3) Sauf dans le cas d'un grief qui peut être renvoyé à l'arbitrage au titre de l'article 92, la décision rendue au dernier palier de la procédure applicable en la matière est finale et obligatoire, et aucune autre mesure ne peut être prise sous le régime de la présente loi à l'égard du grief ainsi tranché.

100(4) Pour l'application des dispositions de la présente loi concernant les griefs, l'employeur désigne les personnes don't la décision en cette matière constitue un palier de la procédure applicable, y compris le dernier. En cas de doute, il communique par écrit les noms de ces personnes à quiconque voulant déposer un grief, ou à la Commission.

E. ISSUES AND ANALYSIS

1. Preliminary matters

(a) what is not in dispute

[46] It is useful to identify at the outset the common ground between the parties. First, although the collective agreement applicable to Mr. Vaughan reproduced the procedures contained in sections 91 and 92 of the PSSRA, entitlement to benefits under the ERI program did not arise from that agreement, but from the Retirement Compensation Arrangements Regulations, No. 2, S.O.R. 95-169 ("Regulations"), enacted pursuant to the Special Retirement Act, 1992, S.C., c. 46, Sch. 1.

[47] Second, since eligibility for the ERI program did not arise from the collective agreement, and Mr. Vaughan's complaint did not otherwise fall within section 92, the refusal to award him ERI benefits could not be referred to independent adjudication.

[48] Third, Mr. Vaughan's claim that he was entitled to the benefit of the ERI program could have been the subject of a grievance under paragraph 91(1)(a)(i) since it involved the "interpretation or application, in respect of an employee, of ... a regulation".

[49] Fourth, Mr. Vaughan at no time pursued his grievance through the process established under section 91 and the Master Agreement. In his reasons for deciding the grievance concerning the reasonableness of the first job offer, the Adjudicator stated that he had no jurisdiction to determine Mr. Vaughan's entitlement to ERI benefits. This suggests that Mr. Vaughan may have tried to raise this issue before the Adjudicator. Nonetheless, even if he had, Mr. Vaughan cannot be said thereby to have pursued his ERI benefits grievance through the statutory processes, because the Adjudicator had no jurisdiction to deal with this claim.

[50] Fifth, counsel for Mr. Vaughan conceded that the facts underlying a grievance cannot be the subject of a statement of claim in the courts if the dispute can also be the subject of an independent adjudication under section 92 of the PSSRA. See Jadwani v. Canada (Attorney General) (2001), 52 O.R. (3d) 660 (C.A.).

(b) the grievance process

[51] Subsection 91(1) of the PSSRA describes the broad range of employment-related issues that an employee may grieve, up to and including the final level of the grievance process provided for in the Act. This process does not apply to grievances for which another administrative procedure for redress is provided in or under an Act of Parliament. Thus, for example, complaints of racial or gender discrimination in the workplace are dealt with under the process established under Canadian Human Rights Act, R.S.C. 1985, c. H- 6.

[52] The only procedural provision relating to the grievance process contained in section 91 relevant to this appeal is that an employee may be assisted and represented by an employees' organization in the presentation of a grievance: subsections 91(3) and (4).

[53] Most of sections 91 and 92 are reproduced in Article 35 of the Master Agreement between the Treasury Board and the Professional Institute of the Public Service of Canada, which is the agreement applicable to Mr. Vaughan. In addition, this Article supplements the skeletal procedural provisions of section 91.

[54] For example, Article 35.03 provides that the employee shall transmit the grievance to his or her immediate supervisor or local officer-in-charge, who in turn must forward it to the representative designated by the employer to deal with grievances at the appropriate step. Article 35.06 provides that the grievance procedure shall contain no more than four steps, starting with the first level of management, proceeding to two intermediate managerial levels, and ending at the fourth step with the Deputy Head or an authorized representative. Article 35.09-11 prescribes time limits for the presentation of a grievance at each step in the process, and for the employer's response.

[55] Only grievances to which section 92 applies can proceed from the fourth step to an adjudication by a member of the Public Service Staff Relations Board: subsection 92(1) and section 93. These include disputes arising from the collective agreement and the imposition of serious disciplinary penalties. Otherwise, subsection 96(3) provides, "the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of the Act and no further action under this Act may be taken."

[56] However, this finality provision does not shelter the final level decision on a section 91 grievance from an application for judicial review under section 18.1 of the Federal Court Act. Because the decision-maker is a "federal board, commission or other tribunal", the Federal Court has exclusive judicial review jurisdiction over decisions rendered at the final stage of the section 91 grievance process: Federal Court Act, subsections 18(1) and (3).

[57] Counsel for Mr. Vaughan stressed the informal nature of the process applicable to section 91 grievances and its emphasis on reaching a settlement. However, the collective agreement refers to informality only as a way of avoiding the grievance process, and not as a characteristic of the process itself. Thus, in Article 35.02 the parties acknowledge the "value of informal discussion between employees and their supervisors to the end that problems might be resolved without recourse to a formal grievance" [emphasis added]. The reference to "a formal grievance" means the presentation of a grievance under the process established by section 91 and the collective agreement.

[58] Counsel also stated that grievances are often resolved on the basis of written representations and supporting documentation, although an employee may always request an oral hearing. As well, the representatives of the employer who act as grievance officers do not possess the legal powers of Adjudicators on procedural matters, such as the attendance of witnesses, the production and admission of evidence, and the administration of oaths and solemn affirmations: PSSRA, sections 25 and 96.1.

[59] In addition, counsel pointed out, the decision-makers in the four-step grievance process are all representatives of the employer; it is not and does not purport to be an independent adjudication of the grievance. Only grievances falling within section 92 can be referred to an independent Adjudicator.

[60] Under the ERI program, certain employees are entitled to a waiver of the pension reductions to which they would be subject on leaving the public service before qualifying for a full pension. All eligible surplus employees are entitled as of right to the benefit of this program. The conditions of eligibility are contained in section 4 of the Regulations, and sections 7 and 8 define in considerable detail the amount of the benefit to which eligible employees are entitled. The scheme leaves little room for the exercise of discretion.

[61] Disputes over entitlement to ERI benefits must inevitably be resolved on the basis of findings of fact about claimants and their circumstances, the interpretation of the statutory provisions and their application to the facts found by the decision-maker. On an application for judicial review to the Federal Court by an employee, the Court can review a decision to refuse ERI benefits for, among other things, procedural unfairness (including a reasonable apprehension of bias), error of law in the interpretation or application of the relevant statutory provisions, or erroneous findings of fact made in a perverse or capricious manner or without regard to the material before the decision-maker. If satisfied that the decision contains one or more of these flaws, the Court may, among other things, set it aside and, where appropriate, order the grievance officer to decide the matter in accordance with the directions of the Court: Federal Court Act, subsection 18.1(3).

2. The Issues

[62] The issues to be decided in this appeal are as follows:

(i) Does the PSSRA impliedly exclude the jurisdiction of the Court under section 17 of the Federal Court Act with respect to disputes arising from the employment relationship that may be grieved under the PSSRA, but cannot be referred to Adjudication under section 92?

If it does, the statement of claim has been correctly struck and the appeal will be dismissed. If it does not, a second issue arises:

(ii) In the circumstances of this case, is there any reason why the Court should decline to exercise its jurisdiction over the appellant's statement of claim?

3. The Jurisprudence

[63] No decision of the Supreme Court of Canada expressly resolves these issues. However, on the basis of their previous decisions, some provincial courts of appeal would conclude that, if Mr. Vaughan had filed his statement of claim in the superior court of those provinces, the PSSRA does not impliedly oust their jurisdiction over it. Instructive as these may be, they are not binding on this Court.

[64] On the other hand, statements by the Federal Court of Appeal indicate that Parliament has impliedly excluded the Court's jurisdiction over claims that can be the subject of a grievance under section 91. Heneghan J. dismissed the appeal because she was of the view that Johnson-Paquette was binding authority for the proposition that the PSSRA ousted the Court's jurisdiction over Mr. Vaughan's claim.

[65] Unless they are distinguishable, Johnson-Paquette, and other decisions of this Court to similar effect, should be followed in the absence of compelling circumstances, such as the erosion of their authoritativeness by subsequent case law: Miller v. Canada (Attorney General), 2002 FCA 370. I shall examine the decisions of this Court on the issue before turning to the relevant cases from the Supreme Court of Canada and provincial courts of appeal.

(a) Federal Court of Appeal

[66] Johnson-Paquette is the leading authority for the proposition that sections 91 and 92 form a comprehensive remedial scheme that impliedly excludes the jurisdiction of the Court over proceedings that are essentially based on grievable work-related conduct. Subsection 17(1) of the Federal Court Act confers concurrent jurisdiction on the Federal Court over actions against the Crown in right of Canada, "except as otherwise provided in this Act or any other Act of Parliament".

[67] Writing for the Court in Johnson-Paquette, Noël J.A. (at para. 10) said:

[68] Counsel for Mr. Vaughan suggested that, despite the breadth of this statement, the case can be distinguished on the ground that two of the four of Ms. Johnson-Paquette's interrelated grievances came under the collective agreement and, therefore, unlike Mr. Vaughan's grievance, were subject to independent adjudication under section 92: see Johnson-Paquette, at footnote 5. As for the other two grievances, Noël J.A. said only that they "arguably come under section 91 of the PSSRA" [emphasis added]. In these circumstances, counsel submitted, it is possible that, in making the broad statement of principle quoted above, the Court was not directing its mind to the situation where an employee's grievance clearly could not be referred to independent adjudication, but equally clearly fell within section 91.

[69] I am not persuaded by this argument. The Motions Judge whose decision to strike was under appeal in Johnson-Paquette expressly rejected an argument by Ms. Johnson-Paquette that she was entitled to commence an action in the Trial Division because the claim on which it was based was not covered by section 92. Accordingly, the Motions Judge held that the statutory scheme barred Ms. Johnson-Paquette's access to independent adjudication: Johnson-Paquette v. Canada (1998), 159 F.T.R. 42 at paras. 21 and 22. In these circumstances, the Court of Appeal's statement should be taken to include grievances under section 91 that could not be referred to independent adjudication under section 92.

[70] Counsel also argued that Johnson-Paquette is distinguishable on the ground that, unlike Mr. Vaughan, Ms. Johnson-Paquette had already pursued her grievance through the internal process, but had not applied for judicial review of the grievance officer's decision at the final level. As Noël J.A. noted (at para. 3):

Regardless of how one characterizes the cause of action which she now advances in her statement of claim, it obviously arose out of the facts which formed the basis of the four grievances which she filed under the PSSRA and which were all rejected in the course of a binding decision at the final level of the grievance process.

[71] Hence, by suing in tort, Ms. Johnson-Paquette was attempting to re-litigate a matter that had already been the subject of administrative proceedings and thus to deprive the employer of the benefit of the 30-day limitation period within which applications for judicial review of decisions or orders of a federal tribunal must normally be made (Federal Court Act, subsection 18.1(2)).

[72] Thus, counsel submitted, the public policy in favour of finality and the avoidance of duplication in legal decision-making supported the striking of Ms. Johnson-Paquette's statement of claim as beyond the jurisdiction of the Court. However, this policy does not apply when, as here, the claimant has never resorted to the grievance process at all for the determination of the dispute that forms the essence of the statement of claim. A rule that an employee who has pursued statutory redress under section 91 is bound by her election, would not necessarily preclude her from electing to pursue her claim in court, instead of resorting to the statutory grievance process. Other decisions of this Court may be distinguished from the instant appeal on the same ground, including the recent decision in Cleroux v. Canada (Attorney General), 2002 FCA 242.

[73] Johnson-Paquette was distinguished on this ground in Pleau (Litigation Guardian of) v. Canada (Attorney General) (1999), 182 D.L.R. (4^th) 373 at para. 98 (N.S.C.A.), where the Court held that an employee who did not have access to independent adjudication under section 92 could elect to sue the Crown, rather than grieve under section 91. Referring to this distinction, Cromwell J.A. said (at para. 74):

It may be that where employees invoke the grievance procedure, as they are entitled but not required to do, they are bound by the results, subject to judicial review: see s. 96(3) and Article M-38.15.

[74] However, writing for the Court of Appeal for Ontario in Guenette v. Canada (Attorney General), (2002), 216 D.L.R. (4^th) 410, MacPherson J.A. stated (at para. 64) that an employee's recourse to the statutory grievance process was relevant, not to whether Parliament had ousted the courts' jurisdiction, but only to whether they should decline to exercise it in those circumstances. In my opinion, this is the better view. Accordingly, the Court's conclusion in Johnson-Paquette that the PSSRA ousted the Court's jurisdiction is applicable even where the employee has not resorted to the grievance process.

[75] Of the other cases decided by this Court on the impact of the PSSRA on the jurisdiction of the Federal Court, Bouchard v. Canada (Minister of National Defence) (1999), 187 D.L.R. (4^th) 314 (F.C.A.), would seem to be immediately germane. The appellant in that case appears to have applied for judicial review of a refusal to reinstate her without having resorted to the statutory grievance procedure. The Court upheld the Prothonotary's decision to strike the application, on the ground that the grievance provisions of the PSSRA impliedly ousted the Court's jurisdiction under section 18.1 of the Federal Court Act to review the decision not to reinstate the applicant.

[76] However, in giving the reasons for judgment of the Court in Bouchard, Létourneau J.A. stated that the appellant alleged that she had resigned under the pressure of harassment at work. This led him to conclude (at para. 26):

It would certainly be possible for an adjudicator to legally conclude that the respondents' refusal in the circumstances to reinstate the appellant in her position constituted constructive dismissal [emphasis added].

Because complaints of conduct leading to the termination of employment can be referred to independent adjudication under paragraph 92(1)(c), it is not clear that the Court was focussing on the issue presented by the instant appeal: the applicability of the Weber principle of exclusiveness to a situation where an employee has no right to the independent adjudication of his grievance.

[77] Also relevant is Public Service Alliance of Canada v. Canada (Treasury Board), 2002 FCA 239 ("PSAC"), where, in short reasons, the Court upheld a decision of the Motions Judge ((2001), 205 F.T.R. 270, 2001 FCT 568) to strike an application for judicial review of a decision of the Commissioner of the Canadian Grain Commission to place certain of its employees on temporary, unpaid "off-duty status." The employees in question could have grieved this decision under section 91, but apparently did not. Instead, their union, PSAC, applied for judicial review of the decision to lay off the employees.

[78] However, it may be noted that, while the Court of Appeal's reasons reiterated the broad statement of exclusivity by Noël J.A. in Johnson-Paquette, the facts of PSAC did not raise as clearly as those of the present case the issue in dispute here. In addition to the implied exclusion of the Court's jurisdiction by the PSSRA, the application was also struck on the ground that the union lacked standing: it only had standing to seek judicial review on behalf of its members in limited circumstances, which did not include the facts of this case.

[79] The Motions Judge also concluded that, by virtue of the Weber principle, the Court's jurisdiction over any application by the laid-off employees for the judicial review of the refusal to reinstate them was impliedly ousted by the grievance provisions of section 91 of the PSSRA. However, she further stated (at para. 64) that PSAC could refer its grievance over the loss of union dues resulting from union members being laid-off to the Public Service Staff Relations Board. Unlike Mr. Vaughan, PSAC had no remedy under section 91 of the PSSRA.

[80] On the other hand, at least one post-Weber decision of this Court, Banerd v. Canada (Deputy Minister of National Revenue-M.N.R.), [1994] F.C.J. No. 260 (C.A.), may suggest that the section 91 procedures are not exclusive. In that case, the Court allowed an appeal and modified the order made by the Motions Judge ((1994), 88 F.T.R. 14) striking from the statement of claim an allegation that the appellant's lay-off was invalid and a request that he be reinstated. The Motions Judge had said (at para. 15):

There is no contract of employment per se and there are no implied notice obligations. ... There is a statutory scheme for the review of employment-related matters found in the Public Service Employment Act and the Public Service Staff Relations Act.

[81] In short reasons for judgment restoring the impugned allegation, Hugessen J.A. dealt with the Motions Judge's assertion that the appellant had a remedy under the PSSRA by saying (at para. 6):

It is also common ground that the Public Service Staff Relations Act could provide no relief of any kind to a person in the plaintiff's position who has been laid off [emphasis added].

[82] In my opinion, this decision is not helpful to the appellant in the instant case. Unlike the apparent situation in Banerd, it is common ground that Mr. Vaughan could have sought relief through the grievance process established under section 91 of the PSSRA with respect to his ERI benefits complaint. I would also add that, in Banerd, the Court did not refer to Weber, which had not been decided when the Motions Judge made his decision.

[83] Indeed, before Weber was decided, it was generally assumed that courts had jurisdiction over actions brought by employees in the federal public service against the Crown for declarations of right, as well as for damages in tort,: see, for example, [1981] 1 S.C.R. 199">Canada v. Kelso, [1981] 1 S.C.R. 199; Chander v. Canada (1984), 57 N.R. 54 (F.C.A.); Mudarth v. Canada (Minister of Public Works), [1989] 3 F.C. 371 (C.A.). The courts decided the merits of employment-related disputes involved in these cases. Their reasons do not explicitly discuss the issue of jurisdiction, even though it would appear that the essence of the claims could have been the subject of a grievance under section 91. On the other hand, in some pre-Weber decisions, courts declined to exercise their jurisdiction over claims that could have been referred to an Adjudicator under section 92: see, for example, Public Service Alliance of Canada v. Canada (Treasury Board) (1990), 36 F.T.R. 182.

[84] To conclude, with the exception of Banerd, the post-Weber jurisprudence of both Divisions of this Court broadly supports the proposition that the grievance provisions of the PSSRA impliedly exclude the Court's jurisdiction over work-related disputes that can be grieved under the PSSRA. And, because the existence of the Court's jurisdiction does not depend on whether the employee has resorted to the grievances process, Johnson-Paquette can be taken to have decided by necessary implication that the Court has no jurisdiction over a claim that, in essence, is a dispute that falls within the broad words of section 91, regardless of whether or not the employee has pursued a grievance under section 91.

[85] Nonetheless, recent and fully reasoned decisions of provincial courts of appeal have concluded that the PSSRA's internal grievance process is not exclusive. In light of this jurisprudence which diverges from that of this Court, it is appropriate to reconsider whether the Weber principle applies to the PSSRA. In Miller v. Canada (Attorney General) this Court decided that it should be prepared to overrule its previous decisions when satisfied that subsequent jurisprudence had called their soundness into question.

[86] Moreover, no decision from this Court is indisputably on all fours with the present case, or considers in detail the considerations that have persuaded other courts that their jurisdiction is not impliedly ousted in respect of a dispute that is covered by section 91 but is not referable to independent adjudication under section 92.

(b) Supreme Court of Canada

[87] The Supreme Court of Canada has yet to decide whether the procedural fairness, or otherwise, of a statutory scheme is relevant to determining whether it ousts the original jurisdiction of the courts over employment-related disputes that fall within its terms. However, the Court has dismissed applications for leave to appeal from two decisions by provincial courts of appeal holding that the grievance procedure under section 91 of the PSSRA does not exclude the jurisdiction of the courts over grievable disputes to which section 92 does not apply: Atomic Energy Control Board v. Danilov, [2000] 1 S.C.R. vi; Attorney General of Canada v. Pleau, [2000] 2 S.C.R. v. Pleau is very similar to the case before us, in so far as, in both cases, the claimants were covered by a collective agreement, had not resorted to the section 91 procedures and had no access to independent adjudication under section 92.

[88] Although refusal of leave cannot be taken to be an endorsement by the Supreme Court of Canada of the correctness of the decision in question, it may be a signal that this Court should engage seriously with an intermediate appellate court's reasoning that diverges from that of this Court. Hence, the Supreme Court of Canada's jurisprudence dealing with the exclusiveness principle in the context of other labour relations regimes must be examined for whatever light it sheds on the precise problem under consideration here.

[89] While Weber v. Ontario Hydro is the leading authority on the exclusiveness of the procedures established for the redress of workplace grievances, it should not be applied without regard to context. The most significant of the contextual differences between the labour relations regime considered in Weber and that created by the PSSRA are that, under the provincial scheme, the collective agreement contains most of the terms and conditions of employment and that, since all grievances arising from a collective agreement are referable to arbitration, nearly all employment-related disputes are resolved by an impartial decision-maker.

[90] In contrast, under the federal scheme only some employment-related disputes are resolved by third-party arbitration, or adjudication as it is known in federal labour law. For the most part, disputes that do not arise from a collective agreement can be referred to outside adjudication only when they involve particularly serious consequences for an employee: disciplinary measures resulting in termination, suspension, demotion or a financial penalty, and termination or demotion on disciplinary and non-disciplinary grounds pursuant to paragraphs 11(2)(f) and (g) of the Financial Administration Act, R.S.C. 1985, c. F-11. Many disputes do not fall within these categories because the terms and conditions governing employment in the federal public service are typically found, not only in the relevant collective agreement, but also in statutes, regulations, Treasury Board policy directives, and the like.

[91] An argument that the Weber principle does not apply to the internal grievance process under section 91 of the PSSRA asserts that these contextual differences have legal significance. This argument has prevailed in provincial courts of appeal. However, the reasons given in Weber do not expressly rely on the independence of the grievance-resolution process as a basis for its conclusion that the court's jurisdiction over the appellant's cause of action had been impliedly excluded by the statutory scheme.

[92] Additional guidance on the scope of the Weber principle is provided by the Court's subsequent decision in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360. This case is not directly on point either, because the principal issue was whether a grievance arising from a police chief's refusal to accept an officer's withdrawal of his resignation was within the jurisdiction of the arbitrator or of the Saskatchewan Police Commission, a statutory body. Moreover, the grievance process, culminating in an appeal from a municipal chief of police to the provincial Commission, was clearly both more independent and more formal than the internal process established under section 91 of the PSSRA.

[93] The Court in Regina Police Association also held that the analysis in Weber was as relevant to determining whether the arbitrator or the Saskatchewan Police Commission had jurisdiction to adjudicate a grievance as to determining whether an arbitrator or a court had jurisdiction. The Court concluded that the arbitrator had no jurisdiction over the grievance since the Commission clearly had jurisdiction over disciplinary matters and, in the circumstances of this case, the police chief's refusal to accept the officer's resignation was disciplinary in nature.

[94] Despite the differences between both the legal issues raised by the instant appeal and those in Regina Police Assn., and the statutory provisions for resolving grievances, the judgment is nonetheless instructive for present purposes.

[95] First, writing for the Court, Bastarache J. noted (at para. 34) the relevance to the application of Weber of the comprehensiveness of the statutory remedial scheme.

The underlying rationale for the approach to determining jurisdiction set out in Weber, supra, was based, in part, on the recognition that it would do violence to a comprehensive statutory scheme, designed to govern all aspects of the relationship between parties in a labour relations setting, to allow disputes to be heard in a forum other than that specified in the scheme ... [emphasis added].

Thus, if a scheme governing the resolution of disputes arising from the employment relationship extends to all, or nearly all, such disputes, the legislature may be presumed to have intended to exclude other fora for resolving such disputes, including the courts.

[96] Second, while the Court in Regina Police Assn. was principally concerned with the application of the Weber principle to two administrative decision-makers, it also put its mind to the exclusiveness of each of these bodies' jurisdiction vis-à-vis the courts. Thus, Bastarache J. said (at para. 26):

The question, therefore, is whether the legislature intended this dispute to be governed by the collective agreement or The Police Act and Regulations. If neither the arbitrator, nor the Commission have jurisdiction to hear the dispute, a court would possess residual jurisdiction to resolve the dispute [emphasis added].

It is a reasonable inference from the italicised sentence quoted above that, in the view of Bastarache J., a court would not have jurisdiction over a dispute that fell within the jurisdiction of either one of the statutory bodies. In other words, in Regina Police Assn. the Court seems to have concluded, on the basis of Weber, both that each statutory decision-maker had a jurisdiction exclusive of the other and that the jurisdiction of each was exclusive of that of the courts.

[97] Third, in Regina Police Assn. the Court applied the Weber principle to a dispute that was not based on a collective agreement and where the exclusive mechanism for resolving it was not an arbitrator. It follows that a scheme for dealing with employment-related disputes may constitute an exclusive remedial regime for the purpose of Weber, even though disputes do not arise from a collective agreement and are not resolved by arbitration. The Weber principle may thus apply to a scheme that lacks the consensual element of those considered in the foundation case of St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, as well as in Weber itself.

[98] Thus, in view of these extensions of the principle of exclusivity by Regina Police Assn., it is not fatal to the implied ouster of the Court's jurisdiction over disputes falling within section 91 of the PSSRA that Mr. Vaughan's claim to ERI benefits was based on statute, not on a collective agreement, and that the procedures available under section 91 of the PSSRA for grieving the refusal of benefits are essentially statutory in origin and not consensual. However, because of the institutional and procedural differences between the Saskatchewan Police Commission and the grievance process under section 91, Regina Police Assn. is not dispositive of the issue raised in this appeal, namely, whether the Weber principle applies to a grievance process that cannot be regarded as impartial because it is administered by the employer.

[99] Counsel for Mr. Vaughan submitted that not much legal significance should be attached to the fact that the Master Agreement governing aspects of Mr. Vaughan's employment relationship incorporated the principal provisions of the statutory grievance scheme, and added some detail. In the last analysis, he submitted, the essentials of the PSSRA scheme are not consensual in nature: in the main, the grievance process is imposed on employees and, except for grievances within section 92, it is controlled by the employer. While the collective agreement can and does put some flesh on the somewhat skeletal provisions of the process established in section 91, it cannot amend them.

[100] I do not disagree with these submissions, as far as they go. However, I would make two observations. First, except for those matters that cannot be included in a collective agreement by virtue of subsection 57(2) of the Public Service Staff Relations Act, it is open to employees' bargaining agents to attempt to expand the range of matters that can be referred to independent adjudication by having more of their members' terms and conditions of employment deemed to be included in the collective agreement. For example, the WFAD provided that, subject to a union's right to opt out, it was deemed to be a part of the collective agreement and that each agreement should refer to it. Second, the inclusion of sections 91 and 92 in the Master Agreement, as well as its elaboration of the procedures available under section 91, indicate that the arrangements for the resolution of grievances have a consensual aspect.

[101] As I have already noted, the application of the Weber principle to the dispute-resolution provisions of the PSSRA has been the subject of litigation in several provincial courts of appeal. In nearly every case, it has been decided that, in respect of grievances to which section 92 does not apply, the PSSRA does not exclude the provincial court's jurisdiction over suits against the Crown in right of Canada, a jurisdiction which has been concurrent with that of the Federal Court since 1993: Federal Court Act, subsection 17(1). See Guenette v. Canada (Attorney General); Yearwood v. Canada (Attorney General), (2002), 216 D.L.R. (4^th) 462, 2002 BCCA 427; Bell v. Canada (Transport), (2002), 210 D.L.R. (4^th) 463, 2002 NFCA 5). Equally notable are two earlier decisions on which these more recent cases build: Pleau v. Canada (Attorney General) and Danilov v. Canada (Atomic Energy Control Board) (1999), 125 O.A.C. 130 (C.A.). See also Phillips v. Harrison (2000), 196 D.L.R (4th) 69 (Man.), where a similar result was reached in respect of the grievance procedure established under the Royal Canadian Mounted Police Act, R.S.C. 1985 c. R-9.

[102] It will suffice for present purposes to focus on the most recent of these cases, Guenette v. Canada (Attorney General), where MacPherson J.A. synthesises the reasoning in previous cases and makes a powerful case for the non-application of Weber to disputes that can be grieved under section 91 but cannot be referred to an Adjudicator under section 92.

[103] The facts of Guenette are similar to those in the present appeal in the following respects. First, the employees were covered by a collective agreement. Second, the dispute arose from the employment relationship and was regarded as capable of being pursued through the grievance process under section 91, but in fact was not. Third, the grievance could not have been referred to independent adjudication under section 92.

[104] As my colleague Sexton J.A. points out, however, differences do exist between the present appeal and Guenette with respect to the nature of the dispute and the relief sought. The appellants in Guenette had complained over a period of several years about the waste of public money and other forms of mismanagement in the Department where they were employed. They alleged not only that their complaints had been ignored, but also that they had been harassed in the workplace for speaking up, to the detriment of their careers and health. In order to remedy these alleged wrongs, the appellants each claimed $3 million in general damages and loss of pension earnings, and a total of $30 million in punitive and aggravated damages to establish a non-profit advocacy organization to protect the rights of government employees, especially on issues of the abuse of power and harassment.

[105] Allegations of this kind typically involve making difficult findings of fact on the basis of extensive and conflicting evidence as well as balancing competing values in the interpretation and application of a broad standard, and the exercise of considerable judgment in fashioning an appropriate remedy. Further, the claims were not central to the employment relationship and the relief sought was well beyond that typically claimed in grievance processes. In other words, in view of the subject matter of the claims in Guenette, and the relief sought, section 91 may have seemed to provide no real remedy to the plaintiffs.

[106] In contrast, the dispute in the present appeal is of a much narrower compass. It concerns Mr. Vaughan's eligibility for a carefully defined statutory right respecting early retirement and thus falls clearly within section 91. Although Mr. Vaughan's claim is doubtless not without its wrinkles, the facts required to establish eligibility for ERI benefits under the Regulations are relatively few and not overly complex. There is no reason to think that, apart from its failure to provide access to an impartial adjudicator, the statutory process is not equipped to resolve this dispute. Further, the claim is integral to the employment relationship. Nor does the relief sought in Mr. Vaughan's statement of claim (a declaration of entitlement to ERI benefits or an equivalent amount in damages) indicate that, in its essence, the dispute cannot be resolved under the section 91 procedures.

[107] Nonetheless, the cases cannot be distinguished on the ground that the plaintiffs in Guenette could not have grieved the substance of their complaint under section 91 of the PSSRA. In the Superior Court of Justice ([2000] O.J. No. 3604), Chadwick J. expressly held (at para. 51) that "the harassment claim clearly arises from the relationship of employer/employee" and (at para. 53) that the plaintiffs' "exaggerated or novel claim for damage" did not "take it outside the exclusive jurisdiction model". It is inconceivable that Chadwick J. would have struck the plaintiffs' claim on the basis of Weber if he had thought that it could not have been grieved under section 91.

[108] While the Court of Appeal did not expressly state that the appellants' claims fell within section 91, MacPherson J.A.'s reasons proceed on the assumption that Chadwick J. was correct to conclude that, in its essentials, the plaintiffs' claim could have been grieved under section 91. Otherwise, the Court would surely have reversed on the ground that the claim fell outside the broad wording of section 91, and would not have had to consider whether section 91 established an exclusive remedy.

[109] I should also note that in Pleau the plaintiffs' claims had many of the characteristics of those in Guenette. Nonetheless, the Court in Pleau was of the view (at para. 54) that, while not subject to adjudication under section 92, the plaintiffs' claims were grievable under the broad language of section 91. The facts of the present appeal fall precisely within what Cromwell J.A. described (at para. 102) as the narrow scope of court involvement with claims arising from the employer/employee relationship in the federal public service: Mr. Vaughan had no access to adjudication and had not had recourse to the grievance process.

[110] Since the Court in Pleau concluded that the PSSRA grievance process did not impliedly oust its jurisdiction over the claim of Mr. Pleau, a federal public service employee, it did not have to consider the Crown's argument that the claims of his wife and children should be struck on the ground that, even though they had no access to the grievance process since they were not employees of the federal Crown, their claims were derivatives of Mr. Pleau's and should fall with his.

[111] Perhaps Pleau and Guenette would have been better decided on the ground that the nature of the allegations in the statements of claim and the relief sought were so far removed from typical employer/employee disputes and the grievance process was so manifestly unsuitable for resolving them, that they should have been regarded as falling outside section 91 altogether. However, since they were not, the courts' reasoning on the procedural unfairness issue cannot be dismissed as irrelevant to the issue raised in the present appeal. Nonetheless, I would agree that, if the PSSRA is to be interpreted as providing an exclusive remedy for disputes falling under section 91, it should not be interpreted so broadly as to cover complaints for which the internal grievance process cannot provide effective relief. As Estey J. said in St. Anne Nackawic (at 723) in a slightly different context, an employee should not suffer "a real deprivation of an ultimate remedy" for a grievance.

[112] A second difference between the present case and Guenette is that the dispute in Guenette was also covered by a Treasury Board directive and an Order in Council that enabled employees alleging workplace harassment to complain to the Investigation Director of the Public Service Commission. The existence of this alternative process may well have detracted from the argument that section 91 provided the exclusive means of resolving workplace disputes that could be grieved through the internal process established by the PSSRA. In contrast, no such alternative process was available to Mr. Vaughan.

[113] I turn now to examine the reasoning in Guenette. MacPherson J.A. identified (at para. 50) four considerations that Cromwell J.A. in Pleau had taken into account when concluding that the PSSRA did not impliedly oust the jurisdiction of the Court and that the Weber principle did not apply. In my respectful opinion, only one of these considerations is significant: the lack of access to an impartial adjudicator to determine the employee's legal rights. I shall consider each in turn.

(i) the language of subsection 91(1) is not mandatory

[114] Subsection 91(1) provides that an employee who feels aggrieved on account of any of the matters set out in the subsection "is entitled" to present the grievance at each of the levels of the grievance process provided by the PSSRA. The italicised words were said in Pleau and Guenette to indicate that the process is permissive: they do not require an employee with a grievance to have resort to the statutory process.

[115] In contrast, subsection 45(1) of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2, the provision considered in Weber, states:

Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable [emphasis added].

The language of this provision is said to be mandatory and thus clearly to indicate that the statutory remedial scheme is exclusive.

[116] In my respectful opinion, however, these differences in statutory language are not significant indicators of different legislative intents.

[117] First, because the two provisions have different functions, they are not parallel. Subsection 91(1) of the PSSRA is directed at the employee who has a grievance. It does not provide that such an employee shall present a grievance at each level of the grievance procedure established by that section, because employees may legitimately decide not to seek any redress for a grievance. Therefore, the fact that subsection 91(1) says that an employee is entitled to grieve is, in my view, indeterminate of whether, if she decides to seek a remedy, she must do so through statutory procedures.

[118] In contrast, subsection 45(1) of the Ontario statute is directed at the content of the collective agreement and stipulates that it must provide for the binding arbitration of all differences between the parties arising from the collective agreement. It does not, however, expressly make it mandatory for employees with a grievance to resort to the arbitration arrangements made in the collective agreement, rather than to the courts. Indeed, the arbitration clause set out in subsection 45(2) of the Ontario Labour Relations Act, which is inserted into collective agreements that do not contain one, is very similar in wording to section 91. It provides that, "either of the parties may, after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference or allegation to arbitration ... ."

[119] In my opinion, if section 45 of the Ontario statute is regarded as evidence of a legislative intention to oust the jurisdiction of the courts, the language of section 91 does not preclude a similar conclusion. Moreover, since jurisdiction may be ousted by implication, it cannot be held that, in order to exclude the Court's jurisdiction, a statute must explicitly provide that an employee can only seek redress for a workplace grievance through the means provided in the legislation. As Cromwell J.A. said in Pleau (at para. 39), "an express grant of exclusive jurisdiction is not necessary to sustain judicial deference to the statutory dispute resolution process."

[120] In short, the different functions of subsections 45(1) and 91(1) in their respective statutory schemes, and the similarities in the wording of subsections 45(2) and 91(1), make it difficult for me to draw the same inferences from these provisions as the courts that decided Guenette and Pleau.

[121] Second, counsel for Mr. Vaughan conceded that the PSSRA impliedly ousted the Court's jurisdiction over disputes that could have been referred to adjudication under section 92. However, the language of that section is no more mandatory than that of subsection 91(1). Subsection 92(1) provides that, in the prescribed circumstances, "the employee may, ... refer the grievance to adjudication." Thus, if the permissive language of section 92 is not inconsistent with the exclusiveness principle, neither is that of section 91.

(ii) explicit provision in subsection 91(1) that the grievance procedure is not exclusive

[122] Subsection 91(1) of the PSSRA provides that the grievance procedure that it establishes applies only to disputes for which "no administrative procedure for redress is provided in or under an Act of Parliament". This provision is elaborated in Article 35.05 of the Master Agreement which states that any such alternative procedure "must be followed". Hence, it was said in Guenette (at para. 52) that, because Parliament expressly contemplated alternative means for the resolution of complaints otherwise falling within section 91 (such as the complaint process established under the Canadian Human Rights Act), it is less likely that the section 91 arrangements were intended to exclude the jurisdiction of the courts.

[123] However, it is not clear to me why the fact that the grievance procedure under section 91 must yield to other statutory administrative procedures for the redress of employment-related grievances indicates that, absent such procedures, section 91 does not exclude the Court's jurisdiction.

[124] As I have already noted, the Supreme Court of Canada seems to have been of the view in the Regina Police Assn. case that the superior court retained jurisdiction only when a dispute fell within the jurisdiction of neither the arbitrator, nor the Saskatchewan Police Commission. There is nothing in the reasons of Bastarache J. to suggest that, because the legislature had divided jurisdiction over work-related disputes between two administrative bodies, it was more difficult to conclude that each body exercised exclusive jurisdiction within its allotted sphere.

(iii) the limited preclusive clause in the PSSRA

[125] The "final and binding" clause typically protecting the awards of grievance arbitrators appointed under provincial labour relations statutes, including the legislation considered in Weber, is far less comprehensive than the preclusive clauses protecting from judicial review the decisions of most labour relations boards, including the Canada Industrial Relations Board: see Canada Labour Code, R.S.C. 1985, c. L-2, subsection 22(1).

[126] Nonetheless, while a finality clause "does not have the preclusive effect of a full privative clause" (Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 at para. 31), the Supreme Court of Canada has regarded the inclusion of such a clause as one of the indicia of a legislative intent that arbitration is to be the exclusive forum for resolving workplace disputes arising from the collective agreement: see, for example, St. Anne Nackawic Pulp & Paper Co. Ltd. at 710.

[127] The finality clause governing the section 91 grievance process, however, is more limited than the typical "final and binding" clause protecting arbitral decisions. Subsection 96(3) of the PSSRA provides that a decision on a grievance at the final level, that is not referable to adjudication under section 92, "is final and binding for all purposes of this Act and no further action under this Act may be taken thereon." Article 35.13 of the Master Agreement tracks the language of subsection 96(3): "the decision taken at the final step in the grievance process is final and binding and no further action may be taken under the Public Service Staff Relations Act."

[128] By limiting the finality of decisions to the purposes of the Act, Parliament may be regarded as intending that decisions at the final level of the grievance process are not "final and binding" for other purposes, such as an action for damages in tort or for a declaration of right. In my opinion, however, the force of this argument is reduced by the following two considerations.

[129] First, the significance of the relatively weak preclusive clause in subsection 96(3) should be assessed by reference to other provisions in the PSSRA, rather than to provincial legislation. As I have already noted, counsel for Mr. Vaughan conceded that an employee with a grievance that can be referred to adjudication under section 92 may only seek judicial redress under section 18.1 of the Federal Court Act by means of an application for judicial review of the Adjudicator's decision: section 92 is exclusive of the original jurisdiction of the courts. However, decisions by Adjudicators are no longer protected by a preclusive clause at all. Viewed in this context, subsection 96(3) appears rather more robust than when it is compared to the unadorned "final and binding" clause typically found in provincial labour relations legislation.

[130] Second, when defining the roles of an administrative agency and the courts for standard of review purposes courts are nowadays apt to afford less importance than once they did to the precise wording, or existence, of a preclusive clause. The presence of a partial preclusive clause in the enabling statute is merely one of the contextual factors to be considered as part of a pragmatic or functional analysis: Pushpanathan at para. 31. Hence, to attribute much significance to the limited nature of the finality clause in subsection 96(3) for the purpose of deciding whether the Court's original jurisdiction over a dispute is impliedly ousted would not accord with the diminished importance of preclusive clauses, and their particular wording, in contemporary judicial review proceedings.

(iv) no access to a specialized and independent decision-making body under section 91

[131] The aspect of the procedures under section 91 of the PSSRA, and their elaboration in the Master Agreement, that most significantly differentiates them from those considered in cases where Weber has been applied, is that section 91 does not provide employees with access to an impartial decision-maker who is independent of the employer, has the legal powers to compel the production of evidence and the attendance of witnesses, and can decide questions of common law.

[132] Not much information can be gleaned from the Act, the Master Agreement or the appeal record about either the operation of the four-level grievance process or the qualifications and experience of the management personnel who serve as grievance officers. It is equally important, however, not to overlook or to downplay the significance of what is known about the section 91 process or may be inferred from it.

[133] First, employees are entitled to the essential elements of the participatory process found in many relatively informal administrative decision-making contexts. In addition, the duty of fairness, including the rule against bias, applies at least to the final level of the grievance process and, in some circumstances, may require disclosure to the employee of information relevant to an employee's claim that is in the possession of the grievance officers.

[134] Second, while neither the PSSRA nor the Master Agreement specifies who can be appointed a grievance officer, it is in the interests of good management-employee relations that grievances are handled effectively and that section 92 references, when available, are kept to a minimum. Hence, there are good reasons for selecting grievance officers from management personnel with relevant knowledge and skills.

[135] Third, while the grievance process is internal, it provides employees with a structured opportunity to have grievances considered by persons at ascending levels in the employer's managerial hierarchy. Contrary to the oblique suggestion of counsel, it cannot be assumed that the section 91 procedures never result in decisions that resolve a grievance favourably to the employee. Indeed, Mr. Vaughan's complaint that the job offer originally made to him was unreasonable was upheld at the second level of the section 91 internal grievance process before it was referred to adjudication under section 92. Moreover, since the statutory procedural provisions governing the internal grievance procedure are sparse, there is considerable scope for their improvement through collective bargaining.

[136] Fourth, the availability of judicial review of an adverse final level decision on a grievance that cannot be referred to an Adjudicator under section 92 provides external discipline for decision-makers, and brings an independent measure of quality control to both process and outcome. On an application for judicial review to the Trial Division under section 18.1 of the Federal Court Act, the Court can be asked to review the fairness of the administrative process, the rationality of material findings of fact, and the lawfulness of the decision or action in question.

[137] The Court has a wide range of remedies and powers at its disposal for discharging its review function, including the powers to admit affidavit evidence, to order a decision-maker to perform a legal duty and to declare an employee's legal rights. In addition, where appropriate, a Judge may direct that an application for judicial review proceed as an action: subsection 18.4(2). This provision was inserted because of a concern that the summary nature of an application might be unsuitable in some cases where a declaration was sought: Haig v. Canada (Chief Electoral Officer), [1992] 3 F.C. 611 (C.A.).

[138] Thus, in the context of the facts of the present appeal, if the grievance officers failed to decide Mr. Vaughan's complaint that he had been unlawfully refused ERI benefits, or unreasonably delayed making a decision, the Court could order the final level decision-maker to decide the grievance in accordance with the law: Federal Court Act, paragraph 18.1(3)(a). The Court could also set aside a decision to dismiss the grievance if it concluded that the decision-maker had erred in law in interpreting or applying the statutory provisions defining eligibility for ERI benefits, and remit the matter with a direction that it be redetermined consistently with the Court's reasons: paragraph 18.1(3)(b). Finally, if trial procedures were necessary to resolve critical factual issues, the application could be converted into an action: subsection 18.4(2).

[139] For a recent example of the Court's setting aside for error of law a decision of a final level decision-maker to uphold a reprimand, and remitting it with directions, see Haydon v. Canada, [2001] 2 F.C. 82 (T.D.). Given the informal and non-independent nature of the grievance process, it would seem unlikely that the Court would be prepared to defer to the final level decision-maker on questions that were not purely factual in nature.

(d) Summary

[140] I would summarize as follows my principal conclusions on the jurisprudence considered above. First, although no previous case decided by this Court raises as clearly the precise issue in dispute in this appeal, post-Weber decisions of both Divisions of the Federal Court, with one possible exception, provide general support for the proposition that the statutory grievance process is the exclusive forum for resolving disputes falling within section 91.

[141] Second, in Regina Police Assn., the Supreme Court broadened the basis of the Weber principle. The comprehensiveness of statutory workplace grievance procedures is part of the basis of the rationale for presuming a legislative intent to exclude the jurisdiction of the courts to adjudicate a dispute that could have been grieved. Consequently, Weber is not limited to situations where the dispute arises from a collective agreement and arbitration is the statutorily designated means of resolving differences.

[142] Third, in my respectful view, decisions from provincial courts of appeal, the most apposite of which are Pleau and Guenette, have tended both to exaggerate the importance of the differences between the wording of the PSSRA and the Ontario legislation considered in Weber, and to minimise the legal significance of the comprehensive nature of the statutory scheme created by the PSSRA and of the right of an aggrieved employee to apply to the Federal Court for judicial review.

[143] In addition, Pleau, on which Guenette heavily relies, is based in part on the view that the Weber principle is limited to grievances that arise from a collective agreement and are to be resolved through arbitration. However, Regina Police Assn. indicates that the exclusiveness principle is of broader application.

4. Conclusion

[144] Stripped to its essentials, this appeal turns on interpreting the relevant provisions of the PSSRA in light of two competing considerations. On the one hand, the fact that Mr. Vaughan and other employees who are aggrieved by an occurrence or matter affecting their terms and conditions of employment, to which section 92 does not apply, have no access to third-party adjudication militates in favour of courts' retaining jurisdiction over claims that, in essence, fall within the broad terms of section 91. Parliament should not normally be deemed to authorize the determination of a person's legal rights without the opportunity of a fair hearing before an impartial administrative decision-maker, or a court.

[145] On the other hand, the strong trend in labour relations law in recent years has been to reduce the role of the courts and not to supplement statutory dispute mechanisms that are, to a greater or a lesser degree, the result of, or could be the subject of, collective bargaining. The courts' interventions in collective bargaining regimes in the past were often regarded as inimical to the purposes underlying labour relations legislation. In addition, to conclude that the PSSRA does not impliedly oust the courts' jurisdiction over claims falling within section 91 would fragment the Federal Court's exclusive judicial review jurisdiction over federal administrative tribunals, including those regulating labour relations in the federal public service.

[146] Although he did not address this latter consideration, MacPherson J.A. stated in Guenette (at para. 59) that an employee's access to judicial review in the Federal Court in respect of a final level decision was immaterial to determining whether the statutory scheme created by the PSSRA is exclusive. However, the fact that the right of an unsuccessful griever to make an application for judicial review is found in the Federal Court Act, rather than in the PSSRA itself, is not determinative of whether Parliament has created a statutory scheme that impliedly excludes the Court's jurisdiction over disputes that can be resolved through the administrative process. The Federal Court's exclusive judicial review jurisdiction over federal administrative tribunals is an important aspect of federal administrative law and the Federal Court Act is integral to the statutory context within which the PSSRA, like other federal regulatory legislation, must be interpreted.

[147] The question, thus, comes down to deciding whether the reasons for implying a Parliamentary intent that the comprehensive scheme created by and under the PSSRA for deciding workplace disputes is exclusive are outweighed by the fact the scheme does not provide for impartial adjudication. In my view, they are not.

[148] There can be no doubt that, supplemented by the Master Agreement, sections 91 and 92 of the PSSRA constitute a comprehensive scheme for the determination of workplace disputes arising from employment relationship in the federal public service. The courts' reluctance to provide an alternative forum for the resolution of employment disputes in the face of such a comprehensive scheme is based on the view that it is good public policy to ensure that the judicial role in monitoring statutorily regulated labour relations is residual.

[149] McLachlin J. (as she then was) identified the scope of that residual role in Brotherhood of Maintenance Way Employees of Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495, when she said (at para. 8):

No matter how comprehensive a statutory scheme for the regulation of disputes may be, the possibility always remains that events will produce a difficulty which the scheme has not foreseen. It is important in these circumstances that there be a tribunal capable of resolving the matter, if a legal, rather than extra-legal, solution is to be found. It is precisely for this reason that the common law developed the notion of courts of inherent jurisdiction. If the rule of law is not to be reduced to a patchwork, sometime thing, there must be a body to which disputants may turn where statutes and statutory schemes offer no relief.

[150] In my view, the employment-related issue giving rise to Mr. Vaughan's statement of claim was within the contemplation of the statutory scheme, in the sense that it could be grieved under section 91, and the remedy provided by the internal grievance provisions, coupled with the right to apply for judicial review, is far from being illusory. Counsel for Mr. Vaughan suggested that a final level decision that was favourable to Mr. Vaughan's claim that he was entitled to ERI benefits might not be implemented by Treasury Board. However, he was unaware of instances where this had happened and there was no evidence in the record to substantiate his concern.

[151] The undesirability of fragmenting the judicial role in labour relations in the federal sphere is a further indication that it would do violence to Parliament's intent to permit an employee to institute an action against the federal Crown, instead of initiating a grievance under section 91. By permitting employees in such circumstances to institute actions against the federal Crown, provincial courts of appeal seem to have overlooked a significant aspect of Parliamentary intent with respect to federally regulated labour relations, including those in the federal public service.

[152] Parliament has given to the Federal Court exclusive judicial review jurisdiction over the proceedings of federal boards, commissions and tribunals, including those administering labour relations, such as section 91 decision-makers, thus vesting in a single national court broad responsibility for this important aspect of federal law. To conclude that Weber does not apply, despite the comprehensive nature of the grievance resolution procedures established by the PSSRA and elaborated in the collective agreement, effectively fragments the exclusive review function of the Federal Court over administrative decisions governing employment relations in the federal sphere by opening the way to proceedings against the Crown in provincial courts. This would create the potential for conflicting decisions from courts in the provinces on the interpretation of and application of federal statutory provisions, or even Treasury Board directives, relating to the terms and conditions of employment in the federal public service.

[153] This brings me to consider whether the procedural fairness of a comprehensive scheme for resolving employment-related disputes is relevant to determining whether it would do violence to that scheme to permit employees to invoke the original jurisdiction of the courts to determine claims that could be grieved. Despite the allegation that it would be unfair to deny access to the courts to an employee in respect of a claim that could not be the subject of third-party adjudication, counsel for Mr. Vaughan expressly disavowed an intention to impugn the validity of the statutory scheme under either 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 or the Canadian Bill of Rights, 1960, c. 44.

[154] I understand Sexton J.A. to be of the view that, as a result of this concession by counsel, Mr. Vaughan's lack of access to impartial and independent adjudication of his grievance is irrelevant to determining whether it can be implied that Parliament intended it to be exclusive of the courts' original jurisdiction over actions in tort and contract against the federal Crown that arise from the employment relationship. In his opinion, the comprehensiveness of the scheme for the resolution of workplace disputes is in itself a sufficient indication of Parliament's intention to oust the jurisdiction of the courts over actions that essentially fall within the scheme. The fact that the scheme is procedurally unfair is irrelevant.

[155] I cannot agree. The comprehensiveness of the scheme is not the only factor to be considered in determining whether Parliament has by implication created an exclusive scheme for resolving work-related disputes. I find it inconceivable that this Court would decide that its jurisdiction was ousted by a scheme that was comprehensive but, for example, denied any opportunity for a claimant to participate in the decision-making process by making representations or adducing evidence. In my opinion, to conclude that Parliament has impliedly excluded the jurisdiction of the courts over the adjudication of legal rights is no small matter; it is a decision that should only be made after the legislative scheme as a whole has been considered, including its propensity to deny the individual the right to a fair hearing of his or her claim. Parliament is not readily presumed to have intended to dispense with fairness when it has not expressly so provided.

[156] My colleague says (at para. 9) that Weber supports his position because the Supreme Court did not identify the availability of third party adjudication as relevant to determining the exclusiveness of a statutory scheme, but focussed exclusively on its comprehensiveness and whether, in its essentials, the dispute fell within the scheme.

[157] This is true, but not, in my view, conclusive. Weber was concerned solely with the exclusiveness of arbitration, a process, which by definition, involves the adjudication of a dispute by a third party. In Regina Police Assn., both of the potentially relevant administrative processes were independent of the employer. Since the fairness of the decision-making process was not issue in either case nothing can be inferred from the fact that it was not expressly identified by the Court as a relevant consideration in determining the exclusiveness of the schemes under consideration. Moreover, in Regina Police Assn., Bastarache J. said (at para. 34) only that the comprehensiveness of a scheme is part of the rationale supporting the application of the Weber principle.

[158] My colleague also relies (at para. 17) on Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52">2001 SCC 52 as authority for the proposition that, absent a Charter right, once it is clear that Parliament intends a statutory scheme to exclude the jurisdiction of the courts, the absence of a right to be heard by an impartial decision-maker is irrelevant. However, in my opinion, this is not our case: the comprehensive nature of the scheme does not in itself establish a sufficiently clear legislative intention that it is exclusive as to warrant the Court's omitting to consider the fairness of the statutory process.

[159] I also note that my colleague relies (at para. 14) on Johnson-Paquette to demonstrate that the PSSRA ousts the Court's jurisdiction. However, since the question under consideration in the present appeal is whether the reasoning in Johnson-Paquette remains convincing in light of the decisions of other appellate courts, it cannot be invoked as authority for its own correctness.

F. CONCLUSIONS

[160] Consequently, although the absence of access to impartial adjudication is, in my view, a relevant consideration to determining whether Parliament intended the section 91 process to exclude the Court's jurisdiction under section 17 of the Federal Court Act, I do not regard it as sufficient in this case to conclude that it outweighs the countervailing considerations that I have outlined above.

[161] I conclude that, even though the appellant has no access to third party adjudication, it would do violence to the statutory scheme to permit Mr. Vaughan to institute an action under section 17 of the Federal Court Act in respect of his entitlement to benefit under the ERI program. I rely particularly on the following factors to support my conclusion: the general thrust of legislation to keep to a minimum judicial intervention in labour disputes; the comprehensiveness of the statutory grievance procedures under the PSSRA and the reality of the redress available in this case, both before the grievance officers and on an application for judicial review under the Federal Court Act; the jurisprudence of both the Supreme Court of Canada and the Federal Court; and the Federal Court's exclusive judicial review jurisdiction over federal administrative tribunals.

[162] Further, it is always open to the unions representing employees in the federal public service to seek, through the bargaining process, to increase the range of matters that are referable to independent adjudication. This can be accomplished if the parties agree that a matter relating to the terms and conditions of employment, that is not statutorily excluded from collective bargaining, is deemed to be part of the collective agreement. Collective bargaining is normally more satisfactory than litigation as a method of ameliorating dispute-resolution processes.

[163] Since I have decided that the Court has no jurisdiction over Mr. Vaughan's statement of claim, there is no need to consider the second issue, namely, whether the Court should decline to determine the matter in the exercise of its discretion.

[164] For these reasons, I would dismiss the appeal but, in view of the importance of the issue raised, without costs.

"John M. Evans"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-695-01

STYLE OF CAUSE: William Thomas Vaughan v. Her Majesty The Queen

PLACE OF HEARING: Ottawa, Ontario

DATE OF HEARING: September 11, 2002

REASONS FOR JUDGMENT BY : SEXTON J.A.

CONCURRED IN BY: RICHARD C.J.

CONCURRING REASONS BY: EVANS J.A.

DATED: February 14, 2003

APPEARANCES:

Mr. D. Brown FOR THE APPELLANT

Mr. S. Welchner

Mr. H. A. Newman FOR THE RESPONDENT

Mr. R. Fader

SOLICITORS OF RECORD:

Nelligan O'Brien Payne LLP FOR THE APPELLANT

Ottawa, Ontario

Mr. Morris Rosenberg FOR THE RESPONDENT

Deputy Attorney General of Canada

Ottawa, Ontario

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Vaughan v. Canada, 2003 FCA 76

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2003 FCA 76