Date: 20020610
Docket: A-271-01
Neutral citation: 2002 FCA 242
CORAM: DÉCARY J.A.
ISAAC J.A.
EVANS J.A.
BETWEEN:
NORMAND CLEROUX
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
Heard at Ottawa, Ontario, on June 5, 2002.
Judgment delivered at Ottawa, Ontario on June 10, 2002.
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: DÉCARY J.A.
ISAAC J.A.
Date: 20020610
Docket: A-271-01
Neutral citation: 2002 FCA 242
CORAM: DÉCARY J.A.
ISAAC J.A.
EVANS J.A.
BETWEEN:
NORMAND CLEROUX
Appellant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1] This is an appeal from a decision of the Trial Division (Cleroux v. Canada (Attorney General), 2001 FCT 342) granting a motion by the Attorney General of Canada to strike Normand Cleroux's statement of claim, filed in September 2000, on the grounds of lack of jurisdiction, abuse of process and failure to disclose a reasonable cause of action.
[2] The Motions Judge found that the allegations on which Mr. Cleroux's claims for damages are based arose from incidents at the workplace and have been the subject of grievances. Some were determined internally by the Director General of Employees and others by independent third-party adjudication, namely, an Adjudicator of the Public Service Staff Relations Board. The Motions Judge held that the machinery created by the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, and the collective agreement, for resolving grievances by employees in the federal public service is comprehensive and excludes the Court's jurisdiction over employment-related claims for damages in tort against the Crown in the right of Canada.
[3] Relying on Johnson-Paquette v. Canada (1998), 159 F.T.R. 42, aff'd (2000), 253 N.R. 305 (F.C.A.), the Motions Judge also held that, since Mr. Cleroux had resorted to the processes established under the collective agreement and the Act, his appropriate remedy was an application for judicial review. Decisions of the Director General of Employees and an Adjudicator cannot be impeached collaterally by a claim for damages.
[4] The essence of Mr. Cleroux's claims is that he should have received more compensation than he was awarded by the Adjudicator for financial loss that he has suffered as a result of events leading up to and following the termination of his employment in the federal public service. After a hearing lasting more than twenty days spread over the period April 1995 to August 1996, the Adjudicator issued very extensive reasons for his decision, dated April 23, 1997, that deal carefully and fully with the most significant of Mr. Cleroux's grievances.
[5] On the issue of the termination of Mr. Cleroux's employment, the Adjudicator found that, although Mr. Cleroux was guilty of misconduct on the basis of certain of the allegations made against him, termination was too severe a sanction in light of the principle of progressive discipline. Since Mr. Cleroux did not ask to be reinstated in his position, the Adjudicator awarded compensation for loss of earnings and benefits for the eighteen months starting at the date of his termination, although Mr. Cleroux had requested to be paid up to the date of the Adjudicator's decision. Mr. Cleroux seems to believe that, despite his termination for persistent misconduct, the employer was under a duty to find him another position in the public service.
[6] In my opinion, the Motions Judge was correct to strike Mr. Cleroux's statement of claim. I would affirm his decision on the ground that Mr. Cleroux's appropriate remedy is an application for judicial review of the decisions rendered by the Adjudicator and, earlier, by the Director General of Employees.
[7] Mr. Cleroux did not apply for judicial review pursue and has provided no adequate explanation for his failure to do so. It is an abuse of process for him, more than three years after the Adjudicator's decision was issued, to bring an action that seeks, in effect, to re-litigate issues that, in substance, have or could have been raised and dealt with in the administrative processes designed specifically for this purpose.
[8] For these reasons, I would dismiss the appeal with costs.
"John M. Evans"
J.A.
"I agree
Robert Décary J.A."
"I agree
Julius A. Isaac J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-271-01
STYLE OF CAUSE: NORMAND CLEROUX
Appellant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JUNE 5, 2002
REASONS FOR JUDGMENT BY: EVANS J.A.
CONCURRED IN BY: DÉCARY J.A.
ISAAC J.A.
DATED: JUNE 10, 2002.
APPEARANCES:
NORMAND CLEROUX APPLICANT ON HIS OWN BEHALF
JEFF ANDERSON FOR THE RESPONDENT
SOLICITORS OF RECORD:
NORMAND CLEROUX APPLICANT ON HIS OWN BEHALF
MORRIS ROSENBURG
DEPUTY ATTORNEY GENERAL
OF CANADA FOR THE RESPONDENT
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