Docket: T-120-17
Citation:
2017 FC 613
Ottawa, Ontario, June 21, 2017
PRESENT: The Honourable Mr. Justice Boswell
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BETWEEN:
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DAVID ROBINSON
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Plaintiff
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and
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PARKS CANADA
AGENCY
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Defendant
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ORDER AND REASONS
[1]
The Plaintiff, David Robinson, is a former
federal public servant who claims he was terminated without cause by the
Defendant, Parks Canada Agency. In his Statement of Claim filed on January 24,
2017, he claims, among other things:
a.
Retroactive increase to his salary from November
2014 to the date of his retirement, based on an ENG-06 position, with
associated increases in his pension;
b.
Damages equivalent to 24 months’ salary;
c.
Loss of future earning capacity/diminished
future earning capacity;
d.
Damages for tortious interference with an
employment contract;
e.
Damages for negligent misrepresentation;
f.
General Damages in the amount of $50,000;
g.
Damages for the loss of 8 years of bilingual
bonus; and
h.
Aggravated and Punitive Damages.
[2]
Parks Canada has filed a motion seeking an Order
striking out Mr. Robinson’s Statement of Claim in its entirety, without leave
to amend, and dismissing his action pursuant to Rule 221 of the Federal
Courts Rules, SOR/98-106, for want of jurisdiction and on the basis that
the Claim is an abuse of this Court’s process.
I.
Background
[3]
Mr. Robinson commenced employment as a federal
public servant on July 4, 1986, and with Parks Canada on July 3, 2007 in a
senior management position. As a manager, he was an excluded employee without
representation from a union. The terms and conditions of his employment were
governed by verbal and written agreements, policy, and statute and regulations,
including the Public Service Labour Relations Act, SC 2003, c 22, s 22 [PSLRA],
and the Parks Canada Agency Act, SC 1998, c 31 [PCAA]. French
language training was a condition of his employment and he undertook training
between February and December 2008. However, the Agency called him back from
language training prematurely for work purposes. Despite his requests for
language training, Mr. Robinson says Parks Canada did not give him an
opportunity to have his proficiency tested before deeming him non-proficient in
French. According to Mr. Robinson, Parks Canada’s failure to provide him French
language training affected his employment by denying him the bilingual bonus
available to other employees.
[4]
Mr. Robinson claims that on December 1, 2014, he
was unconditionally appointed from an ENG-05 position to an ENG-06 position. In
this position, Mr. Robinson managed national heritage and tourism projects and
reported to Kalvin Mercer. Mr. Robinson says Mr. Mercer advised him that he
would be compensated for the additional duties associated with the higher
classification and that any language proficiency issues would be worked out.
Mr. Robinson claims he was not compensated for the additional duties or the
increased responsibility at the higher classification level. Mr. Robinson
claims that on December 19, 2014, Mr. Mercer confirmed his preferred title for
the new position, “Chief Engineer, Heritage and
Tourism,” and advised him that confirmation of his appointment came from
Parks Canada’s Chief Executive Officer. He also claims that his supervisor,
Davina Brown, congratulated him on the CEO’s endorsement of his new role.
[5]
On December 23, 2014, Mr. Robinson says Mr. Mercer
informed him of the process required to put him in a one year acting role for
the ENG-06 position without competition based on individual merit, and on
December 24, 2014, Mr. Mercer confirmed to Mr. Robinson that human resources
templates and organizational charts referenced him in the ENG-06 position. On
January 14, 2015, Mr. Robinson claims Ms. Brown advised him that the Executive
Management Committee had decided to override Mr. Mercer’s representations about
the appointment process and to refer the new position to a competition. On
January 18, 2015, Mr. Robinson claims he was told he could no longer be
appointed to the ENG-06 position and would have to apply for it through a
competition.
[6]
On February 16, 2015, Mr. Robinson says Ms.
Brown advised him that he could return to his former ENG-05 position but he was
later advised by her that his former position was no longer available. Mr.
Robinson claims he was offered a lower status position with an ENG-05
classification after he was advised his former position had been eliminated. This
position came with significantly fewer duties, less authority and
responsibility, less of a supervisory role over other personnel, no private
office, and no meaningful work. On April 22, 2015, Mr. Robinson says he applied
for the ENG-06 position, as well as another ENG-06 position through a
competition process. He was not interviewed for the position through the
competition process and was advised that he was deemed unqualified for the
position because he did not meet the language requirements. The other ENG-06
position ended up being filled without a competition. Mr. Robinson was again
advised that he did not meet the language requirement for the position.
From
January 2015 to October 2015, Mr. Robinson claims he experienced isolation and
withdrawal in the workplace, and his mental and physical health suffered as did
his reputation. According to Mr. Robinson, the cumulative effects of the without
cause termination of his ENG‑06 position, the elimination of his former
ENG-05 position, the reduction of responsibilities in his subsequent ENG-05
position, and his damaged reputation, negatively impacted his mental health and
he went on sick leave on November 24, 2015. Mr. Robinson claims that due to the
demeaning conditions, misrepresentations, and lack of good faith shown by the
Agency, he informed Ms. Brown that he could not return to work. In a letter
dated October 15, 2016, he submitted his resignation effective January 25, 2017.
[7]
It was only after Mr. Robinson took steps to retire
that he filed a grievance arising from the events alleged in his Statement of
Claim. The grievance filed by Mr. Robinson on December 23, 2016, pursuant
to the PSLRA, is based upon essentially the same events and allegations
as contained in his Statement of Claim. On January 20, 2017, Mr. Robinson’s
legal counsel made submissions on his behalf at the first step grievance
hearing, and on February 10, 2017, Mr. Robinson was informed his grievance was
denied. With Parks Canada’s consent, Mr. Robinson has suspended the hearing of
the second and final level of his grievance pending the outcome of this motion.
II.
Issues
[8]
In the Plaintiff’s view, this motion raises two
issues: one, should the Court exercise its residual discretion to hear Mr.
Robinson’s claims; and two, does the Statement of Claim disclose no reasonable
cause of action such that it should be dismissed? According to the Defendant,
the sole issue to be determined is whether this Court should dismiss the claim
for want of jurisdiction and defer to the internal processes set out in the PSLRA
and the PCAA and, therefore, decline to exercise any residual
jurisdiction it may have to entertain the claims as set out in the Statement of
Claim.
[9]
In my view, the determinative issue is whether
subsection 236(3) of the PSLRA applies in view of the allegations
contained in the Statement of Claim.
III.
The Parties’ Submissions
[10]
The Defendant says the Plaintiff is an employee
for purposes of Part 2 of the PSLRA which deals with grievances, and
also under the PCAA. Any remedy he wishes to pursue regarding employment
issues is, the Defendant states, governed by the PSLRA; specifically,
sections 206, 207, 208, 209, 210, 211, 214, 225, 226, and 236. According to the
Defendant, the provisions of the PSLRA and the regulations thereto, the
terms and conditions of the Plaintiff s employment, section 13 of the PCAA,
and Parks Canada’s policies for staffing and for anti-harassment, constitute a
comprehensive and exclusive statutory and administrative scheme for the
resolution of employment-related disputes within Parks Canada. It would, in the
Defendant’s view, subvert these legislative and administrative schemes to
permit the Plaintiff to have recourse to the courts for matters that are
governed by the legislation, the terms and conditions of employment, and the
applicable policies. The Defendant submits that the Plaintiff’s claim should be
dismissed for want of jurisdiction and as an abuse of the Court’s process. The
Defendant maintains that, even if this Court has jurisdiction, the exercise of
such should be declined and the Statement of Claim struck out.
[11]
The Plaintiff states that, in order for a claim
to be dismissed under Rule 221, the Defendant must establish that the Statement
of Claim discloses no reasonable cause of action. According to the Plaintiff,
it is premature to dismiss the action at this point because the Defendant has
not yet responded fully to his requests for disclosure. The Plaintiff further
states that his action relates to termination of his employment for reasons unrelated
to a breach of discipline or misconduct, such that this Court retains
jurisdiction in view of subsection 236(3) of the PSLRA. The Plaintiff
claims he pursued the recourses available to him at his workplace when his
promotion was taken away from him, and that he was repeatedly assured that all
would be resolved and he would be made whole. The Plaintiff says this process
had such a deleterious effect on his mental health that, by the time it was
clear the Defendant’s promises to resolve the matter were amounting to nothing,
his health became such that he was unable to pursue any options under the PSLRA.
A grievance under the PSLRA is not, the Plaintiff contends, his only
option to obtain redress.
IV.
Analysis
[12]
The Plaintiff’s specific claims as alleged in his
Statement of Claim can be summarized as follows:
1.
The Defendant appointed him unconditionally to
an ENG-06 position on December 1, 2014, but never compensated him for the
higher classification level.
2.
The Defendant never provided him with French
language training and subsequently denied him the bilingual bonus.
3.
The Defendant later informed him he had to
compete for the ENG-06 position and he was unfairly screened out of a
competition for a second ENG-06 position.
4.
After he was unsuccessful in obtaining the ENG-06
position, the Defendant informed him that his previous ENG-05 position had been
eliminated, and he was offered a lower status ENG-05 position.
5.
He was terminated without cause since all of the
preceding events constituted a constructive or direct dismissal of his
employment without cause.
[13]
Each of the Plaintiff’s claims outlined above
constitute a matter which would be grievable pursuant to paragraph 208(1) (b)
of the PSLRA because these alleged events or actions are “as a result of any occurrence or matter affecting his or her
terms and conditions of employment.” This paragraph is a broad provision
that clearly encompasses and includes the Plaintiff’s claims about his
appointment to the ENG-06 position, his subsequent demotion to a lesser ENG-05
position, and denial of language training and a bilingual bonus.
[14]
According to the jurisprudence, the courts have
no jurisdiction over matters which are grievable under section 208 of the PSLRA.
An employee subject to the PSLRA, even a former one such as the Plaintiff
in the circumstances of this case, is statutorily barred from bringing an
action for any acts or omissions giving rise to a dispute relating to his or
her terms or conditions of employment by virtue of subsection 236(1). This
subsection provides that: “The right of an employee to
seek redress by way of grievance for any dispute relating to his or her terms
or conditions of employment is in lieu of any right of action that the employee
may have in relation to any act or omission giving rise to the dispute.”
[15]
In Bron v Canada (Attorney General), 2010
ONCA 71, 315 DLR (4th) 46 [Bron], the Ontario Court of Appeal
explained how subsection 236(1) explicitly ousts the court’s jurisdiction:
[29] Parliament can, subject to
constitutional limitations that are not raised here, confer exclusive
jurisdiction to determine certain disputes on a forum other than the courts. It
will take clear language to achieve that result: Pleau, at p. 381.
Section 236 is clear and unequivocal. Subject to the exception identified in s.
236(3), which has no application here, s. 236(1) declares that the right
granted under the legislation to grieve any work related dispute is “in lieu of
any right of action” that the employee may have in respect of the same matter.
Section 236(2) expressly declares that the exclusivity of the grievance process
identified in s. 236(1) operates whether or not the employee actually presents
a grievance and “whether or not the grievance could be referred to adjudication”.
The result of the language used in ss. 236(1) and (2) is that a court no longer
has any residual discretion to entertain a claim that is otherwise grievable
under the legislation on the basis of an employee’s inability to access
third-party adjudication: see Van Duyvenbode v. Canada, [2007] O.J. No.
2716 (S.C.), at para. 17, aff’d without reference to this point, 2009 ONCA 11; Hagal
v. Canada, [2009] F.C.J. No. 417 (T.D.), at para. 26, aff’d without
reference to this point, 2009 FCA 364. While the residual discretion may exist
if the grievance process could not provide an appropriate remedy, there is no
suggestion in this case that it could not: see Vaughan, at para. 30.
Assuming that to be the case, disputes that are grievable under the legislation
must be determined using the grievance procedure.
…
[33] Like the motion judge (at para.
36), I am satisfied that s. 236 of the PSLRA explicitly ousts the
jurisdiction of the court over claims that could be the subject of a grievance
under s. 208 of that Act. On my review of the appellant’s claim, there are no
allegations of misconduct by the respondents that predate April 1, 2005, the
date on which the PSLRA became the operative legislation. Section 236
applies to the entirety of the conduct underlying the appellant’s claims. The
motion judge properly held that the section excludes the claims from the
jurisdiction of the Superior Court.
[16]
The Federal Court of Appeal has also confirmed
that section 236 ousts the court’s jurisdiction, remarking in Canada
(Attorney General) v Amos, 2011 FCA 38 at para 9, [2012] 4 FCR 67, that: “Section 236 ousts the Court’s jurisdiction over disputes
relating to employment.” This Court has no jurisdiction, therefore, to
hear any of the Plaintiff’s claims which are grievable under paragraph 208(1)
(b) of the PSLRA.
[17]
In my view, the Plaintiff’s claims that he was
appointed to a position but never properly compensated, subsequently removed
from that position to a lower ENG-05 position, and not provided bilingual
training and denied a bilingual bonus, are beyond the Court’s jurisdiction
because they could be the subject of a grievance under paragraph 208(1) (b) of
the PSLRA.
[18]
As to the Plaintiff’s complaints and claims
about the staffing process for the two ENG-06 positions, these too are beyond
the Court’s jurisdiction in view of subsection 208(2) of the PSLRA and
the Staffing Policies of the Parks Canada Agency [Staffing Policies]
established under paragraph 13(1) (b) of the PCAA which authorized the
Parks Canada CEO to set staffing procedures and policies including policies related
to termination of employment otherwise than for cause. Subsection 208(2) of the
PSLRA provides that: “An employee may not
present an individual grievance in respect of which an administrative procedure
for redress is provided under any Act of Parliament, other than the Canadian
Human Rights Act.” The Staffing Policies include the use of
alternate dispute resolution processes prior to accessing more formal processes
in connection with an independent third party review; the grievance process under
the Staffing Policies permits an individual involved in an open
competition to file a complaint for all issues arising from the staffing
process.
[19]
Although grievances under the Staffing
Policies are not subject to the PSLRA, and even though the Plaintiff
is not time-barred from filing an action in this Court, the Court should
decline any jurisdiction it may have to hear the Plaintiff’s claims about the
staffing process. I reach this conclusion for two main reasons. First, the
Plaintiff did not avail himself of this administrative process to seek redress.
Second, the Supreme Court of Canada in Vaughan v Canada, 2005 SCC 11 at
para 39, [2005] 1 S.C.R. 146 [Vaughan] clearly stated that courts should
not interfere with dispute resolution processes created through legislation:
“… where Parliament has clearly created a scheme for dealing with
labour disputes, as it has done in this case, courts should not jeopardize the
comprehensive dispute resolution process contained in the legislation by
permitting routine access to the courts. While the absence of independent
third-party adjudication may in certain circumstances impact on the court’s
exercise of its residual discretion (as in the whistle-blower cases) the
general rule of deference in matters arising out of labour relations should
prevail.”
A.
Does subsection 236(3) of the PSLRA apply in
view of the allegations contained in the Statement of Claim?
[20]
Both parties cite and rely upon the Supreme
Court of Canada’s decision in Vaughan, a case where the Supreme Court
determined that, while the Public Service Staff Relations Act, RSC 1985,
c P-35 (now repealed) [PSSRA] did not oust the jurisdiction of the
ordinary courts with respect to matters grievable but not arbitrable under the PSSRA,
courts may refuse to exercise their discretion in order to avoid jeopardizing
Parliament’s comprehensive scheme for dealing with labour disputes. However,
the PSSRA has since been repealed and replaced with the PSLRA,
and subsequent cases have found that Vaughan must be read in light of
the current legislation. For example, in Bron, the Ontario Court of
Appeal noted that Vaughan concerned legislation which did not contain a
provision similar to section 236 of the PSLRA:
[28] The holding in Vaughan that
the Superior Court retained a residual discretion to entertain a claim based on
a grievable complaint turned on the language of the PSSRA, the
legislation in force at the relevant time. The appellant’s reliance on Vaughan
assumes that the change in the statutory landscape, and particularly the
enactment of s. 236 of the PSLRA, does not affect the basic holding in Vaughan.
I think it does.
[21]
In Robichaud v Canada (Attorney General),
2013 NBCA 3 at para 3, 398 NBR (2d) 259 [Robichaud], the New Brunswick
Court of Appeal pointedly remarked that section 236 “is
Parliament’s direct response to the common law principles articulated in [Vaughan].”
[22]
One must view Vaughan with some caution
because the PSSRA did not contain a provision analogous to section 236
of the PSLRA which provides that:
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Disputes relating to employment
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Différend lié à l’emploi
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236 (1) The right of an employee to
seek redress by way of grievance for any dispute relating to his or her terms
or conditions of employment is in lieu of any right of action that the
employee may have in relation to any act or omission giving rise to the
dispute.
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236 (1)
Le droit de recours du fonctionnaire par voie de grief relativement à tout
différend lié à ses conditions d’emploi remplace ses droits d’action en
justice relativement aux faits — actions ou omissions — à l’origine du
différend.
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Application
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Application
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(2) Subsection (1) applies whether or
not the employee avails himself or herself of the right to present a
grievance in any particular case and whether or not the grievance could be
referred to adjudication.
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(2) Le
paragraphe (1) s’applique que le fonctionnaire se prévale ou non de son droit
de présenter un grief et qu’il soit possible ou non de soumettre le grief à
l’arbitrage.
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Exception
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Exception
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(3) Subsection (1) does not apply in
respect of an employee of a separate agency that has not been designated
under subsection 209(3) if the dispute relates to his or her termination of
employment for any reason that does not relate to a breach of discipline or
misconduct.
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(3) Le
paragraphe (1) ne s’applique pas au fonctionnaire d’un organisme distinct qui
n’a pas été désigné au titre du paragraphe 209(3) si le différend porte sur
le licenciement du fonctionnaire pour toute raison autre qu’un manquement à
la discipline ou une inconduite.
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[23]
The parties maintain in view of the principles
enunciated in Vaughan that the Court retains a residual discretion in
appropriate cases to intervene and exercise its jurisdiction to hear labour
disputes even in the face of a comprehensive legislative and administrative scheme
for dealing with such a dispute. The Plaintiff contends that his termination
did not relate to a breach of discipline or misconduct but, rather, was a
non-disciplinary or constructive termination of his employment which brings the
matter within subsection 236(3); and in view of Vaughan the Court should
not strike his Statement of Claim and should assume jurisdiction to hear the
Claim. In contrast, the Defendant submits that even when the right of an action
is based on subsection 236(3), the Court has discretion to decline to
exercise jurisdiction to entertain a termination claim, and the Vaughan
principles guide the Court in determining whether it should defer to the
comprehensive schemes established by Parliament and decline to exercise
jurisdiction.
[24]
In Robichaud, the New Brunswick Court of
Appeal observed (at para 12) that “s. 236(3)
contemplates situations in which an employee who is dismissed for cause (e.g.
poor performance) will have a right to sue for wrongful dismissal, provided
that person falls within a narrow category identified in s. 236(3)”. In Haroun
v Canada (National Research Council), 2015 FC 1168, 263 ACWS (3d) 5 [Haroun],
this Court found that subsection 236(3) allowed a former employee of the
National Research Council (which, like Parks Canada, is a separate agency not
designated under subsection 209(3)), whose employment was terminated for
non-disciplinary reasons, to pursue a civil action for wrongful dismissal. The
Court in Haroun observed that:
[9] …the purpose of subsection 236(3)
is to preserve a common law right of action for employees of undesignated
separate agencies in relation to performance-based terminations. In the face
of the clear language used and the gravity of the consequences of termination,
it cannot be that Parliament intended that employees like Mr. Haroun be limited
to the option of pursuing a restrictive internal grievance with no right to
independent adjudication. Indeed, there is no reason to think that Parliament
intended to deprive separate agency employees of the right to the independent
assessment of the merits of their performance-based terminations.
[25]
Since Vaughan, Parliament, by enacting
subsection 236(3) of the PSLRA, has accepted that certain employees can
seek recourse through the courts, provided that “the
dispute relates to his or her termination of employment for any reason that
does not relate to a breach of discipline or misconduct.” Although the
Plaintiff claims that termination of his employment was not related to a breach
of discipline or misconduct, the Court must nonetheless determine the essential
character of the dispute in view of the factual context in which it arises and
the breadth of the legislative scheme for resolving labour disputes (see: Weber
v. Ontario Hydro, [1995] 2 S.C.R. 929 at paras 56, 57 & 63, 125 DLR (4th)
583; and Vaughan at para 39).
[26]
In this case, the Plaintiff’s claim ˗ that
various events during his employment with Parks Canada cumulatively resulted in
a constructive or direct dismissal of his employment without cause - is a
collateral attempt to attack various decisions and events which are or were
otherwise grievable under the PSLRA or Parks Canada’s Staffing
Policies. In my view, each and all of the Plaintiff’s claims pertain to
occurrences or matters affecting his employment with the Defendant, and the
legislative and administrative avenues for redress available to the Plaintiff
in this case would be undermined if the Statement of Claim is not struck and
the Plaintiff’s complaints be allowed to proceed in this Court. Indeed, the
second stage of the Plaintiff’s grievance has been suspended pending the
determination of this motion; that grievance process should be permitted to
continue to its ultimate outcome. There is no suggestion in this case that the
grievance process could not provide an appropriate remedy to redress the
Plaintiff’s complaints.
[27]
Before concluding, it must be noted that the
Plaintiff’s reliance upon Haroun is misguided. In that case, Mr. Haroun
had been hired for a two-year appointment with the National Research Council, a
non-designated separate agency like Parks Canada, but his employment was
terminated fourteen months early due to performance-based reasons and,
consequently, he (unlike the Plaintiff in this case who resigned and retired)
had no recourse to independent adjudication through the grievance process. His
right to adjudication under paragraph 209(1) (b) of the PSLRA was
limited to disciplinary actions involving termination, demotion, suspension or
financial penalty. Although Mr. Haroun filed a grievance regarding termination
of his appointment, it was dismissed and he subsequently filed a Statement of
Claim. On a motion for the determination of a preliminary question of law as to
whether Mr. Haroun’s action could proceed, the Court observed that performance-based
terminations of employees of non-designated separate agencies are among the
only types of terminations in the public service not referable to third-party
adjudication at the conclusion of the grievance process. Absent recourse to the
courts under subsection 236(3), the Court in Haroun noted that these
employees would have no right to independent adjudication on the merits of
their termination and, thus, the Court allowed Mr. Haroun to pursue his claim
by way of action under subsection 236(3). In this case, the Plaintiff resigned
and retired and did not meaningfully engage the schemes for resolution of
workplace disputes available to him when the alleged events occurred; had he
done so, the Defendant would have had an opportunity to respond to the disputes
and take any necessary corrective steps as intended by these schemes.
[28]
It should also be noted that this case is akin
to that of Robichaud, where two employees sued for constructive
dismissal after their employer, the Correctional Service of Canada, refused to
undertake a formal investigation into the merits of an unsigned complaint of
harassment and misconduct leveled against the employees by other employees
because the complaint failed to meet the requirements of the relevant policy.
Neither employee attempted to grieve the employer’s failure to conduct a formal
investigation into the allegations leveled against them with a view to
establishing their innocence or guilt. In response to the lawsuits, the
employer brought a motion for an order dismissing or staying the actions on the
ground the court lacked the jurisdiction to try the actions. A motion judge
dismissed the employer’s motion, but the Court of Appeal of New Brunswick
allowed the appeal and set aside the motion judge’s order, stating that:
[16] … it is important to remember that
s. 236(1) provides that if an employee can grieve that employee cannot sue,
even if the employee opts not to grieve and even though the grievance is not of
a kind that is subject to third-party adjudication. Hence, you cannot argue
that a grievance procedure, which does not provide for third-party
adjudication, does not provide an adequate remedy. Section 236(1) expressly
eliminates that argument. At the same time, it is equally clear that a
grievance will never measure up to the right to sue, where the remedy being
sought is framed in “damages”. At the end of the day, it is important to
realize that the parties do not have to go to trial to adduce evidence as to
what is or is not an adequate remedy...
V.
Conclusion
[29]
The Supreme Court of Canada, in R v Imperial
Tobacco, 2011 SCC 42, [2011] 3 S.C.R. 45, reiterated the applicable test on a
motion to strike:
[17] … A claim will only be struck if
it is plain and obvious, assuming the facts pleaded to be true, that the
pleading discloses no reasonable cause of action: Odhavji Estate v.
Woodhouse, 2003 SCC 69, [2003] 3 S.C.R. 263, at para. 15; Hunt v. Carey
Canada Inc., [1990] 2 S.C.R. 959, at p. 980. Another way of putting the
test is that the claim has no reasonable prospect of success. Where a
reasonable prospect of success exists, the matter should be allowed to proceed
to trial: [citations omitted]
[30]
In my view, for the reasons stated above, it is
plain and obvious that the Plaintiff’s Statement of Claim discloses no
reasonable cause of action. Nor is the Claim one with a reasonable prospect of
success such that it should be allowed to proceed to trial. The circumstances
of this case do not suggest that the remedies available to the Plaintiff
through the PSLRA and Staffing Policies are so inadequate as to
warrant the Court’s exercise of any residual discretion it may have to allow
the Claim to proceed. The Statement of Claim is, therefore, struck in its
entirety, without leave to amend, and the Plaintiff’s action is dismissed.
[31]
The Defendant shall have its costs of this
motion, including its disbursements and any applicable taxes, in such amounts
as may be agreed to by the Parties. If they are unable to agree as to the
amount of such costs and disbursements and any applicable taxes thereon within
20 days of the date of this order, either party shall thereafter be at
liberty to apply for an assessment of costs in accordance with the Federal
Courts Rules.
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