Date: 20240607

Docket: A-67-23

Citation: 2024 FCA 106

Heard at Toronto, Ontario, on November 8, 2023.

Judgment delivered at Ottawa, Ontario, on June 7, 2024.

Date: 20240607

Docket: A-67-23

Citation: 2024 FCA 106

REASONS FOR JUDGMENT

GLEASON J.A.

[1] The appellants appeal from the judgment of the Federal Court in Adelberg v. Canada, 2023 FC 252, 2023 A.C.W.S. 557 (per Fothergill J.).

[2] In that judgment, the Federal Court struck the claims of those plaintiffs that it found were subject to section 236 of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 [FPSLRA]. The Federal Court did not grant these plaintiffs leave to amend their claims. The plaintiffs whose claims were struck in their entirety without leave to amend were those who were members of the Royal Canadian Mounted Police (the RCMP) or who were employed in the other federal departments, agencies or other portions of the public service listed in Schedule “A” to the Federal Court’s Reasons. In the judgment under appeal, the Federal Court also struck the claims of all the other plaintiffs who were employed by other organizations, but for this group granted leave to amend their claims. The Federal Court awarded the defendants costs, fixed in the amount of $5,000.00, payable forthwith and in any event of the cause.

[3] For the reasons that follow, I would grant this appeal in part. I would set aside the judgment of the Federal Court and would amend it to provide all of the plaintiffs leave to amend the Statement of Claim in accordance with these reasons. Because success is divided, I would grant no costs in this appeal and would set aside the Federal Court’s costs award.

I. The Statement of Claim

[4] I commence by reviewing the nature of the claims made in the plaintiffs’ Statement of Claim. While it is difficult to discern precisely what is being claimed given the way the Statement of Claim was drafted, it seems to me that, when fairly read in its entirety, the Statement of Claim advances two sorts of claims on behalf of all of the plaintiffs.

[5] First, the Statement of Claim alleges that the employer policies—which mandated that the plaintiffs must be vaccinated against COVID-19, failing which they would be placed on leave without pay or be subject to having their employment terminated—violated their rights under the 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 [Charter], or otherwise gave rise to several claims. The employer policies at issue in this case are the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police, issued by the Treasury Board (the TB Policy), and similar policies issued by other federally-regulated employers who employed some of the plaintiffs. Among other things, the Statement of Claim alleges that the respondents are liable for these other employers adopting policies similar to the TB Policy. The bulk of the Statement of Claim is directed towards these employment-related vaccination policies, which the plaintiffs allege caused them harm and damages because they chose to decline to be vaccinated against COVID-19.

[6] Second, the Statement of Claim alleges that the limitations imposed by the Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, No. 61, issued by Transport Canada on April 24, 2022 (the Interim Order), violated the Charter rights of all of the plaintiffs and gave rise to a host of other claims. Because the plaintiffs chose not to be vaccinated against COVID-19, they claim they were prevented from travelling by airplane by the Interim Order. The plaintiffs also challenge comparable measures that were applicable to train travel and travel by water for similar reasons.

[7] That the latter types of claims, regarding travel impediments, were advanced on behalf of all plaintiffs appears, in particular, from paragraphs 1(f), 12, 30, 67 and 69 of the Statement of Claim. They read as follows:

l. The Plaintiffs claim:

…

(f) a further declaration that Interim Order Respecting Certain Requirements for Civil Aviation Due to Covid-19, No.61, requiring covid “vaccination” and masking on planes, trains and boats is unconstitutional and of no force and effect in that:

(i) There is no jurisdiction under s.91 of the Constitution Act, 1867 to decree any medical treatment whatsoever as this lies, subject to constitutional restraint(s), within the exclusive jurisdiction of the Provinces;

(ii) That any purported or pretended power, under the emergency branch of P.O.G.G (Peace, Order and and Good Government) can only be done by Legislation, with the invocation, subject to constitutional constraints, of the Emergencies Act (R.S.C., 1985, c. 22 (4th Supp.));

(iii) That the Regulations and Executive decrees mandating such “vaccine mandates” are improper delegation, and constitute “dangling” Regulations, not tied to any Act of Parliament;

(iv) That in any event, any purported mandatory, or coerced de facto mandatory vaccine mandates violate ss. 2. 6, 7, and 15 of the Charter, as enunciated, inter alia, by the Ontario Court of Appeal in Fleming v. Reid (1991) 4 O.R. (3d) 74 and in the Supreme Court of Canada in Morgentaler (1988), Rodriguez (1993) and Rasouli (2013), and Carter (2005);

(v) That any purported mandatory, or coerced de facto mandatory vaccines violate ss.2 and ss 7 of the Charter, as enunciated, inter alia, by the Ontario Court of Charter Appeal in Fleming v. Reid, and the Supreme Court of Canada in inter alia, Morgentaler (1988), Rodriguez (1993, and Carter (2005) violate international treaty norms which constitute minimal protections to be read into s. 7 of the Charter as ruled, inter alia, by the Supreme Court of Canada in Hape, and the Federal Court of Appeal in De Guzman;

(vi) There is no jurisdiction under s.91 of the Constitution Act, 1867 to decree any medical treatment whatsoever as this lies, subject to constitutional restraint(s), within the exclusive jurisdiction of the Provinces;

(vii) The Pre-Charter constitutional rights to freedom of conscience and religion as pronounced by the Supreme Court of Canada in, inter alia, Switzman v Elbing and A.G. of Quebec, [1957] S.C.R. 285 and Saumur v City of Quebec, 2 S.C.R. 299;

(viii) violates the rights, under s.2 of the Charter, as well as s.1 under the Canadian Bill of Rights (1960) to freedom of conscience, belief, and religion;

(ix) violates s.7 of the Charter in violating the right to bodily and psychological integrity, as manifested in the constitutionally protected right to informed, voluntary, consent to any medical treatment and procedure. as well as violating international treaty rights, protecting the same right(s) which protections must be read in as minimal protection under s. 7 of the Charter in accordance with, inter alia, Hape (SCC) and De Guzman (FCA);

(x) violating ss.6 and 7 of the Charter;

(xi) violating s.9 of the Charter;

(xii) violating the pre-Charter recognized rights on “the liberty of the subject” remedied by way of habeas corpus.

…

12. All of the Plaintiffs wish to exercise their ss. 6 and 7 of the Charter rights to travel within Canada, as well as abroad, which is barred to them by virtue of a non- possession of a “vaccine passport”.

…

30. All of the Plaintiffs wish to exercise their ss. 6 and 7 of the Charter rights to travel within Canada, as well as abroad, which is barred to them by virtue of a non- possession of a “vaccine passport”, notwithstanding that airlines and foreign countries of destination do not require nor do the airlines.

…

67. The Plaintiffs further state that “vaccine passports” further violate their explicit right(s) under s.6 and 7 of the Charter granting them mobility of travel, domestically and internationally, which violations are arbitrary (contrary to s. 7), irrational, and disproportionate, and thus fail any s. l fundamental justice, or s.1 Charter analysis, in that:

(a) The Defendants admit, in their public statements, and scientific data, and science confirms, that transmission of the virus as between the vaccinated-to-vaccinated and vaccinated-to-unvaccinated, and vice versa, is NOT prevented by the COVID-19 “vaccines” (inoculations);

(b) That there is NO rational connection between being unvaccinated and higher risks of transmission;

(c) That the punitive bar to travel and board plains, trains, and boats is simply an irrational, arbitrary, over-reaching punitive dispensation of Charter violations and part of the malicious “consequences” of simply NOT “vaccinating”.

…

69. The Plaintiffs state, and the fact is, that as a result of the “vaccine passports”, and the removal of their mobility rights, the Plaintiffs have suffered, and will continue to suffer damages, which include, but are not restricted to:

(a) An inability to travel to visit family, which family relationships, particularly between parent and child are constitutionally protected under s. 7 of the Charter as set out by the Supreme Court of Canada;

(b) That this restriction under Interim Order Respecting Certain Requirements for Civil Aviation Due to Covid-19, No.61, from visiting family creates mental anguish and distress when that travel to visit family includes members facing death, medical conditions, funerals, (particularly when attendance is religiously required), weddings, confirmations, bar mitzvahs, etc;

(c) An inability to vacation which is essential to recouping physical and psychological rest and integrity, which physical and psychological integrity is protected under s. 7 of the Charter;

(d) Travel to attend specialized medical treatment not available locally;

(e) Restrictions to obtaining domestic medical treatment in hospital for lack of a “vaccine passport”;

(f) Prohibitions against entering domestic hospitals:

(i) When a spouse is giving birth to their child;

(ii) When a loved-one is dying, under palliative care;

All of which violate physical and psychological integrity under s. 7 of the Charter, by denial of the explicit mobility rights protected by s.7 of the Charter (liberty and security of the person) as well as the mobility (travel) rights specifically protected under s. 6 of the Charter.

[Emphasis omitted].

II. The Evidence before the Federal Court

[8] I turn next to briefly review the evidence that was before the Federal Court. The defendants filed an affidavit that attached the TB Policy, the Interim Order, and other orders issued pursuant to the Aeronautics Act, R.S.C., 1985, c. A-2, as well as a list of all of the interim orders related to COVID-19, issued by Transport Canada. The defendants’ evidence established that the provisions in the TB Policy, the Interim Order, and related orders issued by Transport Canada setting out vaccine requirements had been suspended by the time the defendants brought their motion to strike the plaintiffs’ claims.

[9] A review of the TB Policy shows that it was issued by the Treasury Board under sections 7 and 11.1 of the Financial Administration Act, R.S.C., 1985, c. F-11 [FAA], and applied to employees in the core public administration as set out in Schedules I and IV of the FAA. These include the RCMP, as well as the other federal departments, agencies, and other portions of the public service listed in Schedule “A” to the Federal Court’s Reasons. The TB policy required most employees to be vaccinated against COVID-19, failing which they were subject to being placed on administrative leave without pay. The vaccine requirements set out in the TB Policy were terms and conditions of employment for the employees to whom they pertained.

[10] While the foregoing policies were before the Federal Court, there was no evidence before that Court as to the nature of the grievance rights possessed by the plaintiffs. These rights could accordingly only be discerned through a review of the relevant statutory and regulatory provisions applicable to the plaintiffs and the case law interpreting such provisions.

III. The Reasons of the Federal Court

[11] I turn next to outline the Federal Court’s Reasons. As noted, for those plaintiffs whose claims were dismissed without leave to amend, the Federal Court relied on section 236 of the FPSLRA. That section reads as follows:

[12] The Federal Court held that section 236 of the FPSLRA barred the claims of the plaintiffs listed in Schedule “A” to the Federal Court’s Reasons, who were members of the RCMP or who worked in the other federal departments, agencies, or portions of the public service. According to the Court, these plaintiffs could have filed grievances challenging the matters to which the Statement of Claim pertained. The Court also held that there was no reason for it to exercise any discretion it might have possessed to relieve the plaintiffs from application of the bar in section 236 of the FPSLRA. The Federal Court therefore dismissed the claims of these plaintiffs in their entirety, without leave to amend.

[13] As for the other plaintiffs, for whom the Federal Court found that section 236 of the FPSLRA does not apply, the Federal Court struck the Statement of Claim because it found that the plaintiffs failed to plead the requisite material facts in support of their allegations that were potentially justiciable and that they made several non-justiciable allegations. As noted, the Federal Court granted these plaintiffs leave to amend their claims. In so concluding, the Federal Court adopted the reasoning of the British Columbia Supreme Court in Action4Canada v. British Columbia (Attorney General), 2022 BCSC 1507, 2022 A.C.W.S. 3823 [Action4Canada], where that Court wrote as follows, at paragraphs 45-48:

[…] the [Notice of Civil Claim [NOCC]], in its current form, is not a pleading that can properly be answered by a responsive pleading. It describes wide-ranging global conspiracies that may, or may not, have influenced either the federal or the provincial governments. It seeks rulings of the court on issues of science. In addition, it includes improper allegations, including criminal conduct and “crimes against humanity”. In my opinion, it is “bad beyond argument”.

[46] I further find that it is not a document that the court can mend by striking portions. I find that this NOCC is analogous to the Statement of Claim considered by Justice K. Smith (as he then was) in Homalco Indian Band v. British Columbia (1998), 1998 CanLII 6658 (BC SC), 25 C.P.C. (4th) 107 (B.C.S.C.) [Homalco]. He wrote:

[11] In my view, the statement of claim is an embarrassing pleading. It contains much that appears to be unnecessary. As well, it is constructed in a manner calculated to confuse the defendants and to make it extremely difficult, if not impossible, to answer. As a result, it is prejudicial. Any attempt to reform it by striking out portions and by amending other portions is likely to result in more confusion as to the real issues. …

[47] As was the case in Homalco, attempting to bring the NOCC into compliance with the Rules by piecemeal striking and amending would invite more confusion and greater expenditure of the resources of all concerned.

[48] I find that the NOCC is prolix. It is not a proper pleading that can be answered by the defendants. It cannot be mended. Given that finding, I have no hesitation in ruling that it must be struck in whole.

[14] The Federal Court held that identical reasoning applied to the Statement of Claim in the instant case.

[15] In addition, the Federal Court held that there were numerous claims that could not be advanced in a civil action that were pleaded in the Statement of Claim. These included allegations of criminal behaviour, broad declarations respecting the current state of medical and scientific knowledge, and a declaration that administering medical treatment without informed consent is a crime against humanity.

[16] The Federal Court added that the relief claimed in paragraph 4 of the Statement of Claim, seeking to set aside the Interim Order and TB Policy, could only be obtained via judicial review and not by way of action.

[17] I note parenthetically that, as the Interim Order is no longer in force, a claim seeking to set it aside may now be moot, as was held in Ben Naoum v. Canada (Attorney General), 2022 FC 1463, 2022 CarswellNat 4608 aff’d 2023 FCA 219, 2023 CarswellNat 4443, and Pickford v. Canada (Attorney General), 2023 FCA 219, 2023 CarswellNat 4442. A similar conclusion may well also pertain to a claim to set aside the TB Policy.

[18] The Federal Court granted the plaintiffs, whom it found were not subject to section 236 of the FPSLRA, leave to amend their claims that were potentially justiciable and the proper subject of an action. For such plaintiffs, the Federal Court cautioned as follows, at paragraphs 55-57 of its Reasons:

[55] For those Plaintiffs who are employed outside the federal public administration, e.g., with airlines, banks, transportation companies, etc., any amended pleading will have to allege sufficient material facts to provide a basis for the federal Crown’s liability.

[56] The Plaintiffs who are not subject to s 236 of the FPSLRA have standing to question whether the TB Policy and Interim Order infringed their rights. There is a prospect that the Plaintiffs could put forward a valid claim that certain COVID-related health measures instituted by the Government of Canada contravened their Charter rights. It is possible that other valid claims may exist.

[57] It will be for the Plaintiffs to plead those causes of action in accordance with the Rules. The claims must be framed in a manner that is intelligible and allows the Defendants to know the case they have to meet. The claims must also be confined to matters that are capable of adjudication by this Court, and seek relief this Court is capable of granting (Action4Canada at para 71).

IV. Relevant Statutory and Regulatory Provisions

[19] It is useful to next lay out the relevant statutory and regulatory provisions.

[20] Paragraph 7(1)(e) and sections 11 and 11.1 of the FAA grant the Treasury Board authority to set the terms and conditions of employment of employees employed in the public service. This includes the organizations listed in Schedules I, IV, and V to the FAA, which encompass the RCMP and the other federal departments, agencies, and other portions of the public service listed in Schedule “A” to the Federal Court’s Reasons.

[21] Part 2 of the FPSLRA sets out grievance rights for certain employees employed in the federal public service, and Part 2.1 of that statute sets out a different set of grievance rights for members of the RCMP. Additional grievance and complaint rights are provided to RCMP members under the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10 [RCMP Act], as well as the Regulations and Standing Orders under that Act.

[22] Turning first to the FPSLRA, Part 2 of the FPSLRA affords grievance rights to “employees”, as defined in the statute. For the purposes of Part 2 of the FPSLRA, “employee” is defined in paragraph 206(1) as follows:

[23] “Public service” is also a defined term in the FPSLRA. Subsection 2(1) of the FPSLRA defines “public service” as follows:

[24] As noted, at the request of the Federal Court, the parties developed a list of all the departments, agencies, or other portions of the public administration in which the plaintiffs worked. That list is appended as Schedule “A” to the Federal Court’s Reasons.

[25] It is useful to next repeat section 236 of the FPSLRA, which reads as follows:

[26] “Grievance” is a defined term in the FPSLRA, which separately defines “group grievances”, “individual grievances”, and a “policy grievances”. Of the foregoing, only individual grievances are relevant to the instant case. They are defined in subsection 206(1) of the FPSLRA as meaning either a grievance presented in accordance with section 208 of the FPSLRA or one presented in accordance with section 238.24 of the FPSLRA.

[27] Section 208 of the FPSLRA is contained in Part 2 (applicable to employees generally) and section 238.4 is contained in Part 2.1 of the FPSLRA (applicable to members of the RCMP who meet the statutory definition of employee under the FPSLRA).

[28] Section 208 provides, in relevant part as follows:

[29] Section 238.02 of the FPSLRA provides that section 208 does not apply to RCMP members. It reads in relevant part as follows:

[30] Section 238.24 of the FPSLRA sets out the grievance rights of RCMP members under the FPSLRA. Those grievance rights only extend to grievances filed under a collective agreement. Section 238.24 of the FPSLRA provides as follows:

[31] Under the FPSLRA, only some of the matters that may be grieved can be referred to adjudication before the Federal Public Sector Labour and Employment Board (the FPSLREB).

[32] For employees generally, subsection 209(1) of the FPSLRA provides:

[33] For members of the RCMP, section 238.25 provides:

[34] As noted, RCMP members also possess grievance rights under the RCMP Act and Regulations and Standing Orders under that Act.

[35] More specifically, section 31 of the RCMP Act provides in relevant part as follows:

[36] A grievance process for RCMP members is prescribed in Part 2 of the Royal Canadian Mounted Police Regulations, 2014, SOR/2014-281, and the Commissioner’s Standing Orders (Grievances and Appeals), SOR/2014-289. This legislation also contains provisions allowing members to file complaints where they have been disciplined under the RCMP’s Code of Conduct.

V. Analysis

[37] I turn now to discuss the various issues that arise in this appeal. The appellate standard of review applies to the Federal Court’s judgment. Errors of law are reviewable for correctness, whereas errors of fact or of mixed fact and law, which do not disclose an extricable legal issue, are reviewable for palpable and overriding error: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at para.72, leave to appeal to SCC refused, 37793 (17 May 2018), citing Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, 2016 FCA 215, [2017] 1 F.C.R. 331 at paras. 28 and 71–72, leave to appeal to SCC refused, 37342 (22 June 2017); Decor Grates Incorporated v. Imperial Manufacturing Group Inc., 2015 FCA 100, [2016] 1 F.C.R. 246 at para. 18.

[38] In striking the claims for which no leave to amend was granted, the Federal Court held that certain claims disclosed no cause of action because they did not exist at law. These determinations are legal in nature and thus fully reviewable by this Court for correctness: Jensen v. Samsung Electronics Co. Ltd., 2023 FCA 89, 482 D.L.R. (4th) 504 at paras. 32-36, leave to appeal to SCC refused, 40807 (11 January 2024) [Samsung], citing Pioneer Corp. v. Godfrey, 2019 SCC 42, [2019] 3 S.C.R. 295 at para. 27, aff’d 2019 SCC 42, [2019] 3 S.C.R. 295. The Federal Court’s interpretation of the relevant statutory provisions also raises legal issues reviewable for correctness.

[39] Conversely, the Federal Court’s conclusions as to the adequacy of the material facts pleaded are reviewable under the palpable and overriding standard of review: Samsung at para. 38. Likewise, its determination to not exercise its residual discretion to allow the action to advance is reviewable under the palpable and overriding error standard of review: Canada v. Greenwood, 2021 FCA 186, [2021] 4 F.C.R. 635 at paras. 119-120, leave to appeal to SCC refused, 39885 (17 March 2022) [Greenwood].

[40] A pleading may be struck for disclosing no reasonable cause of action only where this is plain and obvious: Berenguer v. Sata Internacional - Azores Airlines, S.A., 2023 FCA 176, 2023 CarswellNat 2983 at para. 23, leave to appeal to SCC refused, 40949 (11 April 2024) [Berenguer], citing Nevsun Resources Ltd. v. Araya, 2020 SCC 5, [2020] 1 S.C.R. 166 at para. 64; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 17. The plain and obvious test applies to both the discernment of whether a claim pleaded is justiciable and to the discernment of whether it falls within the jurisdiction of the Federal Court: Berenguer at para. 24; Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617 at para. 24. Where the issue is a jurisdictional one, evidence is admissible and, indeed, may be required: Berenguer at para. 26; Greenwood at para. 95; MIL Davie Inc. v. Société d’Exploitation et de Développement d’Hibernia Ltée (1998), 226 N.R. 369, 1998 CanLII 7789 (FCA) at paras. 7-8.

[41] Bearing the foregoing general principles in mind, I turn next to assess the issues that arise in this appeal. In my view, they may be usefully broken down as follows:

1. Did the Federal Court err in determining that the plaintiffs employed by the RCMP were subject to the bar in section 236 of the FPSLRA?

2. Did the Federal Court err in determining that the bar in section 236 of the FPSLRA forecloses the right of action for claims in respect of the Interim Order and other travel related restrictions?

3. Did the Federal Court err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons?

4. Did the Federal Court err in finding certain other claims to be non-justiciable?

5. Did the Federal Court err in striking the Statement of Claim due its being generally improper and failing to plead necessary material facts?

[42] On the first issue, I conclude that the Federal Court erred in finding that the bar in section 236 of the FPSLRA applies to the plaintiffs who were members of the RCMP.

[43] It will be recalled that subsection 236(1) of the FPSLRA 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”.

[44] To recall, the relevant definition of what constitutes a grievance is set out in subsection 206(1) of the FPSLRA. That section states that a grievance is one that may be filed under either section 208 or 238.4 of the FPSLRA. Thus, the bar in section 236 applies only to those who could seek redress via a grievance under section 208 or 238.4 of the FPSLRA.

[45] Yet, section 238.4 of the FPSLRA applies only to grievances arising under a collective agreement applicable to RCMP members who meet the statutory definition of “employee” in the FPSLRA. Based on the materials that were before the Federal Court and that are now before this Court, it is impossible to ascertain whether any collective agreement has been negotiated for RCMP members. The National Police Federation was certified as the bargaining agent for RCMP members in 2019 by the FPSLREB in National Police Federation v. Treasury Board, 2019 FPSLREB 74. However, it is unclear if a collective agreement has been achieved and, if so, whether a challenge to the TB Policy could be the subject of a grievance under any such agreement. Given this lack of information, it is not plain and obvious that the plaintiffs who were members of the RCMP possessed rights to grieve the TB Policy under a grievance to which section 238.24 of the FPSLRA pertains.

[46] Further, section 208 of the FPSLRA is inapplicable to RCMP members by virtue of section 238.02 of that Act. Indeed, the FPSLREB recently confirmed in Frémy v. Royal Canadian Mounted Police, 2021 FPSLREB 47 that the only grievance rights RCMP members possess under the FPSLRA arise under section 238.24 of the FPSLRA and thus only pertain to alleged violations of a collective agreement.

[47] I note that many actions have proceeded against the RCMP for workplace issues, including class actions for matters that could have been the subject of grievances under the RCMP Act or Regulations or Standing Orders issued under that Act: see e.g. Greenwood at paras. 81, 160; Tiller v. Canada, 2019 FC 895, 307 A.C.W.S. (3d) 470; Merlo v. Canada, 2017 FC 533, 281 A.C.W.S. 3(d) 702; Davidson v. Canada (Attorney General), 2015 ONSC 8008, 262 A.C.W.S. (3d) 648. There was no suggestion by the respondent in any of the foregoing cases that the bar in section 236 of the FPSLRA applied.

[48] I therefore conclude that the Federal Court erred in finding that section 236 of the FPSLRA foreclosed the action by the plaintiffs who were members of the RCMP as it is not plain and obvious that the provision applies to them.

[49] I turn now to the second issue in this appeal and conclude that the Federal Court erred in determining that the bar in section 236 of the FPSLRA applied to the claims related to the Interim Order or the other travel impediments faced by the plaintiffs. These claims should not have been struck without leave to amend.

[50] The Interim Order and related measures could not be the subject of a grievance under either the FPSLRA, the RCMP Act or Regulations or Standing Orders promulgated under the latter Act.

[51] The FPSLRA grants grievance rights only in respect of employment-related matters and the bar in section 236 applies only to disputes “relating to an employee’s terms and conditions of employment”. The Interim Order and related travel measures were general measures that applied to all Canadians and were not imposed on the plaintiffs as a result of their employment. Thus, they could not be grieved under the FPSLRA and section 236 of the FPSLRA does not apply to them.

[52] Likewise, the Interim Order and related travel measures impugned by the plaintiffs could not be the subject of a grievance under the RCMP Act or the Regulations or Standing Orders promulgated under that Act. The Interim Order and other travel-related measures applied to RCMP members like all Canadians, irrespective of their employment and were not “a decision, act or omission in the administration of the affairs” of the RCMP, within the meaning of section 31 of the RCMP Act.

[53] The Federal Court therefore erred in finding that the plaintiffs’ claims related to the Interim Order and other travel-related measures could have been grieved or were subject to section 236 of the FPSLRA. While these claims suffer from the lack of proper pleadings and a failure to plead the necessary material facts that characterize the Statement of Claim generally, they should not have been struck without leave to amend. If properly pleaded, it may perhaps be possible for the plaintiffs to raise a claim that could come within the jurisdiction of the Federal Court. Without seeing an amended pleading, however, it is impossible to discern whether or not a valid claim might be advanced. The plaintiffs therefore should have been granted leave to amend the claims related to the Interim Order and other travel-related measures on the same basis as the Federal Court allowed other claims to be amended.

[54] On the third issue, I conclude that the Federal Court did not err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons, other than the RCMP. However, the Federal Court erred in striking the claims of RCMP members related to the TB Policy.

[55] It is not disputed that the plaintiffs who were employed by organizations other than the RCMP could have filed grievances under section 208 of the FPSLRA challenging the TB Policy or its application to them. As noted, the TB Policy was a term and condition of employment and thus subject to grievance under section 208 of the FPSLRA, which allows the employees of the organizations listed in Schedule “A” to the Federal Court’s Reasons other than the RCMP to file grievances relating to their terms and conditions of employment. That said, the FPSLREB recently held in Rehibi v. Deputy Head (Department of Employment and Social Development, 2024 FPSLREB 47, that a grievance challenging the application of the TB Policy could not be referred to adjudication due to the fact that only a subset of matters that may be grieved under the FPSLRA may be referred to adjudication under subsection 209(1) of the FPSLRA.

[56] The bar in section 236 of the FPSLRA applies to matters that may be grieved as opposed to those that may be adjudicated. In determining whether an issue is one that may be grieved, what matters is the essence of the claim made and not the way the claim is characterized in the Statement of Claim. Thus, it matters not that the plaintiffs allege a Charter breach or various tort claims; one must instead look to the essential character of the dispute to determine if it raises a matter that could have been the subject of a grievance: Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146 at para. 13; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, 1995 CanLII 108 at para. 52 [Weber]; Ebadi v. Canada, 2024 FCA 39, [2024] F.C.J. No. 380 at para. 24 [Ebadi].

[57] Here, compliance with the TB Policy was a term and condition of employment for the plaintiffs employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons. The requirement to have been vaccinated against COVID-19 or face a leave without pay could therefore have been grieved under section 208 of the FPSLRA by those employed in the organizations listed in Schedule “A” to the Federal Court’s Reasons, other than the RCMP.

[58] The case law interpreting section 236 of the FPSLRA recognizes that the section is a complete bar to a right of action for any matter that may be the subject of a grievance, subject to the possible caveat that a court may possess the discretion to hear the claim if the internal grievance process does not or cannot provide an adequate remedy or, perhaps, if the case is otherwise exceptional: Ebadi, at para. 47; Bron v. Canada (Attorney General), 2010 ONCA 71, 99 O.R. (3d) 749 at paras. 29 and 32; Robichaud v. Canada (Attorney General), 2013 NBCA 3, 225 A.C.W.S. (3d) 430 at para.10.

[59] Here, the Federal Court had no evidence before it as to the efficacy of the grievance process. I therefore conclude that the Federal Court did not err in striking the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons other than the RCMP by virtue of section 236 of the FPSLRA. It was incumbent on the plaintiffs to have filed evidence about the efficacy of the grievance process if they wished the Court to exercise its discretion to hear the claim, as the plaintiffs did in Greenwood. In the absence of any such evidence pointing to any inefficacy of the grievance procedure, it was open to the Federal Court to have reached the conclusion that it did and to have struck, without leave to amend, the claims related to the TB Policy made by the plaintiffs employed by the organizations listed in Schedule “A” to the Federal Court’s Reasons other than the RCMP.

[60] For the plaintiffs employed by the RCMP, on the other hand, it is unclear whether they possessed rights to grieve the TB Policy under the RCMP Act or the Regulations and Standing Orders under that Act. And, for the reasons already noted above, it is not plain and obvious that they could have grieved under the FPSLRA.

[61] The TB Policy was not adopted by the RCMP, but rather by the Treasury Board. It is not plain and obvious that its application would be “a decision, act or omission in the administration of the affairs of the Force” that would be grievable under section 31 of the RCMP Act. Somewhat similar policies have been found not to be subject to grievance under the RCMP Act because they are not decisions, acts or omissions made in the administration of the affairs of the Force.

[62] For example, in Pasic v. Canada (Attorney General), 2022 FC 1171, 2022 CarswellNat 3030, the Federal Court upheld a decision of the Final Level Adjudicator in the RCMP grievance process. The Adjudicator dismissed the applicant’s grievance challenging where he was placed on the pay grid because pay was fixed by Treasury Board not the RCMP and therefore the grievance could not be dealt with under the RCMP Act.

[63] To similar effect, in Commissioner of the RCMP’s grievance decision G-335, dated April 14, 2005, an RCMP member sought to challenge a decision made by an employee of Treasury Board Secretariat to decline to declare the community in which the member resided prior to being transferred a “depressed housing market”. The Commissioner found that he had no jurisdiction to hear a grievance that was based solely on a decision which was rendered by Treasury Board and adopted the External Review Committee’s finding that “the mere fact that the relocation benefits which are at issue in this grievance pertain to the performance of the member’s duties as an RCMP member cannot suffice to subject the decision made by an employee of another government department to a grievance process that is internal to the RCMP”: see RCMP External Review Committee, “Grievance Case Summary - G-335”, online: <https://www.canada.ca/en/rcmp-external-review-committee/services/case-summaries/grievance/g-335.html>. Similarly, in grievance decision G-255, dated March 28, 2001, an RCMP member, stationed in an Isolated Post, contested a decision declaring him ineligible to receive an allowance for fuel and utilities expenses, which was available only under certain conditions (not met by the member), through the Isolated Posts Directive, issued by the Treasury Board. The Commissioner similarly found that he had no jurisdiction to hear the grievance because the RCMP had no authority to pay a fuel and utilities allowance in light of the Treasury Board’s Isolated Posts Directive: see RCMP External Review Committee, “Grievance Case Summary - G-255”, online: <https://www.canada.ca/en/rcmp-external-review-committee/services/case-summaries/grievance/g-255.html>. Likewise, in grievance decision G‑484, dated November 6, 2012, an RCMP member grieved the Vacation Travel Assistance rate for his isolated post, which was fixed by the Treasury Board. The Commissioner again found that the member did not have standing to grieve this issue because it was not a decision, act or omission made in the administration of the affairs of the Force: see RCMP External Review Committee, “Grievance Case Summary - G-484”, online: <https://www.canada.ca/en/rcmp-external-review-committee/services/case-summaries/grievance/g-484.html>.

[64] Since the defendants sought to strike the Statement of Claim based on the fact that a grievance process was available, it was incumbent on the defendants to establish that the TB Policy could have been grieved by RCMP members. However, no evidence was tendered on this issue and the statutory scheme is not sufficiently clear to definitively establish that the TB Policy could have been grieved by RCMP members. I therefore conclude that the Federal Court erred in striking the claims of RCMP members related to the TB Policy without leave to amend. The plaintiffs who were members of the RCMP should have been granted leave to amend their claims related to the TB Policy on the same basis as the plaintiffs who were employed by organizations other than those listed in Schedule “A” to the Federal Court’s Reasons were granted leave to amend.

[65] I see no error in the Federal Court’s determination that allegations of criminal behaviour, broad declarations respecting the current state of medical and scientific knowledge, and a declaration that administering medical treatment without informed consent is a crime against humanity, are not justiciable in a civil action.

[66] As for the validity of the TB Policy and the Interim Order, it would appear that those issues may now well be moot. In addition, while it might have been possible to argue that the policies at issue were invalid in the context of a justiciable claim for relief on some other basis in accordance with the decision of the Supreme Court of Canada in Canada (Attorney General) v. TeleZone Inc., 2010 SCC 62, [2010] 3 S.C.R. 585, the Federal Court did not err in holding that an order setting aside the TB Policy and the Interim Order could only be obtained by way of an application for judicial review.

[67] I accordingly see no basis for setting aside any of the foregoing rulings made by the Federal Court.

[68] Finally, I see no error in the Federal Court’s finding that the Statement of Claim was improperly pleaded and lacked the necessary material facts. As noted in Mancuso v. Canada (National Health and Welfare) 2015 FCA 227, [2015] F.C.J. No. 1245 at para. 16, a plaintiff must plead, in summary form, but with sufficient detail, the constituent facts to support the relief sought. As the Federal Court rightly noted in this case, for the claims in respect of which leave to amend is granted, the plaintiffs must set out with sufficient particularity the facts they rely on in support of their claim, including details of how they were specifically impacted by the policies they impugn and the bases for and all material facts necessary to ground the claims advanced. The Statement of Claim, as drafted, is entirely devoid of these necessary material facts.

[69] I therefore see no reviewable error in the decision to strike the Statement of Claim in its entirety. However, leave to amend it should be granted to all the plaintiffs in accordance with these reasons.

VI. Proposed Disposition

[70] I would therefore allow this appeal in part and grant the plaintiffs leave to amend their Statement of Claim in accordance with these reasons. Since success is divided before this Court and before the Federal Court, I would set aside the Federal Court’s costs award and award no costs in respect of this appeal.

“Mary J.L. Gleason”

FEDERAL COURT OF APPEAL

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