Date: 19981126
Docket: T-165-98
BETWEEN:
BRENDA MARIE JOHNSON-PAQUETTE
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is a motion, brought by the defendant, to dismiss the plaintiff"s suit in tort against the Crown on the ground that this Court lacks jurisdiction.
FACTS
[2] The plaintiff was employed by the Federal Crown and worked for Canadian Student Loan Services in Hull, where she alleges she was physically assaulted, intimidated and subjected to intentional infliction of nervous shock, by a co-worker at unspecified dates between 1987 and October 15, 1997.
[3] She also alleges the senior managers of her department were negligent in handling the complaints and in protecting her from further harm.
[4] She filed four grievances under the grievance procedure provided by s.91 of the Public Service Staff Relations Act1 (the "PSSRA"). All four claims were rejected up to and including the final level.
[5] On February 2, 1998 the plaintiff filed a statement of claim and commenced an action against the Crown.
[6] Her primary claim is against a co-worker for intimidation and harassment and her secondary claim is against her employer for the manner in which the original complaints were handled, more specifically management"s inaction with respect to the alleged harassment.
[7] The Defendant is raising a preliminary objection based on the lack of jurisdiction of this Court to hear the plaintiff"s case. The Crown submits that the dispute arose under the collective agreement, which refers all such disputes to the resolution process contained in the governing legislation, namely the PSSRA .
[8] The Defendant argues that the plaintiff"s proper avenue of redress is by way of judicial review of the grievance officer"s decision, pursuant to section 18.1 of the Federal Court Act2 and not by way of action.
[9] In the alternative, the defendant submits that the plaintiff"s allegations are based on discrimination or sexual harassment, which means the proper forum would be the Human Rights Commission and Tribunal, as provided for under the Canadian Human Rights Act .3
[10] The plaintiff, on the other hand, submits that under the Federal Court Act4 and the Crown Liability and Proceedings Act,5 the Federal Court has jurisdiction with respect to suits against the Crown. She argues that the PSSRA does not provide for full adjudication of the plaintiff"s complaint, nor does it empower the grievance officer to award damages. The plaintiff submits further, that the grievance procedures in the PSSRA and the collective agreement are inappropriate in this case and that where the essential nature of the dispute does not fall under the collective agreement, the court retains jurisdiction to hear and decide the matter, and award damages.
ANALYSIS
[11] The plaintiff is suing in tort against the Crown, based on the actions (or inactions) of Crown servants, by virtue of subsection 3(a) of the Crown Liability and Proceedings Act,6 which states:
| 3. The Crown is liable in tort for the damages for which, if it were a private person of full age and capacity, it would be liable |
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| (a) in respect of a tort committed by a servant of the Crown; or... |
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[12] Where relief is claimed against the Crown, initial concurrent jurisdiction is granted to the Federal Court by s. 17 of the Federal Court Act.
| 17. (1) Relief against the Crown - Except as otherwise provided in this Act or any other Act of Parliament, the Trial Division has concurrent original jurisdiction in all cases where relief is claimed against the Crown. |
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| (2) Cases - Without restricting the generality of subsection (1), the Trial Division has concurrent original jurisdiction, except as otherwise provided, in all cases which |
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| (d) the claim is for damages under the Crown Liability and Proceedings Act. |
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Furthermore, the Crown Liability and Proceedings Act is an existing body of federal law7and is a law of Canada, for the purposes of establishing original jurisdiction.8 Therefore, the Federal Court has jurisdiction, except, as per the wording of s. 17(1), "as otherwise provided in this Act or any other Act of Parliament."
[13] In order to determine if this case falls within the exception, we must turn to the claim itself.
[14] The actions of the co-worker are not covered by the collective agreement, which deals with employer-employee relations. As a result, an employee proceeds directly to the PSSRA and to the grievance procedure contained in section 91 and following, as discussed below.
[15] On the other hand, the alleged inaction of the Employer, with respect to the harassment, is specifically dealt with by the collective agreement. However, the result is the same. Section M-38.02 of the collective agreement provides that such grievances are also to be presented under the PSSRA:
| M-38.02 Subject to and as provided in Section 90 (now 91) of the Public Service Staff Relations Act, an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause M-38.05 except that, |
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| (a) where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee"s specific complaints, such procedure must be followed, and |
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| (b) where the grievance relates to the interpretation or application of this Collective Agreement, the relevant Group Specifc [sic] Agreement or an Arbitral Award, the employee is not entitled to present the grievance unless he or she has the approval of and is represented by the Alliance (emphasis added). |
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The broad language of this section covers "any action or lack of action by the Employer" and would certainly apply in the plaintiff"s situation.
[16] The PSSRA provides a grievance procedure under ss. 91 and following. Section 91(1)(b) reads as follows:
| 91. (1) Where any employee feels aggrieved |
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| (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), |
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| 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 (emphasis mine). |
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[17] The facts of this case are encompassed by the broad language of this statute. The plaintiff is an "employee" as defined under s. 2 of the Act and her claims are clearly covered by the words "any occurrence or matter affecting the terms or conditions of employment of the employee."
[18] As mentioned above, the plaintiff filed four grievances, pursuant to this section. She was unsuccessful up to and including the final level.
[19] Where an employee is unsatisfied with the results of the s. 91 grievance procedure, section 92 of the PSSRA states that he or she may seek adjudication. However, since s. 92 is more limited in scope than s. 91, some grievable matters may not be referred to adjudication. Section 92 reads as follows.
| 92. (1) Where any employee has presented a grievance, up to and including the final level in the grievance process, with respect to |
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| (a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award, |
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| (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), |
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| (i) disciplinary action resulting in suspension or a financial penalty, or |
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| (ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or |
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| (c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty, |
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| 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. |
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[20] The plaintiff submits that since her claim is not covered by s.92, she is denied access to adjudication and that this denial should entitle her to bring her claim in the Federal Court. This argument must fail, based on the express wording of s. 96(3):
| 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. |
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[21] In summary, the collective agreement specifies that the proper procedure is that provided under the PSSRA, which constitutes a complete grievance procedure. If the griever is not satisfied with the result of the grievance brought under s.91, and the matter is covered by s. 92, he or she may seek adjudication. If the matter is not covered by s. 92, the decision is final, according to s. 96(3). Regardless of the outcome, decisions made either by the grievance officer under s. 91 or by the adjudicator under s. 92 are subject to judicial review in the Federal Court pursuant to s. 18.1 of the Federal Court Act.
[22] Where a collective agreement grants exclusive jurisdiction to resolve differences to an arbitrator and another forum is not expressly provided by legislation, the Supreme Court has held, in the case of Weber v. Ontario Hydro,9 that the arbitrator shall have jurisdiction, exclusive of the courts, subject only to judicial review.
| Underlying both the Court of Appeal and Supreme Court decisions in St. Anne Nackawic is the insistence that the analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed. The issue is not whether the action, defined legally, is "arising under [the] collective agreement". Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it. |
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[23] In the present case, the plaintiff has not exhausted the grievance procedure provided under the PSSRA and the resulting judicial review. She is attempting to seek judicial review of the grievance officer"s decision by way of an action for damages in tort - this she cannot do.10
[24] Finally, with respect to damages, the plaintiff submits that the grievance procedure does not authorize the grievance officer to award damages under s. 24(1) of the Charter.11 In the absence of such authority, she argues, the Federal Court should retain jurisdiction in the matter. Based on the decision of the Supreme Court of Canada in Weber, supra this argument must also fail.
[25] In Weber, supra McLachlin J. specifically considered the issue of whether or not an arbitrator can order damages under the Charter. She held that the arbitrator does have the power to order such remedies.
| The final question is whether the arbitrator has power to decide Charter claims. The arbitrator has jurisdiction over the parties and the dispute. The arbitrator is further empowered by the Act to award the Charter remedies claimed - damages and a declaration (references omitted). On the test propounded in Mills, he is empowered to consider the Charter questions and grant the appropriate remedies.12 |
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Following Weber, supra, in the present action, the grievance officer would be entitled to award damages for Charter violations under s. 24(1) where such damages are appropriate.
CONCLUSION
[26] This Court does not have jurisdiction to hear what is essentially an application for judicial review of a grievance officer"s decision by way of an action for damages in tort.
[27] The Defendant"s motion to dismiss the claim for lack of jurisdiction is granted.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
November 26, 1998.
__________________
1 R.S.C. 1985, c. P-35.
2 R.S.C. 1985, c. F-7.
3 R.S.C. 1985, c. H-6 as amm.
4 Ibid.
5 S.C. 1990, c. 8, s. 21.
6 Ibid.
7 Stephens " Estate v. M.N.R. et al. (1982), 40 N.R. 620 (F.C.A.).
8 ITO-International Terminal Operators v. Miida Electronics Inc. et al., [1986] 1 S.C.R. 752.
9 (1995), 125 D.L.R. (4th ) 583 (S.C.C.).
10 Lameman v. Gladue (1995), 95 F.T.R. 220 (T.D.).
11 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 (hereinafter Charter).
12 Weber, supra note 9at 609.
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