Date: 19981021
Docket: T-1522-98
Present: THE ASSOCIATE CHIEF JUSTICE
Between:
LISE BOUCHARD
Applicant
AND:
MINISTER OF NATIONAL DEFENCE
and
GENERAL MAURICE BARIL
CHIEF OF THE DEFENCE STAFF
Respondents
REASONS FOR ORDER
THE ASSOCIATE CHIEF JUSTICE
[1] This is an appeal by the respondents from a decision dated September 9, 1998, by Richard Morneau, Prothonotary, who allowed, in part only, the motion to strike out the applicant"s notice of application.
[2] The Prothonotary struck out items 2 and 3 of the relief sought in the application for judicial review, in which the applicant claimed monetary compensation as damages to remedy the harm suffered as a result of an unhealthy work environment, and damages for the loss of her employment. The Prothonotary rightly held that the applicant cannot obtain damages against the respondents on an application for judicial review.
[3] However, counter to the respondents" motion to strike, the Prothonotary held that the decision the applicant challenged, which was in a letter sent to her by the Assistant Judge Advocate General of National Defence on July 10, 1998, was a "decision" within the meaning of subsection 18.1(2) of the Federal Court Act .
[4] In the letter, the lawyer said:
| [TRANSLATION] I have discussed Ms. Bouchard"s case with those in charge of the office of civilian personnel in the Federal Public Service. I must regretfully inform you that I have just learned that the authorities in the Department of Defence responsible for the employment of civilian personnel have notified me that it is not proposed to reinstate Ms. Bouchard in the federal public service or pay her compensation. |
|
[5] In the reasons for his order, the Prothonotary justified his holding that this was a "decision" within the meaning of subsection 18.1(2) of the Federal Court Act as follows:
| In my opinion, by informing the applicant"s representative that it was not proposed to reinstate the applicant, Lieutenant-Colonel Crowe made an actual decision and that this decision"in the applicant"s eyes"must be seen as having been made, indirectly or by de facto delegation at least, pursuant to section 8 of the Public Service Employment Act, R.S.C., c. P-33. |
|
[6] The Prothonotary went on to say:
| I think it is of little relevance to this analysis that this decision of July 10, 1998 was provoked by or in response to some action by the applicant, namely, her request for retirement from the public service. This dynamic might possibly be of some importance in the substantive assessment of the applicant"s application. However, what we must analyse here is whether the July 10 decision is a decision within the meaning of the Act, and I have concluded that it is. |
|
[7] The facts from the affidavit of Victorin Perron, human resources advisor for the Civilian Personnel Service Centre (East) at the Department of National Defence, are the following.
[8] The applicant was an employee of Her Majesty in right of Canada, having been appointed to an indeterminate position in the Department of National Defence under the Public Service Employment Act, R.S.C., 1985, c. P-3.
[9] More specifically, in 1997 and 1998, the applicant held a position as a GS-STS-03 group and level storekeeper in the clothing and procurement section of the garrison situated at the military base in Saint-Jean-sur-Richelieu.
[10] The applicant was a trade union member and subject to a collective agreement, the Master Agreement, signed between the Public Service Alliance of Canada and the Treasury Board.
[11] In accordance with the Public Sector Compensation Act, S.C. 1991, c. 30, the Government Expenditures Restraint Act, 1993 No. 2, S.C. 1993, c. 13, and the Budget Implementation Act 1994, S.C., c. 18, the collective agreement was in force when the facts relevant to this dispute arose.
[12] As a federal employee, the applicant also had the benefit, in the course of her employment, of the Policies issued by the Treasury Board, including the Harassment in the Workplace Policy.
[13] On May 22, 1997, and September 27, 1997, relying on the Harassment in the Workplace Policy, the applicant filed complaints of harassment in the workplace against her immediate supervisor, Sergeant Sylvie Allard.
[14] On July 10, 1997, the applicant also filed a workers" compensation claim under the Government Employees Compensation Act , R.S.C., 1985, c. G-5, for compensation for depression, which in her view was the result of a complaint alleging that she had been subjected to harassment.
[15] However, on August 25, 1997, the Commission de la santé et de la sécurité du travail (the CSST) disallowed the applicant"s claim. As a result, on September 23, 1997, the applicant applied to have that decision reviewed by a CSST parity review office.
[16] The parity review office has not yet rendered a decision on the applicant"s application for review.
[17] In addition, on October 21, 1997, the applicant presented a grievance in order to put an end to the workplace harassment of which she claimed to be a victim; she called upon her employer to investigate and claimed, inter alia, monetary compensation for the harm allegedly suffered.
[18] On November 27, 1997, the applicant informed her employer that she was volunteering to take advantage of one of the early retirement programs offered by the federal government in the framework of its Work Force Adjustment Directive.
[19] On December 19, 1997, and February 26, 1998, Lieutenant-Colonel Desnoyers, the second grievance level, allowed the applicant"s grievance in part.
[20] After the second-level decision, the applicant did not ask for her grievance to be referred to the third level in the grievance process, which she was entitled to do under the terms of the collective agreement.
[21] Pursuant to the request for early retirement that she had made to her employer on November 27, 1997, the applicant was declared an affected employee on February 27, 1998, and was consequently declared surplus on March 27, 1998. Thus, on the basis of the desire that she had expressed, the applicant had the choice of opting for the Early Departure Incentive (EDI) or the Early Retirement Incentive Program (ERIP). The applicant opted for the EDI.
[22] Ultimately, the applicant was struck off the strength of the public service on April 1, 1998.
[23] On May 15, 1998, however, the applicant sent the Department of National Defence a formal demand in which she asked for reinstatement in the federal public service and compensation for harm she allegedly suffered in the course of her employment.
[24] On July 10, 1998, Lieutenant-Colonel Crowe, a lawyer in the Office of the Judge Advocate General of National Defence, responded to the formal demand by reiterating to the applicant, inter alia, that she herself had asked to be included in the early retirement program and therefore to leave the federal public service, and that, under the circumstances, the Department did not intend to meet her demands.
[25] On July 27, 1998, the applicant brought a notice of application for reinstatement in the federal Public Service, monetary compensation for the harm suffered and an amount for the loss of her employment.
[26] In the grounds for the application, the applicant alleged:
| [TRANSLATION] During the final two years of my employment at CFB Saint-Jean, between August 1995 and April 1997, I was a victim of workplace harassment by my supervisor. This had such an adverse effect on my health that I felt the need to agree to terminate my employment prematurely; at the time, I was not fit to make such a decision, which, if it were to be maintained, would expose me to discomfort and need for the rest of my life. |
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[27] In her record in response to this appeal, the applicant says that she is asking to be reinstated in a public service position so that her rights may prevail.
[28] As I said in Rothmans, Benson & Hedges Inc. v. M.N.R., [1998] (F.C.T.D.), and as the Prothonotary acknowledged:
| The principles governing a motion to strike out an originating notice of motion are set out in a decision of the Federal Court of Appeal indexed as David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., reported in [1995] 1 F.C. 588, where Strayer, J.A. stated at pages 596-597 that: |
|
| . . . the direct and proper way to contest an originating notice of motion which the respondent thinks to be without merit is to appear and argue at the hearing of the motion itself. |
|
| In that case, he held that the ultimate adequacy of the allegations and evidence must be addressed by the judge hearing the application for prohibition on its merits. However, he added at page 600: |
|
| . . . This is not to say that there is no jurisdiction in this Court either inherent or through Rule 5 by analogy to other rules, to dismiss in summary manner a notice of motion which is so clearly improper as to be bereft of any possibility of success. Such cases must be very exceptional and cannot include cases such as the present where there is simply a debatable issue as to the adequacy of the allegations in the notice of motion. |
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[29] The jurisdiction of the Court ratione materiae depends on whether there is a "decision" within the meaning of section 18.1 of the Federal Court Act .
[30] I am of the view that the Prothonotary erred in law in holding that Lieutenant-Colonel Crowe"s decision of July 10, 1998, was subject to judicial review on the ground that, by informing the applicant, he acted indirectly or by de facto delegation for the Public Service Commission pursuant to section 8 of the Public Service Employment Act, which provides:
| 8. Except as provided in this Act, the Commission has the exclusive right and authority to make appointments to or from within the Public Service of persons for whose appointment there is no authority in or under any other Act of Parliament. |
|
[31] In holding that it was of little relevance that the decision of July 10, 1998, was provoked by or in response to some action by the applicant, the Prothonotary failed to have regard to the fact that the applicant resigned her public service position and that that decision was subsequently accepted by her employer. Her resignation is a unilateral legal act that springs exclusively from the employee.
[32] Lieutenant-Colonel Crowe, by responding to the applicant, in no way acted as a federal board, commission or other tribunal, and therefore made no decision with respect to the applicant that would have granted or denied her a right, as that decision had no legal consequences.1
[33] If the applicant claims that this unilateral act is invalid for lack of consent, she has not chosen the proper procedural avenue, since this Court has no power, on an application for judicial review, to declare a unilateral act of the applicant invalid and of no effect.2
[34] I therefore conclude that the decision set out in Lieutenant-Colonel Crowe"s letter is not a "decision" within the meaning of section 18.1 of the Federal Court Act , and accordingly the applicant"s notice of application for judicial review is clearly improper.
[35] The appeal is allowed and the notice of application for judicial review is struck out, without costs.
J. Richard
Associate Chief Justice
MONTRÉAL, QUEBEC
October 21, 1998
Certified true translation
Peter Douglas
FEDERAL COURT"TRIAL DIVISION
Date: 19981021
Docket: T-1522-98
Between:
LISE BOUCHARD
Applicant
AND
MINISTER OF NATIONAL DEFENCE
-and-
GENERAL MAURICE BARIL
CHIEF OF THE DEFENCE STAFF
Respondents
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-1522-98
STYLE OF CAUSE: LISE BOUCHARD
Applicant
AND:
MINISTER OF NATIONAL DEFENCE
-and-
GENERAL MAURICE BARIL
CHIEF OF THE DEFENCE STAFF
Respondents
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: October 19, 1998
REASONS FOR ORDER BY THE ASSOCIATE CHIEF JUSTICE
DATED: October 21, 1998
APPEARANCES:
Lise Bouchard the applicant
Nadine Perron/ for the respondents
Alexandre Poce
Page: 2
SOLICITOR OF RECORD:
Morris Rosenberg for the respondents
Deputy Attorney General of Canada
Federal Department of Justice
Ottawa, Ontario
Date: 19981021
Docket: T-1522-98
MONTRÉAL, QUEBEC, THE 21st DAY OF OCTOBER 1998
PRESENT: THE ASSOCIATE CHIEF JUSTICE
BETWEEN:
LISE BOUCHARD
Applicant
AND
MINISTER OF NATIONAL DEFENCE
-and-
GENERAL MAURICE BARIL
CHIEF OF THE DEFENCE STAFF
Respondents
Motion by the respondents to:
| - APPEAL the decision dated September 9, 1998, by Richard Morneau, Prothonotary; |
| - SET ASIDE in part his decision having regard to the fact that the Prothonotary already struck out paragraphs 2 and 3 of the notice of application; |
| - STRIKE OUT the remaining paragraphs of the notice of application; |
| - DISMISS the application for judicial review; |
WITH costs.
[Rule 51 of the Federal Court Rules]
O R D E R
The appeal is allowed and the notice of application for judicial review is struck out, without costs.
J. Richard
Associate Chief Justice
Certified true translation
Peter Douglas
Date: 19981021
Docket: T-1522-98
MONTRÉAL, QUEBEC, THE 21st DAY OF OCTOBER 1998
PRESENT: THE ASSOCIATE CHIEF JUSTICE
BETWEEN:
LISE BOUCHARD
Applicant
AND
MINISTER OF NATIONAL DEFENCE
-and-
GENERAL MAURICE BARIL
CHIEF OF THE DEFENCE STAFF
Respondents
Motion by the respondents for an order extending the time to serve and file the respondents" affidavits.
Without costs.
[Rules 8 and 307 of the Federal Court Rules]
O R D E R
Given the order and the reasons issued with respect to the motion to appeal the Prothonotary"s decision, this motion has become moot. Had the appeal been dismissed, I would have granted a 30-day extension of time to serve and file the respondents" affidavits.
J. Richard
Associate Chief Justice
Certified true translation
Peter Douglas
__________________
1 See Demirtas v. Canada , [1993] 1 F.C. 602 and Singh v. Canada, (1994), 82 F.T.R., 68 at 71.
2 See Canada (Attorney General) v. Lebreux (F.C.A.), [1994] F.C.J. No. A-81-94 (QL).
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