Date: 19980909
Docket: T-1522-98
MONTRÉAL, QUEBEC, THE 9TH DAY OF SEPTEMBER 1998
Present: Mr. RICHARD MORNEAU, PROTHONOTARY
Between:
LISE BOUCHARD
Applicant
AND
MINISTER OF NATIONAL DEFENCE
and
GENERAL MAURICE BARIL
CHIEF OF THE DEFENCE STAFF
Respondents
ORDER
The respondents' motion is allowed in part. Items 2 and 3 of the applicant's application for judicial review, namely:
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2. Monetary compensation as damages to remedy the harm suffered as a result of an unhealthy work environment. |
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3. Damages for the loss of my employment between April 1, 1998 and the date of this application. |
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are struck from the applicant's application.
No costs have been awarded on this motion.
Traduction certifiée conforme
Bernard Olivier, LL.B.
Date: 19980909
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
MR. RICHARD MORNEAU, PROTHONOTARY:
[1] This is a motion by the respondents to strike out the application for judicial review filed by the applicant against the decision of the Minister of National Defence (National Defence) not to reinstate her within the public service.
[2] Although the respondents rely on rules 208 and 221 of the Federal Court Rules, 1998 in support of their motion, their counsel conceded at the hearing that these rules apply to striking out all or part of a pleading, and that when a motion to strike applies to an application the applicable principles are the following, identified by Strayer J.A. of the Federal Court of Appeal in Bull (David) Laboratories (Canada) Inc. v. Pharmacia Inc. et al., (1994) 176 N.R. 48:
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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. (See e.g. Cyanamid Agricultural de Puerto Rico Inc. v. Commissioner of Patents (1983), 74 C.P.R. (2d) 133 (F.C.T.D.); and the discussion in Vancouver Island Peace Society et al. v. Canada (Minister of National Defence) et al., [1994] 1 F.C. 102; 64 F.T.R. 127, at 120-121 F.C. (T.D.)). 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. [emphasis added] |
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[3] It must, therefore, be absolutely clear that the application of the applicant " who is representing herself " be devoid of any possibility of success before this Court will strike it at this stage in the proceedings.
[4] The respondents argue that such is the case. First, they submit, the decision impugned by the applicant is not a "decision" within the meaning of the Federal Court Act , R.S.C. 1985, c. F-7 (the Act). Second, if the impugned decision is reviewable, this Court has no jurisdiction over the case, since it is by its nature subject to a grievance process that excludes the participation of such tribunals as the Federal Court.
The Facts
[5] The relevant facts for the purpose of deciding this motion are fairly simple and may be summarized as follows.
[6] It is common ground that 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.
[7] 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.
[8] 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.
[9] The application indicates that during the last two years of her employment, the applicant was a victim of workplace harassment which adversely affected her health. She resorted to the various internal mechanisms for relief that were available to her without, however, exhausting them.
[10] 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.
[11] Here is how the applicant presents these events in her affidavit:
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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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[12] Even if one accepts the applicant's version for the purposes of this motion " and without determining its merits on the substance, therefore " the fact remains that it was her decision to leave the public service.
[13] Ultimately, the applicant was struck off the strength of the public service on April 1, 1998.
[14] On May 15, 1998, however, the applicant sent 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.
[15] On July 10, 1998, Lieutenant-Colonel Crowe, a lawyer in the Office of the Judge Advocate General of National Defence, responded to this formal demand on behalf of National Defence.
[16] It is in objection to this letter, or more specifically to the decision that this letter contained, that the applicant filed her application, which is now under attack.
Nature of the letter of July 10, 1998
[17] In this letter, Lieutenant-Colonel Crowe stated, inter alia:
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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. [emphasis added] |
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[18] 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.
[19] Accordingly, I think the letter of July 10, 1998 must be viewed as a "decision" by a "federal board, commission or other tribunal" within the meaning of the Act, and more specifically within the meaning of sections 2, 18 and 18.1 of the Act.
[20] On consideration, I think the letter of July 10, 1998 must be distinguished from the other situations referred to by counsel for the respondents in which, for example, the courts have declined to view a refusal to implement a recommendation, or the issuance of a certificate or letter of information, as a decision within the meaning of the Act (see Feldsted v. Canada (1986), 6 F.T.R. 219; Michel Grenier v. Canada Employment and Immigration Commission and (the) Attorney General of Canada, unreported decision of March 6, 1996, file no. T-2711-95; [1982] 1 S.C.R. 609">Fee et al. v. Bradshaw et al., [1982] 1 S.C.R. 609; Demirtas v. Canada, [1993] 1 F.C. 602 at [p.] 606).
[21] For one thing, I do not think one can rely, as the respondents do, on the reasons in the Fee decision (at p. 618) as authority for the statement that "[Translation ] this letter in reply to the applicant's request is not, either by its communication to her or by the statements it contains, a decision that is reviewable by this Court."
[22] In the letter of July 10, 1998, in contrast to the situations to which the respondents refer, the respondents decide: the applicant will not be reinstated in the public service.
[23] 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.
The applicant's labour relations and the remedy now sought
[24] It is true that it must be kept in mind that these are incidents in connection with the applicant's labour relations and conditions of employment that ultimately led her, apparently, to retire from her employment.
[25] However, the applicant did not apply to this Court at the time she was contending with any of these incidents with a view to having the Court resolve it. If such had been the case, the grievance procedure to which the applicant was subject should then have applied and the applicant would have been prevented from proceeding with this application.
[26] Nor do I think it can be argued that the applicant consciously neglected to take her situation to the third grievance level for the sole purpose of eventually resigning and then applying to this Court to be reinstated in the public service.
[27] The applicant's retirement from her employment is a new phase or stage in the events, it seems to me, and although the incidents occurring prior to this stage were subject to an internal redress mechanism, I do not think it is possible to make a clear and evident finding that the same applies to her request for reinstatement.
[28] This application or this proceeding may therefore remain on the record. I think this conclusion should stand even if the respondents or even this Court do not, strictly speaking, have this power, which, under section 8 of the Public Service Employment Act, is within the purview of the Public Service Commission. As the Supreme Court held in [1981] 1 S.C.R. 199">Donald C. Kelso v. Her Majesty the Queen, [1981] 1 S.C.R. 199, the Court may of course in principle declare the applicant's rights at some point and leave it to the Public Service Commission to act on that declaration.
[29] It is, however, clear and certain that the applicant cannot, within the context of an application for judicial review, obtain damages against the respondents. This type of remedy is obtained by an action and not by an application. Accordingly, items 2 and 3 of the application, in which the applicant claims:
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2. Monetary compensation as damages to remedy the harm suffered as a result of an unhealthy work environment. |
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3. Damages for the loss of my employment between April 1, 1998 and the date of this application. |
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shall be struck from the applicant's application.
[30] The respondents' motion to strike will therefore be allowed in part in so far as items 2 and 3 of the applicant's application for judicial review are struck out.
[31] Since success on this motion is divided, there will be no order as to costs.
MONTRÉAL, QUEBEC
September 9, 1998
Traduction certifiée conforme
Bernard Olivier, LL.B.
Federal Court of Canada
Court file no. T-1522-98
BETWEEN
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MINISTER OF NATIONAL DEFENCE |
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CHIEF OF THE DEFENCE STAFF |
REASONS FOR ORDER
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
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MINISTER OF NATIONAL DEFENCE |
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CHIEF OF THE DEFENCE STAFF |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: September 1, 1998 |
REASONS FOR ORDER OF RICHARD MORNEAU, PROTHONOTARY
APPEARANCES:
Ms. Lise Bouchard for the applicant
Ms. Nadine Perron for the respondents
SOLICITORS OF RECORD:
Mr. Morris Rosenberg for the respondents
Deputy Attorney General of Canada
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