Crowe v. Canada, 2003 FCT 553

Date: 20030505

Docket: T-605-01

Neutral citation: 2003 FCT 553

Ottawa, Ontario, this 5th day of May, 2003

Present:           The Honourable Madam Justice Heneghan                                      

BETWEEN:

GORDON McKENZIE-CROWE, MICHEL GAGNON, STEVE WILCOCK, JOHN WISEMAN, DAVE BURBACK, REG KING, MARC LEBLANC and RENE GAGNON

      EACH ON THEIR OWN BEHALF AND ON BEHALF OF ALL MEMBERS OF THE

    CANADIAN ASSOCIATION OF CORRECTIONAL SUPERVISORS / ASSOCIATION

                                 CANADIAN DES SURVEILLANTS CORRECTIONEL

                                                                                                                                                        Plaintiffs

                                                                                 and

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                               REASONS FOR ORDER AND ORDER

INTRODUCTION

[1]                 Her Majesty the Queen (the "Defendant") brings this motion for summary judgment pursuant to the Federal Court Rules, 1998, SOR/98-106. The Defendant bases the motion upon an alleged lack of jurisdiction in this Court to entertain the claims raised in the Amended Statement of Claim filed by the Plaintiffs.

FACTS

[2]                 Mr. Gordon McKenzie-Crowe and the other individuals named as Plaintiffs in this action are all employed by Correctional Service of Canada ("CSC") as Correctional Supervisors. Their legal employer is the Treasury Board. They are classified as CX-3.

[3]                 The Plaintiffs were traditionally unionized employees as members of the Union of Solicitor General Employees, a branch of the Public Service Alliance of Canada ("PSAC"). On April 26, 1995, the Public Service Staff Relations Board ("PSSRB") excluded the Correctional Supervisors from their bargaining unit because they hold "managerial or confidential positions". This finding was upheld on an application for judicial review to the Federal Court of Appeal: Public Service Alliance of Canada v. Canada (Treasury Board) (1996), 194 N.R. 33 (F.C.A.), leave to appeal to S.C.C. refused, [1996] S.C.C.A. No. 183 (QL).

[4]                 The collective agreement, entitled Agreement between the Treasury Board and the Union of Canadian Correctional Officers, (the "collective agreement") governs the Plaintiffs' relationship with their employer.

[5]                 According to the affidavit of Mr. McKenzie-Crowe filed in response to the Defendant's motion, the job description of the Correctional Supervisor position has not changed since January 8, 1990. However, the Plaintiffs say that a number of responsibilities have been added to the workload of the Correctional Supervisors without the benefit of a reclassification of the position.

[6]                 The Plaintiffs say that the Defendant represented that a reclassification process would be initiated. The Plaintiffs also state that it is an implied term of their employment contract that the CSC would initiate reclassification procedures within a reasonable time following a change in their employment duties.

[7]                 The Plaintiffs allege that they have exhausted all internal formal and informal remedies and have no further recourse available to them except to commence this action.

[8]                 The Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("PSSRA"), section 91, provides a grievance procedure for federal public servants relative to the terms and conditions of their employment. Although the Plaintiffs are excluded as "employees" for the purpose of collective bargaining, they qualify as "employees" for the purpose of grievance procedures, according to the definitions of "grievance" and "employee" in section 2(1) of the PSSRA.

[9]                 If the grievance is framed as a challenge to an allegedly deficient job classification, section 91 of the PSSRA and the Classification Grievances Policy of the Treasury Board is engaged. This Policy is designed to provide a remedy where CSC employees are dissatisfied with their classification.

[10]            According to the materials filed, none of the Plaintiffs have filed a classification grievance to date. The Defendant has filed affidavit evidence from Mr. Ewen Newton, a Classification Officer with CSC. His duties include reviewing and processing classification grievances filed by CSC employees. He deposes that a review of the CSC's records showed that none of the individual Plaintiffs had filed classification grievances as of April 12, 2002.

[11]            If the grievance is framed as a staff relations grievance for a work description, the Terms and Conditions of Employment Policy and the relevant collective agreement are engaged. The Defendant filed affidavit evidence from Mr. Daniel Richer, Acting Director of Labour Relations at CSC. His duties include reviewing and processing staff relations grievances filed by CSC employees. Mr. Richer attested that the Plaintiffs have the right to file staff relations grievances related to work descriptions in accordance with the above Policy.

[12]            After a review of CSC's records relating to staff relations grievances, as of April 12, 2002, Mr. Richer found that only two Plaintiffs had attempted to use the staff relations grievance process. Mr. René Gagnon, a Plaintiff, had filed a grievance in February 2001 and pursued it up to the second level, which had been denied, and had not pursued it to the third and final level. Mr. Richer also found that another Plaintiff, Mr. Reginald King, had filed a grievance in October 2000 and had pursued the grievance to the final level in December 2000, however no final decision has been made.

[13]            The Plaintiffs have filed, attached as exhibits to the affidavit of Mr. McKenzie-Crowe, several "grievance presentation" forms and responses which relate to several individuals. The only two named Plaintiffs who filed such forms are Gordon McKenzie-Crowe and Steve Wilcock. These grievance forms indicate that Mr. McKenzie-Crowe and Mr. Wilcock were grieving the issue of whether they should have been paid at the same rate as Unit Managers for filling in during a Unit Manager's absence.

[14]            The collective agreement, Articles 20.02, 20.03 and 20.05, sets out the procedure to be followed. Section 91 of the PSSRA is incorporated by reference, as follows:

20.02        Subject to and as provided in Section 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 20.05 except that:

(a)             where there is an other administrative procedure provided by or under any Act of Parliament to deal with the employee's specific complaint, such procedure must be followed,

and

(b)            where the grievance relates tot he interpretation or application of this 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 Bargaining Agent.          

20.03        Except as otherwise provided in this Agreement, a grievance shall be processed by recourse to the following levels:

(a)             level 1- first (1^st) level fo management;

(b)            level 2- intermediate level;

( c)            final level- Deputy Head or Deputy Head's authorized representative.

20.05        An employee who wishes to present a grievance at a prescribed level in the grievance procedure shall transmit his grievance to his or her immediate supervisor or local officer-in-charge who shall forthwith:

(a)             forward the grievance to the representative of the Employer authorized to deal with grievances at the appropriate level,

and

(b)            provide the employee with a receipt stating the date on which the grievance was received by him or her.          

[15]            On February 18, 2003, this Court directed that the parties to this motion have an opportunity to present written submissions concerning the Federal Court of Appeal decision in Vaughan v. Canada, 2003 FCA 76, [2003] F.C.J. No. 241 (C.A.)(QL), judgment released on February 14, 2003. Vaughan held that the jurisdiction of the court to hear actions brought by employees of the federal public service was ousted when the essential nature of the dispute fell under the collective agreement or statutory scheme. In reaching this conclusion, the Federal Court of Appeal affirmed its previous reasoning in Johnson-Paquette v. Canada (2000), 253 N.R. 305 (F.C.A.) and Public Service Alliance of Canada v. Canada (Treasury Board) (2002), 293 N.R. 325 (F.C.A.).

DEFENDANT'S SUBMISSIONS

[16]            The Defendant submits that a motion for summary judgment can be granted when the moving party has shown that there is no genuine issue of material fact requiring trial. In this regard, the Defendant relies on [1993] S.C.R. 423">Guaranty Co. v. Gordon Capital Co., [1993] S.C.R. 423 at pages 434-435.

[17]            The Defendant argues that since the nature of the dispute in this action relates exclusively to the terms and conditions of employment, this Court lacks jurisdiction to hear the action in light of the legislative scheme set out in the PSSRA, the Classification Grievances Policy the collective agreement and the Terms and Conditions of Employment Policy. Recourse to this Court in employment disputes, according to the Defendant, is by way of judicial review of these procedures and not by way of an action for damages.

[18]            The Defendant says that the Plaintiffs are considered to be "employees", pursuant to the definitions of "employee" and "grievance" in section 2(1) of the PSSRA. Consequently, they are subject to section 91 of that Act and their recourse lies in pursuit of their grievances to the final level, in accordance with section 91.

[19]            The Defendant says that the Plaintiffs have not filed a classification grievance. In one case, a staff relations grievance has been pursued to the final level and the final decision is pending. In these circumstances, the Defendant says that the Plaintiffs' action is not properly before the Court.

[20]            The Defendant argues that the courts do not have jurisdiction over the resolution of labour and government disputes governed by legislative schemes and collective agreements. In this regard, the Defendant relies on St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paperworkers' Union, Local 219, [1986] 1 S.C.R. 704.

[21]            The Defendant also relies on Johnson-Paquette, supra, for the determination that the PSSRA is a complete code governing the relationship between the Defendant and her employees. The grievance procedure set out in this statute is the only remedy upon which employees may rely for issues such as classification disputes. Once a final level grievance decision has been rendered, the Plaintiffs may seek judicial review.

[22]            The Defendant further argues that recourse to the courts with a claim for damages is improper where a comprehensive scheme for dealing with disputes already exists.

[23]            In response to the Federal Court of Appeal's decision in Vaughan, supra, the Defendant says that this recent decision confirms that the PSSRA establishes a comprehensive scheme for the resolution of employment related disputes between federal public service employees and their employer. The Defendant argues that the decision of the Federal Court of Appeal is binding upon this Court, even in the face of contradictory and opposing decisions by provincial appellate courts, specifically those decisions in Guennette et al. v. Canada (Attorney General) (2002), 60 O.R. (3d) 601 (C.A.), Danilov v. Atomic Energy Control Board (1999), 125 O.A.C. 130, leave to appeal to S.C.C. refused, [1999] S.C.C.A. No. 573 (QL) and Pleau v. Canada (Attorney General) (1999), 182 D.L.R. 4^th 373 (N.S.C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 83 (QL).                        

[24]            The Defendant argues that both Sexton J.A. and Evans J.A. in Vaughan, supra, held that the unavailability of a right to third party adjudication by the Plaintiffs does not establish a basis from which this Court can assume jurisdiction to hear and decide the Plaintiffs' claims.

[25]            As well, the Defendant submits that any failure by the Plaintiffs to pursue the statutory grievance procedure provided by the PSSRA, on the grounds of inadequacy of that procedure and remedy available, is not a basis for establishing jurisdiction in this Court to entertain the claims advanced.

[26]            The Defendant disagrees with the Plaintiffs' contention that the statutory scheme provides them with no effective remedy. The Plaintiffs were entitled to pursue grievances pursuant to section 91 and the applicable Treasury Board polices related to classification or staff relations grievances. Further, as noted by the court in Vaughan, the availability of judicial review after obtaining a decision at the final grievance level provides for judicial oversight of the grievance process and outcome.

[27]            The Defendant says that the Plaintiffs' employment relationship is governed by a collective agreement. The fact that the Plaintiffs did not participate in or contribute to the negotiation of the terms of that agreement is not relevant to the issue of whether this Court has jurisdiction. The Plaintiffs' relationship to this collective agreement has already been litigated and dealt with in the challenge to their exclusion from the bargaining unit, taken to the PSSRB, upheld on judicial review to the Federal Court of Appeal.          

[28]            Furthermore, the Defendant argues that Evans J.A. in Vaughan held that the absence of a consensual element, where procedures for grievances originate from the PSSRA rather than from a collective agreement, is not a basis for the courts to assume jurisdiction.

[29]            The Defendant submits that the Vaughan decision supports its position that this motion for summary judgement should be granted. The Defendant says that both the majority and minority reasoning in Vaughan affirm the principle from the Federal Court of Appeal cases of Johnson-Paquette, supra and PSAC, supra, that is the court does not have jurisdiction to hear actions brought by aggrieved federal public servant employees who have the ability to grieve pursuant to the PSSRA.

[30]            The Defendant argues that the provincial appellate decisions of Pleau, supra, and Guenette, supra are specifically rejected by the Federal Court of Appeal in Vaughan.

[31]            The key question, in determining whether the court should not accept jurisdiction over a federal employment dispute, is whether the essential character of the dispute arises expressly or inferentially from the statutory scheme or collective agreement. The Defendant submits that the Plaintiffs' dispute in this case falls squarely within their employment relationship with the Treasury Board. Consequently, it comes within the scope of section 91 of the PSSRA and this court does not have jurisdiction to hear their action.

PLAINTIFFS' SUBMISSIONS

[32]            The Plaintiffs submit that the Federal Court of Appeal's decision in Vaughan can be distinguished from the circumstances in the case at bar in several ways. The Plaintiffs argue that the principles set out in Vaughan that were based on the exclusive jurisdiction model, as established in Weber v. Ontario, [1995] 2 S.C.R. 929 and further developed in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, apply specifically to unionized employees who are part of a collective bargaining unit, and those principles should not be applied where the plaintiffs, as is in their case, are not unionized. In Vaughan, the plaintiff was a federal public servant who was part of the applicable bargaining unit.

[33]            The Plaintiffs submit that the employee in Vaughan was represented by a bargaining agent and consequently, was able to participate in negotiating the collective agreement. In contrast, the Plaintiffs here say that they do not have the benefit of being represented by a bargaining agent, as they were excluded from the bargaining unit because they were identified as holding "managerial or confidential" positions by the PSSRB on April 26, 1995.

[34]            The Plaintiffs argue that they have been denied the ability to negotiate the terms and conditions of their employment as determined by the collective agreement and Treasury Board policy which apply to them, both of which have been "unilaterally imposed" on them by their employer.

[35]            The Plaintiffs submit that the importance of employees having the ability to participate in the collective bargaining process was recognized by Evans J.A. in his concurring reasons in Vaughan at paras 100, 135, 145, and 162. As a result, the fact that the Plaintiffs in this case are ineligible to belong to a bargaining unit and participate in the collective bargaining process, which would allow them some say in augmenting the sparse internal grievance structure provided in section 91 of the PSSRA, is a significant distinguishing feature from Vaughan. The ability of the Plaintiffs to commence this action in court should be preserved.

[36]            The Plaintiffs argue that the situation in Vaughan is distinguishable in relation to the remedy sought. They say that unlike Vaughan, where the court held that there was no issue as to the availability of a remedy under the statutory regime or collective agreement, there is no statutory remedy available here to redress the majority of the Plaintiffs' claims.    The relief that they seek is beyond that typically sought internally under section 91 of the PSSRA. They claim that dicta from the concurring reasons of Evans J.A. in Vaughan, as well as reasoning from the Supreme Court of Canada in Weber, support the position that where the statutory grievance scheme denies an ultimate or effective remedy, then recourse to the courts must be permitted.

[37]            Further, the Plaintiffs submit that the grievance procedure available to them is inadequate to make legal determinations regarding their claims. In particular, they emphasize their lack of access to a neutral, third party adjudicator within the statutory grievance process.

[38]            Next, the Plaintiffs argue that contrary to Vaughan, their grievances deal with matters which are not central to the employment relationship, and that the Federal Court of Appeal distinguished the provincial appellate decisions of Pleau, supra, and Guenette, supra, on this basis. These provincial appellate courts held that courts retained jurisdiction to hear actions brought by aggrieved employees as the issues dealt with in those cases were beyond or outside the typical employment relationship and the relief sought was beyond that typically sought in a grievance process. Here, the Plaintiffs submit that the claims which they advance go well beyond the terms and conditions of employment and additionally the relief which they seek is beyond that which can be granted through the internal grievance process.

[39]            The Plaintiffs also claim that their case is similar to the Nova Scotia Court of Appeal case of Pleau, supra, which the Federal Court of Appeal distinguished from the situation in Vaughan, in part due to the fact that in Pleau the employee dispute as a whole could not have been subject to the statutory grievance procedure.

[40]            As a further distinguishing feature from Vaughan, the Plaintiffs claim that they have exhausted all internal remedies and have no further recourse available, whereas the plaintiff in Vaughan had elected not to pursue the internal remedies available to him. The Plaintiffs maintain that no internal procedures exist under which they can pursue their grievances, including their classification grievances, in light of the wording of Article 20.02 of the collective agreement.

[41]            Generally, the Plaintiffs argue that this Court should follow the provincial appellate decisions of Pleau,supra, Guenette, supra and Yearwood v. Canada (Attorney General) (2002), 216 D.L.R. (4^th) 462 (B.C.C.A.), as these decisions applied the correct law and are similar to the case at bar in all material aspects.

LEGISLATION

[42]            The definitions of "bargaining unit", "employee", "grievance" and "managerial or confidential positions" contained in section 2(1) of the PSSRA are relevant to this motion and provide as follows:

[43]            Sections 91(1), 92(1) and 96(3) of the PSSRA are also relevant and provide:

[44]            According to the definitions of "employee" and "grievance" in the PSSRA, the Plaintiffs are considered employees under the PSSRA for the purpose of grievances, although not for the purposes of collective bargaining. This is due to their identification as employees holding "managerial or confidential positions" pursuant to section 5.2 of the PSSRA by the PSSRB, which excluded them from the bargaining unit.

ANALYSIS

[45]            In my opinion, the Plaintiffs have not shown that the recent decision of the Federal Court of Appeal in Vaughan does not apply. First, they misinterpret Vaughan when they state that the dispute there arose out of the applicable collective agreement. Rather, the dispute in Vaughan arose from certain legislation and regulations concerning early retirement benefits to which the plaintiff believed he was entitled. The Federal Court of Appeal held that the PSSRA process was still available to Mr. Vaughan, given the criteria outlined by the Supreme Court of Canada in Weber and Regina Police Association, and in consequence, the court did not have jurisdiction to hear his action.

[46]            Secondly, the Plaintiffs argue that the internal grievance mechanism is unable to address the majority of their claims or the remedy which they seek, and that this clearly distinguishes their case from Vaughan. However, in my opinion, the Plaintiffs could have sought internal review of their grievances, pursuant to section 91(1)(b) of the PSSRA and a remedy was available pursuant to that process.

[47]            The Plaintiffs could have pursued their classification grievances pursuant to section 91(1)(b) and the Treasury Board's Classification Grievance Policy. The Classification Grievance Policy applies to the Plaintiffs. The Policy states as follows:

Application                              

The policy applies to all departments and other portions of the Public Service listed in Part I of Schedule I of the PSSRA.

Part 1 Schedule I of the PSSRA states:

This Policy also states its policy objective as follows:

Policy Objective

To provide a redress process for employees who are dissatisfied with the classification of the duties they perform as assigned by the Employer.

[48]            It appears from the evidence of the Plaintiffs that certain employees pursued a classification grievance to a "Classification Grievance Committee", in 2001. However, these individuals are not named Plaintiffs. The Plaintiff McKenzie-Crowe attests in his affidavit that he has been advised by these employees that they attempted classification grievances and exhausted all steps in this procedure.    He also states that he is the National President of the Canadian Association of Correctional Supervisors ("CACS") and in addition to being a Plaintiff in this action, he is a "representative Plaintiff" bringing this action on behalf of all the members of CACS. I can find no evidence that the employees who filed these classification grievances are indeed members of CACS.

[49]            In the present case, although the Plaintiff McKenzie-Crowe describes himself as a "representative plaintiff", there is no evidence that an Order was made in this regard pursuant to Rule 114 of the Federal Court Rules, 1998. For the purpose of this action, the Plaintiffs cannot rely on evidence concerning grievances launched by persons who are strangers to this action.

[50]            In my opinion, since the Plaintiffs have not attempted to grieve under the internal process established pursuant to section 91 of the PSSRA, they have not exhausted all internal remedies, as they claim. Their situation is similar to that of Vaughan where the plaintiff had not attempted to pursue a grievance related to retirement benefits through the internal grievance process.

[51]            Further, the Plaintiffs' argument that Article 20.02 of the collective agreement precludes classification grievances contradicts their evidence that other Correctional Supervisors, not named as individual Plaintiffs, had classification grievances considered in accordance with the classification grievance procedure established by the Treasury Board.

[52]            A further grievance procedure appears to have been available to the Plaintiffs, relating to work descriptions pursuant to the Terms and Conditions of Employment Policy. The Plaintiffs have filed evidence of grievances made by several individuals; again the only Plaintiffs among them are Mr. McKenzie-Crowe and Mr. Steve Wilcock. These grievances related to work that they were required to do that they claim "superceded their job descriptions". Specifically, the Plaintiffs grieved that "Unit Managers" were not placed on duty when they should have been and that they, as Correctional Supervisors, should have been paid at the same rate as Unit Managers for filling in during a Unit Manager's absence. Based on the evidence filed attached to the affidavit of Mr. McKenzie-Crowe, grievances by Mr. McKenzie-Crowe and Mr. Wilcock have not been pursued to the final level.

[53]            In the end, whether or not an employee has pursued a grievance under the statutory scheme is not vital to the issue of whether this court has jurisdiction to hear this action. As stated by Justice Evans in Vaughan at paragraph 84:

To conclude, with the exception of Banerd, the post-Weber jurisprudence of both Divisions of this Court broadly supports the proposition that the grievance provisions of the PSSRA impliedly exclude the Court's jurisdiction over work-related disputes that can be grieved under the PSSRA. And, because the existence of the Court's jurisdiction does not depend on whether the employee has resorted to the grievances process, Johnson-Paquette can be taken to have decided by necessary implication that the Court has no jurisdiction over a claim that, in essence, is a dispute that falls within the broad words of section 91, regardless of whether or not the employee has pursued a grievance under section 91.

Here, the essential character of the Plaintiffs' grievances falls within the broad wording of section 91.

      The Plaintiffs assert that unlike Vaughan, the essential character of their dispute falls outside the scope of the collective agreement or the statutory regime. In making this submission, the Plaintiffs must mean that section 91(1)(b) of the PSSRA does not cover the nature of their dispute. I disagree.

[55]            Section 91(1)(b) allows any employee who feels aggrieved "as a result of any occurrence or matter affecting the terms and conditions of employment of the employee" to present the grievance at each of the levels in the grievance process provided under the PSSRA.

[56]            The Plaintiffs' dispute centres around the continued classification of their positions at the CX-3 level. They claim that numerous responsibilities have been added to their job description without the benefit of a reclassification. Classification levels relate to the amount of pay that employees in the federal public service receive. This is a "matter affecting the terms and conditions of employment" of the Plaintiffs and falls squarely within section 91(1)(b) of the PSSRA.

[57]            Furthermore, the way in which the Plaintiffs have framed their action, by seeking damages for breach of contract, breach of statutory duty, negligent misrepresentation and damages for quantum meruit, does not change the fact that the nature of the dispute involved in this case arises from issues vital to the employment relationship. Form cannot prevail over substance and in this regard, I refer to Weber, supra, at paragraphs 43 and 49 where McLachlin, J. (as she then was) said as follows:

... The issue is not whether the action, defined legally, is independent of the collective agreement, but rather whether the dispute is one "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.

... one must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute. It would also leave it open to innovative pleaders to evade the legislative prohibition on parallel court actions by raising new and imaginative causes of action, as remarked by La Forest J.A. in the Court of Appeal decision in St. Anne-Nackawic, at pp. 694-5. ...

[58]            The nature of the damages sought by the Plaintiffs, which include a request for aggravated and punitive damages, does not change the fact that the essential character of their dispute relates to the terms and conditions of their employment. The Plaintiffs have not referred to any authority or evidence to demonstrate that the grievance process could not provide the remedy of recovery of lost wages flowing form the employer's failure or delay in reclassifying their positions.     In Vaughan, Sexton J.A. in reasons concurred to by Richard C.J., stated at paragraph 20:

...Therefore, whether the tribunal can provide effective redress must also be considered when determining jurisdiction, but only in the sense of actually being able to provide a remedy...

In the present case, a remedy is available, via the grievance process which gives rise to the opportunity for judicial review. The judicial review process is intended to provide review of government action or inaction in accordance with the statutory basis set out in section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7.

[59]            As outlined above, the Plaintiffs are considered "employees" under the PSSRA for the purpose of grievances, although not for the purposes of collective bargaining. The Plaintiffs take issue with their exclusion from the collective bargaining process. However, this exclusion, by virtue of the identification of their positions as being "managerial or confidential" by the PSSRB, has already been dealt with and upheld on judicial review by the Federal Court of Appeal.

[60]            Finally, the Plaintiffs argue that the ratio in Vaughan should not be applied to employees who have been excluded from the collective bargaining process. In my opinion, while this may be one way in which Vaughan can be factually distinguished from the present case, it does not change the fact that the Plaintiffs here could have accessed the grievance procedures set out pursuant to section 91 of the PSSRA. While they are not considered "employees" for the purposes of collective bargaining, they are included within the term "employee" for the purposes of grievances.

[61]            The ability of employees to participate in collective bargaining was only one of several factors addressed by Evans J.A. in analyzing the issue of the inability to access an independent adjudicator under section 91. Within this analysis, Justice Evans cited the ability of employees to improve the scope of the internal grievance process through collective bargaining as one reason why the lack of provision for independent adjudication under section 91 did not give rise to the duty of the court to assert concurrent jurisdiction. Evans J.A. stated as follows at paragraphs 97-98 of Vaughan, supra:

Third, in Regina Police Assn. the Court applied the Weber principle to a dispute that was not based on a collective agreement and where the exclusive mechanism for resolving it was not an arbitrator. It follows that a scheme for dealing with employment-related disputes may constitute an exclusive remedial regime for the purpose of Weber, even though disputes do not arise from a collective agreement and are not resolved by arbitration. The Weber principle may thus apply to a scheme that lacks the consensual element of those considered in the foundation case of St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, as well as in Weber itself.

Thus, in view of these extensions of the principle of exclusivity by Regina Police Assn., it is not fatal to the implied ouster of the Court's jurisdiction over disputes falling within section 91 of the PSSRA that Mr. Vaughan's claim to ERI benefits was based on statute, not on a collective agreement, and that the procedures available under section 91 of the PSSRA for grieving the refusal of benefits are essentially statutory in origin and not consensual. ...

[62]            Furthermore, Sexton J.A. in Vaughan held, relying on Ocean Port Hotel Ltd. v. British Colombia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, that lack of an independent adjudicator for employees whose grievances fall only under section 91 and not section 92, is not a reason to disregard a statutory scheme when Parliament's intent, as in the case of section 91 of the PSSRA, clearly shows that this is to be the exclusive grievance route. Judicial consideration of a final level grievance decision remains available through an application for judicial review, as stated by Justice Sexton at paragraph 19 of Vaughan:

The intent of Parliament is clear. Based on the ambit of the statutory scheme and the nature of the dispute (being directly related to employment issues), section 91 of the PSSRA is the exclusive route. Section 91 is engaged and could have been resorted to by the Appellant, and judicial review under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended would have been available. While the statutory scheme may oust the jurisdiction of courts to entertain the claim it does not oust the supervisory jurisdiction of this Court on judicial review. In particular, questions of procedural fairness can be addressed as of right on judicial review of the decision-maker's decision.

[63]            This is a motion for summary judgment brought pursuant to the Federal Court Rules.    216(1) and 216(2)(b) are relevant and provide as follows:

[64]            The Defendant relies on a decision of the Supreme Court of Canada in Guranty Co. v. [1993] S.C.R. 423">Gordon Capital Co., supra. This case is based on different rules of procedure and is not particularly relevant here. As noted by Reed, J. in Marine Atlantic Inc. v. Blythe (1994), 77 F.T.R. 97 (T.D.), the Federal Court Rules for summary judgment should be interpreted by reference to their own factual framework, not by reference to the Ontario rules.

[65]            The facts are not really in issue here. The critical fact is that an employment relationship exists between the Plaintiffs and the Defendant. That relationship is governed by the PSSRA. Where differences arise from that relationship, whether as alleged breach of contract or tort, they are to be addressed pursuant to the statutory regime. The question is whether that regime provides a remedy, not whether it provides the best remedy.

[66]            The Federal Court of Appeal has decided that access to the courts by federal public service employees, as defined in the PSSRA, is precluded. The decisions of the Federal Court of Appeal are binding on this Court. The undoubted conflict that exists between the decisions of the Federal Court of Appeal and provincial appellate courts is a matter that must await resolution by the Supreme Court of Canada in the future.

[67]            This Court does not have jurisdiction to hear the Plaintiffs' action and as a consequence, there is no genuine issue for trial. Summary judgment is granted to the Defendant. This action is dismissed. Costs are reserved pending submissions from the parties unless agreement is otherwise reached.

                                                  ORDER

The motion is granted, summary judgment is granted to the Defendant. Costs are reserved pending submissions from the parties unless agreement is otherwise reached.

                                                                                           "E. Heneghan"

                                                                                                      J.F.C.C.

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                              T-605-01

STYLE OF CAUSE:                              GORDON McKENZIE-CROWE ET AL v. HER MAJESTY THE QUEEN

DATE OF HEARING:                         June 11, 2002

PLACE OF HEARING:                       Toronto, Ontario.

REASONS FOR ORDER AND

ORDER:                                                  The Honourable Madam Justice Heneghan

DATED:                                                   May 5, 2003

APPEARANCES BY:                         Mr. Phillip G. Hunt

                                                                                                                      For the Plaintiffs

                                                                 Mr. Derek Rasmussen

                                                                                                                     For the Defendant

SOLICITORS OF RECORD:           Mr. Phillip G. Hunt

Shields and Hunt

                                                                  Barristers & Solicitors

                                                                 68 Chamberlain Avenue

                                                                 Ottawa, Ontario.    K1S 1V9

                                                                  Tel:613-230-3232                                                                                                                                           Fax:613-230-1664

                                                                                                                      For the Plaintiffs

                                                                 Ms. Derek Rasmussen

                                                                 Department of Justice

                                                                   Bank of Canada Building

                                                                 234 Wellington Street - East Tower

                                                                 Ottawa, Ontario.    K1A 0H8

                                                                   Tel:613-941-7330

                                                                 Fax:613-954-1920

                                                                                                                     For the Defendant