Parrish v. Canada (Attorney General), 2003 FCT 748

Date: 20030613

Docket: T-875-03

Citation: 2003 FCT 748

Ottawa, Ontario, June 13, 2003

Present:    THE HONOURABLE MR. JUSTICE BLAIS           

BETWEEN:

                  ANDREW PARRISH and UNION OF CANADIAN

             CORRECTIONAL OFFICERS - SYNDICAT DES AGENTS

                     CORRECTIONNELS DU CANADA - CSN

                                                               Applicants

                                 - and -

                     CANADA (ATTORNEY GENERAL) and

                     CORRECTIONAL SERVICE OF CANADA

                                                              Respondents

                         REASONS FOR ORDER AND ORDER

[1]              This is a motion on behalf of the Respondents for an order striking out the Applicants' originating Notice of Application filed May 27, 2003, pursuant to rules 4 and 221 of the Federal Court Rules, 1998 [the Rules]; and a motion on behalf of the Applicants for an order for an interlocutory injunction pursuant to rule 373 of the Rules enjoining the Correctional Service of Canada [the CSC] / the Commissioner of the CSC from transferring employees from the Regional Health Centre [the RHC] in the Pacific Region to its new addition, the Pacific Institution / Regional Treatment Centre [the RTC] located at 33344 King Road, Abbotsford, British Columbia, until the final disposition of the application for judicial review.

FACTS

[2]                 On June 15, 2002, Tom Brooman filed a complaint under section 127.1(1) of the Canada Labour Code, R.S.C. 1985, c. L-2 [the Code], relating to staff health and safety hazards at the Pacific Institution.

[3]                 On August 19, 2002, Corrections Officer Andrew Parrish, the employee representative, along with Dan O'Hara, the employer representative for the CSC, was directed to investigate the complaint pursuant to section 127.1(3) of the Code, which investigation commenced August 22, 2002, and was completed by September 18, 2002.

[4]                 The investigation of the complaint resulted in a report that was authored by Messrs Parrish and O'Hara. The report concluded that although the new site (the RTC) contains many safeguards, there were several difficulties that were unresolved that may impact on staff safety.

[5]                 By letter dated January 9, 2003, Terry Sawatsky, Executive Director for the CSC, advised Mr. Brooman that he was not prepared to accept the findings of the report.

[6]                 Subsequent to the January 9, 2003 letter, the complaint was referred to a health and safety officer by Tom Brooman pursuant to section 127.1(8) of the Code.

[7]                 As a result, the health and safety officer conducted an investigation pursuant to section 127.1(8) of the Code. However, as of the date of this application, the health and safety officer has not completed his investigation.

[8]                 On May 20, 2003, the CSC issued, via electronic mail, a notice to employees that inmates and patients (which would include, by implication, the employees) of the RHC are expected to be transferred to the RTC on May 26, 2003, upon approval by the Commissioner of the CSC. The email provided:

The National Audit Team has completed their visit and are expected to report to the Commissioner later this week. The Commissioner's Approval is required before inmates and patients can be moved to the new site. We now expect to begin those moves on May 26.

[9]                 On May 21, 2003, the advisor for the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN [the UCCO-SACC - CSN] wrote to John Costello, Warden for the RHC, CSC, that the safety concerns addressed in the report had not been resolved or rectified by the CSC and asked the CSC to put an immediate halt to the implementation of deployment of correctional officers to the new RHC.

[10]            On May 23, 2003, the Commissioner of CSC decided to postpone the transfer of employees to the RTC due to concerns related to inmate health and security.

[11]            On May 27, 2003, the Applicants filed the application for judicial review and on May 30, 2003, they filed a motion for an interlocutory injunction enjoining the CSC from transferring employees from the RHC in the Pacific Region to the new addition to the RTC, the Pacific Institution.

[12]            On June 4, 2003, the Respondents filed a motion to strike out the Applicants' originating Notice of Application filed on May 27, 2003.

[13]            After discussion with the parties, it was agreed that this Court would firstly proceed with the motion to strike, followed by the motion for an interlocutory injunction. This Court decided to hear the parties' submissions on the two motions consecutively.

ISSUES

Should the May 27, 2003 Notice of Application be struck out on the basis that this Court lacks jurisdiction to hear this matter, or alternatively, on the ground that an adequate, alternative remedy under Part II of the Code is available to the Applicants?

ANALYSIS

[14]            As it was clearly established by the Respondents, Part II of the Code provides for a comprehensive statutory procedure to review the specific complaints of the Applicants, which procedure ultimately culminates in a decision of an appeals officer. Both parties agree that this process has not been completed.

[15]            The Applicants suggest that pursuant to section 18.1 of the Federal Court Act, the Federal Court Trial Division may grant relief against a federal board, commission or tribunal and that the CSC and the Commissioner fall into the category of a federal board or tribunal (see Shaw v. Canada, (1997) 134 F.T.R. 128, [1997] F.C.J. No. 972).

[16]            On the other hand, the Respondents suggest that the completed procedure would culminate in a decision of an appeals officer that is protected from review by a privative clause, i.e. section 146.3 of the Code, therefore ousting the jurisdiction of this Court. Sections 146.3 and 146.4 provide as follows:

[17]            The Respondents strongly suggest that, by enacting section 146.3, Parliament clearly intended the procedure set forth in Part II of the Code to be the exclusive route for the Applicants to follow in this area of labour relations, thereby preventing this Court from assisting the Applicants.

[18]         In fact, sections 22 and 23 of Part I of the Code, expressly provide that decisions subject to Part I can be questioned or reviewed by this Court.

[19]            This is a clear indication that, absent such a mention in Part II the intervention of this Court in this matter is expressly not permitted. Indeed, the Code does provide a statutory process which is an adequate and appropriate remedy, which the Respondents suggest should have been exhausted by the Applicants. The Respondents further suggest that pursuant to section 146.3 of the Code, a final decision of an appeals officer cannot be reviewed by the Federal Court of Canada.

[20]            On their side, the Applicants submit that Dawson J.'s decision in Canadian Freightways Ltd. v. Canada (Attorney General), [2003] F.C.J. No. 552, dated April 2, 2003, seems to limit the extension of section 146.3 of the Code. She held:

[para. 18] Section 146.3 of the Code provides that an appeals officer's decision is final and shall not be questioned or reviewed in any court. Therefore, such decisions may only be reviewed if the appeals officer made an error in interpreting the provisions conferring jurisdiction or exceeded the officer's jurisdiction by making a patently unreasonable error of law. See: [1989] 2 S.C.R. 983=">CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983 at page 1003.

[21]         As there is no appeals officer's decision in the case before this Court, there is no need for me to pronounce myself on the issue of whether a final decision of an appeals officer can be reviewed.

[22]            Indeed, to this date, the question of staff health and safety is still under investigation by a health and safety officer. It is only when and if the health and safety officer decides that no danger exists that an appeal to the appeals officer will possibly be made.

[23]            In the case at bar, the question of whether this Court would have jurisdiction to review an appeals officer's decision is immaterial and premature.

[24]            The Respondents alluded to the decision of Vaughan v. Canada, [2003] F.C.J. No. 241, where Evans J., in his concurring reasons, referred to McLachlin J. (as she then was) in the decision of Brotherhood of Maintenance Way Employees of Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495:

[para. 149] McLachlin J. (as she then was) identified the scope of that residual role in Brotherhood of Maintenance Way Employees of Canadian Pacific System Federation v. Canadian Pacific Ltd.[...] When she said (at para. 8):

No matter how comprehensive a statutory scheme for the regulation of disputes may be, the possibility always remains that events will produce a difficulty which the scheme has not foreseen. It is important in these circumstances that there be a tribunal capable of resolving the matter, if a legal, rather than extra-legal, solution is to be found. It is precisely for this reason that the common law developed the notion of courts of inherent jurisdiction. If the rule of law is not to be reduced to a patchwork, sometime thing, there must be a body to which disputants may turn where statutes and statutory schemes offer no relief.

[25]            The Respondents also contended that not only did the Applicants fail to exhaust the process provided by Part II of the Code, they also failed to avail themselves of an adequate alternative remedy. Section 128 provides:

[26]            How can one suggest that this Court should intervene in the middle of a process established by the Code to address this kind of issue and when there also is an alternative remedy which could be used by an employee who feels that his or her health or security could be compromised by the decision of the employer?

[27]            In light of the foregoing, I have no hesitation in concluding that the intervention of this Court in the present matter is not justified.

[28]            I have reviewed the parties' submissions and heard their arguments on the motion for interlocutory injunction. Given my conclusion on the motion to strike, combined with my finding that there is no serious issue to be tried, there is no need for this Court to address the other two elements of the test developed by the Supreme Court of Canada in RJR-MacDonald v. Canada, [1994] 1 S.C.R. 311, for granting an interlocutory injunction.

                                                  ORDER

THIS COURT ORDERS that:                                                  

          1.        This motion for an order striking out the Applicants' originating Notice of Application, dated May 27, 2003, is granted, as at this stage, the Court lacks jurisdiction to deal with this matter.

          2.        The motion for an interlocutory injunction is dismissed.

          3.        The application for judicial review in respect of a decision of the Commissioner of the CSC to transfer employees from the RHC in the Pacific Region to its new addition, the Pacific Institution, prior to the completion of an investigation by a health and safety officer appointed under the Code, is struck out.

          4.        Costs in favour of the Respondents.

                 "Pierre Blais"                     

                       Judge