Chase v. Canada, 2004 FC 1643

Date: 20041126

Docket: T-2074-01

Citation: 2004 FC 1643

Ottawa, Ontario, this 26^th day of November, 2004

Present:           THE HONOURABLE MR. JUSTICE von FINCKENSTEIN

BETWEEN:

                                                                ALLAN CHASE

                                                                                                                                               Plaintiff

                                                                           and

                                                    HER MAJESTY THE QUEEN

                                                                                                                                           Defendant

                                            REASONS FOR ORDER AND ORDER

[1]                This is an appeal from the decision of Prothonotary Lafrenière dated February 24, 2004, in which he struck out the Plaintiff's statement of claim as being beyond the jurisdiction of this Court and disclosing no cause of action.

BACKGROUND

[2]                The facts are set out in paragraphs 8 to 20 of the Prothonotary's decision and for convenience are here restated:

8. The plaintiff is a black male who has been employed since 1988 as a ship engineer by the Canadian Coast Guard ("CCG"), within the Department of Transportation and Department of Fisheries and Oceans. He was hired through the auspices of the Employment Equity Program, established under the Employment Equity Act, R.S.C. 1985, Chap. 23 (2nd Supp.).

9. On November 22, 2001, the plaintiff brought the present action seeking various relief based on allegations of direct and systemic discrimination in the workplace, and the defendant's negligence and breach of duty in failing to take reasonable steps to prevent racial bigotry and intolerance, and to ameliorate the condition of inequality, in the workplace. The allegations made by the plaintiff cover practically his entire period of employment with CCG. The plaintiff seeks both declarations and damages for negligence, breach of duty of care, breach of s.15(1) of the Charter of Rights and Freedoms (the "Charter"), intentional infliction of mental harm and breach of the employer's fiduciary duty of care.

10. One of the plaintiff's main allegations is that he was denied an indeterminate position back in 1996, although it had been promised to him. Prior to May 19, 1995, employees with five years of continuous service would automatically achieve indeterminate status. However, over the course of his employment with the CCG, the plaintiff failed to obtain indeterminate status since he only worked intermittently as a casual employee, or under a fixed term contract as a term employee.

11. In his first seven years of service, the plaintiff had eleven breaks in service, rendering him ineligible for indeterminate status. The plaintiff did, however, have three relatively lengthy periods of successive term appointments. One such period extended from March 16, 1994 to November 22, 1996.

12. In late February 1995, the Director General of the CCG sought to remedy the plaintiff's situation by putting into place a seven-point plan to facilitate his obtaining indeterminate status. Coincidentally, within weeks, the policy concerning automatic appointments to indeterminate status was frozen by Treasury Board. (...) The plaintiff was informed on October 1, 1996 that he would be laid off the following month.

13. The plaintiff was subsequently re-hired as a casual employee on seven separate occasions. (...) At the plaintiff's request, however, the Union of Transport Employees (the "Union") conducted an investigation into his employment status with CCG. A union official wrote to the plaintiff on June 24, 1997 to advise that the union was unable to assist the plaintiff. The official concluded his letter by stating that "it is most unfortunate that Mr. Chase did not formally request the assistance of his union at the time of his termination."

14. The plaintiff claims that by the time he learned that he would not to be permanently appointed, he could not grieve the cyclical employment strategy of the department. He claims that the Director General's plan to secure indeterminate status for him was a "pre-employment contract" made beyond the boundaries of the collective agreement.

15. The balance of the allegations in the statement of claim involve claims of personal and systemic discrimination. The plaintiff claims that he has experienced a racially hostile environment throughout his employment with the CCG, and that the department has knowingly allowed it to fester. (...) The plaintiff further alleges that some of his Caucasian colleagues, who were similarly situated, have achieved permanent status or have been promoted, amounting to differential application of the law, contrary to s.15(1) of the Charter. (...)

16. The plaintiff was hired as a term employee on March 31, 1999 and maintained his term status until March 31, 2002. On November 10, 2000, while a member of the bargaining unit, the plaintiff filed a grievance claiming "racial discrimination contrary to Article 19 of the collective agreement." The plaintiff presented another grievance on February 6, 2001 complaining that "... I am out of all my leave credits on February 7, 2001, due to absence of work caused by discriminatory action..." Both of the plaintiff's grievances were denied at the third and final level of the grievance process and were then referred to adjudication before the Public Service Staff Relations Board ("PSSRB").

17. On June 12, 2002, on the advice of his Union, the plaintiff contacted the Canadian Human Rights Commission ("CHRC"). As an aside the Federal Court of Appeal in Canada (Attorney General) v. Boutilier, [2000] 3 F.C. 27 (C.A.) ("Boutilier") held that Parliament intended for the Canadian Human Rights Commission ("CHRC") to act as a gatekeeper in dealing with human rights matters for PSSRA employees. (...) The CHRC wrote to the plaintiff on June 14, 2002 informing him that it was closing his file because the alleged discriminatory incidents he had described occurred on October 18, 2000, outside the CHRC's one year limitation period. The incidents are particularized at subparagraphs 9(g) and (h) of the statement of claim.

18. On or about June 26, 2002, the Union requested that the PSSRB "remove" the two grievances from the proposed hearing schedule of September 2002 because they were still awaiting a section 41(1) order from the CHRC.

19. The CHRC wrote to the plaintiff on January 21, 2003 and provided him with a blank complaint form. The CHRC cautioned that "pursuant to section 41(1)(e) of the Act, the Commission may refuse to deal with a complaint filed more than one year after the alleged discriminatory acts." On May 26, 2003, the plaintiff was informed that a recommendation would be made that the CHRC not deal with his complaint on the basis of section 41(e) and section 41(c).

20. The plaintiff wrote to the PSSRB to inquire into the status of his grievances. He was advised that the grievances had been removed from the schedule because the Union was still awaiting a section 41 order from the CHRC. It appears, therefore, that the grievances were never withdrawn. "

[3]                A chart setting out the unusual employment history of the Plaintiff is attached as Annex A.

PROTHONOTARY'S DECISION

[4]                The essence of Prothonotary Lafrenière's findings are as follows:

a)          There is a whole statutory scheme dealing with employee grievances consisting of the PSEA, the PSSRA, the FAA and collective agreements made pursuant thereto.

b)         Any discrimination covering prohibited grounds will be dealt with by the CHRC under the CHRA.

c)         The Plaintiff here is seeking relief from systemic discrimination, any such relief should have been sought while he was an employee, through the grievance procedure set out in the collective agreement.

d)         The Plaintiff was an employee when the memo suggesting regularizing his position was written on March 3, 1993. He was also an employee when his term was not renewed on November 21, 1996 (allegedly in contravention of the March 3, 1993 memo). He could and should have grieved the failure to implement the non-implementation of the memo then.

e)         The failure of the non-renewal of his term cannot be grieved by virtue of s. 25 of the PSEA.

f)          Section 7 of the Charter cannot be invoked on the facts of this case dealing with systemic discrimination. Section 12 also does not come into play, given that there is no discrimination on prohibited or analogous grounds, merely one procedure for all unionized employees and a different one for non-unionized ones.

g)         Section 17(1) of the Federal Court Act has no application as it is qualified by "except as otherwise provided in this Act and any other Act" and the PSSRA provides otherwise.

[5]                Consequently Prothonotary Lafrenière dismissed the Plaintiff's claim without leave to amend.

ISSUES

[6]                The Plaintiff now appeals the Prothonotary's decision and raises the following three issues:

i) Did the Prothonotary err when he held that the Court had no jurisdiction to entertain the claim by virtue of the legislative scheme established by the PSSRA, given the fact that the Plaintiff was not covered by the Act 30% of his working career when he worked either under an Exclusion Order or as a term on probation;

ii) Was the Prothonotary correct in setting aside the Plaintiff's Statement of Claim which sought to challenge the systemic use of the Exclusion Orders and term appointments as infringing the Plaintiff's equality rights under section 15 of the Charter; and

iii) Did the Prothonotary err when he held that the 'agreement' between the Plaintiff and the Director General did not constitute an exception to the exclusive jurisdiction model developed in Weber v. Ontario Hydro [1995] 2 S.C.R. 929, 125 D.L.R. (4^th) 583 ("Weber")?

STANDARD OF REVIEW

[7]                Both parties agree that for the purposes of this motion I must apply the standard of review set out in Merck & Co. v. Apotex Inc., [2003] F.C.J. No. 1925 at para. 19 (F.C.A.) by Dècary, J.A., namely:

Discretionary orders of Prothonotaries ought not be disturbed on appeal to a judge unless:

a) the questions raised in the motion are vital to the final issue of the case, or

b) the orders are clearly wrong, in the sense that the exercise of discretion by the Prothonotary was based upon a wrong principle or upon a misapprehension of the facts.

ISSUE i: Did the Prothonotary err when he held that the Court had no jurisdiction to entertain the claim by virtue of the legislative scheme established by the PSSRA, given the fact that the Plaintiff was not covered by the Act 30% of his working career when he worked either under an Exclusion Order or as a term on probation?

[8]                Even though the Plaintiff repeatedly "slipped in and out of the code", there were periods of time during which he was covered by the collective agreement and could use the grievance process contained therein. Annex A reveals that out of 3,840 days he was covered by collective agreements for 2,790 days. Section 2 of the PSSRA defines "employee" and excludes term employees (if less than 3 months) and casual employees. The Plaintiff had eleven term appointments during which he was an employee and therefore covered by the collective agreement, and capable of grieving.

[9]                Section 91 of the PSSRA states that an employee who feels aggrieved may file a grievance. The Plaintiff did, in fact, file two grievances, one in November of 2000 and a second in February of 2001. Both of these grievances were denied at the third level and referred to adjudication before the PSSRB. His Union advised him to contact the CHRC due to the fact that the PSSRA grievance procedure is only available if the CHRC invokes section 41(1) of the CHRA to direct that the complainant use the grievance procedure. In examining the chronology of events, it appears that the Plaintiff's claim was ultimately denied at the third level and the CHRC never invoked section 41(1) of the CHRA to allow the complaint to proceed to the PSSRA grievance procedure. The fact that a grievance is denied does not change the fact that the subject matter of the grievance is covered by the collective agreement.

[10]            The Spreme Court developed the model of exclusive jurisdictions for dealing with the conflicting jurisdictions between dispute resolution processes under labour laws and court actions in Weber v. Ontario Hydro [1995] 2 S.C.R. 9299. At paragraph 58 the model is succinctly summarized as follows:

To summarize, the exclusive jurisdiction model gives full credit to the language of s. 45(1) of the Labour Relations Act. It accords with this Court's approach in St. Anne Nackawic. It satisfies the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions. It conforms to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlapping litigation in the courts: see Ontario (Attorney-General) v. Bowie (1993), 110 D.L.R. (4th) 444 (Ont. Div. Ct.), per O'Brien J.

[11]            This principle applies equally to labour relations in the public sector. In Johnson Paquette v. Canada, [2000] F.C.J. No. 441 (F.C.A), the Court relying Weber supra states at para 7:

labour relations legislation provides a code governing all aspects of labour relations which would be undermined by the availability of a concurrent forum to which the legislature has not assigned the task of dealing with such matters (...) (T)he availability of concurrent forums would undercut the regime of exclusive arbitration which lies at the heart of all Canadian Labour Statutes, and impede the quick and economical resolution of labour disputes.

[12]            In this case, the Plaintiff's claims are directly related to "matters arising from the collective agreement" and the dispute arises from an alleged violation of the collective agreement.

[13]            The Prothonotary did not err in determining that the nature of the Plaintiff's dispute is related to an overall environment of racism in his workplace, as opposed to only individual incidents. The Plaintiff could have used his union to his advantage during 70% (amounting to 2,790 days) of his working career when he did not work either under an Exclusion Order or as a term on probation.

[14]            ISSUE ii: Was the Prothonotary right in setting aside the Plaintiff's Statement of Claim which sought to challenge the systemic use of the Exclusion Orders and term appointments as infringing the Plaintiff's equality rights under section 15 of the Charter?

[15]            The Plaintiff submits that the Prothonotary erred in assessing his claim that Exclusion Orders and term appointments are discriminatory. He states that he did not intend to grieve his term appointment but sought to argue the manner in which Exclusion Orders and term appointments were applied to him. The Plaintiff claims these Orders and appointments are used to relegate visible minorities to short term or sporadic employment.

[16]            The Plaintiff cites Roncarelli v. Duplessis (1959), 16 D.L.R. (2d) 689 and asserts that a law can be applied in a discriminatory manner, even if it is not written with such a purpose. He submits that there must be equal protection under the law.

[17]            Prothonotary Lafrenière pointed out that it was Parliament's intention that the termination of term appointments not be grieved. He also noted that the Weber model of exclusive jurisdiction applies to Charter claims as well. The Court, in Weber supra had held that statutory tribunals, as well as labour arbitrators, may be courts of competent jurisdiction and therefore have the power to grant Charter remedies, as long as they are able to grant the remedies sought and have jurisdiction over the parties.

[18]            In support of his conclusion, Prothonotary Lafrenière cited Snider, J. in Pieters v. Canada, 2004 F.C. 26 in which she said:

(to claim a s. 15 violation, the individual) must show that there has been a discriminatory distinction, based on enumerated or analogous grounds, and that the law in question has a "discriminatory" purpose or effect. While denying Mr. Pieters the right to bring this action may constitute treatment that is different, it is not a distinction that is based on an enumerated or analogous grounds. The basis of my decision in this case is that Mr. Pieters, as a unionized employee of the federal public service, cannot bring this action to the Federal Court. In no way, am I treating him any differently than other unionized federal public servants. Nowhere in the Charter or in the jurisprudence does an enumerated or analogous ground exist for unionized federal public servants. In this case, Mr. Pieters' membership in an historically disadvantaged group is simply not relevant. Accordingly, striking his claim ought not to have the Charter consequences he alleges.

[19]            While these observations are correct, they do not directly address the Plaintiff's point. The Plaintiff's contention is that the Defendant hires Blacks on a casual basis or on a term employment basis but hires similarly situated Caucasians in indeterminate positions. These actions clearly predate any employer/employee relationship. The collective agreement only applies to employees, i.e. those with indeterminate status or term employees beyond their probationary period. Here, the Plaintiff's concerns relate to actions of the CCG when hiring casual or term employees.

[20]            The Plaintiff does not allege that the PSSRA or the PSEA are discriminatory laws, rather that they are applied in a discriminatory manner at the initial engagement level.    Such a complaint could be taken to the CHRC but it can also be the subject matter of an action in this court. I can see nothing in the scheme enshrined by Weber that would prevent such an action.

[21]       The Prothonotary erred in viewing this matter as a question of employment and alleged

discriminatory law, as opposed to regarding it as an issue of whether or not the law, a non-discriminatory law, is applied in a discriminatory fashion when hiring individuals for government service. This is not a matter that can be grieved and consequently there is no bar to this issue being brought before this court.

[21]            ISSUE iii: Did the Prothonotary err when he held that the 'agreement' between the Plaintiff and the Director General did not constitute an exception to the exclusive jurisdiction model developed in Weber?

[22]            The Plaintiff refers to the Weber case stating that there are exceptions to its rule and the Court left "residual room". The agreement was made prior to an employment contract with the government and therefore it is not subject to the collective agreement. The Plaintiff submits that this fact was recognized by the Union when it refused to handle his grievance because the agreement for promotion was not made through the traditional protocol. Consequently, the agreement and its breach did not arise out of the collective agreement and should be categorized as a breach of contract.

[23]            The Plaintiff was a term employee beyond probation when the Director General signed the memo suggesting indeterminate status for him. However, only weeks later, the policy regarding automatic appointments to indeterminate status was frozen by Treasury Board.

[24]            Unfortunately, the Plaintiff appears to have been a victim of bad timing in this respect. The Plaintiff was covered by the collective agreement from March 16, 1994 to November 22, 1996. The memorandum evidencing the promise to make the plaintiff an indeterminate employee is dated March 3, 1995 and reflects discussions that took place on February 28, 1995. The Director General of the CCG Maritime Region who allegedly made the promised retired shortly thereafter and the March 3, 1995 was never implemented. Instead his term employment was terminated as of November 22, 1996 due to reduced crew requirements. Thus the promise was made while he was employed as a term and was covered by a collective agreement. He had ample time ( March 3, 1995 to November 22, 1996) to grieve the failure to carry out the promise evidenced in March 3, 1995 memorandum. As he failed to raise the issue in time, his union informed him on June 24, 1997, that they were unable to assist him and he should have formally requested their assistance at the time of termination or prior thereto. It is unfortunate that the Plaintiff chose to wait before speaking to to his union but that avenue was and remains the appropriate course of action, and he must bear the consequences of his delay.

[25]            While the complaint of the Plaintiff regarding the failure to implement the promise does not fall under the collective agreement it could have been grieved under s. 91(1) of the Public Service Staff Relations Act R.S.C. 1985, P-35 which provides as follows;

91. (1) Where any employee feels aggrieved      

(a) by the interpretation or application, in respect of the employee, of    

(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or                

(ii) a provision of a collective agreement or an arbitral award, or           

(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),                

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.                      

(2) An employee is not entitled to present any grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies, or any grievance relating to any action taken pursuant to an instruction, direction or regulation given or made as described in section 113.        

(3) An employee who is not included in a bargaining unit for which an employee organization has been certified as bargaining agent may seek the assistance of and, if the employee chooses, may be represented by any employee organization in the presentation or reference to adjudication of a grievance.   

(4) No employee who is included in a bargaining unit for which an employee organization has been certified as bargaining agent may be represented by any employee organization, other than the employee organization certified as bargaining agent, in the presentation or reference to adjudication of a grievance.(Underlining added)

[26]            Given the fact that the alleged promise to make the Plaintiff an indeterminate employee occurred while he was already a term employee for nearly a year, it is hard to see how this could be considered analogous to a pre-employment contract. Accordingly, the arguement of the plaintiff in respect of this issue cannot succeed.

AMENDING STATEMENT OF CLAIM

[27]            The Plaintiff has asked to be allowed to amend his pleadings if successful on any one of his three points of appeal. Given that he was successful in respect of issue ii, I do not see why such an amendment should not be granted at this time.

                                               ORDER

THIS COURT ORDERS that:

1.         The Order of Prothonatoary Lafrenière of February 24, 2004 is set aside.

2.          Clauses 1, 2(a)(i), 2(a)(iv), 2(a)(v), 4 to 11, 15-18 inclusive of the Statement of Claim dated November 22, 2001 is struck.

3.         The Plaintiff shall submit to this Court, no later than December 17, 2004, a revised version of Statement of Claim amending, in line with the reasons set out above, the portions of statement of claim not struck out.

                                                                                                   Judge                        

ANNEX A

CHART SHOWING DURATION OF CONTACTS, EMPLOYMENT STATUS, DAYS WORKED AND DAYS COVERED BY COLLECTIVE AGREEMENT

ALLEN CHASE: EMPLOYMENT BY CANADIAN COAST GUARD

                                     FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-2074-01

STYLE OF CAUSE: ALLAN CHASE v. HER MAJESTY THE QUEEN

PLACE OF HEARING:                                 TORONTO

DATE OF HEARING:                                   NOVEMBER 22,2004

REASONS:              THE HONOURABLE MR.JUSTICE

VON FINCKENSTEIN

DATED:                     NOVEMBER 26, 2004

APPEARANCES:

APPLICANT:             MYRON W. SHULGAN

RESPONDENT:         JACQUELINE DAIS-VISCA

SOLICITORS ON THE RECORD:                  STEVEN FLAHERTY

DAVIES BAGAMBIIRE

TORONTO, ONTARIO

FOR PLAINTIFF

KATHERINE HUCAL

DEPARTMENT OF JUSTICE

FOR DEFENDANT