Chase v. Canada, 2004 FC 273

Date: 20040224

Docket: T-2074-01

Citation: 2004 FC 273

Toronto, Ontario, February 24^th, 2004

Present:           Roger R. Lafrenière, Esquire                                     

Prothonotary

BETWEEN:

                                                                     ALLAN CHASE

                                                                                                                                                          Plaintiff

                                                                                 and

                                                        HER MAJESTY THE QUEEN

                                                                                                                                                      Defendant

                                               REASONS FOR ORDER AND ORDER

[1]                 This is a motion brought by the defendant pursuant to Rule 221 of the Federal Court Rules, 1998, and section 17(1) of the Federal Court Act, R.S.C. 1985, c. F-7 for an Order striking out the plaintiff's claim, without leave to amend, on the grounds that it is beyond the jurisdiction of this Court and therefore discloses no reasonable cause of action.

[2]                 This motion raises, yet again, the scope of the exclusive jurisdiction model for labour disputes established in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 ("Weber"). The defendant submits that Parliament, by virtue of section 91 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the "PSSRA"), has ousted the jurisdiction of the Court over disputes arising between members of the Public Service and the Federal Government in its capacity as employer. The defendant contends that the allegations in the statement of claim arise expressly or inferentially from the comprehensive statutory scheme of the PSSRA.

[3]                 The plaintiff responds that he has a viable cause of action, notwithstanding the apparent bar created by operation of the PSSRA. The plaintiff submits that as "a person employed on a casual basis", he was during material times not an "employee" as that term is defined in the PSSRA. He maintains that since he was denied the right to grieve work-related matters, he has recourse to a remedy from this Court.

[4]                 The key question on this motion is whether the essential character of the dispute, in its factual context, arises expressly or inferentially from a statutory scheme.

[5]                 The motion to strike in this matter was heard on January 13, 2003, and was taken under advisement. Before a decision could be rendered however, the plaintiff sought leave to adduce further evidence to establish the status of certain grievances that had been referred to adjudication. Leave to adduce the additional evidence was granted by order dated April 22, 2003. The hearing of the motion was re-opened to allow the parties to address the newly admitted evidence, as well as the impact of the intervening decision of the Federal Court of Appeal in Vaughan v. HMQ, [2003] F.C.A. 76 ("Vaughan"). Leave to appeal this decision has since been granted by the Supreme Court of Canada.

The Facts

[6]                 On a motion to strike, the material factsin a statement of claim must be taken as true. Although Rule 221(2) provides that no evidence can be adduced on a motion for an order under paragraph (1)(a), where an objection is taken to its jurisdiction, the Court must be satisfied that there are jurisdictional facts or allegations of such facts supporting an attribution of jurisdiction. Evidence is therefore admissible on a motion contesting the jurisdiction of this Court: MIL Davie v. Hibernia Management and Dev. Co. (1998), 226 N.R. 369 (F.C.A.).

[7]                 The material allegations made in the statement of claim and the relevant facts adduced by the parties on this motion may be briefly stated as follows.

[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 (2^nd 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. Although certain steps were taken to implement the Director General's plan to convert the plaintiff's employment status over the next few months, it did not succeed, largely due to a massive downsizing exercise undertaken by the employer. 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. He claims that he could not grieve the "permanent job offer" because it had not been made through the usual CCG competition channels, and he was not a member of the union. 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. Particulars of the incidents of racism to which the plaintiff was allegedly subjected are contained at paragraph 9 of the statement of claim. The majority of them date back to his first three years of employment. 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. The plaintiff maintains that, once again, he was unable to grieve any of these matters through the collective agreement, as many of the incidents took place while he was a casual and not a member of the union, while others took place while he was a term employee, but ineligible to grieve.

[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 "¼ I am out of all my leave credits on February 7, 2001, due to absence of work caused by discriminatory action¼" 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.) ("Boutillier") 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 Court stated that, in handling a complaint: "the CHRC may, if it chooses, send the matter to grievance pursuant to subsection 41(1) of the Canadian Human Rights Act, R.S.C., 1985, c. H-6 ("CHRA")." As a result, the PSSRA grievance procedure is only available if the CHRC invokes s. 41(1) of the CHRA to direct that the complainant use the grievance procedure. 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.

Applicable Legal Principles

[21]            On a motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it discloses no reasonable cause of action, and may order the action be dismissed: Federal Court Rules, 1998, Rule 221(1)(a).

[22]            The test for striking a pleading on the ground that it fails to disclose a reasonable cause of action is: "assuming that the facts as stated in the statement of claim can be proved, is it "plain and obvious" that the plaintiff's statement of claim discloses no reasonable cause of action?": Hunt v. Carey Canada Inc., [1990] 2 S.C.R. 959. Where the Court has no jurisdiction to deal with the matters raised in the statement of claim, the pleading must necessarily be struck.

Federal Statutory Scheme

[23]            There is an array of mechanisms in the federal public service to resolve disputes between individuals and the employer, including complaints and grievances dealt internally by individual departments, complaints to the CHRC, complaints and appeals to the Public Service Commission of Canada, and referrals to adjudication to the PSSRB. The Public Service Employment Act, R.S.C. 1985, c. P-33 (the "PSEA"), the Financial Administration Act, R.S.C. 1985, c. F11 (the "FAA") and the PSSRA are the main statutes that govern labour relations between Her Majesty the Queen in right of Canada and her employees.

[24]            The PSSRA recognizes collective bargaining and the right to present grievances and provides the legal framework or "rules of the game" for labour management relations in the federal public service. A grievance is defined in section 2(1) of the PSSRA as "a complaint in writing presented in accordance with this Act by an employee on his own behalf or on behalf of the employee and one or more other employees." The definition of "employee" excludes, however, certain classes of workers from the definition of "employee." Aside from those occupying managerial or confidential positions, it also excludes part-time, term and casual employees. Excluded employees are not afforded the protection and coverage of collective bargaining legislation, but are instead governed by the common law.

[25]            The PSEA is administered by the Public Service Commission ("PSC"). Its purpose is to ensure that appointments to or from within the Public Service are based on selection according to merit, as determined by the PSC. Section 21 of the PSEA provides a mechanism by which an appointment to a position in the public service can be appealed. Section 24 also codifies the principle that the term of employees of the government is during the pleasure of Her Majesty.

[26]            The FAA makes the Treasury Board responsible for personnel management in the public service of Canada on behalf of Her Majesty the Queen. This includes the determination of the terms and conditions of employment (s. 7(1)(e)) as well as powers with respect to personnel management (s. 11(2)).

The Principle of Exclusive Jurisdiction in Weber

[27]            In this motion, the Defendant argues that the Court has no jurisdiction to entertain the Plaintiff's claim on the basis that the PSSRA constitutes a complete code for governing workplace relations between the Crown and its employees. The principle of exclusive jurisdiction was enunciated by the Supreme Court of Canada in Weber and precludes actions in the courts where a collective agreement governs the relationship between the parties.

[28]            This Court has repeatedly held that the PSSRA is a complete code governing relations between Her Majesty and Her employees. The recent decision of the Federal Court of Appeal in Vaughan simply reaffirms this point. The question in that case was whether the appellant, a federal employee, was obliged to pursue his claim through the grievance procedure set out in section 91 of the PSSRA, or whether he could elect to pursue his claim through an action launched in the Trial Division. The Federal Court of Appeal concluded that Parliament, by virtue of section 91 of the PSSRA, had ousted the jurisdiction of the Court over the dispute in issue, as the dispute arose expressly or inferentially from a statutory scheme.

[29]            The plaintiff acknowledges that he was governed by a collective agreement during certain periods of his employment. Section 18.02 of the relevant collective agreement provides that, subject to section 91 of the PSSRA, an employee who feels aggrieved by the interpretation or application of a provision of a collective agreement, is entitled to present a grievance. This right is subject to the limitation that "no administrative procedure for redress is provided in or under an Act of Parliament" and the employee grievance is approved and represented by the employee's bargaining agent. Accordingly, if there is another administrative procedure provided by or under any Act of Parliament to deal with the employee's specific complaint such procedure must be followed.

[30]            The defendant submits that the governing collective agreement specifically dealt with the issue of discrimination at Article 19. As a result, if the plaintiff's complaints can be addressed at all, they must be brought under the PSSRA or, for matters involving discrimination on a prohibited ground, under the CHRA: Vaughan, supra; Pieters v. Canada, [2001] F.C.J. No.769 (F.C.T.D.), [2001] F.C.J. No. 1756, 2001 F.C.A. 355 (upheld); Johnson Paquette v. Canada, [2000] F.C.J. No. 441 (F.C.A.); Marinaki v. Canada, [2001] F.C.J. No. 1920 ; Canada v. Boutilier, supra; Townsend v. Canada, [1994] F.C.J. No. 214.

[31]            The plaintiff responds that the Federal Court can assume jurisdiction to hear this matter because the PSSRA is not a complete code which governs relations between Her Majesty and all Her workers. Rather, it is only a complete code for "employees" of the federal public service. Among the classes of workers excluded from the PSSRA are "casual workers" and "term employees with less than 90 days of service."

[32]            The plaintiff submits that the Courts have recognized that exclusion from the domain of the PSSRA effectively uncouples "workers" from the code. In Yearwood v. Canada (Attorney General), [2002] B.C.J. No. 1603 ("Yearwood"), the plaintiff was allowed to proceed with his civil action because he was an excluded management employee under section 2(1) of the PSSRA. In rendering his decision, Prowse J. stated "unlike the plaintiff in Johnson-Paquette, Mr. Yearwood was neither covered by the collective agreement, nor did he have any right of access to adjudication."    A similar result was reached in Bell v. Canada (Transport), [2002] N. J. No. 27 ("Bell"), where the Newfoundland Court of Appeal allowed a managerial employee to sue for breach of contract.

[33]            The plaintiff submits that it follows that he has a right of access to use the Courts in respect of his complaints of racism that occurred during the intervals that he was not covered by the code set out under the PSSRA.

[34]            In my view, the Yearwood or Bell decisions are of little assistance since they dealt with employees that were clearly excluded from the bargaining unit and had no alternative recourse. The twist in this case is that the plaintiff was not consistently governed by a collective agreement. One must look, therefore, not to the legal characterization of the alleged wrong, but to the facts giving rise to the dispute. Otherwise, it would leave it open to innovative pleaders to evade the legislative prohibition on parallel court actions by raising new and imaginative causes of action: Weber at p. 955.

[35]            According to the plaintiff, most of the instances of direct discrimination occurred while the plaintiff was not protected by the collective agreement. However, while the plaintiff was occasionally not covered by the collective agreement, there were significant periods of time when he could have exercised his rights under the collective agreement and had access to the grievance procedure. There is no dispute that the incidents of racial slurs outlined at paragraphs 9(a), (b), (c) and (e) in his statement of claim occurred at a time when the plaintiff was not covered by the collective agreement. However, the relief the plaintiff is seeking relates to systemic discrimination - a pattern of harassment and discrimination over time, and not the individual instances of alleged racism.

[36]            Moreover, the plaintiff submits that his agreement with the Director General is similar to a pre-employment contract because it was made outside the boundaries of the collective agreement and he relied upon it to his detriment. This is a recharacterization however of the allegations contained at paragraphs 11 to18 of the statement of claim in which the plaintiff essentially alleges that the denial of promotions or indeterminate status and the termination of his acting assignment were caused by systemic racism and discrimination on the part of the CCG. Such allegations clearly could have been the subject of a grievance or complaint pursuant to Article 19 of the collective agreement. At the time the Director General devised a plan to secure indeterminate status for the plaintiff, the plaintiff was a term employee and member of the bargaining unit. He was also an employee within the meaning of the PSSRA when his employment was terminated on November 21, 1996.

[37]            As for the plaintiff's concerns regarding the deployment of casual and term contracts, the plaintiff may very well have been precluded from grieving the employer's hiring practices because he was not subject to a termination under subsection 92(1) of the PSSRA - rather his employment came to an end at the expiration of a specified term pursuant to section 25 of the PSEA. It remains that Parliament had specifically barred an employee's right to grieve the termination of term appointments.

[38]            In this case the plaintiff also makes claims for negligence, breach of duty of care, breach of s.15(1) of the Charter, intentional infliction of mental harm and breach of fiduciary duty of care arising out of allegations of discrimination. The plaintiff also seeks various forms of declaratory relief. Looking behind the plaintiff"s legal characterization of the issues, I conclude that the essential character of his claim relates to the allegations of racial harassment, as well as localized and systemic discrimination arising in the workplace. All of these claims arose out of his employment with the employer and could have been pursued through the grievance mechanism provided in the PSSRA, a complaint under the CHRA, or a complaint under the PSEA.

[39]            The plaintiff has, in fact, chosen the grievance process to resolve his dispute with his employer and co-workers. Regardless of how the plaintiff now chooses to characterize or frame the cause of action, it is clear it arose out of the facts that formed, or could have formed, the basis of grievances or complaints.

[40]            The Supreme Court of Canada has rejected the view that the Courts have concurrent or overlapping jurisdiction where the essential characterization of a dispute lies within the scope of a collective agreement. Concurrent regimes of arbitration and court actions would undercut the purpose of exclusive arbitration, that is at the heart of all Canadian labour statutes. That purpose is that disputes be resolved quickly and economically, with a minimum of disruption to the parties and the economy.

Infringement of the Charter

[41]            It is submitted on behalf of the plaintiff, that compelling him to resort to the exclusive model prescribed by the collective agreement, given the circumstances under which he was hired and employed, amounts to infringing upon his rights as guaranteed by section 7 of the Charter which reads as follows:

[42] I fail to see how section 7 of the Charter can apply to the facts of this case. Neither the plaintiff's life, liberty or security of the person are at play.

[43] The plaintiff also argues that if the statement of claim is struck, he would be deprived of the full array of rights that would be available to him pursuant to the Charter. The plaintiff submits that to compel him to resort to the collective agreement which does not protect him, and to deny him the opportunity to challenge in the civil courts the systemic rules, practices and procedures that have prevented him as some an Employment Equity employee in the CCG is discriminatory, and in violation of section 15 of the Charter. The plaintiff submits that the Weber doctrine should not be used to insulate the government from a charter challenge.

[44] I do not find any merit in these argument for the reasons set out by Snider, J. in a recent decision dealing with similar arguments. In Pieters v. Canada, 2004 F.C. 26, she concluded as follows:

As set out in a number of decisions (See for example: Law v. Canada, [1999] 1 S.C.R. 497, at 516; Lavoie v. Canada, [2002] 1 S.C.R. 769 at 780), persons claiming that there is a s. 15 violation 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 that he alleges.

[45] In any event, the Supreme Court of Canada in Weber also held that a labour arbitrator is a "Court of Competent Jurisdiction" for the purposes of interpreting and applying the Charter.

Section 17(1) of the Federal Court Act

[46] The plaintiff submits, in the alternative, that this Court has jurisdiction over the subject matter of the claim and is the proper forum within the meaning of s.17(1) of the Federal Court Act which states that:

[47] However, section 17(1) provides this Court with jurisdiction in all cases where relief is claimed against the Crown, "except as otherwise provided in this Act or any other Act". I am wholly in agreement with the conclusion of the Federal Court of Appeal in Johnson Paquette v. Canada, [2000] F.C.J. No. 441 (F.C.A.) that the PSSRA provides otherwise.

Conclusion

[48] For the above reasons, I conclude that the subject of this action is, was, or could have been, within the ambit and jurisdiction of the PSSRA and the collective agreement during the material times. Consequently, this Court is without jurisdiction to adjudicate the dispute.

[49] This motion is not one about public policy and human rights. It is about discerning the intent of the parties and the legislature on the appropriate forum for vindicating those rights. As was stated by the Federal Court of Appeal inBoutilier:

We are dealing here with responsible parties who maintain different views of the meaning of certain words in a statute and disagree about what is the preferred way to resolve a human rights dispute in the context of a collective agreement situation. In my view, Parliament has enacted a particular method of resolving these questions, a rather complex, costly and time-consuming method perhaps, but, until Parliament can be convinced to change its legislation, this Court will honour that legislative choice, as expressed consistently in our jurisprudence over the years.

[50] The plaintiff is not without a remedy. He may use the mechanisms carefully set out by Parliament, and may pursue his claim before the CHRC, or if authorized, before the PSSRB. It is clear that the plaintiff's two grievances have not been withdrawn, and are still pending. There is no evidence that these matters will not be scheduled for adjudication once the CHRC invokes s. 41(1) of the CHRA. In any event, even if third party adjudication is no longer available to the plaintiff, this court remains without jurisdiction to hear this claim.

[51] Although costs would normally follow the event, the parties may address me in writing on this issue within fourteen days, if unable to agree.

                                                  ORDER

THIS COURT ORDERS that

1.      The plaintiff's claim be dismissed, without leave to amend.

"Roger R. Lafrenière"

                                                                                               Prothonotary                  

                                       FEDERAL COURT

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                              T-2074-01

STYLE OF CAUSE:              ALLAN CHASE

                                                                                                        Plaintiff

and

HER MAJESTY THE QUEEN

                                                                                           Defendant

PLACE OF HEARING:                      TORONTO, ONTARIO

DATES OF HEARING:                      JANUARY 13 AND JULY 23, 2003

REASONS FOR ORDER

AND ORDER BY:                               LAFRENIÈRE P.

DATED:                                                 FEBRUARY 24, 2004

APPEARANCES:

SOLICITORS OF RECORD:                                                              

             FEDERAL COURT

Date: 20040224

Docket: T-2074-01

BETWEEN:

ALLAN CHASE

                                                  Plaintiff

and

HER MAJESTY THE QUEEN

                                              Defendant

REASONS FOR ORDER AND ORDER