Date: 20000407
Docket: A-729-98
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
MALONE J.A.
BETWEEN:
BRENDA MARIE JOHNSON-PAQUETTE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
Heard at Ottawa, Ontario, Tuesday, April 4, 2000
Judgment delivered at Ottawa, Ontario, Friday, April 7, 2000
REASONS FOR JUDGMENT BY: NOËL J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
MALONE J.A.
Date: 20000407
Docket: A-729-98
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
MALONE J.A.
BETWEEN:
BRENDA MARIE JOHNSON-PAQUETTE
Appellant
and
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
NOËL J.A.
[1] In my view, the motions Judge came to the correct conclusion when she held that the appellant's action could not proceed before the Trial Division of this Court having regard to the dispute resolution process which was available to her and of which she availed herself under the Public Service Staff Relations Act (PSSRA).
[2] In Weber v. Ontario Hydro, the Supreme Court held that where a collective agreement provides an arbitrator with jurisdiction over a dispute, and another forum is not expressly provided for by legislation, the arbitrator shall have jurisdiction exclusive of the Courts:
Underlying both the Court of Appeal and Supreme Court of Canada decisions in St. Anne-Nackawic is the insistence that the analysis of whether a matter falls within the exclusive arbitration clause must proceed on the basis of the facts surrounding the dispute between the parties, not on the basis of the legal issues which may be framed. The issue is not whether the action, defined legally, is "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.
[3] In this instance, the applicant initially chose the grievance process to settle the dispute with her employer and co-workers. Regardless of how one characterizes the cause of action which she now advances in her statement of claim, it obviously arose out of the facts which formed the basis of the four grievances which she filed under the PSSRA and which were all rejected in the course of a binding decision at the final level of the grievance process.
[4] The appellant sought to distinguish Weber on the basis that in the present case, the grievance process did not entitle her to proceed to adjudication whereas this step was available under the collective agreement which was in issue in Weber. This she says is a material difference which authorizes this Court to disregard the rule set out in Weber.
[5] I first note that it is inaccurate to say that third party adjudication was not available to the appellant in this instance. She had access to adjudication according to the dispute resolution process in place, subject to meeting the conditions prescribed in subsection 92(1) of the Act and satisfying her union that the matter should proceed to adjudication pursuant to subsection 92(2).
[6] More importantly however, this grievance procedure is the dispute resolution process which was adopted by the parties to the collective agreement to resolve employment related disputes of the nature raised by the appellant in her grievance. The appellant adhered to the collective agreement and availed herself of that process. This takes the present matter squarely outside the ambit of the decision of the Ontario Court of Appeal in Danilov v Canada (Atomic Energy Control Board) where the Court noted that unlike the present situation, the plaintiff in that case had not agreed through collective bargaining to have the grievance procedure in the PSSRA serve as his dispute resolution mechanism.
[7] The appellant also seeks to distinguish Weber on the basis that the statutory language there in issue was framed in express terms making arbitration the only available remedy whereas the relevant provisions of the PSSRA are framed in permissive terms. In this respect, the language of the relevant provision in Weber was one of three self standing grounds which led the Supreme Court to conclude that concurrent proceedings were not available, the other two being that:
(1) 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;
(2) the 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.
[8] Both these policy considerations are extant and applicable to the labour dispute resolution processes provided for under the PSSRA. Furthermore, with respect to the absence of exclusionary language in the PSSRA, the Supreme Court, in Gendron v. Supply and Services Union of Public Service Alliance of Canada, Local 50052, with respect to a similar omission under the Canada Labour Code, stated:
While the legislation does not expressly provide that the Board has exclusive jurisdiction, it indicates that Parliament envisioned a fairly autonomous and specialized Board whose decisions and orders were to be accorded deference by the ordinary courts, subject only to review within the confines of the privative clause. As noted earlier, Parliament has provided the duty, the procedure for adjudicating an alleged breach, a wide array of remedies and a privative clause protecting the Board. It can be therefore assumed to have intended that the ordinary courts would have but a small role if any to play in the determination of disputes covered by the statute. [my emphasis]
[9] The Supreme Court therefore viewed the scheme adopted by Parliament under the Canada Labour Code as exhibiting an intent to exclude the role of the ordinary courts although there was no express language to that effect. It is significant, in my view, that Gendron was referred to in Weber as authority for the rejection of the concurrent model in labour relation disputes.
[10] Parliament's will to exclude the intervention of the courts in labour relation disputes may therefore be expressly stated or arise by necessary implication. Where, as is the case for the PSSRA, Parliament has, through legislation, adopted what is obviously intended as a full code for the resolution of labour disputes in a given sector of activity and has made the outcome of the legislated processes final and binding on those concerned, it would offend the legislative scheme to permit recourse to ordinary courts which have not been assigned with these tasks. In order to give effect to such schemes, Parliament must be taken as having excluded recourse to the ordinary courts.
[11] Section 17(1) of the Federal Court Act provides the trial division of 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". In my view, the motion Judge came to the correct conclusion in this instance when she held that the PSSRA provides otherwise.
[12] The appeal should be dismissed with costs.
[13]
"Marc Noël"
J.A.
"I agree.
Gilles Létourneau J.A."
"I agree.
Brian Malone J.A."
[1] R.S.C. 1985, c. P-35.
[1] (1995), 125 D.L.R. (4th) 583 (s.c.c.).
[1] Idem at 599. The decision of the Court is unanimous on this point. The Supreme Court in Weber was divided only insofar as the arbitrator's jurisdiction to award a charter remedy.
[1] Section 96(3) of the PSSRA provides that the decision of a grievance officer at the final level is final and binding under the Act.
[1] All four grievances arise from the same events and set of facts and although the two grievances dealing with harassment per se arguably come under section 91 of the PSSRA rather than the collective agreement (clause M-16.01) the two grievances alleging the employer's failure to take appropriate action clearly come under the collective agreement (clause M-38.02).
[1] A process that could have been made the subject of judicial review had the appellant so chosen.
[1] [1999] O.J. No. 3735, Docket No. C.31965.
[1] Idem at para. 9. The Court noted in its reasons:
Where the statutory grievance procedure is neither agreed to, nor is a mechanism providing final and binding adjudication of this dispute, that procedure cannot be said to have exclusive jurisdiction over the dispute to the exclusion of the courts.
[1] Section 45(1) of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2.
[1] Sections 91 and 92 of the PSSRA.
[1] Supra note 2 at 599 per McLachlin J. quoting from St. Anne-Nackawic Pulp and Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704.
[1] St. Anne-Nackawic Pulp and Paper Co., supra note 10 at 718. See also the recent decision of the Supreme Court in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] S.C.J. No. 15 at para. 39. This Court applied this principle by reference to the PSSRA in Bouchard v. Canada (Department of National Defence), [1999] F.C.A. No. 1807, A-687-98, November 1999 at paras. 24 and 25 and opined that certain disputes under the PSSRA could not be entertained before the ordinary courts.
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