Date: 19991122
Docket: A-687-98
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
LISE BOUCHARD,
Appellant,
AND:
DEPARTMENT OF NATIONAL DEFENCE
- and -
GEN. MAURICE BARIL,
NATIONAL DEFENCE HEADQUARTERS,
Respondents.
Hearing held at Montréal, Quebec, Wednesday, November 10, 1999
Judgment rendered at Ottawa, Ontario, Monday, November 22, 1999
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: DÉCARY J.A.
NOËL J.A.
Date: 19991122
Docket: A-687-98
LÉTOURNEAU J.A.
NOËL J.A.
BETWEEN:
LISE BOUCHARD,
Appellant,
AND:
DEPARTMENT OF NATIONAL DEFENCE
- and -
GEN. MAURICE BARIL,
NATIONAL DEFENCE HEADQUARTERS,
Respondents.
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] Was the Trial Division judge ("the judge") justified in concluding that the appellant did not choose the right procedural form to have her decision to resign from the federal Public Service reviewed? Similarly, was she right to conclude that the Federal Court had no jurisdiction since this was not a "decision", within the meaning of s. 18.1 of the Federal Court Act , to review the announcement made to the appellant by the Office of the National Defence Judge Advocate General that she could not be reinstated in her position?
[2] Those are the two questions before the Court, but to understand them and understand the conclusion at which we have arrived it is necessary to briefly review certain facts and the procedure used in dealing with them.
Facts and procedure
[3] The appellant, who represented herself, resigned the position of group stores clerk held by her at National Defence. On November 27, 1997 she told her employer she was prepared to take advantage of one of the early retirement programs offered by the federal government, and this was in fact done. Her position was eliminated and she was removed from the rolls of the Public Service on April 1, 1998.
[4] During her period of employment she had complained several times of harassment by her fellow workers and at her workplaces. She maintained that she was tired of fighting, was desperate and because of uncertain health due to harassment and a bad work climate she had resigned herself to taking early retirement. An internal investigation report by the Department of National Defence ("the Department") confirmed the likelihood of a connection between the events and the appellant"s precarious state of health (appeal case, page 93, paragraph d).
[5] After emerging from an environment she considered to be hostile, threatening and distressing, she on May 15, 1998, that is fifteen days after her position had been abolished, asked to be reinstated in her position, alleging that her decision to take early retirement was not a free and informed decision and she did not have the mental capacity to take such a decision in view of the events described above.
[6] Following her request for reinstatement she received from Lt. Col. Crowe of the Office of the Judge Advocate General on July 10, 1998 a letter of refusal, the following passage from which is particularly relevant to the case:
| I have discussed Ms. Bouchard"s case with administrators in the federal Public Service civilian personnel office. I must regretfully inform you that I have just learned that the Defence Department authorities handling the employment of civilian personnel have told me that there is no question of reinstating Ms. Bouchard in the federal Public Service or of paying her compensation. |
[My emphasis.]
[7] On July 27, 1998 the appellant filed an application for judicial review of this refusal stated in the letter of July 10, by which she sought reinstatement in her position, pecuniary compensation for the damage sustained and compensation for loss of employment.
[8] The respondents counter-attacked at once by filing a motion to strike the application for judicial review made by the appellant. The prothonotary Mr. Morneau allowed the respondents" motion in part. He concluded, contrary to the arguments made by the respondents, that the letter of July 10, 1998 telling the appellant of the Department"s refusal to reinstate her in her position was a decision within the meaning of s. 18.1 of the Federal Court Act , subject to a judicial review proceeding.
[9] However, he properly ordered that the appellant"s conclusions regarding financial compensation for the damage sustained and loss of employment be struck from the application for judicial review.
[10] The respondents appealed this decision and the judge allowed the appeal, considering that the said letter of July 10, 1998 did not contain a decision within the meaning of s. 18.1. Consequently, the Federal Court did not have jurisdiction ratione materiae to hear the application for judicial review.
[11] He further considered that the appellant had not used the proper procedural vehicle to have her decision to resign reviewed and quashed.
Analysis of decision
[12] An application to strike an application for judicial review is a proceeding which should be used in very exceptional cases and the Court can only dismiss an application for judicial review in a summary manner if it is so clearly improper as to be bereft of any chance of success (David Bull Laboratories v. Pharmacia Inc., [1995] 1 F.C. 588, at 600 (F.C.A.)). This is the very narrow and limited context in which the appeal at bar must be decided.
[13] I would further add that the respondents did not argue in this Court that the application for judicial review should have been dismissed on the ground that it disclosed no cause of action, and so was doomed to failure and should therefore have been struck out forthwith. They confined themselves to the two arguments adopted by the judge in dismissing the appeal.
[14] The Court does not have to decide at this stage on the actual merits of the appellant"s application for judicial review. The fact that she represented herself in such a procedural maze made her undertaking especially risky, and needlessly so. Having said that, I think she was right when she argued that the judge misunderstood the nature and scope of the letter of July 10, 1998 telling her of the Department"s refusal to reinstate her in her position.
[15] To begin with, there is no doubt that the letter contained a negative decision on the appellant"s reinstatement request which could affect her rights.
[16] Secondly, this decision did not come from Lt. Col. Crowe, acting as a federal board, commission or other tribunal, as the prothonotary and the judge seem to think, but clearly from the authorities of the Department handling the employment of civilian personnel after discussion and consultation with those responsible for civilian personnel in the federal Public Service. In other words, the decision was taken by the Department in conjunction with the federal Public Service authorities. The Department is a federal board, commission or other tribunal, or under the definition of s. 2(1) of the Federal Court Act, a body exercising or purporting to exercise jurisdiction conferred by or under an Act of Parliament. The refusal by the Department"s personnel division to reinstate the appellant, though it may prove to be correct, does not thereby cease to be a decision of a federal board, commission or other tribunal.
[17] Further, contrary to what the judge thought, the Department"s decision not to reinstate the appellant in her position is no less a decision because it was or may have been brought about by the appellant"s unilateral act of resigning. In other words, the fact that the Department felt it was justified in not reinstating the appellant as she had resigned of her own accord does not mean that the decision not to reinstate her is not a decision.
[18] This leads me to the second conclusion adopted by the judge, a conclusion which he stated without amplification, namely that the application for judicial review filed by the appellant was not the proper vehicle for having her unilateral act of resignation declared null and void.
[19] In this connection the respondents argued that the proper remedy was an action to declare the resignation void which the appellant should have initiated in the Superior Court of Quebec, which rules out the Federal Court. They based their arguments on the Quebec Court of Appeal judgment in Tardif v. Montréal (Ville)1 in which a similar action was brought but dismissed as the employee had not finally established his disability at the time he resigned his position.
[20] With respect, I think that the appellant"s situation in the case at bar is different as, unlike what happened in Tardif , where Mr. Tardif resigned of his accord because of the use he was making of narcotics, the appellant alleged that her inability to submit a valid resignation was occasioned by the fault of her employer, who should have recognized that she was a victim of harassment by the persons in authority representing it. In so far as the appellant"s resignation resulted from the employer"s fault and the appellant was an employee of the federal government, I have no doubt that if a legal remedy exists it comes within the purview of the Federal Court.
[21] The respondents argued that in these circumstances there was no legal remedy since the appellant was a full-time Public Service employee governed by a collective agreement, and so subject to the grievance and adjudication procedure provided for in ss. 91 et seq. of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("the Act"). I feel that they are supported on this point by St. Anne Nackawic Pulp & Paper v. CPU , [1986] 1 S.C.R. 704, Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, New Brunswick v. O"Leary, [1995] 2 S.C.R. 967 and Gendron v. SSU of PSAC, [1990] 1 S.C.R. 1298.
[22] It is true that in O"Leary and Weber the arbitrator had exclusive jurisdiction, and the reference to arbitration was compulsory, while at the federal level the Act speaks in terms of a public servant"s right to file a grievance and take it to arbitration, thus making the latter procedure optional. In fact, a public servant, and I would add that is not the appellant"s case, cannot file a grievance if some other form of redress is available under a federal statute. He or she must then submit the complaint to that authority, which under the Act has jurisdiction over it: Cooper (Re) , [1974] F.C.J. No. 1016 (F.C.A., per Pratte J.A. interpreting the limitation contained in s. 91(1) of the Act).2
[23] It is also true that the Act contains no privative clause. In fact, s. 96(3) provides that the decision at the final level of the grievance procedure is final and binding, and if it is not a case which can be referred to adjudication no further measure can be taken under the Act in respect of the grievance so decided.
Binding effect
| Where a grievance has been presented up to and including the final level in the grievance process and it is not one that under section 92 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken thereon. |
[24] This wording does not as such exclude recourse to external remedies.
[25] However, under the modern approach to labour relations, disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts, though the latter "possess residual jurisdiction based on their special powers", as for example the power to issue an injunction in the event of an illegal strike (Weber , supra, at 957 and St. Anne Nackawic, supra, at 728). Among the matters over which the courts do not have jurisdiction are constructive or wrongful dismissal, bad faith on the part of the union, conspiracy and damage to reputation (Weber, supra, at 957).
[26] In the case at bar the appellant, according to her allegations, resigned as the result of harassment inflicted on her at the workplace by her superiors. It would certainly be possible for an adjudicator to legally conclude that the respondents" refusal in the circumstances to reinstate the appellant in her position constituted constructive dismissal. Consequently, I feel that the Court has no jurisdiction to hear the appellant"s application for judicial review and that the motion to strike the said application was valid.
[27] For these reasons, the appeal will be dismissed without costs.
I concur.
Robert Décary J.A.
I concur.
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: Lise Bouchard v. Department of National Defence et al. |
PLACE OF HEARING: Montréal, Quebec
| DATE OF HEARING: November 10, 1999 |
REASONS FOR ORDER BY: Létourneau J.A.
| CONCURRED IN BY: Décary J.A. |
Noël J.A.
DATED: November 22, 1999
APPEARANCES:
| Lise Bouchard FOR THE APPELLANT |
| Nadine Perron FOR THE RESPONDENT |
SOLICITORS OF RECORD:
Lise Bouchard FOR HERSELF
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
__________________
1 [1990] A.Q. No. 471. See also Lamonde v. Brasserie Labatt Ltée, [1995] R.J.Q. 429 (S.C.).
2 Section 91(1) reads: Right of employee 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.
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