Date: 20011003
Docket: T-1170-00
Neutral Citation: 2001 FCT 1083
BETWEEN:
THOMAS C. CAHILL
Plaintiff
and
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
ARONOVITCH, P.
Overview
[1] Mr. Cahill, a federal public service employee, has commenced an action for damages in tort, against his employer as represented by Her Majesty the Queen in Right of Canada.
[2] The Crown has responded with this motion to strike the plaintiff's statement of claim for want of jurisdiction and want of a cause of action. Essentially the Crown submits that the Court has no jurisdiction to entertain the plaintiff's claim because Mr. Cahill is party to a collective agreement that entails a grievance and arbitration process, that in the circumstances, constitutes his exclusive recourse against his employer and precludes an action in this Court.
[3] Such cases turn narrowly on their facts. In that regard, and for the purposes of the application to strike for want of reasonable cause of action, I must accept the plaintiff's assertions as proved. I have summarized below the salient facts alleged in the plaintiff's claim.
The Facts
[4] The plaintiff began his employment with Correctional Services of Canada ("CSC"), in December 1983 and was granted indeterminate status at CSC in January 1993 as a Parole Officer at Kingston Penitentiary. As of November 1996, the plaintiff was employed with CSC at Bath Institute, Bath, Ontario, as the Chief of Social Development.
[5] On December 13, 1997, the plaintiff invoked Part II of the Canada Labour Code, R.S.C. 1985, c. L-2 (Occupational Health and Safety) because of what he perceived as an unsafe work environment. The plaintiff claims that subsequent to this event, Warden Stevenson, the Warden at Bath Institute, threatened the plaintiff with a fact-finding investigation regarding the plaintiff's actions in invoking the Occupational Health and Safety section of the Canada Labour Code. Although the investigation was ordered, it was never completed.
[6] At the commencement of May 1998, the plaintiff was advised that he was under investigation for abusive behaviour towards inmates and staff, arising from an incident in April of that year. The investigation resulted in the imposition of a penalty of five days'salary against the plaintiff. The plaintiff grieved this penalty. The grievance was adjudicated by the Public Service Staff Relations Board ("PSSRB"). The PSSRB found that Mr. Cahill should be reimbursed the monetary penalty imposed and ordered, instead, that the plaintiff be reprimanded in writing. The plaintiff's allegation is that the PSSRB, while imposing a disciplinary sanction on Mr. Cahill, had questioned management's handling of the dispute.
[7] Late in the spring of 1998, following the initial imposition of the penalty, the plaintiff filed a harassment complaint, comprised of six counts of harassment, against Warden Stevenson. Following an independent investigation, two counts of harassment were deemed to be founded and one count was left in abeyance pending the outcome of the above-noted PSSRB decision. The plaintiff was provided with a letter of apology from Mr. Ross Toller, Assistant Deputy Commissioner at CSC for the Ontario Region.
[8] On or about July 7, 1998, the plaintiff discovered inappropriate and demeaning comments made about him in a work-related document. The plaintiff filed a formal grievance, and an investigation ensued. Although the investigation could not conclusively identify the author of the comments at issue, Warden Stevenson wrote a letter of apology to the plaintiff on behalf of the Bath Institution. During this period the plaintiff claims to have requested support and direction from management relating to the plaintiff's supervisory interactions with his subordinates. He alleges that no such support was provided and he was abandoned to work in the poisoned work environment he claims was created by the defendant.
[9] In February 1999, the plaintiff was advised that Warden Stevenson was to return to Bath Institution as of April 1, 1999. The plaintiff says that it is due to the impending return of Warden Stevenson, that he applied for leave to relocate. The grounds on which he sought leave was that his spouse had obtained a job in Ottawa. Mr. Cahill claims that subsequent to the approval of his transfer he was given undertakings by representatives of CSC that assistance would be provided to him in securing a position at CSC National Headquarters in Ottawa. At the date of the filing of his claim, he had received none.
[10] A further incident ensued during Mr. Cahill's tenure at Bath Institution. On May 18, 1999, three members of senior management at Bath Institution filed three harassment complaints against the plaintiff for allegedly threatening them. On June 7, 1999, the plaintiff was suspended with pay for the duration of the investigation into the harassment complaint.
[11] On July 30, 1999, an independent investigator concluded that the plaintiff was guilty of harassment for the alleged incident. The plaintiff was given a penalty of three days' suspension without pay. He grieved the penalty. According to the plaintiff, CSC conceded the grievance at the hearing of the matter before the PSSRB. The financial penalty was accordingly rescinded and no record of this incident remains on the plaintiff's file.
[12] As I understand the claim, Mr. Cahill argues that he had no choice but to seek a transfer away from Bath Institute and that this fact and his "suspension" while under investigation have jeopardized his career, caused him to suffer health consequences, a loss of reputation as well as the loss of income and benefits.
[13] In the event he is unable to return to CSC, he estimates he will sustain a loss of pension benefits which could exceed $250,000 by virtue of the pension benefit accruing solely to CSC employees. He estimates the loss of earnings and benefit while on leave without pay in Ottawa (material facts of which are not alleged in the claim) to be roughly $30,000. He estimates the loss of overtime he might have earned while on leave without pay at $5,000.
[14] Accordingly, the plaintiff seeks essentially the following relief:
"- a declaration that plaintiff was constructively dismissed from plaintiff's position as Chief Social Development at Bath Institution;
- an order directing that the Correctional Services of Canada appoint the plaintiff immediately to a position at National Headquarters Ottawa ... ;
- a finding that the Correctional Services of Canada condoned, and by its failure to act, acquiesced to, negligent and malicious conduct on behalf of its agents against the plaintiff;
- a finding that there was intentional inflictions of nervous shock on the plaintiff by Correctional Services of Canada and its agents;
- a finding of unwarranted and malicious abuse of power and process used by Correctional Services of Canada and its agents to harass the plaintiff;
- a finding that conduct of the Correctional Service of Canada and its agents towards the plaintiff was extreme and malicious over a two-year period of time, causing actual illness;"
The plaintiff also seeks damages in the amounts noted above, as well as damages for pain and suffering in the sum of $10,000 and exemplary damages in the amount of $100,000.
The Grounds of the Motion and Applicable Test
[15] The defendant is seeking to strike the plaintiff's statement of claim pursuant to Rule 221(1)(a), (c) and (f) of the Federal Court Rules, 1998, ("the Rules"), as bereft of a reasonable cause of action and on the grounds that the action is frivolous, vexatious and an abuse of process. As stated, the defendant argues principally that this Court lacks jurisdiction over the subject matter of the claim. The Crown also maintains that Mr. Cahill's claim for constructive dismissal is not actionable by way of a civil suit and that the plaintiff's claims of negligent infliction of shock, and loss of reputation cannot succeed on the basis of the facts as alleged. Further, says the Crown, Mr. Cahill has already grieved aspects of the claim and is attempting to re-litigate issues already determined in other proceedings, thereby engendering a multiplicity of proceedings which the Crown maintains constitute an abuse of process.
[16] The applicable test on a motion to strike for lack of a reasonable cause of action is now, trite law. It must be "plain and obvious" that the claim is bereft of a reasonable cause of action. In order to strike, the Court must be satisfied that the action cannot succeed. For the following reasons, I am of that view and shall grant the Crown's motion.
Analysis
[17] To flesh out the Crown's argument on jurisdiction, it is that this Court is precluded from
entertaining the plaintiff's action which falls within the exclusive domain of the grievance and arbitration process governed by an applicable collective agreement and the provisions of the Public Service Staff Relations Act., R.S.C. 1985, c. P-35 ("PSSRA" ). (Weber v. Ontario Hydro [1995] 2 S.C.R. 929 ("Weber"); St. Anne Nackawic Pulp & Paper Co. v. CPU [1986] 1 S.C.R. 704 ("St. Anne Nackawic")). These decisions of the Supreme Court of Canada advocate the application of an "exclusive jurisdiction" approach described as follows at page 957 of Weber, supra:
"This approach does not preclude all actions in the courts between the employer and employee, only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts."
More to the point, the Crown relies on substantial jurisprudence that has applied the approach relative to unionized federal civil servants in the context of the PSSRA, (Johnson-Paquette v. Canada, (1998) 159 F.T.R. 42 ("Johnson-Paquette"), affirmed [2000] F.C.J. 441 (C.A.), and Jadwani v. Attorney General of Canada et al (2000), 47 O.R.(3d) 276 (S.C.J.)("Jadwani"), affirmed (2001), 520 R. (3d) 660 (C.A.)).
[18] As a preliminary issue, the plaintiff objects to the submission of the affidavit of Mr. Louis Germain, on behalf of the Crown, on the basis that the affidavit refers to information from the plaintiff's personnel file, including information that the employer had apparently undertaken to expunge from the plaintiff's employment record.
[19] While the plaintiff does not object on this basis, Rule 221(2) of the Rules, in fact, prohibits adducing evidence on a motion to strike for want of a cause of action. There is no prohibition in respect of motions that are brought pursuant to other grounds enumerated under Rule 221(1). The prohibition also does not apply where the moving party, as in this instance, contests the jurisdiction of the Court. (Mil Davie Inc. v. Hibernia Mgmt. & Rev. Co.(1998), 226 N.R. 369 (C.A.))
[20] While the jurisprudence, dealing with the application of the "exclusive jurisdiction" approach, refers to the "jurisdiction" of the Court to entertain separate civil suits, it is often, not the jurisdiction of the Court, in the strict sense, that is at issue, but rather, the fact that a court will decline to hear matters which are, in essence, workplace disputes, the resolution of which has already been provided for in the collective bargaining regime to which the parties are consensually bound.
[21] That said, in Johnson-Paquette, supra, Madam Justice Tremblay-Lamer, applied Weber, supra, to prohibit a civil suit by a federal civil servant against her employer, and concluded that, in the circumstances, section 17(1) of the Federal Court Act, R.S.C. 1985, c. F-7 applied to preclude the action. The Federal Court of Appeal affirmed the finding as follows at page 4 of the judgment:
" 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."
[22] I am thus satisfied that the defendant's affidavit going to jurisdictional facts is admissible in the circumstances. Mr. Cahill presumably had an opportunity to cross-examine on the affidavit, and to move to strike out the portions he alleges are improper. To my knowledge he did not do so. In fact, I have had reference to the affidavit, principally as it relates to the provisions of the applicable collective agreement and the sequence of grievances brought by the plaintiff.
[23] The facts in this connection are that Mr. Cahill at the relevant times, that is throughout his employment at CSC, was subject to a collective agreement concluded between the Treasury Board and the Public Service Alliance of Canada.
[24] The collective agreement references, and is implemented through the grievance and adjudication process under the PSSRA. Article 18 of the plaintiff's collective agreement, as well as sections 91(1) of the PSSRA, provide a grievance process. Section 92 of the PSSRA provides for the adjudication of a large class of grievances which "have not been dealt with to the satisfaction of the employee". Unless the grievance can be referred to adjudication, the PSSRA provides that the final level decision of the grievance office is final, subject to the right of the applicant to seek judicial review of the decision under the Federal Court Act. The decision of a third party adjudicator is similarly subject to judicial review by this Court.
[25] The language of section 18 of the collective agreement, which I have referenced above, is very broad and entitles an employee who feels that he or she has been "treated unjustly" or is aggrieved by "any action or lack of action by the Employer" to bring a grievance to be dealt with in accordance with the collective agreement and the above-noted provisions of the PSSRA.
[26] Historically, this Court has held that the PSSRA is a complete code governing the employer and employee relationship between Her Majesty and her employees, subject to judicial review. (Johnson-Paquette v. Canada, supra; Townsend v. Canada (1994), 74 F.T.R. 21; Panagopoulos v. Canada [1990] F.C.J. No. 234 (T.D.).
[27] The more recent decision of Madam Justice Tremblay-Lamer is on point, in the circumstances of the present case. In Johnson-Paquette, supra, Tremblay-Lamer J. struck the statement of claim of a federal civil servant who alleged the negligence of her employer in the failure of its senior managers to deal properly with her complaints of sexual assault. The plaintiff, subject to a collective agreement, had grieved the employers' conduct up to its final level where the grievance was denied. The plaintiff subsequently commenced her action for damages in tort, against Her Majesty.
[28] Having regard to the essential nature of the claim, Tremblay-Lamer J. found that the alleged negligent conduct of the employer was grievable. The Court so concluded, on the basis of language which allows an aggrieved employee to challenge "the actions or inaction" of the employer, in the very same terms as appears in Mr. Cahill's collective agreement.
[29] Tremblay-Lamer J. applied Weber, supra ,to preclude the plaintiff's Court action stating at pages 16 and 17 of her reasons:
Where a collective agreement grants exclusive jurisdiction to resolve differences to an arbitrator and another forum is not expressly provided by legislation, the Supreme Court has held, in the case of Weber v. Ontario Hydro, that the arbitrator shall have jurisdiction, exclusive of the courts, subject only to judicial review.
. . .
In the present case, the plaintiff has not exhausted the grievance procedure provided under the PSSRA and the resulting judicial review. She is attempting to seek judicial review of the grievance officer's decision by way of an action for damages in tort - this she cannot do.
[30] We have considered some of the provisions of the collective agreement as they apply to the case at bar. Let us recall some of the steps already taken by Mr. Cahill in the context of his various disputes with the employer.
[31] In this proceeding, Mr. Cahill claims damages for harassment, intimidation and the creation of a poisoned workplace. As the Crown rightly points out, he has already grieved substantial aspects of the employer's conduct in that regard. Indeed, following the imposition of the five-day penalty, in respect of charges of harassment made against him, Mr. Cahill filed a harassment complaint against Warden Stevenson pursuant to a CSC directive and the "Treasury Board Policy on the Harassment in the Workplace". Many of the charges levelled at Warden Stevenson are subsequently raised and sought to be litigated in this action. The allegations include, that the employer, as represented by Warden Stevenson, was abusive, failed to provide support to him in the poisoned environment allegedly created by the employer, undermined Mr. Cahill's authority and falsely maligned him in the performance of his duties. These charges have been investigated and determined. To my knowledge, the findings and determinations were not appealed from.
[32] Mr. Cahill also filed a grievance requesting an inquiry into inappropriate written comments which apparently vilified him. The finding after investigation was inconclusive. There is no indication that Mr. Cahill appealed this decision or pursued the matter further.
[33] In the context of this action, Mr. Cahill claims damages, inter alia, for overtime pay on the basis that he was denied the opportunity to accumulate overtime, during the four-month leave with pay imposed while his conduct was being investigated. This financial penalty or deemed suspension, was both grievable and adjudicable under his collective agreement. Mr. Cahill did, in fact, grieve the overtime pay issue, but out of time. There is no indication that he pursued the matter further.
[34] Most importantly, and to the point, Mr. Cahill did not grieve his alleged constructive dismissal for which he seeks the bulk of the damages claimed in this action.
[35] Mr. Cahill relies on Wells v. Newfoundland [1999] 177 D.L.R. 4th 73, a decision of the Supreme Court of Canada, for the proposition that civil servants may sue the Crown for unjust dismissal. The case is of no assistance to Mr. Cahill and has no application in the circumstances, as it deals exclusively with the termination of employment of a high-ranking civil servant appointee, whose employment was neither subject to collective agreement nor governed by the PSSRA.
[36] The plaintiff also relies on Pleau v. Canada (Attorney General) [1999] N.S.J. No. 448 (C.A.) ("Pleau"). [Leave to appeal to Supreme Court of Canada refused (2000), 262 N.R. 399.] and Danilov v. Atomic Energy Control Board [1999] O.J. No. 3735 (C.A.) ("Danilov"). [Leave to appeal to Supreme Court of Canada refused (2000) 262 N.R. 399]. While these are not binding on this Court, I shall have reference to both decisions that, in my view, may be distinguished on their facts.
[37] Danilov, supra, again, deals with the termination of the employment of a non-unionized federal civil servant. The Court of Appeal of Ontario concluded in that case that the grievance process under the PSSRA which, in Mr. Danilov's circumstances, would not have resulted in binding, third party adjudication could not preclude Mr. Danilov's action for recourse in respect of the termination of the employment.
[38] In Pleau, supra, the Nova Scotia Court of Appeal maintained jurisdiction to entertain a civil action, in tort, brought by a federal civil servant, subject to a collective agreement similar to the one applicable in the case at bar. The plaintiff's claims, in Pleau, included, conspiracy to cause injury, intentional and malicious conduct, defamation, breach of fiduciary duty and negligent exercise of authority. The Court found that the dispute, while arising out of the employment relationship, did not arise under the collective agreement as the agreement did not address the conduct complained of and "the dispute was admittedly outside the scope of the adjudication process". The facts in this situation are such that neither case avails the plaintiff.
[39] Turning to the particulars of the claim, and the relief sought by the plaintiff, I would first note that "malice" per se, does not sound in tort and is not actionable at law. Nor, to my knowledge, is it within the authority of this Court, to direct a government department to appoint an individual to a position as a remedy in an action. Finally, Mr. Cahill claims damages for a period of leave with pay, without alleging any of the facts necessary to found the claim.
[40] While the plaintiff in this case casts his action in terms of defamation and negligent infliction of nervous shock, the facts as pleaded do not provide sufficient material facts to sustain such allegations. More importantly, Weber, supra, makes clear that it is the nature of the dispute which is essential and not the terms in which the action is cast. The Court elaborates as follows at page 953 of the judgment:
Underlying both the Court of Appeal and Supreme Court 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 "independent of the collective agreement but rather the dispute is one 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.
[41] Having regard to each element of the claim, I am satisfied that all of the employer's conduct, impugned by the plaintiff in this action, comes, whether explicitly or inferentially, within the ambit of the collective agreement, and the harassment policy, with recourse to the plaintiff thereunder, and pursuant to the grievance process set out in the PSSRA. Mr. Cahill has engaged the grievance process on numerous occasions, including in respect of much of what he claims in his statement of claim, ostensibly without exhausting his recourse thereunder.
[42] On the other hand, he has not pursued, let alone exhausted, his available recourse for alleged constructive dismissal and the alleged consequential loss of salary and pension benefits. This matter goes to the essential terms of his employment and any grievance in that regard would undoubtedly be subject to third party adjudication.
[43] Mr. Cahill argues forcefully, that he is deprived of a meaningful remedy as not all of his grievances would be subject to third party adjudication. The Federal Court of Appeal in upholding the decision of Tremblay-Lamer J. In Johnson-Paquette, supra, rejected this argument. The Court of Appeal found that the PSSRA is a complete code governing employer-employee relationships, in the federal public service, notwithstanding that it does not provide for third party adjudication of all grievances. The plaintiff's grievances inJohnson-Paquette, supra, were not all subject to adjudication. Noël J.A., writing for the full Court, concluded as follows in respect of that argument at page 2 of the judgment:
"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.
I first note that 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).
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. ..."
[44] Later, at page 4, Noël J.A. confirmed the view prevalent in the jurisprudence of this Court, namely, that the PSSRA was intended as a complete code for the resolution of labour and employment disputes between the Crown and federal public servants thereby precluding recourse to courts in respect of matters falling within the ambit of a collective agreement and the grievance procedure set out in the PSSRA.
"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."
Conclusion
[45] I am bound by the decision of the Federal Court of Appeal in Johnson-Paquette, supra, as I find no basis in the present case to distinguish it. I shall accordingly grant the Crown's motion and decline to exercise my discretion to allow the plaintiff's action to go forward in this Court.
[46] If the parties are unable to agree as to the costs of the motion, they may address the issue by way of further submissions.
OTTAWA, Ontario,
October 3, 2001
"R. Aronovitch"
Prothonotary