Date: 20031202
Docket: T-1747-02
Citation: 2003 FC 1405
Between:
CHARLOTTE RHÉAUME
Plaintiff
And:
HER MAJESTY THE QUEEN
and
PUBLIC SERVICE ALLIANCE OF CANADA
and
CUSTOMS EXCISE UNION DOUANE ET ACCISE (CEUDA)
Defendants
REASONS FOR ORDER
ROULEAU J.
[1] The case at bar concerns a motion by the plaintiff to appeal a decision by Prothonotary Richard Morneau which allowed the defendants' motion to strike her statement of claim. The plaintiff also filed a motion to stay appeal proceedings until the Public Service Staff Relations Board ("the Board") had ruled on the complaints filed by her following the prothonotary's order.
[2] Since May 25, 1987, the plaintiff has been a permanent employee of the Department of National Revenue, Taxation, Customs and Excise (now the Canada Customs and Revenue Agency).
[3] From August 2, 1993 to March 8, 2002, the plaintiff held the position of enquiries officer, a position at the PM-02 group and level in the Technical Interpretation Service of the Regional Excise and GST Liaison Office.
[4] In the course of her duties the plaintiff administered the Excise Tax Act, in particular giving oral and written decisions on the goods and services tax ("GST"). However, under an agreement concluded between the Government of Canada and the Government of Quebec in 1992 the administration of various matters concerning the GST was allocated to the Quebec Ministère du Revenu.
[5] Consequently, in 1998, the Department of National Revenue proceeded to reorganize positions in the GST/HST Rulings and Interpretations Directorate. Because of that reorganization the Department of National Revenue created new positions of Senior Technical Interpretations Analyst, classified at the AU-02 group and level. These new positions were posted and filled (through appointment by merit or competition) pursuant to the provisions of the Public Service Employment Act.
[6] On October 29, 1999, the plaintiff filed a grievance. In it the plaintiff challenged the legitimacy of the reorganization procedure in the Agency and the reassignment of duties for positions which were in the same classification and at the same position level as that held by her at the time, namely the position of enquiries officer, PM-02. The plaintiff further challenged the staffing procedure for employees who were appointed by appointment without competition (individual merit) or by appointment with competition (relative merit) to the reclassified position of Senior Technical Interpretations Analyst (AU-02) following this reorganization.
[7] At the time the plaintiff filed her grievance she was covered by the collective agreement titled "Agreement between the Treasury Board and the Public Service Alliance of Canada: Program and Administration Services" ("the collective agreement").
[8] That grievance was heard up to the final level and was then taken to arbitration by the plaintiff, assisted by her union, the defendant Public Service Alliance of Canada ("the PSAC"), and by the defendant Customs Excise Union Douane et Accise ("CEUDA") which is part of the PSAC, in accordance with the provisions of the Public Service Staff Relations Act ("the PSSRA") and the collective agreement.
[9] On October 8, 2002, the union withdrew the part of the grievance relating to the description of the plaintiff's duties a few days before her scheduled arbitration date.
[10] At the present time, the plaintiff still maintains her grievance of October 29, 1999, alleging that she suffered a demotion, which her employer disputes.
[11] On October 15, 2002, the plaintiff brought an action in the Federal Court in which, primarily, she asked that Her Majesty the Queen appoint her to a position at a higher level and be ordered to pay the salary and fringe benefits associated with that position since January 1, 1999.
[12] Further, the plaintiff alleged that the defendants PSAC and CEUDA failed to perform their fiduciary obligation toward her when they:
(a) did not post and publish the notices of appointment to the GST/HST Technical Interpretations Service in Quebec;
(b) failed to ask the employer to post or publish the notices of appointment "with" or "without" competition;
(c) failed to submit her candidacy for each of the appointments "without competition" pursuant to the Public Service Employment Act;
(d) failed to submit her candidacy for each of the appointments "with competition" pursuant to the Public Service Employment Act; and
(e) did not require or ask the employer to broaden the areas of competition to include Quebec for positions at higher levels.
[13] The defendants filed a motion to strike the plaintiff's statement of claim and dismiss her action under Rule 221(1)(a) and (f) of the Federal Court Rules, 1998.
[14] In his judgment of January 17, 2003, Prothonotary Richard Morneau allowed the motion to strike on the grounds that:
(a) the Federal Court has no jurisdiction to hear the action as the facts in dispute have to do with the employer-employee relationship, and the grievance procedure laid down in the PSSRA and the collective agreement is the only proper recourse;
(b) the plaintiff cannot obtain a mandamus against Her Majesty the Queen and can only seek this conclusion by an application for judicial review against a federal board, commission or other tribunal, and even if the remedy was sought by an application for judicial review it could not be granted as the Customs and Revenue Agency has no legal duty to appoint the plaintiff to another position;
(c) the Federal Court does not have jurisdiction to decide the dispute between the plaintiff and the defendants PSAC and CEUDA, since under subsections 21(1) and 23(1) and (2) of the PSSRA the Board has exclusive authority to hear any complaint from an employee against his or her union with respect to a breach of the duty of representation toward the employee.
[15] On January 29, 2003, the plaintiff filed a motion appealing the prothonotary's decision.
[16] On June 2, 2003, the plaintiff filed two complaints with the Board. In the said complaints the plaintiff alleged that the defendants PSAC and CEUDA had acted in a manner that is arbitrary, discriminatory or in bad faith when representing her, contrary to subsection 10(2) of the PSSRA.
[17] On September 8, 2003, the plaintiff filed a motion the conclusions of which sought to have the appeal proceedings stayed until the Board had ruled on the complaints she had filed following the prothonotary's order.
[18] Thus, before dealing with the merits of the motion on appeal, it is very important to rule on the admissibility of the motion for a stay so as to determine whether the Court should address the arguments on the merits at this stage.
[19] The plaintiff argued that, since the defendants PSAC and CEUDA maintained that the plaintiff had not exhausted the procedure laid down in the PSSRA in their motion to strike, they maintained this argument on appeal, and further the prothonotary Morneau adopted this argument in his decision, it is proper for this Court to stay proceedings until a decision is made by the Board regarding the plaintiff's complaints against the defendants PSAC and CEUDA.
[20] The plaintiff argued that this stay could only serve the interests of the administration of justice, and further it is entirely relevant and necessary for the plaintiff to know the Board's administrative decision on her complaints against the defendants PSAC and CEUDA before the appeal is heard.
[21] The defendants objected to this stay as they submitted that the judge hearing the new proceeding consisting of the appeal from the prothonotary's decision should exercise his discretion based on the evidence submitted to the prothonotary, not hold a new hearing based on new evidence.
[22] Accordingly, the defendants submitted that the Board's decision could have no effect on the outcome of the plaintiff's motion to appeal for the following reasons:
(a) the Board's decision is new evidence which was not before Prothonotary Morneau;
(b) the Board's exclusive jurisdiction over the duty of representation means that this Court has no authority to decide that question; and
(c) the plaintiff has a remedy in judicial review available if she is not satisfied with the Board's decision, and she is limited to that remedy.
[23] Further, the defendants argued that in the circumstances whatever the fate of the plaintiff's complaints to the Board section 17 of the Federal Court Act clearly provides that this Court does not have jurisdiction to hear the plaintiff's action, which falls exclusively under the PSSRA.
[24] In my opinion, the motion for a stay should not be granted since, as the defendants noted, the motion to appeal should be limited to the evidence before the prothonotary at the hearing of December 9, 2002, and could not include evidence relating to events that occurred after that date.
[25] At the same time, section 50 of the Federal Court Act sets the criteria for the Court exercising its discretion to stay proceedings. That section states:
50. (1) The Court may, in its discretion, stay proceedings in any cause or matter ,
(a) on the ground that the claim is being proceeded with in another court or jurisdiction; or
(b) where for any other reason it is in the interest of justice that the proceedings be stayed.
[26] In the case at bar, there is neither a claim being proceeded with in another court or jurisdiction nor a situation in which the interests of justice are affected.
[27] For these reasons, the motion to stay proceedings is dismissed. Accordingly, we must now turn to considering the arguments on the merits.
[28] The plaintiff submitted that the prothonotary's decision was vitiated by an error of law in that it treated the plaintiff's action in tort like a mandamus. Accordingly, the plaintiff argued that a single mandatory conclusion among the eight other conclusions in her action in tort could not so alter the nature of her action as to make it one in mandamus.
[29] The plaintiff noted that case law and academic opinion recognize that it is possible to join mandatory conclusions with declaratory and other conclusions in an action.
[30] Further, the plaintiff submitted that her claims for damages and exemplary damages on account of the joint injuries caused by the defendants were not incidental conclusions.
[31] Moreover, the plaintiff submitted that Prothonotary Morneau erred in law in linking the fiduciary obligation of the defendants PSAC and CEUDA to the plaintiff's collective agreement. The plaintiff submitted that the fiduciary duty arose simply from the fact that she is unionized, not the union's duty resulting from the collective agreement.
[32] As regards the prothonotary's conclusion concerning the possibility of a more appropriate administrative remedy, specifically that of a complaint to the Board, the plaintiff submitted that the PSSRA gives her no assistance and so cannot replace her action in tort.
[33] The Crown noted that the plaintiff had on October 29, 1999, filed a grievance based on the same facts as those which are the subject of this action.
[34] The Crown submitted that the PSSRA and the collective agreement provide a grievance settlement procedure which is a complete code applicable to resolution of this dispute, to the exclusion of any other remedy under the ordinary law. It noted that this conclusion applies even if the plaintiff's union withdrew part of her grievance dealing with her description of duties before arbitration.
[35] Further, the Crown submitted that under section 17(1) of the Federal Court Act, the Federal Court does not have jurisdiction to hear this action, which falls exclusively under the PSSRA.
[36] Additionally, the Crown submitted that the conclusion sought by the plaintiff amounted to a claim for mandamus against Her Majesty the Queen: it noted that the Crown enjoys immunity from injunctions and mandamus.
[37] The defendants PSAC and CEUDA submitted that Prothonotary Morneau made no error of law or of fact. The defendants PSAC and CEUDA submitted that the plaintiff's statement of claim disclosed no valid cause of action and was properly struck out.
[38] The defendants PSAC and CEUDA submitted that this Court did not have the necessary jurisdiction to decide the dispute between themselves and the plaintiff, since this is exclusively a matter for the Board.
[39] Further, they submitted that the acts which the defendants PSAC and CEUDA are alleged to have committed cannot be the subject of an action against them, since they have no authority to intervene in staffing, reorganization and classification.
[40] Additionally, the defendants PSAC and CEUDA stated that the collective agreement contains no provision regarding requirements for posting of competitions, assignment of duties to positions, classification of positions and appointment of employees to positions.
[41] The defendants PSAC and CEUDA submitted that even if the plaintiff alleged that the defendants failed to perform their fiduciary duty toward her and maintained that the acts alleged make the defendants liable [TRANSLATION] "in tort", the statement of claim contains no precise explanation of the substantive facts on which such tort liability might be based.
[42] Finally, the defendants PSAC and CEUDA noted that the plaintiff could not bring an action against the defendants as she has available an exclusive remedy set out in section 23 of the PSSRA.
[43] A careful reading of Prothonotary Morneau's decision leads me to conclude that he did not err in any way and came to the correct conclusion, and consequently his decision contained no error that would warrant intervention by this Court.
[44] As regards the action against the Crown, it appeared from the record that the plaintiff filed a grievance based essentially on the same facts as those which are the subject of the statement of claim.
[45] The grievance was heard up to the final level and was then taken to arbitration by the plaintiff, assisted by the union, in accordance with section 91 of the PSSRA and the collective agreement in effect. That provision stated:
91. (1) Where any employee feels aggrieved
(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.
[46] The facts of the case are covered by the general wording of this Act. The plaintiff is an "employee" within the meaning of the definition in section 2 of the PSSRA and the conclusions she seeks are certainly covered by the words "affecting the terms and conditions of employment of the employee".
[47] A complainant who does not obtain satisfaction from the grievance procedure laid down in section 91 may, under section 92 of the PSSRA, ask that her complaint be submitted to arbitration. However, the scope of the latter provision is more limited than section 91, so that certain questions which can be the subject of a grievance cannot be referred to arbitration. This indeed explains the union's decision to withdraw the part of the grievance relating to the plaintiff's description of duties a few days before her scheduled arbitration date.
[48] Accordingly, if a complainant is not satisfied with the outcome of the grievance filed pursuant to section 91 and the dispute is covered by section 92, he or she can go to arbitration. If the dispute is not covered by section 92, the decision is final. Whatever the outcome, the decision given by the grievance officer pursuant to section 91 or by the arbitrator in accordance with section 92 can, under section 18.1 of the Federal Court Act, be the subject of an application for judicial review in the Federal Court.
[49] This Court has consistently held that the grievance settlement procedure laid down in the PSSRA is a complete and exclusive code applicable to the resolution of labour relations disputes, to the exclusion of any other remedy under the ordinary law.
[50] In Johnson-Paquette v. Canada, [2000] F.C.J. No. 441, the Federal Court of Appeal, following the Supreme Court's reasoning in Weber v. Ontario Hydro (1995),125 D.L.R. (4th) 583 (S.C.C.), said per Noël J.A.:
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.
[51] Under subsection 17(1) of the Federal Court Act, the Court's Trial Division has jurisdiction in cases where relief is claimed against the Crown "except as otherwise provided in this Act or any other Act of Parliament". In my view, the prothonotary properly concluded that in the case at bar the PSSRA provides otherwise.
[52] Additionally, the prothonotary correctly concluded that the mandatory conclusions sought could not be granted as the Customs and Revenue Agency has no legal duty to appoint the plaintiff to another position.
[53] As regards the proceeding brought against the defendants PSAC and CEUDA, it is vitally important to note that the duty of a union to its members is set out in subsection 10(2) of the PSSRA, which prohibits any employee organization or its representatives from acting in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee in the unit.
[54] An aggrieved employee has a remedy which is set out in section 23 of the PSSRA. That provision states:
23. (1) The Board shall examine and inquire into any complaint made to it that the employer or an employee organization, or any person acting on behalf of the employer or employee organization, has failed
(a) to observe any prohibition contained in section 8, 9 or 10 . . .
[55] Accordingly, if she wishes to claim her rights as a member of the employee organization, the plaintiff must file a complaint with the Board. If the plaintiff is not satisfied with the Board's decision she then, under section 18.1 of the Federal Court Act, has a remedy in judicial review in the Federal Court.
[56] In the case at bar the plaintiff did not exhaust the complaint procedure set out in the PSSRA or the subsequent judicial review remedy. What she tried to do was to challenge certain decisions of the union by judicial review through an action in tort for damages, which she cannot do.
[57] The fact that the plaintiff finally decided, following the comments by Prothonotary Morneau, and after analyzing the arguments of the defendants PSAC and CEUDA and realizing the validity of the said arguments, to make use of the grievance procedure does not in any way alter the lack of merit in her motion to appeal. On the contrary, it illustrates the extent to which the plaintiff herself is aware of the shortcomings and weaknesses in her argument.
[58] For these reasons, the motion is dismissed with costs, which I set at $500 for the defendant Her Majesty the Queen and $500 for the defendants Public Service Alliance of Canada and Customs Excise Union Douane et Accise (CEUDA).
|
|
"P. Rouleau"
JUDGE |
OTTAWA, Ontario
December 2, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKET: T-1747-02
STYLE OF CAUSE: CHARLOTTE RHÉAUME v. HER MAJESTY THE QUEEN and PUBLIC SERVICE ALLIANCE OF CANADA (PSAC) and CUSTOMS EXCISE UNION DOUANE ET ACCISE (CEUDA)
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 18, 2003
REASONS: Rouleau J.
DATE OF REASONS: December 2, 2003
SOLICITORS OF RECORD:
CHARLOTTE RHÉAUME FOR THE PLAINTIFF
BROSSARD, QUEBEC
DIANE PELLETIER FOR THE DEFENDANT
DEPARTMENT OF JUSTICE HER MAJESTY THE QUEEN
OTTAWA, ONTARIO
LISE LEDUC FOR THE DEFENDANTS PSAC and
DEPARTMENT OF JUSTICE CEUDA
OTTAWA, ONTARIO