Maria Constantine

The Attorney General of Canada moved to dismiss the plaintiff's Statement of Claim under Rule 21.01(3)(a) or (d), arguing lack of jurisdiction or abuse of process.

The plaintiff, a former CSIS employee, opposed, relying on section 236(3) of the Public Service Labour Relations Act, which allows employees to dispute termination not related to discipline or misconduct.

The court found that the "may" in CSISA section 41 regarding SIRC complaints was permissive, not mandatory, and that PSLRA section 236(3) preserves a common law right of action for performance-based terminations.

Given the high burden on the moving party under Rule 21, the motion to dismiss was denied.

The appellants appealed the judgment of the application judge, arguing he failed to invalidate actions taken at a national convention in December 2013.

The Court of Appeal dismissed the appeal, finding that the application judge correctly treated the issue as collateral because it was not specifically addressed in argument.

Furthermore, a prior unappealed order had specifically permitted the convention and elections to proceed.

The appellants' remedy was to appeal the refusal of the injunction or put the issue squarely before the application judge.