Court File and Parties

CITATION: Merrifield v. Canada (Attorney General), 2009 ONCA 127

DATE: 20090210

DOCKET: C49092

COURT OF APPEAL FOR ONTARIO

Gillese, MacFarland and LaForme JJ.A.

BETWEEN

Peter Merrifield

Respondent

and

The Attorney General of Canada, Inspector James Jagoe, Superintendent Marc Proulx

Appellants

Sean Gaudet and James Gorham, for the appellant

Laura C. Young, for the respondent

Heard: January 27, 2009

On appeal from the Order of Justice Ellen Macdonald of the Superior Court of Justice dated June 27, 2008.

ENDORSEMENT

[1] The respondent is a constable with the Royal Canadian Mounted Police (RCMP) who alleges that he was harassed by certain of his superiors within the RCMP. He claims that his superiors deemed his political views and his political participation incompatible with the discharge of his duties. In this regard, he asserts that the appellants employed aggressive and intimidating means to silence him including: punitive transfers; circulating rumours about his conduct and integrity; and, manifesting an atmosphere designed to isolate and humiliate him. He further contends that he was investigated, lied to, audited, gagged, and faced allegations that he breached the Code of Conduct and the Official Secrets Act.

[2] The respondent commenced an action seeking declaratory relief and damages for, among other things, harassment and breach of sections 2(b) and (d) of the Charter. The Attorney General of Canada and the other defendants immediately moved to strike out the respondent’s claim and to dismiss the action pursuant to rules 21.01(1)(a) and (b) of the Rules of Civil Procedure. Essentially they argued that the court should defer to the grievance process set out in the Royal Canadian Mounted Police Act, R.S.C. 1985, c. R-10 (RCMP Act) and the Commissioner’s Standing Orders, SOR/2003-181, registered May 26, 2003.

[3] The motion judge dismissed the appellants’ motion, finding that it is not plain, obvious and beyond any doubt that the action cannot succeed. She held that, having regard to the existing jurisprudence and the contextual approach dictated by Vaughan v. Canada 2005 SCC 11, [2005], 1 S.C.R. 146, the appellants could not discharge the burden required pursuant to rule 21 to strike this claim. The moving parties appeal.

[4] While the appellants raise numerous grounds of appeal; the fundamental issue is whether the appellants can meet the very high threshold under rules 21.01(a) and (b). At the core of their appeal is the contention that the motion judge misinterpreted and misapplied the Supreme Court of Canada decision in Vaughan.

[5] The appellants submit that on a correct interpretation of Vaughn, the facts of this case compelled the motion judge to find that: (i) the RCMP Act and the Commissioner’s Standing Orders, is a comprehensive regime entitled to deference by the courts; and (ii) this is not an exceptional case such that the courts should not give deference to the statutory regime.

[6] We agree with the motion judge’s decision that the appellants have not met the threshold to succeed on their motion under rule 21.01.

[7] First, like the motion judge, we do not agree that the decision in Vaughn was intended to apply to all disputes that arise out of the employment relationship, with the exception of “whistle-blower” type cases. A harassment claim raises virtually the same credibility issues as a case of harassment due to a whistle-blowing employee.

[8] Second, contrary to the appellants’ arguments, the motion judge did consider whether the RCMP grievance process was a comprehensive regime. She found — correctly in our view — that this case militated against deferring to the statutory grievance process in view of the nature of the allegations made. Parenthetically, we note that other courts have held that the statutory framework of the RCMP Act does not oust the court’s jurisdiction: for example, see Phillips v. Harrison, 2000 CarswellMan 648 (C.A.).

[9] Importantly, the motion judge correctly noted that the RCMP grievance procedure does not have the necessary means to make findings of credibility, as it does not provide for oral hearings, and the factual findings of an investigator need not be followed by the adjudicator. Nor does the grievance procedure allow for independent third party adjudication.

[10] In Vaughan, it was found that the grievance procedure could have provided the relief sought, namely, the provision of benefits. In the case at bar, however, the grievance mechanism cannot provide the remedies requested, namely, declarations and damages. We agree with the respondent: the facts pleaded in this case expose a “particular and individualized conflict” that cannot be resolved without a consideration of credibility by an independent third party.

[11] In sum, the motion judge was entitled to find that this is an exceptional case such that the courts should not give deference to the statutory regime. She applied the correct test and committed no errors in her reasons for dismissing the appellants’ rule 21 motion. Accordingly, the appeal is dismissed.

[12] The respondent is awarded his costs of this appeal in the all inclusive amount of $10,000.

“E.E. Gillese J.A.”

“J. MacFarland J.A.”

“H.S. LaForme J.A.”