CITATION: Thomson v. (Canada) Attorney General, 2012 ONSC 484
COURT FILE NO.: 10-DV-1639
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
IAN DESMOND THOMSON
Damien Buntsma, for the Plaintiff (Respondent)
Plaintiff (Respondent)
- and -
THE ATTORNEY GENERAL OF CANADA
Alexander Gay, for the Defendant (Appellant)
Defendant (Appellant)
HEARD: January 6, 2012
Reasons for Judgment
Aitken J.
Nature of Proceedings
[1] The Crown appeals from the Judgment of a Deputy Judge of the Small Claims Court in which he ordered the Crown to reimburse Ian Thomson, a former public servant, $2,653.56 for his out-of-pocket pool expenses while serving abroad at the Canadian Consulate in Dubai.
Background
[2] Ian Thomson was employed by the Federal Government of Canada (“the Government”), or one of its agencies, for a period of 36 years prior to his retirement on January 16, 2009. Between September 2006 and September 2008, Mr. Thomson was on assignment at the Canadian Consulate in Dubai where he held the position of Consul and Trade Commissioner.
[3] Prior to starting his duties in Dubai, Mr. Thomson visited the private villa that had been assigned to him by the Canadian Consulate. Following his visit, the Head of the Administrative Section at the Canadian Consulate emailed Mr. Thomson in August 2006 to ensure that he was aware of the existence of a private swimming pool at the villa and the requirement that Mr. Thomson maintain it. Mr. Thomson confirmed by return email that he was. He went on to state: “I assume the carrying out of this maintenance will occur under costs and conditions no less favourable than those enjoyed by any other Canada-based officers in Dubai with similar requirements or features associated with their SQs. Given that this assumption is correct, I would have no problem with the requirements you’ve cited.” No one responded to Mr. Thomson’s email stating that his assumption was incorrect or clarifying the costs and conditions applicable to other Canada-based officers in Dubai.
[4] Once Mr. Thomson was settled in Dubai, he learned that all other Canada-based staff working at the Canadian Consulate in Dubai (including the Senior Trade Commissioner, the Junior Trade Commissioner, a member of the RCMP, an immigration officer, and another consul working in the Human Resources area) had the use of a swimming pool at their place of accommodation, without having to pay for any ongoing maintenance costs. In some instances, the pool was provided to a multi-unit compound; in other instances, a private villa assigned to the employee had its own pool. In all situations, any upkeep costs associated with the pool were paid for by the landlord and covered by the rent that the Government paid to the landlord to provide accommodation for its employees. It was only in Mr. Thomson’s case that the ongoing pool maintenance costs were not paid for by the landlord and passed on indirectly to the Government through the rent it paid. Unlike everyone else, Mr. Thomson was required to pay for pool maintenance out of his own pocket.
[5] Between September 2006 and September 2008, Mr. Thomson raised this issue with the Head of the Administrative Section at the Consulate, seeking a resolution in some manner. He made various proposals – none of which was accepted. He did not consider his employer’s proposal to fill in the pool to be a fair response, since he would then be the only Canada-based staff at the Canadian Mission in Dubai without access to a pool.
[6] On August 6, 2008, Mr. Thomson wrote to Kim Ursu, the Head of the Administrative Section at the Consulate in Dubai, setting out the history of his complaints and concluding as follows:
So I give up with respect to possible alternative approaches. In this regard. By the end of this posting I will essentially be personally out-of-pocket roughly some AED 8,050 after tax dollars should this situation stand. Again, this is not acceptable to me, and I believe it to be inconsistent (admittedly in an indirect manner) with the intent of the FSD 17 provision under which I am posted to Dubai, whereby my rent-share is waived as I already maintain a residence in Ottawa.
I have attached a receipt for the pool servicing expenses at my SQ which have been incurred since my arrival in September 2006, through to August 15, 2008. Please consider this message to be a formal request for reimbursement of these expenses. If you are unable to accommodate this request, would you please be so kind as to advise of the next steps in terms of appealing a negative decision. In short, I appreciate what the Property Manual has to say about pool costs, however you can also hopefully appreciate the clear abrogation of the one specific condition I set with your predecessor in terms of accepted the assigned property in question. …
[7] On September 3, 2008, Ms. Ursu advised Mr. Thomson that she had been having consultations with “AEF”[^1] over the previous few weeks and, amongst other things, it was determined that, in regard to the Canadian property portfolio as a whole, every other Canada-based staff in Dubai had access to a pool at no personal cost. Ms. Ursu advised that “they” had agreed to take the issue to Working Group B, an interdepartmental group that discussed issues like this arising from an interpretation of Foreign Service Directive 25 (“FSD 25”) dealing with shelter issues. She went on to state:
At this meeting, they will review the situation and decide whether on the basis of fairness and compatibility your costs should be covered. Working Group B meetings are held during the third week of each month, so if the group does decide in your favour and approves the reimbursement of your costs, you will already have left post. But as we discussed, please keep the original receipt handy and ready to submit to DFAIT in case of a positive result.
Sorry this has taken so long (two years next week, in fact) but thanks for your patience and good nature throughout.
[8] On October 6, 2008, Mr. Thomson received an email advising that Working Group B had considered the issue and denied his request under FSD 25, as it was beyond the jurisdiction of the Working Group to devise a formula to ensure that the Mission recovers pool expenses from Canada-based staff in an equitable manner. Working Group B also decided that pool expenses were not covered under a rent waiver provision in Foreign Service Directive 17 (“FSD 17”) that applied to Mr. Thomson.
[9] On October 14, 2008, Ms. Ursu emailed Mr. Thomson to advise that there had been further discussions about the issue at the Consulate in Dubai, and they were unable to figure out an equitable way for the Consulate to cover the pool maintenance costs he had incurred during his two years in Dubai. She explained: “Upon accepting the SQ, the condition declared was not met – you were the only employee in the circumstances of pool costs being incurred outside of the SQ lease, and therefore there is no equivalency to draw which the Crown can cover those costs. Further the Crown has no obligation to provide pool/recreational access to staff at post, and changing that practice internally would be unfair to staff at other missions.”
[10] On November 28, 2008, Mr. Thomson wrote to the Director and Senior ICMS Officer at the Office of Prevention and Conflict Resolution at the Department of Foreign Affairs and International Trade (“DFAIT”) setting out the chain of events and seeking assistance in the resolution of the dispute. On May 20, 2009, Mr. Thomson was advised that neither the Head of Mission (the ambassador) nor DFAIT believed that they could reimburse the pool maintenance costs.
[11] On July 22, 2009, Mr. Thomson commenced his Small Claims Court claim against Her Majesty the Queen in right of Canada, seeking reimbursement of $2,653.56 plus pre-judgment interest.
Foreign Service Directives and Occupancy Agreement
[12] The Treasury Board of Canada has a set of Foreign Service Directives that govern its relationship with its employees working abroad on behalf of the Government. FSD 25 deals with shelter and related provisions. It applies not only to federal unionized employees, but also to persons not covered by collective agreements. Consequently, although Mr. Thomson was a member of management, and not a member of any bargaining unit, his entitlement regarding shelter while on his posting in Dubai was covered by FSD 25.
[13] One provision in FSD 25 is to the effect that, as a condition of occupancy of a Crown-held accommodation, an employee must sign an Occupancy Agreement. DFAIT has a standard form Occupancy Agreement that it insists its employees sign. Clause 9 of the Occupancy Agreement states:
If the Employee agrees to accept accommodation containing a swimming pool on the grounds of the premises, the Employee will be responsible for any required daily maintenance, including testing and treating the water, cleaning and vacuuming, and any costs associated with the seasonable opening and closing of the facility, and will assume all risks related to its use. The Employee will be responsible for the installation and maintenance of any additional enclosures not provided by the Mission, and removal of those on vacating the premises. If the Employee does not wish to be responsible for the pool, and so advises the Mission prior to occupancy of the premises, the Employer will either offer alternative accommodation or make arrangements to put the pool safely out of service.
[14] Clause 36 of the Occupancy Agreement states:
This Agreement constitutes a binding contract between the parties hereto and shall, for the purposes of contractual interpretation, be interpreted in accordance with the laws in force in the province of Ontario. However, the Employer is not subject to the jurisdiction of any Ontario court or tribunal for the interpretation of any rights as between the Employee and Employer, under this Agreement. Where an Employee disagrees with the Employer’s interpretation or application of this Agreement, a grievance may be presented in accordance with the National Joint Council Redress Procedure.
[15] The Head of Mission signed Mr. Thomson’s Occupancy Agreement on October 30, 2006, and Mr. Thomson signed on October 31, 2006.
Defence Advanced at Trial
[16] Initially, the Crown defended on the following grounds: (1) Mr. Thomson was bound by the terms of the Occupancy Agreement; and (2) clause 35 of the Occupancy Agreement provided that the Crown was not subject to any Ontario court for the interpretation of any rights as between the Crown and an employee. Subsequently, the Crown amended its Statement of Defence to replace the second argument with the following two alternative arguments: (1) ss. 206, 208 and 236 of the Public Service Labour Relations Act, 2003, S.C. 2003, c. 22 (“PSLRA”), meant that Mr. Thomson had no right of action in the courts of Ontario; and (2) any right of action would be statute barred under s. 4 of the Limitations Act, 2002, S.O. 2002, c. 24 (“Limitations Act”).
Judgment of the Deputy Judge
[17] The Deputy Judge rejected the Crown’s argument that the Superior Court of Justice had no jurisdiction to hear Mr. Thomson’s claim due to ss. 206, 208 and 236 of the PSLRA requiring the parties to the dispute to pursue grievance procedures, rather than litigation. The Deputy Judge determined that the language in s. 236 is not so clear and unequivocal to cover a person who is a former employee who has not availed himself of the grievance procedure under the PSLRA while employed.
[18] The Deputy Judge also rejected the Attorney General’s argument that any claim would be statute-barred under the Limitations Act. The Deputy Judge determined that Mr. Thomson’s cause of action arose in December 2006, when he learned that he was being treated differently from others at the Consulate. Between September 2008 and May 20, 2009, the parties engaged in a dispute resolution mechanism within s. 11 of the Limitations Act thereby interrupting the running of the limitation period and extending it to beyond the date upon which Mr. Thomson commenced this action.
[19] Finally, the Deputy Judge found that the Occupancy Agreement signed by Mr. Thomson was not binding on him. It was signed without consideration. The terms of the agreement between the Government and Mr. Thomson had already been set out in their exchange of correspondence, and there was no consideration provided to Mr. Thomson to sign the Occupancy Agreement in October 2006. Furthermore, to bind Mr. Thomson to the terms of the Occupancy Agreement would be unfair, unjust, and contrary to public policy.
[20] In short, the Deputy Judge found that Mr. Thomson and the Head of the Administrative Section at the Consulate in Dubai had entered into an agreement to the effect that Mr. Thomson would not be treated any differently from others at the Consulate in terms of the payment of pool-related costs. Mr. Thomson was treated differently from another employee who also had a private villa with a pool. Under the terms of his contract with the Government, he was not to be treated differently.
Grounds of Appeal
[21] Although additional grounds were raised in its Notice of Appeal, at the hearing, the Crown only pursued three grounds of appeal; namely, that the Deputy Judge erred in fact or in law in the following respects: (1) the Superior Court of Justice does not have the jurisdiction to entertain Mr. Thomson’s claim due to s. 236 of the PSLRA; (2) if an action lay in the Superior Court of Justice, it was statute-barred under the Limitations Act; and (3) Mr. Thomson was bound by the terms of the Occupancy Agreement that he signed with the Government.
Standard of Review
[22] The standard of review on a question of law is one of correctness. The standard of review on a question of fact is one of palpable and overriding error. The standard of review for questions of mixed fact and law depends on whether, in its essence, the question is one of law or is one of fact (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235).
First Ground of Appeal: PSLRA s. 236
[23] Section 208(1) of the PSLRA gives public servants the right to grieve in certain situations. The section reads as follows:
208(1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals 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 his or her terms and conditions of employment.
[24] Section 236 of the PSLRA reads as follows:
236(1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.
(2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.
[25] By virtue of ss. 2(1) and 206(2) of the PSLRA, the word “employee” in ss. 208 and 236 means a person employed in the public service, even if the person occupies a managerial or confidential position. Prior to January 16, 2009, Mr. Thomson was employed in the public service and occupied a managerial position. He was not a member of a union or any other bargaining unit, and was not subject to any collective agreement. Consequently, s. 208(1)(a)(i) and (b) applied to Mr. Thomson, but s. 208(1)(a)(ii) did not.
[26] The question then arises as to whether the dispute between Mr. Thomson and the Crown relates to the interpretation or application of a “direction or other instrument made or issued by the employer that deals with terms and conditions of employment” or is “as a result of any occurrence or matter affecting his … terms and conditions of employment”.
[27] Mr. Thomson takes the position that the dispute between himself and the Crown did not relate to the terms and conditions of employment. The Crown takes the position that it did. This requires consideration of the Foreign Service Directives and the Occupancy Agreement.
[28] The National Joint Council (“NJC”) of the Public Service of Canada is made up of representatives from the Government, as the employer, and various public service bargaining agents, who represent the employees. The Council acts as a forum for consultation between the employer and employees and for the establishment of directives that relate to terms of employment that apply across the public service. Paragraph 7.1.3 of the NJC Bylaws states: “National Joint Council directives are agreements resulting from Council consultation containing terms and conditions of employment which are deemed to be part of collective agreements.” The Foreign Service Directives developed by the NJC are specifically listed as directives deemed to be part of collective agreements applying to public servants.
[29] The Introduction to the Foreign Service Directives in effect in 2006 stated: “The Foreign Service Directives are designed to provide a system of allowances, benefits and conditions of employment that, in combination with salary, will enable departments and agencies to recruit, retain and deploy qualified employees in support of government programs outside Canada.”
[30] FSD 25 deals specifically with shelter and related provisions. It is stated as forming part of the collective agreements of the parties participating under the By-laws of the NJC. In addition, FSD 25 states that its provisions apply to persons not covered by collective agreements as indicated in the Directive or by employer policy. Mr. Thomson fell within that category.
[31] The Introduction to FSD 25, as it was worded in 2006, stated:
The employer is committed to a policy of average comparability which recognizes that wherever possible and practicable, and allowing for local conditions and lifestyles, the employer shall provide each Canada-based employee outside Canada with accommodation which is generally comparable to the average fully-serviced rental accommodation normally occupied by a person of similar salary and family configuration in the Ottawa/Gatineau area. In return, the employee shall pay a shelter cost to the employer which in general corresponds to the cost of average fully-serviced unfurnished rental accommodation normally occupied by a person of similar salary and family configuration in the Ottawa/Gatineau area…
This directive provides financial assistance to an employee in renting accommodation at a location outside Canada where housing costs exceed those of Ottawa/Gatineau and Crown-held accommodation is not provided.
[32] Paragraph 25.07(a) of FSD 25, as worded in 2006, stated that “[w]here an employee is allocated Crown-held accommodation at a post, it shall be a condition of assignment to that post that the employee occupy that accommodation, provided such accommodation is suitable.” Paragraph 25.07(c) stated: “As a condition of occupancy, the employee shall sign an Occupancy Agreement”. Pursuant to this provision, Mr. Thomson signed an Occupancy Agreement dated October 29, 2006. Clause 2 of the Occupancy Agreement stated that, in consideration of the employer providing residential accommodation to Mr. Thomson, he agreed to comply with the terms and conditions of the Occupancy Agreement. Throughout the Occupancy Agreement, the Crown is referred to as “the employer” and Mr. Thomson is referred to as “the employee”.
[33] In these circumstances, I cannot accept the argument advanced on behalf of Mr. Thomson that the dispute between himself and the Crown did not relate to the terms or conditions of his employment. The Crown was obliged to offer accommodation to Mr. Thomson during his posting in Dubai. Mr. Thomson accepted the Crown’s allocation of accommodation to him. Mr. Thomson signed the Occupancy Agreement, as he was obliged to do. In my view, Mr. Thomson felt aggrieved by the Crown’s interpretation or application in his case of clauses 9, 35 and 36 of the Occupancy Agreement – an instrument made or issued by the Crown that dealt with the terms and conditions of Mr. Thomson’s employment (s. 208(1)(a)(i)). More particularly, Mr. Thomson felt aggrieved as a result of the Crown’s failure to recognize the caveat he placed on his acceptance of the provisions in the Occupancy Agreement – an occurrence or matter affecting his terms and conditions of employment (s. 208(1)(b)). Consequently, the circumstances in this case are captured under the wording in s. 208(1)(a)(i) and (b) of the PSLRA, and Mr. Thomson, while an employee, was entitled to present an individual grievance. That being established, s. 236 then comes into play. Does that section successfully oust the jurisdiction of the Superior Court of Justice in the circumstances of this case?
[34] In Bron v. Canada (Attorney-General), 2010 ONCA 71, the Ontario Court of Appeal considered the scope and effect of s. 236 of the PSLRA and concluded that s. 236 explicitly ousts the jurisdiction of the court over claims that could be the subject of a grievance under s. 208. The Court pointed to a number of factors in arriving at this conclusion. First, s. 236 was a completely new provision in the PSLRA, which was passed after the Supreme Court of Canada’s decision in Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146. In Vaughan, the Supreme Court interpreted predecessor legislation, the Public Services Staff Relations Act, R.S.C. 1985, c. P-35 (“PSSRA”), as retaining for the court a residual discretion to permit an action to proceed despite the availability of the grievance procedure under the PSSRA. Section 236 in the PSLRA purports to change that. Second, subject to constitutional limitations not relevant to this discussion, Parliament can, through the use of clear language, confer exclusive jurisdiction to determine certain types of disputes on a forum other than the courts. Third, the wording in s. 236 is clear and unequivocal and leaves no doubt as to Parliament’s underlying intention in passing it. Fourth, in s. 236(3), Parliament identified the one and only exception to the general rule that the court’s jurisdiction is ousted. That exception had no relevance to the circumstances in Bron and has no relevance to this case. Fifth, s. 236(2) states that the general rule that the court’s jurisdiction is ousted applies whether or not the employee avails himself of the right to present a grievance, and whether or not the grievance could be referred to adjudication.
[35] The only opening the Ontario Court of Appeal left for jurisdiction to be assumed by the Superior Court of Justice, in regard to a claim that could be the subject of a grievance under s. 208 of the PSLRA, is in circumstances where the grievance procedure could not provide an appropriate remedy.
[36] The Deputy Judge found that Mr. Thomson could have grieved relating to the issue in this case while he was an employee. The Deputy Judge accepted a representation by counsel for the Crown that Mr. Thomson did not follow the grievance procedure contemplated by the PSLRA in seeking redress from the Government, that therefore he did not grieve as he was entitled to do under s. 208(1), and that as a former employee of the Government he no longer had the right to pursue a grievance. The Deputy Judge concluded that s. 236 of the PSLRA does not in clear and unequivocal language relate to a former employee who has not availed himself of the grievance procedure under s. 208(1) while employed. Therefore, the Superior Court of Justice retains jurisdiction to entertain a former employee’s claims in these circumstances. In my view, the Deputy Judge made an error in law in arriving at this conclusion. Parliament turned its mind to the situation of former employees and decided in s. 206(2) of the PSLRA to limit their access to the grievance procedure to those circumstances where their grievances concerned matters such as disciplinary actions resulting in suspension or any termination of employment. There is nothing in the legislation that suggests that Parliament intended to leave open to employees the option of choosing not to pursue a grievance, waiting until they left employment, and then commencing an action in the Superior Court for relief that they could have accessed through the grievance procedure. That, however, does not properly describe what happened to Mr. Thomson.
[37] There is no question that, while he was an employee, Mr. Thomson had the opportunity to commence a grievance procedure and seek redress under s. 208 of the PSLRA. The evidence was that Mr. Thomson sought advice from the Government as to how to pursue a grievance, but the Government did not provide him with the necessary information and documentation. Consequently, a formal grievance did not occur – but not through any conscious decision or fault on Mr. Thomson’s part.
[38] On August 6, 2008, Mr. Thomson emailed Ms. Ursu formally requesting reimbursement of his out-of-pocket pool expenses and quantifying his claim. In his email, Mr. Thomson stated: “Please consider this message to be a formal request for reimbursement of these expenses. If you are unable to accommodate this request, would you please be so kind as to advise of the next steps in terms of appealing a negative decision”. In her response of September 3, 2008, Ms. Ursu, on behalf of the Government, did not deny Mr. Thomson’s claim but instead advised that the issue was being referred to Working Group B. She held out hope that, if Working Group B decided the issue in his favour, he would be reimbursed. On October 14, 2006, Ms. Ursu advised Mr. Thomson that Working Group B had denied his request and that the Government would not be reimbursing him. She provided no information, documentation, or other guidance as to how Mr. Thomson should pursue a grievance – despite his specific request for this information in his August 6, 2008 email. Instead, Ms. Ursu gave Mr. Thomson the impression that he was at the end of the road in terms of any grievance procedure or appeal within DFAIT. That was a misrepresentation of the options available to Mr. Thomson at the time, and it was an abrogation of the employer’s duty to provide employees with the necessary information and documentation so that they could pursue a grievance.
[39] Sections 64 to 73 of the Public Service Labour Relations Board Regulations, SOR/2005-79 (“the Regulations”) set out how individual grievances are to be handled. An individual grievance process consists of a maximum of three levels (s. 64). The employee is supposed to present his individual grievance on a form provided by the employer and submit it to the employee’s immediate supervisor or the employee’s local officer-in-charge. Various responsibilities are placed on the employer to provide the employee with the necessary information and documentation to be able to properly pursue an individual grievance. The employer is to notify the employees of the names or titles of the persons whose decision on a grievance constitutes a level in the individual grievance process, and the name or title, as well as the address, of the employee’s immediate supervisor or local officer-in-charge to whom an individual grievance may be presented (s. 65(1)). The employer must also prepare a form for an individual grievance and make that form available to its employees (s. 66). There was no evidence that any of this had been done at the Canadian Consulate in Dubai or that any such information or documentation was ever made available to Mr. Thomson.
[40] In the absence of any directions from his employer as to the form he should use or the person he should contact, Mr. Thomson, quite reasonably, submitted his claim to Ms. Ursu, the Head of the Administrative Section at the Consulate in Dubai, and asked her what steps he could take if the claim was rejected. He copied this email to the Head of Mission. Instead of advising Mr. Thomson about the formal grievance procedure under the PSLRA, Ms. Ursu, with the approval of the Head of Mission, referred the issue to Working Group B. Mr. Thomson advised the Deputy Judge that, as far as he understood, the referral of the issue to Working Group B was part of a grievance procedure. This evidence was not challenged. There is no question that, in his August 6, 2008 email, Mr. Thomson provided all of the information that would have been required in a formal grievance notice.
[41] In my view, the appropriate legal doctrine allowing the Superior Court to assume jurisdiction in this case is that of estoppel. The Crown is estopped from relying on s. 236 of the PSLRA to challenge the jurisdiction of the Superior Court to entertain Mr. Thomson’s claim because the Government itself did not meet its own obligations under this legislation to provide Mr. Thomson with the necessary information and documentation to formally submit a grievance. Mr. Thomson specifically advised his superiors that he wished to pursue a grievance if DFAIT was not going to reimburse him as requested, and he asked how he should do so. Not only did the Government not answer this specific question but, by referring the matter to Working Group B, the Government led Mr. Thomson to believe that the grievance procedure was being pursued. He only found out that the Crown was challenging the jurisdiction of the Superior Court at the commencement of the trial when the Crown sought leave to amend its Defence to raise s. 236 of the PSLRA. Prior to that, the Crown had never raised the issue of his not having pursued a formal grievance under that legislation.
[42] As counsel for the Crown acknowledged on the appeal, the provisions regarding grievances for managerial employees, who are not covered by collective agreements and are not members of any bargaining units, are very confusing – even for Government lawyers. This is especially so in regard to disputes arising under the Foreign Service Directives and the Occupancy Agreement signed pursuant thereto. Clause 35 of the Occupancy Agreement states: “[w]here an Employee disagrees with the Employer’s interpretation or application of this Agreement, a grievance may be presented in accordance with the National Joint Council Redress Procedure”. However, this Redress Procedure can only be used by employees who are members of a bargaining unit that participates, along with the employer, on the NJC. In that Mr. Thomson was not a member of a bargaining unit, the Redress Procedure was not available to him. The Occupancy Agreement is silent as to the grievance procedure to be followed by managerial employees. In these circumstances, the doctrine of estoppel should be applied in a generous fashion.
[43] Mr. Thomson was not afforded the benefit of the grievance procedure as out in the PSLRA and accompanying Regulations and, once he retired in January 2009, that grievance procedure was no longer available to him. As the Deputy Judge correctly concluded, without access to the Superior Court of Justice, Mr. Thomson would be left with no avenue to seek redress. These are unique circumstances – not contemplated by the PSLRA. That takes us back to the Ontario Court of Appeal’s decision in Bron. As noted above, the Ontario Court of Appeal left open the possibility that, in circumstances where the grievance procedure could not provide an appropriate remedy under s. 208 of the PSLRA, the Superior Court retains jurisdiction to provide a remedy. I conclude that this is one of those rare cases.
[44] The Crown is estopped from defending this action on the basis that Mr. Thomson’s only avenue for relief was by way of a formal grievance under the PSLRA. Consequently, I have not been persuaded that the Deputy Judge erred in concluding that the Superior Court of Justice had jurisdiction to hear Mr. Thomson’s claim for reimbursement, though I reject aspects of the legal analysis upon which he arrived at that conclusion.
Second Ground of Appeal: Limitations Act
[45] The Deputy Judge found that the limitation period for an action before the Superior Court of Justice started to run in December 2006, as soon as Mr. Thomson realized that other Canada-based staff in Dubai were not required to pay pool maintenance costs. He found that the period was interrupted from September 2008 to May 20, 2009 within the meaning of s. 11 of the Limitations Act. He concluded that Mr. Thomson’s action, commenced on July 21, 2009, was brought within the limitation period.
[46] There is no issue that Mr. Thomson’s claim had to be commenced within two years of the day on which the claim was discovered. In regard to discoverability, s. 5(1) of the Limitations Act states:
5(1) A claim is discovered on the earlier of,
(a) the day on which the person with the claim first knew,
(i) that the injury, loss or damage had occurred,
(ii) that the injury, loss or damage was caused by or contributed to by an act or omission,
(iii) that the act or omission was that of the person against whom the claim is made, and
(iv) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it; and
(b) the day on which a reasonable person with the abilities and in the circumstances of the person with the claim first ought to have known of the matters referred to in clause (a).
[47] In my view, the Deputy Judge made a palpable and overriding error in deciding that the limitation period started in December 2006 when Mr. Thomson first learned that he was the only Canada-based staff at the Canadian Mission in Dubai paying directly for pool maintenance costs. Mr. Thomson was not complaining that the pool costs were not included in the rent the Government paid to the local landlord or that he initially had to arrange for pool servicing. His complaint was that the Government would not reimburse him – in one way or another – for his out-of-pocket expenses. Those expenses related to the entire period from September 2006 to September 2008. It was only in August 2008, when Mr. Thomson’s posting was coming to an end, that he could quantify his total out-of-pocket expenses. The evidence was that, although there were informal discussions between himself and Ms. Ursu regarding the pool issue from December 2006 to September 2008, Mr. Thomson did not make a formal request for payment of his pool expenses until August 6, 2008, and the Government did not formally advise him that it would not reimburse him for his pool expenses, or provide some other relief, until October 14, 2008. Therefore, the limitation period started to run on that date, and Mr. Thomson’s action was brought in time.
Third Ground of Appeal: Occupancy Agreement
[48] The Deputy Judge found that the Occupancy Agreement was not binding on Mr. Thomson for several reasons: (1) when Mr. Thomson signed the Agreement on October 31, 2006, he had already been living in the staff quarters for two months, and therefore he received no consideration for entering the Agreement; (2) the Crown consented to the caveat Mr. Thomson expressed in his August 8, 2006 email by not advising Mr. Thomson that it was not in agreement; and (3) the provisions in Mr. Thomson’s Occupancy Agreement relating to pool maintenance amounted to discriminatory employment practices and therefore were contrary to public policy.
[49] In regard to the issue of consideration, the Deputy Judge erred in law and in fact in finding an absence of consideration. There was no evidence of a lease between Mr. Thomson and the Crown, aside from the Occupancy Agreement. Although Mr. Thomson may have been entitled under the Foreign Service Directives to insist on receiving staff accommodation in Dubai, he had no right to insist on having the particular staff quarters he was provided. The evidence was that the Head of Mission had the right to assign staff quarters and, upon notice to an employee, could require the employee to vacate those quarters. In addition, FSD 25 clearly stated that, as a condition of occupancy of any staff quarters, an employee had to sign an Occupancy Agreement. In my view, nothing turns on the fact that Mr. Thomson’s Occupancy Agreement was signed two months after his arrival. The consideration he received for signing the Agreement was the right to continue to occupy the premises.
[50] In regard to whether the Crown consented to Mr. Thomson’s caveat as expressed in his August 8, 2006 email, I have not been persuaded that the Deputy Judge made a palpable and overriding error in finding that it had. There was evidence to support the finding that, through its failure to respond to Mr. Thomson’s August 8, 2006 email, the Government accepted the limitation of liability that Mr. Thomson expressed therein; namely, that he would pay the cost of pool maintenance only if he was being treated no less favourably than other Canada-based staff in Dubai.
[51] Mr. Thomson’s caveat was in writing and was clear:
I am aware of the pool and appreciate that it will require maintenance. I assume the carrying out of this maintenance will occur under costs and conditions no less favourable than those enjoyed by any other Canada-based officers in Dubai with similar requirements or features associated with their SQs. Given that this assumption is correct, I would have no problem with the requirements you’ve cited. [The requirement that had been cited to Mr. Thomson was that he maintain the pool.]
[52] Anyone reading this email would realize that, at the very least, what Mr. Thomson was saying was that he did not agree to pay pool maintenance costs if other Canada-based staff in Dubai occupying a private villa with a private pool did not have to pay pool maintenance costs in regard to their staff quarters. If at any point it came to be that other Canada-based staff were treated more favourably than himself in this regard, he expected to be reimbursed by the Consulate.
[53] Mr. Thomson’s email was sent to Deborah Airey, the then Head of the Administration Section at the Canadian Consulate in Dubai. She did not respond, and she was not called to testify at trial to explain her silence. Ms. Ursu took over this position shortly thereafter. Neither Ms. Airey, Ms. Ursu, anyone else at the Canadian Consulate in Dubai, nor anyone else at DFAIT ever told Mr. Thomson, before he agreed to accept the staff quarters that he was assigned, that he was mistaken as to his obligations regarding pool maintenance. When he took possession of his staff quarters, first Ms. Airey, and then Ms. Ursu, realized he was doing so on the mistaken belief that no one else at the Canadian Consulate in Dubai in similar circumstances had to pay for pool expenses. The Government had offered Mr. Thomson staff quarters subject to a particular term regarding pool maintenance, Mr. Thomson had accepted the offer subject to a further caveat limiting his liability, the Government did not object to that term, and the agreement was implemented by Mr. Thomson taking possession of the assigned staff quarters. The terms regarding payment of pool maintenance costs then became a contract between the Government and Mr. Thomson, with one implicit term of that contract being that the Government would reimburse Mr. Thomson to the extent that his payment of pool costs was a less favourable arrangement to him than that afforded any other Canada-based staff in similar circumstances.
[54] It is not in dispute that, when Mr. Thomson first arrived in Dubai, another consul in a similar position to that of Mr. Thomson had a private villa with a pool. That consul did not have to pay any of the maintenance costs for the pool because his landlord chose to include those costs in the rent he charged the Government, and the Government chose not to collect any amount from that consul to cover a notional portion of the rent relating to pool costs. The evidence was that, at all relevant times, the administration at the Canadian Consulate in Dubai was well aware of these circumstances. The silence of Consulate personnel, in response to Mr. Thomson’s specific statement of his understanding, amounted to a representation to Mr. Thomson that his understanding of his liability was correct, and it formed part of the agreement between the Government and Mr. Thomson.
[55] It was also argued on behalf of the Crown that, regardless of whether it could be said that the Government made a representation to Mr. Thomson that he would not be treated differently than other Canada-based staff in Dubai, any such representation merged in the signed Occupancy Agreement and had no further effect. This argument is based on clause 35 of the Agreement which states that there are no other express or implied terms and conditions except as set forth in FSD 25 Shelter, of the Foreign Service Directives.
[56] First, the evidence was that the agreement between Mr. Thomson and the Government regarding his occupying premises with a pool and paying the expenses associated therewith was implemented when Mr. Thomson agreed to accept the post and the proffered accommodation. The Occupancy Agreement may have expressed the parties’ agreement regarding other aspects of the housing arrangements for Mr. Thomson, but the evidence was that it did not play that role in regard to pool maintenance costs.
[57] Second, and in any event, the evidence was that prior to Mr. Thomson signing the Occupancy Agreement, no one at the Canadian Consulate advised him that, in doing so, he would be operating under the mistaken belief that no other Canada-based staff was being treated differently than himself in regard to pool maintenance expenses. The administrative staff at the Consulate knew that another consul was being treated differently at that time and that Mr. Thomson was relying on the representation that he was not. In these circumstances, the Deputy Judge did not err in concluding that the Crown could not rely on clauses 9 and 35 in the Occupancy Agreement.
[58] Third, based on the evidence, it was open to the Deputy Judge to find that the Consulate staff in Dubai interpreted clause 9 in the Occupancy Agreement in different ways in different circumstances and that, consequently, the clause had no uniform meaning. On the basis of the Government’s own evidence, this clause had no fixed meaning when used in Occupancy Agreements signed by Canada-based staff in Dubai in the fall of 2006.
[59] Clause 9 starts with the wording: “[i]f the Employee agrees to accept accommodation containing a swimming pool on the grounds of the premises …” and goes on to state that the employee is responsible for daily maintenance and seasonal openings and closings. However, according to the evidence at trial, this did not apply in situations where the swimming pool was shared or where the costs associated with the swimming pool (even if not shared) were paid for by the landlord and were buried in the rent charged to the Government. These caveats were not included in clause 9 of the standard form Occupancy Agreement used by the Canadian Consulate in Dubai in the fall of 2006; nevertheless, both the Consulate and the Canada-based staff in Dubai were expected to take them as part of the Agreement. In these circumstances, it was open to the Deputy Judge to conclude that, in the face of a specific agreement regarding pool expenses between Mr. Thomson and the Government, clause 9 did not bind Mr. Thomson. I note that the Superior Court of Justice is a court of equity and must seek to do justice, wherever possible.
[60] In that there was evidence at trial to support the decision of the Deputy Judge that an agreement existed between the Government and Mr. Thomson, as reflected in the August 8, 2006 email, the third ground of appeal must fail. I see no need to consider the Deputy Judge’s further reasoning that to enforce clause 9 in the Occupancy Agreement would be unfair, unjust, and contrary to public policy in that it would amount to discriminatory employment practices.
Disposition
[61] The appeal is dismissed. If the parties cannot agree on the issue of costs, written submissions of no greater than three pages plus any relevant exhibits may be submitted. Mr. Thomson will have two weeks in which to make submissions, the Crown will have two weeks thereafter to respond, with Mr. Thomson having one further week to make any brief written reply.
Aitken J.
Released: January 27, 2012
CITATION: Thomson v. (Canada) Attorney General, 2012 ONSC 484
COURT FILE NO.: 10-DV-1639
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
B E T W E E N:
IAN DESMOND THOMSON
Plaintiff (Respondent)
- and –
THE ATTORNEY GENERAL OF CANADA
Defendant (Appellant)
REASONS FOR JUDGMENT
Aitken J.
Released: January 27, 2012
[^1]: A body tasked with considering employee complaints under the Foreign Service Directives.