CITATION: McSweeney v. Attorney General of Canada 2016 ONSC 5268
DIVISIONAL COURT FILE NO.: 240/16
DATE: 20160818
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: MARTIN MCSWEENEY v. ATTORNEY GENERAL OF CANADA
BEFORE: NORDHEIMER J.
COUNSEL: G. Patterson & J. Bricker, for the moving party/defendant
R. Segal & M. Constantine, for the responding party/plaintiff
HEARD at Toronto: written submissions
E N D O R S E M E N T
[1] The moving party/defendant, Attorney General of Canada, seeks leave to appeal from the decision of Dow J. dated April 26, 2016 in which the motions judge, in brief reasons, dismissed the defendant’s motion to dismiss the plaintiff’s claim on the grounds that this court has no jurisdiction over the subject matter and/or the claim is an abuse of process pursuant to r. 21.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.
[2] The plaintiff was employed by the Canadian Security Intelligence Service. As a result of criminal charges laid against the plaintiff, CSIS first suspended, and then ultimately revoked, the plaintiff’s top secret security clearance. Since that clearance was a prerequisite for his employment, upon the revocation of the security clearance, CSIS terminated the plaintiff’s employment. The plaintiff subsequently commenced this action seeking damages for wrongful dismissal. The defendant moved to have the claim dismissed on the basis that there is a complete process set out in the Canadian Security Intelligence Service Act, R.S.C. 1985, c. C-23 by which an employee of CSIS can challenge a decision to revoke his/her security clearance. Since the plaintiff did not avail himself of that process, the defendant asserts that he has no right to seek redress from the courts arising from that decision.
[3] In order to obtain leave to appeal, a moving party must satisfy one of the two tests set out in r. 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, that reads:
Leave to appeal shall not be granted unless,
(a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or
(b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.
[4] The defendant relies on both of these tests for its request that leave to appeal be granted. In terms of deciding this motion, I note that, if leave is granted, r. 62.02(7) expressly refers to the judge giving “brief” reasons. I intend to do my best to comply with that direction. As I have noted before, it is my experience, and that of many of my colleagues, that when lengthy reasons are given for granting leave to appeal, they may actually serve to complicate the hearing of the appeal by providing yet another (often differing) perspective on the underlying issues. In my view, the reasons should address the issue of whether either of the tests for leave to appeal have been met, and why, but nothing more (save, where necessary, setting out the precise issues for which leave to appeal has been granted).
[5] Before turning to the two tests for leave to appeal, I should briefly address the plaintiff’s assertion that the defendant has asserted grounds on this motion for leave to appeal that are “entirely different” from the grounds put forward on the motion to strike. I am not satisfied that there has been such a seismic shift in the defendant’s position, as the plaintiff contends. There may be variations on the arguments advanced but the central contention remains, that is, the court should not entertain the plaintiff’s claim when the plaintiff had remedies under the applicable labour legislation to address his concerns and chose not to utilize them. I would also note that, while the plaintiff says that there was evidence that he might have led had the defendant’s current arguments been made at first instance, the plaintiff does not identify what evidence this would have been.
[6] In my view, both tests for leave to appeal are met in this case. In terms of the first test, the decision of the motions judge appears to conflict directly with the decision of the Federal Court of Canada in Tremblay v. Canada, 2005 FC 728, [2005] F.C.J. No 919 (F.C.); aff’d. 2006 FCA 90, [2006] F.C.J. No. 354 (C.A.). In Tremblay, virtually the same issue was engaged and the court in that case concluded that it did not have jurisdiction to hear the plaintiff’s action. While I am told that the decision in Tremblay was put before the motions judge, no mention of that decision, or of its possible impact on the issue, appears in the reasons of the motions judge.
[7] That conclusion regarding the first test leads, almost inexorably, to a conclusion that there is good reason to doubt the correctness of the decision under the second test. Of course, under that test, I do not have to conclude that the decision is wrong. Rather, I must only conclude that there is an issue about its correctness that needs to be determined – see, for example, Ash v. Lloyd’s Corp. 1992 7652 (ON SC), [1992] O.J. No. 894 (Gen. Div.) at para. 2. The apparent conflict with the decision in Tremblay is not the only reason for doubt, however. The conclusion reached by the motions judge also appears to be at odds with the general proposition set out by the Supreme Court of Canada in Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146 where the court found that courts generally ought to defer to processes designed in labour relations legislation to address claims by employees rather than entertaining those claims through the court process. As Binnie J. said, at para. 33:
As stated, the language of the PSSRA is not strong enough to oust the jurisdiction of the ordinary courts with respect to matters grievable but not arbitrable. The question before us is whether the courts should nevertheless defer to the PSSRA grievance procedure in this case. I believe it should.
[8] While the motions judge referred to Vaughan in his reasons, he declined to apply it because the legislation therein concerned, the PSSRA, was different in terms of its language than that of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 that is applicable here. In particular, the motions judge pointed to s. 236 of the PSLRA which reads:
(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.
(3) Subsection (1) does not apply in respect of an employee of a separate agency that has not been designated under subsection 209(3) if the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct.
[9] The motions judge held that because of s. 236(3), the principle in Vaughan had no application. I have doubts about the correctness of that conclusion. The decision in Vaughan recognized that the court’s jurisdiction had not been ousted but nevertheless held that the courts should defer to the legislated process. It does not follow that, just because it may be open to an employee to engage the court process, the court must allow the employee to use it.
[10] Finally, the motions judge relied on the permissive language of s. 41 of the CSISA to hold that the plaintiff was not required to follow the procedures set out in the statute and thus could choose to have recourse to the courts. For the reasons that I have just set out, that conclusion also does not sit comfortably with the conclusion in Vaughan. The court in Vaughan held that the fact that the employee’s claim “could” have been remedied under the legislative scheme was, itself, a reason not to allow the employee to have recourse to the courts – see para. 36.
[11] On this point, the motion judge’s conclusion does not address s. 42 of the CSISA which appears to give exclusive authority to the Security Intelligence Review Committee to review decisions to revoke security clearances. This is important since it seems that the validity of the decision to revoke the security clearance must, of necessity, be central to the claim for wrongful dismissal. Since the requirement for security clearance was an essential element of the contract of employment, it would seem necessary for the plaintiff to have to establish that that security clearance was wrongfully revoked in order to establish that his termination was wrongful, that is, without just cause. Yet that issue would seem to fall solely within the purview of the Review Committee – a review process that the plaintiff failed to avail himself of. Restricting that review to a specific body, rather than the courts, makes some sense since a review of the legitimacy of the revocation of a security clearance would likely, itself, involve evidence of a sensitive nature that would not be appropriately undertaken in a public court setting. Consequently, it is not clear that a court has jurisdiction to enter into a review of the reasons for the revocation of the plaintiff’s security clearance. If that is so, then a central issue to be determined in the litigation would perforce be outside the jurisdiction of the court.
[12] All of these issues give rise to a good reason to doubt the correctness of the order in question. That fact coupled with the conflict in the cases satisfy me that this matter is of sufficient importance that it should be heard and determined by the Divisional Court.
[13] Consequently, the motion for leave to appeal is granted. I fix the costs of the motion for leave to appeal in the amount of $10,000 but leave the determination of which of the parties, if either, should receive those costs to the panel hearing the appeal.
NORDHEIMER J.
DATE: August 18, 2016