Guenette et al. v. Attorney General of Canada et al. [Indexed as: Guenette v. Canada (Attorney General)]

60 O.R. (3d) 601

[2002] O.J. No. 3062

Docket No. C35222

Court of Appeal for Ontario

Laskin, MacPherson and Simmons JJ.A.

August 8, 2002

Employment -- Jurisdiction -- Plaintiff government employees brought civil action against government and senior managers alleging that their superiors took punitive steps against them after they complained about perceived mismanagement and waste of money -- Motions judge erring in dismissing action on basis that court lacked jurisdiction as plaintiffs required to pursue grievance procedure established by Public Service Staff Relations Act and their collective agreement -- Plaintiffs' complaints not subject to adjudication under PSSRA -- "Exclusive jurisdiction" model did not apply in circumstances of this case -- Public Service Staff Relations Act, R.S.C. 1985, c. P-35.

The plaintiffs were employees of the Department of Foreign Affairs and International Trade. They brought an action against the government, the Minister of Foreign Affairs and senior managers alleging that their superiors took punitive steps against them when they complained about what they perceived to be mismanagement and waste of taxpayers' money. A motion for summary judgment by the defendants was granted on the basis that the court had no jurisdiction as the plaintiffs were required to pursue the grievance procedure established by the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the "PSSRA") and by the collective agreement between the Treasury Board and the plaintiffs' union, PSAC. In reaching that conclusion, the motions judge relied on the "exclusive jurisdiction" model set out in the decision of the Supreme Court of Canada in Weber v. Ontario Hydro. The plaintiffs appealed that judgment as against the government and the senior managers.

Held, the appeal should be allowed.

The primary consideration as to whether the exclusive jurisdiction model applies is whether the legislature exhibits in the statutory scheme a strong preference for a particular dispute resolution process to the exclusion of the courts. The court must consider whether the legislature intended the grievance process in the PSSRA to be the exclusive forum for resolving disputes under s. 91 of that Act which are not referable to adjudication under s. 92 or the collective agreement. The plaintiffs' complaints did not fall into the class of grievances referable to adjudication under s. 92 of the PSSRA or the collective agreement. The action did not involve the interpretation or application of a provision of the collective agreement or of an arbitral award; nor did it relate to disciplinary action taken against the plaintiffs. The process for dispute resolution created by Parliament which was at issue in this case did not appear to be intended as an exclusive one. That conclusion was supported by the combination of the following factors: (i) the lack of mandatory language in the PSSRA regarding submitting disputes to grievance proceedings; (ii) the explicit recognition in the PSSRA that the grievance procedure was not exclusive (s. 91(1)); (iii) the limited finality clause in the PSSRA (s. 96(3)); and (iv) the lack of recourse to a specialized and autonomous decision- making body under s. 91. The motions judge erred by concluding that the courts had no jurisdiction to hear and decide the plaintiffs' action.

The court should not decline to hear the plaintiffs' action on the basis that the dispute resolution process established by the PSSRA and the collective agreement was the more appropriate forum for dealing with the matters raised by the [page602] plaintiffs. The argument for deference could not survive the fact that the plaintiffs' claims were not subject to adjudication under the PSSRA.

APPEAL from a judgment granting a motion for a summary judgment and dismissing an action.

Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, 24 O.R. (3d) 358n, 125 D.L.R. (4th) 583, 183 N.R. 241, 30 C.R.R. (2d) 1, 12 C.C.E.L. (2d) 1, 24 C.C.L.T. (2d) 217, 95 C.L.L.C. 210-027, distd Bell v. Canada (Minister of Transport) (2002), 2002 NFCA 5, 210 D.L.R. (4th) 463 (Nfld. C.A.), affg (2001), 2001 33833 (NL SC), 198 Nfld. & P.E.I.R. 168, 598 A.P.R. 168 (Nfld. T.D.) (sub nom. Bell v. Canada (Attorney General)); Bouchard v. Canada (Ministre de la Défense nationale) (1999), 1999 9105 (FCA), 180 F.T.R. 9n, 187 D.L.R. (4th) 314, 255 N.R. 183 (C.A.), affg (1998), 1998 8626 (FC), 158 F.T.R. 232; Burgess v. Ontario (Ministry of Health) (2001), 2001 24073 (ON CA), 55 O.R. (3d) 507, 199 D.L.R. (4th) 295, 8 C.C.E.L. (3d) 32 (C.A.), affg (1999), 1999 15110 (ON SC), 46 O.R. (3d) 469, 48 C.C.E.L. (2d) 9 (S.C.J.) (sub nom. Burgess v. Ontario (Minister of Health)); Danilov v. Canada Atomic Energy Control Board (1999), 1999 4480 (ON CA), 48 C.C.E.L. (2d) 34, 125 O.A.C. 130 (C.A.) [Leave to appeal to S.C.C. denied (2000), 260 N.R. 399n]; Jadwani v. Canada (Attorney General) (2001), 2001 24157 (ON CA), 52 O.R. (3d) 660, 2001 C.L.L.C. 220-039, 5 C.C.E.L. (3d) 233 (C.A.), affg (2000), 2000 22333 (ON SC), 47 O.R. (3d) 276 (S.C.J.); Johnson- Paquette v. Canada (2000), 181 F.T.R. 125n, 253 N.R. 305 (C.A.), affg (1998), 1998 8709 (FC), 159 F.T.R. 42; New Brunswick v. O'Leary, 1995 109 (SCC), [1995] 2 S.C.R. 967, 163 N.B.R. (2d) 97, 125 D.L.R. (4th) 609, 183 N.R. 229, 419 A.P.R. 97, 95 C.L.L.C. 210-028 (sub nom. O'Leary v. R.); Pleau v. Canada (Attorney General) (1999), 1999 NSCA 159, 181 N.S.R. (2d) 356, 182 D.L.R. (4th) 373, 560 A.P.R. 356, 40 C.P.C. (4th) 1, 6 C.C.E.L. (3d) 215 (C.A.) [Leave to appeal to S.C.C. refused (2000), 262 N.R. 399n, 190 N.S.R. (2d) 200n, 594 A.P.R. 200n], affg (1999), 1999 36345 (NS SC), 181 N.S.R. (2d) 111, 560 A.P.R. 111, 37 C.P.C. (4th) 344 (S.C.); Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, 189 Sask. R. 23, 183 D.L.R. (4th) 14, 251 N.R. 16, 216 W.A.C. 23, [2000] 4 W.W.R. 149, 50 C.C.E.L. (2d) 1, 2000 C.L.L.C. 220-027, consd Other cases referred to Gendron v. Supply & Services Union of the Public Service Alliance of Canada, Local 50057, 1990 110 (SCC), [1990] 1 S.C.R. 1298, 66 Man. R. (2d) 81, 109 N.R. 321, [1990] 4 W.W.R. 385, 90 C.L.L.C. 14,020; Panagopoulos v. Canada, [1990] F.C.J. No. 234 (T.D.); Phillips v. Harrison (2000), 2000 MBCA 150, 153 Man. R. (2d) 1, 196 D.L.R. (4th) 69, 238 W.A.C. 1, [2001] 3 W.W.R. 589, 8 C.C.E.L. (3d) 1, 4 C.C.L.T. (3d) 248, 3 C.P.C. (5th) 40, [2000] MBCA 150 (C.A.); St. Anne Nackawic Pulp & Paper Co. v. Canadian Paperworkers Union, Local 219, 1986 71 (SCC), [1986] 1 S.C.R. 704, 73 N.B.R. (2d) 236, 28 D.L.R. (4th) 1, 68 N.R. 112, 184 A.P.R. 236, 86 C.L.L.C. 14,037; Townsend v. Canada (1994), 74 F.T.R. 21, [1994] F.C.J. No. 214 (T.D.) Statutes referred to Canada Labour Code, R.S.C. 1970, c. L.1 Canadian Charter of Rights and Freedoms, ss. 7, 8 Canadian Human Rights Act, R.S.C. 1985, c. H-6 Labour Relations Act, R.S.O. 1990, c. L.2, s. 45(1) Order Assigning to the Public Service Commission the Duty to Investigate Public Service Employee Complaints Respecting Personal Harassment, SI/86/194 Public Service Staff Relations Act, R.S.C. 1985, c. P-35, ss. 91, 92, 96(3) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 20 Authorities referred to Adams, G.W., Canadian Labour Law: A Comprehensive Text (Aurora, Ont.: Canada Law Book, 1985) [page603]

Andrew J. Raven, for appellants. Linda J. Wall, for respondents.

The judgment of the court was delivered by

MACPHERSON J.A.: --

A. INTRODUCTION

[1] Two employees of the Department of Foreign Affairs and International Trade complained about what they perceived to be mismanagement and waste of taxpayers' money. In their view, their superiors ignored their complaints and took punitive steps against them in their places of employment. They decided to sue the government, the Minister of Foreign Affairs and senior managers. They were met with a motion for summary judgment by the defendants on the basis that the decision of the Supreme Court of Canada in Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, 125 D.L.R. (4th) 583 ("Weber"), required, and limited, them to pursue the grievance process established by the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("PSSRA") and by the collective agreement between the Treasury Board and their union, the Public Service Alliance of Canada ("PSAC").

[2] The motions judge, Chadwick J., agreed with the defendants' submissions. He applied the "exclusive jurisdiction model" set out in Weber and held that the two employees could not initiate a civil action against the government, the Minister and the senior managers. The employees appeal that judgment as against the government and the senior managers; they do not appeal the judgment as against the Minister.

B. FACTS

(1) The Parties and the Events

[3] The appellants, John Guenette ("Guenette") and Joanna Gualtieri ("Gualtieri"), are members of the federal public service and employees of the Department of Foreign Affairs and International Trade. In June 1998, they commenced an action against the Attorney General of Canada, the Minister of Foreign Affairs and eight individuals, all senior managers in the government, claiming general damages of $3 million each and loss of pension earnings. They also seek jointly an award of $30 million as punitive, exemplary and aggravated damages to establish a non-profit [page604] advocacy organization with a mandate to represent and protect rights of all government employees, particularly relating to issues of abuse of power, harassment and principles of integrity.

[4] The appellants allege that since 1992 they have been unlawfully harassed by their supervisors because of their efforts to ensure cost effective management of foreign property owned by the Government of Canada in operating its diplomatic program. In particular, they say that they were not assigned meaningful duties by management, they were accused of not being team players, Gualtieri was deployed to a non-existent position, they were subject to abusive, threatening and offensive language and they were not provided with proper working facilities at their places of employment. As a result, they suffered physical and mental breakdowns and their careers in the public service have effectively been ruined.

[5] The appellants are both represented by PSAC and are subject to the terms of the PSSRA as well as the collective agreement between the Treasury Board and PSAC. The PSSRA and the collective agreement provide for the same grievance and adjudication processes. Section 91 of the PSSRA establishes that employees are entitled to present grievances at various levels as provided in the Act. Section 92 prescribes which of these grievances may subsequently be referred to adjudication, including grievances relating to the interpretation or application of the collective agreement. These provisions state:

91(1) Where any employee feels aggrieved

(a) by the interpretation or application, in respect of the employee, of

(i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing 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 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.

(2) An employee is not entitled to present any grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies, or any grievance relating to any action taken pursuant to an instruction, direction or regulation given or made as described in section 113. [page605]

92(1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to

(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,

(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),

(i) disciplinary action resulting in suspension or a financial penalty, or

(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or

(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,

and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.

(2) Where a grievance that may be presented by an employee to adjudication is a grievance described in paragraph (1)(a), the employee is not entitled to refer the grievance to adjudication unless the bargaining agent for the bargaining unit, to which the collective agreement or arbitral award referred to in that paragraph applies, signifies in the prescribed manner its approval of the reference of the grievance to adjudication and its willingness to represent the employee in the adjudication proceedings.

[6] Much of the language of ss. 91 and 92 of the PSSRA is incorporated in Articles M-38.02 and 38.23 of the collective agreement:

M-38.02 Subject to and as provided in Section 90 [now s. 91] of the Public Service Staff Relations Act, an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the Employer in matters other than those arising from the classification process is entitled to present a grievance in the matter prescribed in clause M-38.05 except that,

(a) where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee's specific complaint, such procedure must be followed,

and

(b) where the grievance relates to the interpretation or application of this Collective Agreement, the relevant Group Specific Agreement or an Arbitral Award, the employee is not entitled to present the grievance unless he or she has the approval of and is represented by the Alliance.

M-38.23 Where an employee has presented a grievance up to and including the Final Level in the grievance procedure with respect to: [page606]

(a) the interpretation or application in respect of him or her of a provision of this Collective Agreement or a related arbitral award,

or

disciplinary action resulting in discharge, suspension or a financial penalty,

and the employee's grievance has not been dealt with to his or her satisfaction, he or she may refer the grievance to adjudication in accordance with the provisions of the Public Service Staff Relations Act and Regulations.

Article M-38.03 provides that grievances are to be processed by recourse to four levels of management. The final level of decision-maker is the Deputy Minister or his/her authorized representative.

[7] In addition to the grievance and adjudication processes, the Treasury Board has an internal policy"Harassment in the workplace", which entitles employees to file complaints involving workplace harassment. It is also possible for employees to file complaints of harassment with the Investigations Directorate of the Public Service Commission ("PSC") pursuant to Order in Council No. SI/86/194 entitled "Order Assigning to the Public Service Commission the Duty to Investigate Public Service Employee Complaints Respecting Personal Harassment".

[8] The appellant Guenette filed a complaint of harassment and abuse of authority against two of his supervisors, Dawson and Townson, with the Investigations Directorate of the PSC in early 1996. He also filed a grievance under the PSSRA in September 1996, which was held in abeyance by mutual agreement pending the outcome of the PSC investigation. The PSC investigation resulted in a finding that the complaints against Dawson were not substantiated while those against Townson were substantiated in part. As recommended by the investigator, Townson was reprimanded and his performance monitored. Guenette's grievance was not proceeded with.

[9] The appellant Gualtieri filed a grievance under the PSSRA on December 6, 1996 and also filed a complaint with the Investigations Directorate on December 31, 1996. The grievance was held in abeyance pending the outcome of the PSC investigation; however, neither process was completed, principally because Gualtieri did not take steps to pursue them.

(2) The Litigation

[10] Instead of proceeding with grievances, both appellants issued the statement of claim described above. The defendants filed a statement of defence. They then moved, pursuant to Rule 20 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, for summary judgment to dismiss the action on the basis that the [page607] allegations fall within the exclusive jurisdiction of the dispute resolution regime established by the PSSRA and the collective agreement. [See Note 1 at end of document]

[11] The motions judge focused on Weber which, as he pointed out, was the latest decision of the Supreme Court of Canada dealing with the issue whether a court should exercise jurisdiction where a collective agreement and legislation provide a different forum and process for resolving disputes between an employer and employees. He identified the "exclusive jurisdiction model", which was the centrepiece of Weber, and stated that in "analyzing this model the two elements that must be considered are the dispute itself and the ambit of the Collective Agreement". He carefully reviewed these two elements and reached this conclusion:

In conclusion, I find that the plaintiffs are members of the union and there is a Collective Agreement and legislation in place to provide for resolution of workplace disputes. Their claims arise out of the employee/employer relationship and are workplace disputes, as such this court does not have jurisdiction to deal with this claim.

Accordingly, the motions judge granted the motion for summary judgment and dismissed the plaintiffs' action. The appellants appeal this decision.

C. ISSUES

[12] There are two issues on this appeal. The first is the main one and is raised by the appellants. The second issue, which is presented by the respondents, arises only if the appellants are successful on the first issue. I would state the issues in this fashion:

(1) Did the motions judge err by concluding that the courts have no jurisdiction to hear and decide the action brought by the appellants against the respondents?

(2) If the answer to question (1) is "Yes", should the court nonetheless decline to hear the appellants' civil action on the basis that the dispute resolution process established by the PSSRA and the collective agreement is the more appropriate forum for dealing with the matters raised by the appellants?

[13] The appellants' position on these issues is that the motions judge erred in strictly applying the principles enunciated in [page608] Weber to the circumstances of this case. Unlike in Weber, the appellants did not have access under the collective agreement and the PSSRA to a neutral third-party arbitrator to issue a binding decision in respect of their claims. Given the nature of their claims, which do not involve the interpretation or application of the collective agreement, there are no circumstances that would deprive the courts of jurisdiction to entertain this action. Nor should the courts decline to exercise their jurisdiction.

[14] The respondents argue that the motions judge was correct in holding that the exclusive jurisdiction model approved in Weber applies to this case. They concede that the appellants' complaints do not fall into the class of grievances referable to adjudication under s. 92 of the PSSRA or Article M-38.23 of the collective agreement. However, they rely on the Supreme Court of Canada's decision in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, 183 D.L.R. (4th) 14 ("Regina Police Association"), for the proposition that jurisdiction turns on whether the legislature has provided a scheme for the resolution of disputes. The respondents contend that the PSSRA and the collective agreement provide a comprehensive dispute resolution process for dealing with the workplace dispute in this case. The respondents argue in the alternative that if the motions judge erred in finding that the courts lack jurisdiction, then this is an appropriate case for the court to decline jurisdiction.

D. ANALYSIS

(1) The Exclusive Jurisdiction Issue

(a) The leading case - Weber v. Ontario Hydro

[15] The starting point, indeed the focal point, for resolving this appeal is, as the motions judge recognized, the decision of the Supreme Court of Canada in Weber.

[16] Murray Weber was employed by Ontario Hydro ("Hydro"). As a result of back problems, he took an extended leave of absence. Hydro paid him the sick benefits stipulated by the collective agreement. As time passed, Hydro began to suspect that Weber was malingering. It hired private investigators to investigate its concerns. The investigators went onto Weber's property and, pretending they were someone else, gained entry to his home. As a result of the information it obtained, Hydro suspended Weber for abusing his sick leave benefits. Weber took the matter to his union, which filed grievances against Hydro, which were eventually settled. In the meantime, Weber commenced a court action based on tort and breach of his rights under ss. 7 [page609] and 8 of the Canadian Charter of Rights and Freedoms, claiming damages for the surveillance. Hydro applied for an order striking out the action. The issue before the court was whether the court's jurisdiction over Weber's claim was ousted by s. 45(1) of the Labour Relations Act, R.S.O. 1990, c. L.2 ("LRA"), which provided:

45(1) Every collective agreement shall provide for the final and binding settlement by arbitration, without stoppage of work, of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement, including any question as to whether a matter is arbitrable.

[17] In a unanimous decision, the Supreme Court of Canada held that Weber could not proceed with the tort component of his civil action. In a 4-3 decision, the court also held that Weber could not proceed with the Charter-based component of his action.

[18] McLachlin J. reviewed three different views on the effect of final and binding arbitration clauses in labour legislation such as that contained in s. 45(1) of the LRA: the concurrent, overlapping and exclusive jurisdiction models. She described the exclusive jurisdiction model, at p. 956 S.C.R.:

The final alternative is to accept that if the difference between the parties arises from the collective agreement, the claimant must proceed by arbitration and the courts have no power to entertain an action in respect of that dispute. There is no overlapping jurisdiction.

On this approach, the task of the judge or arbitrator determining the appropriate forum for the proceedings centres on whether the dispute or difference between the parties arises out of the collective agreement. Two elements must be considered: the dispute and the ambit of the collective agreement.

In considering the dispute, the decision-maker must attempt to define its "essential character". . . .

[19] After further analysis, McLachlin J. adopted the exclusive jurisdiction model for this type of dispute in the labour relations domain. She stated her conclusion and summarized her reasoning in this fashion, at p. 959 S.C.R.:

To summarize, the exclusive jurisdiction model gives full credit to the language of s. 45(1) of the Labour Relations Act. It accords with this Court's approach in St. Anne Nackawic. It satisfies the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions. It conforms to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlapping litigation in the courts . . .

(b) Post-Weber case law involving the PSSRA

[20] In the seven years since Weber, there has been a good deal of case law in which courts across Canada have considered [page610] whether the exclusive jurisdiction model applies to other statutory and non-statutory regimes for the resolution of disputes. Several of those cases have dealt with civil actions initiated by employees of the federal government, who are governed by the PSSRA. Some of them are also members of public sector unions which have entered into collective agreements with the government. Accordingly, the Weber question has arisen: can a disgruntled employee or former employee initiate a civil action against the employer or is he or she restricted to the grievance and adjudication regime established by the PSSRA and, in some cases, by a collective agreement?

[21] A review of the jurisprudence in this area indicates that courts have reached different conclusions on whether or not the exclusive jurisdiction model of Weber applies to workplace disputes subject to the PSSRA. To some extent, the division in the case law turns on whether or not the employee is subject to a collective agreement. But judicial authority also diverges on the significance of the differences in the statutory framework established by the LRA which was at issue in Weber and the PSSRA.

[22] I think that a brief review of the post-Weber case law relating specifically to the PSSRA regime for federal public servants will serve as a useful backdrop for approaching the issues in this appeal. For organizational purposes, I will divide the cases into two categories: (1) cases in which the plaintiff/employee is governed by the PSSRA but is not subject to a collective agreement; and (2) cases in which the plaintiff/employee is subject to both the PSSRA and a collective agreement.

(i) Employee covered by the PSSRA but not subject to a collective agreement

[23] There are two major cases in this category. In both, Canadian appellate courts have held that the Weber model does not apply to preclude access to the courts with respect to workplace disputes. In reaching this conclusion, one of the courts made comments that would suggest that it would extend the reasoning to situations where an employee is under the PSSRA regime and is also covered by a collective agreement.

[24] In Danilov v. Canada Atomic Energy Control Board (1999), 1999 4480 (ON CA), 125 O.A.C. 130, 48 C.C.E.L. (2d) 34 (C.A.) ("Danilov"), application for leave to appeal dismissed, [1999] S.C.C.A. No. 573, the plaintiff was hired in 1977 by the Atomic Energy Control Board. The letter offering him employment stated that his tenure would be at pleasure. The plaintiff argued that during the 21 years that he had worked for the defendant, the terms of his [page611] employment had changed to include the right to severance pay on termination. The motions judge did not accept this argument, concluding that the plaintiff was employed at pleasure by the Crown and thus was not entitled to any notice of termination. On a motion for summary judgment, the motions judge dismissed the plaintiff's action for wrongful dismissal.

[25] This court reversed. It held that the matter ought to have gone to trial to determine the terms of the plaintiff's contract of employment at termination. The court concluded that the existence of the statutory grievance procedure provided by the PSSRA did not justify dismissing the plaintiff's action on the basis of the Weber principles, and said at pp. 131-32 O.A.C.:

That procedure does not permit the plaintiff to take this dispute to binding adjudication by a third party. He can do no more than raise it as a complaint with his employer. Moreover, unlike the circumstances in Johnson-Paquette v. Canada (1998), 1998 8709 (FC), 159 F.T.R. 42, the plaintiff here did not agree through collective bargaining to have the grievance procedure in the PSSRA serve as his dispute resolution mechanism.

Hence the rationale of Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929 is simply not applicable. Where the statutory grievance procedure is neither agreed to, nor is a mechanism providing final and binding adjudication of this dispute, that procedure cannot be said to have exclusive jurisdiction over the dispute to the exclusion of the courts.

Finally, where as here the grievance procedure is available not because it is incorporated into a collective agreement but because of the PSSRA itself, we do not think Parliament intended that the grievance procedure have exclusive jurisdiction over grievable disputes. As a matter of statutory interpretation, the PSSRA does not provide that this grievance procedure is to be a mandatory one meant to exclude the employee's right to sue. Rather it is a process which, in the language of the legislation, the employee "is entitled" to use. But the employee may also access the courts.

(Emphasis added)

[26] In Bell v. Canada (Minister of Transport) (2002), 2002 NFCA 5, 210 D.L.R. (4th) 463 (Nfld. C.A.), the plaintiff/respondent was a managerial employee of Transport Canada whose position was terminated following an internal restructuring. He commenced a civil action claiming damages for breach of contract. The defendant/appellant, Transport Canada, applied to strike his claim on the basis that the courts did not have jurisdiction to adjudicate the matter in light of the grievance procedure in s. 91 of the PSSRA.

[27] The Newfoundland Court of Appeal commented that courts have not been consistent in their approach or response to the availability of a civil action by an employee of the federal public service related to a workplace dispute. The court pointed to Johnson-Paquette v. Canada (discussed infra), Panagopoulos v. Canada, [1990] F.C.J. No. 234 (T.D.), [page612] Townsend v. Canada, [1994] F.C.J. No. 214, 74 F.T.R. 21 (T.D.) and Bouchard v. Canada (Ministre de la Défense Nationale) (discussed infra). In these cases, courts refused to hear civil actions brought by employees of the federal civil service arising out of the employment relationship. The court then referred at para. 28 to the following cases"which run, in varying degree, to the contrary": Danilov, supra, Burgess v. Ontario (Ministry of Health) (discussed infra) and Pleau v. Canada (Attorney General) (discussed infra). The court observed, at para. 35:

In dealing with cases under the PSSRA, there would appear to be little difficulty where the claimant is subject to a collective agreement (couched in the usual language), where the dispute is one which arises under such collective agreement and where the collective agreement makes the statutory grievance procedure mandatory. Despite the fact that s. 91(1) states that the employee is "entitled" to present a grievance, the provisions of the collective agreement supercede and the employee must utilize the grievance procedure.

[28] After noting that the employee in the case at bar was not subject to a collective agreement, the court concluded that the situation was comparable to that in Danilov, Pleau and Burgess. The plaintiff was not precluded from using the courts to resolve his dispute with his employer because the statutory grievance process was not agreed to by the plaintiff, the process is not a mechanism providing final and binding adjudication of the dispute and the operative section of the PSSRA grants no more than the right to invoke the grievance procedure.

(ii) Employee covered by the PSSRA and a collective agreement

[29] This is the category in which, arguably, the case law appears to diverge. The present appeal is a case in this category.

[30] In Bouchard v. Canada (Ministre de la Défense nationale) (1999), 1999 9105 (FCA), 187 D.L.R. (4th) 314, 255 N.R. 183 (F.C.A.) ("Bouchard"), the plaintiff/appellant employee filed an application for judicial review of a decision by authorities of the Defence Department refusing to reinstate her in the federal public service. The appellant had resigned her position but subsequently asked to be reinstated, alleging that her resignation had been the result of harassment by her fellow workers. The Federal Court of Appeal dismissed her appeal from a decision of the Federal Court (Trial Division) striking her application for judicial review.

[31] The court accepted the respondents' argument that there was no legal remedy because the appellant was a public service employee governed by a collective agreement and thus subject to the grievance and adjudication procedure provided in s. 91 et seq. of the PSSRA. The court acknowledged that the case was not on all fours with [page613] Weber and New Brunswick v. O'Leary, 1995 109 (SCC), [1995] 2 S.C.R. 967, 125 D.L.R. (4th) 609 ("O'Leary"), in the sense that the grievance procedure under the PSSRA is optional and there is no privative clause in the PSSRA. However, the court concluded that "under the modern approach to labour relations, disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts, although the latter 'possess residual jurisdiction based on their special powers' . . ." (p. 192 N.R.). The court observed that in the appellant's case"[i]t would certainly be possible for an adjudicator to legally conclude that the respondents' refusal in the circumstances to reinstate the appellant in her position constituted constructive dismissal" (p. 192 N.R.). Accordingly, the court had no jurisdiction to hear the appellant's application for judicial review.

[32] The Federal Court of Appeal also applied the Weber principles in Johnson-Paquette v. Canada (2000), 253 N.R. 305, 181 F.T.R. 125n. In that case, the plaintiff/appellant filed four grievances under the PSSRA arising from the same events. Two of the grievances dealt with harassment by a co-worker and two grievances involved the employer's failure to take appropriate action. All of the grievances were dismissed in the course of a binding decision at the final level of the grievance process. The appellant did not seek judicial review of the final grievance decision.

[33] The appellant subsequently commenced a civil action based on the facts complained of in her grievances. The Federal Court of Appeal upheld the motions judge's decision to dismiss her action. The appellant attempted to distinguish Weber on the basis that the grievance process did not allow her to proceed to adjudication. The court dismissed this argument at p. 307 N.R.:

I first note that it is inaccurate to say that third party adjudication was not available to the appellant in this instance. She had access to adjudication according to the dispute resolution process in place, subject to meeting the conditions prescribed in s. 92(1) of the Act and satisfying her union that the matter should proceed to adjudication pursuant to s. 92(2).

[34] The court did not say whether the appellant met the conditions prescribed in s. 92(1) so as to avail herself of the adjudication process. Instead, it observed that the more important consideration was that the grievance procedure had been adopted by the parties to the collective agreement to resolve employment-related disputes of the nature raised by the appellant in her grievance. The court noted that Danilov was distinguishable at p. 307 N.R.:

The appellant adhered to the collective agreement and availed herself of that process. This takes the present matter squarely outside the ambit of the decision of the Ontario Court of Appeal in Danilov v. Canada (Atomic Energy Control Board) where the Court noted that unlike the present situation, the [page614] plaintiff in that case had not agreed through collective bargaining to have the grievance procedure in the PSSRA serve as his dispute resolution mechanism.

(Footnotes omitted)

[35] The court rejected the appellant's argument that Weber was distinguishable because s. 45(1) of the LRA was framed in express terms, making arbitration the only available remedy, whereas ss. 91 and 92 of the PSSRA are framed permissively. The court observed that the express wording of the LRA was only one of three self-standing grounds that led the Supreme Court of Canada to conclude that concurrent proceedings were not available. The other two grounds described by the court in Weber applied to the labour dispute resolution processes provided by the PSSRA, namely: (1) labour relations legislation provides a code governing all aspects of labour relations, which would be undermined by the availability of a concurrent forum to which the legislature has not assigned the task of dealing with such matters; and (2) the availability of concurrent forums would undercut the regime of exclusive arbitration, which lies at the heart of all Canadian labour statutes, and would impede the quick and economical resolution of labour disputes.

[36] The court noted that Parliament's will to exclude the courts from labour relations disputes may arise by necessary implication as opposed to express language, citing Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 110 (SCC), [1990] 1 S.C.R. 1298 at p. 1321, [1990] 4 W.W.R. 385 ("Gendron"). It concluded that where Parliament through the PSSRA has "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 process 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" (p. 308 N.R.).

[37] Our court also applied the Weber principles in a case involving the PSSRA: Jadwani v. Canada (Attorney General) (2001), 2001 24157 (ON CA), 52 O.R. (3d) 660, 5 C.C.E.L. (3d) 233 (C.A.), application for leave to appeal dismissed, [2001] S.C.C.A. No. 200. The plaintiff/appellant was a civil servant with the Department of Industry, Science and Technology. He filed three grievances in 1992 and 1993: one grieved the employer's decision to put him on sick leave, the second grieved what he perceived as his indefinite suspension from work and the third grieved his dismissal. The grievances were heard by the Public Service Staff Relations Board, which ordered that the grievor be reinstated. Following his reinstatement, the grievor filed 12 harassment complaints under the [page615] Treasury Board's harassment in the workplace policy. An investigator dismissed his complaints.

[38] The appellant subsequently commenced an action against the Attorney General of Canada and individual public servants alleging various tort actions and claiming discrimination contrary to the Charter. McMurtry C.J.O. upheld the decision of the motions judge to strike the claim in its entirety. He noted that the allegations in the pleadings and those made in the adjudication were essentially the same. He concluded on the authority of Weber that the court had no jurisdiction to entertain the plaintiff's claim because the allegations fell within the exclusive jurisdiction of the grievance and arbitration process.

[39] McMurtry C.J.O. considered the decision of the Nova Scotia Court of Appeal in Pleau (discussed infra). He distinguished it on the basis that in Pleau the employee's complaints that were the actual subject of the civil litigation had not been referred to an adjudicator. He went on to distinguish Danilov on the basis that in that case the PSSRA did not entitle the employee to take his dispute to binding adjudication by a third party, whereas in the case before him, there was a collective agreement in place which dealt with the substance of the plaintiff's allegations and allowed the disputes in issue to be referred to third party adjudication. The collective agreement was consistent in this regard with s. 92 of the PSSRA, which provides that matters involving suspension or termination of an employee may be referred to adjudication. In the words of the Chief Justice"[s]triking the statement of claim in this case serves the policy goal of preventing the courts from becoming a duplicative forum for matters addressed and grieved under the Collective Agreement" (pp. 671-72 O.R.). Finally, McMurtry C.J.O. was satisfied that the appellant would not be denied a remedy if access to the courts were precluded. Although the statement of claim named personal defendants who were not parties to the collective agreement, the remedy remained against the employer.

[40] In Pleau v. Canada (Attorney General) (1999), 1999 NSCA 159, 182 D.L.R. (4th) 373, 40 C.P.C. (4th) 1 ("Pleau"), application for leave to appeal dismissed, [2000] S.C.C.A. No. 83, the Nova Scotia Court of Appeal refused to apply Weber to preclude an employee of the federal public service from bringing a civil claim. The plaintiff/respondent was an employee with the Department of Public Works and Government Services. In 1992, he wrote to the Prime Minister expressing concerns about certain practices with respect to the operation of the Crown Assets Disposal Centre in Dartmouth, which he believed were improper. In December 1992, he was dismissed from his employment. His subsequent grievance [page616] ended with an adjudicator reinstating him and restoring his lost salary and benefits.

[41] The plaintiff, his wife and two children then brought a civil action against the Attorney General of Canada and nine federal public servants alleging that the defendants conspired to cause injury and damage, breached their fiduciary duty and abused their office because of their wrongful conduct towards the plaintiff. The defendants conceded that the plaintiffs' claims could not be referred to a third party adjudicator under the collective agreement.

[42] The motions judge refused the defendants' motion to strike the claim and dismissed their motion for summary judgment. The Nova Scotia Court of Appeal affirmed. Cromwell J.A. identified three considerations that he viewed as underpinning the Supreme Court of Canada's decisions in St. Anne Nackawic Pulp & Paper Co. v. Canadian Paperworkers Union, Local 219, 1986 71 (SCC), [1986] 1 S.C.R. 704, 28 D.L.R. (4th) 1 ("St. Anne"), Gendron, Weber and O'Leary, at pp. 381-82 D.L.R.:

The first consideration relates to the process for resolution of disputes. Where the legislation and the contract show a strong preference for a particular dispute resolution process, that preference should, generally, be respected by the courts. While it takes very clear language to oust the jurisdiction of the superior courts as a matter of law, courts properly decline to exercise their inherent jurisdiction where there are strong policy reasons for doing so.

If the legislature and the parties have shown a strong preference for a dispute resolution process other than the court process, the second consideration must be addressed. It concerns the sorts of disputes falling within that process. This was an important question in the Weber decision. The answer given by Weber is that one must determine whether the substance or, as the Court referred to it, the "essential character", of the dispute is governed, expressly or by implication, by the scheme of the legislation and the collective agreement between the parties. Unlike the first consideration which focuses on the process for resolution of disputes, the second consideration focuses on the substance of the dispute. Of course, the two are interrelated. The ambit of the process does not exist in the abstract, but is defined by the nature of the disputes to be submitted to it.

The third consideration relates to the practical question of whether the process favoured by the parties and the legislature provides effective redress for the alleged breach of duty. Generally, if there is a right, there should also be an effective remedy.

(Emphasis in original)

[43] Cromwell J.A. then addressed these considerations in turn. With respect to whether the PSSRA and the collective agreement showed a strong preference for a particular process for the resolution of disputes, he concluded, at p. 396 D.L.R.:

I think it is apparent that this scheme is not exclusive in the same sense that word was used in Weber. As noted, the scheme under the P.S.S.R.A. is [page617] different in several respects. Matters for which there is another administrative procedure provided for under some other federal statute are excluded (Section 91(1)(b) and Article M-38.02); there is no provision making resort to the grievance or adjudication process mandatory and some types of grievances are excluded from the adjudication process. The Harassment Policy contemplates resort to other legal redress procedures.

(Emphasis in original)

[44] Cromwell J.A. acknowledged that the legislative scheme and collective agreement provide a comprehensive scheme for resolving workplace disputes, but he concluded that the Weber principles were not applicable in the circumstances. He said, at pp. 396-97 D.L.R.:

While the process is not explicitly made an exclusive one, the legislation and the Collective Agreement deal comprehensively with situations in which an employee feels unjustly treated or aggrieved by occurrences affecting the terms and conditions of employment. Matters for which there is administrative redress under other federal statutes are excluded, but that does not support an argument in favour of court jurisdiction. If the provisions of the P.S.S.R.A. and the other fora of administrative redress are considered, there exists a quite comprehensive scheme for dispute resolution outside the courts. However, the absence of a provision requiring (as opposed to entitling) recourse to the grievance procedure and the inability to submit the dispute to adjudication in my mind make this scheme, in relation to such disputes, entitled to considerably less deference than those under consideration in Weber and related cases. It may be that where employees invoke the grievance procedure, as they are entitled, but not required to do, they are bound by the results, subject to judicial review: see s. 96(3) and Article M-38.15. No recourse to the grievance procedure was taken here.

(Emphasis added)

[45] Regarding the second consideration relating to the types of disputes falling within the dispute resolution process, Cromwell J.A. noted that the plaintiff's claim did not involve the terms of the collective agreement and thus was not referable to third party adjudication. He reasoned, at pp. 400-01 D.L.R.:

We were not referred to provisions of the Collective Agreement or the P.S.S.R.A. which set out any standard relevant to consideration of the allegations made in the action. The Collective Agreement does not expressly or by implication deal with the substance of these allegations. The most that can be said is that the scope of the grievance procedure, which Mr. Pleau was entitled (but not expressly required) to employ, is broad enough to cover these complaints. The Collective Agreement provides no standards for assessing the claims and no process for adjudication of them on their merits by a third party.

[46] Finally, on the question of effective redress, Cromwell J.A. determined that the case fell within the two categories of cases where McLachlin J. in Weber stated that the courts may retain jurisdiction: (1) civil actions which do not expressly or inferentially arise out of the collective agreement; and (2) cases in which [page618] courts have a residual jurisdiction to ensure effective redress. He concluded, at p. 404 D.L.R.:

In my opinion, access to the grievance procedure without the right to test the outcome by adjudication on the merits by a third party does not constitute effective redress for the alleged wrongdoing in this case.

[47] Cromwell J.A. distinguished the trial decision in Johnson-Paquette v. Canada (1998), 1998 8709 (FC), 159 F.T.R. 42, subsequently upheld by the Federal Court of Appeal, on the basis that the grievance procedure in that case had been pursued to the final step, but judicial review had not been pursued. He suggested that in these circumstances a court action would be a collateral attack on the outcome of the grievance process. He also noted that Danilov and the case before him shared the feature that neither the statute nor the collective agreement provided a mechanism for binding adjudication by a third party in relation to the dispute.

[48] Cromwell J.A. concluded by emphasizing that the courts will have a small role as decision-makers at first instance given the comprehensive nature of the dispute resolution scheme at issue. He limited his conclusions to the facts of the case before him, stating at p. 406 D.L.R.:

This is a case in which the dispute is admittedly outside the scope of the adjudication process and in which the employee has not had recourse to the grievance process. I do not intend to, and do not address in these reasons, the availability of court actions where one or both of these elements is not present. In my view, confining the scope of court actions within this narrow sphere is essential to ensuring effective redress and is not unduly intrusive into the collective bargaining relationship.

(c) Discussion

[49] As noted in Pleau, the primary consideration as to whether the exclusive jurisdiction model applies is whether the legislature exhibits in the statutory scheme a strong preference for a particular dispute resolution process to the exclusion of the courts. In other words, the court must consider whether the legislature intended the grievance process in the PSSRA to be the exclusive forum for resolving disputes under s. 91 which are not referrable to adjudication under s. 92 or the collective agreement. As I noted earlier, the respondents make the important concession that the appellants' complaints do not fall into the class of grievances referable to adjudication under s. 92 of the PSSRA or Article M-38.23 of the collective agreement. That is a fair concession because the subject matter of the appellants' action does not involve the interpretation or application of a provision of the collective agreement or of an arbitral award; nor does it relate to disciplinary action taken against the appellants. [page619]

[50] For the reasons given by Cromwell J.A. in Pleau, the process for dispute resolution created by Parliament which is at issue here does not appear to be intended as an exclusive one. The combination of the following factors supports this conclusion:

(i) the lack of mandatory language in the PSSRA regarding submitting disputes to grievance proceedings: see s. 91(1);

(ii) the explicit recognition in the PSSRA that the grievance procedure is not exclusive: see s. 91(1);

(iii) the limited finality clause in the PSSRA: see s. 96(3), which limits the finality of decisions at the final level of the grievance process to the "purposes of this Act"; and

(iv) the lack of recourse to a specialized and autonomous decision-making body under s. 91.

[51] The first factor, the lack of mandatory language in the legislation prescribing the use of grievance proceedings, was referred to by this court in Danilov and Burgess (discussed infra), as well as by Cromwell J.A. in Pleau, as a reason for distinguishing Weber. Indeed, in my view, this factor has two dimensions in the present case. It implicates both the first and second considerations mentioned by Cromwell J.A. in the passage from Pleau set out earlier in these reasons. The PSSRA does not establish, generally speaking, a process of exclusive dispute resolution; nor, as the respondents concede, is this the sort of dispute that falls within the adjudication component of the PSSRA and the collective agreement.

[52] The second factor reflects that s. 91(1) of the PSSRA provides that the grievance procedure is not to be used "where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee's specific complaint . . .". In such cases, the alternative procedure "must be followed". The grievance process is thus not the exclusive administrative forum for disputes referred to in s. 91 or Article M-38.02. For example, where an employee raises an employment-related complaint involving discrimination contrary to the Canadian Human Rights Act, R.S.C. 1985, c. H-6, he or she would use the administrative procedure for redress provided in that Act.

[53] Regarding the third factor, the lack of a strongly worded privative clause to protect grievance decisions serves to distinguish the passage from Gendron cited by the Federal Court of Appeal in Johnson-Paquette at p. 308 N.R. in support of its holding that Parliament intended the PSSRA to be the complete mechanism for dispute resolution. [page620]

[54] The main issue in Gendron concerned the jurisdiction of courts to entertain a claim by an employee alleging a breach of the duty of fair representation by his bargaining agent under the Canada Labour Code, R.S.C. 1970, c. L-1. In concluding that the courts would have only a small role, if any, to play in determining disputes covered by the statute, L'Heureux-Dubé J. considered relevant the privative clause in the Code. That clause protected decisions of the Canada Labour Relations Board from being reviewed in any court, except in accordance with the provision of the Federal Court Act establishing the right to apply for judicial review. L'Heureux-Dubé J. interpreted the clause as indicating that "Parliament envisioned a fairly autonomous and specialized Board whose decisions and orders were to be accorded deference by the ordinary courts, subject only to review within the confines of the privative clause" (p. 1321 S.C.R.).

[55] In contrast, the limited wording of the final and binding clause in the PSSRA does not support the inference that the legislature intended to preclude access to the courts. Section 96(3) provides:

96(3) Where a grievance has been presented up to and including the final level in the grievance process and it is not one that under section 92 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken thereon.

As noted in Bouchard"[t]his wording does not as such exclude recourse to external remedies" (p. 191 N.R.). Nor does it confine such recourse to judicial review.

[56] Regarding the fourth factor, the Manitoba Court of Appeal in Phillips v. Harrison (2000), 2000 MBCA 150, 196 D.L.R. (4th) 69, 153 Man. R. (2d) 1, stated that in assessing whether the legislature intended to preclude access to the courts, the specialized nature, if any, of the statutorily created dispute resolution forum should be considered. This view is supported by the analysis in Gendron, which indicates that a reason for curial deference to structures set up by labour legislation is the specialized nature of the statutory tribunal. In Gendron, L'Heureux-Dubé J. cited a passage from G.W. Adams, Canadian Labour Law: A Comprehensive Text (Aurora, Ont.: Canada Law Book, 1985) to the effect that labour relations boards represent greater specialization and expertise than courts of superior jurisdiction regarding labour relations.

[57] In the case at bar, as Cromwell J.A. observed in Pleau"[w]e have been told nothing about the grievance procedure apart from what appears in the statute and the Collective Agreement" (p. 404 D.L.R.). These sources indicate that there are four levels of the process, with a manager being the decision-maker at each level. The employer designates the representative [page621] at each level: see Articles 38.03-04 of the collective agreement. There is no indication of what qualifications are required to obtain such designation, beyond holding a management position. The forum for resolving disputes does not appear to be specialized in labour relations in the sense contemplated in Gendron.

[58] The lack of access to independent adjudication is also an important consideration which distinguishes the PSSRA regime from the schemes considered in St. Anne, Gendron, Weber and Regina Police Association. The court in Danilov pointed to the lack of recourse to a neutral adjudicator in distinguishing Weber. The court in Jadwani justified applying Weber to the dispute before it after noting that, unlike in Danilov, the employee's complaints could be, and in fact were, brought to an adjudicator under s. 92. Similarly, in finding that a judicial review application could not be brought in Bouchard, the Federal Court of Appeal noted that the employee could have submitted her dispute to adjudication on the grounds that she had been constructively dismissed: see s. 92(1)(c).

[59] The respondents refer to the ability to seek judicial review of a grievance officer's decision as somehow overcoming the lack of recourse to independent adjudication. Yet the availability of judicial review is, in my view, irrelevant to the issue whether the statutory scheme exhibits an intention to create an exclusive regime: the PSSRA does not provide for the mechanism of judicial review.

[60] Cromwell J.A. acknowledged the point made by the Federal Court in Johnson-Paquette and pressed by the respondents on this appeal that the PSSRA provides a quite comprehensive scheme for dispute resolution outside the courts. However, in my view, this factor does not overcome the combination of factors listed above which indicates that the legislature did not intend that the regime be exclusive.

[61] I conclude my discussion of this first issue by noting that the respondents rely on Regina Police Association as confirming the Federal Court's view that the exclusive jurisdiction model should be applied to disputes governed by the PSSRA. Regina Police Association post-dates Johnson- Paquette, Danilov and Pleau. The respondents rely in particular on this passage from Bastarache J.'s reasons at p. 380 S.C.R.:

The analysis applies whether the choice of forums is between the courts and a statutorily created adjudicative body, or between two statutorily created bodies. The key question in each case is whether the essential character of a dispute, in its factual context, arises either expressly or inferentially from a statutory scheme.

According to the respondents, jurisdiction turns on whether the legislature has provided a scheme for the resolution of disputes. [page622] The right to bring a grievance under s. 91 of the PSSRA encompasses virtually all employment-related matters.

[62] I do not agree with the respondents' contention that Regina Police Association limits the appellants to the grievance regime in the PSSRA and the collective agreement. Regina Police Association involved a competition between using a disciplinary regime established under The Police Act, 1990, S.S. 1990-91, c. P-15.01 (the "Police Act") and a grievance process created by a collective agreement. The Supreme Court of Canada found that the essential character of the dispute in the case was disciplinary and applied the exclusive jurisdiction model from Weber to require the police officer to proceed under the Police Act. However, Bastarache J.'s description of the disciplinary regime established by the Police Act is, in my view, crucial. He said, at p. 376 S.C.R.:

The detailed provisions in the legislative scheme governing disciplinary matters are a clear indication that the legislature intended to provide a complete code within The Police Act and Regulations for the resolution of disciplinary matters involving members of the police force.

[63] I do not regard the PSSRA as a similar code-like law. A key distinction is that whereas in Regina Police Association the police officer's claim could be adjudicated under both the statutory and collective agreement regimes, in the present case the respondents concede that the appellants' claim cannot be adjudicated under the PSSRA and collective agreement regimes. In my view, a code with a comprehensive, independent and expert adjudication forum, as in Regina Police Association, [See Note 2 at end of document] is very different from an alleged "code" which contains no adjudicative forum for certain disputes, including the one presented by this case.

[64] In Pleau, Cromwell J.A. limited his conclusion that a court action was available to the circumstances before him: the dispute was admittedly outside the scope of the adjudication process and the employee had not invoked recourse to the grievance process. In my view, these circumstances exist in the case at bar. The respondents admit that the appellants' complaints are not subject to the adjudication process. Moreover, while the appellants filed grievances related to the acts of which they complain in their civil action, simply filing a grievance without going to any of the four possible levels of the grievance process does not constitute recourse to that process. In any event, this latter circumstance strikes me [page623] as irrelevant to the issue whether the court has jurisdiction over the dispute. An employee's recourse to the grievance process cannot affect whether the court has concurrent jurisdiction over the dispute, although this consideration could prompt a court to decline to exercise its jurisdiction.

[65] For these reasons, I would answer the first question in the Issues section of these reasons in the affirmative. It is necessary, therefore, to turn to the second issue: should the court decline to exercise its jurisdiction to hear the appellants' civil action?

(2) Should the Court Decline Jurisdiction?

[66] The respondents only faintly argue this issue. In their factum they say simply: "In the alternative, if [the motions judge] erred in finding that the court lacked jurisdiction, this is an appropriate case to decline jurisdiction, given the facts."

[67] I disagree. In Burgess v. Ontario (Ministry of Health) (2001), 2001 24073 (ON CA), 55 O.R. (3d) 507, 199 D.L.R. (4th) 295 (C.A.) ("Burgess"), this court held that the grievance procedure established by the Ontario Public Service Act, R.S.O. 1990, c. P.47 ("PSA") did not oust the jurisdiction of the courts to hear a wrongful dismissal action brought by a public servant. The court held that the Public Services Grievance Board ("PSGB") and the courts had concurrent jurisdiction.

[68] The court then turned to the issue whether the court should decline to exercise its jurisdiction, a point that was seriously advanced in Burgess. The court concluded, at pp. 518-19 O.R.:

[T]he grievance regime established by the PSA . . . is much closer to the PSSRA regime in Danilov and Pleau than to the various statutory regimes in cases like St. Anne-Nackawic, Weber and Regina Police Association. In the latter group of cases, the adjudicative regimes are comprehensive, mandatory and final. The grievance procedure under the PSA, on the other hand, is partial, optional and, perhaps, not final because of the absence of a privative clause. These descriptive adjectives do not suggest . . . that the courts should defer to the jurisdiction of the PSGB.

[69] I would reach the same conclusion in the present appeal. Indeed, in my view, the argument against deference is even stronger in this case than in Burgess. The respondents concede that the appellants' claims are not subject to adjudication under the PSSRA. In my view, the argument for deference simply dissolves with this concession. Deference to another adjudicative body is one thing; deference to a scenario where there would be no adjudication at all is an entirely different matter.

E. DISPOSITION

[70] I would allow the appeal. The appellants are entitled to their costs of the motion for summary judgment, which I would [page624] fix in the same amount as the motions judge fixed them in favour of the respondents: "$25,000 plus disbursements . . . and GST", and their costs of the appeal which I would fix at $25,000 inclusive of disbursements and GST.

Appeal allowed.

Notes

Note 1: The defendant Hon. Lloyd Axworthy, the Minister of Foreign Affairs and International Trade, brought a separate motion for summary judgment based on different grounds. He succeeded before Chadwick J. The appellants do not appeal this component of the motions judge's decision.

Note 2: The statutory scheme at issue in Regina Police Assocition provided for a hearing before either the Chief of Police, an independent hearing officer or the Saskatchewan Police Commission. The arbitrator at first instance "noted that each of these adjudicators has specialized expertise in law enforcement matters" (at p. 365 S.C.R.).