Sweeney v. National Film Board of Canada, 2008 ONCA 87

Citation: Sweeney v. National Film Board of Canada, 2008 ONCA 87 Date: 2008-02-12 Docket: C47081

Court of Appeal for Ontario Feldman, MacFarland and Watt JJ.A.

Between: Sylvia Sweeney, Plaintiff/Appellant and National Film Board of Canada, Defendant/Respondent

Counsel: Joy Casey for the appellant, Sylvia Sweeney Sandra Nishikawa for the respondent, National Film Board of Canada

Heard and released orally: February 6, 2008 On appeal from the order of Justice Randall S. Echlin of the Superior Court of Justice dated March 28, 2007.

Endorsement

[1] There is no question that the Superior Court of Justice retains residual jurisdiction to deal with issues such as those raised here. See Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146; Guenette v. Canada (Attorney General) (2002), 60 O.R. (3d) 601 (C.A.).

[2] The appellant was never advised that a grievance procedure was available to her under the provisions of the PSSRA despite her numerous communications with the Human Resources department.

[3] The question of the court's jurisdiction was not even raised by the respondent until long after the statement of defence and amended statement of defence were filed – both are silent in this respect. We do not address the issue of attornment because it was not raised before the motion judge or on the appeal.

[4] By the time the jurisdiction question was raised – some three years after her termination – it was too late for the appellant to initiate a grievance process – even assuming that process is appropriate. If one considers the issues raised by the appellant which are in the nature of "whistle-blowing" allegations, the grievance process is arguably not the best place to air those sorts of issues. See Vaughan, supra at paragraph 39.

[5] The appellant's affidavit setting out the numerous persons and departments that she contacted in an effort to find out what she could do about her circumstances stood unchallenged before the motion judge.

[6] It was not for him at that stage of the proceeding to make a determination that the appellant was not a "whistle-blower".

[7] In our view the motion judge erred in failing to consider the failure of the respondents to alert the appellant to all of the procedures available to her to complain about her treatment.

[8] In our view, as a probationary employee in a managerial position, it would hardly be self-evident to the appellant, and there was no evidence that she knew of the availability of the grievance procedure, but, as the motion judge described it, "failed or refused to avail herself of it." And further, counsel for the NFB candidly acknowledged in argument that the NFB was itself unclear whether the grievance procedure was available until the Supreme Court of Canada decision in Vaughan. This motion was not brought until after the release of that decision.

[9] To deny the appellant access to the court now would leave her without a remedy and result in a miscarriage of justice. Accordingly, the appeal is allowed. The order of Echlin J. is set aside and, in its place, an order will go dismissing the respondent's motion.

[10] Costs of the appeal to the appellant fixed at $7,555.47 plus GST on a partial indemnity scale. Costs below in the sum of $5,000 are payable to the appellant.

"K. Feldman J.A." "J. MacFarland J.A." "David Watt J.A."