Bron v. Attorney General Canada et al. [Indexed as: Bron v. Canada (Attorney General)]
99 O.R. (3d) 749
Court of Appeal for Ontario,
Doherty, Gillese and Epstein JJ.A.
January 29, 2010
Courts -- Jurisdiction -- Plaintiff bringing action claiming that defendants retaliated against him or otherwise mistreated him as result of his whistle-blower activities -- Plaintiff's allegations being matters that could be grieved under Public Service Labour Relations Act and applicable collective agreements -- Section 236 of PSLRA explicitly ousting jurisdiction of court over claims that could be subject of grievance under s. 208 of Act -- Section 236 not containing exception for whistle-blower complaints -- Public Service Labour Relations Act, S.C. 2003, c. 22, ss. 208, 236.
Employment -- Labour relations -- Jurisdiction -- Plaintiff bringing action claiming that defendants retaliated against him or otherwise mistreated him as result of his whistle-blower activities -- Plaintiff's allegations being matters that could be grieved under Public Service Labour Relations Act and applicable collective agreements -- Section 236 of PSLRA explicitly ousting jurisdiction of court over claims that could be subject of grievance under s. 208 of Act -- Section 236 not containing exception for whistle-blower complaints -- Public Service Labour Relations Act, S.C. 2003, c. 22, ss. 208, 236. [page750]
The plaintiff was employed by Transport Canada as acting chief of Marine Regulatory Projects. At the relevant times, the terms and conditions of his employment were governed by two collective agreements and by the Public Service Labour Relations Act. He claimed that, as a result of his whistle- blowing activities, the individual defendants retaliated against him or otherwise mistreated him and that the Attorney General of Canada was vicariously liable for their actions. He brought an action for declaratory relief and for damages for intentional infliction of mental distress, negligent infliction of mental distress, abuse of statutory power, interference with economic interest, defamation and breach of fiduciary duty. The defendants moved under Rule 21 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194 for an order striking out the statement of claim on the ground that the Superior Court had no jurisdiction to entertain the action. The motion was granted. The motion judge held that the grievance procedures set out in the applicable statutes and collective agreements provided the only forum in which the plaintiff could seek relief. The plaintiff appealed, arguing that, as a whistle-blower, he was entitled to proceed by way of a tort claim in the Superior Court.
Held, the appeal should be dismissed.
Section 236 of the PSLRA explicitly ousts the jurisdiction of the court over claims that could be the subject of a grievance under s. 208 of the Act, subject to an exception which did not apply here. The allegations advanced by the plaintiff in support of his claim were all matters that he could have grieved under the grievance procedures set out in the PSLRA and the collective agreements. While the court's residual discretion to entertain a claim that is otherwise grievable may exist if the grievance process could not provide an appropriate remedy, there was no suggestion in this case that it could not. There is nothing in the language of s. 236 to indicate that s. 236 was intended to apply only to "routine" complaints and not to whistle-blower complaints.
APPEAL from the order of Forget J. of the Superior Court of Justice dated April 16, 2009 striking the appellant's statement of claim.
Cases referred to Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] 2 S.C.R. 495, [1996] S.C.J. No. 42, 136 D.L.R. (4th) 289, 198 N.R. 161, J.E. 96-1462, 78 B.C.A.C. 162, 21 B.C.L.R. (3d) 201, 45 Admin. L.R. (2d) 95, 96 CLLC Â210-040, 50 C.P.C. (3d) 128, 64 A.C.W.S. (3d) 89; Vaughan v. Canada, [2005] 1 S.C.R. 146, [2005] S.C.J. No. 12, 2005 SCC 11, 250 D.L.R. (4th) 385, 331 N.R. 64, J.E. 2005-597, 41 C.C.E.L. (3d) 159, 137 A.C.W.S. (3d) 942, 138 L.A.C. (4th) 1, [2005] CLLC Â220-027, EYB 2005-86470, consd Other cases referred to Fraser v. Canada (Public Service Staff Relations Board), 1985 CanLII 14 (SCC), [1985] 2 S.C.R. 455, [1985] S.C.J. No. 71, 23 D.L.R. (4th) 122, 63 N.R. 161, J.E. 86-48, 18 Admin. L.R. 72, 9 C.C.E.L. 233, 86 CLLC Â14,003 at 12012, 19 C.R.R. 152, 34 A.C.W.S. (2d) 9; Guenette v. Canada (Attorney General) (2002), 2002 CanLII 45012 (ON CA), 60 O.R. (3d) 601, [2002] O.J. No. 3062, 216 D.L.R. (4th) 410, 162 O.A.C. 371, 19 C.C.E.L. (3d) 36, [2002] CLLC Â220-038, 115 A.C.W.S. (3d) 797 (C.A.); Hagal v. Canada (Attorney General), [2009] F.C.J. No. 1618, 2009 FCA 364, affg 2009 FC 329, [2009] F.C.J. No. 417, 2009 F.C. 329 (T.D.); Pleau (Litigation Guardian of) v. Canada (Attorney General), [1999] N.S.J. No. 448, 1999 NSCA 159, 182 D.L.R. (4th) 373, 181 N.S.R. (2d) 356, 6 C.C.E.L. (3d) 215, 40 C.P.C. (4th) 1, 93 A.C.W.S. (3d) 485 [Leave to appeal to S.C.C. refused [2000] 2 S.C.R. v, [2000] S.C.C.A. No. 83]; Van Duyvenbode v. Canada (Attorney General), [2009] O.J. No. 28, 2009 ONCA 11, affg [2007] O.J. No. 2716, 158 A.C.W.S. (3d) 763 (S.C.J.); Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, [1995] S.C.J. No. 59, 125 D.L.R. (4th) 583, 183 N.R. 241, J.E. 95-1482, 82 O.A.C. 321, 30 Admin. L.R. (2d) 1, 12 C.C.E.L. (2d) 1, 24 C.C.L.T. (2d) 217, 95 CLLC Â210-027, 30 C.R.R. (2d) 1, 56 A.C.W.S. (3d) 94 [page751] Statutes referred to Public Servants Disclosure Protection Act, S.C. 2005, c. 46, s. 8 [as am.] Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13 Public Service Labour Relations Act, S.C. 2003, c. 22, ss. 2, 208 [as am.], 209, (1)(c)(ii), 211(b), 214, 231, 236, (1), (2), (3) Public Service Modernization Act, S.C. 2003, c. 22, s. 285 Public Service Staff Relations Act, R.S.C 1985, c. P-35 [rep. S.C. 2003, c. 22, s. 285], ss. 91, 92, 96(3) Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, Rule 21 Authorities referred to Treasury Board of Canada Secretariat, Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace (N.p.: Treasury Board of Canada Secretariat, 2004)
David Jewitt and Alison Longmore, for appellant. Gregory S. Tzemenakis, for respondent.
The judgment of the court was delivered by
DOHERTY J.A.: --
I Overview
[1] The appellant, a federal civil servant, describes himself as a whistle-blower. He maintains that in response to his whistle-blowing activities, his supervisors harassed, maligned and otherwise mistreated him. Counsel for the appellant submits that the appellant, as a whistle-blower, is entitled under the controlling jurisprudence to proceed against his supervisors and his employer, the federal government, by way of a tort claim in the Superior Court rather than through the grievance procedures set up for the resolution of workplace disputes in the applicable statutes, regulations and collective agreements.
[2] The respondents take the position that the claims advanced by the appellant do not fall within the whistle-blower category. Furthermore, they contend that even if the appellant is a whistle-blower, the applicable statutory provisions deprive the Superior Court of jurisdiction to entertain his claim.
[3] The respondents moved under Rule 21 [of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194] for an order striking the [page752] appellant's statement of claim, contending that the Superior Court had no jurisdiction to entertain the action. The motion judge agreed, holding that the grievance procedures set out in the applicable statutes and collective agreements provided the only forum in which the appellant could seek relief for the mistreatment he allegedly suffered at the hands of his supervisors and employer. The motion judge struck the statement of claim. The appellant appeals from that order.
[4] I would dismiss the appeal. I agree with the motion judge that s. 236 of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (the "PSLRA"), a provision that had no counterpart in the prior legislation, constitutes an explicit ouster of the Superior Court's jurisdiction over claims like those advanced by the appellant.
II The Factual Background
[5] The appellant joined Transport Canada as a marine analyst in June 2003. In November 2004, he became acting chief of Marine Regulatory Projects in Transport Canada. That position was made permanent in March 2005.
[6] In his statement of claim, the appellant alleges that shortly after he became acting chief, various employees approached him with complaints about the conduct of the respondent, Joanne St-Onge, the Director of Regulatory Affairs in Marine Security. These complaints involved security-related matters, and alleged unethical and inappropriate management practices by St-Onge. The appellant pleads that he took these concerns to St-Onge and, shortly thereafter, became the target of retaliatory measures by her. These included derogatory comments, exclusion from meetings and St-Onge's refusal to continue to accommodate the appellant's known and pre-existing physical ailment.
[7] The appellant further alleges that in 2005 and 2006, he unsuccessfully pursued his concerns up the chain of command. He approached Gerald Frappier, Laureen Kinney and Marc Grégoire, the other named respondents. In July 2006, the appellant filed a harassment grievance, alleging that he had been improperly ordered to refrain from pursuing the complaints that other employees had made to him. The record is silent as to the result of that grievance.
[8] The appellant left Transport Canada for a new position with Public Works and Government Services Canada in early December 2006. He alleges that he left Transport Canada [page753] because the respondents' retaliatory actions had poisoned the workplace against him. On or about the same day that the appellant moved on to Public Works, he delivered an unsolicited report that he had prepared to the Auditor General of Canada and others. That 51-page report purported to outline "shortcomings, misconduct and mismanagement of the marine security portfolio at Transport Canada". It alleged deficiencies both in the regulatory scheme and the managerial approach to security matters within the Marine Security Directorate. The report also set out numerous allegations of managerial incompetence and misconduct involving the respondents. The appellant pleads that after he delivered his report, further retaliatory steps were taken against him.
[9] The appellant commenced this action in September 2007. According to his statement of claim, he has suffered significant emotional, physical and mental distress as a result of his treatment in the workplace at Transport Canada. The appellant seeks declaratory relief and damages for intentional infliction of mental distress, negligent infliction of mental distress, abuse of statutory power, interference with economic interest, defamation and breach of fiduciary duty. The appellant claims that the respondent, Attorney General of Canada, as representative of the federal Crown, is vicariously liable for the actions of the named respondents, all of whom work for the Crown.
[10] The appellant and the respondents have very different views on the nature of the appellant's complaints. The appellant claims that he has acted as a whistle-blower throughout this controversy. He maintains that he has attempted to bring to light matters of genuine public concern involving the misuse of public funds, gross mismanagement within a government department and the contravention of legislative and regulatory schemes designed to promote national security. He further contends that at least some of the misconduct and harassment directed at him was in response to his whistle- blowing. The appellant places considerable emphasis on his December 2006 report. He submits that on any reasonable view, his conduct makes him a whistle-blower: see Fraser v. Canada (Public Service Staff Relations Board), 1985 CanLII 14 (SCC), [1985] 2 S.C.R. 455, [1985] S.C.J. No. 71, at p. 470 S.C.R.; Public Servants Disclosure Protection Act, S.C. 2005, c. 46, s. 8.
[11] The respondents argue that the appellant's complaints are essentially personal in nature and involve interpersonal disputes between the appellant and the named respondents. The respondents contend that the complaints do not have the [page754] public-interest component necessary to properly characterize them as whistle-blowing.
[12] The motion judge (at paras. 31-32) agreed with the respondents' interpretation. While it seems to me that there is a whistle-blower flavour to at least some of the appellant's complaints, it is unnecessary to decide whether the motion judge's finding is unreasonable. On my analysis, even assuming that the appellant is properly characterized as a whistle- blower, his claim was properly struck.
III The Scheme Governing the Terms of the Appellant's Employment
[13] As Binnie J. observed in Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146, [2005] S.C.J. No. 12, at para. 1, the terms and conditions of those employed in the federal civil service are governed by a comprehensive scheme that includes statutes, regulations, collective agreements and other governmental directives. The PSLRA governs the terms and conditions of the appellant's employment after April 1, 2005. Prior to that date, the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the "PSSRA") governed the employer-employee relationship between the appellant and the federal government. [See Note 1 below] Almost all of the relevant events occurred after the PSLRA came into force in April 2005. [See Note 2 below] For the purposes relevant to this appeal, the two pieces of legislation are the same, with one significant exception. In addition to those two statutes and the regulations proclaimed under them, the appellant's employment was governed by two collective agreements, one described as "Agr eement between the Treasury Board and The Public Service Alliance of Canada" (the "PM Agreement") and the other as "Agreement between the Treasury Board and The Social Science Employees Association" (the "ES Agreement").
[14] Section 208 of the PSLRA and s. 91 of the PSSRA provide employees with a very broad right to grieve any occurrence or matter affecting the terms or conditions of their employment. [page755] Grievances brought under those provisions are heard and determined according to the procedures set out in the relevant legislation, regulations and terms of the applicable collective agreement. The grievance process is internal. Management personnel determine the merits of the grievance.
[15] Almost all employment-related disputes can be grieved under s. 208 of the PSLRA or s. 91 of the PSSRA. The right of the employee to refer that grievance to third-party adjudication, however, is significantly limited in both Acts. Section 209 of the PSLRA and s. 92 of the PSSRA set out the limited circumstances in which an employee can refer a grievance to independent third-party adjudication.
[16] The grievance procedures found in the two collective agreements mirror those set out in the statutes. They provide for a three-stage grievance process culminating with the decision of the deputy head of the department or his or her designate.
[17] Section 214 of the PSLRA and s. 96(3) of the PSSRA indicate that in respect of matters subject to the grievance process, that process is final. Section 214 of the PSLRA reads:
- If an individual grievance has been presented up to and including the final level in the grievance process and it is not one that under section 209 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 on it. (Emphasis added)
[18] The collective agreements contain similar finality clauses. For example, the PM Agreement provides:
The decision given by the Employer at the Final Level in the grievance procedure shall be final and binding upon the employee unless the grievance is a class of grievance that may be referred to adjudication.
[19] The allegations advanced by the appellant in support of his claims in the Superior Court were all matters that he could have grieved under the grievance procedures set out in the statutes and the collective agreements.
[20] For the purposes of this appeal, the important distinction between the present legislation, the PSLRA and its predecessor, the PSSRA, lies in the inclusion of s. 236 in the present legislation. It had no counterpart in the PSSRA. Section 236 reads:
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. [page756]
(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.
[21] Counsel for the respondents contends that, as a result of s. 236, the grievance procedure is the exclusive means for the adjudication of grievable claims. He submits that the only exception is found in s. 236(3). That exception, which relates to a termination of employment, clearly has no application on the facts of this case. I will return to s. 236 later in these reasons. First, I will examine Vaughan, the leading authority on the PSSRA, the legislation in force up to April 2005.
IV Vaughan v. Canada
[22] Counsel for the appellant relies heavily on the reasoning in Vaughan. He acknowledges that it recognizes that, as a general rule, courts should defer to the grievance procedure where the complaint in issue can be advanced through that procedure. He submits, however, that the court recognizes a "whistle-blower" exception to that general rule. Counsel contends that where the nature of the complaint is such that the employee cannot expect fair treatment through the internal grievance procedure, Vaughan holds that the courts maintain a residual discretion to allow such complaints to proceed by way of action in the civil courts. Counsel submits that the appellant's complaints fall within this category.
[23] In Vaughan, the employee, a federal civil servant, sued the government in the Federal Court claiming that he was entitled under the applicable regulations to certain early retirement benefits. There was no suggestion that the employee was a whistle-blower. However, much like the appellant in this case, the employee in Vaughan could have advanced his claim for early retirement benefits by way of the internal grievance procedure set out in the relevant statutory provisions. He chose not to do so. Again, like the appellant, had the employee in Vaughan proceeded by way of an internal grievance, he could not have gained access through the relevant statutory provisions to independent third-party adjudication.
[24] The government moved to strike the claim on the basis that the employee was obligated to proceed by way of grievance. [page757] The court agreed and the claim was struck. The Supreme Court of Canada upheld that ruling.
[25] Binnie J., for the majority, recognized -- subject to constitutional considerations that were not raised -- that a legislature could exclude "workplace" disputes from the jurisdiction of the civil courts: see Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, [1995] S.C.J. No. 59. Binnie J. held, however, at para. 2, that the language of the PSSRA could not be read as providing for "the explicit ouster of the jurisdiction of the courts". In Justice Binnie's view (and in that of Bastarache J., for the dissenters), the overall scheme governing employment relations in the federal civil service and the language of the PSSRA signalled that, as a general rule, the courts should defer to the grievance processes provided for in the statutes and the collective agreements while retaining a residual discretion to take jurisdiction in appropriate cases: see Vaughan, at paras. 32-41 (majority), 57-73 (dissent).
[26] In addressing the circumstances in which the court should exercise its residual discretion and permit an action to proceed despite the availability of the grievance procedure, Binnie J. referred to the "whistle-blower cases": Pleau (Litigation Guardian of) v. Canada (Attorney General), 1999 NSCA 159, [1999] N.S.J. No. 448, 182 D.L.R. (4th) 373 (C.A.), leave to appeal to S.C.C. refused [2000] 2 S.C.R. v, [2000] S.C.C.A. No. 83; and Guenette v. Canada (Attorney General) (2002), 2002 CanLII 45012 (ON CA), 60 O.R. (3d) 601, [2002] O.J. No. 3062 (C.A.). In a "whistle-blower" case, the employee contends that he or she has been mistreated by management in retaliation for disclosures of misconduct or mismanagement made by the employee in the public interest. Binnie J. accepted that in this situation, the nature of the complaint could result in a conflict if the merits of that complaint were finally decided by a grievance procedure that made management personnel the ultimate arbiters of the merits of the grievance. He accepted that if a conflict existed, an internal grievance procedure that did not provide for independent third-party adjudication may not afford effective redress for the employee. Binnie J. acknowledged that where effective redress for a complaint could not be gained through the grievance procedures, the courts could exercise their residual discretion and permit an action to proceed in the civil courts based on that complaint.
[27] Binnie J. recognized a "whistle-blower" exception to the general rule that disputes governed by the PSSRA should proceed through the grievance procedure. In so doing, he rejected the submission (contrary to the dissenting opinion) that the absence of independent third-party adjudication necessarily triggered the court's residual discretion. Because Vaughan was not a [page758] whistle-blower case, Binnie J. did not describe definitively the scope of the whistle-blower exception. However, his reasons indicate that the absence of third-party adjudication would justify judicial intervention only where the facts disclosed "a more particular and individualized conflict problem (as in the whistle-blower cases)": Vaughan, at para. 37.
V Section 236 of the PSLRA
[28] The holding in Vaughan that the Superior Court retained a residual discretion to entertain a claim based on a grievable complaint turned on the language of the PSSRA, the legislation in force at the relevant time. The appellant's reliance on Vaughan assumes that the change in the statutory landscape, and particularly the enactment of s. 236 of the PSLRA, does not affect the basic holding in Vaughan. I think it does.
[29] Parliament can, subject to constitutional limitations that are not raised here, confer exclusive jurisdiction to determine certain disputes on a forum other than the courts. It will take clear language to achieve that result: Pleau, at p. 381 D.L.R. Section 236 is clear and unequivocal. Subject to the exception identified in s. 236(3), which has no application here, s. 236(1) declares that the right granted under the legislation to grieve any work related dispute is "in lieu of any right of action" that the employee may have in respect of the same matter. Section 236(2) expressly declares that the exclusivity of the grievance process identified in s. 236(1) operates whether or not the employee actually presents a grievance and "whether or not the grievance could be referred to adjudication". The result of the language used in s. 236(1) and (2) is that a court no longer has any residual discretion to entertain a claim that is otherwise grievable under the legislation on the basis of an employee's inability to access third-party adjudication: see Van Duyvenbode v. Canada (Attorney General), [2007] O.J. No. 2716, 158 A.C.W.S. (3d) 763 (S.C.J.), at para. 17, affd without reference to this point [2009] O.J. No. 28, 2009 ONCA 11; Hagal v. Canada (Attorney General), 2009 FC 329, [2009] F.C.J. No. 417, 2009 F.C. 329 (T.D.), at para. 26, affd without reference to this point [2009] F.C.J. No. 1618, 2009 FCA 364 (C.A.). While the residual discretion may exist if the grievance process could not provide an appropriate remedy, there is no suggestion in this case that it could not: see Vaughan, at para. 30. Assuming that to be the case, disputes that are grievable under the legislation must be determined using the grievance procedure. [page759]
[30] The appellant attempts to limit s. 236 by arguing that it was intended to apply only to "routine", "garden variety" or "run of the mill" employment grievances, but not to whistle- blower complaints. There is nothing in the language of s. 236 to support this limitation. To the contrary, Parliament has identified in s. 236(3) the one and only exception to the general language used in s. 236(1) and (2). That exception has nothing to do with whistle-blowing.
[31] Counsel for the appellant next argues that an interpretation of s. 236 that excludes access to the court denies purported whistle-blowers a fair and independent process to adjudicate complaints that may arise should their whistle- blowing result in reprisals from their employers. This, the appellant argues, will discourage legitimate whistle-blowing. There may be merit to this contention. It is, however, a policy argument. At best, it might assist in the interpretive process if the statutory language were in any way unclear or ambiguous. Given the clear language of s. 236, I do not think that this argument can help the appellant.
[32] Finally, the appellant argues that a superior court must maintain an inherent jurisdiction despite whatever language may be used in s. 236. He relies on Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] 2 S.C.R. 495, [1996] S.C.J. No. 42, at para. 8. As I read that case, it stands for the proposition that a superior court has inherent jurisdiction to provide a remedy where the relevant statutory scheme does not speak to the circumstances at hand. In other words, the court's inherent jurisdiction can fill remedial lacunae in legislation. There is no legislative gap here. Section 236 speaks directly to workplace complaints that are grievable under the legislation. For those complaints, even when there is no access to third- party adjudication, the grievance procedure operates "in lieu of any right of action".
[33] Like the motion judge (at para. 36), I am satisfied that s. 236 of the PSLRA explicitly ousts the jurisdiction of the court over claims that could be the subject of a grievance under s. 208 of that Act. On my review of the appellant's claim, there are no allegations of misconduct by the respondents that predate April 1, 2005, the date on which the PSLRA became the operative legislation. [See Note 3 below] Section 236 applies to the entirety of the conduct [page760] underlying the appellant's claims. The motion judge properly held that the section excludes the claims from the jurisdiction of the Superior Court. [See Note 4 below]
VII Conclusion
[34] I would dismiss the appeal. The parties may make written submissions as to costs. Those submissions shall not exceed four pages each. The respondents' submissions shall be filed within 14 days of the release of these reasons. The appellant will have seven days to reply to the respondents' submissions.
Appeal dismissed.
Notes
Note 1: The PSSRA was repealed by the Public Service Modernization Act, S.C. 2003, c. 22, s. 285.
Note 2: Three provisions in the PSLRA (ss. 209(1)(c)(ii), 211(b) and 231) did not come into force in April 2005: see Governor General in Council, April 6, 2005, S.I./2005-23, Can. Gaz. 2005.II.522. They deal with the non-consensual deployment of employees under the Public Service Employment Act, S.C. 2003, c. 22, ss. 12, 13, and have nothing to do with this case.
Note 3: At para. 19 of the statement of claim, the appellant indicates that he first brought the complaints of the employees to the attention of St-Onge in February 2005. He did so again in May of 2005. I can find nothing in the statement of claim to suggest any misconduct by St-Onge or any of the other respondents towards the appellant before April 2005.
Note 4: Even if the court retains a residual discretion under the PSLRA to entertain litigation of a grievable matter, resort to that discretion requires that the court be satisfied that the grievance process does not provide an avenue of suitable redress for the employee's compliant: see Vaughan, at paras. 25, 30, 33-41. Whether the appellant was in fact deprived of access to independent third-party adjudication is arguable. The appellant may have been able to access such adjudication through Treasury Board policy operative at the time he launched his grievance (see Treasury Board of Canada Secretariat, Policy on the Internal Disclosure of Information Concerning Wrongdoing in the Workplace (N.p.: Treasury Board of Canada Secretariat, 2004)); through the independent adjudicative process to address whistle-blower complaints provided in the Public Servants Disclosure Protection Act, S.C. 2005, c. 46, which came into force in April 2007; or pursuant to an agreement contained in a letter from the responsible Minister that was appended to one of the collective agreements that applied to the appellant. However, the applicability of the Treasury Board policy was not raised. Nor was the applicability of the Public Servants Disclosure Protection Act to events that predated its proclamation addressed by the parties. Finally, the relevance, if any, of the agreement in the Minister's letter was not raised before the motion judge and was disputed by the appellant in oral argument. None of these issues must be addressed to decide this appeal. As none was explored in any detail, I think it is best to leave them for another day.