Pearce v. Her Majesty the Queen in Right of Canada as represented by the Staff of the Non-Public Funds, Canadian Forces

[Indexed as: Pearce v. Canada (Staff of the Non-Public Funds, Canadian Forces)]

Ontario Reports

Court of Appeal for Ontario

Strathy C.J.O., Rouleau and Coroza JJ.A.

February 3, 2021

154 O.R. (3d) 652 | 2021 ONCA 65

Case Summary

Employment — Wrongful dismissal — Constructive dismissal — Jurisdiction — Employee of federal public service entity bringing grievances over harassment and ultimately resigning due to toxic work environment — Employee commencing action for constructive dismissal — Employer unsuccessfully moving to dismiss action for lack of jurisdiction — Employer's appeal dismissed — Federal Public Service Labour Relations Act identified employer as an "undesignated separate agency" whose employees could sue over termination for any reason not related to breach of discipline or misconduct — Interpreting ordinary meaning of words of statute in context, "any reason" included constructive dismissal — Federal Public Service Labour Relations Act, S.C. 2003, c. 22, s. 236(3).

Statutes — Interpretation — Principles of interpretation — Employee of federal public service entity bringing grievances over harassment and ultimately resigning due to toxic work environment — Employee commencing action for constructive dismissal — Employer unsuccessfully moving to dismiss action for lack of jurisdiction — Employer's appeal dismissed — Federal Public Service Labour Relations Act identified employer as an "undesignated separate agency" whose employees could sue over termination for any reason not related to breach of discipline or misconduct — Interpreting ordinary meaning of words of statute in context, "any reason" included constructive dismissal — Federal Public Service Labour Relations Act, S.C. 2003, c. 22, s. 236(3).

The plaintiff was a non-unionized employee of the defendant. The defendant was a federal public service entity and an "undesignated separate agency" as defined by the Federal Public Service Labour Relations Act ("FPSLRA"). As an employee of an undesignated separate agency, the plaintiff was a member of a class of federal public servant entitled to sue an employer in court for disputes relating to termination of employment for any reason not related to a breach of discipline or misconduct. In 2009, the plaintiff brought a grievance in which he alleged that he had been harassed by his supervisor over persistent and largely unfounded allegations of wrongdoing against him. He alleged that although his grievance was resolved, his position was downgraded, and some of his responsibilities were taken away from him. In 2014, his department was reorganized, and he was required to report to a more junior individual. He claimed that his former supervisor continued to harass him. In March 2017, he initiated another grievance for harassment. He then went on medical leave and shortly after returning to work resigned in June 2017 due to an allegedly toxic work environment. He commenced an action for damages for constructive dismissal plus moral damages for breach of duty of good faith and fair dealing. The defendant brought a motion to dismiss the action on the grounds that the plaintiff had voluntarily resigned and that the court had no jurisdiction to hear the constructive dismissal claim of a federal government employee. The motion judge rejected the defendant's submission that the lawsuit was simply a series of employment complaints that could have been grieved. She found that even if the essential character of the dispute was a series of grievable events, if one or a combination of those events was or amounted to a non-disciplinary termination, then the employee had a right to sue under s. 236(3) of the FPSLRA and that such termination included constructive dismissal. The motion was dismissed. The defendant appealed.

Held, the appeal should be dismissed.

Termination of employment for any reason not relating to a breach of discipline or misconduct as set out in s. 236(3) of the FPSLRA included the common law concept of constructive dismissal. Constructive dismissal occurred where an employer's conduct evinced an intention to be no longer bound by the employment contract. The plaintiff pleaded that although he resigned, his resignation was involuntary and occurred due to the toll on his health from the toxic work environment created by his supervisor and others. The language of s. 236(3) was broad. The word "termination" was followed by the phrase "for any reason". The choice of Parliament to use the word "any" before "reason" indicated that the FPSLRA contemplated an unidentifiable number of justifications for an employee's termination. Parliament did not attempt to restrict the definition of "termination" beyond the qualification that it could "not relate to a breach of discipline or misconduct". An employee who had been constructively dismissed could not be said to have engaged in a breach of discipline or misconduct so as to fall within the exception. The interpretation of "termination" as including constructive dismissal was supported by a consideration of the broader context of the FPLSRA. Employees in the core public administration and employees of designated separate agencies had the opportunity under s. 209(1) of the FPLSRA to have their grievances referred to adjudication regardless of whether the termination was disciplinary or non-disciplinary. There was no provision in s. 209 giving employees of undesignated separate agencies access to third-party adjudication of their disputes over non-disciplinary terminations. Subsection 236(3) filled that gap. The purpose of the FPLSRA was to ensure that the Government of Canada was committed to the fair, credible and efficient resolution of employment matters, and there was no such fairness if s. 236(3) were read to exclude adjudicative processes for non-disciplinary termination of employees of undesignated separate agencies. The motion judge's interpretation did not lead to an absurd result, nor did it allow every employee of a separate agency to circumvent the grievance process.

Haroun v. National Research Council of Canada, [2015] F.C.J. No. 1542, [2015] FC 1168, 29 C.C.E.L. (4th) 154; Potter v. New Brunswick Legal Aid Services Commission, [2015] 1 S.C.R. 500, [2015] S.C.J. No. 10, [2015] SCC 10, 381 D.L.R. (4th) 1, 468 N.R. 227, 2015EXP-830, 2015EXPT-425, J.E. 2015-438, D.T.E. 2015T-173, EYB 2015-248943, 21 C.C.E.L. (4th) 1, 33 B.L.R. (5th) 1, 432 N.B.R. (2d) 1, 18 C.C.P.B. (2d) 1, [2015] CLLC para. 210-017; Robinson v. Canada (Parks Agency), [2017] F.C.J. No. 641, [2017] FC 613; 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, 138 L.A.C. (4th) 1, [2005] CLLC para. 220-027, consd

Robichaud v. Canada (Attorney General), [2013] N.B.J. No. 7, [2013] NBCA 3, 398 N.B.R. (2d) 259, [2013] CLLC para. 220-015, 229 L.A.C. (4th) 1, distd

Other cases referred to

1704604 Ontario Ltd. v. Pointes Protection Assn., [2020] S.C.J. No. 22, [2020] SCC 22, 2020EXP-2113, 2020EXP-2128, affg (2018), 142 O.R. (3d) 161, [2018] O.J. No. 4449, [2018] ONCA 685, 23 C.P.C. (8th) 312, 79 M.P.L.R. (5th) 179, 426 D.L.R. (4th) 233, 50 C.C.L.T. (4th) 173; Aviva Insurance Co. of Canada v. McKeown (2017), 136 O.R. (3d) 385, [2017] O.J. No. 3482, [2017] ONCA 563, 11 M.V.R. (7th) 181, 69 C.C.L.I. (5th) 171, 415 D.L.R. (4th) 144; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, [2002] SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189; Bron v. Canada (Attorney General) (2010), 99 O.R. (3d) 749, [2010] O.J. No. 340, [2010] ONCA 71, 315 D.L.R. (4th) 46, 258 O.A.C. 118, 190 L.A.C. (4th) 1; Brown v. Canada (Attorney General) (2013), 114 O.R. 3 (d) 355, [2013] O.J. No. 174, [2013] ONCA 18, [2013] 2 C.N.L.R. 15, 300 O.A.C. 290, 31 C.P.C. (7th) 156, 98 C.C.L.T. (3d) 1; Covert v. Nova Scotia (Minister of Finance), [1980] 2 S.C.R. 774, [1980] S.C.J. No. 101, 32 N.R. 275, 41 N.S.R. (2d) 181, [1980] C.T.C. 437, 8 E.T.R. 69; Evans v. Teamsters Local Union No. 31, [2008] 1 S.C.R. 661, [2008] S.C.J. No. 20, [2008] SCC 20, J.E. 2008-942, [2008] CLLC para. 210-019, 65 C.C.E.L. (3d) 1, 374 N.R. 1, 292 D.L.R. (4th) 577; Farber v. Royal Trust Co., [1997] 1 S.C.R. 846, [1996] S.C.J. No. 118, 145 D.L.R. (4th) 1, 210 N.R. 161, J.E. 97-774, 27 C.C.E.L. (2d) 163, 97 CLLC para. 210-006, D.T.E. 97T-411; Gaskin v. Canada Revenue Agency, [2008] C.P.S.L.R.B. No. 96, [2008] PSLRB 96; Melnychuk v. Heard; Pearce v. Canada, [2020] O.J. No. 277, 2020 CLLC para. 210-029 (S.C.J.); Pleau v. Canada (Attorney General), [1999] N.S.J. No. 448, [1999] NSCA 159, 181 N.S.R. (2d) 356, 182 D.L.R. (4th) 373, 6 C.C.E.L. (3d) 215, 40 C.P.C. (4th) 1 [Leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 83]; Rizzo & Rizzo Shoes Ltd. (Re) (1998), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, 154 D.L.R. (4th) 193, 221 N.R. 241, 106 O.A.C. 1, 50 C.B.R. (3d) 163, 33 C.C.E.L. (2d) 173, 98 CLLC para. 210-006; Therrien (Re), [2001] 2 S.C.R. 3, [2001] S.C.J. No. 36, [2001] SCC 35, 200 D.L.R. (4th) 1, 270 N.R. 1, J.E. 2001-1178, 30 Admin. L.R. (3d) 171, 155 C.C.C. (3d) 1, 43 C.R. (5th) 1, 84 C.R.R. (2d) 1; Wercberger v. Canada Revenue Agency, 2016 LNPSLREB 41, [2016] PSLREB 41

Statutes referred to

Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2, Preamble, ss. 12 [as am.], 13 [as am.], 208, (1), (a)(i), (b), 209 [as am.], (1) [as am.], (a), (b), (c), (d), (3), 214 [as am.], 236, (1), (2), (3) Financial Administration Act, R.S.C. 1985, c. F-11 [as am.], ss. 11(1) [as am.], 12(1)(d), (e), (2), (3), Sch. I [as am.], Sch. III [as am.], Sch. IV [as am.], Sch. V [as am.] Interpretation Act, R.S.C. 1985, c. I-21, ss. 12, 15(2)(b) Public Service Staff Relations Act, R.S.C. 1985, c. P-35 [rep.]

Rules and regulations referred to

Federal Court Rules, SOR/98-106, rule 220 Federal Public Sector Labour Relations Act Separate Agency Designation Order, SOR/2005-59 [as am.] Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 21.01(3)(a)

Authorities referred to

Rootham, Christopher, Labour and Employment Law in the Federal Public Service (Ottawa: Irwin Law, 2007) Sullivan, Ruth, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016) Sullivan, Ruth, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis Canada, 2014)

APPEAL from order and judgment of Williams J. dismissing a motion to dismiss a constructive dismissal action, reported at [2020] O.J. No. 277, 2020 CLLC para. 210-029 (S.C.J.).

Alexander M. Gay and Alexandra Pullano, for appellant. Andrew Montague-Reinholdt, for respondent.

The judgment of the court was delivered by

STRATHY C.J.O.: —

[1] This appeal raises a single issue concerning the interpretation of s. 236 of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 ("FPSLRA"): does the expression, "termination of employment for any reason that does not relate to a breach of discipline or misconduct" in s. 236(3), include the common law concept of constructive dismissal?

[2] The motion judge held that it does, and allowed the respondent, who was employed by a federal "separate agency," to pursue his claim for constructive dismissal in the Superior Court.

[3] Section 236 of the FPSLRA provides:

236(1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.

(2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.

(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.

(Emphasis added)

[4] The motion judge found that the exception in s. 236(3) means that s. 236(1) and (2) do not preclude the respondent's action against the appellant, his former employer. She dismissed the appellant's motion to dismiss the respondent's action for want of jurisdiction.

[5] For the reasons that follow, I agree, and would dismiss the appeal.

I. Factual Background

[6] The respondent was a non-unionized, 18-year employee of a federal public service entity, the appellant, the Staff of the Non-Public Funds ("SNPF"), Canadian Forces. SNPF is a "separate agency" within the meaning of s. 236(3) in the FPSLRA. Its operating name is the Canadian Forces Morale and Welfare Services. The respondent's last position was arena and outdoor facility manager at the Canadian Forces Base Trenton.

[7] The respondent quit his job in 2017. In 2018, he commenced a civil action against the appellant, claiming he had been constructively dismissed. He pleaded that, for many years, he was the object of bullying and intimidation by his supervisor, and as a result he suffered from work-related stress, depression, and insomnia.

[8] In 2009, the respondent brought a grievance, alleging that he had been harassed by his supervisor over persistent and largely unfounded allegations of wrongdoing against him. He alleged that although his grievance was resolved, his position was downgraded, and some of his responsibilities were taken away from him. In 2014, his department was reorganized, and he was required to report to a more junior individual. He claimed that his former supervisor continued to harass him. In March 2017, he initiated another grievance for harassment.

[9] The respondent pleads that he went on medical leave from March to May 2017, "due to mental health issues arising from the toxic work environment created by [his former supervisor] and permitted by his employer". Although he returned from this leave in June 2017, he resigned that same month due to the allegedly toxic work environment. He pleads that his resignation was involuntary, and that he was constructively dismissed. He claims damages for constructive dismissal, equivalent to 24 months' salary and benefits in lieu of notice, as well as moral damages for breach of the duty of good faith and fair dealing, and punitive damages.

[10] The appellant, his employer, brought a motion pursuant to rule 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, to dismiss the action. The appellant alleged that the respondent's terms and conditions of employment were governed by the human resources policies of the SNPF, the Financial Administration Act, R.S.C. 1985, c. F-11 ("FAA") and the FPSLRA. The appellant asserted that the respondent had voluntarily resigned from his position, and that the court had no jurisdiction to hear the constructive dismissal claim of a federal government employee. It said that the appropriate recourse for the respondent was the grievance process set out under the FPSLRA.

[11] The motion judge dismissed the motion, permitting the respondent's action to proceed. The respondent's employer, SNPF, appeals.

II. The Statutory Context

[12] In order to give context for the motion judge's reasons and the parties' submissions, I will provide an overview of the federal public sector labour relations regime, both in general, and as it relates to employees like the respondent who are employed by a "separate agency".

(1) The FAA: Core public administration and separate agencies

[13] Employees in the federal public service are governed by a comprehensive scheme that includes statutes, regulations, collective agreements (in the case of unionized employees), and other governmental directives: Bron v. Canada (Attorney General) (2010), 99 O.R. (3d) 749, [2010] O.J. No. 340, [2010] ONCA 71, at para. 13, citing Vaughan v. Canada, [2005] 1 S.C.R. 146, [2005] S.C.J. No. 12, [2005] SCC 11, at para. 1.

[14] The FAA is part of that comprehensive scheme. It is described as "[a]n Act to provide for the financial administration of the Government of Canada, the establishment and maintenance of the accounts of Canada and the control of Crown corporations". Subsection 11(1) of the FAA defines "public service" by distinguishing between the "core public administration" of Canada and other parts of the federal administration, on the one hand, and "separate agencies" identified in Sch. V and other designated parts of the federal public administration, on the other hand.

[15] The "core public administration" includes departments of the federal public service and various agencies, boards, and commissions listed in Sch. I and Sch. IV of the FAA. "Separate agencies", like the SNPF, are the agencies, boards, and commissions listed under Sch. V to the FAA. The Governor in Council has the ability to move a particular agency, board, or commission from Sch. IV to Sch. V and vice versa: see Christopher Rootham, Labour and Employment Law in the Federal Public Service (Ottawa: Irwin Law, 2007), at pp. 55-56. Schedule III of the FAA governs Crown corporations, which are not subject to the FPSLRA.

[16] The distinction between the core public administration and separate agencies is important in this case because the SNPF is a separate agency. Each separate agency has independent status as an employer: Rootham, at p. 58. Other separate agencies include the National Capital Commission, the National Film Board, the National Research Council, and the Parks Canada Agency. Employees in the "core public administration", by contrast, are employed by the Treasury Board as the delegate of her Majesty in Right of Canada: Rootham, at p. 57.

[17] There is a sub-class of separate agencies, referred to as "designated separate agencies", because they have been designated by the Governor in Council under s. 209(3) of the FPSLRA. There are, at present, only two such agencies, the Canada Revenue Agency and the Canada Food Inspection Agency: Federal Public Sector Labour Relations Act Separate Agency Designation Order, SOR/2005-59.

[18] Counsel agreed that in establishing separate agencies, Parliament intended them to be more "nimble" than the core public administration, operating like the private sector with respect to their labour relations, and giving them greater flexibility in hiring and firing.

[19] As an employee of a "separate agency" that had not been designated by the Governor in Council under s. 209(3) of the FPSLRA, the respondent was a member of a unique class of federal public servants entitled to sue their employer in court pursuant to s. 236(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".

[20] Subsection 12(2) of the FAA states that, subject to any terms and conditions directed by the Governor in Council, the "deputy head" of a separate agency (usually the chief executive officer), may, among other things: establish standards of discipline and set penalties, including termination of employment, suspension, demotion to a lower position, or financial penalties; and effectuate the termination of employment or demotion to a lower position for reasons other than breaches of discipline or misconduct. Subsection 12(3), which applies to both separate agencies and the core public administration, provides that any such disciplinary action, termination of employment, or demotion may only be for cause.

(2) The FPSLRA

[21] The FPSLRA deals comprehensively with labour relations in the federal public service. The preamble to the statute expresses the commitment of the Government of Canada to the fair, credible, and efficient resolution of matters arising in respect of terms and conditions of employment. Section 12 provides for the administration of the statute by the Federal Public Sector Labour Relations and Employment Board (the "Board"). Section 13 provides that the Board is to adjudicate certain applications, disputes, and grievances.

[22] Under ss. 208(1) and 236(1) of the FPSLRA, employees of the federal public service, including employees of separate agencies, are required to follow a grievance process if they are aggrieved by the interpretation or application of any statute, regulation, direction, or other instrument made or issued by the employer, that deals with terms and conditions of employment (s. 208(1)(a)(i)), or as a result of any occurrence or matter affecting the terms and conditions of their employment (s. 208(1)(b)). The grievance process is internal, and management personnel determine the merits of the grievance: Bron, at para. 14.

[23] Employees in the public service who have pursued a grievance up to the final level of the grievance process and are not satisfied with the outcome, are entitled, in certain circumstances, to refer the dispute to adjudication by the Board. However, the path an employee may follow if the grievance is not successful, depends on the nature of the grievance and whether the employee is part of the "core" public administration, a designated separate agency, or an undesignated separate agency.

[24] Those paths are set out in s. 209(1), which provides:

209(1) An employee who is not a member as defined in subsection 2(1) of the Royal Canadian Mounted Police Act may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee's satisfaction if the grievance is related to

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

(b) a disciplinary action resulting in termination, demotion, suspension or financial penalty;

(c) in the case of an employee in the core public administration,

(i) demotion or termination under paragraph 12(1)(d) of the Financial Administration Act for unsatisfactory performance or under paragraph 12(1)(e) of that Act for any other reason that does not relate to a breach of discipline or misconduct, or

(ii) deployment under the Public Service Employment Act without the employee's consent where consent is required; or

(d) in the case of an employee of a separate agency designated under subsection (3), demotion or termination for any reason that does not relate to a breach of discipline or misconduct.

(2) Before referring an individual grievance related to matters referred to in paragraph (1)(a), the employee must obtain the approval of his or her bargaining agent to represent him or her in the adjudication proceedings.

(3) The Governor in Council may, by order, designate any separate agency for the purposes of paragraph (1)(d).

[25] In summary, all public sector employees are entitled to adjudication by the Board where their grievance is related to: (a) the interpretation or application of a collective agreement or arbitration award (s. 209(1)(a)); or (b) disciplinary action resulting in termination, demotion, suspension or financial penalty (s. 209(1)(b)). Employees in the core public administration are also entitled to refer the dispute to adjudication if their demotion or termination was for unsatisfactory performance or "any other reason that does not relate to a breach of discipline or misconduct": s. 209(1)(c). Thus, employees in the core public administration are entitled to refer to adjudication a grievance, relating to the termination of their employment, regardless of whether the reason for their termination was disciplinary or non-disciplinary.

[26] Employees of separate agencies, however, can only have their grievances referred to adjudication in limited circumstances. Employees of separate agencies that have been designated by the Governor in Council, under s. 209(3) of the FPSLRA, may refer their dispute to adjudication if their demotion or termination was "for any reason that does not relate to a breach of discipline or misconduct": s. 209(1)(d). Employees of undesignated separate agencies, like SNPF, can only refer their grievance to adjudication by the Board if it relates to the interpretation or application of a collective agreement or arbitration award; or if it relates to a "disciplinary action resulting in termination, demotion, suspension or financial penalty": s. 209(1)(a) and (b). The statutory adjudication process is not available for non-disciplinary terminations of employees of separate agencies that have not been designated under s. 209(3). Those employees are not precluded from access to the courts if they have been terminated for a reason that does not relate to a breach of discipline or misconduct: s. 236(3). Whereas employees in the core public administration are able to pursue both disciplinary and non-disciplinary terminations by adjudication, employees of undesignated separate agencies have access to the courts for the latter.

[27] The result is that undesignated separate agencies have greater flexibility to terminate employees for non-disciplinary reasons because they are not subject to a statutory adjudication process that may result in the re-instatement of the employee.

[28] Section 214 of the FPSLRA provides that, except in those cases that may be referred to adjudication under s. 209, "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".

[29] Thus, the process available to employees of separate agencies, like the respondent, differs from that available to employees in the "core public administration". Employees in the core public administration and employees of designated separate agencies, covered by ss. 236(1) and (2), have no right of action in the courts in relation to disciplinary and non-disciplinary terminations. Their right is to proceed to grievance and, in some cases, to have the matter referred to adjudication by the Board.

[30] Subsection 236(3), on the other hand, gives employees of separate agencies, other than those designated under s. 209(3), the right to sue "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".

[31] There is no dispute that the appellant, the SNPF, was not a separate agency that had been designated under s. 209(3).

(3) SNPF grievance policies

[32] In addition to being subject to the foregoing statutory scheme, the respondent was also subject to the human resources policies of the SNPF. The Termination of Employment Policy provided full-time, non-unionized employees with severance pay in lieu of notice, equivalent to two weeks' pay for the first year of service and one week for each additional year of service, up to a maximum of 28 weeks. It also provided that employees whose employment was terminated for certain reasons were not entitled to notice, payment in lieu of notice, or severance pay. These reasons included: disciplinary discharge; incompetence and/or unsatisfactory performance; failure to meet a bona fide occupational requirement or occupational qualification; failure to raise attendance to a satisfactory level; and ineligibility for continued employment.

[33] The SNPF also had a grievance policy, which provided that "any employee who feels aggrieved has the right to present a grievance". The policy gave broad rights of grievance, allowing an employee to file a grievance "as a result of any occurrence or matter affecting the terms and conditions of employment . . ." (emphasis added). The policy also explained how grievances are to be pursued. It contained both an informal grievance process and a formal grievance process. If an employee did not receive a satisfactory internal resolution of their grievance, they could, in certain circumstances, refer the grievance to adjudication by the Board "in accordance with the [Federal Public Service Labour Relations] Act and the Public Service Labour Relations Board Regulations". The policy did not identify the circumstances in which adjudication is available.

III. The Motion Judge's Reasons

[34] The motion judge rejected the appellant's submission that the respondent's lawsuit was simply a series of complaints related to his employment, which could have been grieved, but that he had allowed his complaints to accumulate and then claimed constructive dismissal.

[35] She explained that although employees in the core public administration had access to third-party adjudication for non-disciplinary terminations through the Board, this was not available to employees of undesignated separate agencies. The latter had a different route by virtue of s. 236(3) of the FPSLRA. She stated, at paras. 13 and 14:

Section 209 of the FPSLRA appears to leave employees such as Mr. Pearce without recourse to an independent decision-maker if their employment was terminated for a reason that was not disciplinary; these employees may grieve a non-disciplinary termination but, with no right of referral to adjudication, under s. 214, the decision at the final level of their agency's internal grievance procedure is final.

This seemingly anomalous distinction between core public administration and "non-designated" (under s. 209(3)) separate agency employees is addressed by the section of the FPSLRA which is at the heart of this motion, s. 236. Section 236 gives the latter group a right of action against the employer. Section 236(1) states that the right to grieve disputes is in lieu of the right to sue but s. 236(3) allows employees of agencies such as the SNPF to sue their employer for a non-disciplinary termination.

[36] She found [at para. 27] that "even if the essential character of the dispute is a series of grievable events, if one or a combination of those events is or amounts to a non-disciplinary termination, [then] the employee has the right to sue under s. 263(3) [sic]". According to the motion judge, termination in s. 236(3) includes constructive dismissal. She determined that Parliament could not have intended an employee of an undesignated separate agency to have the right to sue for wrongful termination, while that employee did not have a right to sue for constructive dismissal and had to pursue an internal grievance process.

IV. The Parties' Submissions

(1) The appellant

[37] The appellant submits that the word "termination" in s. 236(3) of the FPSLRA does not include common law constructive dismissal. The appellant asserts that, when the statutory scheme is considered as a whole, it is evident that Parliament did not intend to include constructive dismissal in the FPSLRA. Parliament introduced ss. 236(1) and (2) as a "complete bar" to civil actions, like constructive dismissal, and codified s. 236(3) as a "narrow exception", applicable to employees of undesignated separate agencies who have been terminated for non-disciplinary reasons.

[38] The appellant argues that "any reason that does not relate to a breach of discipline or misconduct" in s. 236(3) cannot include constructive dismissal because the FPSLRA provides employees, like the respondent, with a comprehensive grievance process to resolve such disputes. Sections 208 and 209 of the FPSLRA allow an employee to grieve all disputes related to their employment, and to appeal up to third-party adjudication by the Board. Subsection 236(3) offers an employee of an undesignated separate agency the ability to sue in court if the employee meets the conditions contained therein. It is the position of the appellant that these two options are put before the employee as an "election", and that the employee can only pursue one for the resolution of their dispute. The appellant suggests that s. 209 of the FPSLRA, which gives a right to adjudicate a grievance in relation to "disciplinary action resulting in termination, demotion, suspension or financial penalty," is "robust" enough to address any events or occurrences associated with a claim of constructive dismissal and, thus, s. 236(3) cannot be used for this purpose. The appellant submits that if s. 236(3) is read to incorporate constructive dismissal, employees would be able to launch collateral attacks against the FPSLRA regime by "stringing together" otherwise grievable events and occurrences just so they can commence an action in the courts.

(2) The respondent

[39] The respondent submits that he had no recourse to the adjudication process because he was not a unionized employee, was not part of the core public administration, his termination was not the result of disciplinary action, and SNPF had not been designated under s. 209(3) as being subject to adjudication for non-disciplinary terminations. He contends, therefore, that he has recourse to the court under s. 236(3).

[40] The respondent rejects the appellant's proposition that an employee of a separate agency must make an "election" whether to pursue the grievance process under s. 208, or a court action under s. 236(3). In the respondent's view, s. 208 and s. 236(3) of the FPSLRA serve different purposes. An employee's failure to grieve can potentially be invoked by the employer as a defence to the constructive dismissal claim, but not as a bar to the commencement of the civil action.

V. Analysis

[41] This appeal turns on the interpretation of a statute. I turn first to the relevant principles, and then to their application.

(1) Principles of statutory interpretation

[42] In Re Rizzo & Rizzo Shoes Ltd. (1998), 36 O.R. (3d) 418, [1998] 1 S.C.R. 27, [1998] S.C.J. No. 2, the Supreme Court adopted the "modern principle" of statutory interpretation as expressed by Elmer Driedger. That principle stipulates that the "words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament": Rizzo, at para. 21; Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, [2002] SCC 42, at para. 26. See also Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016), at pp. 44-45. In the federal legislative context, Driedger's modern approach is supported by s. 12 of the Interpretation Act, R.S.C. 1985, c. I-21, which provides that every enactment "is deemed remedial, and shall be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects": see Bell ExpressVu, at para. 26.

(2) The context

[43] The Supreme Court's reference to the "entire context" reminds us that words have not only an intrinsic meaning, but that they sometimes take their meaning from their context -- i.e., the words that surround them. In s. 236(3), the words "termination of employment" are followed by the words "for any reason that does not relate to a breach of discipline or misconduct". We understand from the context that "termination of employment" is to be given a broad meaning ("any reason"), but that meaning will not include terminations for some reasons, namely, those that relate to a breach of discipline or misconduct.

[44] We also know, from the broader context of s. 236(1), that the right in s. 236(3) is an exception that applies only to employees of undesignated separate agencies. All other employees, whether part of the core public administration or employed by designated separate agencies, must pursue their non-disciplinary terminations via grievance or third-party adjudication.

[45] The logic of these provisions has been explained above and will be revisited when I examine the scheme and object of the legislation.

(3) The grammatical and ordinary meaning

[46] It is not difficult to determine the plain meaning of the words of s. 236(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" (emphasis added). The language is broad and, on its face, excludes only terminations that are based on breach of discipline or misconduct.

[47] The appellant submits that the motion judge erred by improperly "reading in" the word "constructive" into the phrase "termination of employment" in s. 236(3), thereby injecting the common law concept of constructive dismissal into the federal employment regime where it has no place.

[48] Constructive dismissal occurs where the employer's conduct evinces an intention to no longer be bound by the employment contract. When that occurs, the employee has a choice of accepting the conduct, or treating it as a repudiation of the contract and suing for wrongful dismissal: Farber v. Royal Trust Co., [1997] 1 S.C.R. 846, [1996] S.C.J. No. 118, at para. 33; Potter v. New Brunswick Legal Aid Services Commission, [2015] 1 S.C.R. 500, [2015] S.C.J. No. 10, [2015] SCC 10, at para. 30. The word "constructive" indicates that the dismissal is a legal construct: the employer's act is treated as a dismissal because of the way it is characterized by law: Potter, at para. 30.

[49] In Evans v. Teamsters Local Union No. 31, [2008] 1 S.C.R. 661, [2008] S.C.J. No. 20, [2008] SCC 20, at para. 26, the Supreme Court of Canada confirmed that constructive dismissal is a termination:

. . . [T]he very purpose behind recognizing constructive dismissal is to acknowledge that where an employer unilaterally imposes substantive changes to an employment contract, the employee has the right to treat the imposition of those changes as termination. This termination is every bit as "real" as if the employee were actually told of the dismissal. . . .

(Emphasis added)

[50] As Wagner J., as he then was, observed in Potter, constructive dismissal can occur in one of two ways. In the first way, the court determines whether the employer has breached an express or implied term of the contract, and then determines whether the breach was sufficiently serious to amount to constructive dismissal: Potter, at para. 32. In the second way, the court determines whether the employer's conduct more generally demonstrates an intention to no longer be bound by the contract. For example, "if the employer's treatment of the employee made continued employment intolerable": Potter, at para. 33.

[51] The second approach is retrospective. As Wagner J. observed in Potter, at para. 33, "it requires consideration of the cumulative effect of past acts by the employer and the determination of whether those acts evinced an intention no longer to be bound by the contract".

[52] The approach is also objective. Under the second branch of the test for constructive dismissal, the question is whether the employer's conduct, "when viewed in the light of all the circumstances, would lead a reasonable person to conclude that the employer no longer intended to be bound by the contract": Potter, at para. 42.

[53] It is precisely this form of constructive dismissal that the respondent relies upon. He pleads that although he resigned, his resignation was involuntary, and occurred due to the toll on his health from the toxic work environment created by his supervisor and his supervisor's subordinates. This included harassment, groundless complaints against him, the downgrading of his position, and the removal of job responsibilities. This is patently a pleading of constructive dismissal.

[54] In my view, "termination of employment for any reason" in s. 236 includes the termination of employment by way of constructive dismissal. The interpretation of the words surrounding "termination" in s. 236(3) supports the conclusion that s. 236(3) was meant to capture constructive dismissal. As noted earlier, in s. 236(3), the word "termination" is followed by the phrase "for any reason". As described by Juriansz J.A. in Aviva Insurance Co. of Canada v. McKeown (2017), 136 O.R. (3d) 385, [2017] O.J. No. 3482, [2017] ONCA 563, at para. 21, "[r]eason is a simple but flexible word used in common parlance. It can mean . . . a justification for some act or decision". The choice of Parliament to use the word "any" before "reason" indicates that the FPSLRA contemplates an unidentifiable number of justifications for an employee's termination. Parliament did not attempt to restrict the definition of "termination" beyond the qualification that it could "not relate to a breach of discipline or misconduct." The only plausible interpretation, when s. 236(3) is read as a whole, is that Parliament conceptualized "termination" in the "broadest possible terms": see Brown v. Canada (Attorney General) (2013), 114 O.R. 3 (d) 355, [2013] O.J. No. 174, [2013] ONCA 18, at para. 55.

[55] I do not accept the appellant's submission that s. 236(3) should be given a narrow reading. As the motion judge noted, the words "relates to his or her employment for any reason" are very broad: see 1704604 Ontario Ltd. v. Pointes Protection Assn. (2018), 142 O.R. (3d) 161, [2018] O.J. No. 4449, [2018] ONCA 685, at para. 65, affd [2020] S.C.J. No. 22, [2020] SCC 22. While I accept the proposition that the courts must respect Parliament's preference for a particular dispute resolution process, such as a grievance procedure and third-party adjudication (Pleau v. Canada (Attorney General), [1999] N.S.J. No. 448, [1999] NSCA 159, 181 N.S.R. (2d) 356, at paras. 19-20, leave to appeal to S.C.C. refused [2000] S.C.C.A. No. 83), that does not compel a narrow reading of otherwise broad and unambiguous language permitting a particular class of employees to pursue third-party adjudication in a judicial forum.

[56] The appellant's assertion that some of the respondent's complaints were grieved and others could have been, misses the mark. Constructive dismissal can be established not only by single events, but it can also occur where the cumulative effect of the employer's conduct entitles the employee to quit -- the labour relations equivalent of the "final straw breaking the camel's back".

[57] I do not accept the appellant's submission that constructive dismissal is a common law concept that has no place in the federal labour and employment regime. The appellant cites no judicial authority for this proposition, although he does cite to two decisions of the PSLRB and the PSLREB: Gaskin v. Canada Revenue Agency, [2008] C.P.S.L.R.B. No. 96, [2008] PSLRB 96, at para. 69; Wercberger v. Canada Revenue Agency, 2016 LNPSLREB 41, [2016] PSLREB 41, at para. 57. In the former, the Board observed that it was "clearly debatable whether the common-law doctrine of constructive dismissal can be applied in this jurisdiction, where the employer's authority to terminate the employment relationship is precisely defined and circumscribed by statute": Gaskin, at para. 69. In the latter case, at para. 35, it was suggested that "[t]he doctrine of constructive dismissal has no application to the federal public service as employees in the public sector must be terminated for cause".

[58] Whatever the validity of that proposition in relation to public sector employees in the core administration or in designated separate agencies, the inclusion of s. 236(3) makes it clear that an employee of an undesignated separate agency may well be terminated for reasons other than "breach of discipline or misconduct" -- that is, for reasons other than cause -- and preserves a right of action for such dismissals.

[59] An employee who has been constructively dismissed cannot be said to have engaged in a breach of discipline or misconduct so as to fall within the exception contained in s. 236(3).

(4) The scheme of the Act, the object of the Act, and the intention of Parliament

[60] The modern principle of statutory interpretation requires that the words of a statute be interpreted "harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament". The legislative scheme includes the individual provisions, parts, and sections that work together to provide a plausible and coherent plan for the achievement of the statute's intended purpose: Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Toronto: LexisNexis Canada, 2014), at §13.12. As described by Greshuk J. in Melnychuk v. Heard, at p. 263:

The court must not only consider one section but all of the sections of an Act including the relation of one section to the other sections, the relation of a section to the general object intended to be secured by the Act, the importance of the section, the whole scope of the Act and the real intention of the enacting body.

[61] In some cases, the legislature may have enacted more than one statute on the same subject-matter or enacted a provision meant to be read alongside another statute. In Re Therrien, [2001] 2 S.C.R. 3, [2001] S.C.J. No. 36, [2001] SCC 35, Gonthier J. explained, at para. 121, that "[i]nterpretations favouring harmony between the various statutes enacted by the same government should indeed prevail. This presumption is even stronger when the statutes relate to the same subject-matter." The practice of considering multiple statutes in the interpretative exercise has also been codified in s. 15(2)(b) of the federal Interpretation Act.

[62] An interpretation of the provision at issue that promotes the purpose is preferred over one that is not: Sullivan, Statutory Interpretation, at p. 53. As explained by Dickson J. in Covert v. Nova Scotia (Minister of Finance), [1980] 2 S.C.R. 774, [1980] S.C.J. No. 101, at p. 807 S.C.R.: "The correct approach, applicable to statutory construction generally, is to construe the legislation with reasonable regard to its object and purpose and to give it such interpretation as best ensures the attainment of such object and purpose." The purposive analysis is a staple of modern statutory interpretation. It is not only used when the text under dispute is ambiguous, but "in every case and at every stage" of the interpretive exercise: Sullivan, Statutory Interpretation, at p. 185.

[63] The interpretation of "termination" in s. 236(3) as including constructive dismissal is supported by considering the broader context of the FPSLRA.

[64] It will be recalled that s. 209(1)(b) gives all federal public servants, (other than members of the RCMP), including employees of separate agencies, the right to refer a grievance to adjudication by the Board if it relates to "disciplinary action resulting in termination, demotion, suspension or financial penalty" (i.e., a "disciplinary termination"). However, s. 209(1)(c) also provides that employees in the core public administration are entitled to adjudication if their grievance relates to (i) demotion or termination under para. 12(1)(d) of the FAA for unsatisfactory performance, or under para. 12(1)(e) of the FAA "for any other reason that does not relate to a breach of discipline or misconduct" (i.e., a "non-disciplinary termination").

[65] Subsection 209(1)(d) makes a further special provision for an employee of a designated separate agency, who may pursue a non-disciplinary termination to adjudication.

[66] Thus, to summarize, s. 209(1)(b) and (c) of the FPSLRA provide employees of the core public administration with an opportunity to have their grievances referred to adjudication regardless of whether the termination is disciplinary or non-disciplinary. Subsections 209(1)(b) and (d) does the same for employees of separate agencies that have been designated under s. 209(3) of the FPSLRA.

[67] There is no provision in s. 209 that gives employees of undesignated separate agencies access to third-party adjudication of their disputes over non-disciplinary terminations. Subsection 236(3) fills this gap, giving those employees access to third-party adjudication through the courts. The language of s. 236(3), "any reason that does not relate to a breach of discipline or misconduct", is an exact parallel to s. 209(1)(d), with the difference being that employees of undesignated separate agencies have access to the courts for such grievances, while employees of designated separate agencies must seek adjudication by the Board.

[68] Reading s. 236(3) together with s. 209 demonstrates a Parliamentary intention to enable all public sector employees to have access to third-party adjudication for their non-disciplinary terminations. The difference is that employees who are part of the core administration and employees of designated separate agencies have access to the Board, while employees of undesignated separate agencies have access to the courts. This distinction is entirely in keeping with the intention of enabling separate agencies to behave more like private enterprises in their labour relations.

[69] The purpose of the FPSLRA is to ensure that the "Government of Canada is committed to the fair, credible and efficient resolution of matters arising in respect of terms and conditions of employment". There is no such fairness if s. 236(3) of the FPSLRA is read to exclude adjudicative processes for employees of undesignated separate agencies who have been subject to non-disciplinary termination. Neither the FPSLRA nor the FAA draw a distinction between employees of the core public administration and employees of separate agencies so as to justify this differential treatment. In fact, the parties concede that Parliament's choice to distinguish between the core public administration and undesignated separate agencies appears to have been motivated by the desire to see the latter conduct its labour relations in a manner akin to the private sector. If that is the case, then one would expect that employees of separate agencies will have an avenue by which to seek a resolution of their non-disciplinary terminations. Subsection 236(3) provides that, when read as the respondent proposes.

[70] Subsection 236(3) was also enacted after the Supreme Court of Canada released its decision in Vaughan. In Vaughan, the Supreme Court cautioned that, where Parliament has created a comprehensive legislative scheme to deal with labour disputes, the process should not be compromised by permitting parallel access to the courts. The Supreme Court recognized, however, that there may be a residual discretion to access the courts if the grievance procedure did not allow for third-party adjudication. To reach its conclusion, the Supreme Court of Canada interpreted the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("PSSRA"), the predecessor to the FPSLRA. The PSSRA had a grievance procedure that did not include third-party adjudication with respect to the denial of early retirement benefits. Grievance decisions were also insulated from judicial review by a "final and binding" clause found in the legislation. Parliament responded to Vaughan by repealing the PSSRA and enacting the FPSLRA. Subsection 236(3) was a completely novel provision, one without an equivalent in the PSSRA.

[71] The context in which the FPSLRA, and specifically, s. 236(3) were enacted indicates that Parliament recognized and accounted for the Supreme Court of Canada's comments on the lack of access to third-party adjudication for federal public service employees. Unlike the PSSRA, the FPSLRA not only offers a comprehensive grievance regime through which employees can contest their terminations, but it also includes the right to third-party adjudication by the Board. At the same time, s. 236(3) carves out a specific exception for the employees of separate agencies, not designated under s. 209(3) of the FPSLRA, to access the courts in the limited circumstances of a non-disciplinary termination.

(5) Response to the appellant's other submissions

[72] Despite the appellant's contention, interpreting s. 236(3) to include non-disciplinary terminations, such as constructive dismissal, does not lead to an absurd result. Subsection 236(3) is part of, and essential to, a fair grievance process for all employees of the federal public service.

[73] The decision of the New Brunswick Court of Appeal in Robichaud v. Canada (Attorney General), [2013] N.B.J. No. 7, [2013] NBCA 3, 398 N.B.R. (2d) 259, referred to by the appellant, has no application. There, the court dismissed an action for constructive dismissal against the Correctional Service of Canada, because the employer was not a separate agency, and the court expressly observed that s. 236(3) was not applicable.

[74] The appellant relies, however, on the decision of the Federal Court in a case involving Parks Canada which, like SNPF, is a separate agency: Robinson v. Canada (Parks Agency), [2017] F.C.J. No. 641, [2017] FC 613. There, the court struck an employee's claim for constructive dismissal and other relief, on the basis that the claim disclosed no reasonable cause of action.

[75] The motion judge in Robinson found that the determinative issue was whether s. 236(3) of the FPSLRA applied with respect to the allegations contained in the statement of claim. He held, at para. 25, that it was necessary to determine "the essential character of the dispute in view of the factual context in which it arises and the breadth of the legislative scheme for resolving labour disputes". He held, at paras. 26-27, that the claim involved matters that were or could have been grieved:

In this case, the Plaintiff's claim - that various events during his employment with Parks Canada cumulatively resulted in a constructive or direct dismissal of his employment without cause -- is a collateral attempt to attack various decisions and events which are or were otherwise grievable under the [F]PSLRA or Parks Canada's Staffing Policies. In my view, each and all of the Plaintiff's claims pertain to occurrences or matters affecting his employment with the Defendant, and the legislative and administrative avenues for redress available to the Plaintiff in this case would be undermined if the Statement of Claim is not struck and the Plaintiff's complaints be allowed to proceed in this Court. Indeed, the second stage of the Plaintiff's grievance has been suspended pending the determination of this motion; that grievance process should be permitted to continue to its ultimate outcome. There is no suggestion in this case that the grievance process could not provide an appropriate remedy to redress the Plaintiff's complaints.

In this case, the Plaintiff resigned and retired and did not meaningfully engage the schemes for resolution of workplace disputes available to him when the alleged events occurred; had he done so, the Defendant would have had an opportunity to respond to the disputes and take any necessary corrective steps as intended by these schemes.

[76] It appears that in Robinson, the motion judge of the Federal Court accepted Canada's argument, at para. 23, that "even when the right of action is based on subsection 236(3), the Court has discretion to decline to exercise jurisdiction to entertain a termination claim", and that the principles in Vaughan should "guide the Court in determining whether it should defer to the comprehensive schemes established by Parliament and decline to exercise jurisdiction". That argument was not made before us.

[77] In my view, respectfully, it is incorrect. As the Federal Court judge in Robinson observed, at para. 20, this court stated in Bron, at para. 28, that the legislation under consideration in Vaughan (the PSSRA), did not contain a provision similar to s. 236 of the FPSLRA, and "[t]he 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". It held that the enactment of the FPSLRA had changed the basic holding in Vaughan.

[78] It seems to me that, as regards an employee of an undesignated separate agency, s. 236 does not leave the court with a discretion to accept or decline jurisdiction. The right of an employee to grieve any dispute relating to the terms or conditions of the employee's employment is in lieu of any right of action unless "the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct". If the dispute falls within the latter category, the court has no residual discretion to refuse to hear it.

[79] That being said, I take no issue with the approach in Robinson, which suggests that the court must determine the "essential character" of the dispute to see whether it falls within s. 236(3). Given the broad language of that subsection, this will usually call for a determination of whether the termination was for something other than a "breach of discipline or misconduct". I would not foreclose the possibility that a court hearing an action for constructive dismissal might conclude that a series of individually grieved or grievable complaints in a particular case do not cumulatively give rise to a claim for constructive dismissal.

[80] With respect, it does not appear that the Federal Court in Robinson considered the purpose of s. 236(3) or its interpretation. Nor did it consider the unique nature of a claim for constructive dismissal.

[81] I contrast Robinson with Haroun v. National Research Council of Canada, [2015] F.C.J. No. 1542, [2015] FC 1168. The plaintiff was hired by the National Research Council of Canada ("NRC") for a two-year term. The NRC is an undesignated separate agency. Mr. Haroun was dismissed before the end of his term for "performance-related" issues. He subsequently brought a grievance under the FPSLRA, in which he alleged that the NRC's decision was "disguised discipline" and without cause. The grievance was denied.

[82] Mr. Haroun then commenced an action against the NRC. The parties moved under rule 220 of the Federal Court Rules, SOR/98-106, for a determination on a preliminary issue of law -- could the plaintiff launch a civil action, or was he required to seek judicial review of the grievance decision? The Federal Court observed, at para. 4, that "[a]t the heart of the impasse" was the interpretation of s. 236 in the FPSLRA. It held, at para. 7 of its decision, that:

The scope of section 236 of the PSLRA must be assessed in light of sections 209 and 230, both of which distinguish between performance-based and disciplinary dismissals. Paragraphs 209(1)(c) and (d) restrict the right of adjudication for unsatisfactory performance to core employees of the Public Service or to the employees of designated separate agencies. Section 230 requires that, in such cases, the adjudicator apply the deferential standard of reasonableness. Nowhere do these provisions purport to address or limit a cause of action at common law for the wrongful, non-disciplinary dismissal of employees of separate, undesignated agencies. Instead, the PSLRA consistently recognizes a distinction between core Public Service employees (including the employees of designated separate agencies) and the employees of non-designated separate agencies.

(Emphasis added)

[83] The Federal Court went on to state, at para. 9, that:

. . . [T]he purpose of subsection 236(3) is to preserve a common law right of action for employees of undesignated separate agencies in relation to performance-based terminations. In the face of the clear language used and the gravity of the consequences of termination, it cannot be that Parliament intended that employees like Mr. Haroun be limited to the option of pursuing a restrictive internal grievance with no right to independent adjudication. Indeed, there is no reason to think that Parliament intended to deprive separate agency employees of the right to the independent assessment of the merits of their performance-based terminations.

[84] The Federal Court ultimately concluded that Mr. Haroun could move forward with his civil action. Although its reasons referred to performance-based terminations, those observations must be taken in the context of Mr. Haroun's employment having been terminated for performance-based reasons. It would not be compatible with the broad language of s. 236(3) ("for any reason that does not relate to a breach of discipline or misconduct") to confine its operation to only performance-based terminations.

[85] Nor would I give effect to the appellant's argument that allowing the respondent's claim to proceed will allow every employee of a separate agency to circumvent the grievance process. The respondent's claim may or may not succeed. In order to succeed, he may be required to establish more than a series of complaints that could individually have been or were pursued through the grievance process. He will have to establish that, viewed individually or cumulatively, the employer's acts and omissions reached the point that he was entitled in law to say "I quit", and to sue for damages.

VI. Disposition

[86] For these reasons, I would dismiss the appeal. I would also order that if the parties are unable to agree on costs, they may make written submissions, to be filed with the registrar. The submissions shall not exceed three pages in length, exclusive of the costs outline. The respondent's submissions shall be filed within 20 days of the release of these reasons and the appellant shall have ten days thereafter to file a response.

Appeal dismissed.

End of Document