SUPREME COURT OF CANADA

Citation: Vaughan v. Canada, [2005] 1 S.C.R. 146, 2005 SCC 11

Date: 20050318

Docket: 29712

Between:

William Thomas Vaughan, Appellant

v.

Her Majesty the Queen, Respondent

• and -

Attorney General of Alberta and Public Service Alliance of Canada, Interveners

Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

Reasons for Judgment: (paras. 1 to 42)

Dissenting reasons: (paras. 43 to 74)

Binnie J. (Major, LeBel, Deschamps, Fish, Abella and Charron JJ. concurring)

Bastarache J. (McLachlin C.J. concurring)

Vaughan v. Canada, [2005] 1 S.C.R. 146, 2005 SCC 11

William Thomas Vaughan Appellant

v.

Her Majesty The Queen Respondent

and

Attorney General of Alberta and Public Service Alliance of Canada Interveners

Indexed as: Vaughan v. Canada

Neutral citation: 2005 SCC 11.

File No.: 29712.

Hearing: May 18, 2004.

Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Deschamps and Fish JJ.

Rehearing: January 7, 2005.

Judgment: March 18, 2005.

Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.

on appeal from the federal court of appeal

Labour relations — Public service — Grievances — Early retirement incentive benefits — Courts — Jurisdiction — Public servant declared surplus wishing to take advantage of early retirement incentive benefits provided by regulation, not by collective agreement — Whether workplace dispute over entitlement to these benefits must be decided under grievance procedure established by Public Service Staff Relations Act — Whether absence of “recourse to independent adjudication” in grievance procedure sufficient for courts to get involved — Whether public servant has option of going to court when dispute grievable but not arbitrable — Public Service Staff Relations Act, R.S.C. 1985, c. P-35, ss. 91, 92.

V, a federal public servant had been on leave without pay working in the private sector for about four years when he was notified that he was surplus to the public service and would be laid off. He then sought to obtain early retirement incentive (“ERI”) benefits that were available in some circumstances to federal public servants pursuant to regulation, but the government rejected his application. He was subsequently laid off.

Under the Public Service Staff Relations Act (“PSSRA”), a grievance may be made in respect of a wide range of workplace disputes, but such a grievance can be taken to independent arbitration only if it arises out of an arbitral award or the interpretation or application of a collective agreement or results in suspension or financial penalty, termination of employment or demotion. Thus, V’s lay‑off was arbitrable (his grievance was eventually dismissed by an adjudicator independent from the department) but his claim for ERI benefits, though grievable, was not arbitrable.

V declined to grieve the denial of ERI benefits under the PSSRA procedure but initiated this claim against the Crown in the Federal Court. He sought to distinguish the Weber line of cases that call for deference in labour relations to statutory schemes for dispute resolution on the basis that courts should not defer to a statutory scheme in respect of matters that cannot be taken to independent adjudication. His action was struck out by the prothonotary, and her decision was upheld on appeal.

Held (McLachlin C.J. and Bastarache J. dissenting): The appeal should be dismissed.

Per Major, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.: Where, as here, Parliament has created a comprehensive scheme for dealing with labour disputes, the process set out in the legislative scheme should not be jeopardized by permitting parallel access to the courts. Accordingly, while the wording of the PSSRA is not strong enough to oust the courts’ residual jurisdiction in matters grievable under s. 91 but not arbitrable under s. 92, V ought to have proceeded by way of a grievance under the PSSRA. The dispute related to employment benefits in the labour relations context. Parliament’s intent manifested in the PSSRA is that in respect of benefits conferred by regulation outside the collective agreement, the decision of the Deputy Minister should be final. V ought not to be permitted to litigate his claim to ERI benefits in the courts by dressing it up as a negligence action. [29] [33-35] [39] [42]

While the absence of independent third-party adjudication may, in certain circumstances, impact on a court’s exercise of its residual discretion (as in the whistle‑blower cases) the courts should generally, as a matter of discretion, decline to get involved, except on the limited basis of judicial review. The Federal Court properly deferred to the PSSRA procedure in this case. V’s claim to ERI benefits clearly fell within the scope of the PSSRA and their denial could have been remedied (if warranted) under s. 91 of the PSSRA. The absence of recourse to independent adjudication is not in itself a sufficient reason for the courts to get involved. It is a consideration, but there is nothing on the facts of this case to take it outside the general rule of deference to the procedure mandated by Parliament. [2] [17] [36] [38]

Per McLachlin C.J. and Bastarache J. (dissenting): Although V’s claim could have been dealt with under s. 91 of the PSSRA, that section did not preclude him from commencing an action in the Federal Court. Section 91 creates a comprehensive and efficient dispute resolution regime, but the unavailability of an independent decision-maker, combined with the absence of mandatory language in the wording of the PSSRA and the employer-appointed decision-maker’s lack of expertise, points away from a finding of exclusive jurisdiction. Courts should refrain from preventing access to independent adjudication in the absence of a clear manifestation of Parliament’s intent in this regard. The availability of judicial review for decisions taken at the final level of the grievance process under the PSSRA cannot compensate for the dearth of independent adjudication of claims on their merits. While avoiding duplication is an important policy consideration, resort to the courts in the case at bar is not truly duplicative because no independent adjudication is possible at the grievance level. Courts retain residual jurisdiction in cases where an aggrieved employee has no recourse to independent adjudication. [44] [70-73]

Cases Cited

By Binnie J.

Referred to: Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Pleau (Litigation Guardian of) v. Canada (Attorney General) (1999), 1999 NSCA 159, 182 D.L.R. (4th) 373; Guenette v. Canada (Attorney General) (2002), 2002 CanLII 45012 (ON CA), 60 O.R. (3d) 601; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 CanLII 110 (SCC), [1990] 1 S.C.R. 1298; Yearwood v. Canada (Attorney General) (2002), 216 D.L.R. (4th) 462, 2002 BCCA 427; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52; Danilov v. Atomic Energy Control Board (1999), 1999 CanLII 4480 (ON CA), 125 O.A.C. 130; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704; Johnson-Paquette v. Canada (2000), 253 N.R. 305; Gaignard v. Canada (Attorney General) (2003), 2003 CanLII 40299 (ON CA), 232 D.L.R. (4th) 43; Phillips v. Harrison (2000), 196 D.L.R. (4th) 69, 2000 MBCA 150.

By Bastarache J. (dissenting)

St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 CanLII 110 (SCC), [1990] 1 S.C.R. 1298; Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929; Guenette v. Canada (Attorney General) (2002), 2002 CanLII 45012 (ON CA), 60 O.R. (3d) 601; Danilov v. Atomic Energy Control Board (1999), 1999 CanLII 4480 (ON CA), 125 O.A.C. 130; Pleau (Litigation Guardian of) v. Canada (Attorney General) (1999), 1999 NSCA 159, 182 D.L.R. (4th) 373; Phillips v. Harrison (2000), 196 D.L.R. (4th) 69, 2000 MBCA 150; Yearwood v. Canada (Attorney General) (2002), 216 D.L.R. (4th) 462, 2002 BCCA 427; Bell v. Canada (Attorney General) (2002), 210 D.L.R. (4th) 463, 2002 NFCA 5; Olsen v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 483, 2003 BCCA 209; Bouchard v. Canada (Minister of National Defence) (1999), 1999 CanLII 9105 (FCA), 187 D.L.R. (4th) 314; Johnson-Paquette v. Canada (2000), 253 N.R. 305; Public Service Alliance of Canada v. Canada (Treasury Board) (2002), 293 N.R. 325, 2002 FCA 239; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52; Derrickson v. Canada (Minister of Indian Affairs and Northern Development) (1993), 63 F.T.R. 292; Macinnis v. Canada (Attorney General), 1994 CanLII 3467 (FCA), [1994] 2 F.C. 464; TWU v. British Columbia Telephone Co., 1988 CanLII 14 (SCC), [1988] 2 S.C.R. 564; Jadwani v. Canada (Attorney General) (2001), 2001 CanLII 24157 (ON CA), 52 O.R. (3d) 660; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] 2 S.C.R. 495.

Statutes and Regulations Cited

Federal Courts Act, R.S.C. 1985, c. F‑7, s. 18.1.

Labour Relations Act, R.S.O. 1990, c. L.2, s. 45(1).

Public Service Staff Relations Act, R.S.C. 1985, c. P-35, ss. 91, 92, 96(3), 100(4).

Retirement Compensation Arrangements Regulations, No. 2, SOR/95‑169.

Special Retirement Arrangements Act, S.C. 1992, c. 46, Sch. 1.

APPEAL from a judgment of the Federal Court of Appeal (Richard C.J. and Sexton and Evans JJ.A.), [2003] 3 F.C. 645, 224 D.L.R. (4th) 640, 306 N.R. 366, [2003] F.C.J. No. 241 (QL), 2003 FCA 76, affirming a decision of Heneghan J. (2001), 213 F.T.R. 144, [2001] F.C.J. No. 1734 (QL), 2001 FCT 1233, affirming a decision of the prothonotary (2000), 2000 CanLII 14833 (FC), 182 F.T.R. 199, [2000] F.C.J. No. 144 (QL). Appeal dismissed, McLachlin C.J. and Bastarache J. dissenting.

Dougald E. Brown and Christopher Rootham, for the appellant.

Brian J. Saunders and Kirk Lambrecht, Q.C., for the respondent.

Hugh J. D. McPhail, Q.C., for the intervener the Attorney General of Alberta.

Andrew Raven, for the intervener the Public Service Alliance of Canada.

The judgment of Major, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ. was delivered by

1Binnie J. — The terms and conditions of employment of the federal government’s quarter of a million current workers are set out in statutes, collective agreements, Treasury Board directives, regulations, ministerial orders, and other documents that consume bookshelves of loose-leaf binders. Human resources personnel are recruited into the system, spend a career attempting to understand it and die out of it. Procedures for the enforcement of employment rights and obligations also differ in some respects from those in the private sector. Almost any workplace issue can be grieved but only some disputes can be carried onwards to third-party arbitration. Employee benefits that are not achieved through collective bargaining but are unilaterally conferred by regulation, such as the early retirement incentive (“ERI”) at issue in this case, are administered by the departments, including a three-stage internal grievance procedure, but are not arbitrable. The Federal Court has taken the position that subject to the availability of judicial review, disputes falling under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (“PSSRA”), should be left to the specialized machinery thereby established by Parliament for their resolution.

2I agree with the appellant that the statutory language and context of the PSSRA do not amount to the sort of explicit ouster of the jurisdiction of the courts as was the case in Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929. Nevertheless, while the courts retain a residual jurisdiction to deal with workplace-related issues falling under s. 91 of the PSSRA, but not arbitrable under s. 92, the courts should generally in my view, as a matter of discretion, decline to get involved except on the limited basis of judicial review. The facts of this case, insofar as we can ascertain them, afford a good illustration of why judicial restraint in this area is desirable. I would dismiss the appeal.

I. Facts

3This is a pleadings motion. The respondent moved to strike the claim immediately after filing its statement of defence. There is thus no evidence in the record before us. The allegations in the pleadings suggest that the appellant had been a mechanical engineer with Public Works for about 15 years when he took leave without pay in 1990 to work in the private sector. He was still on such leave when he was declared surplus to department requirements on October 12, 1994. However, according to the Work Force Adjustment Directive (“WFAD”), which formed part of the relevant collective agreement, he could not be laid off (even though he was on unpaid leave) until after a reasonable offer of another job in the Public Service had been offered to him and refused.

4In purported compliance with the WFAD, the respondent employer made the appellant a job offer dated February 17, 1995 subject to “the approval of a volunteer’s resignation”. The offer, being conditional upon an incumbent’s willingness to vacate the position, did not satisfy the WFAD.

5A couple of weeks later, the appellant indicated to the respondent his interest in obtaining early retirement benefits instead of returning to the department. He expressed a wish to take advantage of the ERI program for workers who had been declared surplus. He confirmed this preference by letter dated May 24, 1995. The dispute has thus gone on for close to ten years, almost five of them navigating the court hierarchy on this preliminary motion.

6For reasons not disclosed in the record, the federal government divides employee benefits between those it negotiates as part of a collective agreement, like salary, and those it unilaterally provides by regulation, such as the ERI benefits. (Other sources of conditions or benefits are not relevant to this case.) The PSSRA scheme provides that the former, being part of a traditional collective bargaining framework, are arbitrable. The latter, being offered outside the framework of collective bargaining, are not.

7The ERI program, which as stated was not part of the collective agreement, came into force on April 1, 1995. The respondent (wrongly) took the position that the appellant’s refusal of the earlier (conditional) job offer had discharged its obligations under the WFAD and that he was not surplus and therefore ineligible for the ERI benefit.

A. The Successive Grievances

8The appellant filed an initial grievance alleging “that the WFAD provisions had been contravened”, i.e. that he had not received a reasonable job offer. This initial grievance included a claim to a “separation benefit” under art. 7.3.1 of the WFAD. It did not include a claim for wrongful denial of the ERI benefit.

9The appellant’s grievance was allowed on December 12, 1996 at the second (internal) departmental review level, which concluded:

However, the corrective action you requested, that is for your lay-off to be rescinded, is not possible under the Public Service Employment Act. Therefore, in order for you to be reinstated into the Public Service, the Deputy Minister has given instructions to regional management to identify and offer you a position.

10The respondent then made the appellant an unconditional job offer on December 24, 1996, which, according to his own pleading, he accepted on January 10, 1997. On February 17, 1997, he failed to report for duty as required, and was laid off in accordance with the WFAD. Further grievance proceedings followed. As the WFAD formed part of the collective agreement, the lay off was arbitrable. An independent arbitrator subsequently confirmed that the second lay-off was proper. The appellant was granted severance benefits under the WFAD. However, the arbitrator correctly noted that he had no authority to deal with the appellant’s claim to ERI benefits.

B. The Action

11On January 29, 1999, the appellant started an action in negligence against the respondent alleging that it “knew, or ought to have known, that a reasonable job offer had not been provided to the [appellant] and that the [appellant] was eligible for ERI” (statement of claim, at paras. 31-32). It is the negligence action that the respondent employer is attempting to have struck out. The appellant presumably felt obliged to frame his action, with a degree of artificiality, in the tort of negligence to circumnavigate the PSSRA. However, as our present Chief Justice wrote in Weber, at para. 49: —One must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute.” Here the facts quite clearly arise out of the employer-employee relationship.

II. Relevant Statutory Provisions

12The relevant provisions of the PSSRA are set out in the reasons of my colleague Justice Bastarache.

III. Analysis

13Labour relations has long been recognized as a field of specialized expertise. The courts have tended in recent years to adopt a hands-off (or —deferential—) position towards expert tribunals operating in the field, including arbitrators. The posture of deference was crystallized in Weber where this Court established a —bright line— demarcation in the case of disputes governed by the sort of labour relations legislation that typically exists across Canada and which provides for compulsory arbitration. In such cases, if the dispute between the parties in its —essential character— arises from the interpretation, application, administration or violation of the collective agreement, it is to be determined by an arbitrator appointed in accordance with the collective agreement, and not by the courts.

14The Weber approach was extended beyond collective agreements to a statutory (not collective bargaining) regime in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, —2000— 1 S.C.R. 360, 2000 SCC 14. That case involved a statutory regime for police discipline. Bastarache J., for the Court, held at para. 26:

. . . the rationale for adopting the exclusive jurisdiction model was to ensure that the legislative scheme in issue was not frustrated by the conferral of jurisdiction upon an adjudicative body that was not intended by the legislature.

15The present appeal carries the debate a step further, and raises the question whether the doctrine of judicial restraint (or deference) preached in the Weber line of authorities applies to the statutory labour relations scheme set out in the PSSRA which does not in its relevant aspects provide for independent adjudication. As stated, the dispute here is over a benefit unilaterally conferred by the employer, in respect of which Parliament has vested the final decision in the Deputy Minister or his or her designate without recourse to independent adjudication. If such restraint is not mandatory (as it was in Weber), is restraint nevertheless necessary to avoid undermining Parliament’s intent as expressed in the labour relations statute?

16The respondent claims, and my colleague Bastarache J. agrees at para. 60, that the legislative scheme under the PSSRA was intended by Parliament to be —comprehensive—. Why then should it not be respected? My colleague writes at para. 72:

While I agree that the regime in this case is comprehensive, this is not enough. Courts retain residual jurisdiction in cases where an aggrieved employee has no recourse to independent adjudication.

17I agree that the courts retain “residual jurisdiction” in this case. I do not agree that the absence of “recourse to independent adjudication” is of itself a sufficient reason for the courts to get involved.

A. The Whistle-Blower Cases

18Subsequent to Weber, a number of actions were started in the provincial superior courts by federal government employees who complained of employer retaliation or harassment by their superiors allegedly arising out of blowing the whistle on government waste or abuse. For various reasons, these complaints were grievable under s. 91 but not arbitrable under s. 92 of the PSSRA.

19In Pleau (Litigation Guardian of) v. Canada (Attorney General) (1999), 1999 NSCA 159, 182 D.L.R. (4th) 373 (N.S.C.A.), the plaintiff alleged that he suffered harassment because he reported —what he believed to be evidence of misconduct in the operation of a government facility— (p. 380). In Guenette v. Canada (Attorney General) (2002), 2002 CanLII 45012 (ON CA), 60 O.R. (3d) 601 (C.A.), two employees in the Department of Foreign Affairs and International Trade complained of —punitive steps— taken by their superiors because they reported —mismanagement and waste of taxpayers— money” (para. 1) in respect of properties held abroad. In both cases, the actions were allowed to proceed.

20The courts were understandably reluctant to hold that in such cases the employees— only recourse was to grieve in a procedure internal to the very department they blew the whistle on, with the final decision resting in the hands of the person ultimately responsible for the running of the department under attack, namely the Deputy Minister (or designate). The judges concluded that at some point their complaints should be dealt with by an adjudicator independent of the department but that the PSSRA did not provide for it. In both cases, it was pointed out that the —exclusivity— language of ss. 91 to 96 of the PSSRA was weaker than the labour relations provision at issue in Weber. The legislative door had been left open enough for the judiciary to enter.

21In Pleau, Cromwell J.A. concluded that Parliament—s intent in ss. 91 and 92 of the PSSRA, unlike the Ontario Legislature’s intent in the Labour Relations Act, R.S.O. 1990, c. L.2 (now 1995, c. 1, Sch. A), at issue in Weber, was not to oust the jurisdiction of the courts, at least not in those cases where no independent arbitration was provided for. He relied on the statement in Weber, at para. 54, that courts “possess residual jurisdiction based on their special powers” (p. 403). He also stated, at p. 381:

While it takes very clear language to oust the jurisdiction of the superior courts as a matter of law, courts properly decline to exercise their inherent jurisdiction where there are strong policy reasons for doing so.

Cromwell J.A. acknowledged at pp. 387-88 that “an express grant of exclusive jurisdiction is not necessary to sustain judicial deference to the statutory dispute resolution process”, citing Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 CanLII 110 (SCC), [1990] 1 S.C.R. 1298.

22In the course of his reasons, however, Cromwell J.A. deduced from Weber the principle that “the capacity of the scheme to afford effective redress must be considered. Simply put, the concern is that where there is a right, there ought to be a remedy” (p. 391 (emphasis in original)). I agree (as did Evans J.A. in the courts below) that this feature is a factor for consideration, but I do not agree with the appellant that the absence of independent adjudication is conclusive. The task of the court is still to determine whether, looking at the legislative scheme as a whole, Parliament intended workplace disputes to be decided by the courts or under the grievance procedure established by the PSSRA.

23The appellant relies in particular on the conclusion of Cromwell J.A. in Pleau that

[i]n my opinion, access to the grievance procedure without the right to test the outcome by adjudication on the merits by a third party does not constitute effective redress for the alleged wrongdoing in this case. [Emphasis added; p. 404.]

I underline the words “in this case” because Pleau dealt with the alleged harassment of a whistle-blower and raised serious questions of conflicted interests within the employer department, whereas the appellant’s claim here is an ordinary garden variety employment benefit case.

24In Guenette, another whistle-blower case, the Ontario Court of Appeal, citing Pleau, refused to defer to the PSSRA s. 91 procedure on the basis that “[d]eference to another adjudicative body is one thing; deference to a scenario where there would be no adjudication at all is an entirely different matter”:

The respondents concede that the appellants’ claims are not subject to adjudication under the PSSRA. In my view, the argument for deference simply dissolves with this concession. Deference to another adjudicative body is one thing; deference to a scenario where there would be no adjudication at all is an entirely different matter. [Emphasis added; para. 69.]

See also Yearwood v. Canada (Attorney General) (2002), 216 D.L.R. (4th) 462, 2002 BCCA 427, at paras. 77-78.

25I do not agree that “the argument for deference simply dissolves”. What seems to have begun as a narrow ruling in Pleau has ripened in the hands of the appellant into a general proposition that in the cases of disputes that are grievable but not arbitrable a government employee has the option of going to court. I do not agree. The argument rests in part on the fallacy that under the usual labour relations regime an employee is entitled to carry a grievance to arbitration. This is not so. The party to the collective agreement is the union, and the union may or may not decide to carry an employee’s grievance forward based on many considerations which will include, but are certainly not limited to, its merits.

26Moreover, in the usual labour relations context, many issues are reserved to the discretion of management. Not every dispute is necessarily grievable, much less arbitrable. There is nothing objectionable, in my view, in putting benefits earned through collective bargaining (such as a salary) on a different footing in terms of dispute resolution than benefits unilaterally conferred by regulation. The fact that only the former may go to arbitration (if the union wishes) reflects their different origins. When a benefit is conferred by statute or regulation, the conferring legislature is entitled to specify the machinery for its administration (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52), subject to a dissatisfied party having recourse to judicial review.

B. The Jurisdiction of the Court Is Not Ousted

27In Guenette, MacPherson J.A. agreed with Cromwell J.A.’s analysis in Pleau, and highlighted the “limited” privative clause in s. 96(3) of the PSSRA:

96. . . .

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

28Both courts also fastened on the words in s. 91 that the employee is “entitled” to grieve as showing that the s. 91 procedure is just one of the employee’s options. A similar point was taken by the Ontario Court of Appeal in Danilov v. Atomic Energy Control Board (1999), 1999 CanLII 4480 (ON CA), 125 O.A.C. 130, at para. 11. For the reasons given by my colleague Bastarache J., I do not agree with this interpretation. The word “entitled” in s. 91 simply recognizes that an employee is not required to grieve every decision that he or she disagrees with.

29The conclusion reached in Pleau and Guenette, which I accept, that the wording of the PSSRA is not strong enough to “oust” the court’s jurisdiction in all matters grievable under s. 91 but not arbitrable under s. 92, still leaves open the further question of how the court should exercise its residual discretion in light of the labour relations scheme enacted by the PSSRA.

C. The Statutory Scheme

30The PSSRA provides in its relevant parts of s. 91 that a federal government employee may present a grievance where he or she feels —aggrieved—

by the interpretation or application, in respect of the employee, of (i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or (ii) a provision of a collective agreement or an arbitral award, or . . . .

The appellant’s claim for ERI benefits clearly fell within the scope of this grievance procedure. It is true that the courts will retain jurisdiction if the remedy sought is not one which the statutory scheme can provide (St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704, at p. 724; Weber, at para. 57) but that is not a problem here. The statutory decision-maker under s. 91(1) of the PSSRA (though not an arbitrator under s. 92) could order the respondent to provide the appellant with the ERI benefits.

31The grievance may be pursued up to the level of Deputy Minister, but not beyond (subject to judicial review) unless the grievance arises out of an arbitral award or the interpretation or application of a collective agreement (as in Johnson-Paquette v. Canada (2000), 253 N.R. 305 (F.C.A.), and Gaignard v. Canada (Attorney General) (2003), 2003 CanLII 40299 (ON CA), 232 D.L.R. (4th) 43 (Ont. C.A.)), or results in suspension or financial penalty, termination of employment or demotion in which case it may be referred to adjudication by an independent arbitrator. None of the exceptions applied to the appellant’s claim for ERI benefits. The dispute was therefore not eligible for third-party adjudication.

32Parliament’s intent expressed in ss. 91, 92 and 96(3) of the PSSRA is clearly to deny access to third-party arbitration in the case of regulation-conferred benefits such as the ERI. No constitutional challenge is made to the PSSRA. The question, therefore, is whether the Court should offer a forum to resolve such employee benefits issues to run concurrently with the internal departmental grievance procedure under s. 91 of the PSSRA.

D. Why the Court Should Generally Decline to Exercise Its Jurisdiction in PSSRA Matters

33As stated, the language of the PSSRA is not strong enough to oust the jurisdiction of the ordinary courts with respect to matters grievable but not arbitrable. The question before us is whether the courts should nevertheless defer to the PSSRA grievance procedure in this case. I believe it should.

34Firstly, the language of the PSSRA sends an unambiguous signal that in the run-of-the-mill case of benefits conferred by a regulation outside the collective agreement, the decision of the Deputy Minister or his or her designate should be final.

35Secondly, the present dispute arises from the employment relationship and falls within the dispute resolution scheme set out in the PSSRA.

36Thirdly, the appellant’s claim to ERI could have been remedied in the s. 91 grievance procedure. As the Manitoba Court of Appeal stated in Phillips v. Harrison (2000), 196 D.L.R. (4th) 69, 2000 MBCA 150: “What is important is that the scheme provide a solution to the problem” (para. 80).

37Fourthly, the appellant’s legal position should not be improved by his failure to grieve the ERI issue. The dispute resolution machinery under s. 91 was there to be utilized. Efficient labour relations is undermined when the courts set themselves up in competition with the statutory scheme (St. Anne Nackawic, at p. 718; Weber, at para. 41; Regina Police, at para. 26). I do not agree with the appellant’s broad suggestion, however obliquely made, that the departmental procedure reeks of conflict of interest. The appellant’s own success with his 1995 grievance shows this not to be true in practice. The suggestion that departmental officials have an interest in denying ERI benefits to an employee who comes within the applicable policies so as to constitute some sort of institutional bias is simply not credible. If the facts in another case were to disclose a more particular and individualized conflict problem (as in the whistle-blower cases) other considerations will come into play.

38Fifthly, I do not accept for reasons already expressed, the central assumption of the appellant’s argument that comprehensive legislative schemes which do not provide for third-party adjudication are not, on that account, worthy of deference. It is a consideration, but in the case of the PSSRA it is outweighed by other more persuasive indications of clues to parliamentary intent.

39Sixthly, where Parliament has clearly created a scheme for dealing with labour disputes, as it has done in this case, courts should not jeopardize the comprehensive dispute resolution process contained in the legislation by permitting routine access to the courts. While the absence of independent third-party adjudication may in certain circumstances impact on the court’s exercise of its residual discretion (as in the whistle-blower cases) the general rule of deference in matters arising out of labour relations should prevail.

40Seventhly, the fact that we are dealing with a labour dispute almost a decade old demonstrates (if demonstration is necessary) that more informal dispute resolution procedures are generally faster, cheaper, and get the job done.

41Finally, the dispute in question is entirely straightforward. Under the collective agreement, the appellant was entitled to another job. According to his statement of claim, he was eventually offered a suitable job and he accepted it. Following a further dispute, he was terminated but received (according to the independent arbitrator) the separation benefits to which he was entitled under the collective agreement, as set out in art. 7.3.1 of the WFAD. Whether or not he should have been given the alternative of ERI benefits under a program adopted by the federal government to manage the size of its workforce by shedding surplus employees was essentially an administrative matter best left to the administrators. If this simple ERI issue can be litigated in the courts, so can every other regulation-conferred benefit applicable to over a quarter of a million employees of the federal public service. The outcome could give a new dimension to the concept of “floodgates”.

IV. Conclusion

42The appellant ought to have proceeded with the remedies granted by Parliament under the PSSRA. It was not open to him to ignore the PSSRA scheme and litigate his claim to ERI benefits in the courts by dressing it up as a “negligence” action. I would dismiss the appeal with costs.

The reasons of McLachlin C.J. and Bastarache J. were delivered by

Bastarache J. (dissenting) —

I. Introduction

43This case requires our Court, once again, to examine the scope of the exclusive jurisdiction model adopted for the resolution of labour disputes. We are asked to look at the rationale underlying the decisions in St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, 1986 CanLII 71 (SCC), [1986] 1 S.C.R. 704; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, 1990 CanLII 110 (SCC), [1990] 1 S.C.R. 1298; and Weber v. Ontario Hydro, 1995 CanLII 108 (SCC), [1995] 2 S.C.R. 929, to determine whether the exclusive jurisdiction model should apply to the grievance procedure established under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (“PSSRA”), so as to oust the jurisdiction of the Federal Court. Various provincial appellate courts and the Federal Court of Appeal have come to different conclusions on the issue, this divergence of opinions resulting mainly from different approaches regarding the lack of access in the administrative scheme to adjudication by an independent decision-maker.

44As explained below, it is my view that although the PSSRA creates a comprehensive scheme for dealing with labour disputes, courts should refrain from preventing access to independent adjudication in the absence of a clear manifestation of Parliament’s intent in this regard. The availability of judicial review for decisions taken at the final level of the grievance process under the PSSRA cannot compensate for the dearth of independent adjudication of claims on their merits.

II. Facts

45The appellant was employed as a mechanical engineer with the Department of Public Works from 1975 until 1996. He was notified in October 1994 that he was surplus and that he would be laid off as of April 12, 1995. Under the Work Force Adjustment Directive (“WFAD”) he was entitled to receive at least one reasonable job offer within the public service before being laid off. In February 1995, the appellant was offered another position, with an effective date to be determined. The appellant advised his employer that he understood that an early retirement incentive (“ERI”) program would soon be available, and requested that he be provided with benefits under the program as of April 1, 1995, when it would become available. The benefits were not offered under the terms of the collective agreement but were made available under the Retirement Compensation Arrangements Regulations, No. 2, SOR/95-169, made pursuant to the Special Retirement Arrangements Act, S.C. 1992, c. 46, Sch. 1. Benefits under the program were not available to employees who had received a reasonable job offer before leaving the federal public service. Meanwhile, the appellant’s lay-off date was extended to July 12, 1995. The appellant indicated that he did not regard the job offer as reasonable, since it was subject to conditions. His application for ERI was nonetheless rejected on the basis that he had received a reasonable job offer, and since he had not accepted the offer, he was advised that his lay-off would be effective February 23, 1996.

46The appellant filed a grievance alleging non-compliance with the WFAD and his grievance was allowed at the second level. The Executive Committee of the National Joint Council found that the job offer was not reasonable and that his lay-off was therefore not in accordance with the WFAD. He was then offered an indeterminate, unconditional appointment equivalent to his previous position. He advised the supervisor that his employment in the private sector made it unlikely that he would be able to start the new position for several months. He was told that failure to report to work on the effective date would be regarded as rejection of the offer of employment. The appellant advised that he intended to take his grievance to the next level of the process, since his claim for ERI benefits had not been addressed. The respondent treated this as a rejection of the offer of employment. The appellant’s grievance was referred to an independent adjudicator under s. 92 of the PSSRA. The adjudicator confirmed the conclusion of the National Joint Council, and found that his surplus status should have been extended until February 17, 1997. He also found that the second offer was reasonable and had been rejected by the appellant’s failure to report to work. The adjudicator ordered that the appellant be paid the separation benefits to which he was entitled under the collective agreement, but stated that he had no authority to determine the appellant’s eligibility for ERI benefits because they arose from statute and not from the collective agreement.

47The appellant instituted no further proceedings in respect of the Adjudicator’s decision but rather commenced an action in negligence against the respondent claiming that his employer had failed to take the steps necessary to enable him to receive the benefit of the ERI program, and claiming damages and a declaration that he was entitled to ERI benefits. A Prothonotary found that the jurisdiction of the courts was ousted in this case by the statutory scheme under the PSSRA and granted a motion by the respondent to strike the appellant’s statement of claim as disclosing no reasonable cause of action. On appeal to a judge of the Federal Court, the appeal was dismissed, and a further appeal to the Federal Court of Appeal was also dismissed.

III. Relevant Statutory Provisions

48Public Service Staff Relations Act, R.S.C. 1985, c. P-35

91. (1) Where any employee feels aggrieved

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

(i) a provision of a statute, or of a regulation, by‑law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or

(ii) a provision of a collective agreement or an arbitral award, or

(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),

in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.

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

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

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

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

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

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

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

96. . . .

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

100. . . .

(4) For the purposes of any provision of this Act respecting grievances, the employer shall designate the person whose decision on a grievance constitutes the final or any level in the grievance process and the employer shall, in any case of doubt, by notice in writing, advise any person wishing to present a grievance, or the Board, of the person whose decision thereon constitutes the final or any level in the process.

IV. Analysis

49Although it would appear at first blush that this is yet another case that engages the Weber principles concerning the application of the exclusive jurisdiction model to employment-related disputes, there are fundamental differences between this case and Weber.

A. Permissive Language of Section 91

50The first notable difference is that the PSSRA does not have a mandatory arbitration provision. Whereas in Weber, s. 45(1) of the Ontario Labour Relations Act, R.S.O. 1990, c. L.2 (now S.O. 1995, c. 1, Sch. A, s. 48(1)), required that “[e]very collective agreement shall provide for the final and binding settlement by arbitration”, ss. 91 and 92 of the PSSRA use permissive language by providing that employees who feel aggrieved are “entitled . . . to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act” (s. 91). As discussed below, this permissive language simply reflects the fact that no employee is required to file a grievance and it is not determinative of legislative intent with regard to exclusivity of the grievance process.

B. Exceptions to the Grievance Process

51The second difference is that the PSSRA provides in s. 91 for exceptions to the grievance process by stating that disputes for which an “administrative procedure for redress is provided [for] in or under an Act of Parliament” are exempt. It was argued that these exceptions are evidence of the fact that the s. 91 regime was not intended to exclude the jurisdiction of the courts: Guenette v. Canada (Attorney General) (2002), 2002 CanLII 45012 (ON CA), 60 O.R. (3d) 601 (C.A.), at para. 52. But it could just as well be argued that the PSSRA and recognized schemes together constitute a comprehensive regime. In my view, the s. 91 exemptions are not clearly indicative of legislative intent with regard to the exclusivity of recourse to s. 91 where it is applicable.

C. Nature of the Dispute

52A third difference is that there is no disagreement in the case at bar regarding the nature of the dispute. All parties agree that the dispute revolved around the appellant’s entitlement to ERI benefits, which could be the subject of a grievance under s. 91(1)(a)(i) of the PSSRA.

53Taking note of the above differences, it is clear that the disagreement between the parties in this case is whether s. 91 of the PSSRA confers exclusive jurisdiction over the dispute, ousting that of the courts. There is no disagreement regarding the exclusivity of the regime pursuant to s. 92 claims or claims that were initiated under s. 91 and are subject to the finality clause in s. 96(3); I will therefore not comment on these sections.

D. The Grievance Process Under the PSSRA and the Collective Agreement

54To determine whether the s. 91(1) scheme is exclusive, we must first look at its operation. This provision allows employees, including those not subject to a collective agreement, to grieve virtually all employment-related issues up to and including the final level of the grievance process. Third-party adjudication is only permitted under s. 92(1) for specific issues arising out of a collective agreement, discipline or termination of employment. A final decision taken under s. 91 is subject to judicial review under s. 18.1 of the Federal Courts Act, R.S.C. 1985, c. F‑7.

55In this case, the appellant was subject to a collective agreement (the Master Agreement) containing two separate grievance procedures. The first grievance procedure covers disputes arising under agreements concluded by the National Joint Council of the Public Service, which have been incorporated into the Master Agreement (art. 35.01). The second covered all other employment-related disputes as set out in the Master Agreement (art. 35.05). Under the latter, the final level grievance officer was the Chief Executive Officer or Deputy Head or his or her authorized representative (art. 35.06). The Master Agreement also provided that in the case of a grievance that could not be referred to adjudication, the decision taken at the final step in the grievance procedure was final and binding and that no further action could be taken under the PSSRA (art. 35.13).

56As discussed, the actions taken by the appellant under the first grievance procedure mentioned above resulted in an adjudicator refusing to deal with the ERI claim on the basis of lack of jurisdiction. The appellant then commenced an action in the Federal Court, alleging that the respondent had been negligent in refusing to grant him ERI benefits. This led the Federal Court to decide that ERI claims were properly dealt with under s. 91(1).

E. Does the PSSRA Engage the Application of the Exclusive Jurisdiction Model?

57Admittedly, the appellant’s claim could be dealt with under s. 91(1); but is this the exclusive forum? Most provincial appellate courts which have dealt with this issue have found that the procedure under s. 91 of the PSSRA does not exclude the jurisdiction of the courts over grievance disputes to which s. 92 does not apply: see Danilov v. Atomic Energy Control Board (1999), 1999 CanLII 4480 (ON CA), 125 O.A.C. 130; Pleau (Litigation Guardian of) v. Canada (Attorney General) (1999), 1999 NSCA 159, 182 D.L.R. (4th) 373 (N.S.C.A.); Phillips v. Harrison (2000), 196 D.L.R. (4th) 69, 2000 MBCA 150; Guenette; Yearwood v. Canada (Attorney General) (2002), 216 D.L.R. (4th) 462, 2002 BCCA 427; Bell v. Canada (Attorney General) (2002), 210 D.L.R. (4th) 463, 2002 NFCA 5; Olsen v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 483, 2003 BCCA 209. The Federal Court jurisprudence, however, points in the other direction: see Bouchard v. Canada (Minister of National Defence) (1999), 1999 CanLII 9105 (FCA), 187 D.L.R. (4th) 314 (C.A.); Johnson-Paquette v. Canada (2000), 253 N.R. 305 (F.C.A.); Public Service Alliance of Canada v. Canada (Treasury Board) (2002), 293 N.R. 325, 2002 FCA 239.

58In Weber, McLachlin J. (as she then was) gave three reasons for adopting the exclusive jurisdictional model: the mandatory language of the Labour Relations Act, this Court’s reasons in St. Anne Nackawic, and reinforcement of the policy of deference to the arbitration and grievance process. The question is whether the above reasons, or any other, resonate in the present case. I conclude on the basis of these factors, as well as the unavailability of independent and specialized adjudication, that the procedure does not oust the jurisdiction of the courts.

59Here, the statutory language does not explicitly provide for exclusivity. This, however, is not determinative of the legislature’s intent. As discussed above, the wording of the provision is but one of three factors considered by this Court in determining exclusive jurisdiction.

60In Pleau, at p. 381, the Nova Scotia Court of Appeal held that a decision to decline jurisdiction is not based solely on a clear, express grant of jurisdiction to another forum. Rather, Cromwell J.A. properly stated the question to be asked: have the legislature and parties shown a strong preference for a particular dispute resolution process other than the court process? If the legislation is unclear, certain policy considerations should be taken into account, such as, among other things, the desire for the establishment of an inexpensive, efficient and definitive mechanism for the resolution of labour disputes. This will manifest itself essentially in a finding with regard to the comprehensiveness of the labour-related dispute resolution scheme.

61In Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14, I explained at para. 34 that the rationale supporting the application of the Weber principle is only partially based on the comprehensiveness of a statutory scheme:

The underlying rationale for the approach to determining jurisdiction set out in Weber, supra, was based, in part, on the recognition that it would do violence to a comprehensive statutory scheme, designed to govern all aspects of the relationship between parties in a labour relations setting, to allow disputes to be heard in a forum other than that specified in the scheme: see, e.g., St. Anne Nackawic, supra, at p. 721; Weber, at para. 46.

In the case at bar, Sexton J.A. concluded that the PSSRA provided for a comprehensive dispute resolution scheme (para. 19). I agree. But that is not the end of the matter. Other factors also have to be considered in determining whether Parliament intended to create an exclusive scheme, namely the availability of a remedy and the issue of procedural fairness.

62In fact, the core of the appellant’s argument is that the principles enunciated in Weber, and Regina Police, find no application here because in those cases, contrary to the scheme created by the PSSRA, the statutory regimes provided for access to an independent decision-maker. In the decision below, Evans J.A. describes the legislative context by stating that “section 91 does not provide employees with access to an impartial decision-maker who is independent of the employer, has the legal powers to compel the production of evidence and the attendance of witnesses, and can decide questions of common law” (para. 131).

63Sexton J.A. was of the view that this argument must be set aside on the basis of this Court’s decision in Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52, according to which the degree of independence required of tribunal members is determined by the legislature or Parliament. This is also the position of the respondent. On the other hand, according to Evans J.A., procedural fairness is assured by the availability of judicial review.

64In my view, judicial review is not an adequate substitute for the adjudication of claims on their merits. The court’s role on judicial review is to “review the decision made by the decision-maker but not to supplant that decision-making process”: Derrickson v. Canada (Minister of Indian Affairs and Northern Development) (1993), 63 F.T.R. 292, at p. 298, cited with approval in Macinnis v. Canada (Attorney General), 1994 CanLII 3467 (FCA), [1994] 2 F.C. 464 (C.A.), at p. 470. Therefore, I fail to see how the availability of judicial review is equivalent to an initial independent adjudication, where facts can be gathered, testimony heard and questions of law decided independently from the parties involved in the dispute.

65It is also important here to point out the rationale for deference to statutory decision-makers. In TWU v. British Columbia Telephone Co., 1988 CanLII 14 (SCC), [1988] 2 S.C.R. 564, at p. 584, this Court stated:

The rationale for this approach has to do with the Court’s deference to the “expertise” of statutorily established and administered tribunals. In the field of labour law, the concentration of decision making power among labour tribunals and arbitrators is designed for efficiency, and is tailored to the development of a coherent labour law policy.

The specialized nature of the statutorily created dispute resolution forum was also a reason given for increased deference by courts to structures set out by labour legislation in Gendron, at p. 1326. As observed by the courts in Pleau and Guenette, there is no evidence of any particular expertise on the part of the employer-appointed decision-maker in the PSSRA, or in the collective agreement. This, in my view, reinforces the notion that access to an independent decision-maker is crucial. Indeed, in those cases where the court held that a comprehensive scheme was a determinative factor in deciding that the legislative scheme was exclusive, that scheme provided for an expert independent decision-maker. The fact that procedural fairness was not expressly identified as a consideration in determining the exclusiveness of a statutory scheme does not, in my view, diminish its relevance.

66In Regina Police, I wrote that the legislature intended to provide a complete code for the resolution of disciplinary matters, but that code provided for an independent and expert adjudication forum (at para. 31):

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

67In Gendron, the scheme was said to be similar to the court process (at p. 1317):

In reviewing the legislation it becomes clear that, at least as regards the duty of fair representation, Parliament has enacted a comprehensive, exclusive code. An overview of the Code puts the statutory duty of fair representation in its proper context, that of a complete and comprehensive scheme that both supplies the duty and provides the necessary adjudicative machinery such that resort to the common law is duplicative in any situation where the statute applies. [Emphasis added.]

68The risk of duplication was similarly considered in St. Anne, at pp. 718-19:

The more modern approach is to consider that labour relations legislation provides a code governing all aspects of labour relations, and that it would offend the legislative scheme to permit the parties to a collective agreement, or the employees on whose behalf it was negotiated, to have recourse to the ordinary courts which are in the circumstances a duplicative forum to which the legislature has not assigned these tasks. [Emphasis added.]

69And in Weber, at para. 58:

[The exclusive jurisdiction model] satisfies the concern that the dispute resolution process which the various labour statutes of this country have established should not be duplicated and undermined by concurrent actions. It conforms to a pattern of growing judicial deference for the arbitration and grievance process and correlative restrictions on the rights of parties to proceed with parallel or overlapping litigation in the courts. [Emphasis added.]

70In my view, the risk of duplication is an equally important policy consideration underlying the exclusive jurisdiction model. The Ontario Court of Appeal’s decision in Jadwani v. Canada (Attorney General) (2001), 2001 CanLII 24157 (ON CA), 52 O.R. (3d) 660, points in the same direction. In upholding the motions judge’s decision to strike a claim because the allegations in the pleadings and those made in the adjudication were essentially the same, McMurtry C.J.O. noted that “[s]triking the statement of claim in this case serves the policy goal of preventing the courts from becoming a duplicative forum for matters addressed and grieved under the Collective Agreement” (para. 30).

71In the case at bar, resort to the common law courts cannot be said to be truly duplicative because no independent adjudication is possible at the grievance level. If the policy concerns underlying the exclusive jurisdiction model are not present, it is inappropriate to conclude that there is exclusive jurisdiction when there is no mandatory language in the statute to support that finding. As mentioned earlier, the availability of judicial review cannot cure this defect. The British Columbia Court of Appeal put it well in Yearwood, at para. 74:

With the exception of Johnson‑Pacquette [sic], none of the authorities to which I have referred have regarded the availability of judicial review as a factor militating against an action in court. The remedies are essentially different, and I am not persuaded that the availability of judicial review can operate as a bar to an action in circumstances such as these. The availability of adjudication of a party’s claims on the merits by an independent third party is the single most important factor the courts have emphasized in determining the extent to which Weber applies so as to exclude the jurisdiction of the courts. Unlike employees covered by the collective agreement, who have at least some prospect of having complaints in the nature of Mr. Yearwood’s complaint adjudicated, Mr. Yearwood has no recourse to such a remedy. As in the cases of Danilov, Pleau, Phillips, and Bell, Mr. Yearwood’s only avenue to a resolution of his claim on the merits by an independent third party is by way of civil action.

72While I agree that the regime in this case is comprehensive, this is not enough. Courts retain residual jurisdiction in cases where an aggrieved employee has no recourse to independent adjudication. As stated by McLachlin J. in Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] 2 S.C.R. 495, at para. 8:

No matter how comprehensive a statutory scheme for the regulation of disputes may be, the possibility always remains that events will produce a difficulty which the scheme has not foreseen. It is important in these circumstances that there be a tribunal capable of resolving the matter, if a legal, rather than extra‑legal, solution is to be found. It is precisely for this reason that the common law developed the notion of courts of inherent jurisdiction. If the rule of law is not to be reduced to a patchwork, sometime thing, there must be a body to which disputants may turn where statutes and statutory schemes offer no relief.

73In sum, although s. 91 of the PSSRA creates a comprehensive and efficient dispute resolution regime, the unavailability of independent adjudication, combined with the absence of mandatory language in the wording of the statute and lack of expertise of the employer-appointed decision-maker, points away from a finding of exclusive jurisdiction. Consequently, employees should not be precluded from commencing an action in the courts.

V. Disposition

74For the above reasons, I would allow the appeal with costs throughout.