Court File and Parties

COURT FILE NO.: CV-15-537075 DATE: 20160426 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

MARTIN McSWEENEY Plaintiff – and – THE ATTORNEY GENERAL OF CANADA Defendant

Counsel: Ronald Segal and Maria Constantine, for the Plaintiff Gillian Patterson, for the Defendant

HEARD: February 26, 2016 BEFORE: G. Dow, J.

Reasons for Decision

[1] The defendant, the Attorney General of Canada seeks dismissal of the plaintiff’s Statement of Claim under Rule 21.01(3)(a) and/or (d). That is, either the Court has no jurisdiction over the legal dispute between the parties or this action is an abuse of the process of this Court as opposed to the frivolous and vexatious aspects of Rule 21.01(3)(d). The plaintiff opposes the motion based upon section 236(3) of the Public Service Labour Relations Act, S.C. 2003 c.22, (“PSLRA”) which allows employees of the Canadian Security Intelligence Service (“CSIS”) to dispute their termination of employment “for any reason that does not relate to a breach of discipline or misconduct”.

Background

[2] The plaintiff commenced employment with CSIS June 23, 2003 as a technologist. As a condition of his employment, he was required to obtain and be vetted for top secret security clearance. On September 24, 2012, the plaintiff advised CSIS that he had been arrested by Halton Police and criminally charged arising from events which occurred in April, 2012. The incident and issues surrounding the charges involved the plaintiff’s mental health. The plaintiff was placed on discretionary leave with pay.

[3] In December, 2012 the plaintiff had failed to respond to efforts by the defendant to contact him. On February 14, 2013, the Director of CSIS wrote to the plaintiff suspending his top secret security clearance and advising him that same was a condition of his employment. He was placed on leave without pay effective February 18, 2013. He was advised of his right to complain about the suspension of his top secret security clearance to the Security Intelligence Review Committee (“SIRC”) within 30 days. The plaintiff did not make such a complaint.

[4] On March 19, 2013, the Director of CSIS again advised the plaintiff that his top secret security clearance was a condition of his employment and in its absence he was dismissed from CSIS effective April 17, 2013. The plaintiff’s right to seek redress or review of the revocation of his top secret security clearance by applying to SIRC within 30 days was repeated. He was also advised of his right to complain to the Canadian Human Rights Commission.

[5] In letters to the CSIS Director June 3 and June 17, 2013, the plaintiff requested restoration of his top secret security clearance and reinstatement of his employment which the Director declined in writing under cover of letter July 3, 2013.

[6] The plaintiff proceeded to file a series of grievances regarding his employment status without success. The criminal charges were stayed October 15, 2013.

[7] The Statement of Claim was issued May 14, 2015 which has subsequently been amended and seeks a variety of damages arising from the termination of the plaintiff’s employment without adequate compensation.

Analysis

[8] The defendant maintains the plaintiff is governed by the provisions of the Canadian Security Intelligence Service Act, R.S.C. 1985, c.C-23, (“CSISA”) the enabling legislation for Canada’s security service. This includes, no doubt due to the sensitive nature of the work done by CSIS, creation of what is called the Security Intelligence Review Committee (“SIRC”) under section 34. The committee consists of a chairman and two to four other members all of whom “shall be appointed by the Governor in Council from among members of the Queen’s Privy Council for Canada who are not members of the Senate or the House of Commons after consultation by the Prime Minister of Canada with the Leader of the Opposition in the House of Commons and the leader in the House of Commons for each party having at least 12 members in that House”. Section 41 provides any person “may” make a complaint to the Review Committee and subsequent sections deal with the process SIRC is to follow responding to a complaint, including ones about security clearance.

[9] The defendant points to the fact the plaintiff is not entitled to grieve the revocation of his top secret security clearance given the application of section 208(2) the PSLRA which states “An employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act.” The defendant submits this applies to the circumstances at hand as the plaintiff is subject to the Canadian Security Intelligence Service Act and its scheme which provides for the handling of complaints about revocation of security clearance and same being addressed by SIRC.

[10] The defendant cited a variety of cases in submissions. In Vaughan v. Canada, 2005 SCC 11, [2005] S.C.J. No. 12, the defendant was successful in persuading the Court that Parliament, at paragraph 39 had “clearly created” a “comprehensive dispute resolution process”. It was not open to the plaintiff to ignore the legislation. However, as counsel for the defendant acknowledged, the legislation in question was the Public Service Staff Relations Act, R.S.C. 1985, c.P-35 (“PSSRA”) which was the legislation that preceded the PSLRA and did not contain section 236 or an equivalent. The defendant also relied on the decision in Sullivan v. Canadian Security Intelligence Services, [2003] C.P.S.S.R.B. No. 23, a decision of the Canada Public Service Staff Relations’ Board and Deputy Chairperson G. Giguère who addressed the issue of revocation of an individual’s top secret security clearance. The Deputy Chairperson concluded, at paragraph 43, that the case law was quite clear that “revocation of a security clearance per se is of an administrative nature” rather than a disciplinary act.

[11] The defendant asked me to decline jurisdiction on behalf of the Superior Court of Justice given the situation at hand would be better dealt with by SIRC. However, I return to section 41 of the CSISA that complaints to SIRC “may” made to them and not “shall”.

[12] This, in my view is sufficient to determine this matter at this stage of the proceedings.

[13] I am reinforced in this conclusion by the comments of Justice Barnes in Haroun v. Canada (National Research Council), 2015 FC 1168, 2015 F.C. 1168, where at paragraph 9, he concludes section 236(3) of the PSLRA is “to preserve a common law right of action for employees of undesignated separate agencies in relation to performance-based terminations”.

[14] Further, as a motion under Rule 21, as noted by Regional Senior Justice Morawetz in TeleZone Inc. v. Canada (Attorney General), [2007] O.J. No. 4766 at paragraph 25, there is a “high burden on the moving party” and relief will only be granted “if it is clear, or plain, obvious, and beyond doubt that the plaintiff cannot succeed”.

Conclusion

[15] As a result, the defendant’s motion is dismissed except for it being granted leave to serve and file a Statement of Defence within 30 days.

Costs

[16] The defendant provided a Costs Outline for partial indemnity costs totaling $36,215.71 exclusive of HST. The plaintiff submitted a Costs Outline in the amount of $38,806.24 of which $1,158.24 was for disbursements inclusive of HST. In my view, the plaintiff is entitled to costs given its success. However, as discussed with counsel at the outset of the motion, the amount of time required for argument had been estimated at 115 minutes. It seemed clear it would take more than two hours to argue this matter given the materials filed. In fact, only as a result of other matters on the Court docket taking less time than scheduled was the Court able to accommodate argument by counsel which exceeded two hours and might well have taken longer had even more Court time been available.

[17] The difficulty I have with using the successful party’s claim for costs is my impression that the (unsuccessful) submissions by the defendant were, by far, more complex. It was their motion and incumbent upon them to accurately estimate the amount of time required.

[18] As a result, the plaintiff’s entitlement to partial indemnity costs in the amount of $37,648 for partial indemnity fees plus $4,894.24 of HST plus $1,158.24 of disbursements inclusive of HST for a total of $43,700.48 is awarded, payable by the defendant to the plaintiff forthwith.

Mr. Justice G. Dow Released: April 26, 2016