Court File and Parties
COURT FILE NO.: CV-21-86837
DATE: 2022/12/01
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Elsa Joseph, Plaintiff
AND
Canada School of Public Service et al, Defendants
BEFORE: The Honourable Justice Charles T. Hackland
COUNSEL: Elsa Joseph, self represented
Marshall Jeske, for the Defendant, Canada School of Public Service, (moving party)
HEARD: October 13, 2022 Ottawa (by Zoom videoconference)
ENDORSEMENT (Rule 21 motion to Dismiss)
Overview
[1] The Defendants, the Canada School of Public Service (“CSPS”) and five named employees, seek an Order striking out the statement of claim as against them, without leave to amend, on the grounds that this court lacks jurisdiction over the action.
[2] The motion is brought under Rule 21.01(3)(a) and Rule 37 of the Rules of Civil Procedure, RRO 1990, Reg 194.
[3] The Plaintiff’s action arises out of her employment with CSPS, which is part of the federal Public Service. She was an administrative assistant at the AS-01 level commencing May 14, 2018 and ending September 23, 2020 when her employment was terminated due to the cancellation of her security clearance. The Plaintiff was suspended for a major portion of her time with CSPS, beginning initially with a security incident, discussed below, and subsequently due to other conflicts in the workplace.
[4] At all times during her employment with CSPS, the Plaintiff was subject to the terms and conditions of her collective agreement and the relevant legislation applicable in this Public Service workplace. In particular, she was subject to the Federal Public Sector Labour Relations Act (“FPSLRA”), which the moving parties allege covers the matters raised in the Plaintiff’s statement of claim such that they were, or could have been, the subject of a grievance filed by the Plaintiff pursuant to the collective agreement and the FPSLRA.
[5] The Plaintiff, on the other hand, contends that the causes of action she pleads in her statement of claim are not matters falling within the collective agreement and do not pertain to her terms and conditions of employment. She has pleaded the torts of breach of privacy (intrusion upon seclusion), negligence and defamation against some or all of the Defendant moving parties.
The Issue
[6] The issue on this motion is whether the claims against these Defendants should be dismissed pursuant to Rule 21.01(3)(a) of the Rules of Civil Procedure on the basis they are barred by s. 236 of the FPSLRA, resulting in this Court having no jurisdiction to consider them.
The Law
[7] If an employee had a right to grieve the matters in dispute in this action under s. 208 of the FPSLRA, she would be statutorily barred from bringing such matters to court by way of a civil action. Specifically, s. 236 of the FPSLRA ousts the jurisdiction of the courts to deal with matters that could have been the subject of a grievance:
No Right of Action - Disputes relating to employment
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.
Application
(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.
[8] The key question on this motion is whether the Plaintiff did or could have grieved the matters raised in her statement of claim. Section 208 of the FPSLRA provides for employees of the Federal Public Service a comprehensive grievance mechanism to resolve employment-related disputes. It states:
208(1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved
(a) by the interpretation or application, in respect of the employee, of
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals 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 his or her terms and conditions of employment.
[9] I accept the Defendant’s submission that the settled case law provides the right to grieve under s. 208 is to be broadly construed. The Ontario Court of Appeal has observed that section 208 provides employees with “a very broad right to grieve,” such that “[a]lmost all employment-related disputes can be grieved under s. 208”, see, Bron v. Canada (Attorney General), 2010 ONCA 71 (paras. 14-15). Similarly, the Federal Court has confirmed that there are “a broad range of employment-related disputes that may be commenced under s. 208, and para. 208(1)(b) in particular, see Burlacu v. Canada (Attorney General), 2021 FC 910.
[10] The cases also hold that to ascertain if a claim is grievable, the Court must look at the “essential character” of the dispute by considering the facts giving rise to it and not the legal characterization of the wrong, see Yeats v. Canada (Attorney General), 2010 ONSC 3407 aff’d Canada (Attorney General) v. Yeats, 2011 ONCA 83. The question in each case is “whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement" or in the case of Federal Public Servants, all the rules governing the employment relationship, which include statutes, regulations, collective agreements and other governmental directives, see Vaughan v. Canada, 2005 SCC 11.
[11] I would emphasize that what is grievable is not restricted only to issues arising from the collective agreement but also includes the application of federal statutes regulations and government directives in the workplace. This would include the Privacy Act, the alleged breach of which features prominently in the Plaintiff’s allegations in her statement of claim.
The essential character of the dispute
[12] The Plaintiff began her deployment to CSPS on May 14, 2018. Subsequently, the Plaintiff was involved in an incident which triggered a security investigation by the employer and a series of suspensions followed, culminating in the termination of her employment, as outlined below.
• On February 14, 2019, the Plaintiff used the CSPS's secure fax machine to send a requisition form for purchasing firearm parts to an American manufacturer of firearms. The named sender on the fax form was not a CSPS employee and was later determined to be the Plaintiff’s boyfriend. On February 15, 2019, CSPS security officials sought guidance from the Ottawa Police Service in relation to the fax, and were told to file a “suspicious occurrence report”
• On March 12, 2019, the CSPS informed the Plaintiff that, as a result of the fax incident and her presence in the office after working hours, a security investigation into her “reliability level security clearance” had been initiated and that her security clearance was suspended. The next day, the Plaintiff was informed that she was being placed on leave without pay pending the outcome of the investigation.
• On March 20, 2019, the CSPS informed the Plaintiff that the security investigation had concluded and that her security clearance was being re-instated. However, on March 25, 2019, the CSPS informed the Plaintiff that an administrative investigation into the same incidents was being conducted and that she was being suspended without pay.
• On April 5, 2019, the CSPS informed the Plaintiff that additional allegations of misconduct had been brought to management’s attention and that these allegations would be included in the scope of the administrative investigation. The additional allegations related to workplace incidents between February 21, 2019 and March 11, 2019. The Plaintiff remained suspended pending the result of the administrative investigation.
• On December 12, 2019, further to an incident at a location known as the Asticou Building, the CSPS informed the Plaintiff that her reliability status was again suspended and that she was suspended without pay pending the outcome of an investigation.
• On September 23, 2020, the Plaintiff’s reliability security status was revoked and as a result, the Plaintiff's employment was terminated.
[13] From March 2019 to December 2019, the Plaintiff filed six grievances against the CSPS, mainly contesting her various suspensions and the investigations into the February 2019 fax incident. All these grievances were resolved with the employer or withdrawn by the Plaintiff herself or by the union on her behalf. The Plaintiff chose not to grieve the revocation of her security certificate and resultant termination of her employment. Her materials suggest she chose to pursue her issues before the Canadian Human Rights Tribunal and also that she had some conflictual issues with her union.
[14] The Plaintiff, Ms. Joseph, who is self represented, has filed a 43-paragraph affidavit outlining in detail her perspective on what she views as her employer’s unjustified actions. She confirms that at all relevant times during her employment, she was represented and counseled by her union, PSAC. She states that during her tenure with CSPS she was subjected to “three abusive administrative security reviews by the employer” relating to “possible violation of the law under the Criminal Code and the Firearms Act” which were “endorsed at the highest levels of the organization”. She argues that the actions of the CSPS in conjunction with the Ottawa Police “involving violations of my charter rights, intrusion upon seclusion and defamation fall outside of the scope of the collective agreement and therefore are not and have never been adjudicable under the FPSLRA”.
[15] The Plaintiff, in her affidavit and oral submissions, is particularly critical of the Defendant Mr. Leduc, CSPS security manager, for his actions involving the Ottawa police in the security investigation pertaining to the fax incident, particularly as this involved disclosure of her identity to the police, in contravention, she alleges, of her rights under the Privacy Act. She believes defamatory remarks were made by management employees in the course of the investigation and in a 364 page report concerning her, released in June 2020, that resulted in the loss of her security clearance and her resultant termination. This report is not before the court and it is unclear to what extent it deals with the original fax incident and how much it deals with issues of alleged threats or unprofessional communications in the workplace. These communications conflicts appear to have been part of the ongoing conflictual issues which developed between the Plaintiff and CSPS managers over the course of her employment.
[16] The Plaintiff has filed 11 complaints with the Office of the Privacy Commissioner concerning the employer’s investigation surrounding the fax incident and the employer’s actions in involving the Ottawa Police. The Plaintiff also disclosed that she filed what she terms as a ‘workplace violence complaint’ under the federal Occupational Health and Safety Regulations, which was dismissed by the employer as being made in bad faith and she is currently pursuing that matter before a Federal Administrative Tribunal. Her affidavit also discloses details of further conflicts in the workplace, with her managers.
[17] So far as the Plaintiff’s own affidavit evidence is concerned, the essential character of these conflicts appear to be workplace disputes. The individual Defendants are managers at CSPS and one co-worker. The Plaintiff’s concerns are about how these individuals allegedly mistreated her in the workplace investigations and how this resulted in unwarranted suspensions, loss of pay, and eventually loss of her security status and her employment. These are the workplace issues, which the Plaintiff was entitled to grieve and which, in significant part, she did grieve and subsequently withdrew the grievances.
[18] However, the Plaintiff’s position is that her issues with her employer were not workplace disputes but in fact were in substance, a quasi- criminal investigation based on the misapprehension that she was a potential security threat in the workplace. Her statement of claim, factum, and oral submissions focus particularly on the conduct of the CSPS security officer, the Defendant Mr. Leduc. Paragraph 9 of the statement of claim states:
…the defendant intentionally and recklessly provided the plaintiff's personal sensitive information to the Ottawa police service and the RCMP without the plaintiff’s knowledge and consent. The defendant then preceded to lead a protracted, quasi-criminal investigation into the plaintiff, which has still not been resolved and which has caused severe suffering for the plaintiff. The defendant committed the torts of intrusion upon seclusion, defamation, negligence and misfeasance of public office, causing mental distress.
[19] The Plaintiff learned from an access to information request that Mr Leduc had sought the advice of the Ottawa Police Service (“OPS”) as to whether the fax sent to the gun parts supplier by the Plaintiff, involved unlawful conduct. She emphasized that at all material times she and her boyfriend had valid gun licenses. She learned that Mr. Leduc had filed a ‘suspicious occurrence report’ with the OPS concerning the fax to the gun supplier, had subsequently provided the OPS with her private information, specifically her name, date of birth, and address. Significantly in my view, within several weeks the OPS confirmed to Mr. Leduc that they had not been able to identify any criminal concerns in the matter and the police involvement then ended.
[20] It would appear that notwithstanding the advice of the OPS, the employer perceived the Plaintiff to be an ongoing security threat in the workplace, with further suspensions and allegations of threatening behavior to superiors, which ultimately led to the removal of her security clearance and the termination of her employment. However, in the interim, the Plaintiff grieved her suspensions without pay, through her union, and these grievances were resolved favourably to the Plaintiff, when CSPS agreed to convert the suspensions to leave with pay status, with re-imbursement of lost income.
[21] The Plaintiff relies on the decision of the Ontario Court of Appeal in Piko v. Hudson’s Bay Co., 1998 CanLII 6874 (ONCA) for the proposition that, as she put it, “employers reporting employees to the police, thereby triggering police investigations and criminal charges, were matters falling outside of workplace disputes”. In Piko, an employer alleged an employee had fraudulently switched price tags on an item in the store and then purchased the item at the marked down amount. The employer terminated the employee and reported this to the police who charged the employee with fraud, but the criminal charge was withdrawn at trial. The employee sued the employer for the torts of malicious prosecution and for damages for mental distress arising from the criminal charge. A motion judge stayed the action on the basis that the matter arose in the workplace and a termination of her employment for fraud could have been grieved under the collective agreement. However, reversing the motion judgement on appeal, Laskin J.A. held that “a dispute centred on an employer's instigation of criminal proceedings against an employee, even for a workplace wrong, is not a dispute which in its essential character arises from the interpretation, application, administration or violation of the collective agreement”.
[22] Justice Laskin went on to observe (at para. 21) “…the Bay's actions are neither a prerequisite to nor a necessary consequence of its dismissal of Piko. In short, the collective agreement does not regulate the Bay’s conduct in invoking the criminal process, which is the conduct at the heart of the present dispute. The dispute therefore does not arise under the collective agreement”.
[23] It can be seen that the Court of Appeal focused on “an employer’s instigation of criminal proceedings” or “invoking the criminal process” as actions falling outside the collective agreement and are, therefore, within the jurisdiction of the court.
[24] The Ontario Court of Appeal recently reviewed Piko and subsequent cases in Rukavina v. Ottawa (Police Service Board), 2020 ONCA 533. This case arose from events occurring within the Ottawa Police Service. The Plaintiff, a tactical unit commander, was investigated by the Special Investigations Unit for his actions in allegedly allowing an explosion to occur during a tactical training exercise in which several officers were injured. The Plaintiff was subsequently charged with criminal negligence but the charge was ultimately stayed by the Crown on the basis that appropriate procedures were being followed. A motion judge subsequently stayed the Plaintiff’s civil action for conspiracy and malicious prosecution on the basis that the allegations arose in the workplace and were subject to grievance and further proceedings under the Police Services Act, R.S.O. 1990, c. P.15.
[25] However, on the Court of Appeal’s characterization of events, “the SIU investigation was an independent criminal investigation that, according to the appellants allegations, resulted in serious criminal charges because the criminal investigators were intentionally misled by certain senior police officers”. The court held “the core of this claim rests on allegations that the respondents allegedly misled a criminal investigation and put unwarranted pressure on that investigation, all resulting in a wrongful, malicious criminal prosecution”. Accordingly, the essential character of the Plaintiff’s claim did not fall within the collective agreement and the court did have jurisdiction to hear the matter.
[26] In Rukavina, Fairburn J.A. observed “this court has previously found that employers reporting employees to the police, thereby triggering police investigations and criminal charges, are matters falling outside of workplace disputes”, citing Piko and McNeil v. Brewers Retail Inc. 2008 ONCA 405.
[27] In the present case, I accept that the employer’s interactions with the Ottawa Police could be said to invoke the jurisprudence in cases such as Piko and Rukavina that an employer reporting workplace issues to the police, could create a situation which the court will view as falling outside of an otherwise applicable collective agreement, thereby allowing tort claims arising from the employer’s conduct to proceed in the court. This is essentially the position being advanced by the Plaintiff.
[28] However, I do not view that principle to always apply, irrespective of the nature and extent of the police involvement and the outcome of such involvement. In the cases on this point, the employee, as a result of the criminal investigation has faced criminal charges, which have been subsequently withdrawn. There are several important aspects of the police involvement in this case:
• CSPS did not make a complaint. It filed what the police refer to as a “suspicious occurrence report”, asking the police whether the fax sent to the gun parts supplier engaged criminal activity.
• The police looked into the matter and advised CSPS that no criminality was identified and then ceased any further involvement in the matter. The investigation seemed minimal and was reported back to CSPS within several weeks. No criminal charges were threatened or laid. The Plaintiff was not interviewed by police and found out about the police involvement from a later access to information request.
• The factual criticism of the security officer (Mr. Leduc) at CSPS and of the OPS with whom he had several communications was that they accessed the Plaintiff’s personal information, being her name, address, and date of birth, allegedly in violation of the Privacy Act and thereby committing the tort of ‘intrusion upon seclusion’.
• The ongoing issue in the workplace was whether the Plaintiff was a potential security threat in the workplace. The fax incident, together with some alleged threatening or unprofessional remarks attributed to the Plaintiff, formed the basis for the security issue. The suspensions were asserted to be “disguised discipline” in the Plaintiff’s grievances, which were filed on her behalf by her union and ultimately not proceeded with.
• The Plaintiff says she had her security clearance revoked and her employment terminated as a result of a 364-page report prepared by management, the contents of which are not before the court. This does not appear to have anything to do with the police involvement.
Disposition
[29] In the Court’s opinion, the allegations in the statement of claim alleging the torts of breach of privacy and intrusion upon seclusion directly relate to the employer’s actions in involving the police. Assuming for the purposes of this motion that the pleaded allegations are true, the privacy breaches arose in the context of the police involvement and the information provided to the police by the employer. Based on the rulings of the Court of Appeal, referred to above, the essential character of these torts, relating to police involvement and potential resort to the criminal process, are not matters arising from the collective agreement. As such, they are actionable in the courts. The Defendant’s security officer, Mr. Leduc, who interacted with the police as well as the employer, the CSPS on a vicarious liability basis, may be sued in the courts.
[30] On the other hand, the other CSPS managers and employees sued had no apparent involvement with the police. As noted, the police involvement was brief and focused on the “fax incident”. Their investigation served to support the Plaintiff’s position that no crimes had been committed. Police involvement did not drive these workplace issues into the criminal courts or usurp the overall resolution of the workplace security concerns.
[31] The allegations of negligence and defamation pleaded against the other Defendant employees pertained to their alleged actions in the workplace, in the course of carrying out their managerial duties. The suspensions imposed on the Plaintiff and the investigations they undertook of her conduct in the workplace were in the nature of discipline or disguised discipline (as the Plaintiff alleged in her grievances) and were grievable. Certainly, the ultimate withdrawal of the Plaintiff’s security clearance and the resultant termination of her employment were grievable and ultimately could have been subject to third party adjudication. Accordingly, the court finds that it is clear and obvious that these workplace claims can not succeed as the court lacks jurisdiction and are barred under s. 236 of the FPSLRA.
[32] The court orders that the motion to stay this action is dismissed so far as it pertains to the Plaintiff’s allegations of breach of privacy and intrusion upon seclusion, which includes the allegations against the Defendant Pierre Leduc and the vicarious responsibility of CSPS as employer. The action is otherwise stayed on the basis the court lacks jurisdiction because the other matters (the negligence and defamation claims and the involvement of the individual Defendants (Sarantakis, Suprenant, Desraspe and Bullion-Winters)) are in their essential character workplace disputes falling within s. 208 of the FPSLRA.
[33] In view of this disposition, the Plaintiff is granted leave to file a fresh as amended statement of claim focused on the privacy torts, in accordance with these reasons. This will be done within 60 days of the release of these reasons and the remaining Defendants, Pierre Leduc and CSPS, will file a statement of defence thereafter in accordance with the Rules of Civil Procedure. This disposition is not intended to affect the Ottawa Police Defendants, who were not involved in this motion.
[34] As each party was partially successful on this motion, I exercise the court’s discretion to make no order as to costs.
Justice Charles T. Hackland
Date: December 1, 2022
COURT FILE NO.: CV-21-86837
DATE: 2022/12/01
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Elsa Joseph, Plaintiff
AND
Canada School of Public Service et al, Defendants
COUNSEL: Elsa Joseph, self represented
Marshall Jeske, for the Defendant, Canada School of Public Service, (moving party)
ENDORSEMENT (RULE 21 MOTION TO DISMISS)
Justice Charles T. Hackland
Released: December 1, 2022