Court File and Parties

Court File No.: CV-24-00713014-0000
Date: 2025-07-10
Ontario Superior Court of Justice

Between:
Tianjian Wang, Plaintiff
-and-
Attorney General of Canada and Joanne Gentile, Defendants

Before: Robert Centa

Counsel:
Tianjian Wang, self-represented litigant
Melissa Gratta, for the defendants

Heard: 2025-07-03

Endorsement

Background

[1] Tianjian Wang was an articling student and then counsel in the Department of Justice, Ontario Regional Office, Tax Law Division. During his articles, Mr. Wang fell and injured his back during a recreational dodgeball game that had nothing to do with his work. He sought accommodations in the workplace for his injuries. On November 22, 2023, he advised that, after his vacation, he would be going on a leave without pay commencing on January 2, 2024.

[2] On January 16, 2024, Mr. Wang commenced an action against the Attorney General of Canada and Joanne Gentile (the Tax business administrator) in negligence and intentional infliction of harm. Mr. Wang pleads that the defendants did not provide appropriate workplace accommodations to him, including ergonomic equipment, and that due to this failing, his “traumatic spinal injury healed incorrectly, causing [Mr. Wang] to develop spinal facet arthritis, among other injuries, and suffer from chronic pain.” The key allegations in Mr. Wang’s statement of claim are as follows:

Negligence

14. The Defendants owed a duty of care to the Plaintiff to provide appropriate workplace ergonomic equipment.

15. The Defendants negligently breached their duty of care to the Plaintiff.

16. The [Attorney General] was aware of the Plaintiff’s fall and traumatic spinal injury after 5 June 2023 and reasonably foresaw that the failure to provide ergonomic equipment to the Plaintiff in a timely manner would cause harm.

17. The Plaintiff states that the [Attorney General] is vicariously liable for the negligence of its employees.

Intentional Infliction of Harm

18. In the alternative, if [Ms. Gentile] failed to process the Ergonomic Report with the intention to cause the Plaintiff harm, [Ms. Gentile] is liable for the intentional infliction of harm.

The Defendants' Motion

[3] The defendants move for an order staying or dismissing the action pursuant to rule 21.01(3)(a) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. The defendants submit that the action should be stayed or dismissed because the court has no jurisdiction over the subject matter of the action. They submit that the claim relates to Mr. Wang’s employment in the federal public service and is barred by s. 236 of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 (the “Act”). I agree. [1]

[4] The defendants face a high bar on a motion under rule 21.01(3)(a). They must demonstrate that it is clear, or plain and obvious that the court has no jurisdiction over the subject matter of the action: Pileggi v. Canadian Union of Postal Workers (2005), 13 C.P.C. (6th) 373 (Ont. S.C.), at para. 40; Oribine v. Novello, 2022 ONSC 4302, at para. 8. The defendants meet this high bar because s. 236 of the Act constitutes an explicit ouster of the Superior Court’s jurisdiction over claims like those advanced by Mr. Wang: Bron v. Canada (Attorney General), 2010 ONCA 71, 99 O.R. (3d) 749, at para. 4. Section 236 of the Act provides as follows:

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

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

(3) Subsection (1) does not apply in respect of an employee of a separate agency that has not been designated under subsection 209(3) if the dispute relates to his or her termination of employment for any reason that does not relate to a breach of discipline or misconduct.

The Statutory Scheme

[5] The terms and conditions of employees in the federal public service are governed by a comprehensive scheme that includes statutes, regulations, collective agreements, and other governmental directives: Vaughan v. Canada, 2005 SCC 11, at para. 1. In this case, the parties agree that the Act governed Mr. Wang’s employment. In addition, Mr. Wang’s letter of employment advised him that he was entitled to workplace accommodations pursuant to the Directive on Duty to Accommodate.

[6] Section 208 of the Act provides employees with a very broad right to grieve “any occurrence or matter affecting the terms or conditions of their employment.” Indeed, almost all employment-related disputes can be grieved under s. 208 of the Act: Bron, at para. 15. Federal public service employees may grieve for matters relating to their terms and conditions of employment, including allegations of bad faith, malice, harassment, Charter breaches, intentional torts, and negligence: Ebadi v. Canada, 2024 FCA 39, at para. 29; Bron, at paras. 14-15; Green v. Canada (Border Services Agency), 2018 FC 414, at para. 16.

[7] As the Court of Appeal for Ontario held in Bron, the language of s. 236 is clear and unequivocal: the right to grieve any work-related dispute is in lieu of any right of action that the employee may have in respect of the same matter. The court has no jurisdiction or discretion to hear a claim that is otherwise grievable:

[29] Parliament can, subject to constitutional limitations that are not raised here, confer exclusive jurisdiction to determine certain disputes on a forum other than the courts. It will take clear language to achieve that result: Pleau, at p. 381. Section 236 is clear and unequivocal. Subject to the exception identified in s. 236(3), which has no application here, s. 236(1) declares that the right granted under the legislation to grieve any work related dispute is “in lieu of any right of action” that the employee may have in respect of the same matter. Section 236(2) expressly declares that the exclusivity of the grievance process identified in s. 236(1) operates whether or not the employee actually presents a grievance and “whether or not the grievance could be referred to adjudication”. The result of the language used in ss. 236(1) and (2) is that a court no longer has any residual discretion to entertain a claim that is otherwise grievable under the legislation on the basis of an employee’s inability to access third-party adjudication: see Van Duyvenbode v. Canada, [2007] O.J. No. 2716 (S.C.), at para. 17, 158 A.C.W.S. (3d) 763, aff’d without reference to this point, 2009 ONCA 11, 173 A.C.W.S. (3d) 820; Hagel v. Canada, 2009 FC 329, [2009] F.C.J. No. 417, at para. 26, aff’d without reference to this point, 2009 FCA 364. While the residual discretion may exist if the grievance process could not provide an appropriate remedy, there is no suggestion in this case that it could not: see Vaughan, at para. 30. Assuming that to be the case, disputes that are grievable under the legislation must be determined using the grievance procedure.

The "Whistleblower" Exception Argument

[8] Mr. Wang submits that there is a “whistleblower” exception to the application of s. 236. In support of this submission, he cites Attorney General of Canada v. Robichaud and MacKinnon, 2013 NBCA 3, 398 N.B.R. (2d) 259. I do not think Robichaud stands for the proposition asserted by Mr. Wang. Moreover, Robichaud is not binding on me. The decision of the Court of Appeal for Ontario in Bron is binding on me. In Bron, the Court of Appeal for Ontario expressly rejected the submission that there was a “whistleblower” exception to s. 236:

[30] The appellant attempts to limit s. 236 by arguing that it was intended to apply only to “routine”, “garden variety” or “run of the mill” employment grievances, but not to whistle-blower complaints. There is nothing in the language of s. 236 to support this limitation. To the contrary, Parliament has identified in s. 236(3) the one and only exception to the general language used in ss. 236(1) and (2). That exception has nothing to do with whistle-blowing.

[9] To the extent that Mr. Wang wishes to disclose alleged wrongdoings, which are not pleaded in his statement of claim, he may avail himself of the procedures in the Public Servants Disclosure Protection Act, S.C. 2005, c. 46. There is no evidence before me to suggest that Mr. Wang has initiated the whistleblower procedures, much less that they have been ineffective. In my view, Mr. Wang may not evade the clear and unequivocal language of s. 236 by suggesting he wishes to use a civil action to become a whistleblower.

Application of Section 236

[10] All of Mr. Wang’s complaints in his statement of claim are rooted in the defendants’ alleged failure to provide appropriate workplace accommodations for his injuries. I have no doubt that Mr. Wang could file a grievance under s. 208 of the Act regarding his complaints. Section 236 of the Act explicitly ousts the jurisdiction of the court over Mr. Wang’s claims.

Constitutional Arguments

[11] Mr. Wang submits that the defendants’ motion should be dismissed because s. 236 of the Act is unconstitutional on both division of powers and Charter grounds. I disagree. I will assume without deciding that Mr. Wang can raise this issue in a cross-motion responding to the defendants’ jurisdiction motion despite not seeking such relief in his statement of claim. In addition, Mr. Wang filed no evidence that is relevant to any of the constitutional issues he raised in his factum. In such circumstances, I would decline to grant him the relief he seeks. However, I will address his submissions for completeness.

Division of Powers

[12] First, Mr. Wang submits that s. 236 of the Act is ultra vires Parliament because it intrudes on the provincial power to make laws in relation to property and civil rights under s. 92(13) of the Constitution Act, 1867. I disagree.

[13] Labour relations presumptively falls under provincial jurisdiction pursuant to s. 92(13) of the Constitution Act, with two exceptions: direct federal labour jurisdiction and derivative federal jurisdiction, where the work is vital, essential, or integral to a federal undertaking: Tessier Ltée v. Québec (Commission de la santé et de la sécurité du travail), 2012 SCC 23. Here, there is no doubt that the Parliament of Canada has exclusive power to legislate in relation to the operation and administration of the institutions and agencies of the Parliament and Government of Canada: Jones v. A.G. of New Brunswick, at p. 189. This necessarily gives the federal Parliament jurisdiction to regulate labour relations for employees in the departments and agencies of the federal government: Re Legislative Jurisdiction over Hours of Labour, at p. 510; Re Minimum Wage Act (Sask.); Letter Carriers’ Union of Canada v. Canadian Union of Postal Workers; Canada Labour Relations Board et al. v. Yellowknife; Attorney General of Canada v. St. Hubert Base Teachers’ Association.

[14] Second, Mr. Wang submits that s. 236 of the Act is ultra vires Parliament because it interferes with the exclusive provincial power to administer justice under s. 92(14) of the Constitution Act, 1867. Mr. Wang submits that s. 236 of the Act creates a parallel federal court. I disagree.

[15] Mr. Wang wishes to frame his argument as being his right to advance a tort claim against the defendants. The Supreme Court has repeatedly emphasized that “one must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute”: Weber v. Ontario Hydro, at paras. 49, 54; Vaughan, at para. 11. The facts giving rise to this dispute arise exclusively out of the employer-employee relationship.

[16] Indeed, the foundational case of Weber concerned whether an individual covered by a collective agreement could sue in tort. The Supreme Court expressly rejected the concurrent model, under which an action recognized by the common law may proceed notwithstanding it arises in the employment context. The Supreme Court embraced the exclusive jurisdiction model, which held that courts have no jurisdiction where the essential character of the dispute is captured by the language of the Act or a collective agreement.

[17] Parliament is constitutionally empowered to create administrative bodies and endow them with broad statutory powers: Dunsmuir v. New Brunswick, 2008 SCC 9, at para. 27; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 24. Parliament has the constitutional right to take the jurisdiction to consider disputes arising from the Act, regulations, or the collective agreement away from the courts. Removing labour and employment matters from the courts does not deprive the courts of a part of their core or inherent jurisdiction: Dunsmuir, at para. 27; Vavilov, at para. 24. The constitutional imperatives are met because judicial review of administrative decision-makers is protected by s. 96 of the Constitution Act, 1867: Crevier v. Attorney General of Quebec, at pp. 236-37; U.E.S., Local 298 v. Bibeault, at p. 1090; Vavilov, at para. 24.

[18] In addition, the Court of Appeal expressly left open the possibility that the court retains residual discretion under the Act to entertain litigation of a grievable matter if the court is satisfied that the grievance process does not provide an avenue of suitable redress for the employee’s complaint: Bron, at endnote 4; Vaughan, at paras. 25, 30, 33-41. Mr. Wang led no evidence to suggest, much less prove, that the grievance process did not provide him with an avenue for suitable redress.

Charter Section 15 Argument

[19] Third, Mr. Wang submits that s. 236 violates s. 15 of the Charter because it “deprives employees of the Federal Public Service of equal treatment under the law and infringes their access to justice.” Section 15(1) of the Charter states:

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

[20] To succeed in proving that s. 236 breaches s. 15(1) of the Charter, Mr. Wang must meet a test with two steps: Fraser v. Canada (Attorney General), 2020 SCC 28, at para. 27; Ontario v. G., 2020 SCC 38, at paras. 40-42; R. v. Sharma, 2022 SCC 39, at paras. 28, 188. He must prove on a balance of probabilities that:

a. the Act creates a distinction, on its face or in its impact, on the basis of an enumerated or analogous ground (Step One); and
b. the distinction imposes a burden or denies a benefit in a discriminatory manner, by having the effect of reinforcing, perpetuating, or exacerbating disadvantage (Step Two).

[21] Mr. Wang fails at Step One for two reasons. First, he tendered no evidence that is relevant to the question of whether federal public sector employees constitute an analogous ground for the purposes of s. 15. Second, the Supreme Court of Canada has repeatedly held that an individual’s employment status or employer is not an enumerated or analogous ground under s. 15(1): Delisle v. Canada (Deputy Attorney General), at para. 44; Baier v. Alberta, 2007 SCC 31, at para. 65; Health Services and Support - Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, at para. 165.

[22] Mr. Wang has not proved that his status as an “employee of the Federal Public service” should be treated as an analogous ground of discrimination for the purposes of s. 15 of the Charter. The occupational status of federal employees is not an immutable or constructively immutable characteristic. Employees of the federal public service cannot be characterized as a discrete and insular minority. There is no evidence to establish that the occupational status of such employees is a constant marker of suspect decision-making or potential discrimination. Mr. Wang’s challenge fails at Step One. I do not think it is necessary to consider Step Two.

Conclusion

[23] For the reasons set out above, I find that the court has no jurisdiction over the subject matter of this action. I find that s. 236 of the Act is constitutional and that it explicitly ousts the jurisdiction of the court over claims that could be the subject matter of a grievance under s. 208 of the Act. Mr. Wang’s claims all arise out of his requests for workplace accommodations for his injuries and out of his terms and conditions of employment. He must pursue those claims through the grievance process and not through the courts. I dismiss his action pursuant to rule 21.01(3)(a).

[24] If the parties are not able to resolve costs of this action, the defendants may email their costs submission of no more than three double-spaced pages to my judicial assistant on or before July 17, 2025. Mr. Wang may deliver his responding submission of no more than three double-spaced pages on or before July 24, 2025. No reply submissions are to be delivered without leave.

Robert Centa
Date: July 10, 2025

[1] The defendants also moved to strike out the statement of claim because it is frivolous and vexatious (rule 21.01(1)(b)), and discloses no reasonable cause of action (rule 21.01(1)(b)). Because I find that the Ontario Superior Court of Justice does not have jurisdiction over the claim, I do not reach or address these other submissions.