Date: 20040109
Docket: T-1681-03
Citation: 2004 FC 26
OTTAWA, ONTARIO, FRIDAY, THIS 9TH DAY OF JANUARY, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
SELWYN PIETERS
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Mr. Selwyn Pieters is an employee with the Immigration and Refugee Board (the "IRB"). In his position with the IRB, he is a member of the Public Service Alliance of Canada ("PSAC") and subject to the terms of a collective agreement between the Treasury Board and PSAC (the "Collective Agreement"). As the result of an incident on April 24, 2003, Mr. Pieters, alleges that he was harassed in the workplace. He has filed a complaint under the Treasury Board's Policy on the Prevention and Resolution of Harassment in the Workplace (the "Harassment Policy") and a number of grievances under the Collective Agreement concerning the incident.
[2] Mr. Pieters has also initiated two separate legal proceedings with this Court that are related to the incident. The first is an action, commenced by way of Statement of Claim filed with this Court on September 15, 2003, seeking general damages in the amount of $200 000.000 for:
(i) Defamation;
(ii) Injurious falsehood;
(iii) Damage suffered by virtue of the commission by the Defendant of the tort of intentional infliction of mental harm, through the actions of its agents and servants, for which the Defendant is vicariously responsible.
[3] Mr. Pieters also claims: $100 000.000 in punitive damages; prejudgement interest; and damages for the violation of sections 15(1) and 15(2) of the Charter of Rights and Freedoms (the "Charter"). The second proceeding is an application for judicial review of the actions of Linda Brouillette, Director of Human Resources and Anti-Harassment Co-ordinator at the IRB (Court file T-1789-03).
[4] The Defendant has brought this motion pursuant to Rule 221(1)(a) of the Federal Court Rules, 1998, for an order striking out Mr. Pieters' Statement of Claim without leave to amend.
Issues
[5] The issues raised by this motion can be stated as follows:
1. Is the jurisdiction of the Court to deal with this matter ousted on the basis that the internal mechanisms provided pursuant to the Public Service Staff Relations Act, R.S., c. P-35, s. 1 ("PSSRA") constitute a complete code governing workplace relations between the Crown and its employees?
2. Does the Statement of Claim disclose a reasonable cause of action?
3. Would a determination by this Court that the statement of claim should be struck be contrary to section 15 of the Charter, in that it would deprive Mr. Pieters of his rights to an appropriate remedy?
Analysis
Issue #1: Does the Court have jurisdiction to deal with this action?
[6] It is established that this Court must strike a claim where the Court has no jurisdiction to hear the matter. In this motion, the Defendant argues that the Court has no jurisdiction to entertain the Plaintiff's claim on the basis that the PSSRA constitutes a complete code for governing workplace relations between the Crown and its employees.
[7] The principle of exclusive jurisdiction was enunciated by the Supreme Court of Canada in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 at 956-958. This principle precludes actions in the courts where a collective agreement governs the relationship between the parties:
This approach does not preclude all actions in the courts between the employer and employee, only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts (Weber, supra at page 957).
[8] There is a long line of cases that have held that sections 91 and 92 of the PSSRA form a comprehensive remedial scheme that impliedly excludes the jurisdiction of the Court over proceedings that are essentially based on grievable work-related conduct Johnson-Paquette v. Canada, [1998] F.C.J. No. 1741 (T.D.) (QL), affirmed (2000) 253 N.R. 305 (C.A.), [2000] F.C.J. No. 441 (C.A.) (QL); Public Service Alliance of Canada v. Canada (Treasury Board), [2001] F.C.J. No. 858 (T.D.) (QL), affirmed (2002) 293 N.R. 325, [2002] F.C.J. No. 850 (C.A.) (QL); Marinaki v. Canada, [2001] F.C.J. No. 1920 (T.D.) ( QL); Pieters v. Canada, [2001] F.C.J. No. 769 (T.D.) (QL), affirmed (2001) 288 N.R. 6, [2001] F.C.J. No. 1756 (C.A.) (QL)). The facts of the case before me are almost indistinguishable from most of this jurisprudence - particularly in cases such as Johnson-Paquette, supra and Marinaki, supra.
[9] In the cases referred to by Mr. Pieters where it has been concluded that the Court holds jurisdiction, I note that there are substantial distinguishing features. For example:
· In Pleau et al. v. Attorney General of Canada (1999), 182 D.L.R. (4th) 373 (N.S.C.A.), the collective agreement did not cover the plaintiff's dispute nor did it enable it to be referred to third party adjudication;
· In Danilov v. Canada (Atomic Energy Control Board), [1999] O.J. No. 3735 (C.A.) (QL), the dispute was governed by a contract rather than a collective agreement; and
· In Guenette v. Canada (2002), 60 O.R. (3d) 601 (C.A.), [2002] O.J. No. 3062 (C.A.) (QL), the dispute could not be referred to adjudication and this decision, which has received negative treatment, conflicts with the Federal Court of Appeal's decision in Johnson-Paquette, supra.
Other cases cited by Mr. Pieters are also not helpful.
[10] The first step to be undertaken under this exclusive jurisdiction model is for this Court to determine the essential character of the dispute between the parties. If the essential character of the claim is one that falls within the ambit of a particular statutory scheme, then this scheme ousts the jurisdiction of the Court (Weber, supra).
[11] In reviewing the evidence before me in this motion, I am struck by the large number of complaints, grievances and departmental actions that have resulted from the alleged incident.
1. The complaint, filed by Mr. Pieters in a letter dated April 24, 2003, alleges, inter alia, that the conversation between certain IRB employees deliberately denigrated and demeaned Mr. Pieters as an African Canadian. The Defendant claims that in May 2003, the Plaintiff withdrew his complaint. Mr. Pieters denies this.
2. On April 28, 2003, two of the employees named in the complaint filed by Mr. Pieters filed harassment complaints against Mr. Pieters, alleging that he is deliberately trying to damage their reputations.
3. On June 20, 2003, Mr. Pieters presented nine grievances under the Collective Agreement. These complaints related to management's response to Mr. Pieters' harassment complaint concerning the April 24, 2003 incident.
4. These nine grievances related to management's response were heard and denied at the second and third levels at the IRB on July 24, 2003 and August 26, 2003, respectively. These grievances will proceed to the final internal level as soon as Mr. Pieters confirms that he is in a position to proceed.
5. On August 2, 2003, Mr. Pieters wrote a letter to Linda Brouillette, Director of Human Resources and Anti-Harassment Co-ordinator at the IRB, wherein he requested a formal investigation into the events from April 24, 2003 to the present. He raised the following issues:
(a) whether the actions and remarks of Mr. Kivlichan constitute harassment and racial harassment;
(b) whether management has handled the complaint properly; and
(c) whether there have been reprisals against the Plaintiff for initiating his complaints.
6. By letter dated September 4, 2003, Ms. Brouillette responded to this letter stating that she understood that Mr. Pieters withdrew his harassment complaint in May 2003.
7. In September 2003, Mr. Pieters issued a nine page "open" letter to Ms. Brouillette stating that he did not withdraw his complaint and that he now felt "forced to take this matter into the public domain."
8. On November 14, 2003, the IRB engaged the services of Nabil Oudeh, Senior Consultant, CCR International Ltd., to conduct an assessment of the workplace at the Toronto Regional Office. Mr. Oudeh has commenced work under his contract and will provide a report to the IRB containing appropriate avenues of dispute resolution that are available to management.
[12] Although Mr. Pieters, in his Statement of Claim, makes allegations of defamation, injurious falsehood and the intentional infliction of mental harm, the Supreme Court in Weber, supra, cautioned courts to look behind the legal characterization of an issue to ensure that innovative pleaders are not permitted to evade a legislative prohibition on parallel court actions by articulating imaginative causes of action (Weber, supra at 955).
[13] Looking behind Mr. Pieters' legal characterization of the issues, I conclude that the essential character of his claim is an allegation of racial harassment, as well as localized and systemic discrimination arising in the workplace. The harassment complaint under the Harassment Policy, the nine complaints under the Collective Agreement, and the investigation requested by the Plaintiff all concern the conduct of colleagues and management arising from the incident on April 24, 2003. Even Mr. Pieters described them as such in his own descriptions of the incident contained in his complaint on April 24, 2003 and his request for an investigation on August 2, 2003.
[14] Having determined the essential character of the claim, I turn to the relevant provisions of the Collective Agreement and the PSSRA to review the extent of the "code".
[15] Subject to and as provided in section 91 of the PSSRA, section 18.01 of the Collective Agreement entitles an employee who feels that he or she has been "treated unjustly" or "considers himself or herself aggrieved by an action or lack of action by the Employer", to present a grievance. In my opinion, this language is broad and, therefore, the Plaintiff's grievances fall squarely within the ambit of this section. According to section 18.02 of the Collective Agreement, there are four grievance levels available to Mr. Pieters, of which he has only had recourse to the second and third levels after bypassing the first.
[16] Mr. Pieters' nine grievances were heard at the second level on July 24, 2003 before John Stevenson, Regional Director. Mr. Pieters was accompanied to the hearing by his union representative, Mr. Murray. The Regional Director issued 9 decisions on August 25-26, 2003. According to a supplementary affidavit submitted by the Plaintiff in a companion proceeding, these grievances were heard at the third level on August 26, 2003. Nothing in the Record before me indicates that Mr. Pieters has had his grievances heard by a Deputy Head or an authorized representative at the final internal level.
[17] Even if Mr. Pieters' grievances are heard at the fourth level internal to the IRB, it is well established that sections 91 and 92 of the PSSRA, which provide third-party adjudication, form a comprehensive scheme under which grievable work-related conduct can be remedied (Johnson-Paquette, supra; Marinaki, supra; Pieters, supra). In fact, section 18.01 of the Collective Agreement explicitly states that the Applicant has recourse to section 91 of the PSSRA, so long as his grievance falls within the ambit of that provision. This provision of the Collective Agreement contains the same wording as the collective agreement that was at issue in Johnson-Paquette, supra. In that case, the PSSRA was found to provide a complete code for addressing the grievor's complaints. This legislative scheme, therefore, ousts the jurisdiction of the Federal Court (Johnson-Paquette, supra; Marinaki, supra; Pieters, supra). Although the Collective Agreement specifies that the PSSRA provides Mr. Pieters with the proper grievance procedure, he has not availed himself of this. Instead, he has come directly to this Court. However, the decisions of grievance officers under s. 91 or of adjudicators under s. 92 of the PSSRA are what can be judicially reviewed by this Court pursuant to s. 18.1 of the Federal Courts Act, R.S.C. 1985 c. F-7 (Johnson-Paquette, supra at para. 21).
[18] Further, the Federal Court of Appeal, when affirming the decision of Tremblay- Lamer J. in Johnson-Paquette, supra, stated:
Section 17(1) of the Federal Court Act provides the trial division of this Court with jurisdiction in all cases where relief is claimed against the Crown "except as otherwise provided in this Act or any other Act". In my view, the motion Judge came to the correct conclusion in this instance when she held that the PSSRA provides otherwise.
[19] I will now briefly consider the damages claimed by Mr. Pieters under the Charter for alleged acts of discrimination.
[20] In Weber, supra at 962-963, McLachlin J. held that an arbitrator can award Charter remedies such as damages and declarations. Mr. Pieters can, therefore, raise his Charter arguments under the PSSRA (Johnson-Paquette, supra).
[21] To the extent that Mr. Pieters alleges discrimination, I believe that his complaints are also grievable under the Canadian Human Rights Act. The Harassment Policy clearly states that, if the harassment alleged is "based on one of the grounds of discrimination prohibited under the Canadian Human Rights Act, employees have the right to file a complaint with the Canadian Human Rights Commission". Mr. Pieters did not do this.
[22] Section 41(1)(a) of the Canadian Human Rights Act states that the Commission shall deal with any complaint filed unless "the alleged victim of the discriminatory practice ...ought to exhaust grievance or review procedures otherwise reasonably available". Mr. Pieters ought, therefore, to exhaust the procedures available to him under the Collective Agreement and the PSSRA before filing a complaint under the Canadian Human Rights Act. Once he does this, however, he may, if he wishes to, file a complaint pursuant to section 40(1) of the Canadian Human Rights Act. Without commenting on the merits of Mr. Pieters' grievance, I note that the prohibited grounds of discrimination under section 3(1) include race, and the definitions of "discriminatory practice" found under sections 9(1)(c), 12, and 14(1)(c) are broad enough to permit the Commission to hear his complaint.
[23] I highlight Mr. Pieters' opportunities to raise his Charter arguments pursuant to procedures set out in the PSSRA and the Canadian Human Rights Act to make the point that this Court should be cautious to consider the relief claimed by the Applicant under the Charter when the dispute could be otherwise resolved.
[24] For all of these reasons, I do not believe that this Court has the jurisdiction to hear Mr. Pieters' case. Given this finding, it is not necessary to determine whether the Statement of Claim disclosed a reasonable cause of action.
Issue #3: Constitutional Considerations
[25] Mr. Pieters argues that, should I strike this motion on the basis of a lack of jurisdiction, I would be depriving him of the full array of rights that would be available to him pursuant to the Charter. In doing so, I would be violating s. 15 of the Charter. In Mr. Pieters' submission, I should exercise my discretion in a manner that preserves the fundamental rights of historically disadvantaged groups. Mr. Pieters describes himself as an "African Canadian male" and, therefore, a member of an historically disadvantaged group. He claims that any refusal of this Court to allow him access to the remedies he seeks pursuant to this Statement of Claim would be viewed by a reasonable person as the Court not being "alert, alive and sensitive to the realities of systemic racism in the justice system". I do not find any merit in this argument.
[26] As set out in a number of decisions (See for example: Law v. Canada, [1999] 1 S.C.R. 497, at 516; Lavoie v. Canada, [2002] 1 S.C.R. 769 at 780), persons claiming that there is a s. 15 Charter violation must show that there has been a discriminatory distinction, based on enumerated or analogous grounds, and that the law in question has a "discriminatory" purpose or effect. While denying Mr. Pieters the right to bring this action may constitute treatment that is different, it is not a distinction that is based on an enumerated or analogous grounds. The basis of my decision in this case is that Mr. Pieters, as a unionized employee of the federal public service, cannot bring this action to the Federal Court. In no way, am I treating him any differently than other unionized federal public servants. Nowhere in the Charter or in the jurisprudence does an enumerated or analogous ground exist for unionized federal public servants. In this case, Mr. Pieters' membership in an historically disadvantaged group is simply not relevant. Accordingly, striking his claim ought not to have the Charter consequences that he alleges.
Conclusions
[27] In conclusion, Mr. Pieters' Statement of Claim should be struck.
[28] The Defendant has requested costs in the amount of $750. In the circumstances of this motion, I agree that an award of costs in the amount requested is appropriate.
ORDER
THIS COURT ORDERS THAT:
1. The Statement of Claim dated September 15, 2003 is struck, without leave to amend; and
2. Costs, in the amount of $750 are awarded to the Defendant.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1681-03
STYLE OF CAUSE: SELWYN PIETERS v.
HER MAJESTY THE QUEEN
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 6, 2004
REASONS FOR ORDER
AND ORDER BY: Snider, J.
APPEARANCES BY:
Mr. Selwyn Pieters For the Applicant
Mr. Joseph Cheng For the Respondent
SOLICITORS OF RECORD:
Selwyn Pieters For the Applicant
Toronto, Ontario
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
Date: 20040109
Docket: T-1681-03
BETWEEN:
SELWYN PIETERS
Applicant
- and -
THE ATTORNEY GENERAL OF
CANADA
Respondent
REASONS FOR ORDER
AND ORDER