ORDER AND REASONS
I.
Overview
[1] The Defendants have brought a motion pursuant to Rule 221(1)(a) of the Federal Courts Rules, SOR/98-106 [Rules] to strike the Plaintiffs’ Statement of Claim in its entirety, without leave to amend.
[2] The Statement of Claim was filed on May 30, 2022. The Plaintiffs comprise approximately 600 individuals who allege they suffered harm as a result of the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police issued by the Treasury Board of Canada on October 6, 2021 [TB Policy], and the Interim Order Respecting Certain Requirements for Civil Aviation Due to COVID-19, No. 61 issued by Transport Canada on April 24, 2022 [Interim Order].
[3] The Plaintiffs are current or former employees of the Government of Canada, federal Crown corporations, and federally-regulated businesses or organizations. The precise circumstances of the Plaintiffs’ employment are not pleaded in the Statement of Claim.
[4] Unusually, the style of cause groups the Plaintiffs by their employers. For example, the first group of Plaintiffs is identified as employed by the Royal Canadian Mounted Police; the second as employed by the Department of National Defence; the third as employed by the Canada Border Services Agency; and so on.
[5] There are numerous groups of Plaintiffs identified as employees of a wide variety of federal government institutions and Crown corporations. Other Plaintiffs are identified as employees of federally-regulated businesses or organizations such as Air Canada, Bank of Montreal, BC Ferries, Canadian National Railway, Ontario Power Generation, Purolator, and Rogers Communications.
[6] According to the Defendants, approximately two-thirds of the Plaintiffs appear to be employed within the Core Public Administration [CPA], as defined in the Financial Administration Act, RSC 1985, c F-11, s 11(1) and Schedules I, IV [FAA]. The Defendants say these Plaintiffs’ claims are barred by s 236 of the Federal Public Sector Labour Relations Act, SC 2003, c 22, s 2 [FPSLRA].
[7] The remaining one-third of the Plaintiffs appear to fall within two other categories: employees of federal Crown corporations and employees of businesses or organizations that operate in a variety of federally-regulated sectors, principally transportation, telecommunications, logistics, finance, and courier services. The Defendants do not dispute the Court’s potential jurisdiction over the claims brought by these Plaintiffs, but nevertheless maintain that the Statement of Claim fails to disclose any reasonable causes of action.
[8] With respect to those Plaintiffs who are subject to s 236 of the FPSLRA, the Statement of Claim must be struck in its entirety without leave to amend. With respect to those Plaintiffs who are not subject to s 236 of the FPSLRA, the Statement of Claim must be struck in its entirety, but with leave to amend.
II.
Issues
[9] The issues raised by the Defendants’ motion are whether the Statement of Claim should be struck and, if so, whether leave should be granted to amend the pleading.
A.
Plaintiffs Subject to the FPSLRA
[10] The Plaintiffs who are employed within the organizations listed in Schedule A hereto are members of the CPA
, as defined in the FAA. Persons employed within the CPA are subject to s 236 of the FPSLRA. This provision reads as follows:
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[11] The right to grieve is available to employees as defined in s 206(1) of the FPSLRA. Both unionized and non-unionized employees may file a grievance. The Defendants say that the Plaintiffs’ right to grieve encompasses the allegations contained in the Statement of Claim, because they concern their “terms and conditions of employment”
, as that expression is used in s 208 of the FPSLRA:
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[12] In Hudson v Canada, 2022 FC 694 [Hudson], I granted the defendant’s motion to strike the statement of claim without leave to amend on the ground that the plaintiffs’ claims were barred by s 236 of the FPSLRA. The analysis that follows is adapted from the one I applied in Hudson.
[13] Subsection 236(1) of the FPSLRA has been recognized as an “explicit ouster”
of the courts’ jurisdiction (Bron v Canada (Attorney General), 2010 ONCA 71 [Bron] at para 4). Once it is established that a matter must be the subject of a grievance, the grievance process cannot be circumvented, even for reasons of efficiency, by relying on a court’s residual jurisdiction (Bouchard c Procureur général du Canada, 2019 QCCA 2067).
[14] Subsection 236(1) of the FPSLRA was enacted in 2005 in direct response to the Supreme Court of Canada’s decisions in Vaughan v Canada, 2005 SCC 11 [Vaughan] and Weber v Ontario Hydro, [1995] 2 SCR 929 [Weber] (see Attorney General of Canada, on behalf of Correctional Service of Canada v Robichaud and MacKinnon, 2013 NBCA 3 [Robichaud] at para 3). Vaughan and Weber stand for the proposition that courts should usually decline to exercise any residual jurisdiction they may have to intervene in employment-related matters. Before a court will intervene in an employment-related dispute, there must be a gap in labour adjudication that causes a “real deprivation of ultimate remedy”
(Weber at para 57).
[15] This principle was succinctly stated by the Federal Court of Appeal in Canada v Greenwood, 2021 FCA 186 [Greenwood] at paragraph 130 (leave to appeal ref’d, 2022 CanLII 19060 (SCC)):
Vaughan and the cases that apply it hold that, in most instances, claims from employees subject to federal public sector labour legislation in respect of matters that are not adjudicable before the FPSLREB should not be heard by the courts, as this would constitute an impermissible incursion into the statutory scheme. However, an exception to this general rule allows courts to hear claims that may only be grieved under internal grievance mechanisms if the internal mechanisms are incapable of providing effective redress.
[16] The Defendants say the effect of s 236 of the FPSLRA is to remove any residual discretion this Court may have to intervene in labour disputes involving employees with grievance rights. The Defendants argue that s 236 serves to revoke any statutory grant of jurisdiction this Court might otherwise possess.
[17] Following the enactment of s 236 of the FPSLRA, it appears that no court has intervened in a labour dispute that involves employees who possess grievance rights. The most one can find in the jurisprudence is obiter commentary suggesting that an exception might be found if the integrity of the grievance procedure is shown to be compromised based on the evidence presented in a particular case (Lebrasseur v Canada, 2007 FCA 330 [Lebrasseur]). The onus of establishing that there is room for the exercise of a court’s residual discretion lies with a plaintiff (Lebrasseur at paras 18-19).
[18] In Robichaud, the Court of Appeal of New Brunswick suggested that if the residual discretion to hear a labour dispute continues to exist despite s 236 of the FPSLRA, it will be only in “exceptional”
cases: “The truly problematic cases will be those where the grievance process is itself ‘corrupt’”
(at para 10).
[19] While evidence is not generally admissible on a motion to strike, it may be admitted where a jurisdictional question arises. Evidence as to the nature and efficacy of the suggested alternate processes is necessary to provide a basis for the Court’s determination of whether it ought to decline jurisdiction in favour of the alternate administrative remedies (Greenwood at paras 95-96).
[20] The Defendants have adduced evidence in support of their motion to strike, but this consists only of an affidavit appending the relevant policy documents as exhibits. No evidence has been tendered respecting “the nature and efficacy of the suggested alternate processes”
, as contemplated in Greenwood (at para 95).
[21]
The Defendants maintain that it is sufficient for them to invoke the FAA to demonstrate that the claims of approximately two-thirds of the Plaintiffs are barred by s 236 of the FPSLRA. The Defendants note that the Plaintiffs do not allege the available internal grievance process is “corrupt”
or incapable of providing redress. Indeed, the Statement of Claim is silent regarding the potential availability or adequacy of alternative remedies.
[22] It would have been helpful for the Defendants to provide evidence, or alternatively detailed legal submissions, regarding which of the Plaintiffs are subject to s 236 of the FPSLRA and which are not. Instead, considerable time was expended during the hearing of this motion reviewing the Schedules to the FAA in order to determine which groups of Plaintiffs are employed within the CPA. Following the hearing of the motion, the Court directed the parties to confirm the accuracy of the lists of employers that appear in Schedules A and B hereto. Schedules A and B were subsequently approved by the parties through their counsel. To their credit, this was done on consent.
[23] According to paragraph 6 of the Statement of Claim:
The Plaintiffs are all either:
(a) Federal (former) Employees of various agencies and Ministries of the Government of Canada and servants, officials, and/or agents of the Crown;
(b) Employees of Federal Crown Corporations; and
(c) Employees of federally regulated sectors;
As set out and categorized in the style of cause in the within claim.
[24] While this manner of pleading is unorthodox, it is sufficiently clear. In effect, the categories of employment disclosed in the style of cause are incorporated by reference into the body of the pleading. For the purposes of the Defendants’ motion to strike, the Plaintiffs’ assertions respecting their places of employment, as identified in the style of cause, must be assumed to be true.
[25] Taken at face value, I am satisfied the pleading confirms that the majority of the Plaintiffs are employed within the CPA. Their claims are therefore barred by s 236 of the FPSLRA.
[26] Before determining whether to exercise any discretion to consider a proceeding, the Court must first be satisfied that the grievance process is not available and would not provide any remedy (Murphy v Canada (Attorney General), 2022 FC 146 [Murphy], at para 32, citing Public Service Alliance of Canada v Canada (Attorney General), 2020 FC 481). As Prothonotary (now Associate Judge) Mireille Tabib explained in Murphy in paragraph 33:
Consequently, and as also suggested in Lebrasseur v Canada, 2007 FCA 330, at para 19, once it is established that a person has recourse to a statutory grievance scheme, it is up to the applicant, and not the respondent seeking to have the application dismissed as premature, to establish that the procedure is clearly not available. That is the necessary conclusion, since concluding otherwise and allowing access to the courts whenever the admissibility of a grievance is challenged would have the effect of bypassing the exhaustive scheme Parliament intended. It would amount to asking the Court to prejudge the admissibility of a grievance and to usurp the role of the grievance authority in respect of the interpretation and application of the provisions governing the grievance procedure.
[27] Associate Judge Tabib’s ruling in Murphy was recently upheld by Justice Vanessa Rochester in Murphy v Canada (Attorney General), 2023 FC 57 [Murphy (Appeal)].
[28] Even at this preliminary stage, the onus is on the Plaintiffs to establish the Court’s jurisdiction over the claims advanced in the Statement of Claim (Hudson at para 91; Murphy (Appeal) at para 82). I am not persuaded that the Plaintiffs who are employed within the CPA have done so.
[29] On a motion to strike, a plaintiff will satisfy the requirement that the pleadings disclose a reasonable cause of action unless, assuming all facts pleaded to be true, it is plain and obvious that the plaintiff’s claim cannot succeed (Pro-Sys Consultants Ltd v Microsoft Corporation, 2013 SCC 57 at para 63). However, this does not mean that the Plaintiffs’ assertions respecting this Court’s jurisdiction must be assumed to be true. As Justice Rochester explained in Murphy (Appeal) at paragraph 86:
It is clear that on a motion to strike an application for judicial review, the facts asserted by the applicant in its Notice of Application must be presumed to be true (Prairies Tubulars (2015) Inc v Canada (Border Services Agency), 2018 FC 991 at para 26 and the cases cited therein). This presumption does not extend to the arguments that an applicant may make or any evidence they may submit in response to a motion to strike the Notice of Application. Concluding otherwise would run counter to the teaching of the Federal Court of Appeal in [Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc, 2013 FCA 250] and have the effect of rendering such motions to strike incapable of success, thereby hampering the Court’s power to restrain the misuse or abuse of its process (JP Morgan at para 48).
[30] Plaintiffs who enjoy statutory grievance rights and allege they have been harmed by the TB Policy or Interim Order must exhaust the grievance process before seeking redress in this Court (Murphy (Appeal) at paras 75-76). As I held in Wojdan v Canada (Attorney General), 2021 FC 1341 at paragraph 31, permitting premature access to the Court:
[…] would have the effect of undermining the labour grievance process enacted by Parliament. The Court would be preempting the primary role of labour adjudicators in determining questions that pertain to the application of the Vaccination Policy, the extent to which it may be said to infringe employees’ rights, whether any infringement can be justified on the grounds of public health, and if not, whether the Applicants are entitled to financial or other compensation. Premature judicial intervention would not be complementary to fundamental principles of labour relations, but destructive of them.
[31] The Plaintiffs argue that their claims are not barred by s 236 of the FPSLRA, because some of the remedies they seek are beyond the powers of a labour adjudicator to grant. They emphasize the declaratory relief sought in the Statement of Claim regarding the constitutional validity of the TB Policy and Interim Order, citing ss 91 and 92(10) of the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, reprinted in RSC 1985, App II, No 5 and the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter].
[32] The Plaintiffs cannot escape the operation of s 236 of the FPSLRA by pleading that their claims are not ordinary workplace disputes, or that some of the remedies they seek are not available through the internal grievance process
. As the Ontario Court of Appeal held in Bron, the right to grieve is “very broad”
and “[a]lmost all employment-related disputes can be grieved under s 208 of the FPSLRA”
(at paras 14-15).
[33] In Ebadi v Canada, 2022 FC 834 [Ebadi], the plaintiff advanced the argument (at para 35) that:
[…] Bron maintains the court’s residual discretion to hear a claim when a grievance procedure does not provide an adequate remedy. Further, the Court may assume jurisdiction over claims that, in the usual course, may be barred by section 236, where there is a gap in the statutory scheme, where the events produce a difficulty unforeseen by the scheme, or where “no adequate alternative remedy already exists,” as set out in Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v Canadian Pacific Ltd., [1996] 2 SCR 495 at para 8 [Brotherhood].
[34] Justice Henry Brown rejected this argument, holding that alleged Charter violations may be addressed through the grievance process under the FPSLRA (Ebadi at 43-44, citing Green v Canada (Border Services Agency), 2018 FC 414 at paras 10-11). He also affirmed that the grievance procedure operates “in lieu of any right of action”
, even when a plaintiff’s preferred remedy (in that case third-party adjudication) is not available (at paras 49-50):
In accordance with the analysis in Green, the Plaintiff could have challenged the Harassment Policy and Grievance Procedure themselves under sections 208 and 236 of the FPSRLA. In addition and in my respectful view, the statutory bar to court litigation set out in subsection 236(2) pre-empts any cause of action in this Court notwithstanding there is no access to third party-adjudication.
Here, the ONCA’s reasoning in Bron is again relevant:
[32] Finally, the appellant argues that a superior court must maintain an inherent jurisdiction despite whatever language may be used in s. 236. He relies on Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., 1996 CanLII 215 (SCC), [1996] 2 S.C.R. 495, [1996] S.C.J. No. 42, at para. 8. As I read that case, it stands for the proposition that a superior court has inherent jurisdiction to provide a remedy where the relevant statutory scheme does not speak to the circumstances at hand. In other words, the court’s inherent jurisdiction can fill remedial lacunae in legislation. There is no legislative gap here. Section 236 speaks directly to workplace complaints that are grievable under the legislation. For those complaints, even when there is no access to third-party adjudication, the grievance procedure operates “in lieu of any right of action”. [Emphasis added]
[35] Canadian courts have consistently found that harms allegedly suffered by employees as a result of their employers’ policies and practices in response to the COVID-19 pandemic are properly addressed by way of grievance, in both unionized and non-unionized workplaces (see National Organized Workers Union v Sinai Health System, 2022 ONCA 802 [Sinai Health] at para 39 and the cases cited therein). As the Court of Appeal for Ontario held in Sinai Health (at para 38):
At its core, the harm at issue was the potential for being placed on leave without pay or terminated under the Policy, if an employee chose to remain unvaccinated. The appellant’s members were not being forced to be vaccinated, denied bodily autonomy, or denied the right to give informed consent to vaccination. They could choose to be vaccinated or not. If they chose not to be vaccinated, they faced being placed on unpaid leave or having their employment terminated. This potential harm is fundamentally related to employment. It is harm which an arbitrator has the tools to remedy. If the appellant were to prevail in the arbitration, an arbitrator could order reinstatement without loss of seniority and compensation for lost wages. There is no palpable and overriding error in the application judge’s conclusion that there was no remedial gap in the labour relations regime that warranted the exercise of the Superior Court’s residual jurisdiction.
[36] The Plaintiffs who are subject to s 236 of the FPSLRA have not demonstrated that their circumstances constitute “exceptional cases”
, or that there is a gap in labour adjudication that causes a “real deprivation of ultimate remedy”
(Weber at para 57; Vaughan at paras 22, 39). For these Plaintiffs, the Statement of Claim must be struck in its entirety without leave to amend.
B.
Plaintiffs Not Subject to the FPSLRA
[37] The Plaintiffs who are employed within the organizations listed in Schedule B hereto are not members of the CPA
, as defined in the FAA. The Defendants concede that these Plaintiffs’ claims potentially fall within this Court’s jurisdiction.
[38] The Defendants nevertheless maintain that the Statement of Claim is drafted so poorly that it fails to disclose any reasonable causes of action. They therefore argue that the Statement of Claim must be struck in its entirety without leave to amend, regardless of whether or not the Plaintiffs are subject to s 236 of the FPSLRA.
[39] The Rules that govern pleadings in this Court provide in relevant part:
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[40] It is fundamental to the trial process that a plaintiff plead material facts in sufficient detail to support the claim and the relief sought (Mancuso v Canada (National Health and Welfare), 2015 FCA 227 [Mancuso] at para 16). Pleadings play an important role in providing notice and defining the issues to be tried.
[41] The Court and defendants cannot be left to speculate as to how the facts might be variously arranged to support various causes of action. If the Court were to allow parties to plead bald allegations of fact, or mere conclusory statements of law, the pleadings would fail to perform their role in identifying the issues (Mancuso at paras 16-17).
[42] A plaintiff must plead, in summary form but with sufficient detail, the constituent elements of each cause of action or legal ground raised. The pleading must tell the defendant who, when, where, how and what gave rise to its liability. Plaintiffs cannot file inadequate pleadings and rely on a defendant to request particulars, nor can they supplement insufficient pleadings to make them sufficient through particulars (Mancuso at paras 19-20).
[43] To establish a reasonable cause of action, a statement of claim must “(1) allege facts that are capable of giving rise to a cause of action; (2) indicate the nature of the action which is to be founded on those facts; and (3) indicate the relief sought, which must be of a type which the action could produce and the court has jurisdiction to grant”
(Zbarsky v Canada, 2022 FC 195 at para 13, citing Bérubé v Canada, 2009 FC 43 at para 24, aff’d, 2010 FCA 276).
[44] As Justice Beth Allen of the Ontario Superior Court of Justice observed in Guillaume v Toronto (City), 2010 ONSC 5045 (at para 54):
The importance of clearly drafted and structured pleadings does not require much explanation. Pleadings should be drafted with sufficient clarity and precision so as to give the other party fair notice of the case they are required to meet and of the remedies being sought. The role of pleadings is to assist the court in its quest for the truth. Clearly, confusing, run on and poorly organized pleadings cannot accomplish those goals. Courts have held a pleading may be struck out on the grounds it is unintelligible and lacks clarity […]
[45] The Statement of Claim in this proceeding is almost 50 pages long. Nine pages are devoted to the remedies sought. There are allegations of constitutional invalidity and criminal culpability, broad assertions of scientific knowledge regarding the COVID-19 pandemic, and a claim that some of the public health measures instituted by the Government of Canada amounted to crimes against humanity. Some of the requested remedies are unavailable in a civil action, including administrative declarations and injunctive relief.
[46] For example, the Statement of Claim seeks a declaration that “vaccine passports”
violate the Plaintiffs’ right to move freely within Canada, or to enter and leave Canada, contrary to s 6 of the Charter. However, the pleading does not particularize any facts suggesting that any of the Plaintiffs were prevented from travelling either within or outside Canada.
[47] The Statement of Claim includes claims for re-instatement of lost employment, payment of back pay, and various benefits. But the pleading is devoid of any material facts pertaining to the personal circumstances of any of the Plaintiffs’ employment.
[48] The Statement of Claim alleges that the Defendants have “knowingly engaged in the misfeasance of their public office, and abuse of authority, through their public office”
by “[e]xercising a coercive power to force unwanted “vaccination””
under the TB Policy and Interim Order. However, the pleading fails to engage with the substance of the TB Policy and Interim Order, which do not force vaccination and also offer various exemptions and accommodations.
[49] In Turmel v Canada, 2021 FC 1095, aff’d, 2022 FCA 166, Justice Russel Zinn upheld a decision of Prothonotary (now Justice) Mandy Aylen to strike a statement of claim challenging certain measures implemented by the Government of Canada to address the COVID-19 pandemic. The plaintiff in that case alleged violations of Charter rights, but neglected to plead material facts or to particularize the alleged Charter infringements. As in this case, the pleading consisted largely of bare assertions.
[50] The Defendants say the Statement of Claim in this proceeding is comparable to the one filed by the same counsel on behalf of the plaintiffs in Action4Canada v British Columbia (Attorney General), 2022 BCSC 1507 [Action4Canada]. In that case, the plaintiffs sought damages and other relief from various government entities and employees for harms they allegedly suffered as a result of various restrictions instituted in British Columbia due to the COVID-19 pandemic (Action4Canada at para 1).
[51] Justice Alan Ross of the British Columbia Supreme Court granted the defendants’ motion to strike the pleading in its entirety, holding as follows (Action4Canada at paras 45-48):
[…] the [Notice of Civil Claim [NOCC]], in its current form, is not a pleading that can properly be answered by a responsive pleading. It describes wide-ranging global conspiracies that may, or may not, have influenced either the federal or the provincial governments. It seeks rulings of the court on issues of science. In addition, it includes improper allegations, including criminal conduct and “crimes against humanity”. In my opinion, it is “bad beyond argument”.
[46] I further find that it is not a document that the court can mend by striking portions. I find that this NOCC is analogous to the Statement of Claim considered by Justice K. Smith (as he then was) in Homalco Indian Band v. British Columbia (1998), 25 C.P.C. (4th) 107 (B.C.S.C.) [Homalco]. He wrote:
[11] In my view, the statement of claim is an embarrassing pleading. It contains much that appears to be unnecessary. As well, it is constructed in a manner calculated to confuse the defendants and to make it extremely difficult, if not impossible, to answer. As a result, it is prejudicial. Any attempt to reform it by striking out portions and by amending other portions is likely to result in more confusion as to the real issues. …
[47] As was the case in Homalco, attempting to bring the NOCC into compliance with the Rules by piecemeal striking and amending would invite more confusion and greater expenditure of the resources of all concerned.
[48] I find that the NOCC is prolix. It is not a proper pleading that can be answered by the defendants. It cannot be mended. Given that finding, I have no hesitation in ruling that it must be struck in whole.
[53] Justice Ross granted leave to the plaintiffs in Action4Canada to amend their pleading. However, he specified that numerous claims, some of which are also advanced in the present proceeding, are improper in a civil action (Action4Canada at paras 52-53). These include allegations of criminal behaviour, broad declarations respecting the current state of medical and scientific knowledge, and a declaration that administering medical treatment without informed consent is a crime against humanity.
[54] To this list of impermissible claims must be added the remedies sought in paragraph 4 of the Statement of Claim, which may be obtained only on judicial review and not by action (see Wojdan v Canada, 2021 FC 1244):
(a) An interim stay/injunction of the Federal “vaccine mandates” and “passports” nunc pro tunc, effective the day before they were announced and/or implemented;
(b) A final stay/injunction of the Federal “vaccine mandates” and “passports” nunc pro tunc, effective the day before they were announced and/or implemented.
[55] For those Plaintiffs who are employed outside the federal public administration, e.g., with airlines, banks, transportation companies, etc., any amended pleading will have to allege sufficient material facts to provide a basis for the federal Crown’s liability.
[56] The Plaintiffs who are not subject to s 236 of the FPSLRA have standing to question whether the TB Policy and Interim Order infringed their rights. There is a prospect that the Plaintiffs could put forward a valid claim that certain COVID-related health measures instituted by the Government of Canada contravened their Charter rights. It is possible that other valid claims may exist.
[57] It will be for the Plaintiffs to plead those causes of action in accordance with the Rules. The claims must be framed in a manner that is intelligible and allows the Defendants to know the case they have to meet. The claims must also be confined to matters that are capable of adjudication by this Court, and seek relief this Court is capable of granting (Action4Canada at para 71).
III.
Conclusion
[58] The Plaintiffs who are employed within the CPA have not established that the available internal recourse mechanisms are incapable of providing them with adequate redress. This Court is therefore without jurisdiction to determine the claims advanced in the Statement of Claim, or should decline to exercise any residual discretion it may have. For those Plaintiffs who are subject to s 236 of the FPSLRA, the Statement of Claim must be struck in its entirety without leave to amend.
[59] For those Plaintiffs who are not subject to s 236 of the FPSLRA, the Statement of Claim must be struck in its entirety, but with leave to amend. Should the Plaintiffs who are not subject to s 236 of the FPSLRA wish to proceed with a civil action respecting the TB Policy and Interim Order, they must plead their causes of action in accordance with the Rules. The claims must be framed in a manner that is intelligible and allows the Defendants to know the case they have to meet. The claims must also be confined to matters that are capable of adjudication by this Court, and seek relief this Court is capable of granting.
ORDER
THIS COURT ORDERS that:
The Statement of Claim is struck in its entirety without leave to amend in respect of all Plaintiffs who are subject to s 236 of the Federal Public Sector Labour Relations Act, SC 2003, c 22, s 2.
For the remaining Plaintiffs, the Statement of Claim is struck in its entirety with leave to amend in accordance with the Reasons that accompany this Order.
Costs are awarded to the Defendants, payable forthwith and in any event of the cause, in the all-inclusive sum of $5,000.
“Simon Fothergill”
Judge
Schedule “A”
Plaintiffs who are Members of the
Core Public Administration
Persons employed within the following organizations and who therefore have grievance rights under the Federal Public Sector Labour Relations Act (Schedule I, Schedule IV and Schedule V of the Financial Administration Act):
Atlantic Canada Opportunities Agency
Canada Border Services Agency
Canada Revenue Agency
Canada School of Public Service
Canadian Coast Guard (Department of Fisheries and Oceans)
Canadian Food Inspection Agency*
Canadian Forestry Service (Department of Natural Resources)
Canadian Institutes of Health Research*
Canadian Nuclear Safety Commission*
Canadian Radio-television and Telecommunications Commission
Canada Revenue Agency*
Canadian Security Intelligence Service*
Core Public Service
Canadian Space Agency
Correctional Service of Canada
Courts Administration Service
Department of Agriculture and Agri-Food
Department of Canadian Heritage
Department of Employment and Social Development
Department of Fisheries and Oceans
Department of Justice
Department of National Defence
Department of Natural Resources
Department of Transport
Department of Veterans Affairs
Elections Canada (
“Office of the Chief Electoral Officer”
and“The portion of the federal public administration in the Office of the Chief Electoral Officer in which the employees referred to in section 509.3 of the Canada Elections Act occupy their positions”
)Environment and Climate Change Canada (Department of the Environment)
Federal Economic Development Agency for Southern Ontario
Global Affairs Canada (Department of Foreign Affairs, Trade and Development)
Government of Canada
Immigration, Refugees and Citizenship Canada (Department of Citizenship and Immigration)
Indigenous and Northern Affairs Canada (Department of Crown-Indigenous Relations and Northern Affairs)
Indigenous Services Canada (Department of Indigenous Services)
Innovation, Science and Economic Development Canada
National Film Board of Canada (National Film Board)*
National Research Council Canada*
National Security and Intelligence Review Agency (National Security and Intelligence Review Agency Secretariat)*
Office of the Auditor General of Canada*
Parks Canada*
Polar Knowledge Canada (Canadian High Arctic Research Station)*
Public Health Agency of Canada
Public Safety Canada (Department of Public Safety and Emergency Preparedness)
Public Services and Procurement Canada
Royal Canadian Mounted Police**
Service Canada (Department of Employment and Social Development)
Shared Services Canada
Staff of the Supreme Court
Statistics Canada
Treasury Board
NOTES:
All organizations are part of the core public administration as defined at s 11(1) of the Financial Administration Act (Schedules I and IV), except as noted.
* Organizations that are portions of the federal public administration listed in Schedule V (Separate Agencies of the Financial Administration Act, whose employees have rights to grieve under the Federal Public Sector Labour Relations Act).
** The RCMP is part of the core public administration and is listed in Schedule IV of the Financial Administration Act; RCMP members have limited rights to grieve under s 238.24 the Federal Public Sector Labour Relations Act, but have other grievance rights under the Royal Canadian Mounted Police Act.
Schedule “B”
Plaintiffs who are Not Members of the
Core Public Administration
Persons employed within the following organizations:
Air Canada
Air Canada Jazz
Air Inuit
Bank of Canada
Bank of Montreal
BC Coast Pilots Ltd
BC Ferries
British Columbia Maritime Employers Association
Brookfield Global Integrated Solutions
Canada Mortgage and Housing Corporation
Canada Pension Plan
Canada Post
Canadian National Railway
Canadian Pacific Railway
City of Ottawa Garage Fed Regulated
DP World
Export Development Canada
Farm Credit Canada
G4S Airport Screening
Garda Security Screening Inc
Geotech Aviation
Global Container Terminals Canada
Greater Toronto Airports Authority
House of Commons
Human Resources Branch, Innovation
Kelowna Airport Fire Fighters
National Arts Centre
NAV Canada
Ontario Northland Transportation Commission
Ontario Power Generation
Pacific Pilotage Authority
Parliamentary Protection Service
Public Sector Pension Investment Board
Purolator Inc
Questral Helicopters
RBC Royal Bank
Rise Air
Rogers Communications Inc
Royal Canadian Mint
Sasktel
Scotiabank
Seaspan Victoria Docks
Shaw
Skynorth Air Ltd
Telesat Canada
Via Rail Canada
Wasaya Airways
Waterfront Employers of British Columbia
Westjet
Westshore Terminals
FEDERAL COURT
SOLICITORS OF RECORD
| DOCKET:
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T-1089-22
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| STYLE OF CAUSE:
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KAREN ADELBERG ET AL. v HIS MAJESTY THE KING ET AL.
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| PLACE OF HEARING:
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TORONTO, ONTARIO
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| DATE OF HEARING:
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JANUARY 19, 2023
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| JUDGMENT and reasons:
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FOTHERGILL J.
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| DATED:
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February 21, 2023
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APPEARANCES:
| Rocco Galati
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For The Plaintiffs
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| Adam Gilani
Renuka Koilpillai
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For The Defendants
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SOLICITORS OF RECORD:
| Rocco Galati Law Firm Professional Corporation
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For The Plaintiffs
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| Attorney General of Canada
Toronto, Ontario
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For The Defendants
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