Simon's Megalomaniacal Legal Resources

Labour - Remedial LRA Exclusivity (Weber) - Exception: FPSLRA

. Davis v. Canada (Royal Canadian Mounted Police)

In Davis v. Canada (Royal Canadian Mounted Police) (Fed CA, 2024) the Federal Court of Appeal waded through the oft-complexities of federal labour law procedures (here the RCMP), sequentially as follows:

(a) complaint with RCMP "Office for the Coordination of Harassment Complaints", decided by "Assistant Commissioner"
(b) grievance (on venue consent) with RCMP "Chief Human Resources Officer",
(c) judicial review of 2.

Here the applicant sought "to quash both the Record of Decision and the Grievance Decision on the basis of bias and procedural unfairness" and "to quash the investigation into her complaints, and claimed compensatory, aggravated and punitive damages", but then - discontinuing the JR - filing an action for similar remedies (which gives rise to Weber and FPSLRA s.236 issues):

[7] Ms. Davis’ statement of claim asserts that the RCMP had engaged in a series of unfair labour practices that included harassment by her supervisor, unilateral changes to her employment contract, disguised and/or constructive dismissal, harm to her reputation and discrimination based on the failure of the RCMP to accommodate her disability. She further alleged that the RCMP had failed to investigate her allegations properly, and that the investigation and hearing processes were fraught with procedural unfairness.

[8] By way of relief, Ms. Davis sought, amongst other things, to have the Court quash the grievance decision "“due to the lack of impartiality and procedural unfairness”". She also sought compensatory, general and aggravated damages.

[9] The RCMP brought a motion to strike Ms. Davis’ statement of claim, without leave to amend, on the basis that her claim was barred by operation of subsection 236(1) of the FPSLRA. Subsection 236(1) provides that "“[t]he 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”". The full text of the statutory provisions at issue in this case is attached as an appendix to these reasons.

....

III. The Federal Court Judge’s Decision

[13] Ms. Davis appealed the Associate Judge’s decision to a judge of the Federal Court, alleging numerous errors on the part of the Associate Judge. These included her allegedly failing to consider the impact of Ms. Davis’ disability, and failing to provide Ms. Davis with access to appropriate accommodation measures in the hearing process.

....

[16] In a decision reported as 2023 FC 280, the Federal Court judge found that Ms. Davis had not demonstrated any error on the part of the Associate Judge that would warrant the Court’s intervention. After carefully considering each of Ms. Davis’ arguments, the Federal Court judge was satisfied that the Associate Judge had not made any palpable and overriding errors in accommodating Ms. Davis’ disabilities or her status as a self-represented litigant.

....

[66] Ms. Davis has also failed to provide any support for her claim that, as an unrepresented employee, she was not bound by the grievance procedures outlined in the FPSLRA.

[67] Part 1 of the FPSLRA deals with labour relations, and it only applies to employees who are subject to collective agreements. In contrast, Part 2 of the Act (which addresses the grievance process) applies to both unionized and non-represented employees. This is made clear by the definition of "“employee”" in subsection 206(1). This provides that for the purposes of Part 2 of the Act (with some exceptions that do not apply to Ms. Davis), the term "“employee”" means "“a person employed in the public service”".

[68] Subsection 208(1)(b) of the Act permits these employees to present individual grievances if they feel aggrieved with respect to "“any occurrence or matter affecting his or her terms and conditions of employment”". Ms. Davis cannot escape the operation of subsection 236 by asserting that her claim is not an ordinary workplace dispute. As the Court of Appeal of Ontario observed at paragraphs 14-15 of Bron, above, the right to grieve is "“very broad”", and "“[a]lmost all employment-related disputes can be grieved”" under the terms of the governing legislation.

[69] Ms. Davis claims that the grievance process does not apply to non-unionized employees because it is not included in any directive, policy or employment contract. Whether or not that is the case, it is included in the FPSLRA, which is the law that governs the terms and conditions of employment of most federal public servants, including Ms. Davis.

[70] The fact that the grievance process is indeed available to unrepresented employees such as Ms. Davis is borne out by the fact that her complaints about her supervisor and the Assistant Commissioner’s decision were dealt with through the RCMP’s grievance system. It was only after her grievance was dismissed at the third level that Ms. Davis turned to the Federal Court for relief.

[71] The Associate Judge also did not err in law in rejecting Ms. Davis’ claim that the inclusion of the ouster provision in subsection 236(1) of the FPSLRA was the result of a "“legislative error”". Not only has she failed to point to any facts to support this assertion, it also runs counter to the principle of statutory interpretation that Parliament does not speak in vain: Ebadi v. Canada, 2024 FCA 39 at para. 35; R. v. D.A.I., 2012 SCC 5 at para. 31; Attorney General of Quebec v. Carrières Ste-Thérèse Ltée, 1985 CanLII 35 (SCC), [1985] 1 S.C.R. 831, [1985] S.C.J. No. 37 at 838.

[72] Ms. Davis has also not identified any "“legislative gap”" in the FPSLRA that would somehow exempt her from the application of subsection 236(1). Indeed, in Bron, the Court of Appeal of Ontario specifically held that there is no "“legislative gap”" in the legislation, and that subsection 236(1) "“speaks directly to workplace complaints that are grievable under the legislation”". In such cases, the grievance procedure operates "“in lieu of any right of action”", even when there is no access to third-party adjudication: both quotes from Bron above at para. 32.

[73] According to Ms. Davis, the Associate Judge also erred in law in putting the onus on her to demonstrate that her statement of claim should not be struck, rather than requiring the RCMP, as the moving party, to demonstrate that her claim had no possibility of success.

[74] It is true that the initial onus is on the party seeking to establish that a pleading fails to disclose a reasonable cause of action: Brink v. Canada, 2024 FCA 43 at para. 44; La Rose v. Canada, 2023 FCA 241 at para. 19. The RCMP met its onus in this case by invoking subsection 236(1) of the FPSLRA, which bars actions such as that commenced by Ms. Davis. The onus then shifted to Ms. Davis to demonstrate that her claim came within an exception to the general rule: Lebrasseur v. Canada, 2007 FCA 330 at para. 19. This she failed to do.

[75] As noted at the outset of these reasons, subsection 236(1) of the FPSLRA states that "“[t]he 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”" [my emphasis]. Conflicts related to "“terms or conditions of employment”" have been found "“to encompass allegations of defamation, discrimination, harassment, malice and bad faith, Charter breaches, and intentional torts, including intentional infliction of mental suffering”": Ebadi, above at para. 29.

[76] Ms. Davis relies on this Court’s decision in Canada v. Greenwood, 2021 FCA 186, leave to appeal to SCC refused, 39885 (17 March 2022), as authority for the proposition that claims of systemic negligence are properly the subject of actions against the RCMP by its employees, notwithstanding the provisions of subsection 236(1) of the Act. There are several difficulties with Ms. Davis’ argument.

[77] The first is that nowhere in her statement of claim does Ms. Davis plead negligence on the part of the RCMP, whether systemic or otherwise, as a cause of action.

[78] More importantly, Ms. Davis’ reliance on Greenwood is misplaced. Greenwood was an appeal from a certification order issued by the Federal Court in a class proceeding. The action related to the allegedly systemic bullying, intimidation and harassment of individuals who worked for the RCMP and/or with the RCMP. The statement of claim further alleged that the RCMP was negligent in failing to provide the representative plaintiffs and other class members with a workplace that was free from bullying and harassment.

[79] Greenwood does not, however, stand for the proposition that indeterminate public servants such as Ms. Davis can sue the RCMP, as long as they allege systemic negligence on the part of their employer. In fact, it suggests that precisely the opposite is the case.

[80] Indeed, this Court specifically addressed the situation of indeterminate civilian employees of the RCMP, noting at paragraph 39 of Greenwood that "“public service employees who have the right to file grievances under section 208 of the FPSLRA are excluded from the class”". This would include indeterminate public servants such as Ms. Davis.

[81] In other words, people in Ms. Davis’ position were specifically excluded from the class on whose behalf the proceeding in Greenwood was brought.

[82] The other cases relied on by Ms. Davis also do not assist her.

[83] There was no suggestion by the respondent in Davidson v. Canada (Attorney General), 2015 ONSC 8008, Merlo v. Canada, 2017 FC 533 or Tiller v. Canada, 2019 FC 895, that the bar in subsection 236(1) of the FPSLRA applied to the plaintiffs in these cases: Adelberg FCA, above at para. 47.

[84] Moreover, while civilian employees of the RCMP were originally part of the class on whose behalf the proceeding was brought in Davidson, it appears that the plaintiff in that case intended to amend the class definition in her statement of claim to remove public service employees from the class, presumably because of the jurisdictional difficulties that would result from their inclusion: Adelberg FCA, above at para. 9.

[85] Most recently, in Adelberg FCA, above, this Court found that the Federal Court had erred in striking claims made by members of the RCMP who sought to challenge various COVID-19-related policies issued by Treasury Board. This Court found that it was not plain and obvious that members of the RCMP possessed grievance rights that would preclude them from bringing an action such as the one in issue in that case: at para. 45.

[86] This Court did not, however, interfere with the Federal Court’s finding that the claims of plaintiffs who were subject to subsection 236(1) of the FPSLRA should be struck: Adelberg v. Canada, 2023 FC 252 at para. 8; Adelberg FCA, above at para. 59.

[87] As noted earlier, Ms. Davis also contends that the RCMP grievance process was inadequate, flawed, biased, corrupt and misleading, and that this brings her claim under one of the exceptions to the bar created by subsection 236(1) of the FPSLRA.

[88] This Court has recently addressed the common law exceptions to the bar created by subsection 236(1) in Ebadi, above at para. 47. There, this Court noted that courts retain a residual discretion to allow an action to proceed, notwithstanding the legislative bar contained in subsection 236(1) of the Act. However, this is so only where the internal grievance mechanism is incapable of providing effective redress: see also Greenwood, above at para. 130; Bron, above at paras. 27-30.

[89] This Court further noted in Ebadi that in Canada v. Robichaud and MacKinnon, 2013 NBCA 3, the New Brunswick Court of Appeal confined this discretion to situations where the grievance process is entirely "“corrupt”": Ebadi, above at para. 47; Robichaud, above at para. 10.

[90] However, as was the case in the Lebrasseur decision cited earlier, the record in this appeal contains no evidence that would demonstrate that the RCMP’s internal grievance mechanism was incapable of providing effective redress. It was incumbent on Ms. Davis to have provided evidence about the efficacy of the grievance process if she wished the Court to exercise its discretion to hear her claim. In the absence of any such evidence, it was open to the Federal Court to have struck her statement of claim, without leave to amend: Adelberg FCA, above at para. 59.

[91] The lack of third-party adjudication also does not, in and of itself, allow a court to exercise its residual discretion to hear a claim: Ebadi, above at para. 26. This is because subsection 236(2) states that the exclusivity of the grievance process identified in subsection 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 these two provisions is that courts no longer have any residual discretion to entertain claims that are otherwise grievable under the FPSLRA on the basis of an employee’s inability to access third‑party adjudication: Bron, above at para. 29.

[92] The Federal Court judge thus did not err in law or make a palpable and overriding error in refusing to intervene in the Associate Judge’s decision. In particular, the Federal Court judge did not err in failing to find that the RCMP grievance process is corrupt, or in failing to find that exceptional circumstances exist that would allow Ms. Davis’ civil claim to proceed in the Federal Court.

[93] Ms. Davis also argues that judicial review is not a reasonable alternative to a right of action as damages are not recoverable through the judicial review process. According to Ms. Davis, this warrants a favourable exercise of discretion allowing her action to proceed to trial. I note, however, that a similar argument was rejected by this Court in Ebadi, above at paras. 56‑60.

[94] It is true that damages are not available as a remedy in judicial review applications: Garshowitz v. Canada (Attorney General), 2017 FCA 251 at para. 10; Maximova v. Canada (Attorney General), 2017 FCA 230 at para. 14. Damages are, however, available through the grievance process: Wojdan v. Canada (Attorney General), 2021 FC 1341 at para. 27, aff’d 2022 FCA 120.

[95] As a result, it would be open to the Federal Court to find that an administrative decision-maker, such as a grievance officer, erred in failing to compensate a grievor for his or her losses. The Federal Court would then be able to refer the matter back for redetermination on that basis.

[96] Finally, Ms. Davis argued that the Associate Judge made a palpable and overriding error in denying her leave to amend her statement of claim to address any errors that she may have made in drafting the document as a result of her lack of legal training.

[97] For a claim to be struck without leave to amend, the defect in the statement of claim must be one that is not curable by amendment: Simon v. Canada, 2011 FCA 6 at para. 8; Hunt v. Carey, above at paras. 23-24, 28.

[98] As the Federal Court judge observed in this case, when considering whether a statement of claim should be struck, the motions judge "“must look beyond the words used, the facts alleged, and the remedy sought”": at para. 92. The judge must ensure that the proceedings are "“not a disguised attempt to reach before the Federal Court a result otherwise unreachable in that Court”": citing Canada v. Roitman, 2006 FCA 266 at para. 16.

[99] Ms. Davis seeks to question the authority and validity of subsection 236(1) of the FPSLRA, asserting that it is invalid as such a privative clause "“is a labour law tool and the unrepresented employee is under the employment law”". As noted earlier, she also seeks to argue that "“collective agreement clauses (including the grievance process) [do not] apply to the unrepresented employee if they are not contained in any directive, policy or the employment contract”". For the reasons given, I have concluded that neither argument has any merit. Consequently, I am not persuaded that the Associate Judge erred in law or committed a palpable or overriding error by denying Ms. Davis leave to amend her statement of claim.

. Adelberg v. Canada

In Adelberg v. Canada (Fed CA, 2024) the Federal Court of Appeal allowed an appeal in part from a decision that struck actions by one group of FPSLRA plaintiffs [here embodied in FPSLRA s.236], and gave leave to amend the claim by non-FPSLRA plaintiffs. These issues attract consideration under the Weber doctrine, where labour organization (unions) cannot sue but are restricted to the remedies set out in statute or employer policy.

Here the court holds that the Weber doctrine here prevent lawsuits for some claims related to the TB (SS: 'Treasury Board') COVID Policy:

C. Did the Federal Court err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule "“A”" to the Federal Court’s Reasons?

[54] On the third issue, I conclude that the Federal Court did not err in striking, without leave to amend, the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule "“A”" to the Federal Court’s Reasons, other than the RCMP. However, the Federal Court erred in striking the claims of RCMP members related to the TB Policy.

[55] It is not disputed that the plaintiffs who were employed by organizations other than the RCMP could have filed grievances under section 208 of the FPSLRA challenging the TB Policy or its application to them. As noted, the TB Policy was a term and condition of employment and thus subject to grievance under section 208 of the FPSLRA, which allows the employees of the organizations listed in Schedule "“A”" to the Federal Court’s Reasons other than the RCMP to file grievances relating to their terms and conditions of employment. That said, the FPSLREB recently held in Rehibi v. Deputy Head (Department of Employment and Social Development, 2024 FPSLREB 47, that a grievance challenging the application of the TB Policy could not be referred to adjudication due to the fact that only a subset of matters that may be grieved under the FPSLRA may be referred to adjudication under subsection 209(1) of the FPSLRA.

[56] The bar in section 236 of the FPSLRA applies to matters that may be grieved as opposed to those that may be adjudicated. In determining whether an issue is one that may be grieved, what matters is the essence of the claim made and not the way the claim is characterized in the Statement of Claim. Thus, it matters not that the plaintiffs allege a Charter breach or various tort claims; one must instead look to the essential character of the dispute to determine if it raises a matter that could have been the subject of a grievance: Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146 at para. 13; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, 1995 CanLII 108 at para. 52 [Weber]; Ebadi v. Canada, 2024 FCA 39, [2024] F.C.J. No. 380 at para. 24 [Ebadi].

[57] Here, compliance with the TB Policy was a term and condition of employment for the plaintiffs employed by the organizations listed in Schedule "“A”" to the Federal Court’s Reasons. The requirement to have been vaccinated against COVID-19 or face a leave without pay could therefore have been grieved under section 208 of the FPSLRA by those employed in the organizations listed in Schedule "“A”" to the Federal Court’s Reasons, other than the RCMP.

[58] The case law interpreting section 236 of the FPSLRA recognizes that the section is a complete bar to a right of action for any matter that may be the subject of a grievance, subject to the possible caveat that a court may possess the discretion to hear the claim if the internal grievance process does not or cannot provide an adequate remedy or, perhaps, if the case is otherwise exceptional: Ebadi, at para. 47; Bron v. Canada (Attorney General), 2010 ONCA 71, 99 O.R. (3d) 749 at paras. 29 and 32; Robichaud v. Canada (Attorney General), 2013 NBCA 3, 225 A.C.W.S. (3d) 430 at para.10.

[59] Here, the Federal Court had no evidence before it as to the efficacy of the grievance process. I therefore conclude that the Federal Court did not err in striking the claims related to the TB Policy made by the plaintiffs who were employed by the organizations listed in Schedule "“A”" to the Federal Court’s Reasons other than the RCMP by virtue of section 236 of the FPSLRA. It was incumbent on the plaintiffs to have filed evidence about the efficacy of the grievance process if they wished the Court to exercise its discretion to hear the claim, as the plaintiffs did in Greenwood. In the absence of any such evidence pointing to any inefficacy of the grievance procedure, it was open to the Federal Court to have reached the conclusion that it did and to have struck, without leave to amend, the claims related to the TB Policy made by the plaintiffs employed by the organizations listed in Schedule "“A”" to the Federal Court’s Reasons other than the RCMP.

[60] For the plaintiffs employed by the RCMP, on the other hand, it is unclear whether they possessed rights to grieve the TB Policy under the RCMP Act or the Regulations and Standing Orders under that Act. And, for the reasons already noted above, it is not plain and obvious that they could have grieved under the FPSLRA.

[61] "The TB Policy was not adopted by the RCMP, but rather by the Treasury Board. It is not plain and obvious that its application would be "“a decision, act or omission in the administration of the affairs of the Force”" that would be grievable under section 31 of the RCMP Act. Somewhat similar policies have been found not to be subject to grievance under the RCMP Act because they are not decisions, acts or omissions made in the administration of the affairs of the Force." "

[62] For example, in Pasic v. Canada (Attorney General), 2022 FC 1171, 2022 CarswellNat 3030, the Federal Court upheld a decision of the Final Level Adjudicator in the RCMP grievance process. The Adjudicator dismissed the applicant’s grievance challenging where he was placed on the pay grid because pay was fixed by Treasury Board not the RCMP and therefore the grievance could not be dealt with under the RCMP Act.

[63] To similar effect, in Commissioner of the RCMP’s grievance decision G-335, dated April 14, 2005, an RCMP member sought to challenge a decision made by an employee of Treasury Board Secretariat to decline to declare the community in which the member resided prior to being transferred a "“depressed housing market”". The Commissioner found that he had no jurisdiction to hear a grievance that was based solely on a decision which was rendered by Treasury Board and adopted the External Review Committee’s finding that "“the mere fact that the relocation benefits which are at issue in this grievance pertain to the performance of the member’s duties as an RCMP member cannot suffice to subject the decision made by an employee of another government department to a grievance process that is internal to the RCMP”": see RCMP External Review Committee, "“Grievance Case Summary - G-335”", online: . Similarly, in grievance decision G-255, dated March 28, 2001, an RCMP member," "stationed in an Isolated Post, contested a decision declaring him ineligible to receive an allowance for fuel and utilities expenses, which was available only under certain conditions (not met by the member), through the Isolated Posts Directive, issued by the Treasury Board. The Commissioner similarly found that he had no jurisdiction to hear the grievance because the RCMP had no authority to pay a fuel and utilities allowance in light of the Treasury Board’s Isolated Posts Directive: see RCMP External Review Committee, "“Grievance Case Summary - G-255”", online: . Likewise, in grievance decision G‑484, dated November 6, 2012, an RCMP member grieved the Vacation Travel Assistance rate for his isolated post, which was fixed by the Treasury Board. The Commissioner again found that the member did not have standing to grieve this issue because it was not a decision, act or omission made in the administration of the affairs of the Force: see RCMP External Review Committee, "“Grievance Case Summary - G-484”", online: .

[64] Since the defendants sought to strike the Statement of Claim based on the fact that a grievance process was available, it was incumbent on the defendants to establish that the TB Policy could have been grieved by RCMP members. However, no evidence was tendered on this issue and the statutory scheme is not sufficiently clear to definitively establish that the TB Policy could have been grieved by RCMP members. I therefore conclude that the Federal Court erred in striking the claims of RCMP members related to the TB Policy without leave to amend. The plaintiffs who were members of the RCMP should have been granted leave to amend their claims related to the TB Policy on the same basis as the plaintiffs who were employed by organizations other than those listed in Schedule "“A”" to the Federal Court’s Reasons were granted leave to amend.

. Adelberg v. Canada

In Adelberg v. Canada (Fed CA, 2024) the Federal Court of Appeal allowed an appeal in part from a decision that struck actions by one group of FPSLRA plaintiffs, and gave leave to amend the claim by non-FPSLRA plaintiffs. These issues attract consideration under the Weber doctrine [here embodied in FPSLRA s.236], where labour organization (unions) cannot sue but are restricted to the remedies set out in statute or employer policy:

[40] A pleading may be struck for disclosing no reasonable cause of action only where this is plain and obvious: Berenguer v. Sata Internacional - Azores Airlines, S.A., 2023 FCA 176, 2023 CarswellNat 2983 at para. 23, leave to appeal to SCC refused, 40949 (11 April 2024) [Berenguer], citing Nevsun Resources Ltd. v. Araya, 2020 SCC 5, [2020] 1 S.C.R. 166 at para. 64; R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 at para. 17. The plain and obvious test applies to both the discernment of whether a claim pleaded is justiciable and to the discernment of whether it falls within the jurisdiction of the Federal Court: Berenguer at para. 24; Windsor (City) v. Canadian Transit Co., 2016 SCC 54, [2016] 2 S.C.R. 617 at para. 24. Where the issue is a jurisdictional one, evidence is admissible and, indeed, may be required: Berenguer at para. 26; Greenwood at para. 95; MIL Davie Inc. v. Société d’Exploitation et de Développement d’Hibernia Ltée (1998), 226 N.R. 369, 1998 CanLII 7789 (FCA) at paras. 7-8.

....

A. Did the Federal Court err in determining that the plaintiffs employed by the RCMP were subject to the bar in section 236 of the FPSLRA?

[42] On the first issue, I conclude that the Federal Court erred in finding that the bar in section 236 of the FPSLRA applies to the plaintiffs who were members of the RCMP.

[43] It will be recalled that subsection 236(1) of the FPSLRA provides that 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”".

[44] To recall, the relevant definition of what constitutes a grievance is set out in subsection 206(1) of the FPSLRA. That section states that a grievance is one that may be filed under either section 208 or 238.4 of the FPSLRA. Thus, the bar in section 236 applies only to those who could seek redress via a grievance under section 208 or 238.4 of the FPSLRA.

[45] Yet, section 238.4 of the FPSLRA applies only to grievances arising under a collective agreement applicable to RCMP members who meet the statutory definition of "“employee”" in the FPSLRA. Based on the materials that were before the Federal Court and that are now before this Court, it is impossible to ascertain whether any collective agreement has been negotiated for RCMP members. The National Police Federation was certified as the bargaining agent for RCMP members in 2019 by the FPSLREB in National Police Federation v. Treasury Board, 2019 FPSLREB 74. However, it is unclear if a collective agreement has been achieved and, if so, whether a challenge to the TB Policy could be the subject of a grievance under any such agreement. Given this lack of information, it is not plain and obvious that the plaintiffs who were members of the RCMP possessed rights to grieve the TB Policy under a grievance to which section 238.24 of the FPSLRA pertains.

[46] Further, section 208 of the FPSLRA is inapplicable to RCMP members by virtue of section 238.02 of that Act. Indeed, the FPSLREB recently confirmed in Frémy v. Royal Canadian Mounted Police, 2021 FPSLREB 47 that the only grievance rights RCMP members possess under the FPSLRA arise under section 238.24 of the FPSLRA and thus only pertain to alleged violations of a collective agreement.

[47] I note that many actions have proceeded against the RCMP for workplace issues, including class actions for matters that could have been the subject of grievances under the RCMP Act or Regulations or Standing Orders issued under that Act: see e.g. Greenwood at paras. 81, 160; Tiller v. Canada, 2019 FC 895, 307 A.C.W.S. (3d) 470; Merlo v. Canada, 2017 FC 533, 281 A.C.W.S. 3(d) 702; Davidson v. Canada (Attorney General), 2015 ONSC 8008, 262 A.C.W.S. (3d) 648. There was no suggestion by the respondent in any of the foregoing cases that the bar in section 236 of the FPSLRA applied.

[48] I therefore conclude that the Federal Court erred in finding that section 236 of the FPSLRA foreclosed the action by the plaintiffs who were members of the RCMP as it is not plain and obvious that the provision applies to them.