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Labour - Remedial LRA Exclusivity (Weber) - Exception: No Collective Agreement. 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.
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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.
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