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Labour - Weber - Statutory Adoption in Non-Union. Ebadi v. Canada
In Ebadi v. Canada (Fed CA, 2024) the Federal Court of Appeal considered (and dismissed) an appeal from a lower court ruling that struck the appellant's Statement of Claim, which claim asserted several torts and Charter breaches against a non-unionized employer (CSIS) regulated under the FPSLRA.
Here the court cites provisions of the Federal Public Sector Labour Relations Act (FPSLRA), which in turn codifies much of Weber labour law doctrine (prohibiting lawsuits by unionized employees), though here for non-unionized workers:[1] This is an appeal from a decision of the Federal Court striking the appellant’s statement of claim. The appellant alleged various intentional torts and breaches of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the Charter) by his employer, the Canadian Security Intelligence Service (CSIS) and certain employees. The Federal Court (Ebadi v. Canada, 2022 FC 834 per Brown J.) struck the action, holding that it was barred by the combined operation of sections 236 and 208 of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 (FPSLRA). Together, these provisions bar any civil recourse for "“any dispute relating to… terms or conditions of employment”" which can be addressed through a grievance procedure.
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[4] Applying the "“plain and obvious”" test from R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45 (Federal Court decision at paras. 26-29), the Federal Court granted the respondents’ motion to strike the claim. After examining the allegations in the claim in light of the jurisprudence, the Federal Court held that section 236 of the FPSLRA barred all of the appellant’s claims.
[5] The Federal Court judge acknowledged that the bar in section 236 of the FPSLRA only applies to disputes that may be grieved under section 208 of the FPSLRA. However, the judge found that the appellant’s allegations relating to threats, harassment, and discrimination could be grieved under paragraph 208(1)(b) of the FPSLRA, noting that prior case law had applied this provision to a wide range of workplace-related disputes, including allegations of discrimination and harassment (Federal Court decision at paras. 38-41). Also, in the Federal Court’s view, the fact that the appellant requested Charter remedies (Federal Court decision at paras. 43-44) did not place the claims outside the scope of section 208. These conclusions were described as the "“complete answer to his submissions”" (Federal Court decision at para. 48).
[6] In reaching his decision the judge noted that the harassment allegations fell within the scope of the CSIS Safe, Healthy and Respectful Workplace Policy, as well as the corresponding CSIS policy dealing with the resolution of harassment complaints (collectively, the Harassment Policy). While article 5.19 of the Harassment Policy precluded a grievance in respect of a harassment investigators’ report, the judge noted that this only precluded grievances in respect of the conclusions of an investigator in a harassment claim; a complainant would still be able to grieve the manner in which the investigation was conducted, management’s decision to accept or reject the investigator’s report and management’s decision with respect to a remedy (Federal Court decision at para. 58).
[7] Finally, the Federal Court held that the circumstances of the case did not warrant the exercise of any residual discretion that the Court might retain in light of the statutory scheme. In this regard, the Court noted that the appellant had never filed a complaint under the Harassment Policy in the course of his 20-year career at CSIS nor had he engaged the CSIS grievance procedure (Federal Court decision at para. 47). The Federal Court also did not find the appellant’s evidence in support of the assertion that the harassment and grievance procedures at CSIS were "“futile”" or "“broken”" to be convincing (Federal Court decision at para. 61).
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The statutory scheme
[17] I begin with the central issue on this appeal—whether the judge erred in finding that the appellant could have grieved his allegations of intentional torts and Charter breaches under paragraph 208(1)(b) of the FPSLRA. Sections 208 and 236 are set forth in their entirety in the appendix at the end of these reasons. I have however extracted the two key provisions in issue in this appeal:"208(1)"" Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved "
"(a) by the interpretation or application, in respect of the employee, of "
"(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or "
"(ii) a provision of a collective agreement or an arbitral award; or "
"("b) as a result of any occurrence or matter affecting his or her terms and conditions of employment." "
208(1) Sous réserve des paragraphes (2) à (7), le fonctionnaire a le droit de présenter un grief individuel lorsqu’il s’estime lésé :
a) par l’interprétation ou l’application à son égard :
(i) soit de toute disposition d’une loi ou d’un règlement, ou de toute directive ou de tout autre document de l’employeur concernant les conditions d’emploi,
(ii) soit de toute disposition d’une convention collective ou d’une décision arbitrale;
b) par suite de tout fait portant atteinte à ses conditions d’emploi." "
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." "
236 (1) Le droit de recours du fonctionnaire par voie de grief relativement à tout différend lié à ses conditions d’emploi remplace ses droits d’action en justice relativement aux faits — actions ou omissions — à l’origine du différend.
(2) Le paragraphe (1) s’applique que le fonctionnaire se prévale ou non de son droit de présenter un grief et qu’il soit possible ou non de soumettre le grief à l’arbitrage." [18] It is instructive to begin with the decisions of the Supreme Court in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, 1995 CanLII 108 [Weber] and Vaughan v. Canada, 2005 SCC 11, [2005] 1 S.C.R. 146 [Vaughan]. These decisions provide critical guidance in considering the issues raised by this appeal.
[19] In Weber the employer sent a private investigator to the employee’s home to investigate the employee’s entitlement to the sick leave benefits he had been claiming. The investigator entered the employee’s home under false pretenses. The employee filed grievances against his employer and concurrently brought an action in the provincial court based on various torts and breaches of the Charter. The Supreme Court held that the employee’s action was barred by subsection 45(1) of Ontario’s Labour Relations Act, R.S.O. 1990, c. L.2, which provided that all collective agreements "“shall provide for the final and binding settlement by arbitration… of all differences between the parties arising from the interpretation, application, administration or alleged violation of the agreement”".
[20] The Court held that the arbitrator was to have exclusive jurisdiction over all disputes arising out of the collective agreement. The Court rejected that there could be overlapping jurisdiction between courts and labour arbitrators where issues extended to the common law, the Charter, or matters outside of the traditional subject matter of labour law. This approach would undercut not only the clear statutory language at issue, but the purpose of the exclusive arbitration regime that is "“at the heart of all Canadian labour statutes”", which provides for quick, economic resolution of claims (Weber at paras. 39-50).
[21] In determining whether a dispute arises out of a collective agreement, the Court held that decision-makers must look to the "“essential character”" of the dispute. This involves assessing the facts of the dispute. The place at which the dispute arose and the parties to the dispute may be relevant, but are not determinative (Weber at paras. 43 and 51-52).
[22] Importantly, for the purposes of the issues before us, the Supreme Court was clear that it is the facts that govern, and not the legal characterization that counsel give to those facts. This has implications for the appellant’s argument that intentional torts can never have a connection to the workplace, as it can never be within the terms and conditions of employment that an employee foregoes a right to sue for compensation for an intentional tort in the workplace. Weber teaches that the inquiry must remain focused on the facts that gave rise to the dispute.
[23] The Supreme Court also confirmed the ability of labour adjudicators to consider torts and Charter breaches, as well as to award Charter remedies (paras. 55-56 and 66). While arbitrators may not have the same expertise as courts, they are still subject to judicial review. If there is a remedy required that an arbitrator cannot grant, courts of inherent jurisdiction can take jurisdiction—though there must be a "“real deprivation of the ultimate remedy”" sought (Weber at para. 57).
[24] The dispute in Weber was, in fact, related to the employee’s collective agreement. The Court acknowledged that "“[i]solated from the collective agreement, the conduct complained of in this case might well be argued to fall outside the normal scope of employer-employee relations”" (Weber at para. 71). However, the collective agreement provided that the grievance procedure applied to "“[a]ny allegation that an employee has been subjected to unfair treatment or any dispute arising out of the content of this Agreement”" (Weber at para. 72).
[25] A decade after Weber came Vaughan. In Vaughan, the employee, a federal public servant, was denied early retirement benefits. The denial was grievable, but not arbitrable. The employee did not grieve the denial of benefits, but instead brought an action in the Federal Court based in negligence, alleging that his employer ought to have known that he was eligible for the benefits. The employee argued that Weber was distinguishable since there was no independent third-party adjudication available to him. (I add, parenthetically, that the appellant in this appeal also has no recourse to adjudication.)
[26] The Supreme Court held that the employee’s action was barred by what are now sections 208 and 209 of the FPSLRA. While these provisions did not explicitly oust the court’s jurisdiction, the comprehensive nature of the scheme and the rationale behind it signalled that courts should defer to grievance processes. The lack of third-party adjudication did not, in and of itself, allow a court to exercise its residual discretion to hear a claim. Courts exercise their residual discretion, for example, in circumstances where a whistle-blowing claim is brought or where the integrity of the grievance process or the effectiveness of available remedies is called into question. However, courts should generally decline to get involved in such disputes, except via judicial review (Vaughan at paras. 13, 16-17, 22, and 39).
[27] The Court, echoing Weber, noted that permitting parallel access to the courts would jeopardize the comprehensive scheme for labour disputes meant to provide specialized, expedient resolutions. The Court also cautioned litigants against "“dressing [] up”" grievable disputes as negligence actions, guidance which is particularly apposite to this appeal (Vaughan at paras. 37, 40, and 42).
[28] Following Vaughan, Parliament added section 236 to the FPSLRA, which provides that the court’s jurisdiction is ousted by grievance processes even where there is no third-party adjudication. The Ontario Court of Appeal in Bron v. Canada (Attorney General), 2010 ONCA 71, [2010] O.J. No. 340 [Bron] noted that this effectively patched the "“whistle-blower exception”" coming out of Vaughan, leaving courts with residual discretion to hear grievable claims only where the grievance process cannot provide an appropriate remedy (Bron at paras. 27-30).
[29] Since Weber and Vaughan, conflicts related to the "“terms and conditions of employment”" referred to in paragraph 208(1)(b) of the FPSLRA have been considered to encompass allegations of defamation, discrimination, harassment, malice and bad faith, Charter breaches, and intentional torts, including intentional infliction of mental suffering (see, for example: Nosistel v. Canada (Attorney General), 2018 FC 618, [2018] CarswellNat 10225 (WL Can) at para. 66; Price v. Canada (Attorney General), 2016 FC 649, 268 A.C.W.S. (3d) 866 at paras. 26-31; Green v. Canada (Border Services Agency), 2018 FC 414, 291 A.C.W.S. (3d) 402 at para. 16; Bron at paras. 14-15; Thompson v. Kolotinsky, 2023 ONSC 1588 (Div. Ct.), 2023 A.C.W.S. 2518 at paras. 37-39).
[30] In Hudson v. Canada, 2022 FC 694, 2022 C.L.L.C. 220-053 [Hudson] the Federal Court held that allegations of sexual assault in the workplace were grievable. The Court noted that given the breadth of section 208, the plaintiffs could not escape the operation of section 236 of the FPSLRA simply by alleging that their claims were not "“ordinary workplace disputes”". The Federal Court pointed to Jane Doe v. Canada (Attorney General), 2018 FCA 183, 428 D.L.R. (4th) 374, in which this Court found that an adjudicating board had unreasonably denied compensation for pain and suffering to an employee who had been subject to a sexual assault by her co-worker—demonstrating that sexual assault claims have been, at least implicitly, recognized as grievable (Hudson at paras. 102-103).
[31] Two cases are helpful in fleshing out the contours of the required nexus to the workplace/employment.
[32] In Martell v. AG of Canada & Ors., 2016 PECA 8, 376 Nfld. & P.E.I.R. 91 [Martell], the claimant brought an action against her employer alleging harassment and a hostile work environment, as well as harassment by individual defendants that occurred after her resignation. The Court held that the claims covering occurrences during her employment were grievable, as they arose in the workplace, during the course of her employment and by perpetrators in the performance of their duties (Martell at paras. 11-13). The claims that arose post-resignation, though, were not grievable, as "“[c]laims of abuse, threats, and harassment which occurred long after the employment relationship ended cannot be considered matters in which the essential character of the dispute is rooted in the appellant’s term of employment”" (Martell at para. 37).
[33] Similarly, in Joseph v. Canada School of Public Service et al., 2022 ONSC 6734, 2022 CarswellOnt 17461 [Joseph], the claimant was terminated following a security investigation at her workplace, during which her employer involved the police. The claimant alleged the torts of breach of privacy, negligence, and defamation. The Court held that the portions of the claim dealing with the employer’s involving of the police and the consequent alleged breaches of privacy were not grievable, since their essential character did not relate to the employee’s collective agreement, but rather to "“potential resort to the criminal process”" (Joseph at para. 29). The balance of the claims (negligence and defamation, in association with the suspensions and investigation) were grievable, as they related to the managerial duties of discipline (Joseph at para. 31).
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