Date: 20010517
Docket: T-1481-99
Neutral Citation: 2001 FCT 503
BETWEEN:
LAWRENCE MARTIN DEWOLFE and
JOHANN PATRICIA DEWOLFE
Plaintiffs
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA,
as represented by the SOLICITOR GENERAL OF CANADA
Defendant
[1] On August 19, 1999, the plaintiffs, Lawrence Martin DeWolfe and his wife Johann Patricia DeWolfe, filed a Statement of Claim against the defendant, claiming damages and costs. The plaintiffs are suing the defendant for breach of contract resulting from the defendant's refusal to abide by verbal and written agreements allegedly entered into between the plaintiffs and Correctional Service Canada in respect of the plaintiff Lawrence DeWolfe's deployment transfer from Drumheller, Alberta to Gravenhurst, Ontario, to work in a new facility of Correctional Service Canada.
[2] The dispute between the parties concerns a portion of the relocation package received by the plaintiffs from Correctional Service Canada, namely the guaranteed home sale plan (the "GSHP").
[3] The defendant takes the position that this Court does not have jurisdiction in respect of the plaintiffs' action and, thus, seeks an order to that effect.
[4] The issue herein is whether the plaintiffs ought to proceed by way of the grievance procedure prescribed by the collective agremeent or by the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the "PSSRA"). For the reasons that follow, I am of the view that the plaintiff Lawrence Martin DeWolfe must follow the grievance procedure prescribed by the PSSRA and, consequently, this Court does not have jurisdiction in respect of his action against the defendant.
[5] The plaintiff Lawrence Martin DeWolfe is an employee of Correctional Service Canada. A dispute has arisen with his employer regarding his relocation from Drumheller, Alberta to Gravenhurst, Ontario, and more particularly with respect to the GHSP. The objectives of this plan, as explained in the relevant documents, is as follows:
1. OBJECTIVE
1.1 The purpose of the GHSP is to provide departments with increased flexibility to relocate employees to new work locations in response to operational requirements and program objectives without such moves being unduly delayed because of an employee's inability to sell his/her home at the former place of residence.
1.2 The GHSP is being established as a pilot with the option to extend dependent upon the GHSP experience and cost along with further program review considerations.
1.3 Although the Treasury Board Secretariat is the Project Authority, the contract is intended to include relocation services for employees of other departments and agencies. Each department and agency will be responsible for managing and funding the GHSP applicable to its operations within the terms and conditions outlined in the contract. A departmental relocation co-ordinator will be identified in each participating department.
1.4 the objective of the contract is to obtain relocation services that provide selected transferring employees with marketing assistance and guaranteed home sale and provide the Crown with direct billing of allowable closing contractor costs.
[6] The relevant documents make it abundantly clear that an employee has the option of selecting the GHSP or the normal provisions of the Relocation Directive which exclude the GHSP.
[7] Suffice it to say, for the present purposes, that the employer has refused to purchase the plaintiffs' home in Drumheller because their house is "unique". According to the employer, the house falls outside the provisions of the GHSP.
[8] On October 11, 1998, Mr. DeWolfe filed a Grievance Presentation Form where he indicates that the "Relocation Directive has been violated". On November 6, 1998, following a management decision on his grievance, Mr. DeWolfe was advised that his grievance was being referred to the regional level.
[9] On May 17, 1999, Ms. Nicole Cusson, Departmental Liaison Officer of Correctional Service Canada, denied Mr. DeWolfe's grievance in the following terms:
The circumstances of your grievance were reviewed. Your representative from the National Office of the USGE provided representation on your behalf.
Although you were eventually re-deployed to a Correctional Officer position at Drumheller institution, (corrective action A refers) this is not a matter, which can be dealt with through the National Joint Council grievance process. There is another avenue of redress available to address any problems related to this issue. [Emphasis is mine]
I have carefully considered the information concerning your entitlements under the Relocation Directive. I am satisfied that, in regards to your relocation from Drumheller to Gravenhurst, you were given all entitlements to which you were eligible under the above-mentioned Directive.
Your grievance is therefore denied.
[10] As I have already indicated, the plaintiffs commenced their legal proceedings in this Court on August 19, 1999.
[11] The defendant makes two submissions in regard to the issue of jurisdiction. Firstly, the defendant submits that the plaintiffs did not take the grievance to the final level of the grievance procedure, the Executive Committee, as provided for under the National Joint Council By-Law 14.1.5(c). Secondly, the defendant submits that, in any event, the plaintiffs' grievance falls within the ambit of the PSSRA.
[12] As I indicated to counsel during the hearing, I am satisfied that Mr. DeWolfe's grievance concerning the GHSP does not fall within the collective bargaining agreement and, thus, the grievance procedure prescribed at section 14.1 of the National Joint Council By-Laws is not available to Mr. DeWolfe. Section 14.1.5 of the By-Laws reads as follows:
14..1.5 Such a grievance shall be processed by recourse to the following steps:
(a) first level - representative of the employer authorized to deal with grievance at the first level;
(b) second level - departmental liaison officer (DLO);
(c) final level - executive committee.
[13] In this instance, Mr. DeWolfe's grievance was refused at the first and second levels. Nicole Cusson, the Departmental Liaison Officer who dismissed Mr. DeWolfe's grievance, clearly indicated in her letter of refusal that Mr. DeWolfe's grievance was not a matter which could be dealt with through the National Joint Council grievance process. That is also the view taken by Mr. DeWolfe's union representative Michel Charbonneau, who advised Mr. DeWolfe, as follows:
As you can see, you will not find the Guaranteed home Sale Program or Plan in the list, so the plan is not part and parcel of the NJC collective agreements.
In my view, the union representative's view that the GHSP does not fall under the collective agreement is correct. I am of the view, therefore, that the grievance procedure available through the National Joint Council collective agreement is not available to Mr. DeWolfe.
[14] However, I am of the view that the grievance procedure prescribed by the PSSRA was and is available to Mr. DeWolfe. Sub-sections 91(1) and (2) of the PSSRA provide as follows:
| 91. (1) Where an employee feels aggrieved (a) by the interpretation or application, in respect of the employee, of (i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing 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 the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii), in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act. (2) An employee is not entitled to present any grievance relating to the interpretation or application, in respect of the employee, of a provision of a collective agreement or an arbitral award unless the employee has the approval of and is represented by the bargaining agent for the bargaining unit to which the collective agreement or arbitral award applies, or any grievance relating to any action taken pursuant to an instruction, direction or regulation given or made as described in section 113. |
91. (1) Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d'une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu'il s'estime lésé_: a) par l'interprétation ou l'application à son égard_: (i) soit d'une disposition législative, d'un règlement -- administratif ou autre --, d'une instruction ou d'un autre acte pris par l'employeur concernant les conditions d'emploi, (ii) soit d'une disposition d'une convention collective ou d'une décision arbitrale; b) par suite de tout fait autre que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses conditions d'emploi.
(2) Le fonctionnaire n'est pas admis à présenter de grief portant sur une mesure prise en vertu d'une directive, d'une instruction ou d'un règlement conforme à l'article 113. Par ailleurs, il ne peut déposer de grief touchant à l'interprétation ou à l'application à son égard d'une disposition d'une convention collective ou d'une décision arbitrale qu'à condition d'avoir obtenu l'approbation de l'agent négociateur de l'unité de négociation à laquelle s'applique la convention collective ou la décision arbitrale et d'être représenté par cet agent. |
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[15] Although Mr. DeWolfe's dispute with his employer does not fall within the ambit of paragraph 91(1)(a), I am of the view that it clearly falls within the ambit of paragraph 91(1)(b). Mr. DeWolfe's grievance in respect of the GHSP is, in my view, an occurrence or a matter affecting the terms and conditions of his employment, other than a provision prescribed in subparagraphs (a)(i) or (ii), in respect of which there is no administrative procedure for redress provided in or under an Act of Parliament.
[16] As I indicated to counsel during the hearing, the limitation on the employee's right to grieve through the PSSRA grievance procedure, prescribed by subsection 91(2), does not, in my view, apply to matters falling under paragraph 91(1)(b).
[17] I am, therefore, of the view that Mr. DeWolfe ought to have exhausted the remedies available to him before coming to this Court for redress. In Gregoire Panagopoulos v. Her Majesty The Queen, [1990] F.C.J. No. 234, March 15, 1990 (F.C.T.D.), my colleague Dubé J. stated the following at paragraph 20 of his Reasons:
The Public Service Staff Relations Act is a complete code governing the relationship between Her Majesty and her employees. Under the provisions cited above, the grievance procedure is the only remedy open to the plaintiff. [...]
[18] In Johnson-Paquette v. Canada, [1998] No. 1741, November 26, 1998 (F.C.T.D.), the plaintiff, an employee of the Federal Crown, commenced an action in this Court against the Crown for damages resulting from physical assault, intimidation and intentional infliction of nervous shock caused by a co-worker. The plaintiff alleged that senior managers of her department, the Canadian Student Loans Services, had been negligent in handling her complaints and in protecting her from harm.
[19] The Crown, as here, brought a motion seeking the dismissal of the lawsuit on the ground that this Court lacked jurisdiction to hear the plaintiff's action. The Crown submitted that the dispute had arisen under the collective agreement, which referred all disputes to the resolution process prescribed in the PSSRA.
[20] Tremblay-Lamer J. held that since the issue between the plaintiff and her co-worker did not fall within the collective agreement, that issue had to be resolved by way of the grievance procedure prescribed in section 91 of the PSSRA. With respect to the issue between the plaintiff and her employer, Tremblay-Lamer J. held that that issue fell within the collective agreement and, hence, had to be resolved pursuant to the terms and conditions thereof. At paragraphs 14, 15, 16 and 17 of her Reasons, the learned judge explained the matter as follows:
The actions of the co-worker are not covered by the collective agreement, which deals with employer-employee relations. As a result, an employee proceeds directly to the PSSRA and to the grievance procedure contained in section 91 and following, as discussed below.
On the other hand, the alleged inaction of the Employer, with respect to the harassment, is specifically dealt with by the collective agreement. However, the result is the same. Section M-38.02 of the collective agreement provides that such grievances are also to be presented under the PSSRA:
M-38.02 Subject to and as provided in Section 90 (now 91) of the Public Service staff Relations Act, an employee who feels that he or she has been treated unjustly or considers himself or herself aggrieved by any action or lack of action by the employer in matters other than those arising from the classification process is entitled to present a grievance in the manner prescribed in clause M-38.05 except that,
(a) where there is another administrative procedure provided by or under any Act of Parliament to deal with the employee's specific complaints, such procedure must be followed, and
(b) where the grievance relates to the interpretation or application of this Collective Agreement, the relevant Group Specifc [sic] Agreement or an Arbitral Award, the employee is not entitled to present the grievance unless he or she has the approval of and is represented by the Alliance.
The broad language of this section covers "any action or lack of action by the employer" and will certainly apply in the plaintiff's situation.
The PSSRA provides a grievance procedure under ss. 91 and following. Section 91(1(b) reads as follows:
91. (1) Where any employee feels aggrieved ...
(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),
in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act.
The facts of this case are encompassed by the broad language of this statute. The plaintiff is an "employee" as defined under s. 2 of the Act and her claims are clearly covered by the words "any occurrence or matter affecting the terms or conditions of employment of the employee".
[21] Consequently, Mr. DeWolfe's grievance must be presented up to and including the final level of the PSSRA grievance process. As a result, I agree with the position taken by the defendant that this Court does not have jurisdiction in the present matter. The defendant's motion must, therefore, be allowed. Mr. DeWolfe's action shall be dismissed.
[22] With respect to the other plaintiff, Mrs. DeWolfe, she is not an employee of the Crown and, therefore, she may continue her proceedings. The defendant's motion with respect to Mrs. DeWolfe's action shall, therefore, be dismissed.
[23] There shall be no costs on this motion.
Marc Nadon
Judge
O T T A W A, Ontario
May 17, 2001.