Date: 20011218
Docket: T-854-96
Neutral Citation: 2001 FCT 1406
BETWEEN:
EMILIE MARINAKI
Plaintiff
- and -
HER MAJESTY THE QUEEN
Defendant
REASONS FOR ORDER
ARONOVITCH, P.
Overview
[1] The plaintiff, Emilie Marinaki ("Marinaki"), has commenced an action for damages, in tort, against Her Majesty the Queen, as represented by Marinaki's employer, the Department of Human Resources Development.
[2] The defendant, for its part, has moved to strike out the action for want of a cause of action on the basis that the Court has no jurisdiction to entertain the claim.
[3] For the purposes of a motion to strike for want of a cause of action, the plaintiff's assertions of fact are to be taken as proved. The party moving to strike bears a heavy onus. In order to succeed, the moving party must satisfy the Court that it is plain and obvious that the claim is without any chance of success.
[4] For the following reasons, I conclude that in the present case, the Crown has met that burden and that this action ought not to go forward.
The Plaintiff's Claim
[5] I begin with a summary of the facts as alleged in the plaintiff's claim.
[6] The plaintiff has been employed by the defendant at International Operations Division of the Department of Human Resources Development, since June 1981. At various times she has worked under the direct or indirect supervision of André Thivierge ("Thivierge"), Dominic Scarizzi ("Scarizzi"), Ed Tamagno ("Tamagno") and Steve Shipley ("Shipley").
[7] The plaintiff claims that commencing in the late 1980's, Scarizzi, a co-worker of the plaintiff at the time, made demeaning and inappropriate sexual comments to the plaintiff. In 1989, the plaintiff left International Operations to go to the GST section of Revenue Canada under the Departmental Assignment Program. She was scheduled to return to International Operations in 1992. However, in April 1992, the plaintiff's father died and she went on authorized sick leave from April to August 1992.
[8] Before Marinaki returned to International Operations in August 1992, the defendant was told in writing by her physician that the plaintiff continued to have emotional difficulties and that she remained emotionally fragile.
[9] When the plaintiff returned to International Operations, Scarizzi was acting in a managerial position, supervising Marinaki. According to the plaintiff, Scarizzi made demeaning sexist and racist comments directed at her, used foul language and verbally abused and intimidated her. The plaintiff also claims Scarizzi selectively enforced the medical leave policy, failed to accommodate the plaintiff's request to attend medical appointments and disproportionately assigned the most undesirable tasks to the plaintiff. The plaintiff asserts that Scarizzi documented the plaintiff's everyday actions and abused his authority as the plaintiff's acting supervisor.
[10] The Director of International Operations during the relevant period was Thivierge. The plaintiff claims that Thivierge failed to prevent the harassment referred to above, despite having been told of it, and disregarded the written notice prepared by the plaintiff's physician. Further, Thivierge refused to provide the plaintiff with employment references, ignored the plaintiff's request to be transferred out of the unit due to medical reasons, and harassed the plaintiff using foul language, intimidation and verbal abuse.
[11] The Acting Director of Human Resources during the relevant period was Shipley. Having been told of the harassment suffered by the plaintiff, Shipley is said to have failed to protect the plaintiff in that he did not monitor, follow-up or take steps to prevent the personal harassment suffered by her.
[12] On August 23, 1993, the plaintiff filed a harassment complaint. Marinaki claims that during the investigation of the complaint, she was placed into a series of meaningless and unsatisfactory "make-work" positions. Further, says Marinaki, she was not given any details of the investigation and the entire process was unduly delayed. The plaintiff also says that the defendant failed to address the recommendations of the internal investigation.
[13] Marinaki was informed that she was to return to International Operations in January 1996. She went on sick leave shortly thereafter.
[14] On February 1, 1996, the plaintiff's family physician advised the Director General of Internal Benefits & Foreign Affairs, Tamagno, that the plaintiff could not return to International Operations because the workplace caused her intense stress. On February 8, 1996, the plaintiff's counsel also wrote a letter to Tamagno to reiterate the point.
[15] According to the plaintiff, Tamagno nonetheless decided to return the plaintiff to International Operations which she did on February 19, 1996. Two days later, she suffered a panic attack and left the workplace in an ambulance. The plaintiff has not worked since that time.
[16] Marinaki has been on long-term disability since 1996, suffering from acute depression and anxiety. She claims that in the interim, the defendant failed to process the plaintiff's sick leave benefits and disability benefits in a timely manner.
[17] Marinaki alleges that it was reasonably foreseeable that she would suffer fear, mental distress and nervous shock resulting from the defendant's conduct. She is seeking general damages in the amount of $250,000.00 for intentional infliction of nervous shock and harassment, special damages for loss of income, loss of benefits, loss of pension, loss of raises and loss of promotion opportunities. She is also seeking punitive damages in the amount of $100,000.00.
Affidavit evidence
[18] The defendant seeks an Order to strike out the plaintiff's claim pursuant to Rule 221(1)(a) and (f) of the Federal Court Rules, 1998; first, for lack of a reasonable cause of action in that the plaintiff's cause of action is beyond the jurisdiction of this Court; second, on the ground that the action is an abuse of process. Under the later ground, the defendant argues that the plaintiff is seeking to re-litigate issues which have already been determined and are therefore, res judicata as between the parties.
[19] The first contentious issue is as to whether affidavit evidence may be adduced in the context of a motion to strike for lack of a cause of action.
[20] In this connection, I agree with the defendant that the inadmissibility of evidence on a motion to strike a pleading pursuant to Rule 221(1)(a) does not apply when the moving party contests the jurisdiction of the Court. Nor is such evidence precluded where it is sought to strike a claim as constituting an abuse of process. The affidavit of Shipley is therefore admissible, as are the following facts that go to the fundamental issue of the recourse available to Marinaki, and the extent to which she has exercised her rights to impugn the alleged conduct of her employer.
[21] First, the harassment complaint that was filed by the plaintiff in August 1993, culminated in an internal report which dismissed the complaint against Scarizzi and Thivierge. The report did find however, that Thivierge had not adequately followed-up on the use of abusive language by Scarizzi.
[22] Some weeks after her complaint of August 23, 1993, Marinaki also filed a grievance wherein she alleged discrimination, harassment, intimidation and abuse of authority by her supervisors. This grievance was held in abeyance at Marinaki's request pending the internal investigation and was reactivated in September 1995, following issuance of the internal report. The grievance was ultimately denied in January 1996, at the final level, by Monique Plante, the Assistant Deputy Minister of the Human Resources Branch. The grievance having been denied, the plaintiff, we recall, was subsequently informed that she was to return to work at International Operations.
[23] In March 29, 1996, roughly a month after having left work, Marinaki filed a complaint with the Canadian Human Rights Commission ("CHRC") and subsequently commenced this action on April 15, 1996.
[24] The plaintiff's complaint to the CHRC alleged discrimination by the employer based on sex, national and ethnic origin by failing to provide her with a harassment free workplace in respect of the same conduct which Marinaki grieved, and now constitutes the basis of this action. The Canadian Human Rights Tribunal conducted an inquiry and in June 2000, dismissed the complaint, while noting shortcomings in the employer's conduct and its treatment of Marinaki in the workplace.
Analysis
[25] The essence of the Crown's jurisdictional argument is that the dispute between Marinaki and her employer are governed by collective agreement and the grievance provisions of the Public Service Staff Relations Act R.S.C. 1985, c. P-35 ("PSSRA" ), culminating in judicial review in this Court. These are said to be exhaustive of the recourse available to Marinaki in the circumstances such as to preclude her action in this Court.
[26] The Court is said to lack jurisdiction to entertain Marinaki's action by reason of section 17(1) of the Federal Court Act R.S. 1985, c. F-7 and by the application of the principle of "exclusive jurisdiction" as enunciated by the Supreme Court in Weber v. Ontario Hydro ("Weber") [1995] 2 S.C.R. 929; St. Anne Nackawic Pulp & Paper Co. v. CPU ("St. Anne Nackawic") [1986] 1 S.C.R. 704.
[27] The application of this principle precludes actions in the Courts where a dispute between parties is governed by an applicable collective agreement. In those circumstances, the claimant's sole recourse is said to lie in the grievance and arbitration regime provided for in the agreement. In such cases, the Courts have declined jurisdiction out of deference for collective bargaining regimes and concern for the undue proliferation and duplication of litigation. The principle is succinctly stated at page 957 of Weber, supra:
"This approach does not preclude all actions in the courts between the employer and employee, only disputes which expressly or inferentially arise out of the collective agreement are foreclosed to the courts."
[28] This approach has been generally followed to exclude civil suits, by unionized federal civil servants, in the context of the PSSRA. (see, Johnson-Paquette v. Canada ("Johnson-Paquette"), (1998) 159 F.T.R. 42 , aff'd [2000] F.C.J. 441 (C.A.); Jadwani v. Attorney General of Canada et al ("Jadwani") (2000), 47 O.R.(3d) 276, aff'd (2001), 52 O.R. (3d) 660 (C.A.), leave to appeal to S.C.C. refused, [2001] S.C.C.A. No.200; Vaughan v. Canada ("Vaughan") (2000) 182 F.T.R. 199, aff'd [2001] F.C.J. No 1734 (T.D.) and Cahill v. Canada ("Cahill") 2001 FCT 1083 (T.D.).
[29] The plaintiff argues and quite appropriately, that a collective agreement does not take away a plaintiff's right to sue for a tort which does not involve the infringement of the plaintiff's right under the collective agreement, or does not arise out of the collective agreement. (see, Banerd v. Canada (Deputy Minister of National Revenue) ("Banerd") [1996] F.C.J. No. 260 (C.A.), Watt v. Canada (Transport) ("Watt"), [1997] F.C.J. No 780 (T.D.), aff'd [1998] F.C.J. No.49 (C.A.), leave to appeal to S.C.C refused, [1998] S.C.C.A. No 188; Pleau v. Canada ("Pleau") (1999) 182 D.L.R. (4th.) 373 (N.S.C.A.), leave to appeal to S.C.C. refused, [2000] S.C.C.A.
[30] This case, on its facts, says the plaintiff, is not proper for the application of the exclusive jurisdiction model, as the negligence and intentional infliction of mental distress sought to be compensated, are not dealt with, expressly or by implication, in the collective agreement. More to the point, the plaintiff argues that the grievance avenues open to the plaintiff are not susceptible of providing meaningful recourse to her and would necessarily result in a "real deprivation of ultimate remedy", which, the Supreme Court exhorts, must be avoided (Weber, supra; St. Anne Nackawic, supra).
[31] In applying the principles arising out of the jurisprudence and having regard to the totality of the facts, I must first determine the "essential character" of the dispute and the extent to which it may be said to arise either explicitly or by implication from the application of the collective agreement. The jurisprudence cautions that in this regard, the focus of the inquiry must be as to the true nature of the dispute, and not turn on the plaintiff's legal characterization of the employer's conduct or the terms in which the action is framed (in this case by reference to the negligent infliction of mental distress).
[32] There is no doubt that Marinaki's grievances are workplace disputes arising out of the conduct of her colleagues and supervisors. Marinaki is party to and bound by a collective agreement. Section M-38.02 of the agreement, allows an aggrieved employee who has been "treated injustly" and considers himself or herself aggrieved by "any action or lack of action" of the employer to grieve the impugned conduct.
[33] The collective agreement by which Ms. Marinaki is bound, along with sections 91 and 92 of the PSSRA, provide a grievance process which culminates in a final level determination. In some instances, grievances are dealt with up to the final level by departmental grievance officers, in other cases, they proceed to third party adjudication. In either case, the ultimate decision is final, subject only to judicial review in this Court.
[34] In the case at bar, a number of acts or omissions are alleged on the part of the employer, that in themselves, are likely grievable pursuant to the collective agreement. Included in this category for example, are the alleged failure of the employer to authorize transfers or to accommodate the plaintiff's requirement to attend at doctor's appointments. That said, the essence of the dispute in this claim is the employer's alleged intimidation and harassment of the plaintiff, as well as the failure of the defendant to prevent the harassment, and to protect Marinaki in the workplace.
[35] In my view, the broad language of section M-38.02 of the Master agreement is such that the impugned conduct of the employer, principally harassment and abuse of authority, is encompassed in the wide ambit of the provision, may be grieved thereunder and accordingly, may be said to arise from the collective agreement. Indeed, the plaintiff has grieved the impugned conduct. In so doing, she has availed herself of the grievance process provided for under the collective agreement and pursued the grievance to its final level determination. Regrettably from her perspective, the grievance was denied.
[36] The same finding regarding the scope and application of the collective agreement was made in Johnson-Paquette, supra, and more recently in Cahill, supra, in respect of identically worded provisions of public service collective agreements, in the context of alleged harassment, intimidation, abuse of power and negligent infliction of mental shock by the employer (see also Jadwani, supra).
[37] Indeed, Johnson-Paquette, supra is very much on point. In that case, the plaintiff, in similar circumstances, had grieved her employers' negligence in the failure of her senior managers to deal with her complaint of sexual assault. Having been denied at the final level of the grievance process under the PSSRA, she commenced an action for damages in tort against the Crown. In precluding the plaintiff's action in this Court, Tremblay-Lamer J. held at page 17 of her reasons:
"In the present case, the plaintiff has not exhausted the grievance procedure provided under the PSSRA and the resulting judicial review. She is attempting to seek judicial review of the grievance officer's decision by way of an action for damages in tort - this she cannot do."
[38] Here, the plaintiff, having availed herself of the grievance process and pursued the matter to the final level, did not seek judicial review of the decision and instead, brought suit for damages in respect of essentially the same conduct she had complained of, and grieved, pursuant to her collective agreement.
[39] I now turn to consider the plaintiff's argument that Marinaki is, of necessity and inevitably deprived of a meaningful remedy under the PSSRA. Marinaki says that even if she had been successful in her grievance or at judicial review, she could only have hoped for the removal of the harasser from the workplace. It is argued on behalf of Marinaki, that this would not have been an adequate remedy for the plaintiff who is psychologically disabled, and without compensation for the injuries she has allegedly sustained resulting from the conduct of her employer.
[40] The Court is therefore urged to retain jurisdiction in that Marinaki would otherwise be deprived of her right of discovery and the remedy of damages. Indeed, while the plaintiff's principal argument is that the process does not allow for Marinaki's grievance to be taken to third party adjudication, the plaintiff points out that even the Public Service Staff Relations Board, as third party adjudicator under the PSSRA, does not have the jurisdiction to grant compensatory and punitive damages. Here the plaintiff relies on Pleau, supra, and a decision of this Court in Edwards v. Canada ("Edwards") (2000) 181 F.T.R. 219 (appeal withdrawn).
[41] Pleau, supra, may be distinguished in its facts. In that case, the Nova Scotia Court of Appeal maintained jurisdiction to entertain a civil action for damages in tort, brought by a federal civil servant, subject to a collective agreement similar to the one applicable in the case at bar. The plaintiff's claims, in Pleau, included conspiracy to cause injury, intentional and malicious conduct, defamation, breach of fiduciary duty, and negligent exercise of authority. The Court found that the dispute, while arising out of the employment relationship, did not arise under the collective agreement as the agreement did not address the conduct complained of. The Court also concluded that the dispute at issue was "outside the scope of the adjudication process" and therefore denied the plaintiff a meaningful remedy.
[42] Edwards, supra, presents a somewhat different situation. In that case, this Court declined to strike the claim of a federal civil servant bound by collective agreement, the terms of which coincide with those at issue in the present case. The Court concluded in that case, that the alleged negligent conduct of the employer arose out of the collective agreement and could be grieved under section 91, administrative grievance process of the PSSRA. However, as the dispute was not one that could be submitted to third party adjudication where damages may be awarded, the Court found that Weber, supra, did not apply to bar the action for damages as the plaintiff would otherwise be denied a meaningful remedy.
[43] In my view, Edwards, to the extent that it focuses on the lack of third party adjudication, has been overtaken by the subsequent decision of the Federal Court of Appeal in Johnson-Paquette, supra. That very argument was made before the Court of Appeal, namely, that the plaintiff, in that case, was deprived of a meaningful remedy under the PSSRA, because her grievances could not be submitted to third party adjudication. Noël J.A., writing for the full Court, rejected the argument as follows at page 2 of the judgment:
"The appellant sought to distinguish Weber on the basis that in the present case, the grievance process did not entitle her to proceed to adjudication whereas this step was available under the collective agreement which was in issue in Weber. This she says is a material difference which authorizes this Court to disregard the rule set out in Weber.
I first note that is inaccurate to say that third party adjudication was not available to the appellant in this instance. She had access to adjudication according to the dispute resolution process in place, subject to meeting the conditions prescribed in subsection 92(1) of the Act and satisfying her union that the matter should proceed to adjudication pursuant to subsection 92(2).
More importantly however, this grievance procedure is the dispute resolution process which was adopted by the parties to the collective agreement to resolve employment related disputes of the nature raised by the appellant in her grievance. The appellant adhered to the collective agreement and availed herself of that process. ..."
[44] Noël J.A. went on to reiterate what the jurisprudence of this Court overwhelmingly maintains, namely that the PSSRA is intended to be a full code for the resolution of labour disputes in the federal public service.
"[10.]...Where, as is the case for the PSSRA, Parliament has, through legislation, adopted what is obviously intended as a full code for the resolution of labour disputes in a given sector of activity and has made the outcome of the legislated processes final and binding on those concerned, it would offend the legislative scheme to permit recourse to ordinary courts which have not been assigned with these tasks. In order to give effect to such schemes, Parliament must be taken as having excluded recourse to the ordinary courts." [emphasis mine]
the learned judge concluded, as follows, as to the jurisdiction of this Court;
"[11] Section 17(1) of the Federal Court Act provides the trial division of this Court with jurisdiction in all cases where relief is claimed against the Crown "except as otherwise provided in this Act or any other Act". In my view, the motion Judge came to the correct conclusion in this instance when she held that the PSSRA provides otherwise."
Conclusion
[45] As with Johnson-Paquette, which I cannot distinguish on its facts, I find it plain and obvious that this action cannot succeed and decline to exercise my discretion to allow this action to go forward.
[46] Having so found, I need not consider the defendant's argument of res judicata.
[47] A separate order shall issue to grant the motion and dispose of costs.
"Roza Aronovitch"
Prothonotary