[Indexed as: Patriarcki v. Canada (Attorney General)]
Superior Court of Justice, R. Smith J.
January 18, 2011
Employment — Jurisdiction — Plaintiff public servant invited by her department director to submit application for “secret” level security clearance and instructed to give application to director’s assistant for forwarding to relevant authorities — Plaintiff discovering after her contract had ended that assistant had lost or failed to forward application — Plaintiff unable to accept offer of another government job which was conditional on her having security clearance — Plaintiff suing government on basis that assistance was negligent and government was vicariously liable for that negligence — Essential character of dispute not falling within scope of grievance procedure under s. 91 of Public Service Staff Relations Act — Superior court having jurisdiction to hear action — Public Service Staff Relations Act, R.S.C. 1985, c. P-35, s. 91.
While employed by the Government of Canada on a three-year contract, the plaintiff was invited by the director of her department to submit an application for a “secret” level security clearance. As instructed, she gave her application to the director’s assistant M to forward to the relevant authorities. After her contract ended, the plaintiff discovered that M had lost or failed to forward the application. As a result, she was unable to accept an offer of another government job that was conditional on her having a “secret” level security clearance. The plaintiff brought an action against the government, alleging that M was negligent and that the government was vicariously liable for that negligence. The Attorney General brought a motion for summary judgment dismissing the action, arguing that the plaintiff was required to pursue a remedy under the Public Service Staff Relations Act (“PSSRA”)and that the court should not exercise its residual jurisdiction to hear the action.
Held, the motion should be dismissed.
In its essential character, the plaintiff’s claim did not fall within the scope of the grievance procedure under s. 91 of the PSSRA. It was not a dispute with her employer over a matter which affected the terms and conditions of her employment contract, which ended before her discovery of M’s alleged negligence. Rather, it was a claim in negligence and negligent misrepresentation against a fellow employee, for which the government was vicariously liable. The ultimate consequences to the plaintiff of M’s alleged negligence and negligent misrepresentation were serious. If the claim could fairly be characterized as one arising from an act or occurrence affecting the terms and conditions of the plaintiff’s employment, then Parliament did not intend to oust the jurisdiction of the courts in claims of that nature. The purpose and object of the PSSRA was not to provide a method to compensate employees who suffer damages due to the negligent actions of a co-worker or the employer.
Adams v. Cusack, [2006] N.S.J. No. 25, 2006 NSCA 9, 264 D.L.R. (4th) 692, 242 N.S.R. (2d) 66, 47 C.C.E.L. (3d) 48, [2006] CLLC para. 220-017, 22 C.P.C. (6th) 152, 145 A.C.W.S. (3d) 437, 2006 CarswellNS 27, 147 L.A.C. (4th) 225; Vaughan v. Canada, [2005] 1 S.C.R. 146, [2005] S.C.J. No. 12, 2005 SCC 11, 250 D.L.R. (4th) 385, 331 N.R. 64, J.E. 2005-597, 41 C.C.E.L. (3d) 159, [2005] CLLC para. 220-027, 137 A.C.W.S. (3d) 942, EYB 2005-86470, 2005 CarswellNat 675, 138 L.A.C. (4th) 1; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, [1995] S.C.J. No. 59, 125 D.L.R. (4th) 583, 183 N.R. 241, J.E. 95-1482, 82 O.A.C. 321, 30 Admin. L.R. (2d) 1, 12 C.C.E.L. (2d) 1, 24 C.C.L.T. (2d) 217, 95 CLLC para. 210-027, 30 C.R.R. (2d) 1, 1995 CanLII 108, 56 A.C.W.S. (3d) 94, apld
Other cases referred to
Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, 2002 SCC 42, 212 D.L.R. (4th) 1, 287 N.R. 248, [2002] 5 W.W.R. 1, J.E. 2002-775, 166 B.C.A.C. 1, 100 B.C.L.R. (3d) 1, 18 C.P.R. (4th) 289, 93 C.R.R. (2d) 189, 113 A.C.W.S. (3d) 52, 2002 CarswellBC 851, REJB 2002-30904; Guenette v. Canada (Attorney General) (2002), 60 O.R. (3d) 601, [2002] O.J. No. 3062, 216 D.L.R. (4th) 410, 162 O.A.C. 371, 19 C.C.E.L. (3d) 36, [2002] CLLC para. 220-038, 115 A.C.W.S. (3d) 797 (C.A.); Pleau v. Canada (Attorney General), [1999] N.S.J. No. 448, 1999 NSCA 159, 182 D.L.R. (4th) 373, 181 N.S.R. (2d) 356, 6 C.C.E.L. (3d) 215, 40 C.P.C. (4th) 1, 93 A.C.W.S. (3d) 485; St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, [1986] S.C.J. No. 34, 28 D.L.R. (4th) 1, 68 N.R. 112, 73 N.B.R. (2d) 236, 86 CLLC para. 14,037 at 12184, 1986 CanLII 71, 38 A.C.W.S. (2d) 3
Statutes referred to
Government Employees Compensation Act, R.S.C. 1985, c. G-5
Labour Relations Act, R.S.O. 1990, c. L-2
Public Service Staff Relations Act, R.S.C. 1985, c. P-35 [rep. S.C. 2003, c. 22, s. 285], ss. 91, (1), (a), (i), (b), 92 [as am.], (1) [as am.]
Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2
Motion for summary judgment dismissing an action.
Ronald F. Caza and Marc Sauvé, for plaintiff/responding party.
Alex Kaufman and Julia Barss, for defendant/moving party.
R. Smith J.: —
Overview
[1] The Attorney General of Canada (“A.G.” or “Government”) seeks a summary judgment dismissing Martine Patriarcki’s (“Patriarcki”) claim for alleged negligent actions and negligent misrepresentations by Ms. Martin, another employee of the Government.
[2] Ms. Martin is alleged to have acted negligently and to have breached a duty of care to Patriarcki when she failed to send in Patriarcki’s request for “secret” level security clearance to the appropriate office. She is also alleged to have negligently told Patriarcki that she had not received any news when asked how Patriarcki’s security clearance application was proceeding.
[3] The A.G. argues that the Superior Court should not exercise its residual jurisdiction in this matter. The A.G. submits that Patriarcki’s complaints relate to incidents that occurred when she was an employee of the federal Public Service, and therefore any remedy she wishes to pursue must be advanced under the provisions of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (“PSSRA”), or its successor after April 1, 2005, the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (“PSLRA”). The PSSRA is an exhaustive regulatory scheme established for the resolution of employment-related disputes.
[4] Federal labour disputes involving acts which occurred after April 1, 2005, are now governed by the PSLRA. Ms. Martin’s alleged negligent acts occurred in April 2004. As such, Patriarcki’s claim is governed by the old PSSRA and any jurisprudence which interpreted its provisions.
[5] Near the end of her three-year contract with the Government, approximately eight months after Patriarcki submitted her application for “secret” level security clearance to Ms. Martin, she received an offer of employment from the Treasury Board, which was conditional on her having a secret level security clearance. Because she had not yet obtained her “secret” level security clearance another person was hired for the position.
[6] Patriarcki has commenced an action against the A.G. claiming for damages she suffered as a result of Ms. Martin’s alleged negligent acts of losing or failing to forward her application to the appropriate authorities for consideration and making a negligent misrepresentation to Patriarcki about the progress of her application.
[7] Patriarcki submits that Ms. Martin’s alleged negligent acts did not affect Patriarcki’s terms and conditions of employment with Industry Canada for the balance of her term. Patriarcki also submits that she was not a union member and was therefore unaware of her option to file a grievance to obtain relief. Patriarcki argues that she has the right to claim damages against her employer in the civil courts for negligent acts of a co-worker for whom her employer is vicariously responsible.
[8] The Government submits that allowing Patriarcki’s negligence claim to proceed in the civil courts would imperil the exhaustive statutory mechanism established to settle work-related disputes for federal government employees. As such, this court should refuse to exercise its residual discretion to grant Patriarcki access to the courts and summarily dismiss her claim.
Issues
[9] The following issue must be decided: Should Patriarcki be denied access to the Superior Court to claim for damages caused by the alleged negligent act and misrepresentation of a fellow employee of the Government?
Factual Background
[10] Patriarcki was employed for a three-year term with the former Office of the Ethics Counsellor, and following its dissolution in May of 2004, with the Office of the Ethics Commissioner (“OEC”) until January 21, 2005. Her term of employment was extended until February 18, 2005.
[11] On April 6, 2004, Patriarcki’s Department Director invited employees to apply for “secret” level security clearance. Interested employees were asked to submit their applications with the required documentation to Ms. Martin, the Director’s administrative assistant. This invitation was sent to all employees who did not have “secret” security clearance, of which Patriarcki was one.
[12] Patriarcki claims that on or about April 20 or 27 of 2004, she advised Ms. Martin that she intended to drop off a sealed envelope containing her completed application for “secret” level security clearance on Ms. Martin’s desk. Patriarcki’s evidence was that she left the sealed envelope on Ms. Martin’s desk at that time; however, notes made by Patriarcki in her personal agenda indicate that she was still filling out the application form in May 2004.
[13] On or about July 15, 2004, Patriarcki met Ms. Martin in the hallway and asked her if she had received any news concerning her application for “secret” level security clearance. Ms. Martin responded that she had not received any news.
[14] Patriarcki’s membership in the union ceased on September 1, 2004, and as a result she had no representative from whom she could seek advice after that date.
[15] The Office of the Ethics Counsellor initially operated as part of Industry Canada, but the new OEC operated as a distinct Parliamentary entity, separate from the Government of Canada. Industry Canada continued to provide support services to the new office from its creation on May 17, 2004 until May 31 of 2005 — including Patriarcki’s compensation until February 18, 2005.
[16] Employment offers were made by the new OEC in November and December of 2004, after which time the support services provided by Industry Canada were gradually phased out.
[17] Patriarcki was not offered employment with OEC and her employment contract with Industry Canada was set to expire on January 21, 2005. Patriarcki was given a one-month extension of her employment contract until February 18, 2005.
Offer from the Treasury Board
[18] In December 2004, Patriarcki had a positive interview for a position with the Treasury Board. At that time, Patriarcki was advised that “secret” level security clearance was required for the position. Patriarcki then sought and received an extension of her term employment beyond the January 21, 2005 termination date.
[19] On January 20, 2005, Ms. Warah advised Patriarcki that Human Resources planned to offer her a ten-month term position with the Treasury Board, expiring on October 31, 2005. Ms. Gray was assigned to start the process. Patriarcki’s employment with the Treasury Board was to have commenced on February 9, 2005.
[20] On January 25, 2005, Ms. Gray of Human Resources enquired into Patriarcki’s security clearance level.
[21] On February 2, 2005, Ms. Warah advised Patriarcki by phone that she would not be offered the position because she did not have “secret” level security clearance.
[22] On the same day, Ms. Martin advised Patriarcki that her security clearance application could not be found in her file and was probably lost.
[23] On February 4, 2005, Patriarcki met with security services of Industry Canada who advised Patriarcki that her application for “secret” level security clearance had never been received. It advised Patriarcki that it would take a further two to four months to obtain “secret” level security clearance.
[24] On February 7, 2005, Patriarcki’s superior, Lynn Robinson-Dalpé, called to advise Patriarcki that she could obtain “secret” level security clearance for her within 48 to 72 hours.
[25] On February 7, 2005, Patriarcki called Ms. Warah at Human Resources and advised her that it was possible for her to obtain “secret” level security clearance within 48 to 72 hours; but Ms. Warah advised her that it was too late as the position had already been offered to someone else.
[26] On February 10, 2005, Patriarcki submitted her application for “secret” level security clearance directly to Industry Canada and did not accept Ms. Robinson-Dalpé’s offer to assist her.
Offer from Oceans and Fisheries
[27] On February 16, 2005, Oceans and Fisheries advised Patriarcki that it was interested in making her an offer of term employment but that the offer could not be made for at least three weeks. At that time, Patriarcki sought a further extension of her term contract in order to remain within the Public Service, where she had priority over other applicants who were not members of the Public Service.
[28] A further extension of Patriarcki’s employment beyond February 18, 2005 was refused. As a result, Patriarcki lost her status as an internal employee of the Public Service, and as a consequence she was not offered employment with Oceans and Fisheries.
No Grievance Filed
[29] Patriarcki’s evidence is that she was unaware of her entitlement to file a grievance under s. 91 of the PSSRA as she was not a Public Service employee or a union member when she became aware that her application had been lost.
[30] Patriarcki has been unable to obtain any other employment since February 18, 2005. She has since been diagnosed with a generalized anxiety disorder and for personal reasons has refused to take any medications to treat her condition.
[31] In the fall of 2006, Patriarcki suffered from neurotoxic injury to her nervous and respiratory systems caused by the chemicals and gases released in her residence. As a result, she is no longer able to work.
[32] Patriarcki has brought a claim for damages in the civil courts alleging that Ms. Martin acted negligently when she lost Patriarcki’s security clearance application and when she made a negligent misrepresentation about the status of Patriarcki’s security clearance application.
Analysis
Issue — Should Patriarcki be denied access to the Superior Court to claim for damages caused by the alleged negligent act and misrepresentation of a fellow employee of the Government?
[33] At the outset, I note that Patriarcki was a unionized employee when the alleged negligent acts occurred in April 2004, but was no longer a member of the union when she discovered that her security clearing application had been lost. I agree with the reasoning of Cromwell J.A. (as he then was) in Adams v. Cusack, [2006] N.S.J. No. 25, 2006 NSCA 9, that ss. 91 and 92 of the PSSRA apply to both union and non-union employees of the government. An individual’s status as a non-unionized or unionized employee does not directly affect whether deference ought to be paid to the legislative dispute resolution process.
Positions of the parties
[34] The A.G. submits that Patriarcki’s claim for damages arises out of an “occurrence or matter affecting the terms and conditions of employment” as set out in s. 91(1)(b) of the PSSRA. The A.G. further submits that the PSSRA constitutes a comprehensive scheme for the resolution of employment disputes and therefore this court should refuse to exercise jurisdiction over Patriarcki’s claim pursuant to the principles set out by the Supreme Court in Vaughan v. Canada, [2005] 1 S.C.R. 146, [2005] S.C.J. No. 12, 2005 SCC 11 and Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, [1995] S.C.J. No. 59.
[35] Patriarcki argues that she has a distinct claim for damages based on Ms. Martin’s negligent act of losing her security clearance application and for negligently misrepresenting to her that she had received no news when Patriarcki enquired into the status of her security clearance application.
[36] Patriarcki submits that her claim for damages does not relate to an occurrence or matter affecting the terms and conditions of her employment as defined in s. 91(1)(b) of the PSSRA. Rather, the issue raised is whether her fellow employee was negligent; namely, whether Ms. Martin owed Patriarcki a duty of care and whether she breached that duty and caused Patriarcki damages. The damages being the loss of future employment opportunity with the Treasury Board.
Principles in Weber and Vaughan
[37] Sections 91(1)(a) and (b) of the PSSRA read as follows:
91(1) Where any 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.
[38] In Vaughan, supra, the appellant was denied the right to receive an early retirement incentive (“ERI”) offered by the Government to certain employees. Vaughan then commenced an action alleging negligence rather than filing a grievance under s. 91(1)(a) of the PSSRA. In his claim, Vaughan alleged that the respondent Government knew or ought to have known that a reasonable job offer had not been provided to him and that he was therefore entitled to receive the ERI.
[39] Vaughan’s right to receive an ERI payment was not part of the terms of a Collective Bargaining Agreement (“CBA”). Rather, the Government had passed a regulation unilaterally authorizing the payment of an early retirement incentive to certain federal employees in addition to their rights under the CBA. Because the right to receive an ERI was conferred by regulation, the parties acknowledged that it fell within s. 91(1)(a)(i) of the PSSRA, as it related to an interpretation or application of a regulation which was related to the terms and conditions of his employment. As such, his claim was grievable under s. 91(1)(a) but not arbitrable under s. 92. If Vaughan’s right to receive an ERI had arisen from a CBA provision, then the dispute could ultimately have been resolved by way of independent arbitration, subject to judicial review.
[40] The Supreme Court of Canada held that where a dispute concerned the interpretation or application of a regulation related to the terms and conditions of employment, the legislature intended to limit the remedy available to an employee to filing a grievance, which was subject to various stages of review ending ultimately before the Deputy Minister. This multi-step grievance process was subject only to judicial review, without the possibility of a hearing before an independent arbitrator. Writing for the majority, Binnie J. held that while the courts hold a residual discretion to deal with workplace-related issues grievable under s. 91 of the PSSRA, but not arbitrable under s. 92 (which is the case of Patriarcki), the courts should generally decline to get involved except for judicial review.
[41] The dissent in Vaughan held that because of the unavailability of independent arbitration and the lack of mandatory language in s. 91 of the PSSRA, the scheme did not oust the jurisdiction of the courts and therefore Vaughan should have been permitted to bring his damages claim.
[42] On the facts before me, Patriarcki was not a union member and her employment was not governed by a CBA. Therefore, the essential character of her claim is not related to the interpretation or application of a CBA. If the dispute arose from interpreting a CBA then Patriarcki would have had the right to have her claim decided by independent arbitration.
[43] In Vaughan, supra, the right to receive ERI was conveyed by regulation and as a result the provisions of s. 91(1)(a)(i) of the PSSRA were directly applicable. The Supreme Court held that in general it was undesirable to have a parallel access to the courts where the benefits were conveyed unilaterally by regulation outside of a CBA, and that the legislature had enacted a comprehensive scheme and intended the decision of the Deputy Minister to be final, subject only to judicial review.
[44] The case before me is not one where an employer conveyed a benefit unilaterally by regulation and vested the final decision of related disputes with the Deputy Minister without recourse to independent adjudication, and as such Vaughan is distinguishable. However, I accept that the approach adopted in Vaughan must be followed. That is, courts should exercise judicial restraint and defer to comprehensive labour dispute resolution schemes where Parliament has evinced an intention to have the legislation apply in the particular circumstances.
[45] This general rule of deference, however, is not absolute. In Pleau (Litigation Guardian of) v. Canada (Attorney General), [1999] N.S.J. No. 448, 182 D.L.R. (4th) 373 (C.A.), a whistleblower case, Cromwell J.A. (as he then was) held that Parliament’s intent in s. 91 and s. 92 of the PSSRA was not to oust the courts’ jurisdiction where independent arbitration was not available. However, at the same time, Cromwell J.A. noted that an express grant of exclusive jurisdiction is not necessary to sustain judicial deference to a statutory dispute resolution process like the one set out in the PSSRA.
[46] In Vaughan, supra, Binnie J. held [at para. 22] that, “[t]he task of the court is still to determine whether, looking at the legislative scheme as a whole, Parliament intended workplace disputes to be decided by the courts or under the grievance procedure established by the PSSRA.” There, Binnie J. found that Parliament intended the comprehensive dispute resolution scheme to be followed even in the absence of the possibility of independent third-party adjudication, except in cases involving whistleblowers, where the court’s residual discretion could be exercised. He held that the general rule of deference in matters arising out of labour relations should prevail.
[47] In Guenette v. Canada (Attorney General) (2002), 60 O.R. (3d) 601, [2002] O.J. No. 3062 (C.A.), Foreign Affairs employees complained of punitive steps taken against them as a result of reporting mismanagement and waste of taxpayers’ money. The Court of Appeal for Ontario held [at para. 69] that “[d]eference to another adjudicative body is one thing; deference to a scenario where there would be no adjudication at all is an entirely different matter.”
[48] As noted above, s. 92 of the PSSRA delineates the types of claims which can ultimately be decided by independent arbitration. It reads as follows:
92(1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,
. . . . .
(c) In the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer to the grievance to adjudication.
[49] Patriarcki’s claim against the Government would not be subject to independent arbitration because it does not relate to an arbitral award, the interpretation or application of a CBA, or stem from a suspension, financial penalty, termination of employment or demotion. In all of the above situations, s. 92 of the PSSRA provides for independent arbitration.
[50] In Weber, supra, the Supreme Court had previously held that where a matter concerns a dispute arising out of a collective agreement, the mandatory arbitration clause in the Ontario Labour Relations Act, R.S.O. 1990, c. L-2 deprived the courts of concurrent jurisdiction. The Supreme Court followed its decision in St. Anne Nackawic Pulp & Paper Co. Ltd. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, [1986] S.C.J. No. 34. The Supreme Court held that the question in each case is whether the dispute in its essential character arises from the interpretation, application, administration or violation of the collective agreement and therefore falls within the ambit of the legislative scheme. If so, courts should generally defer to the statutory regime.
[51] In light of the above principles, the first question that must be answered is whether Patriarcki’s dispute in its “essential character” falls within the realm of the statutory process set out in s. 91 of the PSSRA. In other words, does Patriarcki’s claim, in its essential character, arise from an occurrence or matter affecting the terms and conditions of her employment. If not, then Patriarcki is not precluded from raising her claim in the civil courts. If her matter does fall within the ambit of s. 91, then like in Vaughan, supra, I must ascertain whether Parliament intended for this court to completely defer to the legislative process given the particular claim raised in this case. In so doing, I must look to the statutory wording, the object and scheme of the Act, and as noted by the court in Weber, supra, whether the Act provides effective redress in the facts of this case.
Essential Character of the Dispute
[52] In Weber and Vaughan, supra, the Supreme Court held that the court must determine the essential character of the dispute, based on the facts giving rise to the dispute. The fact that a claim is pleaded in negligence is not conclusive.
[53] The facts in Patriarcki’s case arise out of Ms. Martin’s action or failure to take steps to send Patriarcki’s security clearance application to the appropriate authority, and Ms. Martin’s alleged negligent misrepresentation to Patriarcki in July 2004 advising her that she had not received any news on the progress of her security clearance application.
[54] The dispute arises from the employment relationship as Patriarcki was asked by her Director to submit an application for “secret” level security clearance and Patriarcki delivered her application to Ms. Martin pursuant to her employer’s instructions. Additionally, it was within Ms. Martin’s job description to carry out this administrative task. However, Ms. Martin’s failure to send Patriarcki’s application to the appropriate office did not have any effect on Patriarcki’s terms and conditions of employment with Industry Canada. Her salary and work conditions remained the same until the end of her contract term with Industry Canada.
[55] Ms. Martin’s alleged failure to send in Patriarcki’s security application, the occurrence, did not affect the terms and conditions of Patriarcki’s term employment with Industry Canada (Office of the Ethics Counsellor). Patriarcki continued to work in the same department in the same location, and at the same salary and with the same benefits. In fact, the terms and conditions of Patriarcki’s employment were unaffected for the balance of the term of her employment contract which ended on January 21, 2005. Rather, the occurrence affected Patriarcki’s ability to obtain a new and different employment contract and did not affect the terms and conditions of her existing employment contract.
[56] While Ms. Martin’s actions occurred in the course of her employee-employer relationship and Patriarcki’s submission of her security clearance application occurred when she was employed by Industry Canada, Patriarcki’s claim in its essential character is not a dispute with her employer over a matter which affected the terms and conditions of her term employment contract which ended on January 21, 2005, but rather is a claim in negligence and negligent misrepresentation against Ms. Martin, a fellow employee for which the employer is vicariously liable.
[57] The situation is more analogous to a fellow employee negligently giving an inaccurate negative reference (assuming qualified privilege did not apply) causing a co-worker to lose a different employment position. This may occur, for example, if an employee writes a reference letter describing the wrong employee. In its essential character, this is a claim of negligence which can be contrasted from the situation where a co-worker writes a poor reference letter that the particular employee does not agree with. In this case, the claim in its essential character is not one of negligence but really one affecting the terms and conditions of employment.
[58] The negligent act or occurrence would have no effect on the current terms and conditions of employment but would rather cause the loss of a potential future employment opportunity. If the affected employee was not on a term contract with a fixed end date, then the damages would be greatly reduced and the consequences not as serious. However, in Patriarcki’s situation, the consequences were very serious as she had no alternative employment and lost her position and priority within the Public Service. The damages to her were potentially substantial and resulted in a serious consequence to her.
[59] The essential character of the allegations by Patriarcki against Ms. Martin are that she acted negligently and caused damage to Patriarcki which did not affect her current terms and conditions of employment. The question which would have to be answered at a hearing is whether Ms. Martin owed Patriarcki a duty of care and whether she breached the duty of care and what damages were caused.
[60] I find that the PSSRA, in particular s. 91(1)(b), is intended to provide an efficient method of resolving labour disputes arising out of the employment relationship which affect the terms and conditions employment in a non-substantial way. For disputes related to suspension, demotion, financial penalty or termination, s. 92 of the PSSRA provides for independent arbitration. In my view, this evinces an intention that disputes resulting in “serious” consequences receive some form of independent adjudication.
[61] I also find that the purpose of the PSSRA is not to resolve personal injury claims caused by negligent actions of co-workers or employers in the workplace, especially when the injured party has suffered serious damage. Clear language would be required to remove the traditional role of the courts in determining negligence actions.
[62] The ultimate consequences to Patriarcki, as a result of the allegedly negligent act and misrepresentation of Ms. Martin, were serious and substantiated based on the evidence. She lost a ten-month term of employment with the Treasury Board and because her term of employment expired she lost her priority as a member of the Public Service. I find that the essential character of her dispute is a claim in negligence and not one of a day-to-day workplace dispute affecting the terms and conditions of Patriarcki’s employment with Industry Canada.
[63] If I am wrong and her claim can fairly be characterized as one arising from an act or occurrence affecting the terms and conditions of her employment, then for the reasons that follow, I find that Parliament did not intend to oust the jurisdiction of the courts in claims of this nature.
Did Parliament intend to include claims for damages against the government, for the alleged tortious actions of a fellow employee, under the provisions of s. 91(1)(b), without the ability to obtain independent third party adjudication?
[64] The issue to be determined here is really whether Parliament intended to oust the jurisdiction of the courts in favour of the grievance process in relation to claims of negligence as made by Patriarcki. To answer this question, I must look to the wording of the Act, its object and scheme, as well as whether the statutory process affords Patriarcki effective redress.
[65] The approach to statutory interpretation as set out by Professor Driedger and preferred by the Supreme Court as set out in Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559, [2002] S.C.J. No. 43, at para. 26, is as follows:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.
(Emphasis added)
[66] Following this model of statutory interpretation, along with the statutory language, I must consider the scheme and object of the PSSRA when interpreting whether s. 91(1)(b) applies to negligence claims.
[67] The relevant parts of s. 91(1)(b) read 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.
[68] The wording of s. 91 does not specifically exclude access to the courts but the Vaughan and Weber decisions require that substantial deference be given to comprehensive labour dispute resolution schemes provided appropriate remedies are available. The intention of Parliament in Patriarcki’s situation is not as clear as in the facts in Vaughan where the Government had passed a regulation providing a unilateral benefit affecting the appellant’s terms and conditions of employment. Parliament clearly intended in those circumstances that the grievance procedure be limited to a review by the Deputy Minister, plus the possibility of judicial review as specifically stated in s. 91(1)(a)(i) of the PSSRA.
[69] However, if a federal employee suffers damages caused by the alleged tortious conduct of a fellow employee such as a negligent act or a negligent misrepresentation in the course of his or her employment function, did Parliament intend to have the issues of duty of care, standard of care, causation and damages determined by the grievance procedure under s. 91(b) and ultimately determined by the Deputy Minister of the Department against which the claim is made? I find that Parliament did not intend for the grievance procedure established in s. 91(b) to apply to situations where the essential character of the dispute involves a determination of negligence not affecting the terms and conditions of employment.
Scheme and Object of the Act
[70] I find that the legislative scheme and object of ss. 91 and 92 of the PSSRA is to provide independent arbitration for disputes which have a serious effect on the terms and conditions of employment, such as termination, suspension, or imposition of a financial penalty, demotion, or the interpretation or application of the negotiated terms of a CBA.
[71] For all other work-related occurrences or matters resulting in less serious consequences than the situations described above, the scheme of the PSSRA provides a multi-step grievance procedure with the final decision resting with the Deputy Minister. No independent arbitration is available for these matters.
[72] Under this comprehensive legislative scheme, I find that the intent and object of Parliament in passing ss. 91 and 92 of the PSSRA was to have workplace disputes which have a serious consequence to the employee, such as suspension, demotion, financial penalty or termination determined by a grievance and ultimately by an independent arbitrator. However, where the workplace dispute or occurrence affects the terms and conditions of the employee in a less serious manner, then the remedy granted to the employee is limited to a grievance procedure without access to third party arbitration. The final decision in those situations was intended to be made by the Deputy Minister or Designate, subject only to judicial review without access to independent arbitration.
[73] I find that the purpose and object of the PSSRA was not to provide a method to compensate employees who suffer damages due to the negligent actions of a co-worker or the employer. If so, it would not have been necessary to pass the Government Employees Compensation Act which deals with situations involving personal injuries caused by accidents in the workplace. If the actions of a federal employee cause personal injury by an accident arising during the course of employment then an independent Board determines entitlement and compensation under the Government Employees Compensation Act, R.S.C. 1985, c. G-5.
[74] Moreover, the court in Vaughan and Weber, supra, was persuaded by the relative level of expertise held by labour dispute boards. This expertise was a large factor supporting the large amount of deference paid to these particular administrative entities. However, I find that labour dispute boards are not experts in the area of negligence, in particular, duty of care, causation and damages analysis.
Effective Redress
[75] Under the PSSRA, where a workplace dispute arises which affects the employee in a serious way, namely where a financial penalty, suspension, demotion or termination were imposed, the employee has the ultimate option of having the dispute resolved by independent arbitration under s. 92 of the PSSRA. Parliament has evinced an intention that for disputes resulting in serious consequences, only some form of independent adjudication can constitute effective redress.
[76] If Patriarcki’s claim was resolved under the PSSRA she would not have benefit of independent third-party arbitration. Patriarcki’s remedy would have been solely limited to the multi-stage grievance procedure under the PSSRA, with the ultimate decision on whether Ms. Martin was negligent, whether her actions caused the damages, and the amount of the damages, decided by the Deputy Minister or Designate of the very Department against whom the claim was made.
[77] I have found that the intent of Parliament as found in Vaughan, supra, and expressed in s. 91(1)(a) of the PSSRA, was to have the Department administer unilateral benefits conferred by the employer by statute, regulation, by-law or other instrument. However, where the consequences to the employee are serious such as termination, demotion, the imposition of a financial penalty or a suspension, or where the matter involves the interpretation or application of the terms of a CBA, then the aggrieved employee ultimately has access to independent arbitration. I also find that the intent of s. 91(1)(b) of the PSSRA was to have all other labour disputes arising from the employee-employer relationship which do not involve the interpretation of a CBA resolved by grievance without access to independent arbitration, whether raised by members or non-members of a union, where the consequences are not as serious to the employee. This scheme is rooted in good policy and has not resulted in a floodgate of labour-related cases before the courts. It provides a comprehensive and fair grievance procedure to deal with disputes resulting in less serious consequences to the employee, while providing independent arbitration to those disputes resulting in more serious consequences.
[78] The Supreme Court in Vaughan, supra, recognized an exception to harassment-type workplace complaints raised by whistle-blowers because effective redress was not provided by the grievance procedure where it did not provide independent arbitration. (See Pleau and Guenette, supra.)
[79] I find that effective redress would not be provided to Patriarcki if she was limited to a grievance under s. 91(1)(b) for the following reasons:
Other Factors
[80] The motion for summary judgment has been brought by the A.G. some four years after this litigation commenced. Extensive examinations have been conducted and substantial expense has already been incurred by the parties. The rules are to be interpreted to obtain the just, most expeditious and least expensive determination of a proceeding which in this case would be to proceed with a trial.
[81] The other factor is that if the A.G.’s motion was granted, Patriarcki would be without any remedy as the limitation to file a grievance under s. 91(1) of the PSSRA is long past (30 days). The time limit may be extended but given that five years have gone by and the A.G. was not prepared to consent to waive the limitation, Patriarcki would effectively be denied any remedy whatsoever.
Disposition
[82] For the above reasons, the Government’s motion for summary judgment is dismissed.
Costs
[83] Patriarcki may make submissions on costs within ten (10) days, the A.G. may respond within ten (10) days, and Patriarcki shall have seven (7) days to reply.
Motion dismissed.