PRACTICE
Pleadings
Motion to Strike
Appeal from order dismissing motion to dismiss action for want of jurisdiction—Plaintiff, appointed in 1989 to position with Canadian Security Intelligence Service (CSIS), dismissed on July 7, 1999 by CSIS Director because denied security clearance necessary for performance of duties—Security Intelligence Review Committee investigated complaint filed by plaintiff and prepared report with recommendations to CSIS Director—CSIS Director maintained decision—In November 2001, plaintiff brought action in extra-contractual civil liability based essentially on lawfulness of dismissal under Crown Liability and Proceedings Act—After filing summary judgment to dismiss plaintiff’s action and after Federal Court Judge referred matter to Judge on merits, applicant, relying on Canada v. Tremblay, [2004] 4 F.C.R. 165 (F.C.A.) and Vaughan v. Canada, [2005] 1 S.C.R. 146, filed motion to dismiss based on Federal Courts Act, s. 17 (Court’s lack of jurisdiction to hear action)—Appeal attacking decision by Prothonotary dismissing motion—Appeal allowed— Prothonotary erred in law in declining to follow principles established in Tremblay clearly stating no cause of action against decisions by federal boards, commissions or other tribunals unless decisions first declared unlawful on judicial review under Federal Courts Act, ss. 18, 18.1—Crux of issue lies in lawfulness or unlawfulness of decisions by Review Committee to recommend that CSIS Director deny security clearance and by CSIS Director to approve dismissal—Plaintiff cannot proceed by way of action since invalidity of decision is at heart of claim and relief sought depends on alleged invalidity—Further, allowing case to proceed as action would run counter to principles established by Supreme Court of Canada in Vaughan, deciding that federal public servant must follow process set out in Public Service Staff Relations Act, ss. 91 et seq. against employer and cannot bring action against employer because judicial review of decision only avenue open—S.C.C. repeatedly stressed that while courts retain residual jurisdiction, courts “should not jeopardize the comprehensive dispute resolution process contained in the legislation by permitting routine access to the courts” —When statutory scheme comprehensive (like the complaint process here) and provides solution to problem raised, bypassing scheme by bringing independent action should not be routine or easy—Court therefore does not have jurisdiction to hear plaintiff’s action; plaintiff’s statement of claim struck—Crown Liability and Proceedings Act, R.S.C., 1985, c. C-50, s. 1 (as am. by S.C. 1990, c. 8, s. 21)— Federal Courts Act, R.S.C., 1985, c. F-7, ss. 1 (as am. by S.C. 2002, c. 8, s. 14); 17 (as am. by S.C. 1990, c. 8, s. 3; 2002, c. 8, s. 25), 18 (as am. by S.C. 1990, c. 8, s. 4; 2002, c. 8, s. 26), 18.1 (as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27)—Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 91.
Tremblay v. Canada (T-2079-01, 2005 FC 728, Tremblay-Lamer J., order dated 20/5/05, 12 pp.)