Digests

Galarneau v. Canada (Attorney General)

T-2414-03

2005 FC 39, Gauthier J.

14/1/05

25 pp.

Appeal from Prothonotary Morneau decision's (2004 FC 718; [2004] F.C.J. No. 886 (QL)) allowing motion to strike out statement of claim, to dismiss action pursuant to Federal Court Rules, 1998, ss. 208(d), 221(1)(a)--Defendants' motion asking action be dismissed, arguing Court does not have jurisdiction ratione materiae to hear dispute bearing essentially on steps taken by Correctional Service of Canada (CSC) as employer to maintain occupational health, safety of employees, including plaintiff-- Plaintiff correctional officer employed by CSC seeking in statement of claim to represent all persons working, having worked in penitentiary in Quebec as correctional officer I or II and exposed in workplaces to smoke resulting from tobacco use, in past or present-- According to her, situation constituting breach of CSC's duty to ensure health, safety of employees under Canada Labour Code, violating right to security guaranteed by Canadian Charter of Rights and Freedoms, s. 7--First time Court asked to strike out, under Rules, s. 221(1)(a), statement of claim containing application for certification as class action under Rules, s. 299.12 et seq.--Plaintiff now disputing that clause 18.01 of collective agreement allows employee to file grievance under clause 20.02 of collective agreement, Public Service Staff Relations Act (PSSRA), s. 91(1)(a)(ii)--Court must first determine whether defendants' motion premature, must be referred to, decided by judge hearing motion for certification as class action under Rules, ss. 299.12(3), 299.17--Court determining not premature to decide defendants' motion--Defendants (as moving parties) must first establish "plain and obvious" Court without jurisdiction--Plaintiff stating cannot avail herself of grievance procedure in collective agreement because clause 18.01 not giving individual right, cannot complain of its application in regard to her--If litigation proceeds on basis of collective agreement, plaintiff, colleagues not only entitled to file grievance under clause 20.02 of collective agreement, PSSRA, s. 91(1)(a)(ii), but able to refer grievance to adjudication under s. 92(1)(a)--In that case, no doubt Court lacks jurisdiction to hear action, even if action brought in order to obtain certification as class action--Statutory scheme barring recourse to ordinary courts of law in such cases, where parties can submit disagreement to independent third party-- In Vaughan v. Canada, [2003] 3 F.C. 645, Federal Court of Appeal confirming that in enacting PSSRA, Parliament clearly signified intention to exclude use of ordinary courts in resolving labour relations disputes between federal Crown and employees, even when grievance procedure in s. 91(1) only available recourse under PSSRA--S. 91 authorizing grievance officers to interpret, apply various federal statutes, therefore to decide questions of law--Application of Federal Court of Appeal's decisions regarding effect of s. 91 on Court's jurisdiction cannot be disregarded--Occupational health and safety issues between federal Crown and correctional officers in employ subject matter of complete code, significant panoply of administrative remedies provided by Parliament--Existing statutory scheme excluding Court's jurisdiction over claims by employees, by plaintiff in particular--Appeal dismissed-- Federal Court Rules, 1998, SOR/98-106, ss. 208, 221, 299.12 (as enacted by SOR/2002-417, s. 17), 299.17 (as enacted, idem)--Canada Labour Code, R.S.C., 1985, c. L-2--Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7--Public Service Staff Relations Act, R.S.C., 1985, c. P-35, ss. 91, 92 (as amended by S.C. 1992, c. 54, s. 68).