Vaughan v. Canada

Vaughan v. Canada
Collection
Supreme Court Judgments
Date
2005-03-18
Neutral citation
2005 SCC 11
Report
[2005] 1 SCR 146
Case number
29712
Judges
McLachlin, Beverley; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise
On appeal from
Federal Court of Appeal
Subjects
Labour law
Notes
SCC Case Information: 29712
Decision Content
SUPREME COURT OF CANADA
Citation: Vaughan v. Canada, [2005] 1 S.C.R. 146, 2005 SCC 11
Date: 20050318
Docket: 29712
Between:
William Thomas Vaughan
Appellant
v.
Her Majesty the Queen
Respondent
‑ and ‑
Attorney General of Alberta and Public Service Alliance of Canada
Interveners
Coram: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
Reasons for Judgment:
(paras. 1 to 42)
Dissenting reasons:
(paras. 43 to 74)
Binnie J. (Major, LeBel, Deschamps, Fish, Abella and Charron JJ. concurring)
Bastarache J. (McLachlin C.J. concurring)
______________________________
Vaughan v. Canada, [2005] 1 S.C.R. 146, 2005 SCC 11
William Thomas Vaughan Appellant
v.
Her Majesty The Queen Respondent
and
Attorney General of Alberta and
Public Service Alliance of Canada Interveners
Indexed as: Vaughan v. Canada
Neutral citation: 2005 SCC 11.
File No.: 29712.
Hearing: May 18, 2004.
Present: McLachlin C.J. and Iacobucci, Major, Bastarache, Binnie, Deschamps and Fish JJ.
Rehearing: January 7, 2005.
Judgment: March 18, 2005.
Present: McLachlin C.J. and Major, Bastarache, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.
on appeal from the federal court of appeal
Labour relations — Public service — Grievances — Early retirement incentive benefits — Courts — Jurisdiction — Public servant declared surplus wishing to take advantage of early retirement incentive benefits provided by regulation, not by collective agreement — Whether workplace dispute over entitlement to these benefits must be decided under grievance procedure established by Public Service Staff Relations Act — Whether absence of “recourse to independent adjudication” in grievance procedure sufficient for courts to get involved — Whether public servant has option of going to court when dispute grievable but not arbitrable — Public Service Staff Relations Act, R.S.C. 1985, c. P-35, ss. 91 , 92 .
V, a federal public servant had been on leave without pay working in the private sector for about four years when he was notified that he was surplus to the public service and would be laid off. He then sought to obtain early retirement incentive (“ERI”) benefits that were available in some circumstances to federal public servants pursuant to regulation, but the government rejected his application. He was subsequently laid off.
Under the Public Service Staff Relations Act (“PSSRA ”), a grievance may be made in respect of a wide range of workplace disputes, but such a grievance can be taken to independent arbitration only if it arises out of an arbitral award or the interpretation or application of a collective agreement or results in suspension or financial penalty, termination of employment or demotion. Thus, V’s lay‑off was arbitrable (his grievance was eventually dismissed by an adjudicator independent from the department) but his claim for ERI benefits, though grievable, was not arbitrable.
V declined to grieve the denial of ERI benefits under the PSSRA procedure but initiated this claim against the Crown in the Federal Court. He sought to distinguish the Weber line of cases that call for deference in labour relations to statutory schemes for dispute resolution on the basis that courts should not defer to a statutory scheme in respect of matters that cannot be taken to independent adjudication. His action was struck out by the prothonotary, and her decision was upheld on appeal.
Held (McLachlin C.J. and Bastarache J. dissenting): The appeal should be dismissed.
Per Major, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ.: Where, as here, Parliament has created a comprehensive scheme for dealing with labour disputes, the process set out in the legislative scheme should not be jeopardized by permitting parallel access to the courts. Accordingly, while the wording of the PSSRA is not strong enough to oust the courts’ residual jurisdiction in matters grievable under s. 91 but not arbitrable under s. 92 , V ought to have proceeded by way of a grievance under the PSSRA . The dispute related to employment benefits in the labour relations context. Parliament’s intent manifested in the PSSRA is that in respect of benefits conferred by regulation outside the collective agreement, the decision of the Deputy Minister should be final. V ought not to be permitted to litigate his claim to ERI benefits in the courts by dressing it up as a negligence action. [29] [33-35] [39] [42]
While the absence of independent third-party adjudication may, in certain circumstances, impact on a court’s exercise of its residual discretion (as in the whistle‑blower cases) the courts should generally, as a matter of discretion, decline to get involved, except on the limited basis of judicial review. The Federal Court properly deferred to the PSSRA procedure in this case. V’s claim to ERI benefits clearly fell within the scope of the PSSRA and their denial could have been remedied (if warranted) under s. 91 of the PSSRA . The absence of recourse to independent adjudication is not in itself a sufficient reason for the courts to get involved. It is a consideration, but there is nothing on the facts of this case to take it outside the general rule of deference to the procedure mandated by Parliament. [2] [17] [36] [38]
Per McLachlin C.J. and Bastarache J. (dissenting): Although V’s claim could have been dealt with under s. 91 of the PSSRA , that section did not preclude him from commencing an action in the Federal Court. Section 91 creates a comprehensive and efficient dispute resolution regime, but the unavailability of an independent decision-maker, combined with the absence of mandatory language in the wording of the PSSRA and the employer-appointed decision-maker’s lack of expertise, points away from a finding of exclusive jurisdiction. Courts should refrain from preventing access to independent adjudication in the absence of a clear manifestation of Parliament’s intent in this regard. The availability of judicial review for decisions taken at the final level of the grievance process under the PSSRA cannot compensate for the dearth of independent adjudication of claims on their merits. While avoiding duplication is an important policy consideration, resort to the courts in the case at bar is not truly duplicative because no independent adjudication is possible at the grievance level. Courts retain residual jurisdiction in cases where an aggrieved employee has no recourse to independent adjudication. [44] [70-73]
Cases Cited
By Binnie J.
Referred to: Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, _2000_ 1 S.C.R. 360, 2000 SCC 14; Pleau (Litigation Guardian of) v. Canada (Attorney General) (1999), 182 D.L.R. (4th) 373; Guenette v. Canada (Attorney General) (2002), 60 O.R. (3d) 601; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Yearwood v. Canada (Attorney General) (2002), 216 D.L.R. (4th) 462, 2002 BCCA 427; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52; Danilov v. Atomic Energy Control Board (1999), 125 O.A.C. 130; St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; Johnson-Paquette v. Canada (2000), 253 N.R. 305; Gaignard v. Canada (Attorney General) (2003), 232 D.L.R. (4th) 43; Phillips v. Harrison (2000), 196 D.L.R. (4th) 69, 2000 MBCA 150.
By Bastarache J. (dissenting)
St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; Guenette v. Canada (Attorney General) (2002), 60 O.R. (3d) 601; Danilov v. Atomic Energy Control Board (1999), 125 O.A.C. 130; Pleau (Litigation Guardian of) v. Canada (Attorney General) (1999), 182 D.L.R. (4th) 373; Phillips v. Harrison (2000), 196 D.L.R. (4th) 69, 2000 MBCA 150; Yearwood v. Canada (Attorney General) (2002), 216 D.L.R. (4th) 462, 2002 BCCA 427; Bell v. Canada (Attorney General) (2002), 210 D.L.R. (4th) 463, 2002 NFCA 5; Olsen v. Canada (Attorney General) (2003), 226 D.L.R. (4th) 483, 2003 BCCA 209; Bouchard v. Canada (Minister of National Defence) (1999), 187 D.L.R. (4th) 314; Johnson-Paquette v. Canada (2000), 253 N.R. 305; Public Service Alliance of Canada v. Canada (Treasury Board) (2002), 293 N.R. 325, 2002 FCA 239; Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14; Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52; Derrickson v. Canada (Minister of Indian Affairs and Northern Development) (1993), 63 F.T.R. 292; Macinnis v. Canada (Attorney General), [1994] 2 F.C. 464; TWU v. British Columbia Telephone Co., [1988] 2 S.C.R. 564; Jadwani v. Canada (Attorney General) (2001), 52 O.R. (3d) 660; Brotherhood of Maintenance of Way Employees Canadian Pacific System Federation v. Canadian Pacific Ltd., [1996] 2 S.C.R. 495.
Statutes and Regulations Cited
Federal Courts Act, R.S.C. 1985, c. F‑7, s. 18.1 .
Labour Relations Act, R.S.O. 1990, c. L.2, s. 45(1).
Public Service Staff Relations Act, R.S.C. 1985, c. P-35, ss. 91 , 92 , 96(3) , 100(4) .
Retirement Compensation Arrangements Regulations, No. 2, SOR/95‑169.
Special Retirement Arrangements Act , S.C. 1992, c. 46 , Sch. 1.
APPEAL from a judgment of the Federal Court of Appeal (Richard C.J. and Sexton and Evans JJ.A.), [2003] 3 F.C. 645, 224 D.L.R. (4th) 640, 306 N.R. 366, [2003] F.C.J. No. 241 (QL), 2003 FCA 76, affirming a decision of Heneghan J. (2001), 213 F.T.R. 144, [2001] F.C.J. No. 1734 (QL), 2001 FCT 1233, affirming a decision of the prothonotary (2000), 182 F.T.R. 199, [2000] F.C.J. No. 144 (QL). Appeal dismissed, McLachlin C.J. and Bastarache J. dissenting.
Dougald E. Brown and Christopher Rootham, for the appellant.
Brian J. Saunders and Kirk Lambrecht, Q.C., for the respondent.
Hugh J. D. McPhail, Q.C., for the intervener the Attorney General of Alberta.
Andrew Raven, for the intervener the Public Service Alliance of Canada.
The judgment of Major, Binnie, LeBel, Deschamps, Fish, Abella and Charron JJ. was delivered by
1 Binnie J. _ The terms and conditions of employment of the federal government’s quarter of a million current workers are set out in statutes, collective agreements, Treasury Board directives, regulations, ministerial orders, and other documents that consume bookshelves of loose-leaf binders. Human resources personnel are recruited into the system, spend a career attempting to understand it and die out of it. Procedures for the enforcement of employment rights and obligations also differ in some respects from those in the private sector. Almost any workplace issue can be grieved but only some disputes can be carried onwards to third-party arbitration. Employee benefits that are not achieved through collective bargaining but are unilaterally conferred by regulation, such as the early retirement incentive (“ERI”) at issue in this case, are administered by the departments, including a three-stage internal grievance procedure, but are not arbitrable. The Federal Court has taken the position that subject to the availability of judicial review, disputes falling under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (“PSSRA ”), should be left to the specialized machinery thereby established by Parliament for their resolution.
2 I agree with the appellant that the statutory language and context of the PSSRA do not amount to the sort of explicit ouster of the jurisdiction of the courts as was the case in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929. Nevertheless, while the courts retain a residual jurisdiction to deal with workplace-related issues falling under s. 91 of the PSSRA , but not arbitrable under s. 92 , the courts should generally in my view, as a matter of discretion, decline to get involved except on the limited basis of judicial review. The facts of this case, insofar as we can ascertain them, afford a good illustration of why judicial restraint in this area is desirable. I would dismiss the appeal.
I. Facts
3 This is a pleadings motion. The respondent moved to strike the claim immediately after filing its statement of defence. There is thus no evidence in the record before us. The allegations in the pleadings suggest that the appellant had been a mechanical engineer with Public Works for about 15 years when he took leave without pay in 1990 to work in the private sector. He was still on such leave when he was declared surplus to department requirements on October 12, 1994. However, according to the Work Force Adjustment Directive (“WFAD”), which formed part of the relevant collective agreement, he could not be laid off (even though he was on unpaid leave) until after a reasonable offer of another job in the Public Service had been offered to him and refused.
4 In purported compliance with the WFAD, the respondent employer made the appellant a job offer dated February 17, 1995 subject to “the approval of a volunteer’s resignation”. The offer, being conditional upon an incumbent’s willingness to vacate the position, did not satisfy the WFAD.
5 A couple of weeks later, the appellant indicated to the respondent his interest in obtaining early retirement benefits instead of returning to the department. He expressed a wish to take advantage of the ERI program for workers who had been declared surplus. He confirmed this preference by letter dated May 24, 1995. The dispute has thus gone on for close to ten years, almost five of them navigating the court hierarchy on this preliminary motion.
6 For reasons not disclosed in the record, the federal government divides employee benefits between those it negotiates as part of a collective agreement, like salary, and those it unilaterally provides by regulation, such as the ERI benefits. (Other sources of conditions or benefits are not relevant to this case.) The PSSRA scheme provides that the former, being part of a traditional collective bargaining framework, are arbitrable. The latter, being offered outside the framework of collective bargaining, are not.
7 The ERI program, which as stated was not part of the collective agreement, came into force on April 1, 1995. The respondent (wrongly) took the position that the appellant’s refusal of the earlier (conditional) job offer had discharged its obligations under the WFAD and that he was not surplus and therefore ineligible for the ERI benefit.
A. The Successive Grievances
8 The appellant filed an initial grievance alleging “that the WFAD provisions had been contravened”, i.e. that he had not received a reasonable job offer. This initial grievance included a claim to a “separation benefit” under art. 7.3.1 of the WFAD. It did not include a claim for wrongful denial of the ERI benefit.
9 The appellant’s grievance was allowed on December 12, 1996 at the second (internal) departmental review level, which concluded:
However, the corrective action you requested, that is for your lay-off to be rescinded, is not possible under the Public Service Employment Act . Therefore, in order for you to be reinstated into the Public Service, the Deputy Minister has given instructions to regional management to identify and offer you a position.
10 The respondent then made the appellant an unconditional job offer on December 24, 1996, which, according to his own pleading, he accepted on January 10, 1997. On February 17, 1997, he failed to report for duty as required, and was laid off in accordance with the WFAD. Further grievance proceedings followed. As the WFAD formed part of the collective agreement, the lay off was arbitrable. An independent arbitrator subsequently confirmed that the second lay-off was proper. The appellant was granted severance benefits under the WFAD. However, the arbitrator correctly noted that he had no authority to deal with the appellant’s claim to ERI benefits.
B. The Action
11 On January 29, 1999, the appellant started an action in negligence against the respondent alleging that it “knew, or ought to have known, that a reasonable job offer had not been provided to the [appellant] and that the [appellant] was eligible for ERI” (statement of claim, at paras. 31-32). It is the negligence action that the respondent employer is attempting to have struck out. The appellant presumably felt obliged to frame his action, with a degree of artificiality, in the tort of negligence to circumnavigate the PSSRA . However, as our present Chief Justice wrote in Weber, at para. 49: _One must look not to the legal characterization of the wrong, but to the facts giving rise to the dispute.” Here the facts quite clearly arise out of the employer-employee relationship.
II. Relevant Statutory Provisions
12 The relevant provisions of the PSSRA are set out in the reasons of my colleague Justice Bastarache.
III. Analysis
13 Labour relations has long been recognized as a field of specialized expertise. The courts have tended in recent years to adopt a hands-off (or _deferential_) position towards expert tribunals operating in the field, including arbitrators. The posture of deference was crystallized in Weber where this Court established a _bright line_ demarcation in the case of disputes governed by the sort of labour relations legislation that typically exists across Canada and which provides for compulsory arbitration. In such cases, if the dispute between the parties in its _essential character_ arises from the interpretation, application, administration or violation of the collective agreement, it is to be determined by an arbitrator appointed in accordance with the collective agreement, and not by the courts.
14 The Weber approach was extended beyond collective agreements to a statutory (not collective bargaining) regime in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, _2000_ 1 S.C.R. 360, 2000 SCC 14. That case involved a statutory regime for police discipline. Bastarache J., for the Court, held at para. 26:
. . . the rationale for adopting the exclusive jurisdiction model was to ensure that the legislative scheme in issue was not frustrated by the conferral of jurisdiction upon an adjudicative body that was not intended by the legislature.
15 The present appeal carries the debate a step further, and raises the question whether the doctrine of judicial restraint (or deference) preached in the Weber line of authorities applies to the statutory labour relations scheme set out in the PSSRA which does not in its relevant aspects provide for independent adjudication. As stated, the dispute here is over a benefit unilaterally conferred by the employer, in respect of which Parliament has vested the final decision in the Deputy Minister or his or her designate without recourse to independent adjudication. If such restraint is not mandatory (as it was in Weber), is restraint nevertheless necessary to avoid undermining Parliament’s intent as expressed in the labour relations statute?
16 The respondent claims, and my colleague Bastarache J. agrees at para. 60, that the legislative scheme under the PSSRA was intended by Parliament to be _comprehensive_. Why then should it not be respected? My colleague writes at para. 72:
While I agree that the regime in this case is comprehensive, this is not enough. Courts retain residual jurisdiction in cases where an aggrieved employee has no recourse to independent adjudication.
17 I agree that the courts retain “residual jurisdiction” in this case. I do not agree that the absence of “recourse to independent adjudication” is of itself a sufficient reason for the courts to get involved.
A. The Whistle-Blower Cases
18 Subsequent to Weber, a number of actions were started in the provincial superior courts by federal government employees who complained of employer retaliation or harassment by their superiors allegedly arising out of blowing the whistle on government waste or abuse. For various reasons, these complaints were grievable under s. 91 but not arbitrable under s. 92 of the PSSRA .
19 In Pleau (Litigation Guardian of) v. Canada (Attorney General) (1999), 182 D.L.R. (4th) 373 (N.S.C.A.), the plaintiff alleged that he suffered harassment because he reported _what he believed to be evidence of misconduct in the operation of a government facility_ (p. 380). In Guenette v. Canada (Attorney General) (2002), 60 O.R. (3d) 601 (C.A.), two employees in the Department of Foreign Affairs and International Trade complained of _punitive steps_ taken by their superiors because they reported _mismanagement and waste of taxpayers_ money” (para. 1) in respect of properties held abroad. In both cases, the actions were allowed to proceed.
20 The courts were understandably reluctant to hold that in such cases the employees_ only recourse was to grieve in a procedure internal to the very department they blew the whistle on, with the final decision resting in the hands of the person ultimately responsible for the running of the department under attack, namely the Deputy Minister (or designate). The judges concluded that at some point their complaints should be dealt with by an adjudicator independent of the department but that the PSSRA did not provide for it. In both cases, it was pointed out that the _exclusivity_ language of ss. 91 to 96 of the PSSRA was weaker than the labour relations provision at issue in Weber. The legislative door had been left open enough for the judiciary to enter.
21 In Pleau, Cromwell J.A. concluded that Parliament_s intent in ss. 91 and 92 of the PSSRA , unlike the Ontario Legislature’s intent in the Labour Relations Act, R.S.O. 1990, c. L.2 (now 1995, c. 1, Sch. A), at issue in Weber, was not to oust the jurisdiction of the courts, at least not in those cases where no independent arbitration was provided for. He relied on the statement in Weber, at para. 54, that courts “possess residual jurisdiction based on their special powers” (p. 403). He also stated, at p. 381:
While it takes very clear language to oust the jurisdiction of the superior courts as a matter of law, courts properly decline to exercise their inherent jurisdiction where there are strong policy reasons for doing so.
Cromwell J.A. acknowledged at pp. 387-88 that “an express grant of exclusive jurisdiction is not necessary to sustain judicial deference to the statutory dispute resolution process”, citing Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298.
22 In the course of his reasons, however, Cromwell J.A. deduced from Weber the principle that “the capacity of the scheme to afford effective redress must be considered. Simply put, the concern is that where there is a right, there ought to be a remedy” (p. 391 (emphasis in original)). I agree (as did Evans J.A. in the courts below) that this feature is a factor for consideration, but I do not agree with the appellant that the absence of independent adjudication is conclusive. The 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 .
23 The appellant relies in particular on the conclusion of Cromwell J.A. in Pleau that
[i]n my opinion, access to the grievance procedure without the right to test the outcome by adjudication on the merits by a third party does not constitute effective redress for the alleged wrongdoing in this case. [Emphasis added; p. 404.]
I underline the words “in this case” because Pleau dealt with the alleged harassment of a whistle-blower and raised serious questions of conflicted interests within the employer department, whereas the appellant’s claim here is an ordinary garden variety employment benefit case.
24 In Guenette, another whistle-blower case, the Ontario Court of Appeal, citing Pleau, refused to defer to the PSSRA s. 91 procedure on the basis 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”:
The respondents concede that the appellants’ claims are not subject to adjudication under the PSSRA . In my view, the argument for deference simply dissolves with this concession. Deference to another adjudicative body is one thing; deference to a scenario where there would be no adjudication at all is an entirely different matter. [Emphasis added; para. 69.]
See also Yearwood v. Canada (Attorney General) (2002), 216 D.L.R. (4th) 462, 2002 BCCA 427, at paras. 77-78.
25 I do not agree that “the argument for deference simply dissolves”. What seems to have begun as a narrow ruling in Pleau has ripened in the hands of the appellant into a general proposition that in the cases of disputes that are grievable but not arbitrable a government employee has the option of going to court. I do not agree. The argument rests in part on the fallacy that under the usual labour relations regime an employee is entitled to carry a grievance to arbitration. This is not so. The party to the collective agreement is the union, and the union may or may not decide to carry an employee’s grievance forward based on many considerations which will include, but are certainly not limited to, its merits.
26 Moreover, in the usual labour relations context, many issues are reserved to the discretion of management. Not every dispute is necessarily grievable, much less arbitrable. There is nothing objectionable, in my view, in putting benefits earned through collective bargaining (such as a salary) on a different footing in terms of dispute resolution than benefits unilaterally conferred by regulation. The fact that only the former may go to arbitration (if the union wishes) reflects their different origins. When a benefit is conferred by statute or regulation, the conferring legislature is entitled to specify the machinery for its administration (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), [2001] 2 S.C.R. 781, 2001 SCC 52), subject to a dissatisfied party having recourse to judicial review.
B. The Jurisdiction of the Court Is Not Ousted
27 In Guenette, MacPherson J.A. agreed with Cromwell J.A.’s analysis in Pleau, and highlighted the “limited” privative clause in s. 96(3) of the PSSRA :
96. . . .
(3) Where a grievance has been presented up to and including the final level in the grievance process and it is not one that under section 92 may be referred to adjudication, the decision on the grievance taken at the final level in the grievance process is final and binding for all purposes of this Act and no further action under this Act may be taken thereon.
28 Both courts also fastened on the words in s. 91 that the employee is “entitled” to grieve as showing that the s. 91 procedure is just one of the employee’s options. A similar point was taken by the Ontario Court of Appeal in Danilov v. Atomic Energy Control Board (1999), 125 O.A.C. 130, at para. 11. For the reasons given by my colleague Bastarache J., I do not agree with this interpretation. The word “entitled” in s. 91 simply recognizes that an employee is not required to grieve every decision that he or she disagrees with.
29 The conclusion reached in Pleau and Guenette, which I accept, that the wording of the PSSRA is not strong enough to “oust” the court’s jurisdiction in all matters grievable under s. 91 but not arbitrable under s. 92 , still leaves open the further question of how the court should exercise its residual discretion in light of the labour relations scheme enacted by the PSSRA .
C. The Statutory Scheme
30 The PSSRA provides in its relevant parts of s. 91 that a federal government employee may present a grievance where he or she feels _aggrieved_
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 . . . .
The appellant’s claim for ERI benefits clearly fell within the scope of this grievance procedure. It is true that the courts will retain jurisdiction if the remedy sought is not one which the statutory scheme can provide (St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704, at p. 724; Weber, at para. 57) but that is not a problem here. The statutory decision-maker under s. 91(1) of the PSSRA (though not an arbitrator under s. 92 ) could order the respondent to provide the appellant with the ERI benefits.
31 The grievance may be pursued up to the level of Deputy Minister, but not beyond (subject to judicial review) unless the grievance arises out of an arbitral award or the interpretation or application of a collective agreement (as in Johnson-Paquette v. Canada (2000), 253 N.R. 305 (F.C.A.), and Gaignard v. Canada (Attorney General) (2003), 232 D.L.R. (4th) 43 (Ont. C.A.)), or results in suspension or financial penalty, termination of employment or demotion in which case it may be referred to adjudication by an independent arbitrator. None of the exceptions applied to the appellant’s claim for ERI benefits. The dispute was therefore not eligible for third-party adjudication.
32 Parliament’s intent expressed in ss. 91 , 92 and 96(3) of the PSSRA is clearly to deny access to third-party arbitration in the case of regulation-conferred benefits such as the ERI. No constitutional challenge is made to the PSSRA . The question, therefore, is whether the Court should offer a forum to resolve such employee benefits issues to run concurrently with the internal departmental grievance procedure under s. 91 of the PSSRA .
D. Why the Court Should Generally Decline to Exercise Its Jurisdiction in PSSRA Matters
33 As stated, the language of the PSSRA is not strong enough to oust the jurisdiction of the ordinary courts with respect to matters grievable but not arbitrable. The question before us is whether the courts should nevertheless defer to the PSSRA grievance procedure in this case. I believe it should.
34 Firstly, the language of the PSSRA sends an unambiguous signal that in the run-of-the-mill case of benefits conferred by a regulation outside the collective agreement, the decision of the Deputy Minister or his or her designate should be final.
35 Secondly, the present dispute arises from the employment relationship and falls within the dispute resolution scheme set out in the PSSRA .
36 Thirdly, the appellant’s claim to ERI could have been remedied in the s. 91 grievance procedure. As the Manitoba Court of Appeal stated in Phillips v. Harrison (2000), 196 D.L.R. (4th) 69, 2000 MBCA 150: “What is important is that the scheme provide a solution to the problem” (para. 80).
37 Fourthly, the appellant’s legal position should not be improved by his failure to grieve the ERI issue. The dispute resolution machinery under s. 91 was there to be utilized. Efficient labour relations is undermined when the courts set themselves up in competition with the statutory scheme (St. Anne Nackawic, at p. 718; Weber, at para. 41; Regina Police, at para. 26). I do not agree with the appellant’s broad suggestion, however obliquely made, that the departmental procedure reeks of conflict of interest. The appellant’s own success with his 1995 grievance shows this not to be true in practice. The suggestion that departmental officials have an interest in denying ERI benefits to an employee who comes within the applicable policies so as to constitute some sort of institutional bias is simply not credible. If the facts in another case were to disclose a more particular and individualized conflict problem (as in the whistle-blower cases) other considerations will come into play.
38 Fifthly, I do not accept for reasons already expressed, the central assumption of the appellant’s argument that comprehensive legislative schemes which do not provide for third-party adjudication are not, on that account, worthy of deference. It is a consideration, but in the case of the PSSRA it is outweighed by other more persuasive indications of clues to parliamentary intent.
39 Sixthly, where Parliament has clearly created a scheme for dealing with labour disputes, as it has done in this case, courts should not jeopardize the comprehensive dispute resolution process contained in the legislation by permitting routine access to the courts. While the absence of independent third-party adjudication may in certain circumstances impact on the court’s exercise of its residual discretion (as in the whistle-blower cases) the general rule of deference in matters arising out of labour relations should prevail.
40 Seventhly, the fact that we are dealing with a labour dispute almost a decade old demonstrates (if demonstration is necessary) that more informal dispute resolution procedures are generally faster, cheaper, and get the job done.
41 Finally, the dispute in question is entirely straightforward. Under the collective agreement, the appellant was entitled to another job. According to his statement of claim, he was eventually offered a suitable job and he accepted it. Following a further dispute, he was terminated but received (according to the independent arbitrator) the separation benefits to which he was entitled under the collective agreement, as set out in art. 7.3.1 of the WFAD. Whether or not he should have been given the alternative of ERI benefits under a program adopted by the federal government to manage the size of its workforce by shedding surplus employees was essentially an administrative matter best left to the administrators. If this simple ERI issue can be litigated in the courts, so can every other regulation-conferred benefit applicable to over a quarter of a million employees of the federal public service. The outcome could give a new dimension to the concept of “floodgates”.
IV. Conclusion
42 The appellant ought to have proceeded with the remedies granted by Parliament under the PSSRA . It was not open to him to ignore the PSSRA scheme and litigate his claim to ERI benefits in the courts by dressing it up as a “negligence” action. I would dismiss the appeal with costs.
The reasons of McLachlin C.J. and Bastarache J. were delivered by
Bastarache J. (dissenting) —
I. Introduction
43 This case requires our Court, once again, to examine the scope of the exclusive jurisdiction model adopted for the resolution of labour disputes. We are asked to look at the rationale underlying the decisions in St. Anne Nackawic Pulp & Paper Co. v. Canadian Paper Workers Union, Local 219, [1986] 1 S.C.R. 704; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; and Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, to determine whether the exclusive jurisdiction model should apply to the grievance procedure established under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (“PSSRA ”), so as to oust the jurisdiction of the Federal Court. Various provincial appellate courts and the Federal Court of Appeal have come to different conclusions on the issue, this divergence of opinions resulting mainly from different approaches regarding the lack of access in the administrative scheme to adjudication by an independent decision-maker.
44 As explained below, it is my view that although the PSSRA creates a comprehensive scheme for dealing with labour disputes, courts should refrain from preventing access to independent adjudication in the absence of a clear manifestation of Parliament’s intent in this regard. The availability of judicial review for decisions taken at the final level of the grievance process under the PSSRA cannot compensate for the dearth of independent adjudication of claims on their merits.
II. Facts
45 The appellant was employed as a mechanical engineer with the Department of Public Works from 1975 until 1996. He was notified in October 1994 that he was surplus and that he would be laid off as of April 12, 1995. Under the Work Force Adjustment Directive (“WFAD”) he was entitled to receive at least one reasonable job offer within the public service before being laid off. In February 1995, the appellant was offered another position, with an effective date to be determined. The appellant advised his employer that he understood that an early retirement incentive (“ERI”) program would soon be available, and requested that he be provided with benefits under the program as of April 1, 1995, when it would become available. The benefits were not offered under the terms of the collective agreement but were made available under the Retirement Compensation Arrangements Regulations, No. 2, SOR/95-169, made pursuant to the Special Retirement Arrangements Act , S.C. 1992, c. 46 , Sch. 1. Benefits under the program were not available to employees who had received a reasonable job offer before leaving the federal public service. Meanwhile, the appellant’s lay-off date was extended to July 12, 1995. The appellant indicated that he did not regard the job offer as reasonable, since it was subject to conditions. His application for ERI was nonetheless rejected on the basis that he had received a reasonable job offer, and since he had not accepted the offer, he was advised that his lay-off would be effective February 23, 1996.
46 The appellant filed a grievance alleging non-compliance with the WFAD and his grievance was allowed at the second level. The Executive Committee of the National Joint Council found that the job offer was not reasonable and that his lay-off was therefore not in accordance with the WFAD. He was then offered an indeterminate, unconditional appointment equivalent to his previous position. He advised the supervisor that his employment in the private sector made it unlikely that he would be able to start the new position for several months. He was told that failure to report to work on the effective date would be regarded as rejection of the offer of employment. The appellant advised that he intended to take his grievance to the next level of the process, since his claim for ERI benefits had not been addressed. The respondent treated this as a rejection of the offer of employment. The appellant’s grievance was referred to an independent adjudicator under s. 92 of the PSSRA . The adjudicator confirmed the conclusion of the National Joint Council, and found that his surplus status should have been extended until February 17, 1997. He also found that the second offer was reasonable and had been rejected by the appellant’s failure to report to work. The adjudicator ordered that the appellant be paid the separation benefits to which he was entitled under the collective agreement, but stated that he had no authority to determine the appellant’s eligibility for ERI benefits because they arose from statute and not from the collective agreement.
47 The appellant instituted no further proceedings in respect of the Adjudicator’s decision but rather commenced an action in negligence against the respondent claiming that his employer had failed to take the steps necessary to enable him to receive the benefit of the ERI program, and claimin