2011 ONSC 6082, 2011 ONSC 6082

CITATION : Clout v. Government of Canada, 2011 ONSC 6082 COURT FILE NO.: 11-51003 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) KATHRYN ANN CLOUT ) ) ) Self-Represented ) Plaintiff/Responding Party ) ) - and - ) ) ) GOVERNMENT OF CANADA ) ) ) Helen Gray, for the Defendant/Moving Party ) Defendant/Moving Party ) ) ) ) MOTION HEARD: October 13, 2011 REASONS FOR JUDGMENT Power J. [ 1 ] Kathryn Ann Clout is a federal government employee. She brings this action against her employer.

In her Statement of Claim she seeks damages in the amount of $700,000 “for the pain and suffering and mental anguish suffered by the plaintiff”; punitive damages; and “compensation for loss of career opportunities.” She alleges that these damages were suffered by her “as a direct result of the retaliatory actions taken by the Defendant … as a result of a sexual harassment complaint submitted by the Plaintiff.” She alleges that a senior employee “threatened the Plaintiff that if she ever made a complaint of any kind with respect to his behavior towards her, she would be out of work.” She also alleges that her “work files” were removed from her care to the extent that she was left with “no work at all.” She also alleges that as a result of these and other wrongdoings on the part of her superiors her rights as an employee were adversely affected. [ 2 ] The defendant moves for an order striking out the claim of the plaintiff, in its entirety, on the grounds that this Court lacks jurisdiction over the subject matter of the claim and/or the claim discloses no reasonable cause of action. [ 3 ] At the conclusion of the argument on the return of the defendant’s motion I advised the parties that the motion was allowed and I indicated that I would subsequently release brief written reasons. [ 4 ] The position of the defendant, in a nutshell, is that the plaintiff’s claim is based on work-related harassment complaints she made to management, management’s handling of the complaints, and how these complaints allegedly impacted upon the plaintiff’s employment and life.

Counsel submits that “Parliament has entrusted the adjudication of these employment-related complaints to

legislatively-based processes and other tribunals, thereby depriving this Court of jurisdiction. [5] The defendant brings this motion pursuant to Rule 21.01(3) (

a) and Rule 21.01(1) (

b) of the Rules of Civil Procedure, R.R.O.1990, Reg. 194. Counsel argues that, pursuant to the latter provision, the test is whether it is plain and obvious on the facts as pleadedthat the action cannot succeed. Counsel submits that the allegations in the Statement of Claim do not give rise to a recognized cause ofaction and fails to contain the necessary legal elements of an otherwise recognized cause of action. [6] The authorities clearly establish that there is merit in the defendant’s motion on both grounds. In Vaughan v.

Canada, 2005SCC 11 , [2005] 1 S.C.R. 146 (S.C.C.), Binnie J. introduced the matter before the court as follows: 1 The terms and conditions of employment of the federal government's quarter of a million current workers are setout in statutes, collective agreements, Treasury Board directives, regulations, ministerial orders, and other documents that consumebookshelves of loose-leaf binders. Human resources personnel are recruited into the system, spend a career attempting to understand itand die out of it.

Procedures for the enforcement of employment rights and obligations also differ in some respects from those in theprivate 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 [page151] as theearly retirement incentive ("ERI") at issue in this case, are administered by the departments, including a three-stage internal grievanceprocedure, but are not arbitrable.

The Federal Court has taken the position that subject to the availability of judicial review, disputesfalling under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("PSSRA"), should be left to the specialized machinery therebyestablished 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 explicitouster of the jurisdiction of the courts as was the case in Weber v. Ontario Hydro, (SCC), [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, butnot arbitrable under s. 92, the courts should generally in my view, as a matter of discretion, decline to get involved except on the limitedbasis of judicial review. The facts of this case, insofar as we can ascertain them, afford a good illustration of why judicial restraint in thisarea is desirable. I would dismiss the appeal.

I pause to note that, in the case at bar, the issues and complaints raised by the plaintiff in her claim must be considered not only in thelight of the Public Service Staff Relations Act, (“PSSRA”) R.S.C. 1985, c.

P-35 but, as well, pursuant to the Public Service LabourRelations Act, (“PSLRA”) S.C. 2003, c. 22. [7] Binnie J., at para. 39 of the Vaughan decision had this to say: 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 thecourts.

While the absence of independent third-party adjudication may in certain circumstances impact on the court's exercise of itsresidual discretion (as in the whistle-blower cases) the general rule of deference in matters arising out of labour relations should prevail. [8] Counsel relies, as well, on the decision of Hackland J. in Van Duyvenbode v. Canada (Attorney General) 2007 CarswellOnt4368 (S.C.J.). The facts in the case before Hackland J. are quite similar to the facts in the case at bar. In Van Duyvenbode the plaintiffsought damages arising out of personal work-related complaints just as Ms.

Clout does in this case. I pause again to observe that, clearly,Ms. Clout’s claims arise out of personal work-related complaints. In each case, the plaintiffs declined to pursue their rights pursuant tothe relevant grievance procedures. Hackland J. wrote as follows: 9 The PSSRA and the PSLRA contain a comprehensive regulatory scheme for the resolution of employment-relateddisputes.

Section 91 of the PSSRA and

section 208 of the PSLRA allow an employee to grieve virtually all employment-related issues upto and including the final level of the grievance process. The right of an employee to refer a grievance to third-party adjudication islimited by

section 92 of the PSSRA and

section 209 of the PSLRA to events arising out of a collective agreement, discipline ortermination of employment. All other grievances are determined at the final grievance level. 10 Decisions made at the final level of the grievance process, and which could not be referred to adjudication, are finaland binding. Decisions made by adjudicators under the PSSRA or the PSLRA are not protected by a privitive clause and can be thesubject of a judicial review application. 11

Section 236 of the PSLRA is a new provision that is not in the PSSRA.

Section 236 provides that the right of anemployee to seek redress by way of grievance for any dispute relating to his or her terms and conditions of employment is in lieu of anyright of action that the employee may have in relation to any act or omission giving rise to the dispute. [9] Hackland J., in his reasons, also dealt with the issue as to whether this Court should exercise its residual jurisdiction. He hadthe following to say in paras. 17 through 20 inclusive:

17 As these cases point out, the court's residual jurisdiction under the PSSRA is very limited and should only beexercised in rare cases. The complaints raised by the plaintiff that pre-date May 1, 2005 in my view do not fall within this Court'sresidual jurisdiction and should be the object of a grievance. Any matters raised by the plaintiff that occurred after that date cannot bedealt with by this Court due to the express provisions of the PSLRA,

section 236. 18 As noted I do not accept the plaintiff's claim that he is a whistleblower. The Supreme Court in Fraser v. PublicService Staff Relations Board, (SCC), [1985] 2 S.C.R. 455 provided a working definition of what constitutes a"whistleblower". Dickson J. (at para. 41), speaking for the court, held that the whistleblower concept covers situations where a personpublicly discloses (

a) an illegal act by a public official or (

b) a government policy that jeopardizes the life, health or safety of the public.See also Stenhouse v. Canada (Attorney General), 2004 FC 375 , [2004] F.C.J. No. 469 (F.C.). 19 The jurisdiction of the whistleblower tribunal, created under the Public Servants Disclosure Protection Act S.C.2005, c. 46, provides guidance as to what constitutes whistleblowing acts and mirrors much of what was said in Fraser, particularly thatthere must be a public interest component. The scope of the whistleblowing legislation is defined in the Act as follows: 8. This Act applies in respect of the following wrongdoings in or relating to the public sector: (

a) a contravention of any Act of Parliament or of the legislature of a province, or of anyregulations made under any such Act, other than a contravention of

section 19 of this Act; (

b) a misuse of public funds or a public asset; (

c) a gross mismanagement in the public sector; (

d) an act or omission that creates a substantial and specific danger to the life, health or safety of persons, or to theenvironment, other than a danger that is inherent in the performance of the duties or functions of a public servant; (

e) a serious breach of a code of conduct established under

section 5 and 6; and (

f) knowingly directing a person to commit a wrongdoing set out in any of paragraphs (

a) to (e). 20 In order to assess whether the dispute falls within the so-called "whistleblower exception", this Court must (a)properly characterize the plaintiff's complaints and determine if they are of a kind that is foreseen by the whistleblower exception underVaughan and (

b) whether the adjudication would be left in the hands of the person ultimately responsible for the running of theorganization under attack.

I agree with the defendants' submission that the essential character of the plaintiff's complaints are aboutwrongs that have been perpetrated against him personally and not about institutional wrong-doing that has a public interest componentattached to it. [10] I note that Hackland J.’s decision was upheld in the Court of Appeal (2009 ONCA 11-Docket: C47912). [11] In the case at bar the plaintiff made three complaints – the first on February 12, 2004, the second on December 20, 2005 and athird on March 17, 2007. As aforesaid, Ms.

Clout did not file a grievance with respect to any of the allegations contained in thecomplaints. As observed by counsel for the defendant during her submissions, the allegations in the Statement of Claim “are not onlywholly related to the plaintiff’s employment, they also mirror the allegations set forth in the complaints.” [12] The evidence before the court establishes that at all material times Ms.

Clout’s employment was governed by a series ofcollective agreements which contained provisions clearly setting out an employee’s right to file grievances in respect of the type ofmatters alleged in the Statement of Claim. [13] Accordingly, I conclude that the claims being advanced by the plaintiff are claims that were required to be disposed of pursuantto the grievance provisions of the collective agreements and, therefore, this Court lacks jurisdiction to deal with them. There areabsolutely no circumstances pleaded in the Statement of Claim that would justify this Court exercising its residual jurisdiction.

AsBinnie J. stated, the comprehensive scheme for dealing with labour disputes set forth in the collective agreements and the governinglegislation should not be jeopardized by permitting routine access to this Court.

[ 14 ] I agree with the submission of counsel for the defendant that s. 236 of the PSLRA is an absolute bar to allegations that post-date April 1, 2005. [ 15 ] Insofar as the second ground of attack is concerned – no reasonable cause of action – it is plain and obvious on the facts as pleaded that the action cannot succeed. [ 16 ] For the foregoing reasons the motion of the defendant is allowed. An order will issue dismissing the action against the defendant. At the end of the oral submissions counsel for the defendant provided the court with a draft order.

I have reviewed the draft order and, it being appropriately worded, I have signed it. The signed order may be entered. Costs [ 17 ] The defendant was fully successful on its motion and, therefore, is entitled to an award of costs against the plaintiff. The defendant seeks partial indemnity fees totaling $5,995 and, in addition, disbursements of $1,106.19. The claim for fees is reasonable and should be allowed.

However, of the disbursements claimed in the amount of $1,106.19, $640.89 is represented by “copies.” As I pointed out in court, it was, and is, my opinion that it was not necessary to copy the entirety of the documents put before the court. Accordingly, I reduce the claim for disbursements from $1,106.19 to $500. Therefore, an order will issue requiring the plaintiff to pay the defendant’s costs fixed at the all-inclusive amount of $6,495. ___________________________ Power J. Released : October 14, 2011 CITATION : Clout v. Government of Canada, 2011 ONSC 6082 COURT FILE NO.: 11-51003

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: KATHRYN ANN CLOUT Plaintiff/Responding Party - and – GOVERNMENT OF CANADA Defendant/Moving Party REASONS FOR JUDGMENT Power J. Released : October 14, 2011