DENEACE GREEN Plaintiff v. CANADA BORDER SERVICES AGENCY (CBSA), 2018 FC 414

Date: 20180417 Docket: T-1311-17 Citation: 2018 FC 414 Ottawa, Ontario, April 17, 2018 PRESENT: The Honourable Mr. Justice LeBlanc BETWEEN: DENEACE GREEN Plaintiff and CANADA BORDER SERVICES AGENCY (CBSA) Defendant ORDER AND REASONS [ 1 ] Before the Court is a motion in writing by the Defendant under rules 221 (

a) and (

f) of the Federal Courts Rules , SOR/98-106 (the Rules), for an order striking the Plaintiff’s Statement of Claim on the basis that it discloses no reasonable cause of action and is otherwise an abuse of process. [ 2 ] The Statement of Claim was filed on August 22, 2017.

The Plaintiff seeks from the Defendant general, aggravated, punitive, exemplary and special damages in the amount of 6 million dollars, claiming that throughout the course of her employment with the Defendant, the Defendant has harassed her and otherwise treated her in a very condescending, demeaning, and prejudicial manner, especially by being guilty of racial discrimination. The Statement of Claim summarises the Defendant’s alleged discriminatory conduct as follows: 6.

Throughout the course of the Plaintiff’s employment with the Defendant the Defendant has been guilty of the following types of discriminatory conduct inter alia: (

a) requiring the Plaintiff to work eight-hour shifts without being allowed to take a lunch break or dinner break; (

b) refusing to accept certified sick leave as such and requiring the Plaintiff to take vacation instead; (

c) not permitting the Plaintiff to take time to visit doctor and other medical service personnel when the Plaintiff required the same for the purpose of various health problems and health concerns that the Plaintiff had; (

d) wrongfully alleging that the Plaintiff had made inappropriate use of a government credit card; (

e) wrongfully alleging that the Plaintiff had left her workstation “unattended” knowing that allegation to be false and untrue; (

f) refusing to intervene on behalf of the Plaintiff when she was subjected to unwarranted and unnecessary searches of her person by the Canadian Air Transport Security Authority and denying that such unwarranted and unnecessary searched occurred as a result of racial profiling which was clearly the case; (

g) making allegations that the Plaintiff wanted to make an illegal arrest in spite of the fact that an arrest was clearly not warranted for the following reasons; i there was no danger to the public; ii the dog was no longer in an inhumane carrying bag (kennel), i.e., there was no need to stop the repetition of an offence; iii the Plaintiff knew the identity of the traveler; iv Court appearance was not required because the penalty for the violation would have been an administrative penalty, not one of a criminal nature; v there was no evidence to preserve that would have warranted an arrest. (

h) using crude and offensive language in a written report concerning the Plaintiff; (

i) accusing the Plaintiff of using offensive language in her report; (

j) alleging that the Plaintiff disobeyed direct orders from a supervisor; (

k) allegations of lack of integrity; (

l) tampering with the Plaintiff’s electronic file in order to give credence to fabricated allegations against the Plaintiff; (

m) alleging that the Plaintiff had falsified doctor’s reports concerning accommodated duties and disregarded specific note

dated November 25, 2015, from Doctor Anozie thereby requiring the Plaintiff to resubmit this note a second and third time; (

n) making false allegations against the Plaintiff that the Plaintiff was able to carry out her normal duties and expectations ofher employment when she had in fact been injured on the job and was suffering workplace injuries making it very difficultfor her to carry out her normal duties as a border services officer; (

o) manager forced the Plaintiff out of her accommodated position (given as a result of her injuries) so that a family member(her daughter) could take over the job; (

p) failure to cooperate with the Worker’s Compensation Board of Alberta with respect to injuries suffered by the Plaintiffduring her employment with the Defendant; (

q) failure to provide reports as required to the Worker’s Compensation Board of Alberta as requested by the said board inrelation to the Plaintiff’s injuries suffered while on the job carrying out her duties with the Defendant as a border servicesofficer; (

r) making false allegations with respect to the Plaintiff being over paid and garnishing the Plaintiff’s wages; (

s) making false and malicious allegations that the Plaintiff was falsifying or exaggerating her injuries suffered on the jobwhich injuries made it very difficult for the Plaintiff to carry out her normal duties as a border services officer; (

t) refusing to allow the Plaintiff to carry out certain work duties of a less stressful nature when the Plaintiff was sufferingfrom workplace related injuries; (

u) requiring the Plaintiff to go to doctors of the Defendant’s choosing rather that visiting her own doctor in relation to herworkplace injuries; (

v) many other allegations of a similar nature, the detail of which are capable of being proven at the trial of this action. [3] The Defendant claims that the Plaintiff’s action is barred by

section 236 of the Federal Public Sector Labour Relations Act, SC2003, c 22, s 2 [the Act] as, at all material times, the Plaintiff either filed a grievance or had the ability to file a grievance in relation to thematters raised in the Statement of Claim. [4]

Section 236 reads as follows: "No Right of Action " "Absence de droit d’action ""Disputes relating to employment " "Différend lié à l’emploi ""236

(1) The right of an employee to seekredress by way of grievance for any disputerelating to his or her terms or conditions ofemployment is in lieu of any right of actionthat the employee may have in relation to anyact or omission giving rise to the dispute. " "236

(1) Le droit de recours du fonctionnairepar voie de grief relativement à tout différendlié à ses conditions d’emploi remplace sesdroits d’action en justice relativement auxfaits — actions ou omissions — à l’originedu différend. ""Application " "Application ""(2) Subsection (1) applies whether or not theemployee avails himself or herself of the rightto present a grievance in any particular caseand whether or not the grievance could bereferred to adjudication. " "

(2) Le paragraphe (1) s’applique que lefonctionnaire se prévale ou non de son droitde présenter un grief et qu’il soit possible ounon de soumettre le grief à l’arbitrage. " "Exception " "Exception ""(3) Subsection (1) does not apply in respectof an employee of a separate agency that hasnot been designated under subsection 209(3)if the dispute relates to his or her terminationof employment for any reason that does notrelate to a breach of discipline or misconduct." "

(3) Le paragraphe (1) ne s’applique pas aufonctionnaire d’un organisme distinct qui n’apas été désigné au

titre du paragraphe 209(3)si le différend porte sur le licenciement dufonctionnaire pour toute raison autre qu’unmanquement à la discipline ou uneinconduite. " [5] The test applicable on a motion to strike is well known: a claim will only be struck if it is plain and obvious, assuming the factspleaded to be true, that the pleading has no reasonable prospect of success (R v Imperial Tobacco Canada Ltd, 2011 SCC 42, [2011] 3SCR 45 at para 17; Hunt v Carey Canada Inc, (SCC), [1990] 2 SCR 959 at p. 980; Sivak v Canada, 2012 FC 272 at para15). [6] Here, I am satisfied that the Plaintiff’s action, which raises matters that are all employment-related, is barred by

section 236 of theAct and that the Defendant’s motion must therefore succeed. [7] As the Defendant correctly points out, while no evidence can be adduced on a motion brought under rule 221(a), evidence ispermitted on motions brought under rule 221(f), which applies where it is contended that a cause of action is beyond the Court’sjurisdiction (Chase v Canada, 2004 FC 273 at para 6; Marshall v Canada, 2006 FC 51 at para 31). [8] The evidence I have before me on this motion shows that the Plaintiff has been employed by the Defendant for nearly eight yearsand continues to be employed as a Border Services Officer although she is currently on leave without pay.

It also shows that the Plaintiffgrieved a written reprimand that was given to her on March 17, 2014 for interacting disrespectfully with travellers at the CalgaryInternational Airport and that the grievance process is ongoing. It further indicates that the Plaintiff filed a harassment complaint under

Treasury Board’s policy on Harassment Prevention and Resolution on November 12, 2014 and that said complaint was dismissed onJanuary 13, 2016. [9] The Plaintiff argues that this Court has jurisdiction to hear her claim because the Constitution Act, 1982 supersedes all other Acts ofParliament (Constitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Constitution Act, 1982]). Therefore, shesubmits, she has the right to obtain remedy for the harassment and abuse of power she was subjected to through recourse to section 24(1)of the Canadian Charter of Rights and Freedoms (Part 1 of the Constitution Act, 1982 [Charter]). She further claims that under section17(1) of the Federal Courts Act, RSC 1985, c F-7 [Federal Courts Act], this Court has concurrent jurisdiction in all cases in which reliefis sought against the Crown. The Plaintiff asserts that rule 221 of the Rules and

section 236 of the Act do not supersede section 17(1) ofthe Federal Courts Act or any rights she may have under

section 24 of the Charter. However, this is incorrect. [10] The Plaintiff’s claim that

section 24 of the Charter allows her to seek remedy from this Court cannot be accepted for two reasons.First, the Statement of Claim contains no Charter breach allegations. She cannot obtain a remedy under

section 24 if her rights andfreedoms guaranteed under the Charter have not been infringed. Second, even if she had alleged infringement to her Charter rights, theinfringing actions, having occurred in the course of her employment, can be addressed through the grievance process (Weber v OntarioHydro, (SCC), [1995] 2 SCR 929 at paras 65-67; Duval c Canada (Procureur général), (QC CS)at para 50). [11]

Section 236 of the Act grants federal employees a right "“to seek redress by way of grievance for any dispute relating to his or herterms or conditions of employment”".

However, the right to seek redress by way of a grievance pre-empts any right of action theemployee may have that could be subject to a grievance, regardless of whether the employee exercises their right of grievance (section236(2) of the Act; Bron v Canada (Attorney General), 2010 ONCA 71 at para 33 [Bron]; Canada (Attorney General) v Robichaud, 2013NBCA 3 at para 16 [Robichaud]). [12] Subsection 236(3) of the Act provides for an exception to this rule for employees of a separate agency.

For the purpose of section236(3) of the Act, a ‘separate agency’ has the meaning given in subsection 11(1) of the Financial Administration Act, RSC 1985, c F-11[FAA], that is an agency listed in

Schedule V of the FAA. As the Defendant is not one of the agencies listed at

Schedule V of the FAA,the Plaintiff cannot benefit from the exception. [13] The right of a federal employee to file a grievance can be found at

section 208 of the Act. That provision grants federal employees abroad right to file grievances relating to their conditions of employment: Right of employee Droit du fonctionnaire 208

(1) Subject to subsections(2) to (7), an employee is entitledto present an individualgrievance if he or she feelsaggrieved 208

(1) Sous réserve desparagraphes (2) à (7), lefonctionnaire a le droit deprésenter un grief individuellorsqu’il s’estime lésé : (

a) by the

interpretation orapplication, in respect of theemployee, of

a) par l’interprétation oul’application à son égard : (

i) a provision of a statute orregulation, or of a direction orother instrument made or issuedby the employer, that deals withterms and conditions ofemployment, or (

i) soit de toute disposition d’uneloi ou d’un règlement, ou detoute directive ou de tout autredocument de l’employeurconcernant les conditionsd’emploi, (ii) a provision of a collectiveagreement or an arbitral award;or (ii) soit de toute dispositiond’une convention collective oud’une décision arbitrale; (

b) as a result of any occurrenceor matter affecting his or herterms and conditions ofemployment.

b) par suite de tout fait portantatteinte à ses conditionsd’emploi. [14] The grievance process is internal, relates to any occurrence or matter affecting the terms or conditions of employment, and proceedsaccording to established rules and procedures (Bron at para 14); this includes situations of discrimination in the workplace (seeChamberlain v Canada (Attorney General), 2012 FC 1027 [Chamberlain] and Stringer v Canada (Attorney General), 2013 FC 735).

Therole of this Court in claims subject to the grievance process is limited to judicial review (Robichaud at para 11; see also Price v Canada(Attorney General), 2016 FC 649 at para 14 [Price]). [15] The Plaintiff alleges in her Statement of Claim that the Defendant harassed her and discriminated against her during the course ofher employment.

As was the case in Price, the Plaintiff’s claim is firmly rooted in her employment relationship with the Defendant, asevidenced by the nature of the allegations listed at paragraph 6 of the Statement of Claim, which is reproduced above (Price at para 31). [16] And as was the case in Price, the grievance process found in the Act provides the only forum in which the Plaintiff may seek reliefagainst her employer, even in respect of allegations of bad faith, malice, harassment and discrimination (Price at para 33; Bron at para 7;Chamberlain at para 72).

Again, as subsection 236(2) clearly contemplates, the Court shall defer to the grievance process whether or not

the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication. [ 17 ] It is therefore plain and obvious that the Plaintiff could have grieved the issues raised in her action, as she did to some degree, and that this Court, as a result, lacks jurisdiction to entertain her action. In such context, contrary to the Plaintiff’s assertion,

section 236 of the Act supersedes

section 17 of the Federal Courts Act . [ 18 ] Given the outcome of the present motion, the Defendant is entitled to its costs. The Defendant proposes that costs be set at a fixed amount of $1,500.00. I find that this is a reasonable amount in the circumstances of this case. ORDER IN T-1311-17 THIS COURT ORDERS that 1 .

The motion to strike is granted, with costs payable by the Plaintiff in the fixed amount of $1,500.00. “René LeBlanc” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1311-17 STYLE OF CAUSE: DENEACE GREEN v CANADA BORDER SERVICES AGENCY (CBSA) MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND REASONS: LEBLANC J. DATED: April 17, 2018 SOLICITORS OF RECORD : Deneace Green Calgary, Alberta ON HER OWN BEHALF Attorney General of Canada Calgary, Alberta For The Defendant