KALIKA SARAH BREAU Applicant (Responding party) v. ATTORNEY GENERAL OF CANADA, 2022 FC 98

Date: 20220127 Docket: T-422-21 Citation: 2022 FC 98 Ottawa, Ontario, J anuary 27, 2022 PRESENT: The Honourable Mr. Justice Pamel BETWEEN: KALIKA SARAH BREAU Applicant (Responding party) and ATTORNEY GENERAL OF CANADA Respondent (Moving party) ORDER AND REASONS [ 1 ] This is a motion in writing by the respondent under

section 369 of the Federal Courts Rules , SOR/98-106 , to strike the application brought by the applicant, Ms. Breau, seeking judicial review of a decision by Public Services and Procurement Canada [PSPC] to revoke her reliability status on the grounds that there existed reasonable cause to believe that Ms. Breau represented a security risk, and to terminate her employment. [ 2 ] The facts of the matter are relatively straightforward. On or about July 3, 2019, Ms.

Breau was pulled over by the Royal Canadian Mounted Police while she was driving her boyfriend’s car; as it turned out, there was reason to believe that Ms. Breau’s boyfriend was a known criminal with links to organized crime. Ms. Breau was advised on August 27, 2019, that PSPC had undertaken a review of her reliability status and that pending the conclusion of the investigation, her reliability status was suspended; the following day, on August 28, 2019, Ms.

Breau was invited to a meeting, without her union representative being permitted to attend, and temporarily suspended from her duties without pay [Suspension Decision]. With the assistance of her union, the Public Service Alliance of Canada, Ms. Breau filed a grievance of the Suspension Decision on October 28, 2019, requesting that her pay be reinstated pending the outcome of the investigation. The grievance was rejected by PSPC on the grounds that it was not timely: the grievance had been presented more than 25 days from the date on which she was notified of the decision giving rise to the grievance.

PSPC also advised Ms. Breau that her suspension was not disciplinary, but rather administrative in nature, which is was why she was not entitled to have a union representative accompany her during the meeting of August 28, 2019. The grievance of the Suspension Decision has since been referred to the Federal Public Sector Labour Relations and Employment Board [Board] it is not clear whether the hearing has taken place. [ 3 ] In any event, the investigation relating to Ms.

Breau continued and, on January 20, 2021, PSPC issued a letter to her outlining the findings of the investigation and the decision of PSPC’s Chief Security Officer to permanently revoke her reliability status [Revocation Decision]; this led to the termination of her employment on February 16, 2021 [Termination Decision]. Ms. Breau filed a grievance against both decisions 10 days later.

The grievance is to be heard, at the final level of the grievance process, before the Assistant Deputy Minister of PSPC’s Human Resources Branch and, if denied, may be referred to the Board; where the grievance presently stands in the process is not clear. [ 4 ] The underlying application for judicial review was filed on March 5, 2021. It seeks to set aside the Revocation Decision and the Termination Decision on the grounds, inter alia , that the decisions were unreasonable and that PSPC breached the duty to procedural fairness it owed to Ms.

Breau in the course of its investigation, in particular by not permitting full and adequate representation by counsel during the investigation process, by failing to allow Ms. Breau to make a full defence to the claims against her by way of an in-person hearing, and by failing to render its decision in a reasonable and timely manner. It should be made clear that the underlying application does not relate to the Suspension Decision. [ 5 ] There is no doubt that

section 208 of the Federal Public Sector Labour Relations Act , SC 2003, c 22, s 2 [ Act ], provides federal employees with a broad right to grieve, including in situations of a revocation of reliability status and termination ( Canada (Attorney General) v Féthière , 2017 FCA 66 ; Bergey v Canada (Attorney General) , 2017 FCA 30 ). Ms. Breau argues that that may be so, but that what is unclear is whether the jurisdiction of the Board extends to arguments of procedural fairness, as is the case here. I do not agree with Ms.

Breau; the Board has full competence to investigate the circumstances surrounding the revocation and termination of Ms. Breau ( Canada (Attorney General) v Heyser , 2017 FCA 113 at para 79 ), and I have not been convinced that any possible breach of procedural fairness that may justify the setting aside of the lower decision may not be corrected at the Board level.

Any procedural fairness defects in the investigative or grievance process are cured by a hearing de novo before the Board ( Tipple v Canada (Treasury Board) , [1985] FCJ No 818 (FCA) ; Philps v Canada Revenue Agency , 2016 PSLREB 110 at para 82 ). [ 6 ] Ms.

Breau must exhaust all adequate remedial recourses in the administrative process before filing an application for judicial review with the courts ( Canada (Border Services Agency) v CB Powell Limited , 2010 FCA 61 at para 30 [ CB Powell ]), and allegations of breaches of procedural fairness “are not exceptional circumstances allowing parties to bypass an administrative process, as long as that process allows the issues to be raised and an effective remedy to be granted” ( CB Powell at para 33 ). The matters raised by Ms. Breau are not only grievable under

section 208 of the Act but are also eligible for referral to adjudication under

section 209. A matter that is grievable cannot be the subject of an application for judicial review if the grievance process has not been completed ( McCarthy v Canada (Attorney General) , 2020 FC 930 at paras 33-34 and 37 [ McCarthy ]). This is true even if the grievance cannot be referred to adjudication ( McCarthy at paras 31, 33-34, 37, 40 and 41 ). [ 7 ] As was recently stated by the Federal Court of Appeal in Herbert v Canada (Attorney General), 2022 FCA 11 at paragraph 9 :

[9] The principle of j udicial non-interference with ongoing administrative processes is important because it “prevents fragmentation of the administrative process and piecemeal court proceedings, eliminates the large costs and delays associated with premature forays to court and avoids the waste associated with hearing an interlocutory judicial review when the applicant for judicial review may succeed at the end of the administrative process anyway” .

This principle allows reviewing courts, when a matter comes to them “at the end of the administrative process”, to “have all of the administrative decision-maker’s findings” , which “may be suffused with expertise, legitimate policy judgments and valuable regulatory experience” ( CB Powell at para. 32 ). [ 8 ] Under the circumstances, I find that the underlying application for judicial review is “so clearly improper as to be bereft of any possibility of success” ( Canada (National Revenue) v JP Morgan Asset Management (Canada) Inc , 2013 FCA 250 , [2014] 2 FCR 557 at para 47 ).

Allowing this application to proceed before this Court in these circumstances would short-circuit administrative decision- making, flout Parliament’s intent that all employment-related disputes be dealt with under the comprehensive scheme legislated in the Act and deprive the Court of a full record bearing on the issue ( Xanthopoulos v Canada (Attorney General) , 2020 FC 401 at para 22 ). [ 9 ] As to costs, there is no reason to depart from the usual practice of granting costs to the successful party on a motion.

ORDER in T-422-21 THIS COURT ORDERS that the motion to strike is granted and the application for judicial review struck, with costs in favour of the respondent. blank “Peter G. Pamel” blank Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-422-21 STYLE OF CAUSE: KALIKA SARAH BREAU v ATTORNEY GENERAL OF CANADA MOTION IN WRITING CONSIDERED AT OTTAWA, ONTARIO PURSUANT TO RULE 369 OF THE FEDERAL COURTS RULES ORDER AND reasons: PAMEL J. DATED: JANUARY 27, 2022 APPEARANCES : Brian F.P. Murphy, Q.C.

For The APPLICANT (Responding party) Marie-France Boyer For The respondent (Moving party) SOLICITORS OF RECORD : Forté Law Droit Moncton, New Brunswick For The APPLICANT (Responding party) Attorney General of Canada Ottawa, Ontario For The respondent (Moving party)