) ) MARTIN MCSWEENEY Respondent (Plaintiff) – v. –, 2017 ONSC 2886

CITATION : McSweeney v. Canada (Attorney General), 2017 ONSC 2886 DIVISIONAL COURT FILE NO.: 240/16 DATE: 20170509 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT KITELEY, SPIES and MATHESON JJ. BETWEEN: ) ) MARTIN MCSWEENEY Respondent (Plaintiff) – and – THE ATTORNEY GENERAL OF CANADA Appellant (Defendant) ) ) ) ) ) ) ) ) ) ) Ronald S.

Segal and Maria Constantine , for the Respondent (Plaintiff) Gillian Patterson and Jon Bricker , for the Appellant (Defendant) ) HEARD at Toronto: May 9, 2017 MATHESON J. (Orally) [ 1 ] This is an appeal from the order of Dow J. dated April 26, 2016 and amended April 28, 2016 ( 2016 ONSC 1862 ), which dismissed the Defendant’s motion to strike out the Statement of Claim in this action without leave to amend. Leave to appeal was granted by Nordheimer J. on August 18, 2016 ( 2016 ONSC 5268 ). [ 2 ] The underlying motion and this appeal were brought primarily on two bases:

(1) Rule 21.01(3)(a), being jurisdiction; and

(2) Rule 21.01(3)(d), being abuse of process. [ 3 ] In brief, the Plaintiff sues for wrongful dismissal arising out of his employment at the Canadian Security Intelligence Service. His termination from his employment took place because of the revocation of his security clearance, which was a condition of his employment. [ 4 ] Although the Statement of Claim is lacking in some detail as to the basis of the alleged “wrongful” dismissal, the parties agree that the alleged wrongful dismissal was based upon the revocation of the Plaintiff’s security clearance.

Thus, the essence of the alleged wrongful termination was the revocation of the security clearance. [ 5 ] On this appeal, counsel agree that the standard of review is correctness. [ 6 ] While various grounds of appeal were raised, we dispose of the jurisdictional branch of the appeal on the basis of s. 42 of the Canadian Security Intelligence Service Act (the “ CSIS Act” ). [ 7 ] The motions judge made no reference to s. 42, which we conclude was central to the motion.

The failure to consider and dispose of s. 42 is an error of law. [ 8 ] The legislative framework determines this jurisdictional appeal, beginning with s. 208 of Public Service Labour Relations Act (“ PSLRA ”). That

section provides that any employee is entitled to grieve certain matters, including the terms and conditions of employment, except that under s. 208(2), the employee may not grieve where an “administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act .” [ 9 ] We conclude that the controlling issue for this branch of the appeal is whether the complaint procedure commencing under s. 42 of the CSIS Act is an “administrative procedure for redress”. [ 10 ] The regime is set out in ss. 42 through 52 of the CSIS Act and includes a mandatory investigation by a specialized committee

called the Security and Intelligence Review Committee (“SIRC”). The statutory procedure includes the right to disclosure to the complainant, an investigation, the right to present evidence and make submissions, the right to counsel, and SIRC may summons witnesses and take evidence. SIRC may also request comments from the Canadian Human Rights Commission. [ 11 ] Ultimately, SIRC is required to report findings and recommendations to the Director. The Appellant concedes that recommendations could include damages for reasonable notice, as could a decision by the Director upon receipt of the recommendations.

The legislation does not limit the scope of the redress. [ 12 ] The complainant is entitled to the report from SIRC, including the recommendations and those findings that SIRC considers fit to report to the complainant. [ 13 ] Under the applicable Personal Security Standard promulgated pursuant s. 8 of the CSIS Act , upon receipt of the recommendations the Director shall make a decision in writing, which is also provided to the complainant. [ 14 ] There were submissions before us as to which course of action a complainant might take if dissatisfied with the Director’s decision, but we need not pursue those submissions on this appeal. [ 15 ] The Respondent submits that he could not take advantage of the regime commencing at s. 42 of the CSIS Act because he was, at the time, experiencing a mental health crisis, and he was unaware that under s. 42(4) of the CSIS Act he could request an extension of the 30 day time period.

However, he has, since then, never sought an extension at any time. [ 16 ] The above regime has been found to be a comprehensive statutory regime: Tremblay v. Canada , 2005 FC 728 , at para. 31 , aff’d, 2006 FCA 690 . We conclude that this regime is an administrative procedure for redress within the meaning of s. 208(2) that the Respondent ought to have pursued. [ 17 ] Because of this analysis, the regime created by s. 236 of the PSLRA and relied upon by the motions judge is irrelevant. [ 18 ] The second branch of the appeal is based on abuse of process.

The Respondent claims damages for salary and benefits during the pre-termination leave period. There is no dispute that these claims are grievable and that the Respondent made a number of grievances in that regard. For the most part, his grievances were dismissed as out of time and one of the grievances was dismissed on its merits. The Respondent did not challenge those decisions and could have done so. [ 19 ] We conclude that this attempt to re-litigate these issues, which were the subject of grievances, is an abuse of process.

The motions judge erred by not addressing that branch of the motion. [ 20 ] We therefore grant the appeal and set aside the decision of the motions judge. We substitute an order striking out the Statement of Claim without leave to amend. ENDORSEMENT – K iteley J. [ 21 ] I have endorsed the back of the Appeal Book and Compendium as follows: “Submissions heard. For oral reasons given, the appeal is allowed. The decision of the motions judge dated April 26, 2016 amended April 28, 2016 is set aside and the Statement of Claim is struck without leave to amend.

Counsel to advise in writing to the Registrar by May 15, 2017 at 4:30 p.m. whether they have reached agreement as to costs.” ___________________________ MATHESON J. I agree ___________________________ KITELEY J. I agree ___________________________ SPIES J. Date of Reasons for Judgment: May 9, 2017 Date of Release: May 11, 2017 CITATION : McSweeney v. Canada (Attorney General), 2017 ONSC 2886

CITATION : McSweeney v. Canada (Attorney General), 2017 ONSC 2886 DIVISIONAL COURT FILE NO.: 240/16 DATE: 20170509 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT KITELEY, SPIES and MATHESON JJ. BETWEEN: MARTIN MCSWEENEY Respondent (Plaintiff) – and – THE ATTORNEY GENERAL OF CANADA Appellant (Defendant) ORAL REASONS FOR JUDGMENT MATHESON J. Date of Reasons for Judgment: May 9, 2017 Date of Release: May 11, 2017