Rhéaume v. Canada (Attorney General), (2009) 362 F.T.R. 49 (FC)

• Judge: Mainville, J.
• Court: Federal Court (Canada)
• Case Date: November 24, 2009
• Jurisdiction: Canada (Federal)
• Citations: (2009), 362 F.T.R. 49 (FC);2007 FC 1273

Rhéaume v. Can. (A.G.) (2009), 362 F.T.R. 49 (FC)

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

.........................

Temp. Cite: [2009] F.T.R. TBEd. DE.028

Charlotte Rhéaume (demanderesse) v.  Le procureur générale du Canada (défendeur)

(T-1733-08; 2007 FC 1273; 2003 CF 1273)

Indexed As: Rhéaume v. Canada (Attorney General)

Federal Court

Mainville, J.

December 16, 2009.

Summary:

A Canada Customs and Revenue Agency employee's position involved GST work. Following an administrative reorganization, GST work was assigned to other administrative units in other cities. The employee retained her position, but was assigned different work, which she was dissatisfied with. With union support, the employee filed a grievance, which concerned the administrative reorganization, her lack of training, the contested assignment of duties, requests for priorities for other positions, etc. The grievance was unsuccessful at all levels within the Agency. When the union refused to refer the grievance to adjudication before the Public Service Labour Relations Board, the employee did so herself. An adjudicator dismissed the grievance for want of jurisdiction under s. 92 of the Public Service Staff Relations Act. The employee sought judicial review of the adjudicator's decision that he lacked jurisdiction under s. 92. Alternatively, if the adjudicator lacked jurisdiction, the employee applied to extend the limitation period under s. 18.1(2) of the Federal Courts Act to file a judicial review application respecting the Agency's original 2004 decision.

The Federal Court dismissed the application. Whether the standard of review was reasonableness or correctness, the adjudicator's decision that there was no jurisdiction under s. 92 was both reasonable and correct. The court declined to extend the limitation period for filing a judicial review application.

Administrative Law - Topic 9102

Boards and tribunals - Judicial review - Standard of review - [See Labour Law - Topic 9353 ].

Courts - Topic 4072

Federal Court of Canada - Jurisdiction - Federal Court - Practice - Limitation periods (incl. extension of) - A Canada Customs and Revenue Agency employee's position involved GST work - Following an administrative reorganization in 2004, GST work was assigned to other administrative units in other cities - The employee retained her position, but was assigned different work, which she was dissatisfied with - With union support, the employee filed a grievance, which concerned the administrative reorganization, her lack of training, the contested assignment of duties, requests for priorities for other positions, etc. - The grievance was unsuccessful at all levels within the Agency - When the union refused to refer the grievance to adjudication before the Public Service Labour Relations Board, the employee did so herself - An adjudicator dismissed the grievance for want of jurisdiction under s. 92 of the Public Service Staff Relations Act - The employee sought judicial review of the adjudicator's decision that he lacked jurisdiction under s. 92 - Alternatively, if the adjudicator lacked jurisdiction, the employee applied to extend the limitation period under s. 18.1(2) of the Federal Courts Act to file a judicial review application respecting the Agency's original 2004 decision - The Federal Court dismissed the application - The adjudicator's decision that there was no jurisdiction under s. 92 was both reasonable and correct - The court declined to extend the limitation period for filing a judicial review application under s. 18.1 of the Federal Courts Act - First, the application for an extension should have been made by a separate motion - In any event, the extension was denied where there was no continuing intention to pursue an application to judicially review the decision made five years earlier, the application lacked merit, there was no evidence that the Agency would not be prejudiced and there was no reasonable explanation for the delay - See paragraphs 50 to 54.

Labour Law - Topic 9102

Public service labour relations - Grievances - Matters referable to adjudication - A Canada Customs and Revenue Agency employee's position involved GST work - Following an administrative reorganization, GST work was assigned to other administrative units in other cities - The employee retained her position, but was assigned different work, which she was dissatisfied with - With union support, the employee filed a grievance, which concerned the administrative reorganization, her lack of training, the contested assignment of duties, requests for priorities for other positions, etc. - The grievance was unsuccessful at all levels - When the union refused to refer the grievance to adjudication before the Public Service Labour Relations Board, the employee did so herself - An adjudicator dismissed the grievance for want of jurisdiction under s. 92 of the Public Service Staff Relations Act - Since Agency employees were not public employees working for a portion of the public service listed under Part I, Schedule I (Agency excluded), the grievance could not be referred under s. 92(1)(b) - Since the union did not approve the referral, the grievance could not be referred under s. 92(1)(a) - The only other basis for jurisdiction was s. 92(1)(c), for grievances concerning "disciplinary action resulting in termination of employment, suspension or a financial penalty" - Although the employee attempted to now frame her grievance as involving a "constructive dismissal", the grievance involved a workforce adjustment, not constructive dismissal - The employee sought judicial review of the adjudicator's decision that he lacked jurisdiction under s. 92 - The Federal Court dismissed the application - Whether the standard of review was reasonableness or correctness, the adjudicator's decision that there was no jurisdiction under s. 92 was both reasonable and correct - See paragraphs 1 to 49.

Labour Law - Topic 9128

Public service labour relations - Adjudication of grievances - Jurisdiction of adjudicators or boards - [See Labour Law - Topic 9102 ].

Labour Law - Topic 9353

Public service labour relations - Judicial review - Decisions of adjudicators, arbitrators, grievance appeal boards or officers - Scope of review (incl. standard) - At issue was the standard of review of an adjudicator's decision concerning whether an employee's grievance could be referred to adjudication under s. 92 of the Public Service Staff Relations Act - The adjudicator had to interpret ss. 92 and 99 of the Act, analyze and interpret the language of the grievance and determine on the facts whether the grievance was referrable under s. 92 - The Federal Court held that the issue was one of jurisdiction, but also involved an issue at the core of the adjudicator's expertise in labour relations matter in the federal public service - The court noted conflicting decisions on whether the standard of review in similar circumstances was reasonableness or correctness - Applying the Dunsmuir factors (presence or absence of privative clause, purpose of the tribunal determined by interpreting its enabling legislation, the nature of the question in issue, and the tribunal's expertise), the court determined that the appropriate standard of review was reasonableness - Alternatively, even if the standard of review was correctness, the adjudicator's decision in this matter was both reasonable and correct - See paragraphs 30 to 42.

Cases Noticed:

Ontario Association of Architects v. Association of Architectural Technologists of Ontario, [2003] 1 F.C. 331; 291 N.R. 61; 2002 FCA 218, refd to. [para. 29].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1, refd to. [para. 30].

Canada (Attorney General) v. Shneidman (2007), 365 N.R. 285; 2007 FCA 192, refd to. [para. 33].

Archambault v. Canada Customs and Revenue Agency, [2006] N.R. Uned. 112; 2006 FC 63, refd to. [para. 33].

Canada (Attorney General) v. Frazee (2007), 319 F.T.R. 192; 2007 FC 1176, refd to. [para. 33].

Olson v. Canada (Attorney General) (2008), 323 F.T.R. 218; 2008 FC 209, refd to. [para. 33].

Canada (Attorney General) v. Basra (2008), 327 F.T.R. 30; 2008 FC 606, refd to. [para. 33].

Barry v. Canada (Treasury Board) (1997), 221 N.R. 237 (F.C.A.), refd to. [para. 36].

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227; 26 N.R. 341; 25 N.B.R.(2d) 237; 51 A.P.R. 237, refd to. [para. 37].

Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161, refd to. [para. 37].

Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454 and Hardy, [1998] 1 S.C.R. 1079; 226 N.R. 319; 168 Sask.R. 104; 173 W.A.C. 104, refd to. [para. 37].

Plourde v. Wal-Mart Canada Corp. (2009), 396 N.R. 1; 2009 SCC 54, refd to. [para. 37].

Public Service Alliance of Canada v. Canadian Food Inspection Agency (2005), 343 N.R. 334; 2005 FCA 366, refd to. [para. 37].

Canadian Broadcasting Corp. v. Canada Labour Relations Board et al., [1995] 1 S.C.R. 157; 177 N.R. 1, refd to. [para. 38].

Board of Education of Toronto v. Ontario Secondary School Teachers' Federation District 15 et al., [1997] 1 S.C.R. 487; 208 N.R. 245; 98 O.A.C. 241, refd to. [para. 38].

Nolan et al. v. Superintendent of Financial Services (Ont.) et al. (2009), 391 N.R. 234; 253 O.A.C. 256; 2009 SCC 39, refd to. [para. 41].

Burchill v. Canada (Attorney General), [1981] 1 F.C. 109; 37 N.R. 530 (F.C.A.), refd to. [para. 47].

Muckenheim v. Canada Employment Insurance Commission (2008), 382 N.R. 97; 2008 FCA 249, refd to. [para. 53].

Statutes Noticed:

Public Service Staff Relations Act, R.S.C. 1985, c. P-35, sect. 91, sect. 92, sect. 99 [para. 11].

Public Service Modernization Act, S.C. 2003, c. 22, sect. 57(1), sect. 57(2), sect. 61(1) [para. 10].

Counsel:

Charlotte Rhéaume, on her own behalf;

Adrian Bieniasiewiez, for the respondent.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

This application was heard on November 24, 2009, at Montreal, Quebec, before Mainville, J., of the Federal Court, who delivered the following judgment on December 16, 2009.