Robichaud v. Can. (A.G.), 2013 NBCA 3

• Judge: Turnbull, Robertson and Richard, JJ.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: October 25, 2012
• Jurisdiction: New Brunswick
• Citations: 2013 NBCA 3;(2013), 398 N.B.R.(2d) 259 (CA)

Robichaud v. Can. (A.G.) (2013), 398 N.B.R.(2d) 259 (CA);

    398 R.N.-B.(2e) 259; 1032 A.P.R. 259

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Sommaire et texte intégral

[French language version follows English language version]

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

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Temp. Cite: [2013] N.B.R.(2d) TBEd. JA.027

Renvoi temp.: [2013] N.B.R.(2d) TBEd. JA.027

Attorney General of Canada on behalf of Correctional Service of Canada (appellant) v. Paulette Robichaud (respondent)

Attorney General of Canada on behalf of Correctional Service of Canada (appellant) v. Natasha MacKinnon (respondent)

(52-12-CA; 2013 NBCA 3)

Indexed As: Robichaud v. Canada (Attorney General) et al.

Répertorié: Robichaud v. Canada (Attorney General) et al.

New Brunswick Court of Appeal

Turnbull, Robertson and Richard, JJ.A.

January 10, 2013.

Summary:

Résumé:

The respondents were employed as nurse managers with the Correctional Service of Canada. They each sued for constructive dismissal after their employer refused to undertake a formal investigation into the merits of an unsigned complaint of harassment and misconduct levelled against the respondents by other employees. The respondents had not grieved the employer's refusal to investigate. The employer moved under rule 23.01(2)(a) of the Rules of Court for an order dismissing or staying the actions on the ground the Court of Queen's Bench lacked the jurisdiction to try the actions. The employer's argument hinged on s. 236 of the Public Service Labour Relations Act. That section provided that the right to grieve an employment dispute was in lieu of the right to sue and it mattered not whether the employee opted to grieve or whether the grievance was of a kind which was subject to third-party adjudication.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at (2012), 388 N.B.R.(2d) 380;1006 A.P.R. 380, dismissed the motion because of a perceived need to adduce trial evidence with respect to the adequacy of the remedies available to the employees. The employer appealed.

The New Brunswick Court of Appeal allowed the appeal and dismissed the actions. The employer's failure to investigate the unsigned allegations of harassment and misconduct was a "grievable" matter and s. 236 prevailed.

Labour Law - Topic 9076

Public service labour relations - Remedies - Civil action - When available - The two respondents were employed as nurse managers with the Correctional Service of Canada - They each sued for constructive dismissal after their employer refused to undertake a formal investigation into the merits of an unsigned complaint of harassment and misconduct levelled against the respondents by other employees - The employer had determined that the complaint failed to meet the requirements of the Treasury Board's "Policy on Prevention and Resolution of Harassment in the Workplace" - The respondents had not grieved the employer's refusal to investigate - The employer moved under rule 23.01(2)(a) of the Rules of Court for an order dismissing or staying the actions on the ground the Court of Queen's Bench lacked the jurisdiction to try the actions - The employer's argument relied on s. 236 of the Public Service Labour Relations Act - That section provided that the right to grieve an employment dispute was in lieu of the right to sue and it mattered not whether the employee opted to grieve or whether the grievance was of a kind which was subject to third-party adjudication - The motions judge dismissed the motion because of a perceived need to adduce trial evidence with respect to the adequacy of the remedies available to the employees - The employer appealed - The New Brunswick Court of Appeal allowed the appeal and dismissed the actions - The employer's failure to investigate the unsigned allegations of harassment and misconduct was a "grievable" matter and s. 236 prevailed - Nothing that was decided in Vaughan v. Canada (Attorney General) (2005 SCC) undermined that conclusion, as s. 236 was Parliament's direct response to the common law principles articulated in that case.

Practice - Topic 5359.1

Dismissal of action - Grounds - General and want of prosecution - Lack of jurisdiction - [See Labour Law - Topic 9076 ].

Droit du travail - Cote 9076

Relations de travail dans la fonction publique - Recours - Possibilité d'intenter une poursuite civile - [Voir Labour Law - Topic 9076 ].

Procédure - Cote 5359.1

Rejet de l'action - Motifs - Généralités et défaut de procéder - Manque de compétence - [Voir Practice - Topic 5359.1 ].

Cases Noticed:

Vaughan v. Canada, [2005] 1 S.C.R. 146; 331 N.R. 64; 2005 SCC 11, affing. [2003] 3 F.C. 645; 306 N.R. 366; 2003 FCA 76, affing. (2001), 213 F.T.R. 144; 2001 FCT 1233, affing. (2000), 182 F.T.R. 199 (Protho.), consd. [paras. 3, 7].

Stamos v. Annuity Research & Marketing Services Ltd., [2002] O.J. No. 1865 (Sup. Ct.), refd to. [para. 6].

Pleau v. Canada (Attorney General) et al. (1999), 181 N.S.R.(2d) 356; 560 A.P.R. 356; 1999 NSCA 159, refd to. [para. 7].

Bron v. Canada (Attorney General) et al. (2010), 258 O.A.C. 118; 2010 ONCA 71, refd to. [para. 9].

Van Duyvenbode v. Canada (Attorney General) et al., [2007] O.T.C. Uned. F04 (Sup. Ct.), affd. [2009] O.A.C. Uned. 646; 2009 ONCA 11, refd to. [para. 9].

Yeates v. Canada (Attorney General) et al., [2010] O.T.C. Uned. 3407; 2010 ONSC 3407, affd. [2011] O.A.C. Uned. 66; 2011 ONCA 83, refd to. [para. 9].

Smith v. Canada (2007), 316 N.B.R.(2d) 180; 816 A.P.R. 180; 2007 NBCA 58, refd to. [para. 10].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1, refd to. [para. 14].

Statutes Noticed:

Public Service Labour Relations Act, S.C. 2003, c. 22, sect. 206(1), sect. 208(1), sect. 209(1), sect. 214, sect. 233 [para. 11]; sect. 236 [para. 1].

Counsel:

Avocats:

Angela J. Green and Susan R. Taylor, for the appellant, Attorney General of Canada;

J. Gordon Petrie, Q.C., for the respondents, Paulette Robichaud and Natasha MacKinnon.

This appeal was heard on October 25, 2012, before Turnbull, Roberston and Richard, JJ.A., of the New Brunswick Court of Appeal. The following judgment of the Court of Appeal was delivered by Robertson, J.A., in both official languages, on January 10, 2013.