Executive Summary: Key Legal and Evidentiary Issues

• Appeal concerned whether the Federal Court had jurisdiction over a public servant’s harassment, discrimination and accessibility-related employment claims in light of the mandatory grievance scheme under the Federal Public Sector Labour Relations Act.

• The central legal issue was whether section 236 of the Act barred Mr. Kevin Haynes from pursuing a civil action in the Federal Court and confined him instead to the statutory grievance process.

• Evidence before the court showed that Mr. Haynes’ allegations in his Amended Statement of Claim mirrored the allegations and remedies already pursued through his 2021 grievance and related processes.

• The court examined whether “exceptional circumstances” or alleged shortcomings of the grievance process justified residual judicial discretion to allow the action to proceed despite the statutory bar.

• Prior jurisprudence on motions to strike, judicial review of labour processes, and residual court discretion was applied to conclude that the Statement of Claim disclosed no reasonable cause of action within the court’s jurisdiction.

• The appeal from the associate judge’s order striking the Amended Statement of Claim without leave to amend was dismissed, and costs of $720 were awarded to the defendant, His Majesty the King in Right of Canada.

Facts and background

Mr. Kevin Haynes, the plaintiff, was employed by Employment and Social Development Canada as a public servant. He worked as a software developer and, at the time of the affidavit of Ms. Dominique Lyrette, held a full-time, indeterminate position as a Program Analyst at the CS-02 group and level in the Innovative, Information and Technology Branch. His terms and conditions of employment were governed by the “Agreement between the Treasury Board and the Professional Institute of Public Service of Canada” for the Computer Systems group. In May 2021 he filed a grievance alleging discrimination and harassment and seeking relief. Ms. Lyrette deposed that the allegations and relief in his Amended Statement of Claim were the same as in that amended grievance, and that these matters were “grievable” under section 236 of the Federal Public Sector Labour Relations Act. She also deposed that an external investigation into his discrimination and harassment claims was recommended as part of the May 2021 grievance process and that the investigation was in abeyance at Mr. Haynes’ request pending the decision of the Federal Court on a judicial review of his 2022 grievance process. His Amended Statement of Claim also included allegations of a “botched investigation and perjury” and allegations related to the Accessible Canada Act.

Motion to strike and associate judge’s order

The defendant, His Majesty the King in Right of Canada, brought a motion under Rule 221(1)(a) of the Federal Courts Rules to strike Mr. Haynes’ Statement of Claim on the basis that it disclosed no reasonable cause of action. The motion record included affidavits from Ms. Chanelle Bisson, a legal assistant with the Department of Justice, describing the steps taken in the motion to strike and attaching the motion materials, responding record, reply, and the resulting order, and from Ms. Lyrette, setting out Mr. Haynes’ employment status and the overlap between his grievance and his Amended Statement of Claim. The associate judge determined that Mr. Haynes’ claims were barred by section 236 of the Federal Public Sector Labour Relations Act and that the Federal Court lacked jurisdiction over the causes of action advanced. Applying the “plain and obvious” test for motions to strike, the associate judge struck the Amended Statement of Claim without leave to amend under Rule 221(1)(a).

Issues on appeal and legal analysis

Mr. Haynes appealed the order dated September 25, 2024. He argued that the associate judge committed errors, including failing to acknowledge discretion to allow the action to proceed in “exceptional” circumstances where the grievance process could not provide appropriate remedy or effective redress. He relied on authorities including Bron v. Canada (Attorney General), Canada v. Greenwood, Public Service Alliance of Canada v. Canada (Attorney General), and Smith, and he also pointed to his successful applications for judicial review and the remittal of his 2021 grievance for reconsideration. The defendant submitted that no reviewable error had been shown. The court applied the standards of review described in Hospira Healthcare Corporation and Housen, distinguishing between questions of law and questions of fact or mixed fact and law. It confirmed that, on a Rule 221(1)(a) motion, no evidence may be heard and the issue is whether it is plain and obvious that the pleading discloses no reasonable cause of action. The court noted that Mr. Haynes, as a public servant, was subject to the Federal Public Sector Labour Relations Act, including section 236, which provides that the right to grieve any dispute relating to terms or conditions of employment is in lieu of any right of action. The court also referred to section 208(1)(b) on individual grievances for matters affecting terms and conditions of employment, and section 210.1 regarding issues involving regulations under the Accessible Canada Act when an individual grievance is referred to adjudication. The court held that the associate judge reasonably distinguished the facts of Bron, Greenwood and Smith and correctly concluded that there was no residual discretion allowing the action to proceed in the circumstances described by Mr. Haynes.

Outcome and costs

The court concluded that the key to the appeal was the jurisdiction of the Federal Court. It accepted that the Act is a “complete code” for workplace-related issues arising from employment in the public service and that, in light of section 236, the court had no jurisdiction over Mr. Haynes’ action. Because there was no jurisdiction, there could be no reasonable cause of action. The court held that Mr. Haynes had failed to show any reviewable error on the part of the associate judge, dismissed the appeal, and upheld the order striking the Amended Statement of Claim without leave to amend. The defendant, His Majesty the King in Right of Canada, represented by Dylan Smith of the Attorney General of Canada, was the successful party. The court exercised its discretion under Rule 400 of the Federal Courts Rules and awarded the defendant costs in the amount of $720.