Executive Summary: Key Legal and Evidentiary Issues

• Central jurisdictional issue was whether s. 236 of the Federal Public Sector Labour Relations Act (FPSLRA) barred civil claims arising from a federal employee’s terms and conditions of employment.
• The court examined whether the plaintiff’s negligence and workplace harassment allegations properly belonged in the FPSLRA grievance process rather than in a civil action.
• A critical evidentiary and pleading question was whether the statement of claim adequately pled the elements of malicious prosecution, particularly lack of reasonable and probable cause and malice.
• The court scrutinized the linkage between the defendants’ workplace conduct, their reports to Military Police, and the Military Police’s decision to lay criminal charges.
• Pleading sufficiency under the Rules of Civil Procedure was in issue, including the need for full particulars where malice is alleged and the standard on a motion to strike under Rule 21.01(1)(b).
• Costs entitlement and quantum were considered in light of the defendants’ complete success on the motions and the plaintiff’s financial circumstances.

Facts of the case

The plaintiff, Saket Mittal, was a civilian employee of the Department of National Defence (DND), working as a cook in the Cadet Dining Hall at the Royal Military College in Kingston, Ontario. He was a member of the Public Service Alliance of Canada and subject to the Operational Services (SV) Collective Bargaining Agreement between the Treasury Board and the union. His employment relationship was therefore governed by the federal public service labour relations framework, including the Federal Public Sector Labour Relations Act (FPSLRA).
Mittal alleged that from around 2017 or 2018 he experienced increasing “problems with discriminatory and harassing actions” at work. He claimed that several co-workers, later named as individual defendants, engaged in a pattern of harassment and discrimination that touched on multiple aspects of his work environment. The allegations included disrespect toward his religious-based vegetarianism, failure to provide mandatory food safety training, non-compliance with public health measures during the COVID-19 pandemic, failure to maintain sanitary bathroom facilities, and escalating verbal abuse. He further alleged that in April 2021 one of the individual defendants verbally and physically attacked him. Mittal reported this incident to the Military Police.
Following his report, the Military Police laid a criminal charge of public mischief against him on or about May 28, 2021. According to the statement of claim, the charge was based on what he described as false reporting of events by his co-workers to the Military Police, which he characterized as a continuation of their harassment. The criminal charge was eventually withdrawn on or about February 10, 2022, for what was described as no reasonable prospect of conviction.
Mittal subsequently commenced a civil action in November 2022 in the Ontario Superior Court of Justice. He sued the Department of National Defence and three individual co-workers, claiming general damages of $200,000 plus interest and costs. Under the heading “Liability,” the statement of claim asserted that he suffered “personal and special damages to his personal and business reputation” arising from (a) workplace harassment and (b) negligence by the defendants. While the pleading did not expressly identify “malicious prosecution” as a separate cause of action, his later affidavits, written submissions, and oral argument attempted to characterize some of the same factual allegations as a malicious prosecution claim against the institutional defendant.
During the motion process, it was clarified that the proper institutional defendant was the Attorney General of Canada (AGC), rather than the Department of National Defence, and the misnomer was corrected on consent. It was also significant that by the time the claim was issued, Mittal remained a civilian employee of DND but had moved to a different position at a salary approximately $8,000 per year lower than what he had earned at the Cadet Dining Hall. He alleged that the harassment and the criminal charge forced him to leave his original position and accept this lower-paid role.

Procedural history and motions before the court

The defendants did not deliver a statement of defence. Instead, they brought a preliminary pleadings motion. Relying on Rule 21.01(3)(a) of the Ontario Rules of Civil Procedure, they argued that the court lacked jurisdiction over the subject matter of the action because s. 236 of the FPSLRA created a strong jurisdictional bar to civil actions concerning disputes about terms and conditions of employment. In the alternative, under Rule 21.01(1)(b), they asked the court to strike the statement of claim on the basis that it disclosed no reasonable cause of action and was plainly doomed to fail, seeking dismissal without leave to amend.
The plaintiff responded with his own motion, asking the court to dismiss the defendants’ motion insofar as it related to the claims against the institutional defendant (now the AGC) and to extend the deadline for the AGC to deliver a statement of defence. He also sought an order that, even if the claims against the individual defendants were struck, they be produced by the AGC for examination for discovery as witnesses.
Before the motions were argued, the plaintiff conceded an important point: that the claims against the individual defendants should be struck. The parties consented to amending the title of proceedings to remove the individual defendants’ names and to substitute “Attorney General of Canada” as the sole defendant. This meant that, if any aspect of the action survived the preliminary motions, it would proceed solely against the AGC.
In addition, the plaintiff conceded that the workplace harassment claim, as framed, fell within the grievance regime of the FPSLRA. He accepted that this aspect of his complaint was subject to the statutory labour relations process and not to a civil action in the courts. However, he continued to argue that his negligence claim and his emerging malicious prosecution theory were not barred and could proceed in civil court.

Statutory and legal framework

The central statutory provisions were ss. 208(1) and 236 of the FPSLRA. Section 208(1) confers on employees a broad right to present an individual grievance if they feel aggrieved by either the interpretation or application of statutes, regulations, directives or collective agreement provisions that deal with terms and conditions of employment, or “as a result of any occurrence or matter affecting [their] terms and conditions of employment.” Section 236(1) then provides that an employee’s right to seek redress by way of grievance “for any dispute relating to his or her terms or conditions of employment is in lieu of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.” Subsection 236(2) makes clear that this bar applies whether or not the employee actually uses the grievance process.
The court drew on appellate authority, notably Bron v. Attorney General of Canada, in which the Court of Appeal confirmed that such language affords federal employees a “very broad” right to grieve and that “almost all employment-related disputes can be grieved.” It also cited more recent authority emphasizing that the scope of “terms and conditions of employment” is “vast” and encompasses almost any workplace issue. On this foundation, the judge evaluated whether Mittal’s allegations of harassment and negligence fell within that statutory framework.
On the procedural side, the defendants invoked Rule 21.01(3)(a) for lack of jurisdiction and Rule 21.01(1)(b) to strike for no reasonable cause of action. On a Rule 21.01(1)(b) motion, no evidence is admissible; the court assumes the material facts pleaded are true, reads the claim generously, and strikes only if it is plain and obvious that the claim cannot succeed. The decision referenced MacKinnon v. Ontario Municipal Employees Retirement Board and PMC York Properties Inc. v. Siudak, confirming that while the bar for striking is high, clearly untenable causes of action that have no chance of success should be weeded out.
The court also considered Rule 25.06(8), which requires “full particulars” where malice is alleged. Because malicious prosecution inherently involves allegations of malice or an improper purpose, the pleading had to supply more than broad or vague assertions. Finally, Rule 57.03(1)(a) governed the default timing for payment of costs on motions, subject to the court’s discretion to make a different order where justice requires.

Analysis of the workplace harassment and negligence claims

The plaintiff had already conceded that his workplace harassment claim was within the exclusive jurisdiction of the FPSLRA grievance process. The court therefore granted the requested relief on that point by consent, treating the harassment claim as barred by s. 236.
The key remaining question under the jurisdictional issue was whether the negligence claim was also barred. In the statement of claim, para. 44 set out the particulars of negligence. Subparagraph 44(a) alleged that, as his employer and immediate supervisor, the defendants owed Mittal a duty of care, knew of his religious values and workplace reputation, and should have foreseen harm from their carelessness. Subparagraph 44(b) alleged that they fell below the standard of care, that their professional responsibilities included fair dealing with him, and that they were required to “get their facts straight” before taking potentially career-damaging actions, including discussions within DND and “making statements leading to Saket being charged by the Military Police.”
The court did not confine itself mechanically to para. 44; it read those allegations in the context of the earlier narrative paragraphs (paras. 9–33) describing discriminatory treatment, workplace conditions, the April 2021 incident, and the subsequent criminal charge. The judge concluded that allegations framed in terms of the employer’s failure to ensure a safe, non-harassing, and fair workplace—such as the complaints about religious discrimination, training, health measures, sanitary conditions, and the overall “caustic” environment—squarely concerned terms and conditions of employment and therefore fell within the statutory bar. These matters, in substance, were employment-related disputes that could have been, or were, raised through the grievance process, as evidenced by the plaintiff’s own prior harassment complaint and grievances.
With respect to para. 44(b), the judge distinguished between two components. The broad allegations about fair treatment and career-related decisions were again characterized as arising from the employment relationship and thus caught by ss. 208(1) and 236 of the FPSLRA. However, the portion of para. 44(b) dealing with statements that allegedly led to the laying of criminal charges—combined with paras. 28–30 of the statement of claim—formed the factual basis the plaintiff tried to repurpose for a malicious prosecution claim. That part was addressed separately under the motion to strike for failure to disclose a reasonable cause of action.
Ultimately, for jurisdictional purposes, the court held that both the workplace harassment claim (by consent) and the negligence claim against the AGC, insofar as it related to workplace conditions and treatment, were barred by s. 236 of the FPSLRA and had to be struck.

The attempted malicious prosecution claim

Although the original statement of claim did not use the words “malicious prosecution,” the plaintiff argued that, read generously and in conjunction with his affidavit and factum, it pleaded such a cause of action. He pointed particularly to paras. 28–30, where he alleged that the Military Police laid charges against him without conducting a “fulsome investigation,” that those charges were based on false reports by his co-workers, and that the charges were eventually withdrawn for lack of a reasonable prospect of conviction. He sought to frame the AGC, as the institutional defendant, as liable for malicious prosecution.
The parties agreed on the four elements of malicious prosecution from Nelles v. Ontario: (1) the proceedings must have been initiated by the defendant; (2) the proceedings must have terminated in the plaintiff’s favour; (3) there must have been an absence of reasonable and probable cause; and (4) there must have been malice or a primary purpose other than carrying the law into effect.
On the first element, the court was prepared, on a generous reading, to treat the allegation that the Military Police “wing of DND” charged Mittal as sufficient to infer that a division within DND, and thus the federal Crown, initiated the criminal proceedings. On the second element, the statement that the charges were withdrawn “for no reasonable prospect of conviction” was accepted as clearly pleading that the proceedings terminated favourably for the plaintiff.
The difficulty lay in the third and fourth elements: absence of reasonable and probable cause and malice. As to reasonable and probable cause, the only direct allegation related to the investigation was that the Military Police did not perform a “fulsome investigation” before charging him. The court found this too thin to support the necessary subjective and objective components of the test. A less-than-fulsome investigation might ground an allegation of negligence, but it did not, without more, plausibly imply that the prosecutor lacked an actual belief in the merits of the charges or that any such belief was objectively unreasonable in the circumstances. The pleading did not allege specific facts showing what information was or was not available to the prosecutor, or how that information made the charges objectively baseless.
Regarding malice, the plaintiff pointed to the earlier harassment narrative and to para. 29, which alleged that the individual defendants provided false information to the Military Police as part of their pattern of harassment. The court noted an internal tension: the plaintiff had conceded that the harassment claim itself was barred as an employment matter under s. 236, yet he sought to reuse the same factual pattern to support malice in a malicious prosecution claim. More fundamentally, the statement of claim did not plead specific facts supporting malice on the part of the Military Police or the prosecuting authorities themselves. At best, it alleged that co-workers acted maliciously by giving false statements, but it did not plead that the Military Police knew those statements were false, disbelieved them, or proceeded for some improper purpose unrelated to enforcing the law.
Viewed through the lens of Rule 25.06(8), the court held that the pleading did not contain “full particulars” of malice. It lacked detailed allegations of conduct by the investigating or prosecuting authorities that could reasonably be understood as demonstrating a primary purpose other than carrying the law into effect. In short, while the first two elements of malicious prosecution were adequately pleaded, the crucial third and fourth elements were not.
The judge concluded that this was not a mere technical deficiency that could be cured by amendment. The cause of action was never explicitly pleaded, the supporting factual allegations about Military Police conduct were minimal compared with the extensive detail about co-workers’ workplace behaviour, and there was nothing in the existing pleading that hinted at facts capable of satisfying the high threshold for malicious prosecution. On that basis, the court held that it was plain and obvious the malicious prosecution claim, as currently framed, had no reasonable prospect of success.

Leave to amend and the discovery request

Having decided to strike the malicious prosecution claim, the court then considered whether to grant leave to amend. The plaintiff had not formally brought a separate motion for leave to amend the statement of claim but argued, in oral submissions, that the court should treat his request for “such further and other relief” as encompassing that remedy.
The judge treated the leave question as the second part of the Rule 21 analysis and considered whether this was one of the “clearest of cases” where leave should be refused. Stepping back from the specific elements of malicious prosecution, the court compared the pleading as a whole: detailed, lengthy allegations about workplace-based harassment and discrimination by co-workers, versus a single, sparse allegation that the Military Police failed to conduct a fulsome investigation. In this context, granting leave would effectively invite the plaintiff to convert what was fundamentally an employment and harassment dispute into a different, late-emerging tort claim against the AGC for malicious prosecution, on a factual foundation that was not pleaded with any specificity.
The court held that it would not be just to permit such a recasting of the case and that the statement of claim did not meet even the low threshold required to avoid being struck. Leave to amend was therefore refused. The malicious prosecution claim was struck without leave, and the net effect was that the entire statement of claim was struck.
As for the plaintiff’s request that the AGC be ordered to produce the individual defendants for examination for discovery even if the claims against them were struck, the court found that this issue was moot once all substantive claims failed. The judge nonetheless indicated that, had any claim survived, such a request would have been dismissed at this stage without prejudice to bringing an appropriate discovery-related motion after pleadings were closed.

Outcome and costs

In the result, the court ordered that the title of proceedings be amended to substitute the Attorney General of Canada for all originally named defendants. The plaintiff’s claims for workplace harassment and negligence were struck as barred by s. 236 of the FPSLRA, and his attempted malicious prosecution claim was struck under Rule 21.01(1)(b) without leave to amend. The consequence was that the entire action was dismissed at the pleadings stage. The defendants, having been entirely successful on the motions, were awarded their costs on a partial indemnity basis. After reviewing the parties’ costs outlines and noting some duplication in the work by defence counsel, the court fixed costs at a single, all-inclusive amount of $8,500, payable by the plaintiff. Recognizing that Mittal’s salary had decreased by approximately $8,000 per year when he left the Cadet Dining Hall, the court extended the default 30-day payment timeline: the $8,500 in costs would be payable within 120 days of the ruling if the parties could not agree on a longer payment plan. No damages or other monetary relief were awarded to the plaintiff; the only monetary order in the case is the $8,500 costs award in favour of the successful party, the Attorney General of Canada.