Executive Summary: Key Legal and Evidentiary Issues

• Dr. Gladman and Dr. Billyard, Defence Scientists with DND, sought judicial review of decisions denying their promotion to the DS-06 group and level.

• The Attorney General of Canada moved to strike the applications as premature for failure to exhaust the grievance process under the FPSLRA.

• Applicants contended that s. 208(2) of the FPSLRA barred the individual grievance process because the IRM constitutes an administrative procedure for redress under another Act.

• Reliance on the Murphy v. Attorney General of Canada decisions was determinative, establishing that the grievance process must be pursued first regardless of potential s. 208(2) limitations.

• Interpreting whether the s. 208(2) limitation applies falls exclusively within the purview of the grievance authority, not the Federal Court.

• The Court granted the motion to strike and awarded costs to the Respondent, with the exact quantum left for the parties to agree upon or submit for determination.

Background and the parties involved

Dr. Brad Gladman and Dr. Andrew Billyard are scientists employed by the Department of National Defence (DND). They are classified as Defence Scientists within the Research Group bargaining unit, represented by the Professional Institute of the Public Service of Canada. On September 12, 2025, the Deputy Minister of National Defence issued decisions confirming the denial of each Applicant's promotion to the DS-06 group and level. Dissatisfied with these outcomes, the Applicants filed applications for judicial review before the Federal Court of Canada, and these applications were subsequently consolidated by Associate Judge Steele.

The incumbent-based promotion process and the Independent Recourse Mechanism

Staffing for the DS group is governed by an "incumbent-based process" pursuant to the Public Service Employment Act (PSEA), s. 34(1), and the Public Service Employment Regulations (PSER), s. 2. As incumbent-based positions, promotions for the Applicants are subject to a Career Progression Framework. When employees are unhappy with a decision made under this framework, they may seek recourse through the Independent Recourse Mechanism (IRM). The impugned decisions denying promotion were issued following a third-party review under the IRM process. The Applicants asserted that since they had exhausted the IRM process, there was no further administrative process available to them and the decisions were amenable to judicial review.

The Respondent's motion to strike for prematurity

The Attorney General of Canada brought a motion in writing to strike both applications on the basis that they were premature. The Respondent argued that the Applicants had failed to exhaust the administrative recourse available to them — specifically, the individual grievance process set out in the Federal Public Sector Labour Relations Act, SC 2003, c 22 (FPSLRA). The Respondent submitted that the promotion decisions could be grieved under s. 208(1) of the FPSLRA because they dealt with the interpretation or application of the IRM policy (s. 208(1)(a)(i)) and were matters affecting the Applicants' terms and conditions of employment (s. 208(1)(b)). Notably, neither Applicant had commenced any grievance process prior to filing for judicial review.

The Applicants' reliance on s. 208(2) of the FPSLRA

The Applicants did not dispute the well-established doctrine of exhaustion as set out in CB Powell Limited v. Canada (Border Services Agency), 2010 FCA 61 at paragraph 31. They agreed that where a grievance process is available, it ought to be exhausted before seeking judicial review. However, they argued that s. 208(2) of the FPSLRA limited their right to present individual grievances. Section 208(2) provides that an employee may not present an individual grievance in respect of which an administrative procedure for redress is provided under any Act of Parliament, other than the Canadian Human Rights Act. The Applicants submitted that the IRM process, created pursuant to the PSEA and PSER, constituted such an administrative procedure for redress, thereby precluding them from filing a grievance. They did not assert that there were exceptional circumstances warranting a departure from the doctrine of exhaustion; rather, their argument was that they were not seeking early recourse to the Court.

The legal test and the principle of exhaustion

Madam Justice Conroy outlined the high threshold required to strike an application for judicial review, noting that the Court will only strike a notice of application where it is "so clearly improper as to be bereft of any possibility of success," as stated in David Bull Laboratories (Canada) Inc v. Pharmacia Inc, 1994 CanLII 3529 (FCA). There must be a "showstopper" or a "knockout punch" — an obvious, fatal flaw striking at the root of the Court's power to entertain the application, as described in JP Morgan Asset Management (Canada) Inc v. Canada (National Revenue), 2013 FCA 250 at paragraph 47. One such fatal flaw is the failure to exhaust all available effective administrative remedies. The Court emphasized the well-established principle that the first resort in employment-related matters should be the comprehensive labour relations regime, citing Public Service Alliance of Canada v. Canada (Attorney General), 2020 FC 481 at paragraph 83, as well as Vaughan v. Canada, 2005 SCC 11 and Weber v. Ontario Hydro, 1995 CanLII 108 (SCC). Sections 236(1) and (2) of the FPSLRA were noted as reinforcing this approach.

The determinative role of the Murphy decisions

The Court found the decisions in Murphy v. Attorney General of Canada, 2022 FC 146, and the Murphy Appeal, 2023 FC 57, to be determinative. Under those decisions, once the Respondent establishes that the Applicants are employees to whom the grievance process under s. 208(1) is available, the Respondent has discharged its burden of establishing the availability of an adequate and effective process for resolving the claim — notwithstanding the possibility or even the certainty that the grievance may be dismissed by operation of the exceptions in subsections 208(2) to (7). As affirmed by Justice Rochester in the Murphy Appeal at paragraph 77, the fact that the limitations in subsections 208(2) through (6) may result in an individual grievance being inadmissible does not render the grievance process inadequate or ineffective such that it permits an applicant to bring a judicial review prior to completing the statutory grievance process. The burden then shifts to the Applicants to establish that the grievance procedure is "clearly not available" in the circumstances. The Applicants relied solely on s. 208(2) to meet this burden, but the Court held that interpreting the limitations of s. 208(2) and determining whether they apply in the particular circumstances falls exclusively to the grievance authority, not the Court. While the Court acknowledged that it had previously considered the merits of judicial reviews challenging decisions by the Deputy Minister following the IRM process — including in Gladman v. Canada (Attorney General), 2016 FC 917 — those cases did not address the issue of prematurity or the availability of the grievance process, presumably because the parties did not raise the argument.

Ruling and outcome

Madam Justice Conroy granted the Respondent's motion to strike, finding the applications to be premature. The Court ordered that the Notices of Application on matter T-3964-25 be struck in favour of the Attorney General of Canada. The Respondent was also awarded costs; however, the exact quantum was not determined in the decision. The parties were directed to agree on the amount, or failing agreement, the Respondent could file cost submissions within seven days of receipt of the reasons, with the Applicants permitted to respond within seven days thereafter, with each party's submission not to exceed three pages. The Applicants were advised that if they are not content with the outcome of the grievance process, they may then seek judicial review of the final grievance decision.