Executive summary: Key legal and evidentiary issues

• Maria Makrikostas, a CBSA Border Services Officer on extended sick leave without pay since January 2020, sought judicial review of a letter outlining options for resolving her employment status.

• The CBSA moved to strike the application on grounds of prematurity, arguing the letter was not a final decision but a step in a continuing process that can lead to access to grievance processes.

• Affidavit evidence from the CBSA's Director General of Wellness, Labour Relations and Compensation was admitted to establish factual context regarding the availability of an adequate alternative remedy.

• Under the Federal Public Sector Labour Relations Act, the Applicant had access to grievance processes as an employee within the core public administration, providing an adequate alternative remedy.

• Interlocutory decisions of an administrative decision-maker are not subject to judicial review, and no exceptional circumstances were identified to justify bypassing the statutory grievance process.

• The application for judicial review was struck out in its entirety without leave to amend, and $250.00 in costs was awarded to the Respondent.

Background and employment status of the applicant

Maria Makrikostas was an indeterminate employee with the Canada Border Services Agency and occupied a position as a Border Services Officer at the FB-03 group and level within the Commercial Operations District, Greater Toronto Area Region. She was a member of the Customs and Immigration Union, which is part of the Public Service Alliance of Canada, and was subject to the terms and conditions of the Border Services Collective Agreement. The CBSA is part of the "core public administration" as defined in section 11 of the Financial Administration Act, R.S.C., 1985, c. F-11. His Majesty the King in right of Canada, as represented by the Treasury Board, is the employer of the core public administration.

Extended leave without pay and the CBSA's letter

The Applicant had been on leave without pay for illness and/or injury since January 9, 2020. The approved leave expired on May 2, 2025, and was later extended until June 25, 2025. No further leave was approved. Pursuant to the Treasury Board's Directive on Leave and Special Working Arrangements, the CBSA began to resolve the Applicant's situation of leave without pay. On May 27, 2025, the CBSA sent a letter to the Applicant. According to the affidavit of Ms. Julie Nunez, this letter sets out three options about the Applicant's employment following an extended period of leave.

The application for judicial review

On July 17, 2025, the Applicant filed a notice of application seeking judicial review of the May 27, 2025 letter. The Applicant's notice of application seeks to review the "lawfulness and fairness of the administrative decision to issue the CBSA's letter dated May 27, 2025." The Applicant did not respond to the notice of motion within the time limited by the Rules, nor did she identify any exceptional circumstance that would justify the prosecution of her application at that stage.

The CBSA's motion to strike

On September 25, 2025, the CBSA filed a notice of motion for consideration without personal appearance pursuant to Rule 369 of the Federal Courts Rules, SOR/98-106, seeking an order to strike out the application for judicial review in its entirety, without leave to amend, and dismissing the application for judicial review. The motion was supported by the affidavit of Ms. Julie Nunez, sworn on September 24, 2025. At the time, Ms. Nunez was the Director General of Wellness, Labour Relations and Compensation with the CBSA. The Respondent advanced two primary grounds: first, that the application was premature, since the letter is not a final "decision" but a step in a continuing process; and second, that the availability of grievance processes invokes the principles of an adequate alternative remedy.

Admissibility of affidavit evidence on the motion

The Court addressed the threshold issue of whether affidavit evidence could be received on a motion to strike an application for judicial review, since generally no affidavit evidence is permitted in that context. The decision in J.P. Morgan Asset Management (Canada) Inc. v. Canada (Revenue Agency), 2013 FCA 250 at paragraph 53 allows the introduction of affidavit evidence "where the justifications for general inadmissibility are not undercut, and the exception is in the interests of justice." The Respondent also submitted that the introduction of an affidavit is permissible when the issue of jurisdiction arises, relying on the decision in Kaquitts v. Council of the Chiniki First Nation, 2019 FC 498 at paragraph 10. Justice Heneghan was satisfied on the basis of the authorities cited by the Respondent that the affidavit of Ms. Nunez was admissible upon the motion, as it provides the factual context to allow the Court to address the issues of prematurity and adequate alternate remedy.

Prematurity and the nature of the letter

In its decision in Air Canada v. Toronto Port Authority, [2013] 3 F.C.R. 605, the Federal Court of Appeal said that to be subject to judicial review, the conduct of an administrative body must affect legal rights, impose legal obligations or cause prejudicial effects. In the present case, the letter sets out options. It is not a final decision, but according to the affidavit of Ms. Nunez, part of a process which is incomplete. The Court also applied the decision in Dugré v. Canada (Attorney General), 2020 FC 789, where the Court said that interlocutory decisions of an administrative decision-maker are not reviewable. Justice Heneghan found that the decision in Dugré applies in this case.

Adequate alternative remedy through the grievance process

The Court emphasized the significance of the Applicant's status as an employee of the CBSA within the core public administration. Ms. Nunez deposed that the Applicant remains an employee of the public service and is subject to the provisions of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, which governs labour relations in the federal public service. Subsection 208(1)(b) of the Act entitles an employee to present an individual grievance as a result of any occurrence or matter affecting his or her terms and conditions of employment. Subsection 209(1) gives an employee in the core public administration the opportunity to refer a grievance to the Federal Public Relations Board. Decisions of the Board can be judicially reviewed by the Federal Court of Appeal. Pursuant to section 214 of the Act, a final decision upon a grievance can be judicially reviewed by the Federal Court. The Court found that the Applicant has access to the grievance process by two routes and agreed that a final decision upon a grievance can be the subject of an application for judicial review, in due course. Justice Heneghan also agreed that by seeking judicial review in respect of an interim step, the Applicant is trying to avoid the grievance process set out in the Act. Section 236 of the Act further bars a right of action by a federal public servant in respect of employment-related issues, providing that the right to seek redress by way of grievance is in lieu of any right of action, and this applies whether or not the employee avails herself of the right to present a grievance. The Court found that the letter relates to the Applicant's employment, and the subject matter is "grievable." The Applicant cannot sidestep the statutory grievance process.

Non-interference with administrative processes

The Court referenced the decision of the Federal Court of Appeal in Dugré v. Canada (Attorney General), 2021 FCA 8 at paragraph 37, where that Court highlighted the high bar for interference with the orderly completion of administrative processes, stating that "the non-availability of interlocutory relief is next to absolute." Justice Heneghan agreed with the Respondent's submissions on this issue and found that the Applicant had not identified any exceptional circumstance that would justify the prosecution of her application for judicial review.

Ruling and outcome

The Federal Court granted the Respondent's motion. The comprehensive statutory scheme set out in the Act applies, and there are no grounds for the Applicant to bypass that process. The letter is part of an ongoing administrative process which should not be interrupted. The application for judicial review filed by the Applicant was struck out in its entirety, without leave to amend. Although the CBSA had sought costs in the amount of $500.00, the Court exercised its full discretion in the matter of costs pursuant to Rule 400(1) of the Rules, and awarded the successful party, the Canada Border Services Agency, the amount of $250.00 in costs, inclusive of disbursements and HST.