A member of the Canadian Coast Guard, Jennifer Horsman has had her challenge thrown out of the Federal Court, and lack of jurisdiction is cited.
This isn’t a case about being forced to take the clot-shots, but it’s still interesting. In August 2022, her employer claimed that she had been overpaid nearly $9,000, the remainder of a larger amount that was supposedly owed. Horsman says she kept her own records of all dates and shifts and contested the demand. This caused financial hardship.
She also tried to seek union representation, but was denied.
Despite attempts to resolve this internally, Horsman was unsuccessful. She eventually ended up suing the Government in March 2023 to resolve this, and here’s where it takes a turn.
Ottawa brought a Rule 221 Motion to Strike (throw out) the lawsuit on the grounds that the Court had no jurisdiction to hear the case at all.
Looking at Sections 208 and 236 of the Federal Public Sector Labour Relations Act, FPSLRA:
Individual Grievances
Presentation
Right of employee
.
208 (1) Subject to subsections (2) to (7), an employee is entitled to present an individual grievance if he or she feels aggrieved
.
(a) by the interpretation or application, in respect of the employee, of
.
(i) a provision of a statute or regulation, or of a direction or other instrument made or issued by the employer, that deals with terms and conditions of employment, or
.
(ii) a provision of a collective agreement or an arbitral award; or
.
(b) as a result of any occurrence or matter affecting his or her terms and conditions of employment.
Section 208 then goes on to list a series of conditions and limitations.
Disputes relating to employment
.
236 (1) The right of an employee 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.
Application
(2) Subsection (1) applies whether or not the employee avails himself or herself of the right to present a grievance in any particular case and whether or not the grievance could be referred to adjudication.
Taken together, it seems laid out that Federal workers have the rights to file grievances, but they have no real right to take their problems to Court.
This ruling confirms the Adelberg decision, a high profile ruling in February 2023 that permanently ended the cases of over 400 Federal workers. Another 200 workers of Federally regulated industries had a setback as well, since the pleading was so poorly drafted.
Adelberg was also cited by a former RCMP worker, whose case was struck because of the FPSLRA.
Lesson in here: members of the Federal Government, as well as most unionized employers, have no guaranteed right to go to Court. There’s almost always a grievance or arbitration requirement.
If there’s any consolation here, it’s that the person wasn’t ordered to pay any costs. Yes, the Attorney General asked, but the Judge declined. She also didn’t waste many thousands of dollars hiring a lawyer to get the exact same result. Still, she has guts for at least attempting this.
(1) https://www.canlii.org/en/ca/fct/doc/2023/2023fc929/2023fc929.html
(2) https://www.canlii.org/en/ca/fct/doc/2023/2023fc929/2023fc929.pdf
(3) https://www.canlii.org/en/ca/laws/regu/sor-98-106/latest/sor-98-106.html
(4) https://www.canlii.org/en/ca/laws/stat/sc-2003-c-22-s-2/latest/sc-2003-c-22-s-2.html
(5) https://www.canlii.org/en/ca/fct/doc/2023/2023fc252/2023fc252.html
(6) https://www.canlii.org/en/ca/fct/doc/2023/2023fc280/2023fc280.html