PUBLIC SERVICE |
Labour Relations |
Cahill v. Canada
T-1170-00
2001 FCT 1083, Aronovitch P.
3/10/01
16 pp.
Motion to strike plaintiff's statement of claim for want of jurisdiction, want of cause of action--Plaintiff began employment with Correctional Services of Canada (CSC) in December 1983 as Parole Officer at Kingston Penitentiary--As of November 1996, plaintiff employed with CSC at Bath Institute, Ontario, as Chief of Social Development--In May 1998, plaintiff under investigation for abusive behaviour towards inmates, staff, arising from incident in April of that year--Following initial imposition of penalty, plaintiff filed harassment complaint, comprised of six counts of harassment, against Warden Stevenson--Arguably having no choice but to seek transfer from Bath Institute--This fact plus "suspension" while under investigation having jeopardized career, caused him to suffer health problems, loss of reputation, loss of income and benefits--Applicable test on motion to strike for lack of reasonable cause of action: it must be "plain and obvious" claim bereft of reasonable cause of action--Court must be satisfied action cannot succeed--Plaintiff claiming damages for harassment, intimidation, creation of poisoned workplace--Not grieving alleged constructive dismissal for which he sought bulk of damages claimed in action--"Malice" per se not actionable at law--Not within authority of Court to direct government department to appoint individual to position as remedy in action--While plaintiff cast action in terms of defamation, negligent infliction of nervous shock, facts as pleaded did not provide sufficient material facts to sustain such allegations--Nature of dispute essential, not terms in which action cast--Having regard to each element of claim, all of employer's conduct, impugned by plaintiff, coming, whether explicitly or inferentially, within ambit of collective agreement, harassment policy, with recourse to plaintiff thereunder, under grievance process set out in PSSRA--Plaintiff has not pursued, exhausted, available recourse for alleged constructive dismissal, alleged consequential loss of salary, pension benefits--Court bound by F.C.A. decision in Johnson-Paquette v. Canada (2000), 253 N.R. 305 (F.C.A.)--Motion granted--Public Service Staff Relations Act, R.S.C., 1985, c. P-35.