



COURT OF APPEAL FOR ONTARIO

CITATION: Pearce v. Canada (Staff of the
    Non-Public Funds, Canadian Forces), 2021 ONCA 65

DATE: 20210203

DOCKET: C68070

Strathy C.J.O., Rouleau and
    Coroza JJ.A.

BETWEEN

Bryan Pearce

Plaintiff
(Respondent)

and

Her Majesty the Queen in Right
    of Canada as represented by the Staff of the Non-Public Funds, Canadian Forces

Defendant
(Appellant)

Alexander M. Gay and Alexandra Pullano,
    for the appellant

Andrew Montague-Reinholdt, for the respondent

Heard: November 24, 2020 by video conference

On appeal from the order and judgment of
    Justice Heather J. Williams of the Superior Court of Justice, dated January 24,
    2020.

Strathy C.J.O.:

[1]

This appeal raises a single issue concerning the
    interpretation of s. 236 of the
Federal Public Sector Labour Relations Act
,
    S.C. 2003, c. 22, s. 2 (
FPSLRA
): does the expression, termination
    of employment for any reason that does not relate to a breach of discipline or
    misconduct in ss. 236(3), include the common law concept of constructive
    dismissal?

[2]

The motion judge held that it does, and allowed
    the respondent, who was employed by a federal separate agency, to pursue his
    claim for constructive dismissal in the Superior Court.

[3]

Section 236 of the
FPSLRA
provides:

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.

(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.

(3) Subsection (1) does not apply in
    respect of an
employee of a separate agency
that
    has not been designated under subsection 209(3)
if the
    dispute relates to his or her termination of employment for any reason that
    does not relate to a breach of discipline or misconduct
. [Emphasis added.]

[4]

The motion judge found that the exception in ss.
    236(3) means that ss. 236(1) and (2) do not preclude the respondents action
    against the appellant, his former employer. She dismissed the appellants
    motion to dismiss the respondents action for want of jurisdiction.

[5]

For the reasons that follow, I agree, and would
    dismiss the appeal.

I.

Factual background

[6]

The respondent was a non-unionized, 18-year
    employee of a federal public service entity, the appellant, the Staff of the Non-Public
    Funds (SNPF), Canadian Forces. SNPF is a separate agency within the meaning
    of ss. 236(3) in the
FPSLRA
. Its operating name is the Canadian Forces
    Morale and Welfare Services. The respondents last position was arena and
    outdoor facility manager at the Canadian Forces Base Trenton.

[7]

The respondent quit his job in 2017. In 2018, he
    commenced a civil action against the appellant, claiming he had been constructively
    dismissed. He pleaded that, for many years, he was the object of bullying and
    intimidation by his supervisor, and as a result, he suffered from work-related
    stress, depression, and insomnia.

[8]

In 2009, the respondent brought a grievance, alleging
    that he had been harassed by his supervisor over persistent and largely
    unfounded allegations of wrongdoing against him. He alleged that although his grievance
    was resolved, his position was downgraded, and some of his responsibilities were
    taken away from him. In 2014, his department was reorganized, and he was
    required to report to a more junior individual. He claimed that his former
    supervisor continued to harass him. In March 2017, he initiated another
    grievance for harassment.

[9]

The respondent pleads that he went on medical
    leave from March to May 2017, due to mental health issues arising from the
    toxic work environment created by [his former supervisor] and permitted by his
    employer. Although he returned from this leave in June 2017, he resigned that
    same month due to the allegedly toxic work environment. He pleads that his
    resignation was involuntary, and that he was constructively dismissed. He claims
    damages for constructive dismissal, equivalent to 24 months salary and
    benefits in lieu of notice, as well as moral damages for breach of the duty of
    good faith and fair dealing, and punitive damages.

[10]

The appellant, his employer, brought a motion pursuant to r.
    21.01(3)(a) of the
Rules of Civil Procedure
, R.R.O. 1990, Reg. 194, to
    dismiss the action. The appellant alleged that the respondents terms and
    conditions of employment were governed by the human resources policies of the SNPF,
    the
Financial Administration Act
, R.S.C. 1985, c. F-11 (
FAA
)
    and the
FPSLRA
. The appellant asserted that the respondent had
    voluntarily resigned from his position, and that the court had no jurisdiction
    to hear the constructive dismissal claim of a federal government employee. It
    said that the appropriate recourse for the respondent was the grievance process
    set out under the
FPSLRA
.

[11]

The motion judge dismissed the motion, permitting the respondents
    action to proceed. The respondents employer, SNPF, appeals.

II.

the statutory context

[12]

In order to give context for the motion judges reasons and the
    parties submissions, I will provide an overview of the federal public sector
    labour relations regime, both in general, and as it relates to employees like
    the respondent who are employed by a separate agency.

(1)

The
FAA
:
    Core public administration and separate agencies

[13]

Employees in the federal public service are governed by a
    comprehensive scheme that includes statutes, regulations, collective agreements
    (in the case of unionized employees), and other governmental directives:
Bron
    v. Canada (Attorney General)
, 2010 ONCA 71, 99 O.R. (3d) 749, at para. 13,
    citing
Vaughan v. Canada
, 2005 SCC 11, [2005] 1 S.C.R. 146, at para. 1.

[14]

The
FAA
is part of that comprehensive scheme. It is
    described as [a]n Act to provide for the financial administration of the
    Government of Canada, the establishment and maintenance of the accounts of
    Canada and the control of Crown corporations. Subsection 11(1) of the
FAA
defines public service by distinguishing between the core public
    administration of Canada and other parts of the federal administration, on the
    one hand, and separate agencies identified in Schedule V and other designated
    parts of the federal public administration, on the other hand.

[15]

The core public administration includes departments of the federal
    public service and various agencies, boards, and commissions listed in Schedule
    I and Schedule IV of the
FAA
. Separate agencies, like the SNPF, are the
    agencies, boards, and commissions listed under Schedule V to the
FAA
.
    The Governor in Council has the ability to move a particular agency, board, or
    commission from Schedule IV to Schedule V and vice versa: see Christopher
    Rootham,
Labour and Employment Law in the Federal Public Service
,
    (Ottawa: Irwin Law, 2007), at pp. 55-56. Schedule III of the
FAA
governs Crown corporations, which are not subject to the
FPSLRA
.

[16]

The distinction between the core public administration and separate
    agencies is important in this case because the SNPF is a separate agency. Each
    separate agency has independent status as an employer: Rootham, at p. 58. Other
    separate agencies include the National Capital Commission, the National Film
    Board, the National Research Council, and the Parks Canada Agency. Employees in
    the core public administration, by contrast, are employed by the Treasury
    Board as the delegate of her Majesty in Right of Canada: Rootham, at p. 57.

[17]

There is a sub-class of separate agencies, referred to as
    designated separate agencies, because they have been designated by the
    Governor in Council under ss. 209(3) of the
FPSLRA
. There are, at
    present, only two such agencies, the Canada Revenue Agency and the Canada Food
    Inspection Agency:
Federal Public Sector Labour Relations Act Separate
    Agency Designation Order
, SOR/2005-59.

[18]

Counsel agreed that in establishing separate agencies, Parliament
    intended them to be more nimble than the core public administration,
    operating like the private sector with respect to their labour relations, and
    giving them greater flexibility in hiring and firing.

[19]

As an employee of a separate agency that had not been designated
    by the Governor in Council under ss. 209(3) of the
FPSLRA
, the
    respondent was a member of a unique class of federal public servants entitled
    to sue their employer in court pursuant to ss. 236(3) if the dispute relates
    to his or her termination of employment for any reason that does not relate to
    a breach of discipline or misconduct.

[20]

Subsection 12(2) of the
FAA
states that, subject to any
    terms and conditions directed by the Governor in Council, the deputy head of
    a separate agency (usually the chief executive officer), may, among other
    things: establish standards of discipline and set penalties, including
    termination of employment, suspension, demotion to a lower position, or
    financial penalties; and effectuate the termination of employment or demotion to
    a lower position for reasons other than breaches of discipline or misconduct. Subsection
    12(3), which applies to both separate agencies and the core public
    administration, provides that any such disciplinary action, termination of
    employment, or demotion may only be for cause.

(2)

The
FPSLRA

[21]

The
FPSLRA
deals comprehensively with labour relations in
    the federal public service. The preamble to the statute expresses the
    commitment of the Government of Canada to the fair, credible, and efficient
    resolution of matters arising in respect of terms and conditions of employment.
    Section 12 provides for the administration of the statute by the Federal Public
    Sector Labour Relations and Employment Board (the Board). Section 13 provides
    that the Board is to adjudicate certain applications, disputes, and grievances.

[22]

Under ss. 208(1) and 236(1) of the
FPSLRA
, employees of the
    federal public service, including employees of separate agencies, are required
    to follow a grievance process if they are aggrieved by the interpretation or
    application of any statute, regulation, direction, or other instrument made or
    issued by the employer, that deals with terms and conditions of employment (ss.
    208(1)(a)(i)), or as a result of any occurrence or matter affecting the terms
    and conditions of their employment (ss. 208(1)(b)). The grievance process is internal,
    and management personnel determine the merits of the grievance:
Bron
, at
    para. 14.

[23]

Employees in the public service who have pursued a grievance up to
    the final level of the grievance process and are not satisfied with the
    outcome, are entitled, in certain circumstances, to refer the dispute to
    adjudication by the Board. However, the path an employee may follow if the
    grievance is not successful, depends on the nature of the grievance and whether
    the employee is part of the core public administration, a designated separate
    agency, or an undesignated separate agency.

[24]

Those paths are set out in ss. 209(1), which provides:

209 (1) An employee who is not a
member
as defined in subsection 2(1) of the
Royal Canadian Mounted Police Act
may refer to adjudication an individual grievance that has been presented up to
    and including the final level in the grievance process and that has not been
    dealt with to the employees satisfaction if the grievance is related to

(a) the interpretation or
    application in respect of the employee of a provision of a collective agreement
    or an arbitral award;

(b) a disciplinary action resulting
    in termination, demotion, suspension or financial penalty;

(c) in the case of an employee in
    the core public administration,

(i) demotion or termination under
    paragraph 12(1)(d) of the
Financial Administration Act
for
    unsatisfactory performance or under paragraph 12(1)(e) of that Act for any
    other reason that does not relate to a breach of discipline or misconduct, or

(ii) deployment under the
Public
    Service Employment Act
without the employees consent where consent is
    required; or

(d) in the case of an employee of a
    separate agency designated under subsection (3), demotion or termination for
    any reason that does not relate to a breach of discipline or misconduct.

(2) Before referring an individual
    grievance related to matters referred to in paragraph (1)(a), the employee must
    obtain the approval of his or her bargaining agent to represent him or her in
    the adjudication proceedings.

(3) The Governor in Council may, by
    order, designate any separate agency for the purposes of paragraph (1)(d).

[25]

In summary, all public sector employees are entitled to adjudication
    by the Board where their grievance is related to: (a) the interpretation or
    application of a collective agreement or arbitration award (ss. 209(1)(a)); or
    (b) disciplinary action resulting in termination, demotion, suspension or
    financial penalty (ss. 209(1)(b)). Employees in the core public administration
    are also entitled to refer the dispute to adjudication if their demotion or
    termination was for unsatisfactory performance or any other reason that does
    not relate to a breach of discipline or misconduct: ss. 209(1)(c). Thus,
    employees in the core public administration are entitled to refer to
    adjudication a grievance, relating to the termination of their employment,
    regardless of whether the reason for their termination was disciplinary or
    non-disciplinary.

[26]

Employees of separate agencies, however, can only have their
    grievances referred to adjudication in limited circumstances. Employees of separate
    agencies that have been designated by the Governor in Council, under ss. 209(3)
    of the
FPSLRA
, may
    refer their dispute to adjudication if their demotion or termination was for
    any reason that does not relate to a breach of discipline or misconduct: ss.
    209(1)(d). Employees of undesignated separate agencies, like SNPF, can only
    refer their grievance to adjudication by the Board if it relates to the
    interpretation or application of a collective agreement or arbitration award;
    or if it relates to a disciplinary action resulting in termination, demotion,
    suspension or financial penalty: ss. 209(1)(a) and (b).
The statutory adjudication process is not available for
    non-disciplinary terminations of employees of separate agencies that have not
    been designated under ss. 209(3). Those employees are not precluded from access
    to the courts if they have been terminated for a reason that does
not
relate to a breach of discipline or misconduct: ss.
    236(3). Whereas employees in the core public administration are able to pursue
    both disciplinary and non-disciplinary terminations by adjudication, employees
    of undesignated separate agencies have access to the courts for the latter.

[27]

The result is that undesignated separate agencies have greater
    flexibility to terminate employees for non-disciplinary reasons because they
    are not subject to a statutory adjudication process that may result in the
    re-instatement of the employee.

[28]

Section 214 of the
FPSLRA
provides that, except in those
    cases that may be referred to adjudication under s. 209, the decision on the
    grievance taken at the final level in the grievance process is final and
    binding for all purposes of this Act and no further action under this Act may
    be taken on it.

[29]

Thus, the process available to employees of separate agencies, like
    the respondent, differs from that available to employees in the core public administration.
    Employees in the core public administration and employees of designated
    separate agencies, covered by ss. 236(1) and (2), have no right of action in
    the courts in relation to disciplinary and non-disciplinary terminations. Their
    right is to proceed to grievance and, in some cases, to have the matter
    referred to adjudication by the Board.

[30]

Subsection 236(3), on the other hand, gives employees of separate
    agencies, other than those designated under ss. 209(3), the right to sue if
    the dispute relates to his or her termination of employment for any reason that
    does not relate to a breach of discipline or misconduct.

[31]

There is no dispute that the appellant, the SNPF, was
not
a separate agency that had been designated under ss.
    209(3).

(3)

SNPF grievance policies

[32]

In addition to being subject to the foregoing statutory scheme, the
    respondent was also subject to the human resources policies of the SNPF. The Termination
    of Employment Policy provided full-time, non-unionized employees with severance
    pay in lieu of notice, equivalent to two weeks pay for the first year of
    service and one week for each additional year of service, up to a maximum of 28
    weeks. It also provided that employees whose employment was terminated for
    certain reasons were not entitled to notice, payment in lieu of notice, or
    severance pay. These reasons included: disciplinary discharge; incompetence
    and/or unsatisfactory performance; failure to meet a bona fide occupational
    requirement or occupational qualification; failure to raise attendance to a
    satisfactory level; and ineligibility for continued employment.

[33]

The SNPF also had a Grievance Policy, which provided that any
    employee who feels aggrieved has the right to present a grievance. The policy
    gave broad rights of grievance, allowing an employee to file a grievance as a
    result of
any
occurrence or matter affecting the terms and conditions of
    employment (emphasis added). The policy also explained how grievances are to
    be pursued. It contained both an informal grievance process and a formal
    grievance process. If an employee did not receive a satisfactory internal
    resolution of their grievance, they could, in certain circumstances, refer the
    grievance to adjudication by the Board in accordance with the [
Federal Public Service Labour Relations
]
Act
and the Public
    Service Labour Relations Board Regulations. The policy did not identify the
    circumstances in which adjudication is available.

III.

The Motion Judges Reasons

[34]

The motion judge rejected the appellants submission that the
    respondents lawsuit was simply a series of complaints related to his
    employment, which could have been grieved, but that he had allowed his
    complaints to accumulate and then claimed constructive dismissal.

[35]

She explained that although employees in the core public administration
    had access to third-party adjudication for non-disciplinary terminations
    through the Board, this was not available to employees of undesignated separate
    agencies. The latter had a different route by virtue of ss. 236(3) of the
FPSLRA
.
    She stated, at paras. 13 and 14:

Section 209 of the
FPSLRA
appears to
    leave employees such as Mr. Pearce without recourse to an independent
    decision-maker if their employment was terminated for a reason that was not
    disciplinary; these employees may grieve a non-disciplinary termination but,
    with no right of referral to adjudication, under s. 214, the decision at the
    final level of their agencys internal grievance procedure is final.

This seemingly anomalous distinction between
    core public administration and non-designated (under s. 209(3)) separate
    agency employees is addressed by the section of the
FPSLRA
which is at
    the heart of this motion, s. 236. Section 236 gives the latter group a right of
    action against the employer. Section 236(1) states that the right to grieve
    disputes is in lieu of the right to sue but s. 236(3) allows employees of
    agencies such as the SNPF to sue their employer for a non-disciplinary
    termination.

[36]

She found that even if the essential character of the dispute is a
    series of grievable events, if one or a combination of those events is or
    amounts to a non-disciplinary termination, [then] the employee has the right to
    sue under s. 263(3) [
sic
]. According to the motion judge, termination
    in ss. 236(3) includes constructive dismissal. She determined that Parliament
    could not have intended an employee of an undesignated separate agency to have the
    right to sue for wrongful termination, while that employee did not have a right
    to sue for constructive dismissal and had to pursue an internal grievance
    process.

IV.

The parties submissions

(1)

The Appellant

[37]

The appellant submits that the word, termination, in ss. 236(3) of
    the
FPSLRA
does not include common law constructive dismissal. The
    appellant asserts that, when the statutory scheme is considered as a whole, it
    is evident that Parliament did not intend to include constructive dismissal in
    the
FPSLRA
. Parliament introduced ss. 236(1) and (2) as a complete
    bar to civil actions, like constructive dismissal, and codified ss. 236(3) as
    a narrow exception, applicable to employees of undesignated separate agencies
    who have been terminated for non-disciplinary reasons.

[38]

The appellant argues that any reason that does not relate to a
    breach of discipline or misconduct in ss. 236(3) cannot include constructive
    dismissal because the
FPSLRA
provides employees, like the respondent,
    with a comprehensive grievance process to resolve such disputes. Sections 208
    and 209 of the
FPSLRA
allow an employee to grieve all disputes related
    to their employment, and to appeal up to third-party adjudication by the Board.
    Subsection 236(3) offers an employee of an undesignated separate agency the ability
    to sue in court if the employee meets the conditions contained therein. It is
    the position of the appellant that these two options are put before the
    employee as an election, and that the employee can only pursue one for the
    resolution of their dispute. The appellant suggests that s. 209 of the
FPSLRA
,
    which gives a right to adjudicate a grievance in relation to disciplinary action
    resulting in termination, demotion, suspension or financial penalty, is
    robust enough to address any events or occurrences associated with a claim of
    constructive dismissal and, thus, ss. 236(3) cannot be used for this purpose. The
    appellant submits that if ss. 236(3) is read to incorporate constructive
    dismissal, employees would be able to launch collateral attacks against the
FPSLRA
regime by stringing together otherwise grievable events and occurrences just
    so they can commence an action in the courts.

(2)

The Respondent

[39]

The respondent submits that he had no recourse to the adjudication
    process because he was not a unionized employee, was not part of the core
    public administration, his termination was not the result of disciplinary
    action, and SNPF had not been designated under ss. 209(3) as being subject to
    adjudication for non-disciplinary terminations. He contends, therefore, that he
    has recourse to the court under ss. 236(3).

[40]

The respondent rejects the appellants proposition that an employee
    of a separate agency must make an election whether to pursue the grievance
    process under s. 208, or a court action under ss. 236(3). In the respondents
    view, s. 208 and ss. 236(3) of the
FPSLRA
serve different purposes. An
    employees failure to grieve can potentially be invoked by the employer as a
    defence to the constructive dismissal claim, but not as a bar to the
    commencement of the civil action.

V.

Analysis

[41]

This appeal turns on the interpretation of a statute. I turn first
    to the relevant principles, and then to their application.

(1)

Principles of statutory interpretation

[42]

In
Re Rizzo & Rizzo Shoes Ltd.
, [1998] 1 S.C.R. 27, the
    Supreme Court adopted the modern principle of statutory interpretation as expressed
    by Elmer Driedger. That principle stipulates that the words of an Act are to
    be read in their entire context and in their grammatical and ordinary sense
    harmoniously with the scheme of the Act, the object of the Act, and the
    intention of Parliament:
Rizzo
, at para. 21;
Bell ExpressVu
    Limited Partnership v. Rex
, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26.
    See also Ruth Sullivan,
Statutory Interpretation
, 3rd ed. (Toronto:
    Irwin Law, 2016), at pp. 44-45. In the federal legislative context, Driedgers
    modern approach is supported by s. 12 of the
Interpretation Act
,
    R.S.C. 1985, c. I-21, which provides that every enactment is deemed remedial,
    and shall be given such fair, large and liberal construction and interpretation
    as best ensures the attainment of its objects: see
Bell ExpressVu
, at
    para. 26.

(2)

The context

[43]

The Supreme Courts reference to the entire context reminds us
    that words have not only an intrinsic meaning, but that they sometimes take
    their meaning from their context  i.e. the words that surround them. In ss.
    236(3), the words termination of employment are followed by the words for
    any reason that does not relate to a breach of discipline or misconduct. We
    understand from the context that termination of employment is to be given a
    broad meaning (
any
reason), but that meaning
    will not include terminations for some reasons, namely, those that relate to a
    breach of discipline or misconduct.

[44]

We also know, from the broader context of ss. 236(1), that the right
    in ss. 236(3) is an exception that applies
only
to
    employees of undesignated separate agencies. All other employees, whether part
    of the core public administration or employed by designated separate agencies,
    must pursue their non-disciplinary terminations via grievance or third-party
    adjudication.

[45]

The logic of these provisions has been explained above and will be
    revisited when I examine the scheme and object of the legislation.

(3)

The grammatical and ordinary meaning

[46]

It is not difficult to determine the plain meaning of the words of ss.
    236(3): if the dispute relates to his or her termination of employment
for any reason
that does not relate to a breach of
    discipline or misconduct (emphasis added). The language is broad and, on its
    face, excludes only terminations that are based on breach of discipline or
    misconduct.

[47]

The appellant submits that the motion judge erred by improperly
    reading in the word constructive into the phrase, termination of
    employment, in ss. 236(3), thereby injecting the common law concept of constructive
    dismissal into the federal employment regime where it has no place.

[48]

Constructive dismissal occurs where the employers conduct evinces
    an intention to no longer be bound by the employment contract. When that
    occurs, the employee has a choice of accepting the conduct, or treating it as a
    repudiation of the contract and suing for wrongful dismissal:
Farber v.
    Royal Trust Co.
, [1997] 1 S.C.R. 846, at para. 33;
Potter v. New
    Brunswick Legal Aid Services Commission
, 2015 SCC 10, [2015] 1 S.C.R. 500,
    at para. 30. The word, constructive, indicates that the dismissal is a legal
    construct: the employers act is treated as a dismissal because of the way it
    is characterized by law:
Potter
, at para. 30.

[49]

In
Evans v. Teamsters Local Union No. 31
, 2008 SCC 20,
    [2008] 1 S.C.R. 661, at para. 26, the Supreme Court of Canada confirmed that
    constructive dismissal is a termination:

[T]he very purpose behind recognizing
    constructive dismissal is to acknowledge that where an employer unilaterally
    imposes substantive changes to an employment contract,
the
    employee has the right to treat the imposition of those changes as termination
.
    This termination is every bit as real as if the employee were actually told
    of the dismissal. [Emphasis added.]

[50]

As Wagner J., as he then was, observed in
Potter
,
    constructive dismissal can occur in one of two ways. In the first way, the
    court determines whether the employer has breached an express or implied term
    of the contract, and then determines whether the breach was sufficiently
    serious to amount to constructive dismissal:
Potter
, at para. 32. In
    the second way, the court determines whether the employers conduct more
    generally demonstrates an intention to no longer be bound by the contract. For
    example, if the employers treatment of the employee made continued employment
    intolerable:
Potter
, at para. 33.

[51]

The second approach is retrospective. As Wagner J. observed in
Potter
,
    at para. 33, it requires consideration of the cumulative effect of past acts
    by the employer and the determination of whether those acts evinced an
    intention no longer to be bound by the contract.

[52]

The approach is also objective. Under the second branch of the test
    for constructive dismissal, the question is whether the employers conduct,
    when viewed in the light of all the circumstances, would lead a reasonable
    person to conclude that the employer no longer intended to be bound by the
    contract:
Potter
, at para. 42.

[53]

It is precisely this form of constructive dismissal that the
    respondent relies upon. He pleads that although he resigned, his resignation
    was involuntary, and occurred due to the toll on his health from the toxic work
    environment created by his supervisor and his supervisors subordinates. This
    included harassment, groundless complaints against him, the downgrading of his
    position, and the removal of job responsibilities. This is patently a pleading
    of constructive dismissal.

[54]

In my view termination of employment for any reason in s. 236
    includes the termination of employment by way of constructive dismissal. The
    interpretation of the words surrounding termination in ss. 236(3) supports
    the conclusion that ss. 236(3) was meant to capture constructive dismissal. As
    noted earlier, in ss. 236(3), the word termination, is followed by the
    phrase, for any reason. As described by Juriansz J.A. in
Aviva Insurance
    Company of Canada v. McKeown
, 2017 ONCA 563, 136 O.R. (3d) 385, at para.
    21, [r]eason is a simple but flexible word used in common parlance. It can
    mean  a justification for some act or decision. The choice of Parliament to
    use the word any before reason indicates that the
FPSLRA
contemplates an unidentifiable number of justifications for an employees
    termination. Parliament did not attempt to restrict the definition of
    termination beyond the qualification that it could not relate to a breach of
    discipline or misconduct. The only plausible interpretation, when ss. 236(3)
    is read as a whole, is that Parliament conceptualized termination in the broadest
    possible terms: see
Brown v. Canada (Attorney General)
, 2013 ONCA 18,
    114 O.R. 3(d) 355, at para. 55.

[55]

I do not accept the appellants submission that ss. 236(3) should be
    given a narrow reading. As the motion judge noted, the words 
relates to
his or her employment
for
    any reason
 are very broad: see
1704604 Ontario Ltd. v. Pointes
    Protection Association
, 2018 ONCA 685, 142 O.R. 3(d) 161, at para. 65,
    affd 2020 SCC 22. While I accept the proposition that the courts must respect
    Parliaments preference for a particular dispute resolution process, such as a
    grievance procedure and third-party adjudication (
Pleau v. Canada (Attorney
    General)
, 1999 NSCA 159, 181 N.S.R. (2d) 356, at paras. 19-20, leave to
    appeal refused, [2000] S.C.C.A. No. 83), that does not compel a narrow reading
    of otherwise broad and unambiguous language permitting a particular class of employees
    to pursue third-party adjudication in a judicial forum.

[56]

The appellants assertion that some of the respondents complaints
    were grieved and others could have been, misses the mark. Constructive
    dismissal can be established not only by single events, but it can also occur where
    the cumulative effect of the employers conduct entitles the employee to quit 
    the labour relations equivalent of the final straw breaking the camels back.

[57]

I do not accept the appellants submission that constructive
    dismissal is a common law concept that has no place in the federal labour and
    employment regime. The appellant cites no judicial authority for this
    proposition, although he does cite to two decisions of the PSLRB and the
    PSLREB:
Gaskin v. Canada Revenue Agency
, 2008 PSLRB 96, at para. 69;
Wercberger
    v. Canada Revenue Agency
, 2016 PSLREB 41, at para. 57. In the former, the Board
    observed that it was clearly debatable whether the common-law doctrine of
    constructive dismissal can be applied in this jurisdiction, where the
    employers authority to terminate the employment relationship is precisely
    defined and circumscribed by statute:
Gaskin
, at para. 69. In the
    latter case, at para. 35, it was suggested that [t]he doctrine of constructive
    dismissal has no application to the federal public service as employees in the
    public sector must be terminated for cause.

[58]

Whatever the validity of that proposition in relation to public
    sector employees in the core administration or in designated separate agencies,
    the inclusion of ss. 236(3) makes it clear that an employee of an undesignated separate
    agency may well be terminated for reasons other than breach of discipline or
    misconduct  that is, for reasons other than cause  and preserves a right of
    action for such dismissals.

[59]

An employee who has been constructively dismissed cannot be said to
    have engaged in a breach of discipline or misconduct so as to fall within the
    exception contained in ss. 236(3).

(4)

The scheme of the Act, the object of the Act, and the intention of
    Parliament

[60]

The modern principle of statutory interpretation requires that the
    words of a statute be interpreted harmoniously with the scheme of the Act, the
    object of the Act, and the intention of Parliament. The legislative scheme
    includes the individual provisions, parts, and sections that work together to
    provide a plausible and coherent plan for the achievement of the statutes
    intended purpose: Ruth Sullivan,
Sullivan on the Construction of Statutes
,
    6th ed. (Toronto: LexisNexis Canada Inc., 2014), at §13.12. As described by
    Greshuk J. in
Melnychuk v. Heard
, 1963 CanLII 815 (Alta. S.C.), at p. 263:

The court must not only consider one section
    but all of the sections of an Act including the relation of one section to the
    other sections, the relation of a section to the general object intended to be
    secured by the Act, the importance of the section, the whole scope of the Act
    and the real intention of the enacting body.

[61]

In some cases, the legislature may have enacted more than one
    statute on the same subject-matter or enacted a provision meant to be read
    alongside another statute. In
Re Therrien
, 2001 SCC 35, [2001] 2
    S.C.R. 3, Gonthier J. explained, at para. 121, that [i]nterpretations
    favouring harmony between the various statutes enacted by the same government should
    indeed prevail. This presumption is even stronger when the statutes relate to
    the same subject-matter. The practice of considering multiple statutes in the
    interpretative exercise has also been codified in ss. 15(2)(b) of the federal
Interpretation
    Act
.

[62]

An interpretation of the provision at issue that promotes the
    purpose is preferred over one that is not: Sullivan,
Statutory
    Interpretation
, at p. 53. As explained by Dickson J. in
Covert v. Nova
    Scotia (Minister of Finance)
, [1980] 2 S.C.R. 774, at p. 807: The correct
    approach, applicable to statutory construction generally, is to construe the
    legislation with reasonable regard to its object and purpose and to give it
    such interpretation as best ensures the attainment of such object and purpose.
    The purposive analysis is a staple of modern statutory interpretation. It is
    not only used when the text under dispute is ambiguous, but in every case and
    at every stage of the interpretive exercise: Sullivan,
Statutory
    Interpretation
, at p. 185.

[63]

The interpretation of termination in ss. 236(3) as including
    constructive dismissal is supported by considering the broader context of the
FPSLRA
.

[64]

It will be recalled that ss. 209(1)(b) gives all federal public
    servants, (other than members of the RCMP), including employees of separate
    agencies, the right to refer a grievance to adjudication by the Board if it
    relates to disciplinary action resulting in termination, demotion, suspension
    or financial penalty (i.e. a disciplinary termination). However, ss.
    209(1)(c) also provides that employees in the
core public
    administration
are entitled to adjudication if their grievance relates
    to (i) demotion or termination under para. 12(1)(d) of the
FAA
for unsatisfactory
    performance, or under para. 12(1)(e) of the
FAA
for any other reason
    that does not relate to a breach of discipline or misconduct (i.e. a
    non-disciplinary termination).

[65]

Subsection 209(1)(d) makes a further special provision for an employee
    of a designated separate agency, who may pursue a non-disciplinary termination
    to adjudication.

[66]

Thus, to summarize, ss. 209(1)(b) and (c) of the
FPSLRA
provide employees of the core public administration with an opportunity to have
    their grievances referred to adjudication regardless of whether the termination
    is disciplinary or non-disciplinary. Subsections 209(1)(b) and (d) does the
    same for employees of separate agencies that have been designated under ss.
    209(3) of the
FPSLRA
.

[67]

There is no provision in s. 209 that gives employees of undesignated
    separate agencies access to third-party adjudication of their disputes over
    non-disciplinary terminations. Subsection 236(3) fills this gap, giving those
    employees access to third-party adjudication through the courts. The language
    of ss. 236(3), any reason that does not relate to a breach of discipline or
    misconduct, is an exact parallel to ss. 209(1)(d), with the difference being
    that employees of undesignated separate agencies have access to the courts for
    such grievances, while employees of designated separate agencies must seek
    adjudication by the Board.

[68]

Reading subsection 236(3) together with s. 209 demonstrates a Parliamentary
    intention to enable all public sector employees to have access to third-party
    adjudication for their non-disciplinary terminations. The difference is that
    employees who are part of the core administration and employees of designated
    separate agencies have access to the Board, while employees of undesignated
    separate agencies have access to the courts. This distinction is entirely in
    keeping with the intention of enabling separate agencies to behave more like
    private enterprises in their labour relations.

[69]

The purpose of the
FPSLRA
is to ensure that the Government
    of Canada is committed to the fair, credible and efficient resolution of
    matters arising in respect of terms and conditions of employment. There is no
    such fairness if ss. 236(3) of the
FPSLRA
is read to exclude
    adjudicative processes for employees of undesignated separate agencies who have
    been subject to non-disciplinary termination. Neither the
FPSLRA
nor
    the
FAA
draw a distinction between employees of the core public
    administration and employees of separate agencies so as to justify this
    differential treatment. In fact, the parties concede that Parliaments choice
    to distinguish between the core public administration and undesignated separate
    agencies appears to have been motivated by the desire to see the latter conduct
    its labour relations in a manner akin to the private sector. If that is the
    case, then one would expect that employees of separate agencies will have an avenue
    by which to seek a resolution of their non-disciplinary terminations. Subsection
    236(3) provides that, when read as the respondent proposes.

[70]

Subsection 236(3) was also enacted after the Supreme Court of Canada
    released its decision in
Vaughan
. In
Vaughan
, the Supreme
    Court cautioned that, where Parliament has created a comprehensive legislative
    scheme to deal with labour disputes, the process should not be compromised by
    permitting parallel access to the courts. The Supreme Court recognized,
    however, that there may be a residual discretion to access the courts if the
    grievance procedure did not allow for third-party adjudication. To reach its
    conclusion, the Supreme Court of Canada interpreted the
Public Service
    Staff Relations Act
, R.S.C. 1985, c. P-35 (
PSSRA
), the
    predecessor to the
FPSLRA
. The
PSSRA
had a grievance
    procedure that did not include third-party adjudication with respect to the
    denial of early retirement benefits. Grievance decisions were also insulated
    from judicial review by a final and binding clause found in the legislation.
    Parliament responded to
Vaughan
by repealing the
PSSRA
and
    enacting the
FPSLRA
. Subsection 236(3) was a completely novel
    provision, one without an equivalent in the
PSSRA
.

[71]

The context in which the
FPSLRA
and, specifically, ss.
    236(3) were enacted indicates that Parliament recognized and accounted for the
    Supreme Court of Canadas comments on the lack of access to third-party
    adjudication for federal public service employees. Unlike the
PSSRA
,
    the
FPSLRA
not only offers a comprehensive grievance regime through
    which employees can contest their terminations, but it also includes the right
    to third-party adjudication by the Board. At the same time, ss. 236(3) carves
    out a specific exception for the employees of separate agencies, not designated
    under ss. 209(3) of the
FPSLRA
, to access the courts in the limited
    circumstances of a non-disciplinary termination.

(5)

Response to the appellants other submissions

[72]

Despite the appellants contention, interpreting ss. 236(3) to
    include non-disciplinary terminations, such as constructive dismissal, does not
    lead to an absurd result. Subsection 236(3) is part of, and essential to, a
    fair grievance process for all employees of the federal public service.

[73]

The decision of the New Brunswick Court of Appeal in
Robichaud
    v. Canada (Attorney General)
, 2013 NBCA 3, 398 N.B.R. (2d) 259, referred
    to by the appellant, has no application. There, the court dismissed an action
    for constructive dismissal against the Correctional Service of Canada, because
    the employer was not a separate agency, and the court expressly observed that ss.
    236(3) was not applicable.

[74]

The appellant relies, however, on the decision of the Federal Court
    in a case involving Parks Canada which, like SNPF, is a separate agency:
Robinson
    v. Canada (Parks Agency)
, 2017 FC 613. There, the court struck an
    employees claim for constructive dismissal and other relief, on the basis that
    the claim disclosed no reasonable cause of action.

[75]

The motion judge in
Robinson
found that the determinative
    issue was whether ss. 236(3) of the
FPSLRA
applied with respect to the
    allegations contained in the statement of claim. He held, at para. 25, that it
    was necessary to determine the essential character of the dispute in view of
    the factual context in which it arises and the breadth of the legislative
    scheme for resolving labour disputes. He held, at paras. 26-27, that the claim
    involved matters that were or could have been grieved:

In this case, the Plaintiff's claim - that
    various events during his employment with Parks Canada cumulatively resulted in
    a constructive or direct dismissal of his employment without cause - is a
    collateral attempt to attack various decisions and events which are or were
    otherwise grievable under the [
F
]
PSLRA
or Parks Canada's
Staffing
    Policies
. In my view, each and all of the Plaintiff's claims pertain to
    occurrences or matters affecting his employment with the Defendant, and the
    legislative and administrative avenues for redress available to the Plaintiff
    in this case would be undermined if the Statement of Claim is not struck and
    the Plaintiff's complaints be allowed to proceed in this Court. Indeed, the
    second stage of the Plaintiff's grievance has been suspended pending the
    determination of this motion; that grievance process should be permitted to
    continue to its ultimate outcome. There is no suggestion in this case that the
    grievance process could not provide an appropriate remedy to redress the
    Plaintiff's complaints.

[I]n this case, the Plaintiff resigned and
    retired and did not meaningfully engage the schemes for resolution of workplace
    disputes available to him when the alleged events occurred; had he done so, the
    Defendant would have had an opportunity to respond to the disputes and take any
    necessary corrective steps as intended by these schemes.

[76]

It appears that in
Robinson
, the motion judge of the
    Federal Court accepted Canadas argument, at para. 23, that even when the
    right of action is based on subsection 236(3), the Court has discretion to
    decline to exercise jurisdiction to entertain a termination claim, and that
    the principles in
Vaughan
should guide the Court in determining
    whether it should defer to the comprehensive schemes established by Parliament
    and decline to exercise jurisdiction. That argument was not made before us.

[77]

In my view, respectfully, it is incorrect. As the Federal Court
    judge in
Robinson
observed, at para. 20, this court stated in
Bron
,
    at para. 28, that the legislation under consideration in
Vaughan
(the
PSSRA
),
    did not contain a provision similar to s. 236 of the
FPSLRA
, and [t]he
    holding in
Vaughan
that the Superior Court retained a residual
    discretion to entertain a claim based on a grievable complaint turned on the
    language of the
PSSRA
the legislation in force at the relevant time.
    It held that the enactment of the
FPSLRA
had changed the basic holding
    in
Vaughan
.

[78]

It seems to me that, as regards an employee of an undesignated separate
    agency, s. 236 does not leave the court with a discretion to accept or decline
    jurisdiction. The right of an employee to grieve any dispute relating to the
    terms or conditions of the employees employment is in lieu of any right of
    action
unless
the dispute relates to his or her
    termination of employment for any reason that does not relate to a breach of
    discipline or misconduct. If the dispute falls within the latter category, the
    court has no residual discretion to refuse to hear it.

[79]

That being said, I take no issue with the approach in
Robinson
,
    which suggests that the court must determine the essential character of the
    dispute to see whether it falls within ss. 236(3). Given the broad language of
    that subsection, this will usually call for a determination of whether the
    termination was for something other than a breach of discipline or misconduct.
    I would not foreclose the possibility that a court hearing an action for
    constructive dismissal might conclude that a series of individually grieved or
    grievable complaints in a particular case do not cumulatively give rise to a
    claim for constructive dismissal.

[80]

With respect, it does not appear that the Federal Court in
Robinson
considered the purpose of ss. 236(3) or its interpretation. Nor did it consider
    the unique nature of a claim for constructive dismissal.

[81]

I contrast
Robinson
with
Haroun v. National Research
    Council of Canada
, 2015 FC 1168. The plaintiff was hired by the National
    Research Council of Canada (NRC) for a two-year term. The NRC is an
    undesignated separate agency. Mr. Haroun was dismissed before the end of his
    term for performance-related issues. He subsequently brought a grievance
    under the
FPSLRA
, in which he alleged that the NRCs decision was
    disguised discipline and without cause. The grievance was denied.

[82]

Mr. Haroun then commenced an action against the NRC. The parties moved
    under Rule 220 of the
Federal Court Rules
, SOR/98-106, for a
    determination on a preliminary issue of law  could the plaintiff launch a
    civil action, or was he required to seek judicial review of the grievance
    decision? The Federal Court observed, at para. 4, that at the heart of the
    impasse was the interpretation of s. 236 in the
FPSLRA
. It held, at
    para. 7 of its decision, that:

The scope of section 236 of the PSLRA must be
    assessed in light of sections 209 and 230, both of which distinguish between
    performance-based and disciplinary dismissals. Paragraphs 209(1)(c) and (d)
    restrict the right of adjudication for unsatisfactory performance to core
    employees of the Public Service or to the employees of designated separate
    agencies. Section 230 requires that, in such cases, the adjudicator apply the
    deferential standard of reasonableness.
Nowhere do these
    provisions purport to address or limit a cause of action at common law for the
    wrongful, non-disciplinary dismissal of employees of separate, undesignated
    agencies
. Instead, the PSLRA consistently recognizes a distinction
    between core Public Service employees (including the employees of designated
    separate agencies) and the employees of non-designated separate agencies. [Emphasis
    added.]

[83]

The Federal Court went on to state, at para. 9, that

[T]he purpose of subsection 236(3) is to
    preserve a common law right of action for employees of undesignated separate
    agencies in relation to performance-based terminations. In the face of the
    clear language used and the gravity of the consequences of termination, it
    cannot be that Parliament intended that employees like Mr. Haroun be limited to
    the option of pursuing a restrictive internal grievance with no right to
    independent adjudication. Indeed, there is no reason to think that Parliament
    intended to deprive separate agency employees of the right to the independent
    assessment of the merits of their performance-based terminations.

[84]

The Federal Court ultimately concluded that Mr. Haroun could move
    forward with his civil action. Although its reasons referred to
    performance-based terminations, those observations must be taken in the context
    of Mr. Harouns employment having been terminated for performance-based
    reasons. It would not be compatible with the broad language of ss. 236(3) (for
    any reason that does not relate to a breach of discipline or misconduct) to confine
    its operation to only performance-based terminations.

[85]

Nor would I give effect to the appellants argument that allowing
    the respondents claim to proceed will allow every employee of a separate
    agency to circumvent the grievance process. The respondents claim may or may
    not succeed. In order to succeed, he may be required to establish more than a
    series of complaints that could individually have been or were pursued through
    the grievance process. He will have to establish that, viewed individually or
    cumulatively, the employers acts and omissions reached the point that he was
    entitled in law to say, I quit, and to sue for damages.

VI.

disposition

[86]

For these reasons, I would dismiss the appeal. I would also order
    that if the parties are unable to agree on costs, they may make written
    submissions, to be filed with the registrar. The submissions shall not exceed
    three pages in length, exclusive of the costs outline. The respondents
    submissions shall be filed within 20 days of the release of these reasons and
    the appellant shall have 10 days thereafter to file a response.

Released: G.R.S.   FEB 03 2021

George R. Strathy C.J.O.

I
    agree. Paul Rouleau J.A.

I
    agree. S. Coroza J.A.


