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Andrew Montague-Reinholdt has had an important win this week in the Ontario Court of Appeal’s decision, Pearce v. Canada (Staff of the Non-Public Funds, Canadian Forces).

Mr. Pearce was a non-unionized federal public service employee. He argued constructive dismissal against his employer, who fell under the “undesignated Separate Agency” category pursuant to the Federal Public Sector Labour Relations Act (“FPSLRA”). The employer argued that as an employee of the federal government, Mr. Pearce should seek recourse for his constructive dismissal claim under a grievance process and not through the court.

The Ruling

The Court concluded that an employee of an undesignated separate agency may bring a civil action against their employer for constructive dismissal because:

  1. Undesignated Separate Agency employees do not have access to third party adjudication for non-disciplinary terminations. Therefore, they must be given the alternative of finding a remedy under civil action (i.e. suing); and,
  2. The interpretation of the term “termination” under s. 236 (3) includes a termination by way of constructive dismissal.

The Court’s Reasoning

The appeal turned on the interpretation of a s. 236(3) of the FPSLRA, which states:

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. 

The Court interpreted the terms “termination of employment” broadly, emphasizing that it only excludes those who were terminated for disciplinary reasons and is meant to capture constructive dismissal. This interpretation allowed for the realization of the legislator’s intention not to restrict the word “termination” beyond qualifying that “termination” could not relate to a breach of discipline or misconduct.

The Takeaway

The ONCA agreed that non-unionized employees of Separate Agencies can bring Superior Court actions for wrongful dismissals. This includes Mr. Pearce’s right to pursue his constructive dismissal claim in Superior Court.

Nelligan Law would like to thank Barhilla Jesse-Buadoo, Student-at Law, for writing this blog post.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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