B.C. court rules it lacks jurisdiction to hear 'deeply troubling' allegations from former CSIS employee

A sign for the Canadian Security Intelligence Service building is shown in Ottawa, Tuesday, May 14, 2013. THE CANADIAN PRESS/Sean Kilpatrick

Warning: This story contains references to sexual assault that some readers may find disturbing.

The B.C. Supreme Court has dismissed a sexual assault and harassment lawsuit from a former employee of Canada's spy agency, on the grounds that it lacked jurisdiction in the case.

The anonymous complainant, referred to in the proceedings only as Jane Doe, worked for the Canadian Security Intelligence Service from September 2018 through December 2021.

Her lawsuit claimed that she was "constructively dismissed" – meaning, essentially, that her employer created an environment so toxic that she had no choice but to quit – and sought damages for breach of contract, breach of fiduciary duty and breaches of the Canadian Charter of Rights and Freedoms.

The Attorney General of Canada, which was named as the defendant in the suit, brought an application to have the case dismissed. The application argued that the B.C. court lacked jurisdiction because Doe's employment was governed by the Federal Public Sector Labour Relations Act (FPSLRA) and its comprehensive dispute resolution process.

While acknowledging that the complaint contained "deeply troubling" allegations against Doe's colleagues and CSIS as a whole, Justice Michael Tammen concluded the Attorney General was correct.

In a decision issued last week and published online Tuesday, the judge wrote that Doe's pleadings did not establish sufficient cause for the court to intervene in the statutorily established grievance process.

WHAT THE COMPLAINT ALLEGED

Doe's lawsuit claimed that she was sexually assaulted by one of the instructors of a three-and-a-half-month course that she took when she began working at CSIS, according to Tammen's decision.

After that, while on a two-year probationary period, she worked closely with a person identified as "Individual E" on a surveillance unit, spending 10-hour shifts together in a vehicle.

"Ms. Doe pleads that Individual E sexually harassed her, and on numerous occasions sexually assaulted and raped her during work shifts," the court decision reads.

She further claimed that some of Individual E's conduct was witnessed by other CSIS employees, "including several people in supervisory roles," who did nothing to stop it.

Doe filed a formal complaint with CSIS in November 2021, and the court document indicates that after filing it she "was subjected to treatment by CSIS personnel which rendered her continued employment intolerable."

She quit the following month, though Tammen's decision indicates that CSIS still considers her an employee, and claims she is "officially on leave."

The investigation into her complaints under CSIS's internal harassment and violence in the workplace policy is ongoing, according to the decision.

WHY THE COURT DISMISSED THE CASE

Tammen's decision notes that previous decisions from the Supreme Court of Canada have held that "where legislation provides a comprehensive scheme for dealing with employment issues between parties, the courts should generally defer to that scheme and its internal dispute mechanisms."

Further, the nation's highest court has held that – in cases related to employment issues – the plaintiff's legal position shouldn't be improved by their own failure to pursue a grievance through the internal dispute process.

In Doe's case, she had two internal processes available to her, according to Tammen's decision. Those were: First, to submit a complaint pursuant to the harassment provisions of the FPSLRA, and second to submit a grievance about the conduct under a separate section of the legislation.

Doe did the first, but has not yet done the second, though she still could. The harassment complaint process is not yet complete, according to the court decision.

"At the completion of the process, Ms. Doe would be entitled to grieve the final workplace harassment and violence process or the implementation of recommendations, or challenge a final decision by way of judicial review in the federal court," Tammen's decision reads.

"I have no hesitation concluding that there is a comprehensive legislative scheme in place which provides Ms. Doe with an avenue of recourse for all the matters complained of in her (notice of civil claim). Thus, subject to any residual discretion I may have to permit the claim to proceed, it must be dismissed."

Regarding that "residual discretion," Doe argued the B.C. court should take the case anyway, because the internal grievance process itself is corrupt.

"The courts retain the discretion to hear complaints that can be grieved through a statutory grievance process if the integrity of that grievance process is shown to be compromised or otherwise corrupted," Tammen's decision reads.

"This residual discretion should be exercised only in truly exceptional cases. The onus is on the plaintiff to establish that, due to its improprieties, the grievance procedure would be unable to provide effective redress."

In this case, the judge was unconvinced by Doe's argument that the conduct of senior employees at CSIS, as well as the general culture of the workplace, gave her a reasonable belief that the internal grievance process is corrupt.

Tammen noted that believing the process to be corrupt was not sufficient for the court to intervene. It had to see tangible evidence of corruption, such as the senior employees who witnessed Individual E's conduct being involved in investigating the case.

"While I acknowledge that the conduct alleged against the CSIS senior employees is problematic and deeply troubling, Ms. Doe has failed to connect that conduct with the internal grievance process itself," the decision reads.

"The complaint process, including the initial investigation, may not be proceeding as swiftly as Ms. Doe would like, and she may have sound reasons for her subjective belief that the process is unsatisfactory. However, that is a far cry from actual evidence that the process is not working or is incapable of providing an appropriate remedy."