Court dismisses CBSA firearm instructor’s frisking claim, says grievance was proper forum

Canada Border Services Agency. Photo: Hermes Rivera/Unsplash

The Supreme Court of British Columbia has dismissed a lawsuit by a former Canada Border Services Agency (CBSA) unionized firearm instructor because it lacked jurisdiction.

Simply put, the issue could have been grieved under the collective agreement, and some aspects of it already had been, the court said.

What happened

Jannelle Buchanan worked as a firearms instructor with CBSA from 2015 to 2017. She was a member of the Customs and Immigration Union, which is part of the Public Service Alliance of Canada (PSAC).

In October 2016, she made a formal complaint against another CBSA employee. Following an investigation against the employee, including complaints from other workers, he was terminated. At around the same time, the fired worker filed a workplace complaint against Buchanan.

The frisking incident

As CBSA investigated that complaint, it asked Buchanan — who worked in the Surrey area — to attend the Chilliwack office for an interview. She was frisked prior to the start of the interview.

The reason she was given for the frisking was because she allegedly made a threat that she was going to show up for the interview armed.

Buchanan had intended to drive to the interview in a marked CBSA vehicle.

The “threat” came via a text message to a co-worker that she would be “gunned up lol.”

That was a reference to the fact she would be driving a marked car and as such required to wear her uniform and full equipment, which included a baton and gun.

But she changed her mind and decided to drive her own car and wear civilian clothing. She told CBSA, via her union, that she would be driving her personal vehicle. She responded to an inquiry about being armed by saying she would not be.

Buchanan said the frisking constituted assault, and it formed a part of her civil claim. She said:

  • there was no threat from her, nor was it possible to interpret her text in such a manner
  • it was obvious from her clothing she could not be concealing a gun
  • the CBSA employees who frisked her had no legal authority to do so.

She also said investigators went through her personal phone, without justification, which was a breach of her privacy.

A grievance

Buchanan grieved the manner of the interview/interrogation. In that grievance, she referenced – but did not specifically grieve – the frisking. (She also filed a federal human rights complaint, which the court noted was on hold pending this application.)

Via the Supreme Court of British Columbia, Buchanan sought damages, including aggravated and punitive damages, for intentional infliction of mental suffering, invasion of privacy, false imprisonment and assault.

Buchanan subsequently resigned from her position with CBSA.

The court’s ruling: A bright line

The court said the right of an employee to grieve is found in the Federal Public Sector Labour Relations Act (FPSLRA). Essentially, it prevents an employee from bringing an action if there is a right to grieve.

The court’s role in this case was to rule, via summary judgment, on whether it had jurisdiction. It did not weigh the evidence of this case, but assumed she would be able to prove her allegations.

“While I accept there may be cases where the line between workplace conduct or activities and those that fall outside the scope of employment even if they involve co-workers may not always be a bright line, there is no such concern here,” said Justice Wilson.

“The interview was mandated by CBSA as part of its investigation, and was conducted by CBSA employees at CBSA premises, all at the instance of CBSA management. The investigators were also CBSA employees. The union was involved and a representative was present, at least for the interview portion.”

There are exceptions to the rule for rare and exceptional cases, but this one didn’t qualify, it said.

“This is not a situation of a systemic issue within a department such that the complaint would be adjudicated by the very people about whom the complaint was made,” said Justice Wilson. “The claimant filed a grievance with regard to certain aspects of the interview and I am told by counsel that the grievance was dismissed.”

In short, the substance of the allegations in the civil claim could have been grieved, and in fact some aspects already were grieved. Pursuant to s. 236(1) of the FPSLRA, the court had no jurisdiction, it said.

It awarded costs to the defendants.

For more information, see Buchanan v Canada (Attorney General), 2022 BCSC 1935 (CanLII)

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