Federal Court says it lacks jurisdiction to hear CSIS employee’s discrimination claim

OTTAWA — A federal judge has tossed out a Canadian Security Intelligence Service employee's discrimination lawsuit against the spy service, saying Sameer Ebadi should have followed the internal grievance procedures available to him. 

In his newly released decision, Federal Court Justice Henry Brown said the court therefore lacks jurisdiction to address the claim filed by Ebadi, who uses a pseudonym due to the sensitive nature of his work. 

Ebadi, a practising Muslim who fled to Canada from a repressive Middle Eastern country, began working as a CSIS analyst in the Prairie region 22 years ago. He is now on long-term disability leave. 

His statement of claim, filed in January 2020, says he was passed over for promotion despite an excellent work record, and that he suffered bullying, discrimination, emotional and physical abuse and religious persecution from fellow employees. 

Among other things, his claim alleges employees would quickly open his office door when he was at prayer, smashing it into his body or head. "They would then feign surprise that Sameer was at prayer, but would laugh outside the door afterwards."

Ebadi argued that CSIS has a history of protecting harassers from responsibility for their racially or religiously motivated behaviour. 

He said internal CSIS processes could not be trusted to provide him with a fair hearing and to protect him against reprisals for bringing forward concerns.

"I have tried on multiple occasions, with varying levels of CSIS management, to address my well-founded issues of workplace harassment and discrimination,'' Ebadi said in an affidavit filed with the court. 

"With each effort, I was met with resistance and, what is worse, faced increased discriminatory treatment for blowing the whistle on my fellow employees and managers.'' 

Lawyers for the government filed a motion to have the case struck out, arguing the terms of Ebadi's employment are subject to intelligence service procedures. 

The availability of internal resolution processes preclude the Ebadi from initiating a civil action for matters that could be subject to a grievance or harassment complaint, they said.

At a hearing last month, counsel for Ebadi asked the judge to reject the government motion, saying CSIS management has created and perpetuated a culture of systemic racism, Islamophobia, harassment and reprisal.

Ebadi also contended that because he is challenging the adequacy of the CSIS grievance and harassment processes themselves, his claim is not barred by a section of the Federal Public Sector Labour Relations Act that could prevent the court from getting involved.

In his decision, Brown noted that at no time in his career did Ebadi file a complaint under either the harassment policy or grievance procedure.

"He cannot now litigate in this Court the adequacy of procedures he himself chose never to follow."

During the court hearing, John Kingman Phillips, co-counsel for Ebadi, pointed to remarks CSIS director David Vigneault made at a December 2020 meeting of the federal National Security Transparency Advisory Group. 

Vigneault said he had acknowledged publicly and privately to employees "that, yes, systemic racism does exist here, and yes there is a level of harassment and fear of reprisal within the organization."

Brown said in his decision that the statement — neither alone nor in tandem with the rest of the court record — constitutes an admission that CSIS is systemically racist, or that Ebadi is or was unable to obtain relief by way of grieving or complaining about the matters he alleges.

Further, Brown said, he is not persuaded the statement by Vigneault supports the notion the court should exercise any residual discretion it might have to accept jurisdiction over Ebadi's action, notwithstanding the effect of the public sector labour law.

Counsel for Ebadi had no immediate comment on the decision.

This report by The Canadian Press was first published June 7, 2022.

Jim Bronskill, The Canadian Press