Executive Summary: Key Legal and Evidentiary Issues

• Michelle Olsheski, a federal public service employee, sought judicial review of a workspace allocation decision by the Chief Military Judge that confirmed her allocation to a cubicle workspace.

• The Attorney General of Canada moved to strike the Notice of Application, arguing prematurity due to the Applicant's failure to exhaust the statutory grievance process under the FPSLRA.

• Central to the dispute was whether the workspace decision — and the process leading to it — constituted a grievable matter under section 208 of the Federal Public Sector Labour Relations Act.

• Application of the doctrine of judicial non-interference in ongoing administrative processes barred the Court from entertaining the judicial review before internal remedies were pursued.

• No exceptional circumstances — such as procedural fairness concerns, constitutional issues, or party consent — were established to justify bypassing the grievance procedure.

• The Court struck the Notice of Application without leave to amend, finding it bereft of any possibility of success, and awarded costs to the Respondent.

The facts of the case
Michelle Olsheski is a Senior Legal Researcher with the Office of the Chief Military Judge within the Department of National Defence. On February 24, 2026, a decision of the Chief Military Judge was communicated to Ms. Olsheski confirming her allocation to a cubicle workspace following a review of workspace allocation. Dissatisfied with the outcome and the process that led to it, Ms. Olsheski filed a Notice of Application (NOA) on March 24, 2026, seeking judicial review of the workspace decision under section 18.1 of the Federal Courts Act. Ms. Olsheski represented herself throughout the proceedings, while the Attorney General of Canada was represented by counsel, Courtland Mack.

The Respondent's motion to strike
The Attorney General of Canada brought a motion in writing pursuant to Rule 369 of the Federal Courts Rules, seeking an order striking the NOA in its entirety, without leave to amend, and costs on the motion. The Respondent's primary argument was that the application was premature because Ms. Olsheski had failed to exhaust adequate alternative remedies available to her — specifically, the individual grievance process established under section 208 of the Federal Public Sector Labour Relations Act (FPSLRA). In the alternative, the Respondent sought an order requiring the Certified Tribunal Record to be transmitted within 20 days of the Court's decision.

The statutory grievance framework at issue
Section 208 of the FPSLRA provides federal public service employees with a broad right to file an individual grievance. Under paragraph 208(1)(a), an employee may grieve the interpretation or application of any provision of a statute, regulation, direction, or other instrument made by the employer dealing with terms and conditions of employment, or any provision of a collective agreement or arbitral award. Paragraph 208(1)(b) extends the right further, allowing a grievance as a result of any occurrence or matter affecting the employee's terms and conditions of employment. The Court highlighted that this provision captures an extremely broad range of employment-related disputes, noting prior jurisprudence recognizing that "almost all employment-related disputes can be grieved under s 208."

The Applicant's position
Ms. Olsheski argued that the Respondent had mischaracterized the nature of the NOA. She contended that her application did not seek to challenge the employment outcome itself but rather the legality of the process leading to the decision, thereby engaging "core procedural fairness principles." To that end, the NOA identified numerous grounds that sought to establish the decision was unreasonable. She further argued that the principle of judicial non-interference is not absolute, that the NOA was neither frivolous nor vexatious, and that it was at least arguable that the workspace allocation decision was final because it imposed immediate legal consequences on her.

The legal principles governing motions to strike
The Court reviewed the well-established legal framework for striking an NOA. Relying on JP Morgan Asset Management (Canada) Inc v Canada (National Revenue), the Court reiterated that an NOA for judicial review will be struck only where it is "so clearly improper as to be bereft of any possibility of success," meaning there must be an obvious and fatal flaw that strikes at the root of the Court's authority to entertain the application. The NOA must be read "with a view to understanding the real essence of the application," and a holistic and practical reading is required to appreciate its "essential character." The Court also noted that where shortcomings meet the high threshold to strike, the Court should nonetheless consider whether those shortcomings may be cured by way of amendment, and if so, leave to amend should be granted.

The doctrine of judicial non-interference
The Court devoted significant analysis to the principle of judicial non-interference in ongoing administrative processes, also described in the jurisprudence as the doctrine of adequate alternative remedies or the doctrine of exhaustion. As articulated in CB Powell Limited v Canada (Border Services Agency), this principle requires that parties are required, absent exceptional circumstances, to pursue all effective remedies available to them in an administrative process before proceeding to a court, and that a court should not interfere with ongoing administrative processes until they are complete. The principle promotes judicial economy by avoiding unnecessary judicial proceedings and ensuring that when a reviewing court does become involved, it will have the benefit of the decision-maker's "expertise, legitimate policy judgments and valuable regulatory experience." The principle also furthers the concept of judicial respect for administrative decision-makers. The Federal Court of Appeal has vigorously enforced this doctrine and recognized that the "exceptional circumstances" exception is narrow — concerns about procedural fairness or bias, the presence of an important legal or constitutional issue, or the fact that all parties have consented to early recourse to the courts are not exceptional circumstances, as long as the administrative process allows the issues to be raised and an effective remedy to be granted.

The Court's analysis and ruling
Justice Gleeson found that the workspace allocation decision, including the process by which that decision was reached, was grievable under section 208 of the FPSLRA. The Court was not persuaded that the NOA did not challenge the employment outcome, as the Applicant submitted. While acknowledging that the NOA also challenged the process leading to the decision, the Court held that nothing in the language of 208(1)(b) suggests that the "legality of a decision-making process," including the alleged absence of disclosed criteria, any articulated procedural structure, or a meaningful participatory process, cannot be grieved. A holistic and practical reading of the NOA demonstrated that in its essence, it sought a determination to the effect that occurrences or matters affecting the Applicant's terms and conditions of employment were erroneously reached — matters clearly grievable under the FPSLRA. Drawing on McCarthy v Canada (Attorney General), where the same principle was applied repeatedly in the specific context of applications for judicial review prior to completion of the statutory grievance process under the FPSLRA, the Court concluded that the Applicant had raised no exceptional circumstances that might militate in favour of hearing the application for judicial review. In the result, the Respondent's motion was granted. The Court struck the Notice of Application filed on March 24, 2026, without leave to amend, finding it could not be saved by way of amendment. The Attorney General of Canada — the successful party — was awarded costs in accordance with Column II of Tariff B of the Federal Courts Rules; however, no specific monetary amount for costs was determined in the decision.