Date: 20030414
Dossier: T-1987-02
Citation: 2004 FC 566
Ottawa, Ontario, April 14, 2004
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
HENRI BÉDIRIAN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision by Anne E. Bertrand, adjudicator and member of the Public Service Staff Relations Board of Canada (the adjudicator), in which she refused to retain jurisdiction with regard to the claims and the damages in the applicant's grievance.
[2] The applicant is a lawyer at the Department of Justice. On August 24, 2000, he filed a grievance against a decision by the Deputy Minister of Justice, Mr. Morris Rosenberg. The Deputy Minister's decision was in response to a sexual harassment complaint filed on February 17, 2000, by Catherine Letellier de St-Just.
[3] In this decision, the Deputy Minister validated the findings of the investigators who had determined that two of the allegations raised by Ms. Letellier de St-Just satisfied the legal requirements of sexual harassment.
[4] As a result of this decision, the Deputy Minister imposed numerous disciplinary sanctions on the applicant. First, he relieved the applicant of his management position and assigned him to a legal expert position, with the same level of classification. Second, he imposed a three-day suspension without pay on him. Third, he asked him to undergo training on harassment and sexual equality. The applicant also had to write a letter of apology to Ms. Letellier de St-Just that would stay in his file for two years.
[5] The applicant filed a grievance against the measures taken by the Deputy Minister in accordance with paragraph 92(1)(b) of the Public Service Staff Relations Act, R.S. 1985, c. P-35 (the PSSRA). He sought the following remedies:
[TRANSLATION]
1. Allow this grievance;
2. Declare that the sexual harassment complaint lodged against me by Catherine Letellier de St-Just, February 17, 2000, is unfounded in fact and in law;
3. Declare that the recommendations of the investigation report by the investigators, finding merit in some of the allegations in Catherine Letellier de St-Just's complaint, have no factual basis and are unfounded in fact and in law;
4. Declare that the letter dated July 28, 2000, signed by the Deputy Minister of Justice and Deputy Attorney General of Canada, Morris Rosenberg, has no factual and legal basis, and is invalid;
5. Order that this letter dated July 28, 2000, as well as the investigation report and any documentation pertaining to the complaints filed against me, be withdrawn from the record and that all the originals and copies be destroyed;
6. Order the full reimbursement of legal fees and other costs that I had to incur in this matter;
7. Order that the Department of Justice send me a letter of apology;
8. Order that I be paid an amount of $125,000 in damages for pain and suffering, losses and inconvenience and for the harm which was caused to, inter alia, my dignity, my reputation, my health and my career;
9. Make any other order that is necessary to safeguard my rights.
[6] On October 31, 2002, the adjudicator allowed the applicant's grievance and set aside the Deputy Minister's decision. She ordered that the employer reinstate the applicant as a manager, that it reimburse him the amount of all of his losses relating to his employment benefits, that it lift the three-day suspension and reimburse him the amount of his wages lost in connection with this suspension and that it remove from the record the Deputy Minister's letter containing the decision dated July 28, 2000. However, she held that it was not appropriate for her "to retain jurisdiction in respect of the additional claims in the complainant's grievance."
[7] The applicant claims that the adjudicator infringed the elementary rules of natural justice in deciding it was inappropriate to retain her jurisdiction, without hearing the parties. In doing so, the adjudicator exceeded her jurisdiction.
[8] Further, the applicant submits that, in failing to retain her jurisdiction on an aspect claimed specifically in the applicant's grievance, without an objection first being raised to her jurisdiction, the adjudicator refused to exercise her jurisdiction and in so doing, made a reviewable error on a jurisdictional issue.
[9] The respondent submits, in turn, that the claim for damages is beyond the adjudicator's jurisdiction and that the adjudicator was correct to refuse to rule on the additional claims in the applicant's grievance.
[10] He submits that the PSSRA enables the adjudicator to award damages only as an ancillary measure to the reinstatement. By authorizing the adjudicator to set aside the suspension or the dismissal, the PSSRA enables her to order the reinstatement, while the common law gives courts of law the power to award damages. The power to reinstate defines and limits the adjudicator's power to award pecuniary remedies to the applicant.
[11] In the respondent's view, setting aside the unpaid suspension included the accessory power to order compensation for the losses caused by the suspension, nothing more.
ANALYSIS
[12] The right of a public employee, unionized or not, to file a grievance and to refer it to arbitration is specifically provided in the PSSRA.
[13] Paragraph 92(1)(b) of the PSSRA reads as follows:
| 92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
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92. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur:
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| (b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(I) disciplinary action resulting in suspension or a financial penalty, or
(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
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b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;
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[14] In Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, the Supreme Court of Canada adopted the exclusive jurisdiction model when a dispute is within the jurisdiction of the arbitrator or adjudicator.
[15] In Regina Police Ass. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, the Court held that the key question in each case is whether the essential character of a dispute, in its factual context, arises either expressly or inferentially from a statutory scheme.
[16] The comprehensiveness of the schemes provided by the PSSRA was affirmed by the Federal Court of Appeal in Johnson-Paquette v. Canada (2000), 253 N.R. 305. Noël J.A., speaking for the Court, stated:
[10] Parliament's will to exclude the intervention of the courts in labour relation disputes may therefore be expressly stated or arise by necessary implication. Where, as is the case for the PSSRA, Parliament has, through legislation, adopted what is obviously intended as a full code for the resolution of labour disputes in a given sector of activity and has made the outcome of the legislated processes final and binding on those concerned, it would offend the legislative scheme to permit recourse to ordinary courts which have not been assigned with these tasks. In order to give effect to such schemes, Parliament must be taken as having excluded recourse to the ordinary courts.
[17] Recently, in Vaughan v. Canada, [2003] F.C.J. No. 241 (Q.L.), the Federal Court of Appeal pointed out that the key question is to determine whether the character of the dispute is rooted in the employment relationship:
[14] The key question in this case is whether the essential character of the ERI dispute, in its factual context, arises expressly or inferentially from a statutory scheme. The character of the dispute is rooted in the employment relationship as it relates to retirement benefits. The dispute at hand in Mr. Vaughan's case, involves the interpretation of a regulation which is caught by section 91(1)(a)(I) and thus arises from the statutory scheme contained in section 91(1)(a)(I) of the PSSRA. This Court in PSAC and Johnson-Paquette has already determined that once the essential nature of the dispute is found to arise under section 91(1)(a)(I), then the jurisdiction of the Court is ousted. Therefore, the jurisdiction of the Court is ousted in this case.
[18] In this case, it must therefore be determined whether the additional claim is based on facts that are related to one of the situations under paragraph 92(1)(b) of the PSSRA. In my opinion, since the claim arises from a disciplinary action which resulted in suspension and a monetary penalty, there is no doubt that it is closely connected to the character of the dispute.
[19] In Cléroux v. Canada, [2001] F.C.J. No. 586 (Q.L.), affirmed (2002), 291 N.R. 379, leave to appeal to the Supreme Court denied, Pinard J. studied the issue of the jurisdiction of this Court over an action in damages for the loss of income and benefits caused by the employer's failure to find the applicant an alternate position in the Federal Government, for legal fees incurred in the grievance process as well as for loss of his reputation.
[20] Pinard J. found that the subject-matter of the claim was rooted in the dispute with the employer and that all the claims were related to incidents which fell within the purview of the collective agreement and the PSSRA. Consequently, the subject-matter of the claim was outside the jurisdiction of the Federal Court. Thus, he implicitly acknowledged that these claims were in the adjudicator's jurisdiction. Furthermore, he did not in any way limit the jurisdiction of the adjudicator to decide on these claims.
[21] Similarly, in Johnson-Paquette, the applicant argued at trial that the grievance procedure did not empower the grievance officer to award damages pursuant to subsection 24(1) of the Canadian Charter of Rights and Freedoms, Part I of The Constitution Act, 1982, Schedule B, being Part I to the Canada Act 1982 (U.K.) 1982, c. 11. I determined that the Supreme Court of Canada in Weber had specifically decided this issue. In that case, it stated that the arbitrator, having the power to decide Charter claims, was empowered to award damages under subsection 24(1) of the Charter, where such remedy was appropriate.
[22] In my opinion, the respondent's claim that the jurisdiction of the adjudicator under the PSSRA extends only to ordering monetary compensation for the loss of salary and benefits caused by the suspension cannot succeed.
[23] In fact, if such were the limit of the adjudicator's jurisdiction, the adjudicator would not be empowered to award damages for Charter violations, either - jurisdiction that the Supreme Court recognized the arbitrator had in Weber.
[24] Certainly, as with any claim for damages, the applicant will have the burden to show, on a balance of probabilities, that the respondent was at fault or acted negligently or in bad faith.
[25] In this case, the applicant is looking for a forum in which he can adduce evidence of his employer's fault and the moral prejudice resulting therefrom. The civil law, the common law, and Canadian caselaw provide limitations on the award of damages which will have to be observed by the adjudicator who will determine the merits of this claim.
[26] To summarize, the adjudicator erred on a jurisdictional issue in finding it was inappropriate to retain her jurisdiction with respect to the additional claims contained in the grievance, without hearing the parties.
[27] The applicable standard of review for any issue of jurisdiction is that of correctness (Pushpanathan v. M.C.I., [1998] 1 S.C.R. 982).
[28] Consequently, the adjudicator's decision is set aside and the matter is referred to the same adjudicator or, if this is impossible, to any other adjudicator designated for this purpose so that the adjudicator fully exercises his or her jurisdiction, that the hearing on the claims and the award of damages is held and that this point is adjudicated. Without costs.
ORDER
THE COURT ORDERS that the adjudicator's decision be set aside and the matter is referred to the same adjudicator, or if this is impossible, to any other adjudicator designated for this purpose so that the adjudicator fully exercises his or her jurisdiction, that the hearing on the claims and on the award of damages is held, and that this point is adjudicated. Without costs.
` "Danièle Tremblay-Lamer"
Judge
Certified true translation
Kelley A. Harvey, BA, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1987-02
STYLE OF CAUSE: HENRI BÉDIRIAN v. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: March 24, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Madam Justice Tremblay-Lamer
DATE OF REASONS: April 14, 2004
APPEARANCES :
Maryse Lepage For the applicant
Alain Préfontaine For the respondent
SOLICITORS OF RECORD:
Bastien, Moreau, Lepage For the applicant
630 Principale Street
Buckingham, Quebec
J8L 2H6
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
Ottawa, Ontario