Docket: T-765-04
Ottawa, Ontario, this 21st day of January, 2005
Present: THE HONOURABLE MR. JUSTICE von FINCKENSTEIN
BETWEEN:
PATRICK RYAN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant, Patrick Ryan, is an employee of the Canadian Forces Base Halifax. When he filed his grievance, he held the position of the first Vice-President of the Union of National Defence Employees (the "UNDE") and performed union representative duties as Acting Chief Shop Steward for UNDE/PSAC represented employees at the base in Halifax. The UNDE is a component of the Public Service Alliance of Canada ("PSAC") which is the bargaining agent certified by the Public Service Staff Relations Board (the "PSSRB") to represent specific public service employees employed by Treasury Board, including civilian employees of the Department of National Defence.
[2] In December of 2001, issues related to labour and management became a problem at the Base. The Base Commander, A.J. Kerr, the Union Local President, Ken DeWolfe and the Applicant agreed that the parties would endeavour to work together and improve relations in the workplace. The Applicant was designated as the Union representative that would work with Commander Kerr to improve the situation.
[3] Robert Evans, Supply Operations Officer, was in charge of approximately 190 employees at CFB Halifax. He was concerned with morale in the workplace and suggested that a Good Working Relations ("GWR") support team be invited to assist. Patricia Moriarty was brought in to conduct a session scheduled for January 11, 2002, which was to informally discuss harassment, provide advice and facilitate the resolution of conflicts in the workplace.
[4] The Applicant admits he did not formally advise Mr. Evans of his attendance at the meeting because union attendance had been discussed in an e-mail with the Base Commander and copied to Mr. Evans. Mr. Evans testified that he did not recall seeing this e-mail. The Applicant received approval from his supervisor to attend the meeting.
[5] When the Applicant arrived at the meeting of January 11, 2002, he was approached by Mr. Evans who asked him why he was there. The Applicant responded that he was there as a union representative and had a right to be there. Mr. Evans asked the Applicant to step into the hallway and those left in the meeting room testified at the hearing before the Adjudicator that they could hear raised voices in the hallway. When the Applicant reminded Mr. Evans of the e-mail regarding union presence at meetings, Mr. Evans asked who had requested his presence. The Applicant did not answer and Mr. Evans returned to the meeting room where he asked those in attendance individually who had invited the Applicant. No one answered. Mr. Evans then said "there you go, nobody wants you here".
[6] Some in attendance at the meeting testified that Mr. Evans sounded angry, while others described him as frustrated. Ms. Moriarty then said that she had no problem with the Applicant's attendance, Mr. Evans agreed and told the Applicant they would discuss the matter later. The meeting, with the Applicant, proceeded. The Applicant's grievance was approved by the Union Shop Steward on the same day.
[7] The Applicant filed a grievance on January 15, 2002, four days after the meeting, under Article 18 of his Collective Agreement and sections 91 and 92 of the PSSRA. He alleged a violation of Article 19 of his Collective Agreement which addresses discrimination, interference and harassment, among other things. In his grievance, the Applicant requested an apology in writing, an apology in front of all staff, an assurance that there would be no interference with union business, that Mr. Evans be put on a SHARE course (harassment training), a hearing at all levels and to be made whole. The grievance was heard at all levels and was eventually referred to adjudication.
[8] At the hearing before the Adjudicator, Mr. Evans testified that if the Applicant had told him that Mr. DeWolfe had asked him to attend, he would not have persisted. Mr. Evans also testified that this was "not his finest hour" and acknowledged that he had put the Applicant on the spot, made him feel bad and made his staff uncomfortable. Ms. Moriarty testified that people felt uncomfortable and that she could feel the tension in the room. One individual in attendance testified that she was afraid and another testified that the incident was "embarrassing and unprofessional".
[9] The Adjudicator dismissed the grievance on the following basis:
[61] There is little doubt about the confrontation between Messrs. Evans and Ryan at the Good Working Relations presentation in the conference room. Although there may be some differences in the telling, there is remarkable consistency from all witnesses given the passage of time. It is clear that the confrontation both inside the conference room and in the hallway made many of the meeting participants uncomfortable. Ms. Moriarty, as an outsider, observed tension in the room. At the hearing, Mr. Evans acknowledged that this "was not his finest hour". However, not all uncomfortable human interaction can be considered "harassment" or "intimidation". In Joss (supra), the adjudicator noted, at paragraphs 90 and 96:
...harassment should not be founded upon non-consequential incidents, non-culpable errors of judgement or foolish behaviour. Neither, in my view, should it be employed as a weapon in the workplace, especially where such use is furthering personal vendettas. The proper function of the law of harassment and harassment policies in the work place is not to cause problems or exacerbate interpersonal disputes, but to protect those in need of protection.
...
Hard feelings, feelings of resentment, and out right feuds between employees crossing all ranks are not unique in employment relations. Such situations do not always amount to harassment and more often than not, are two-way streets. These problems are not necessarily effectively remedied by disciplinary action, and certainly not by indiscriminate use of harassment policies or harassment complaints as this unfortunate tale reveals.
[62] The actions of Mr. Evans at the meeting showed a lapse in judgement that senior management recognized in the grievance response, and that Mr. Evans acknowledged at the hearing. I find that this lapse of judgement, although unfortunate, is not a breach of the collective agreement.
[10] The Applicant seeks to squash the Adjudicator's decision by means of a judicial review application.
ISSUES
1. What is the appropriate standard of review?
2. Did the Adjudicator have jurisdiction to hear the grievance?
3. Did the Adjudicator err in dismissing the Applicant's grievance?
ANALYSIS
1. What is the appropriate standard of review?
[11] The Applicant submits that the standard of review would be patent unreasonableness except the interpretation of a collective agreement is a matter of law so the standard is elevated to reasonableness relying on Voice Construction Ltd v. Construction & General Workers'Union, Local 92, [2004] S.C.J. No 2. The Respondent asserts that the standard of review for decisions of arbitrators is "patently unreasonable" due to an adjudicator's institutional expertise, the broad federal labour relations context and the largely factual context.
[12] Applying the pragmatic and functional approach as set out inDr. Q v. College of Physicians and Surgeons of BC [2003] 1 S.C.R. 226 leads to the following analysis.
[13] There is no privative clause in the PSSRA, however this absence alone does not undermine the long established tradition that in cases dealing with interpretation and application of collective agreements, the standard is reasonableness. As stated in Barry v. Treasury Board (1997) 221 N.R. 237 para 3:
In our respectful view, the standard of review adopted by the Motions Judge is contrary to the teachings of the Supreme Court. It is true that prior to the repeal of the privative clause, that Court had held in Canada (Attorney General) v. PSAC[1993] 1 S.C.R. 941 ("PSAC No. 2) that the appropriate standard of review for decisions of an adjudicator acting under the Act was whether the decision was "patently unreasonable". In our view, nothing has changed by virtue of the repeal of the privative clause. In United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316 at 337-38, Sopinka J. writing for the Court, held that even where there is no privative clause the standard of review for arbitral awards which involve the interpretation of collective agreements is circumscribed by the concept of patently unreasonable:
In a number of past decisions, this Court has indicated that judicial deference should be accorded to the decisions of arbitrators interpreting a collective agreement even in the absence of a privative clause. For example, in Douglas Aircraft Co. of Canada v. McConnell,[1980] 1 S.C.R. 245, Estey J. commented, at p. 275, with the rest of the Court concurring on this point, that:the law of review has evolved, even in the absence of a privative clause, to a point of recognition of the purpose of contractually-rooted statutory arbitration; namely, the speedy, inexpensive and certain settlement of differences without interruption of the work of the parties. The scope of review only mirrors this purpose if it concerns itself only with matters of law which assume jurisdictional proportions.
[14] The PSSRB has unquestioned expertise. Its members sit either as adjudicators or as the Board, enjoying all the powers of the PSSRB. This institutional expertise militates strongly in favour of deference.
[15] The purpose of the PSSRB is to allow effective collective bargaining in the public service. Issues resolved before the Board affect the entire public service and can have ripple effects for all unions. The resolution of public service disputes, thus by their very nature, are polycentric rather than bi-polar and warrant a greater degree of deference.
[16] Lastly, the nature of the question itself, i.e did the actions of Mr. Evans constitute harassment, depends very much on the facts. The Adjudicator needs to assess both subjective and objective elements of harassment. The Adjudicator, who has heard the witnesses and is in the best position to decide this question of mixed law and fact, must be shown greater deference with regard to his findings.
[17] Voice Construction (supra), relied on by the Applicant does not mandate a reasonableness standard, it merely reaffirms a long line of cases requiring that in each case a pragmatic and functional analysis should be undertaken.
[18] On the basis of the analysis set out above, I find that in this case the appropriate standard is "patently unreasonable".
2. Did the Adjudicator have jurisdiction to hear the grievance?
[19] The Respondent submits that the Adjudicator did not have jurisdiction to hear the Applicant's grievance because the issue before him was an allegation of intimidation for exercising his right to engage in union activity. Such rights are protected under s. 8 of the PSSRA and redress for breach of such rights can be found at s. 23 of the PSSRA. In the Respondent's view, s. 91 is limited to situations where other provisions of the PSSRA or any other act of Parliament do not apply.
[20] The Applicants asserts that the adjudicator has jurisdiction arguing:
a) that article 19 of the Collective Agreement is wider than the protection under s. 8, and
b) that the exception in s. 91 refers to another Act of Parliament but does not include the PSSRA. In support she refers to Canada v. Boutilier [2000] 3F.C. 27 para 17 where the court states:
Despite the lack of objection by the respondent at the hearing before the Adjudicator, Madam Justice McGillis held that the Adjudicator had no jurisdiction in this case, which, she concluded, clearly raised a "fundamental human rights issue". She explained that primary jurisdiction in human rights matters was meant to reside under CHRA. Despite the forceful argument of Ms. MacEachern and counsel for the intervener (PSSRB), Mr. Chaplin, to the effect that Boutilier was different than Mohammed and O'Hagan in that the right being claimed--marriage leave--arose solely under the collective agreement and could not be obtained by any other "administrative procedure for redress", I am of the view that Madam Justice McGillis was entirely correct in her decision and her reasons for that decision, which include the following language [at pages 471-472 and 476]:
A review of the statutory scheme reveals that an employee possesses only a qualified right to present a grievance at each of the levels specified in the statutory process in the Public Service Staff Relations Act. In particular, an employee's right to present a grievance is qualified or limited in two respects: by the requirement in subsection 91(1) that no administrative procedure for redress exists in another Act of Parliament; and, by the requirement in subsection 91(2) for the approval of and representation by the bargaining agent. Furthermore, under section 92, an employee may only refer a grievance to adjudication following the completion of the grievance process, up to and including the final level. In the event that an employee is not entitled to present the grievance at each of the levels in the process, by reason of the operation of a statutory limitation in either subsection 91(1) or (2), the grievance may not be referred to adjudication under section 92. In other words, where the operation of a limitation contained in either subsection 91(1) or (2) deprives an employee of his qualified right to present the grievance, the employee cannot subsequently purport to refer the grievance to adjudication under subsection 92(1). In the event that an employee purports to refer such a grievance to adjudication, the adjudicator has no jurisdiction to entertain it.
[21] Sections 8, 23 and 91 provide as follows:
| Employer participation in employee organization
8. (1) No person who occupies a managerial or confidential position, whether or not the person is acting on behalf of the employer, shall participate in or interfere with the formation or administration of an employee organization or the representation of employees by such an organization.
Discrimination against members and intimidation
(2) Subject to subsection (3), no person shall (a) refuse to employ, to continue to employ, or otherwise discriminate against any person in regard to employment or to any term or condition of employment, because the person is a member of an employee organization or was or is exercising any right under this Act; (b) impose any condition on an appointment or in a contract of employment, or propose the imposition of any condition on an appointment or in a contract of employment, that seeks to restrain an employee or a person seeking employment from becoming a member of an employee organization or exercising any right under this Act; or (c) seek by intimidation, threat of dismissal or any other kind of threat, by the imposition of a pecuniary or any other penalty or by any other means to compel an employee (i) to become, refrain from becoming or cease to be, or, except as otherwise provided in a collective agreement, to continue to be a member of an employee organization, or (ii) to refrain from exercising any other right under this Act.
Exception
(3) No person shall be deemed to have contravened subsection (2) by reason of any act or thing done or omitted in relation to a person who occupies, or is proposed to occupy, a managerial or confidential position.
Complaints
23. (1) The Board shall examine and inquire into any complaint made to it that the employer or an employee organization, or any person acting on behalf of the employer or employee organization, has failed (a) to observe any prohibition contained in section 8, 9 or 10; (b) to give effect to any provision of an arbitral award; (c) to give effect to a decision of an adjudicator with respect to a grievance; or (d) to comply with any regulation respecting grievances made by the Board pursuant to section 100.
Right of employee
91. (1) Where any employee feels aggrieved (a) by the interpretation or application, in respect of the employee, of (i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or (ii) a provision of a collective agreement or an arbitral award, or (b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii), in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provided for by this Act. ... (underlining added) |
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Participation de l'employeur à une organisation syndicale
8. (1) Il est interdit à quiconque occupant un poste de direction ou de confiance, qu'il agisse ou non pour le compte de l'employeur, de participer à la formation ou à l'administration d'une organisation syndicale, ou d'intervenir dans la représentation des fonctionnaires par une telle organisation ou dans les affaires en général de celle-ci.
Discrimination et intimidation
(2) Sous réserve du paragraphe (3), il est interdit_: a) de refuser d'employer ou de continuer à employer une personne, ou encore de faire des distinctions injustes fondées, en ce qui concerne l'emploi ou l'une quelconque des conditions d'emploi d'une personne, sur l'appartenance de celle-ci à une organisation syndicale ou sur l'exercice d'un droit que lui accorde la présente loi; b) d'imposer - ou de proposer d'imposer -, à l'occasion d'une nomination ou d'un contrat de travail, une condition visant à empêcher un fonctionnaire ou une personne cherchant un emploi d'adhérer à une organisation syndicale ou d'exercer un droit que lui accorde la présente loi; c) de chercher, notamment par intimidation, par menace de destitution ou par l'imposition de sanctions pécuniaires ou autres, à obliger un fonctionnaire_: (i) à adhérer - ou s'abstenir ou cesser d'adhérer -, ou encore, sauf disposition contraire dans une convention collective, à continuer d'adhérer à une organisation syndicale, (ii) à s'abstenir d'exercer tout autre droit que lui accorde la présente loi.
Exception
(3) Toute action ou omission à l'égard d'une personne occupant un poste de direction ou de confiance, ou proposée pour un tel poste, ne saurait constituer un manquement aux dispositions du paragraphe (2).
Plaintes
23. (1) La Commission instruit toute plainte dont elle est saisie et selon laquelle l'employeur ou une organisation syndicale ou une personne agissant pour le compte de celui-là ou de celle-ci n'a pas, selon le cas_: a) observé les interdictions énoncées aux articles 8, 9 ou 10; b) mis à effet une disposition d'une décision arbitrale; c) mis à effet une décision d'un arbitre sur un grief; d) respecté l'un des règlements pris en matière de griefs par la Commission conformément à l'article 100.
Droit du fonctionnaire
91. (1) Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d'une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu'il s'estime lésé_: a) par l'interprétation ou l'application à son égard_: (i) soit d'une disposition législative, d'un règlement - administratif ou autre -, d'une instruction ou d'un autre acte pris par l'employeur concernant les conditions d'emploi, (ii) soit d'une disposition d'une convention collective ou d'une décision arbitrale; b) par suite de tout fait autre que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses conditions d'emploi. ... |
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[22] I cannot accede to the Applicants point of view for the following reasons. First of all it is difficult to see how it can be asserted that article 19 of the Collective Agreement expands (insofar as union activity is concerned) the rights under s. 8 of the PSSRA. While the words are different, (particularly, the word harassment is not used in s. 8,) the effect is the same. The same type of conduct is prohibited.
[23] Secondly, it is noteworthy that s. 91 refers to "an Act of Parliament" not to "another Act of Parliament". The PSSRA clearly is "an Act of Parliament". While the above quote from Boutilier uses the expression "another Act of Parliament", this does not mean that s. 91 should be read as using that expression. In Boutilier another act of Parliament, namely the Canadian Human Rights Act was involved and thus it is understandable why the court used the expression "another Act of Parliament".
[24] The PSSRA specifically limits the relief under s. 91(1) where no other avenue is available. As far as the allegations here are concerned, the avenue of a complaint under s. 23, based on a violation of s. 8, was available and should have been used.
[25] As the court in Rhéaume v. Canada, [2003] F.C.J. No. 1798, 2003 FC 1405 stated at para 54:
An aggrieved employee has a remedy which is set out in section 23 of the PSSRA. That provision states:
23. (1) The Board shall examine and inquire into any complaint made to it that the employer or an employee organization, or any person acting on behalf of the employer or employee organization, has failed(a) to observe any prohibition contained in section 8, 9 or 10 ...
[26] Consequently, the Adjudicator was incorrect in not declining jurisdiction, in other words, the Adjudicator should not have proceeded with the hearing. However, as the merits of the case were extensively argued in this Court, they will be addressed as well.
3. Did the Adjudicator err in dismissing the Applicant's grievance?
[27] This case involves one incident of inappropriate behaviour by Mr. Evans. As he himself testified, "it was not his finest hour". However, the question is not the inappropriateness of his behaviour but whether it violated article 19 of the Collective Agreement. Said article provides:
ARTICLE 19 - NO DISCRIMINATION
19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, martial status or a conviction for which a pardon has been granted [emphasis added].
[28] The terms discrimination, interference, restriction, coercion and harassment are not defined. In his grievance application, the Applicant relied on harassment, interference with union activities, intimidation and restriction. The Adjudicator, relying principally on the arbitral decision of Joss v Treasury Board [2001] CPSSRB No 17, came to the conclusion that this single incident showed a lapse of judgement but did not amount to harassment, interference, with union activities, intimidation and restriction, as alleged.
[29] All of these allegations, in light of the vagaries of human nature, must be looked at from both a subjective as well as an objective point of view. It is not enough that Mr. Ryan felt harassed, interfered with, coerced or restricted, it is necessary that an objective assessment be undertaken of the situation, taking into account all of the specific circumstances. The following statement from S.J. Thompson v. Treasury Board of Canada [1978] PSRB File No 161-2-146 para 24, (albeit made in respect of allegations of unfair labour practice,) applies equally to all the grounds alleged by the applicant.
In the instant case it is said that the Complainant was embarrassed by the question and was concerned as to whether his answer would affect his job in the sense of imposing a condition of employment on him. However, in light of the vagaries of human nature, the test as to the propriety of such a question within the context of the Act, should not, in our view, be determined solely on the subjective assessment of the Complainant. Rather the question must be determined on an objective assessment, taking into account the circumstances of the particular situation [emphasis added]
[30] The Adjudicator, in reviewing the facts, came to the conclusion that this incident did not amount to harassment. In addition he noted:
Mr. Ryan was not prevented from participating in the meeting, and Mr. Evans'comments did not restrict or interfere with Mr. Ryan's role as a union representative. There was no evidence that Mr. Ryan was demeaned in the eyes of union members in attendance at the meeting. Although union members may have felt uncomfortable, Mr. Ryan did not lose any status as a result of the confrontation.
[31] While in exceptional cases, harassment can be the result of one incident, generally a pattern of behaviour needs to be proven. In this case, we have an isolated incident occurring in the context of a meeting called by management to improve workplace relations, to which the Union was invited. Under these circumstances, the Adjudicator's conclusion seems eminently supportable on the facts as found. The Decision cannot, in any way, be considered patently unreasonable.
[32] Accordingly, this application does not succeed either in terms of jurisdiction or on the merits.
ORDER
THIS COURT ORDERS that this application be dismissed.
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-765-04
STYLE OF CAUSE: PATRICK RYAN V. ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA
DATE OF HEARING: JANUARY 17,2005
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN
DATED: JANUARY 21, 2005
APPEARANCES:
Ms. Jacquie de Aguayo FOR THE APPLICANT
Mr. Richard Fader FOR THE RESPONDENT
SOLICITORS OF RECORD:
Public Service Alliance of Canada FOR THE APPLICANT
Ottawa, Ontario
John H. Sims Q.C. FOR RESPONDENT
Deputy Attorney General of Canada