Date: 20030623
Docket: T-829-01
Citation: 2003 FCT 774
OTTAWA, Ontario, this 23rd day of June, 2003
Present: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
RICK McELERA
Applicant
- and -
ATTORNEY GENERAL OF CANADA (INDUSTRY CANADA)
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of Ms. Monica Sells, an Investigations, Mediation and Conciliation Officer of the Public Service Commission (the "Investigator") dated April 18, 2001, dismissing complaints of harassment and abuse of authority filed by the applicant against Mr. John Banigan, Assistant Deputy Minister, Industry Canada.
In 1995 Industry Canada created the International Business Opportunities Centre ("IBOC") to promote trade and investment. The applicant, an employee at Industry Canada since 1986, was seconded to IBOC in a management capacity at the time of its inception.
[3] As a result of an anonymous complaint from an IBOC employee, in 1996 the applicant contracted Mr. Jean-Marc Pellerin, a consultant with the Canadian Centre for Management Development, to help resolve any communications and organizational issues in the IBOC. The consultant determined that some of the applicant's behaviour may have been "inappropriate" and briefed the applicant's Assistant Deputy Minister, Mr. Banigan, on his findings. On October 30, 1996 the applicant met with Mr. Banigan to review the consultant's findings. Mr. Banigan decided to conduct an internal investigation of the applicant's conduct and asked him to move his office off-site for the duration of the investigation. The applicant also agreed to be assigned to French language training beginning in January 1997, which was a prerequisite for his promotion to the EX job category.
[4] A number of employees and former employees of the IBOC were contacted as part of the investigation and invited to make complaints. Two complainants came forward alleging harassment. In December 1996 external investigators were hired. In a report dated May 8, 1997 the external investigators upheld the allegations and on May 26, 1997 Mr. Banigan disciplined the applicant by imposing a ten-day suspension. The applicant responded by filing a grievance against the suspension with the Public Service Staff Relations Board ("PSSRB"). In June 1999 the grievance was upheld and the ten-day suspension reversed.
[5] The applicant also filed with the Public Service Commission (the "PSC") the complaint that is the subject of this application for judicial review. His complaint alleged that Mr. Banigan's investigation amounted to harassment and an abuse of authority under the Treasury Board's 1994 Harassment in the Work Place Policy (the "Policy"). Abuse of authority is defined in the Policy as follows:
Abuse of authority is a form of harassment and occurs when an individual improperly uses the power and authority inherent in his or her position to endanger an employee's job, undermine the performance of that job, threaten the economic livelihood of the employee, or in any way interfere with, or influence the career of, the employee. It includes intimidation, threats, blackmail or coercion.
[6] The applicant claimed Mr. Banigan had breached the policy's guidelines for investigating complaints by appointing an untrained and partial investigator, by failing to first attempt mediation, and by dismissing a complaint of harassment made by the applicant against Mr. Pellerin without a proper investigation. In addition, he alleged that Mr. Banigan had made numerous procedural errors while conducting the investigation. The applicant took the position that Mr. Banigan's breaches of the Policy and procedural fairness amounted to harassment and an abuse of authority.
[7] The Investigator, Ms. Sells, interviewed nine individuals in connection with the investigation and prepared a 41-page report in which she held that all of the applicant's fourteen allegations were unfounded. She acknowledged that Mr. Banigan had breached the terms of the Policy and denied the applicant his right to procedural fairness, but held that those mistakes did not amount to harassment or an abuse of authority. She concluded at page 41 of her report:
Base (sic) on the information gathered and presented in this report all fourteen allegations are unfounded. Having said that I note that there were errors identified in allegations five, nine, twelve and thirteen which have been detailed in each of the related sections. Although the errors identified did not have negative consequences in this instant (sic), there could be serious consequences in future if the errors are not corrected. The respondent, as deputy head's representative and the department would be well advised to carefully review the Treasury Board Policy on Harassment in the Workplace to ensure staff conducting investigations have a clear understanding, not only of the Policy, but as to what constitutes procedural fairness.
[8] The applicant now seeks to have that decision set aside for three reasons. First, the Investigator made an error of law by concluding that a breach of the Policy did not constitute an abuse of authority. Second, she made an error of law by concluding that a breach of procedural fairness did not constitute an abuse of authority. Third, she made patently unreasonable findings of fact.
[9] It is uncontested that the appropriate standard of review for questions of law is correctness. As for questions of fact and mixed fact and law, MacKay J. in Adams v. Canada (Attorney General), 216 F.T.R. 190, 2002 FCT 80 at paragraphs 14-17 stated that the applicable standard is patent unreasonableness when reviewing a PSC investigator's decision.
[10] Where the parties diverge is over what qualifies as a question of law. The applicant argues that it was an error of law for the Investigator to find that Mr. Banigan had breached the Policy and procedural fairness, yet conclude that the complaint was unfounded. I cannot agree. The corollary to the applicant's proposition is that the law mandates a finding of abuse of authority if either the Policy or procedural fairness is breached as part of an investigation. No such obligation was written into the Policy and one cannot be implied from its language. A deputy head's failure to properly conduct an investigation may be evidence of an abuse of authority, but it is not conclusive proof. Such a determination is squarely with the expertise of the Investigator, as MacKay J. stated at paragraph 16 of Adams, and must be made with regard to all of the relevant circumstances. A breach of policy does not constitute a breach of the law so that the standard of review with respect to policy breaches is not correctness as contended by the applicant.
[11] What is really at issue here is whether the Investigator made a patently unreasonable finding when she determined that Mr. Banigan's conduct did not amount to an abuse of authority. I can see no reason to interfere with this determination. As I read it, the definition of abuse of authority in the Policy requires the presence of an intention to harm an employee. The definition states that an abuse of authority occurs when power and authority is improperly used "to endanger an employee's job . . ." It does not identify improper conduct "that has the effect of endangering an employee's job" as an abuse of authority. The references to "intimidation, threats,
blackmail or coercion" reinforce the idea that to be considered an abuse of authority, an action must be more than just a flawed administrative decision. While Mr. Banigan may have made mistakes during the investigation, there is no evidence showing that he undertook the investigation with the intention of harming the applicant. Moreover, the Investigator determined that Mr. Banigan's errors, while serious, did not have negative consequences in this case.
[12] As mentioned above, the applicant also argues that the Investigator made patently unreasonable findings of fact. The first alleged error is found at page 12 of her decision:
In the first instance, the evidence substantiates that the complainant was "temporarily removed" from IBOC pending an investigation, and although he still continued to hold the position at IBOC, he was physically separated from the workplace. The complainant's temporarily reassignment was French Language training, which he required in order to meet the language profile of an EX position. [Emphasis added.]
It is alleged that this finding is inconsistent with the following statement found further down on page 12:
I do not find the respondent's actions demonstrate an abuse of authority in his decision to remove the complainant from his position while an investigation was to take place, as stated above, he was acting within the guidelines. [Emphasis added.]
The applicant submits that he could not have been "removed from his position" if he was "temporarily reassigned." By concluding that he was both removed and temporarily reassigned, the Investigator made a patently unreasonable error.
[13] The Court agrees with the respondent that the quotations simply reflect the applicant's physical removal from his previous office location at the IBOC. This is consistent with the Policy, which states:
If the employer deems it to be in the best interest of all parties when a person against whom a complaint has been lodged and an alleged harassee have a subordinate and supervisor relationship, both should be physically and hierarchically removed from each other during the investigation.
[14] The applicant also argues that the Investigator made a patently unreasonable finding when she stated that he was removed from his position "while an investigation was to take place." He was relocated in November 1996, but the investigation did not actually begin until December 1996. During the interim, the investigators solicited complaints from staff at IBOC.
[15] The applicant is splitting hairs on this matter. It was reasonable for the Investigator to view the events of November 1996 as the preliminary stages of the formal investigation. This does not constitute a patently unreasonable error that justifies setting aside the decision.
[16] In closing, the Court notes that the Investigator's 41-page decision was carefully considered and thoroughly detailed. Moreover, the applicant's grievance had already been allowed and the disciplinary action against him set aside.
ORDER
THIS COURT HEREBY ORDERS THAT:
This application for judicial review is dismissed with costs to the respondent.
"Michael A. Kelen" ______________________________
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
DOCKET: T-829-01
STYLE OF CAUSE: RICK McELREA
v.
THE ATTORNEY GENERAL OF CANADA
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: JUNE 17, 2003
REASONS FOR ORDER
AND ORDER OF: THE HONOURABLE MR. JUSTICE KELEN
DATED: JUNE 23, 2003
APPEARANCES:
MS. AINSLIE BENEDICT FOR THE APPLICANT
MR. DEREK RASMUSSENFOR THE RESPONDENT
SOLICITORS ON THE RECORD:
NELLIGAN O'BRIEN PAYNE LLP FOR THE APPLICANT
OTTAWA, ONTARIO
MR. MORRIS ROSENBERGFOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL OF CANADA
FEDERAL COURT OF CANADA
Date: 20030623
Docket: T-829-01
BETWEEN:
RICK McELERA
Applicant
- and -
ATTORNEY GENERAL OF CANADA
(INDUSTRY CANADA)
Respondent
REASONS FOR ORDER
AND ORDER