Federal Court Decisions

T-1710-96

BETWEEN:

BARRY GREEN

Applicant

- and -

TREASURY BOARD (TRANSPORT CANADA)

Respondent

REASONS FOR ORDER

CULLEN J.:

This is an application for judicial review pursuant to paragraph 18.1(4)(c) of the Federal Court Act, R.S.C., c. F-7, of a decision of Rosemary Vondette Simpson, an adjudicator under the Public Service Staff Relations Act, [hereinafter, the "Adjudicator"], rendered June 14, 1996 (PSSRB File No. 166-2-26720) [hereinafter, the "decision"]. The applicant requests an Order setting aside the decision of the Adjudicator.

THE FACTS

The facts in this case are not in dispute, and, save for the relevant contents of the adjudicator's decision, need not be repeated here in detail.

After 23 years as an air traffic controller, the applicant was terminated from his employment for disciplinary reasons on May 29, 1995. His discharge letter indicated that his actions had "demonstrated a gross disregard for the responsibilities of [his] position," potentially jeopardizing the safety of the flying public.

The applicant grieved his discharge to the Public Service Staff Relations Board. The adjudicator denied his grievance on the basis of the gravity of the misdemeanour; the adjudicator's disbelief that such an incident would not be repeated; and the conclusion that the employer's decision to terminate the applicant's position was not unreasonable because the bond of trust between it and the applicant had been irretrievably broken.

THE ISSUES

The applicant submits that although there is cause for discipline in this case, the adjudicator erred in failing to reinstate the applicant with a reduced disciplinary record. The applicant further submits that the Adjudicator erred in denying the grievance.

Specifically, the errors in law cited by the applicant are: 1) the adjudicator's findings on credibility issues; 2) the adjudicator's finding that the applicant failed to show signs of remorse or appreciation of the implications of his actions. This, counsel said, is an error because it contradicts undisputed evidence that this was an isolated incident in the applicant's career; and 3) the adjudicator failed to apply legal principles concerning mitigating factors when considering the penalty of discharge.

DISCUSSION

The relevant provisions

The Air Traffic Services Administration Management Manual [hereinafter, the "ATSAMM"], at Note 1, provides that:

It is expected that a "lone" controller or specialist will only vacate a position of necessity and will use good judgment and foresight to limit the break for a few minutes, and during a period when there is no known or anticipated traffic. The controller or specialist should inform appropriate units (e.g., local FSS, Control Tower, IFR unit, etc.) and broadcast on appropriate frequency(ies) that the unit will not be in operation for (X) minutes.

The Manual of Air Navigation Operations [hereinafter, "MANOPS"] provides that:

Supervisors may give personnel periods of relief by combining operating positions provided:(N)

A. current and anticipated workload permits; and

B. the employee can be quickly recalled.

Note:

To the extent that staffing and workload permit, personnel will be given time away from operating positions for:

- brief periods of rest; and

- a reasonable lunch period.

The collective agreement provides that a meal break is subject to operational requirements.

The standard of review

Public Service Staff Relations adjudicators have jurisdiction to hear grievances involving termination of employment pursuant to paragraph 11(2)(f) of the Financial Administration Act, 1985, c.F-11.

The test for review regarding decisions of the Public Service Staff Relations Board is that the adjudicator be accorded curial deference by this Court.1 The applicant submits that, similar to the principles surrounding judicial review on the standard of patent unreasonableness, curial deference can only apply where the issues in dispute fall within the area of expertise of the decision maker in question. Determination of issues outside the expertise of the decision maker are subject to review on the standard of correctness.2 Where the issues fall within the expertise of the decision maker and curial deference applies, the test on a question of law is, "only decisions not supportable by the evidence are subject to intervention."3

I am satisfied that the subject matter of the issues in this case falls within the expertise of the adjudicator in question, and that the standard of curial deference applies.

Issue 1: The adjudicator's findings on credibility

The applicant submits that the adjudicator made improper findings regarding his credibility. They were improper because the adjudicator failed to apply the rule laid down in Browne v. Dunn (1893), 6 R. 67 (H.L.) [hereinafter, "Browne v. Dunn"] at pages 70-71. The rule in Browne v. Dunn has been summarized correctly as requiring the cross-examiner to give a witness notice of the intention to impeach the credibility of that witness by means of extrinsic evidence.4 This rule was violated, the applicant submits, because the adjudicator concluded that the reason that the applicant left the Tower was not because he thought that it was permissible to do so based on a previous authorization for a colleague, Mr. Larivière, to do so. Mr. Larivière had not been cross-examined on the evidence that contradicted the applicant's evidence on this point. If counsel is considering the impeachment of the credibility of a witness by calling independent evidence, the witness must be confronted with this evidence while she or he is still in the witness box. Thus, the adjudicator improperly relied on the contradictory evidence in making her finding of credibility against the applicant.

Analysis: Although the Public Service Staff Relations Board performs an adjudicative function, it is not bound by the strict rules of evidence such as are applied in courts of law. Specifically, in relation to a hearing or determination of any proceeding before the Public Service Staff Relations Board, the Public Service Staff Relations Act, 1985, c. P-35, at section 25, gives the adjudicator power

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath, and to produce such documents and things as the Board deems requisite to the full investigation and consideration of matters within its jurisdiction, in the same manner and to the same extent as a superior court of record;

...

(c) to receive and accept such evidence and information on oath, affidavit or otherwise as in its discretion it sees fit, whether admissible in a court of law or not and, without limiting the generality of the foregoing, to refuse to accept any evidence that is not presented in the form and within the time prescribed;

[emphasis mine]

The statute clearly provides that the adjudicator is not bound by the strict rules of evidence such as are applied in courts of law.

The standard of review regarding the adjudicator's approach to the evidence is thus lower than that applied to a court. I cannot accept the applicant's submission that the standard of correctness applies to the adjudicator's treatment of the rules of evidence. To accept such a submission would have the effect of turning tribunals into courts of law, which they are not meant to be. Such an unwarranted narrowing of the Tribunal's jurisdiction would be detrimental to a tribunal's effectiveness and efficiency.

The adjudicator allowed counsel to the employer, in closing submissions, to raise issues of credibility on evidence not specifically challenged. Counsel to the applicant submits that the consideration of evidence that should have excluded under the rule in Browne v. Dunn led to the finding of credibility against the applicant. Counsel further submits that this finding was the fundamental reason why the adjudicator did not reinstate the applicant. Counsel submits that the adjudicator cannot rely on evidence inadmissible in a court of law in making a finding fundamental to her decision in the case.

However, the credibility finding, though an important one, was not the sole reason why the adjudicator did not reinstate the applicant. It is stated clearly in the adjudicator's reasons that also fundamental to her decision was the breaking of the bond of trust between the applicant and the employer, the gravity of the misdemeanour, as well as her assessment of the applicant's appreciation of the gravity of his actions.

Because the credibility finding was not at the heart of the adjudicator's decision, I can find no authority to interfere with this aspect of the decision.5

Deciding matters of termination of employment are squarely within the jurisdiction of the adjudicator. The adjudicator heard the evidence and observed the witnesses. The adjudicator was entitled, and required, to weigh the evidence that was before her, and to make a determination based on it. The adjudicator weighed two pieces of contradictory evidence (Mr. Larivière's testimony that he had told the applicant, before the material events, about his previous half-hour absence from the post; as contrasted to the Tower tapes recorded after the material events and played during the hearing evincing the applicant's apparent astonishment that Mr. Larivière had been given permission for such an absence), and chose one over the other. She had to make this choice in the context of all the other evidence before her. Although I may not have come to the same determination regarding credibility myself, I find no reason, in law, to interfere with the weight accorded to the evidence by the adjudicator, nor with her determination based on her weighing the evidence. The issue here is a question of weight, and not a question of breaching the rule in Browne v. Dunn.

The rule in Browne v. Dunn is designed to accord fairness to witnesses and to the parties. However, it is not an absolute rule, and it does not go as far as to attach a presumption of truth to testimony of a witness not subjected to cross-examination.6 This is particularly so in cases where the evidence which has not been cross-examined upon is inconsistent with other evidence, as was held in R. v. Mete (1973), 22 C.R.N.S. 387, [1973] 3 W.W.R. 709 at 712. In that decision, Bull J.A. held that:

In default of authority binding on me ... I can see no reason or logic in any view that a judge may not reject evidence which he disbelieves merely because it has not been cross-examined upon. ...

... I find it hard to think that, if this were a jury case, a judge charging a jury would have to direct the jury that, although they disbelieved the evidence of an un-cross-examined witness, they must accept that evidence notwithstanding and acquit the accused.

Therefore, I find no error in the adjudicator's decision not to apply the rule in Browne v. Dunn. The adjudicator was not required to do so, nor should she have been.

Issue 2: The adjudicator's finding that the applicant failed to show signs of remorse or appreciation of the implications of his actions

The applicant submits that it was improper for the adjudicator to take any perceived lack of remorse into account in refusing to otherwise substitute the penalty of discharge. The applicant submits College of Physicians and Surgeons of Ontario v. Gillen, (1990), 1 O.R.(3d) 710 (Ont.Ct. Gen.Div.) at 711-713 as authority.

Analysis: The adjudicator did not base her conclusion only on her findings of the applicant's lack of remorse or appreciation of the gravity of his actions. She first had considered the gravity of the action (the applicant "disregarded the basic principles of air traffic control. ... Leaving the tower unmanned during advertised hours while aircraft were actively using it is a grave misdemeanour warranting discharge"). In addition, she knew the employer's position that the bond of trust between it and the applicant had been irretrievably broken. Finally, she considered the mitigating factors submitted by the applicant (to which she assigned little weight) .

The adjudicator sees and hears the witnesses, and makes judgements on the basis of her observations. The remorse finding, in itself, was open to the adjudicator on the basis of the evidence before her. It was but one of the considerations taken in the decision. There is no error of law when the remorse finding is examined in isolation.

However, although I am not prepared to interfere with the adjudicator's finding regarding remorse, I do feel compelled to examine this finding in relation to the adjudicator's assessment of an appropriate penalty. In my view, the finding of a lack of remorse is part and parcel of a finding of an inability or unwillingness to rehabilitate oneself. In this regard, the adjudicator specifically reasoned:

The grievor's counsel urged me to find that this isolated incident in Mr. Green's long 23 to 24-year career as a controller was unlikely to ever occur again. I wish I could believe that that would be the case.

Considering the grievor's good record and long service I searched the evidence for signs of remorse or appreciation of the implication of his actions.

The adjudicator then went on to conclude that there were no signs of remorse. This finding is at the bottom of the conclusion of a lack of rehabilitative potential, evinced by the statement "I wish I could believe that that [the unlikelihood of repetition of a similar grave misdemeanour] would be case." Clearly, on the basis of the applicant's perceived lack of remorse, the adjudicator felt that the applicant could not be rehabilitated.

The Ontario Court of Appeal in College of Physicians and Surgeons of Ontario v. Gillen (1993), 13 O.R.(3d) 385, upheld the Divisional Court on the issue of the relationship of remorse to appropriate penalty. In that case, the Disciplinary Committee found that the applicant had denied his conduct and not faced up to the problem. The Ontario Court of Appeal, at page 386, found that under no circumstances should denial serve to increase what would otherwise be an appropriate penalty. Compare this to the case at Bar, and the finding that the present applicant lacked remorse and the conclusion of a lack of rehabilitative potential. I agree with the reasoning of the Ontario Court of Appeal, and apply it to the present case.

It is not clear from the adjudicator's reasons that she was "punishing" the applicant for his attitude, or if the adjudicator had concluded that the only way to protect the flying public was to uphold the applicant's dismissal from his job. However, in the context of the applicant's 23 unblemished years of service as an air traffic controller, I believe that concern for the flying public was not foremost in the adjudicator's mind when she made her decision.

Issue 3: Assessment of mitigating factors

The applicant submits that the adjudicator failed to consider a number of matters in her assessment of mitigating factors. The core of the applicant's submissions concern the adjudicator's findings that I have already canvassed, above. The applicant submits the additional point that the adjudicator failed to consider corrective discipline principles of the application of progressive discipline in consideration of the good record and long service of the applicant.

Analysis: It is increasingly the trend, in labour arbitration decisions, for adjudicators to apply the theory of progressive or corrective discipline when considering the appropriate penalty to impose. Although such trends are by no means binding on labour relations tribunals, I believe that, in the circumstances of this case, the adjudicator was obligated to look at corrective discipline for the applicant, and clearly state in her reasons why she would reject corrective discipline for the applicant. She was obligated to look at corrective discipline because of the applicant's long career of good service that the adjudicator acknowledged the applicant had with the employer.

However, in her lengthy, 24-page decision, the adjudicator makes not one mention of corrective discipline as it would apply to the matter before her. I cannot even infer that the adjudicator considered corrective discipline as a substitution for the penalty of discharge. There is no language to that effect in the adjudicator's decision. There should have been.

Another problem with the adjudicator's assessment of mitigating factors, and her non-assessment of corrective discipline, is that there is no indication that the adjudicator considered the ramifications of dismissal for the applicant. The ramifications constitute an important mitigating factor in this case. The dismissal of the applicant in this case does not amount to the same thing as an employer's dismissal of a plumber, electrician, or even lawyer for that matter. A plumber, electrician, or lawyer could each find work elsewhere within their profession. However, the dismissal of the applicant, in this case, means that, for the rest of his life, the applicant cannot work at a professional level as an air traffic controller, despite the fact that he had done so in a commendable manner for the past 23 years. Surely, this is an important mitigating factor to be considered when determining the appropriate penalty in this case.

It should be pointed out that counsel for the respondent, in written and oral arguments, dealt in a comprehensive fashion with most of the applicant's allegations concerning mitigating factors. However, the two most important factors in the circumstances of the applicant; i.e., his acknowledged long and untarnished work record and the ramifications of dismissal, were not addressed by the adjudicator. In the context of these two mitigating factors, it was incumbent on the adjudicator to seriously consider the possibility of corrective discipline as a substitution for the penalty of dismissal. This, she did not do. The adjudicator's decision is thus not supportable by the evidence that was before her. Curial deference, as set out by this Court,7 cannot be accorded to such a decision.

CONCLUSION

Air traffic controllers perform duties of the utmost importance to public safety. They operate under stressful conditions, and sometimes workplace demands are made of them which may seem to be very heavy or unreasonable to the average working person. However, air traffic controllers are professionals, and presumably are well-trained in their professions. That they operate under stressful conditions and are sometimes subject to heavy work demands comes as no surprise to them.

The applicant was working alone when he left his post unattended for about half an hour. This was at a time when, in his own words, planes were "flying all over the place." Although he notified Sault Ste. Marie and Toronto that he was leaving, he did not announce when he would be back. He neglected to change the ATIS broadcast message to reflect his absence. Those needing to use the airport would have assumed that he would be back in a few minutes, as is usual when, for example, an air traffic controller leaves to use the washroom facilities.

But, the applicant did not return in a few minutes. Instead, after performing some necessary toiletries, he went to the airport restaurant and had lunch there. He did not check back in to his post before he went for lunch. He did not bring his lunch back to his post to eat there. He did not even rush back to his post upon his return, but instead lingered for a few minutes at the Administrative Secretary's desk.

A lot of confusion ensued at the airport and in the airspace as a result of the applicant's actions. A potentially hazardous situation was thus created. (my emphasis)

There is no indication that the applicant had ever done such a thing in the past.

There is no issue as to the necessity of disciplinary action in this case. The issue is the severity of the penalty imposed. In my view, the adjudicator erred in her assessment of the mitigating factors by ignoring relevant evidence before her. The factors that she ignored are so significant that I conclude that the adjudicator's decision is based on an error in law, and is patently unreasonable.

On the basis of the above, this case warrants an Order that this matter be referred back to a different adjudicator to determine the appropriate penalty, taking into consideration the principles of corrective and progressive discipline, and the reasons of this decision.

Accordingly, this application is allowed.

OTTAWA, ONTARIO

July 8, 1997.      J.F.C.C.

__________________

     ¹      Canada (Attorney General) v. Wiseman (8 May 1995), Court File T-2094-94 [unreported] at 8 (F.C.T.D.); Canada (Attorney General) v. Séguin (7 September 1995), [unreported] (F.C.T.D.).

     ²      Royal Oaks Mines Inc. v. Canada (Labour Relations Board) (1996) 133 D.L.R. (4th) 129 (S.C.C.).

     ³      Canada (Attorney General) v. Wiseman, supra note 1 at 10.

     ⁴      Sopinka, J., S. N. Lederman, & A. W. Bryant, The Law of Evidence in Canada (Toronto: Butterworths, 1992), at 876.

     ⁵      Counsel to the applicant suggested Regina v. Barber et al., ex parte Warehousemen and Miscellaneous Drivers' Union Local 419 [1968] 2 O.R. 245 (Ont. C.A.) as authority for such an interference. However, because the credibility finding is not central to the adjudicator's decision, this authority is not helpful to the applicant's case. In any event, I am not bound by that decision.

     ⁶      Sopinka, J. et al., supra note 4 at 877. The authority supporting this assessment of the rule is lengthy and includes: R. v. Dyck (1960), 8 C.R.N.S. 191, [1970] 2 C.C.C. 283 (B.C.C.A.); R. v. Hart (1932), 23 Cr. App. Rep. 202; Jarvis v. Connell (1918-19), 44 o.l.r. 264 at 267, and Jarvis v. Hall (1912), 4 O.W.N. 232 at 235, 8 D.L.R. 412.

     ⁷      Reibin et al. v. Her Majesty the Queen in Right of Canada (10 June 1996), File T-1586-95 (F.C.T.D.) at 13; Wiseman, supra note 1.