Date: 20041021
Docket: T-1167-03
Citation: 2004 FC 1462
Ottawa, Ontario, Thursday the 21st day of October, 2004
Present: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
GORDON OLIVER
Applicant
and
CANADA CUSTOMS AND REVENUE AGENCY
Respondent
REASONS FOR ORDER AND ORDER
[1] The present judicial review application concerns a decision dated June 11, 2003, in which an Adjudicator, a member of the Public Service Staff Relations Board, sitting pursuant to s.92 of the Public Service Staff Relations Act, R.S.C. 1985, c.P-33, dismissed the Applicant's grievance against his termination by the Canada Customs and Revenue Agency ("the CCRA").
[2] The Applicant challenges the decision on the ground that the Adjudicator erred in admitting three documents into evidence at the hearing on the application of the CCRA. This key provision, being s.17.04 of the collective agreement between the Public Service Alliance of Canada and the CCRA, reads as follows:
17.04 The Employer agrees not to introduce as evidence in a hearing relating to disciplinary action any document from the file of an employee the content of which the employee was not aware of at the time of filing or within a reasonable period thereafter.
(Applicant's Application Record, Vol. 1, Tab 3, p. 296)
It is agreed that s.17.04 is a due process standard. Therefore, the issues for determination are: given the due process standard set out in article 17.04, did the Adjudicator make a reviewable error in admitting the documents into evidence; and what effect does the admission have on the decision rendered by the Adjudicator dismissing the Applicant's termination grievance?
[3] For the reasons which follow, I find that the Adjudicator did make a reviewable error in admitting the documents into evidence, but I also find that this error has no effect on the dismissal rendered.
A. The factual background and the Adjudicator's decision
[4] In 1998, the Applicant commenced employment as a Trust Examiner/Collections/CPP/UI Coverage Officer at Revenue Canada, which became the CCRA in 1999. The Applicant was appointed to the position of PM-2 Income Tax/Excise Tax Auditor in 1999. The CCRA terminated the Applicant's employment on May 30, 2001 on the ground that he prepared income tax returns for remuneration while employed by the CCRA, contrary to the CCRA's Conflict of Interest Code, and despite his employer's request that he stop (see: Conflict of Interest and Post-Employment Code for the Public Service and Supplementary Guidelines on Conflict of Interest for Employees of Revenue Canada, dated January 1995). The Applicant filed a grievance challenging the CCRA's decision to terminate his employment. The final level of response of the employer was dated March 6, 2002, and the grievance was referred to adjudication on April 22, 2002.
[5] With specific reference to the application of article 17.04 in the hearing before the Adjudicator, the Adjudicator passed comment on the three specific documents as follows:
[83] A related issue is whether evidence contained in Mr. Oliver's file that he was not aware of should be introduced and relied upon in this decision. The collective agreement provision reads as follows:
17.04 The Employer agrees not to introduce as evidence in a hearing relating to disciplinary action any document from the file of an employee the content of which the employee was not aware at the time filing [sic] or within a reasonable period thereafter.
[84] There was some dispute as to whether certain documents were on Mr. Oliver's file or not, prior to the termination of his employment. Mr. Oliver testified that he had not seen a number of documents prior to this hearing. Mr. Oliver did receive a copy of the final investigation report prepared by Mr. Hunt, which was the primary foundation for the employer's decision to discipline Mr. Oliver. The notes to file prepared by Ms. White, which Mr. Oliver testified he had never seen, were of conversations that she had with Mr. Oliver, therefore, it cannot be said that he was not aware of the contents of those notes. The memorandum by Mr. Jones of his investigation was not a surprise to Mr. Oliver, as he had been contacted by Mr. Jones and knew that there was an investigation. Accordingly, Mr. Oliver was aware of the general content of documents that were likely on his file. Some of the evidence produced at this hearing was not on his file (for example, the interview notes from the investigation). It is unfortunate that all the documents pertaining to the decision to discharge Mr. Oliver could not have been provided to him shortly after he filed his grievance, and certainly in advance of this hearing. I also regard as unfortunate the suggestion of counsel for the employer that an Access to Information request could have been made to obtain this material. However, in the absence of disclosure requirements under the Public Service Staff Relations Act (PSSRA), there is no obligations on the employer to disclose documents intended to be introduced as evidence in advance of a hearing before the Adjudicator.
(Decision of Ian R. Mackenzie, Board Member, Public Service Staff Relations Board dated June 11, 2003, Applicant's Application Record, pp. 34-35)
[6] It is important to note that, while not specifically stated, the Adjudicator implicitly admitted the documents as evidence into the hearing record, but it is agreed that the documents were not specifically referred to in the Adjudicator's reasons for dismissing the Applicant's grievance. As the reasons set out, the grievance was dismissed because the Applicant was found to have breached the Conflict of Interest Code to which he was bound.
B. The standards of review
[7] The Supreme Court of Canada's most recent authority which provides guidance on determining the standard of review is Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609 where Justice Major says as follows:
A. Determining the Standard of Review
¶ 15 Canadian jurisprudence is plain that in assessing an arbitrator's ruling, the reviewing judge should adopt a pragmatic and functional analysis to determine the appropriate standard of review: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; Canada [page617] (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, 2001 SCC 36; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20; Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63. The purpose is to ascertain the extent of judicial review that the legislature intended for a particular decision of the administrative tribunal: Pushpanathan, supra, at para. 26; Dr. Q, supra, at para. 21; C.U.P.E., Local 79, supra, para. 13.
¶ 16 The pragmatic and functional approach involves the consideration of four contextual factors: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the question -- law, fact or mixed law and fact: Pushpanathan, supra, at paras. 29-38; Dr. Q, supra, at para. 26; Ryan, supra, at para. 27. No one factor is dispositive: Mattel, supra, at para. 24.
¶ 17 Three standards of review have been recognized -- patent unreasonableness, reasonableness and correctness: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 30; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 55; Ryan, supra, at para. 24.
¶ 18 Dr. Q, supra, confirmed that when determining the standard of review for the decision of an administrative tribunal, the intention of the legislature governs (subject to the constitutional role of the courts remaining paramount -- i.e., upholding the rule of law). Where little or no deference is directed by the legislature, the tribunal's decision must be correct. Where considerable deference is directed, the test of patent unreasonableness applies. No single factor is determinative of that test. A decision of a specialized tribunal empowered by a policy-laden statute, where the nature of the question falls squarely within its relative expertise and where that decision is protected by a full privative clause, demonstrates circumstances calling for the patent unreasonableness standard. By its nature, the application of patent unreasonableness will be rare. A definition of patently unreasonable is difficult, but it may be said that the result must almost border on the absurd. Between correctness and patent unreasonableness, where the legislature intends some deference to be given to the tribunal's decision, the appropriate standard will be reasonableness. In every case, the ultimate determination of the applicable standard of review requires a weighing of all pertinent factors: see Pushpanathan, supra, at para. 27.
¶ 19 Only after the standard of review is determined can the administrative tribunal's decision be scrutinized. It is important to recognize that the same standard of review will not necessarily apply to every ruling made by an arbitrator during the course of an arbitration: see C.U.P.E., Local 79, supra, at para. 14.
[8] Given Justice Major's reasons in Voice Construction, and, in particular, the direction given in paragraph 19 just quoted, during the course of the oral hearing of the present application, it was agreed that: first, a "global" standard of review is to be determined with respect to how to judge the Adjudicator's decision to dismiss the Applicant's grievance; and, second, a "ruling" standard of review is to be determined with respect to the Adjudicator's evidentiary ruling on the meaning of article 17.04 made within the course of the adjudication.
[9] It is agreed that, on an application of the pragmatic and functional approach, the global standard of review is reasonableness, and the ruling standard of review is correctness.
C. The Adjudicator's ruling with respect to article 17.04 and the standard of correctness
[10] It is agreed that the Adjudicator accepted the fact that the Applicant had not actually seen the three documents in question prior to their being tendering for admission as evidence during the course of the hearing. It is clear from his reasons that the Adjudicator did not think that this fact impeded his ability, in law, to admit the documents into evidence. That is, he did not read article 17.04 as a mandatory standard of due process, the breach of which would exclude the admission of the documents.
1. The Applicant's argument
[11] On this point, Counsel for the Applicant, who expressed a concern for fairness to the Applicant in the present case, as well as to other employees under the collective agreement in the future, made detailed written argument, abridged as follows:
The Applicant respectfully submits that article 17.04 is mandatory and may not be avoided, nor may a breach thereof be cured by subsequent disclosure. Accordingly, and for the reasons set out below, the Applicant rejects the position advanced by the Respondent in paragraphs 62-73 of its Memorandum of Fact and Law where in asserts that a breach of article 17.04 may be cured by subsequent disclosure.
The Applicant states that article 17.04 sets the level of due process to which an employee is entitled in the circumstances of discipline - being timely notice of the content of documents maintained by the Employer and relied upon in support of discipline. However, it is submitted that it also imposes a substantive, strict liability element - being that a breach of the standard precludes the Employer from introducing the document in issue.
The Applicant states that the language of article 17.04 is prescriptive and does not countenance exceptions. It prohibits the Respondent Employer from introducing into evidence at a hearing relating to disciplinary action any document from the file of an employee the content of which the employee was not aware of at the time of filing or within a reasonable period thereafter. Thus, the language of article 17.04 is clear and cogent evidence of the mandatory nature of the standard it imposes.
The provisions of the Public Service Staff Relations Act, (R.S.C. 1985, c. P-35, as amended)serve to reinforce the requirements of article 17.04. Specifically, section 59 of the PSSRA confirms that, having struck the bargain set out in article 17.04, its terms are binding upon the parties.
With respect to an Adjudicator called upon to interpret and apply the collective agreement, subsection 96(2) of the PSSRA represents further statutory reinforcement of article 17.04. It prohibits the Adjudicator from rendering a decision "the effect of which would be to require the amendment of a collective agreement".
In the Applicant's respectful submission, to read exceptions into article 17.04 is to act contrary to its express terms and has the effect of violating section 59 of the PSSRA [and] subsection 96(2) of the PSSRA.
In interpreting article 17.04, the role of the Adjudicator is to determine whether its requirements are engaged and/or have been breached. This determination falls squarely upon an Adjudicator appointed under the PSSRA and involves a question of law. (Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] S.C.J. No. 2 (SCC) (QL) at para. 29).
As a matter of law, the standard imposed by article 17.04 required that the Adjudicator turn his mind to whether:
a. the document is being relied upon in support of the decision to impose discipline;
b. the document was in the file of an employee and, if not, whether it ought to have been in the file;
c. the employee was given timely notice that the document was being kept in respect of the employee; and
d. the employee was made aware of the content of the document.
In determining the meaning to be accorded to any of these elements, the Applicant submits the Adjudicator ought to have regard to the employment context, the collective agreement as a whole, and the purpose of the article itself. [...] For example, the Applicant submits that notice to an employee that the Employer is maintaining a document the content of which relates to unsatisfactory conduct performs the function of warning the employee, allowing an opportunity for correction and ensuring transparency.
The Applicant submits that, on its face, article 17.04 contemplates a connection between the individual, the document, and the Employer's decision to maintain copies of those documents for disciplinary purposes.
Accordingly, with respect to the specific reference to "the file of an employee" in article 17.04, the Applicant submits that it contemplates documents and information that the Employer maintains in respect of that employee and arising from the conduct or activities of that employee. The Applicant respectfully submits that the phrase "file of an employee" is not a term of art but, rather, ought to be interpreted in accordance with its normal meaning; those documents that an Employer maintains in respect of individuals it employs.
In contrast, general documents that set out Employer policy or workplace standards, such as conflict of interest guidelines or internet use policies or the like, do not relate to the individual. Accordingly, such documents would fall outside the class of documents that would be subject to article 17.04.
(Applicant's Supplementary Submissions, pp.2-5)
2. The Respondent's argument
[12] In response, Counsel for the Respondent argues that the Applicant suffered no prejudice as a result of the admission into evidence of the three documents, and in written argument gave the following reasons:
Article 17.04 does not state that each and every document must be seen by the grievor. It also does not state that the grievor is entitled to a copy of each and every document.
Article 17.04 does not define "file". There is no definition of file in the collective agreement. Records are kept by an employer with respect to employees for certain purposes. No evidence was led at the hearing as to what meaning is attributed to file in the collective agreement.
[...]
It is submitted that the very fact that the Applicant may not have seen every document, does not alter the fact that he was aware of the information contained within them. The information contained in the documents of which the Applicant complains were not in his "file" formed part of the Investigation Report of Mr Hunt, and other documents of which he was aware and had seen. The information contained in those documents revealed certain activities allegedly carried on by the Applicant. That information was known by Mr Oliver because that information was provided to him by either the persons who created the documents in question or by his participation in the investigation process with Mr Hunt who conducted an interview with him. While Mr Hunt's notes of the interviews were not in his file, the Applicant was aware of what was in them because:
1. he had the discussion with Mr Hunt;
2. his union representative had kept his own notes of the meeting;
3. he received a copy of the investigation report, which contained a summary.
There is no reason that Mr Hunt's personal notes would be placed in Mr Oliver's file, as they are Hunt's notes. The same reasoning applies to notes made by Ms. White or Mr. Jones.
(Respondent's Supplementary Memorandum of Fact and Law, pp.2-3, pp.5-6)
3. Conclusion
[13] I completely agree with Counsel for the Applicant with respect to the interpretation to be placed on article 17.04.
[14] As mentioned, it is agreed that article 17.04 is a due process standard; accordingly, it imposes a duty of fairness. That is, since this standard concerns the question of notice in a disciplinary process which might result in the termination of an employee, the standard imports a strong duty of fairness. This point is well make in Singh v. M.E.I., [1985] 1 S.C.R. 177, where Justice Beetz J. at para. 103 says:
The most important factors in determining the procedural content of fundamental justice in a given case are the nature of the legal rights at issue and the severity of the consequences to the individuals concerned. In the same Inuit Tapirisat case, at the same page, Estey J. also quoted Lord Denning M.B. in Selvarajan v. Race Relations Board, [1976] All E.R. 12 (C.A.) at p. 19:
... that which fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. The fundamental rule is that, if a person may be subjected to pains or penalties, or be exposed to prosecution or proceedings or deprived of remedies or redress, or in some such way adversely affected by the investigation and report, then he should be told the case made against him and be afforded a fair opportunity of answering it.
[15] In my opinion, the clear intent of s.17. 04 is to give a grievor actual notice of the contents of a document before it can be admitted into evidence: that is, a grievor would not only have to be aware of the general content of a particular document, but its actual contents. This usually would mean that a grievor would have to be provided a copy of the document in advance of the adjudication hearing, or at very least, have the contents of the document read to him or her in a manner which would allow him or her to understand its full content.
[16] I also find that the interpretation of the term "file" in article 17.04 must be given an expanded meaning to meet the fairness intent of the provision. The proposition is very simple: in an adjudication, documents pertaining to a grievor that are in the possession of the employer, which the employer wishes to use in a disciplinary action against an employee, must be subject to advance production.
[17] Therefore, in circumstances such as those in the present case, the standard of fairness established by article 17.04 requires an employer to give a grievor a fair chance to know the precise contents of the documentary evidence to be presented against him or her at an adjudication, far enough in advance of the hearing to allow the preparation of any response considered necessary.
[18] Thus, when the three documents in question were tendered for admission into evidence, the Adjudicator was required to answer two questions with respect to each before deciding whether to admit or exclude them: were the documents in the possession of the employer; and, did the Applicant know of their actual contents? Unless the answer to both questions is "yes", the documents cannot be admitted as evidence.
[19] In the present case the Adjudicator made no attempt to approach the admission of the documents as I have described. It appears that the Adjudicator did not interpret article 17.04 as a mandatory due process standard. As a result, I find that, on the ruling standard of correctness, the Adjudicator made a reviewable error of law.
D. The Adjudicator's dismissal of the Applicant's grievance
[20] It is clear from the Adjudicator's reasons that the admission of the three documents in question had no impact on the final outcome of the adjudication. Indeed, the present application does not contest the Adjudicator's primary finding that the grievance should be dismissed because of the Applicant's breach of the Conflict of Interest Code.
[21] However, in her initial written argument, Counsel for the Applicant took the position that the breach of due process committed by the Adjudicator should, in and of itself, result in the Adjudicator's decision being set aside. The 1985 Supreme Court of Canada case of Cardinal and Oswald v. Director of Kent Institution, 24 D.L.R. (4th) 44 is cited for this proposition.
[22] In Cardinal, the Supreme Court dealt with a situation in which two penitentiary inmates were not given an opportunity to make representations concerning a decision to continue their segregation. The decision was made by the Warden, on the recommendation of a Segregation Review Board composed of members of the penitentiary staff.
[23] With respect to the failure to provide due process to the inmates, Justice Le Dain at pages 56-57 stated:
... I agree with McEachern C.J.S.C. and Anderson J.A. that, because of the serious effect of the director's decision on the appellants, procedural fairness required that he inform them of the reasons for his intended decision and give them an opportunity, however informal, to make representations to him concerning these reasons and the general question whether it was necessary or desirable to continue their segregation for the maintenance of good order and discipline in the institution. With great respect, I do not think it is an answer to the requirement of notice and hearing by the director, as suggested by Macdonald J.A., that the appellants knew as a result of their appearance before the Segregation Review Board why they had ben placed in segregation. They were entitled to know why the director did not intend to act in accordance with the recommendation of the board and to have an opportunity before him to state their case for release into the general population for the institution. I do not think the director was required to make an independent inquiry into the alleged involvement of the appellants in the hostage-taking incident. He could rely on the information he had received concerning the incident from the warden of Matsqui Institution and the personnel at regional headquarters. At the same time, he had a duty to hear and consider what the appellants had to say concerning their alleged involvement in the incident, as well as anything else that could be relevant to the question whether their release from segregation might introduce an unsettling element into the general inmate population and thus have an adverse effect on the maintenance of good order and discipline in the institution.
These were in my opinion the minimal or essential requirements of procedural fairness in the circumstances, and they are fully compatible with the concern that the process of prison administration, because of its special nature and exigencies, should not be unduly burdened or obstructed by the imposition of unreasonable or inappropriate procedural requirements. There is nothing to suggest that the requirement of notice and hearing by the director, where he does not intend to act in accordance with a recommendation by the Segregation Review Board for the release of an inmate from segregation, would impose and undue burden on prison administration or create a risk to security.
[...]
I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing. [Emphasis added]
During the course of the oral argument, I expressed the opinion that the principle in Cardinal, as emphasized in the passage quoted, must now be viewed in the light of the Supreme Court's more recent requirements with respect to establishing a standard of review. That is, if it is found that a breach of the duty of procedural fairness has occurred by a tribunal in reaching a final decision in a particular case, the question to be determined by the reviewing Court is whether the breach will affect the final determination, judged according to the global standard of review.
[24] I wish to add that, in agreeing to the global and ruling standards applicable in an arbitration such as the one under review as outlined above, Counsel for the Applicant, nevertheless, expressed a reservation that the breach of due process in the present case is of such a serious quality that it would warrant giving it the same effect as that given to the breach in Cardinal. That is, the breach in the present case should warrant a finding that the final determination is rendered as unreasonable.
[25] Obviously, the situation in Cardinal is very different from the situation in the present case, and, therefore, in my opinion, does not warrant the same result. Nevertheless, I agree that the breach of due process in the present case does warrant a finding in favour of the Applicant.
[26] By way of relief, Counsel for the Applicant asks that a declaration be made according to her argument on the interpretation to be given to article 17.04. My findings in these reasons with respect to article 17.04 is my compliance with this request. For clarity, I find that, pursuant to s.18.1(4)(b) of the Federal Court Act, the Adjudicator in the present case failed to observe a principle of procedural fairness by interpreting article 17.04 as he did. Having made this determination, I have the jurisdiction and discretion to make an order under s.18.1(3) setting aside the decision of the Adjudicator, but, in my opinion, this can only be done if I find that the Adjudicator's decision does not meet the global standard of review, being reasonableness.
[27] Even though I have agreed with the argument of the Applicant with respect to the evidentiary ruling, because the admission of the documents in question had no apparent impact on the outcome of the adjudication, I find that the admission of the documents does not act so as to render, as unreasonable, the Adjudicator's decision dismissing the grievance. Thus, I find that, on the global standard of review, the Adjudicator did not make a reviewable error.
ORDER
For the reasons provided, the application is dismissed.
I make no order as to costs.
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1167-03
STYLE OF CAUSE:
OLIVER GORDON
v.
CANADA CUSTOMS AND REVENUE AGENCY
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: October 20, 2004
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE CAMPBELL
DATED: October 21, 2004
APPEARANCES:
Ms. Jacquie de Aguayo FOR APPLICANT
Mr. John Jaworski FOR RESPONDENT
SOLICITORS OF RECORD:
Public Service Alliance of Canada FOR APPLICANT
Ottawa, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Ottawa, Ontario