Date: 20011220
Docket: T-1051-00
Neutral Citation: 2001 FCT 1407
BETWEEN:
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
[1] This is an application under section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, for judicial review of a decision of an adjudicator, dated May 11, 2000 (the "Decision"), in respect of a grievance presented by the Applicant pursuant to section 91 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, as amended, (hereinafter the "PSSRA").
Facts
[2] The Applicant was employed by Revenue Canada - Customs, Excise and Taxation, which is now the Canada Customs Revenue Agency ("Revenue Canada"). He was a Customs Officer at Toronto's Pearson International Airport and was also the President of Toronto Local 0024, Customs and Excise Union Douanes Accise ("CEUDA"). It is a component of the Public Service Alliance of Canada ("PSAC") which is the certified bargaining agent for Customs Officers.
[3] On May 2, 1997, the Applicant had a discussion with Norm Sheridan, the Acting Director of the Customs Border Services - Inland, regarding the Applicant's longstanding concerns about management's treatment of employees whose actions were being investigated because they were accused of misconduct. Mr. Sheridan counselled the Applicant not to advise Customs Officers to engage in an illegal strike or other illegal job action and warned that, if he gave such counsel, he could be subject to disciplinary action. The Applicant claims to have followed his advice and, after consulting with union colleagues who advised him that his proposed notice to employees was not problematic, he had several copies of the following notice posted in his workplace on May 28, 1997 (the "Notice").
[4] The Notice reads as follows:
"This is a caution to all civil servants regarding the application of the Canadian Charter of Rights and Freedoms as well as a reminder of your right to procedural fairness during internal investigations.
Revenue Canada is one example of a department that continues to demonstrate an unwillingness to respect employee's rights when conducting investigations into work related allegations. It appears that we Canadians who are employed to administer and enforce the legislation of this country have fewer rights than others in Canada, in comparison to visitors or those with criminal records.
Numerous requests have been made by myself seeking clarification of our legal rights and obligations. This is not an unreasonable request yet officials of Revenue Canada continue to be unwilling or unable to provide us with this information. It is more disturbing that the Minister of Revenue, the Minister of Justice and the Office of the Prime Minister are also not willing or able to answer these fundamental questions. Why?
The following two incidents will help explain our point and hopefully increase your awareness of the potential risk you face while working for the government.
1) A passenger is referred by Canada Customs for an examination. Three days after the traveller returns home, the individual notices over $5,000 missing from their baggage. The individual has a lawyer draft a letter to the department accusing an inspector of theft. This is a criminal offence which could result in criminal charges being laid. While being investigated, officers requests for counsel are ignored. The employees are then put in a line up to be observed by the passenger and lawyer. We felt that this was a violation of our civil rights and a request was made for clarification. An answer was never provided. It is important to note that no officer was found guilty of any wrongdoing.
2) A collections officer accesses the computer in the performance of his/her regular duties. The manager noticed a pattern that he/she felt was suspicious. The employee is suspended without pay until an investigation is completed by Internal Affairs. Again, no wrongdoing was found. The individual was just an above average employee doing his/her job. Was this fair?
In lieu of these and other incidents, it is incumbent on all employees to protect themselves while performing their duties. Least (sic) we forget one of our brothers who was recently deemed guilty of an offence and discharged from duty without a hearing. We offer the following advice that will minimize the risk while performing your duties.
1) Do not touch the contents of any travellers (sic) luggage. Have the passenger remove the contents from his/her bag and then have them re-pack the contents once your examination is complete.
2) If a passenger refuses to cooperate, request assistance from your Superintendent. A witness will be your protection from false accusations and will also provide a safer work environment. You have the option of delaying the passenger until your assist is available. Only when you deem it safe, proceed with the examination. If there is not adequate staff available to provide you with an assist, discretion can be used to release the passenger without conducting an examination.
We have exhausted all internal avenues for the last two years and are left with no choice but to exercise our last option. It must be understood that the purpose of this is for no other reason than to protect the welfare of those who are serving to protect this country."
[my emphasis]
[5] The Notice was only posted for a short time and did not actually result in job action or any strike activity.
[6] On June 5, 1997, the Applicant received a 10 day disciplinary suspension without pay. Revenue Canada alleged that the Notice had counselled an illegal strike in violation of sections 102(1) and 103 of the PSSRA and Article M-15 of the PSAC Collective Agreement. Section 103 of the PSSRA reads as follows:
103. No employee organization shall declare or authorize a strike of employees, and no officer or representative of an employee organization shall counsel or procure the declaration or authorization of a strike of employees or the participation of employees in a strike, the effect of which is or would be to involve the participation of an employee in a strike in contravention of section 102.
R.S., c. P-35, s. 102.
103. Il est interdit à une organisation syndicale de déclarer ou d'autoriser une grève de fonctionnaires, et à un dirigeant ou représentant de l'organisation de conseiller ou susciter la déclaration ou l'autorisation d'une telle grève, ou encore la participation de fonctionnaires à celle-ci, quand elle a ou aurait pour effet de placer ces fonctionnaires en situation d'infraction à l'article 102.
S.R., ch. P-35, art. 102.
[7] Section 102 essentially provides that strikes are not permitted when a collective agreement is in force.
[8] Strike is defined in Section 2(1) of the PSSRA as follows:
| "strike" includes a cessation of work or a refusal to work or to continue to work by employees, in combination, in concert or in accordance with a common understanding, and a slow-down of work or other concerted activity on the part of employees that is designed to restrict or limit output; |
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« grève » S'entend notamment d'un arrêt du travail ou du refus de travailler, par des fonctionnaires agissant conjointement, de concert ou de connivence; lui sont assimilés le ralentissement du travail ou toute autre activité concertée, de la part des fonctionnaires, ayant pour objet la diminution ou la limitation du rendement et relative au travail de ceux-ci.
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[9] The Applicant filed numerous grievances against Revenue Canada as well as a complaint under section 23 of the PSSRA. In the complaint, he alleged that, contrary to section 8 of the PSSRA, management had harassed, interfered, restricted access and movement, intimidated and disciplined him for carrying out his duties as Local Union President.
[10] Rosemary Vondette Simpson (the "Adjudicator"), is a member of the Public Service Staff Relations Board. She conducted a 12 day hearing between October 1998 and November 1999 to deal with the Applicant's grievances and his complaint. However, during argument at the end of the hearing, the Applicant indicated that he would pursue only his grievance against the suspension (the "Grievance"). He abandoned all his other grievances and his complaint under the section 23 of the PSSRA.
[11] In his Grievance, the Applicant alleged that:
Revenue Canada's action was in violation of article M-15 and M-16 of the collective agreement, Revenue Canada failed to take into account his status and rights as a Union Officer and had no authority to discipline him for posting the notice, and that he did not intend to instigate illegal strike activity contrary to the PSSRA.
[12] The Adjudicator released her decision on May 11, 2000. She rejected the Grievance and upheld the suspension but she reduced it from ten days to five in recognition of the Applicant's excellent service as a Customs Officer and as a dedicated Union Officer.
[13] The Adjudicator upheld the suspension because she concluded that the Applicant had counselled "job action". She determined that Customs Officers have no discretion to decide not to search a traveller based only on the fact that another Officer is not available to assist in the search. She found that a Customs Officer cannot fetter his or her discretion with a "pre-determined resolution not to touch baggage and not to search passengers if another officer is not there to assist" because this is inconsistent with the Customs Act, R.S.C. 1985, c.1 (2nd Supp.) (the "Act"), which requires officers to search passengers if they are concerned that they may not have complied with the Act.
The Issues
[14] 1. Did the Adjudicator err because she did not refer to the statutory definition of a strike in her Decision?
2. Did the Adjudicator err because she failed to consider the Applicant's status as a Union Officer and the statutory protections in Sections 6 and 8 of the PSSRA?
3. Did the Adjudicator misinterpret the Notice?
4. Did the Adjudicator err in failing to consider whether the disciplinary proceedings in this case contravened the no discrimination provisions in Article M-16 of the PSAC Collective Agreement?
5. What is the proper standard of review? While the Applicant acknowledges that adjudicators normally receive the highest level of deference, he says that in this case, because the Adjudicator was interpreting the PSSRA, the standard should be reasonableness.
Issue 1
[15] Although she did not quote the definition of a strike, it is clear that the Adjudicator considered the meaning of "strike". In this regard, she looked at Customs Officers' responsibilities and duties in an effort to determine whether failure to manually search items in travellers' luggage could be justified under the Act. In my view, she considered whether the Notice counselled a strike and she concluded that it did when she said that the Notice advised "job action".
[16] There is no question that the Adjudicator could have spent more time stating the obvious. It would have been better if her Decision had referred to the definition of strike in the PSSRA and the prohibition against counselling strike action in Section 103 of the PSSRA. However the context must be recalled: she was dealing with a Grievance by the President of a Union Local who understood the provisions of the PSSRA.
[17] While it was not an error to omit direct references to well-known statutory provisions, the Adjudicator did err in law when she failed to make findings and reach express conclusions about the requirements of those sections. In order to conclude, as she did, that the Notice advised job action, she had to conclude as well that the Notice advocated an activity which was "designed to restrict or limit output". Unfortunately, her Decision did not deal with her conclusions about the Applicant's intention or about the meaning of output in the customs context.
Issue 2
[18] In my view, the Adjudicator was mindful of the Applicant's union status. She mentioned it in the first sentence of her Decision and used the fact that he is recognized as a dedicated Union Officer to reduce his suspension. However, she erred in that her Decision does not discuss whether she considered his Union position when she considered what the Notice was "designed" to accomplish.
Issue 3
[19] The Applicant also suggests that Revenue Canada misread the part of the Notice that says: "Do not to touch the contents of any travellers (sic) luggage". He said that it cannot sensibly be interpreted to prohibit searches or examinations of luggage because the next sentence directs officers to have travellers repack their bags "once your examination is complete".
[20] I do not agree with the Applicant's submission on this issue. The main point made in the Notice is that no items are to be touched. This precludes a manual search which would reveal hidden objects or objects of inappropriate weight or texture. If the contents cannot be touched, only a visual examination is possible and, in my view, that is the only kind of search the Notice mandated in the absence of a witness.
Issue 4
In my view, this was not an error because the provisions of article M-16 of the PSAC Collective Agreement were not before the Adjudicator.
Conclusions
[21] The Adjudicator's decision is incomplete because it does not expressly reach conclusions about the Applicant's intention in the context of his union duties and about the meaning of output in the customs context. There are fundamental matters which must be expressly addressed and, regardless of the standard of review (Issue 5), failure to deal with these considerations constitutes a reviewable error.
[22] Accordingly, this application for judicial review is allowed and an Order will be made referring the Grievance to another adjudicator for a fresh consideration.
"Sandra J. Simpson"
JUDGE
Toronto, Ontario
December 20, 2001
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: T-1051-00
STYLE OF CAUSE: JOHN KING
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
DATE OF HEARING: JUNE 7, 2001
PLACE OF HEARING: OTTAWA, ONTARIO
REASONS FOR ORDER BY: SIMPSON J.
DATED: THURSDAY, DECEMBER 20, 2001
APPEARANCES: Mr. David Yazbeck
For the Applicant
Mr. Richard Fader
For the Respondent
SOLICITORS OF RECORD: Raven, Allen, Cameron & Ballantyne
Barristers & Solicitors
1600-220 Laurier Ave. West
Ottawa, Ontario
K1P 5Z9
For the Applicant
Mr. Richard Fader
Treasury Board, Legal Services
5th Floor, West Tower
L'Esplanade Laurier
300 Laurier Avenue West
Ottawa, Ontario
K1A 0R5
For the Respondent
FEDERAL COURT OF CANADA
Date: 20011220
Docket: T-1051-00
Between:
JOHN KING
Applicant
- and -
THE ATTORNEY GENERAL OF
CANADA
Respondent
REASONS FOR ORDER
Date: 20011220
Docket: T-1051-00
Toronto, Ontario, this 20th day of December, 2001
PRESENT: THE HONOURABLE MADAM JUSTICE S. J. SIMPSON
BETWEEN:
JOHN KING
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
ORDER
UPON the Applicant's application for judicial review of a decision of an adjudicator dated May 11, 2000;
AND UPON hearing counsel for both parties in Ottawa on June 7, 2001;
AND UPON reserving my decision in order to give this matter further consideration.
NOW THEREFORE THIS COURT ORDERS THAT, for the reasons issued this day (the "Reasons"), this application is allowed and the applicant's Grievance, as defined in the Reasons, is to be reconsidered by another adjudicator.
"Sandra J. Simpson"
JUDGE