Date: 20050324
Docket: T-39-03
Citation: 2005 FC 410
BETWEEN:
MICHAEL JAMIESON
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
de MONTIGNY J.
[1] This is an application for judicial review under s. 18.1 of the Federal Courts Act to review and set aside a decision of Yvon Tarte, Chairperson of the Public Service Staff Relations Board (Board), sitting as an adjudicator appointed under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRA). The decision, rendered on December 10th, 2002, upheld the termination of the Applicant, Michael Jamieson. The Application arose pursuant to a grievance under s. 11(2)(g) of the Financial Administration Act, R.S.C. 1985, c. F-11.
BACKGROUND
[2] The applicant started working as a certified plumber in 1978. In 1981, he joined the Department of National Defence (DND) at Canadian Forces Base (CFB) in Kingston as a plumber, grade GL-PIP-9. At the time, DND hired both plumber and steamfitters, who worked in separate shops.
[3] As a result of the government's expenditure reduction program, DND consolidated the plumbing and steamfitting shops in 1995. CFB Kingston went from 20 employees in both shops to 12 employees in the combined shop. The employees in the combined shop were required to be certified in both trades. As the applicant was a plumber, he was required to obtain a steamfitter's certificate.
[4] All plumbers were given the opportunity to work with qualified steamfitters, and to participate in a course given by the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada (hereinafter "Local 221"), at the employer's expense.
[5] Under the Trade Qualification and Apprenticeship Act (R.S.O. 1990, c. T-17), a person holding certification as a 306A plumber may apply for eligibility to challenge the 307A Steamfitter certification exam, if the individual provides evidence of having worked in the trade doing steamfitting work in excess of 4000 hours.
[6] Although Mr. Jamieson filed a classification grievance in February 1997 dealing with the addition of steamfitter functions to his job description, he took the training offered by DND in April 1997. He was formally notified in December of 1998 that he had to obtain his license for steamfitting no later than 28 February 1999. By then, all the other plumbers in the consolidated shop at CFB Kingston had taken the exam and succeeded. Having failed to take the exam within the prescribed period of time, the applicant then had a meeting with Major Brian McGee, Engineering Service Officer. He then expressed some concern that the training was inadequate to safely allow him to work on high pressure steam systems, and questioned the need to qualify as there was ample work for him as a plumber. In a letter dated April 9, 1999, that position was rejected, and he was given until July 5, 1999, to take the exam. To alleviate his concerns with respect to the sufficiency of his training, his supervisor was also directed to ensure that he would be teamed up with a qualified steam fitter as often as possible during the next few months, so as to provide him with as much practical exposure to the qualification as possible under the supervision of a qualified employee.
[7] The applicant finally took the exam in July 1999 but failed by one percentage point. Major McGee again wrote to the applicant early in September 1999 to indicate that both the Ontario Ministry of Training, Colleges and Universities, and Local 221, were in full support of the employer's approach to the certification of CFB Kingston plumbers as steamfitters. The applicant was also advised that he now had until November 5, 1999, to rewrite the exam, failing which: 1) the applicant could not continue to be employed in his current position without the steamfitter qualification; 2) disciplinary action could result if he failed to write the exam; and 3) failure to pass the exam could result in demotion for cause.
[8] The applicant did not write the exam in November 1999. Instead, he made it clear that he did not believe that there was a need for cross-qualification, and reiterated that he did not have enough steamfitter experience to write the exam safely. Then, in December 1999, he forwarded an affidavit to the Ministry asserting that he had never done any steamfitting work with DND. Following receipt of that affidavit, the applicant's eligibility to write the steamfitter exam was rescinded by the Ministry. On December 16, 1999, the applicant was given a letter of reprimand for what the employer considered misrepresentation to the Ministry, and for failing to write the steamfitter exam when ordered to do so.
[9] On January 11, 2000, Captain Hann (who followed Major McGee in the position of Engineering Services Officer) wrote to the Ministry concerning the employer's position with respect to Mr. Jamieson's eligibility to write the provincial steamfitter exam. In that letter, Captain Hann reiterated the employer's position that the applicant was qualified to write the exam. He referred to the applicant's work history, as recorded by daily labour voucher, work orders and overtime sheets, reflecting hundreds of hours of assigned steam related tasks. Also enclosed was a Supervisor's Assessment Form from his supervisor; I note that Mr. Jamieson was apparently requested to actively participate in this assessment but refused to do so. The Ministry responded in late January, indicating that only Mr. Jamieson could apply to re-activate his application to write the exam.
[10] Captain Hamm wrote to the applicant on February 11, 2000, reiterating that it was the management's position that he had ample training and experience in steamfitter related work to write this exam. As a result, Mr. Jamieson was requested to write the exam no later than February 29, 2000. He failed to do so, was then given a further extension to write the exam on April 27, 2000, to no avail.
[11] At this juncture, Captain Hann wrote again to the applicant, offering him a deployment to a lower level position as there was no other position at the level for which he was qualified. This would have resulted in a substantial salary drop. He was also advised that if he chose not to accept this deployment, management would be forced to consider the possibility of terminating his employment. After having been given a last opportunity to write the steamfitter exam, he was officially terminated on June 23, 2000.
[12] It is worth noting that two letters from the Ministry were filed, on consent, before the PSSRB, even if they postdate the termination of Mr. Jamieson. The Board quoted the following excerpts of these letters in its decision:
Under the Trades Qualification and Apprenticeship Act, a person holding certification as a 306A Plumber may apply for eligibility to challenge the 307A Steamfitter certification exam, if the individual provides evidence of having worked in the trade doing steamfitting work in excess of 4000 hours. The evidence is assessed with a key component being the presence of verifiable and corroborating evidence from different sources. The applicant presenting independent evidence from a qualified independent party and verifying that this evidence is true normally provides this corroboration. The assessment is only for eligibility to challenge the exam. The certification exam is the final arbiter of qualification. (Letter of March 29, 2001)
***
I am writing in response to your October 24, 2001 request that I review a summary of training information to determine if an individual with a similar package of information would be deemed eligible to challenge the Certificate of Qualification exam for Steamfitter.
As you know a person holding certification as a 306A Plumber can be deemed eligible to challenge the 307A Steamfitter exam, if they present evidence of having worked in the trade doing steamfitting work in excess of the 4000 hours. The evidence is assessed with a key component being the presence of verifiable and corroborating evidence from different sources. The applicant presenting independent evidence from a qualified independent party and verifying that this evidence is true, normally provides this corroboration.
The package that you presented clearly indicates that the individual has 828 hours of exclusive steamfitting training and work experience. The package also presents that the individual has worked as a plumber for 19 years and provides an analysis of the training and work experience that is present in both trades. While this infers that the individual would likely have acquired the remaining 3172 hours of steamfitting experience, the package is not implicit.
In a package like this we would want to ensure that the individual was in fact doing tasks common to plumbing and steamfitting during those 19 years. Although uncommon, it could be possible that a licensed plumber had worked exclusively on plumbing administrative work for all of those 19 years and had not acquired the inferred skills. (Letter of October 30, 2001)
DECISION UNDER REVIEW
[13] First of all, the Board came to the conclusion that the facts in this case do not give rise to a Work Force Adjustment situation, to a health and safety issue or to the application of the technological change clause in the collective agreement.
[14] Even assuming, for the sake of discussion, that a technological change had occurred, the Board concluded that the employer had made every reasonable effort to provide the necessary training to Mr. Jamieson. The Board was of the view that the reasons for the applicant's termination fell largely on his own shoulders, since he was not prepared to accept the employer's offers of help and training. To quote Mr. Tarte: "Mr. Jamieson could easily have asked for and received additional exposure to steamfitting work. Rather than cooperate with the employer, the griever resisted any attempt to move him along, putting up obstacles at every opportunity."
[15] The Board also disagreed with the applicant's position that work, which is generic to plumbing and steamfitting, can not count in the requisite work exposure used to assess whether an individual can challenge the second trade's exam. As a result, the Board found that the employer's decision to terminate the applicant was justified, and denied the grievance.
ISSUES
[16] The applicant submits a number of issues that can be summarized as follows: Did the Board err in assessing the evidence, or based its decision on an erroneous finding of fact, in coming to the conclusion that the decision to terminate the applicant's employment was valid? More particularly, did the Board make a reviewable error in dismissing the applicant's claim that he was not eligible to write the Steamfitters exam, and in finding that he only had himself to blame for being dismissed?
ANALYSIS
[17] The adjudicator was appointed pursuant to s. 93 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (hereinafter the PSSR Ac"). Section 92 of that Act provides for referring matters to adjudication, thus establishing the adjudicator's jurisdiction. Section 92(b)(ii) allows an adjudicator to hear matters arising out of termination of employment or demotion pursuant to paragraphs 11(2)(f) (termination for breaches of discipline or misconduct) or 11(2)(g) (termination for reasons other than breaches of discipline or misconduct).
[18] Applying the pragmatic and functional approach as set out in Dr. Q v. College of Physicians and Surgeons of BC ([2003] 1 S.C.R. 226, we have to look at the following four contextual factors to determine the proper standard of review for the type of decisions made by the PSSRB: (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).
[19] It is true that a privative clause used to be found in the PSSR Act but was later repealed (see Public Service Reform Act, S.C. 1992, c. 54, repealing s. 101 of the PSSR Act). But as Justice Iacobucci (speaking for the Court) said in Ryan v. Law Society of New Brunswick ([2003] 1 S.C.R. 247, at par.29):
The existence of a broad statutory right of appeal indicates that less deference may be due to decisions of the Discipline Committee. However, as Bastarache, J., noted in Pushpanathan, supra, at para. 30: "The absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard." The specialization of duties intended by the legislature may warrant deference notwithstanding the absence of a privative clause. (References omitted)
[20] Indeed, this is precisely the conclusion reached by the Federal Court of Appeal in the context of an application for judicial review of a decision rendered by an adjudicator under the PSSR Act. In Barry c. Canada (Treasury Board) ((1997) 221 N.R. 223), Justice Robertson wrote (at. para. 3):
It is true that prior to the repeal of the privative clause, that Court had held in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; 150 N.R. 161 ("PSAC #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 (¼) at 337-338, 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."
[21] As for the other three criteria, there is not much dispute that the PSSRB has more expertise than this Court in dealing with grievances relating to termination of employment for disciplinary or non disciplinary reasons, that the very purpose underpinning the creation of the PSSRB was to ensure effective collective bargaining in the public service, and that the nature of the question, i.e. whether the employer had cause to terminate the Applicant, is essentially a question of fact. For all these reasons, considerable deference should be given to the decision made by the adjudicator.
[22] This is precisely the conclusion that was reached by the Federal Court of Appeal and by this Court in every instance where this issue arose in the past: Barry v. Canada (Treasury Board), supra; Green v. Canada (Treasury Board), [2000] F.C.J. no. 379 (F.C.A.); McCormick v. Canada (Attorney General), (1998) 161 F.T.R. 83 (F.C.); and very recently, Ryan v. A.G. of Canada, [2005] F.C.J. no. 65 (F.C.). The parties were also in agreement as to the standard of review. As a consequence, there is no need to belabour this point.
[23] This Court should accordingly apply a very deferential standard of patent unreasonableness in reviewing the adjudicator's decision. This means that unless the decision is clearly irrational or evidently not in accordance with reason, it should not be interfered with. This is quite clearly a very high threshold, as it should be, and it goes without saying that I shall not disturb Mr. Tarte's finding simply because I may have come to another conclusion. As the Supreme Court has said in CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, at p. 1003:
The test for review is a "severe test"; see Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, at p. 493. This restricted scope of review requires the courts to adopt a posture of deference to the decisions of the tribunal. Curial deference is more than just a fiction courts resort to when they are in agreement with the decisions of the tribunal. Mere disagreement with the result arrived at by the tribunal does not make that result "patently unreasonable". The courts must be careful to focus their inquiry on the existence of a rational basis for the decision of the tribunal, and not on their agreement with it. The emphasis should be not so much on what result the tribunal has arrived at, but on how the tribunal arrived at that result.
See also, to the same effect:
- Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at p. 953;
- Canada Safeway Ltd. V. RWDSU, Local 454, [1998] 1 R.C.S. 1079, at p. 1109;
- Green v. Canada (Treasury Board), supra, at para. 8;
- McCormick v. Canada (Attorney General), supra, at paras. 14-15.
[24] Relying on these decisions, it is the Applicant's contention that the Board's decision is patently unreasonable as it does not explain how the Applicant could have been eligible to challenge the exam at any time prior to his termination. To quote from the Applicant's factum, "The Board's conclusion that the applicant was terminated for cause was patently unreasonable as it was clearly based on a wrong premise that the Applicant was refusing to write the exam when the facts established that he was not meeting the criteria for the right to challenge the exam".
[25] The Applicant puts much emphasis on the letter previously quoted (paragraph 12) from the Ministry of Training, Colleges and Universities dated October 30, 2001, according to which he would have to demonstrate that he has acquired the remaining number of hours of steamfitting experience before he could be allowed to challenge the exam. Counsel for the Applicant contends that the employer was in fact forcing Mr. Jamieson to do something wrong and illegal, and submits that the adjudicator chose to disregard the law and the evidence from the Ministry in condoning the employer's decision to terminate his client.
[26] This argument is flawed for two reasons. First of all, it is at odds with the evidence that was put before Mr. Tarte, in that his behaviour throughout does not demonstrate a genuine preoccupation with the requirements set out in the provincial legislation. Secondly, even if the applicant was to be taken to his words, the adjudicator was entitled to conclude that Mr. Jamieson was eligible to challenge the exam.
[27] As to the first point, the evidence seems to suggest that the Applicant disagreed with the relevance of cross-qualification all along, and expressed his opinion that there was no need for him to qualify as a steamfitter as there was enough plumbing work to keep him busy. This contradicts his evidence that he refused to write the exam only because he believed that he did not have the relevant qualifications.
[28] More importantly, the Applicant did write the exam in the summer of 1999, and he admitted that he knew by then that cross-qualification was mandatory. His explanation for taking the exam was that he did not know at the time that he did not meet the qualifications, and that he needed 4,000 hours of relevant experience.
[29] Finally, the employer certainly went to great length in making every reasonable effort to provide the necessary training to Mr. Jamieson, and showed considerable patience in trying to accommodate the Applicant despite the fact that he consistently failed to abide by the various deadlines that were given to him and never actively sought the training that would have enabled him to complete successfully the exam.
[30] On that basis, combined with the fact that all the other plumbers working at CFB Kingston had successfully passed the steamfitting exam, the adjudicator was certainly entitled to find that Mr. Jamieson was not cooperative and "resisted any attempt to move him along, putting up obstacles at every opportunity". This conclusion is borne out by the facts that were before him, and in accordance with the deference owed to the Board on the patently unreasonable standard, the decision should not be disturbed.
[31] As for Mr. Tarte's finding that the Applicant was qualified to take the exam and had the requisite hours of relevant experience, it is clear from a careful reading of his decision that he did turn his mind to the relevant provincial legislation and reached the conclusion that the employer was right in its assessment that he met the relevant qualifications. It must be remembered that Mr. Tarte was not asked to decide, strictly speaking, whether Mr. Jamieson did in fact meet the requirements of the provincial legislation to be able to write the exam, but rather to pronounce on the existence of a cause sufficient to provide for the termination of Mr. Jamieson's employment, pursuant to s. 11(2)g) of the Financial Administration Act.
[32] There was sufficient evidence to allow Mr. Tarte to conclude that Mr. Jamieson met the requirements of the provincial legislation, and he certainly turned his mind to that point in his ruling. For instance, in a letter written to Mr. Jamieson by the Engineering Services Officer on September 2, 1999, it is stated that "I am now in a position to confirm to you that the Ontario Ministry of Education and training (the licensing authority), as well as Local 221 of the plumber and steamfitter's union, is in full support of our approach to the certification of our plumbers as steamfitters".
[33] Following Mr. Jamieson's affidavit sent to the Ministry of Education and Training of Ontario dated December 7th, 1999, whereby he declared that he had not worked on any steamfitting tasks while being employed as a plumber with DND, the Engineering Services Officer wrote back to the Ministry to indicate that "since 1996 to present, Mr. Jamieson's work history has been duly recorded by daily labour vouchers, work orders and overtime sheets, to reflect hundreds of hours of assigned steam related tasks. In addition, his supervisor attests that he successfully completed steam related assignments prior to 1996".
[34] Mr. Tarte also relied heavily on Mr. Telford's testimony, according to which there are numerous similarities between the plumbing and steamfitting trades. Mr. Telford, who is qualified both as a steamfitter and as a plumber, who has been in the industry for 27 years, and who was the Apprenticeship and Training Coordinator of the Local Union 221, was of the view that any trade person who has worked at the plumbing trade for as long as Mr. Jamieson has, would without a doubt qualifies to challenge the steamfitter exam.
[35] It is worth mentioning that this evidence does not appear to have been contradicted by the Applicant, who apparently agreed with the evaluation done by Mr. Telford of the generic elements between the plumbing and steamfitting trades (see par. 45 of Mr. Tarte's ruling).
[36] Finally, the adjudicator quoted part of the letter sent by the Ministry of Training, Colleges and Universities on October 30, 2001 (reproduced in paragraph 12 of these reasons), according to which it is not "implicit" that an individual who has worked as a plumber for 19 years would necessarily have acquired the required hours of steamfitting experience. While the letter understandably goes on to stress that the Ministry would want to ensure "that the individual was in fact doing tasks common to plumbing and steamfitting during those 19 years", it clearly leaves the impression that it would be "uncommon" for a licensed plumber not to do work that is generic both to plumbing and steamfitting. By referring to a licensed plumber who has worked exclusively on plumbing administrative work to illustrate this possibility, the Ministry did in fact provided (albeit ex post facto) further vindication to the employer's and the adjudicator's finding that Mr. Jamieson did not fall into these exceptional cases.
[37] On the basis of the foregoing evidence, combined with the fact that all the other plumbers at CFB Kingston had successfully completed the steamfitting exam (which is further proof that the Ontario Ministry considered that an experienced plumber like Mr. Jamieson had the necessary prerequisites to take the steamfitter exam), the adjudicator could certainly come to the conclusion that the employer's decision to terminate Mr. Jamieson's employment was justified, according to s. 11(2)(g) of the Financial Administration Act. The fact that the Ontario Ministry of Training, Colleges and Universities could have decided, at the end of the day, that Mr. Jamieson could not take the exam, was immaterial provided that the employer acted in good faith in requiring his employee to comply with the requirement to cross qualify as a steamfitter as well as a plumber.
CONCLUSION
[38] As a result, this application for judicial review is dismissed, without costs.
(s) "Yves de Montigny"
Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-39-03
STYLE OF CAUSE: MICHAEL JAMIESON v. THE ATTORNEY
GENERAL OF CANADA
PLACE OF HEARING: OTTAWA
DATE OF HEARING: FEBRUARY 15, 2005
REASONS FOR ORDER : de MONTIGNY, J.
DATED: MARCH 24, 2005
APPEARANCES:
MIREILLE J.S.M. LANDRY FOR THE APPLICANT
JENNIFER CHAMPAGNE FOR THE RESPONDENT
SOLICITORS OF RECORD:
CABINET JURIDIQUE LANDRY FOR THE APPLICANT
OTTAWA, ONTARIO
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
DEPUTY ATTORNEY GENERAL
OF CANADA