Date: 20050929
Docket: T-1943-04
Citation: 2005 FC 1288
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
- and -
VALMONT BABINEAU
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a grievance adjudicator's decision on October 4, 2004, in which the adjudicator allowed the respondent's grievance on the basis that he had been disciplined twice for the same offence.
* * * * * * * *
[2] On February 28, 2002, the respondent, a correctional officer working at Dorchester Penitentiary, was sent home "without pay" by a supervisor of Correctional Service Canada, for refusal to perform assigned duties.
[3] On April 4, 2002, a higher level unit manager, Dave Niles, imposed a written reprimand on the respondent for the same failure to follow an order on February 28, 2002. In his memorandum, Mr. Niles wrote:
After carefully considering the various mitigating circumstances presented to me by the investigating officer, as well as during the disciplinary hearing, I have concluded that an appropriate sanction for this incident of misconduct is a written reprimand.
This memorandum constitutes a written reprimand. It will be placed on your personnel file and remain on your file for two years.
(Emphasis is mine.)
[4] Subsequently, on April 19, 2002, another unit manager, Darrell Blacquiere, notified the respondent that pay action was being taken to recover eight hours by reason of his absence from work on February 28, 2002. Mr. Blacquiere wrote:
. . . In your case you were sent home from the workplace as a result of your refusal to perform assigned duties as required by your Correctional Supervisor.
On Thursday, 28 February 2002, you were absent from work for this reason. Accordingly, this memorandum will serve as notice to you that pay action is being taken to recover 8 hours in the form of Leave Without Pay.
[5] On May 21, 2002, the respondent grieved the April 4 and 19, 2002 measures on the basis that he had been disciplined twice for the same incident.
[6] The arbitrator heard the evidence and the parties and concluded that this was a classic example of two levels of management imposing separate penalties, in separate memos. She was satisfied that the respondent had been treated unfairly as he had been subject to "double jeopardy" and, therefore, allowed his grievance, directing the employer to reimburse his regular wages for the day of February 28, 2002.
* * * * * * * *
[7] Citing Ryan v. Canada (Attorney General), 2005 FC 65, [2005] F.C.J. No. 110 (QL), paragraph 18, the applicant submits that the standard of review applicable to decisions of grievance adjudicators appointed under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, is that of patent unreasonableness. I agree. Indeed, adjudicators enjoy a high level of expertise in the field of labour relations and deserve a high level of curial deference. In order for the Court to find the decision patently unreasonable, the decision must be clearly irrational (see Canada (A.G.) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at 963-964).
[8] In the case at bar, the applicant argues that the adjudicator's application of the "double jeopardy" rule is fundamentally flawed. The applicant accepts that labour arbitral jurisprudence has recognized that employers are generally not allowed to penalize an employee twice for the same offence (the applicant cites Donald J. M. Brown and David M. Beatty, Canadian Labour Arbitration, Third Edition (Aurora: Canada Law Book, Inc., 2004)). However, the applicant contends that this rule does not apply where the employer has imposed discipline temporarily based on the need to intervene immediately and, after investigation and meting out the proper sanction, imposes its final penalty (the applicant cites also Evans v. Treasury Board (Solicitor General), [1988] C.P.S.S.R.B. No. 341).
[9] The applicant further contends that the rule against "double jeopardy" only applies once the employee has clearly been informed that the matter is formally closed and a final disciplinary decision has been taken, and that when the evidence established that no such clear indication has been made, no final decision can be inferred and the rule should not apply (the applicant cites Re Long Manufacturing Division, Borg-Warner (Canada) Ltd. and United Automobile Workers, Local 1256, 11 L.A.C. (2d) 395). The applicant concludes, therefore, that based on the evidence before her, the adjudicator could only conclude that a pending investigation led to the meting out of a final decision on the appropriate sanction imposed for the misconduct, namely, the loss of a day's pay and a written reprimand, not that "two separate" penalties were imposed.
[10] For his part, the respondent also agrees that the standard of review applicable in this matter is that of patent unreasonableness. He submits that the case law referred to by authors Brown and Beatty, supra, does not allow for an employer to impose two distinct penalties without notifying the employee that the first measure is temporary or, pending further investigation or final resolution. The arbitral case law allows for an employer to discipline temporarily and after investigation mete out the proper sanction. The respondent correctly alleges that the arbitrator noted that the facts in Evans v. Treasury Board, supra, established that the complainant was "suspended until the completion of an investigation".
* * * * * * * *
[11] Both the case law cited by Brown and Beatty and the explicit terms of the arbitrator allow for the two-step process to which the applicant refers. This course was and remains open to the employer if it so chooses, provided it informs the employee that the first step in the process is temporary or provisional pending the outcome of its investigation. In the present case, upon reviewing the evidence, I find that the adjudicator correctly concluded that "there is no evidence that Mr. Babineau was sent home pending an investigation". For his part, the applicant simply argues that the possibility of further investigation and more severe sanctions is implicit in such a situation of spontaneous reaction to perceived insubordination. On this determinative issue, the applicant has failed to satisfy me that it was patently unreasonable, i.e. clearly irrational, for the adjudicator to have required evidence that the respondent was sent home pending an investigation and not to have considered that, given the circumstances, the possibility of further investigation was implicit.
[12] Furthermore, whether or not the respondent was aware of further investigation is a pure question of fact. It is not incumbent upon this court to substitute its own appreciation of the facts for that made by an adjudicator when, like in the case at bar, the applicant fails to establish that the adjudicator based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C. 1985, c. F-7).
[13] I also find that the applicant's submission that "the rule against double jeopardy only applies once the employee has clearly been informed that the matter is formally closed and a final disciplinary decision has been taken" is not consistent with the case law and the Re Long Manufacturing decision, supra. To limit the application of the rule as the applicant submits to only apply once the employee is clearly informed that the matter is closed defeats the purpose of the "double jeopardy" rule by allowing an employer to impose a second penalty for the same offence by simply relying on the fact that it had never clearly stated that the initial measure was final.
[14] Finally, the first penalty, of which the respondent was duly notified, is that contained in the memorandum dated April 4, 2002, signed by unit manager Dave Niles, wherein it is stated that the "appropriate sanction" for the relevant incident of misconduct "is a written reprimand." The "leave without pay action" for the same incident of misconduct was taken and duly served as notice to the respondent a few days later, on April 19, 2002. In the circumstances, I find it was not patently unreasonable, i.e. clearly irrational for the adjudicator to conclude that this case "is a classic example of two levels of management imposing separate penalties, in separate memos, weeks after the conduct which gave rise to the discipline", and for the adjudicator to effectively quash the second penalty, in the latter memorandum of April 19, 2002, directing the employer to reimburse the respondent his regular wages for the day of February 28, 2002.
[15] For all the above reasons, the application for judicial review is dismissed, with costs.
JUDGE
OTTAWA, ONTARIO
September 29, 2005
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1943-04
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. VALMONT BABINEAU
PLACE OF HEARING: Halifax, Nova Scotia
DATE OF HEARING: September 7, 2005
REASONS FOR ORDER: PINARD J.
DATED: September 29, 2005
APPEARANCES:
Mr. Stéphane Hould FOR THE APPLICANT
Mr. John Mancini FOR THE RESPONDENT
SOLICITORS OF RECORD:
John M. Sims, Q.C. FOR THE APPLICANT
Deputy Attorney General of Canada
John Mancini FOR THE RESPONDENT
Montréal, Quebec