Date: 20040531
Docket: T-141-03
Citation: 2004 FC 789
Ottawa, Ontario, the 31st day of May 2004
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
GUY LÉVESQUE
Applicant
and
THE ATTORNEY GENERAL OF CANADA
(CANADA CUSTOMS AND REVENUE AGENCY)
Respondent
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] Failure to admit admissible evidence necessitates a reconsideration of perspective. Justice is constantly on the lookout for allowable evidence: a window through which to see more clearly in all directions....
MAIN ISSUE IN THE JUDICIAL PROCEEDING
[2] This is an application for judicial review of a decision, dated March 3, 2003, by the board member sitting as a grievance adjudicator (the Board Member) under section 92 of the Public Service Staff Relations Act.[1]
FACTS
[3] In the specific circumstances, which are based on the interaction among certain individuals, this is a case that turns on its own facts, with particular evidence linked to an individual and to that individual alone.
[4] Throughout the relevant period, the applicant, Guy Lévesque, was an employee in the Canada Customs and Revenue Agency (the Employer) and part of the CS Group (Computer Systems Administration). He was covered by the collective agreement between the Treasury Board and the Professional Institute of the Public Service of Canada (the agreement).
[5] Towards the summer of 1999, Guy Lévesque was the subject of complaints by a project manager resulting from some confusion about the period during which the applicant could take his annual vacation. Following these complaints, the atmosphere deteriorated to the point that the applicant's health was affected. Mr. Lévesque began consulting a psychiatrist in October for purposes of treatment. The period of harassment by his superiors, he says, lasted from September to the end of October 1999.
[6] On October 13, 1999, the applicant filed a complaint of workplace harassment.
[7] A report based on an investigation by a private firm, made at the Employer's request, confirmed that the applicant had suffered harassment during the period in question.
[8] On account of these circumstances, Mr. Lévesque had to be absent on many occasions owing to sick leave, medical appointments or meetings with union representatives.
[9] Mr. Lévesque's psychiatrist advised him to take a leave of absence for a year to take care of his mental health problems. The psychiatrist contacted a staff relations officer with the Employer and described Mr. Lévesque's needs to him. The staff relations officer explained that it would be difficult to acquiesce to a request for a one-year leave but that the Employer would perhaps authorize a six-month leave.
[10] Mr. Lévesque, accompanied by a union representative, held discussions with the Employer in an attempt to settle his request. In April 2002, the Employer offered to reimburse the leaves taken by Mr. Lévesque from the commencement of the harassment period to March 31, 2001. However, from April 2002 on, Mr. Lévesque had to draw on his sick leave credits for any absence related to his health problems.
[11] Faced with the breakdown in the settlement discussions between the parties, Mr. Lévesque filed two grievances, one alleging that the Employer had refused to take appropriate corrective action in the wake of his harassment complaint, contrary to article 22 of the collective agreement, the other alleging that the Employer had refused his request for a six-month leave, in violation of clause 17.17 of the agreement.
[12] During the hearing on the grievances, the applicant's representative attempted to adduce as evidence a number of items, all designed to show bad faith on the part of the Employer. The Board Member refused to admit the evidence; he explained that a grievance should have been filed bearing specifically on the Employer's bad faith.
[13] During the cross-examination of a witness, Mr. Lévesque's representative attempted to file in evidence, through the witness, a document that had been sent to him. The Board Member ruled that it was impossible to admit this evidence since the witness had been called by the Employer.
BOARD DECISION
[14] The Board Member, in his decision, first disposed of the grievance based on article 22 of the collective agreement, noting in regard to the appropriate corrective action:
I must first decide on grievance 166-34-31394 related to article 22 of the collective agreement. This article deals with safety and health and talks about collaboration between the employer and the union to prevent or reduce the risk of employment accidents.
No evidence was submitted regarding the application of this article and I rule the grievance to be unfounded.[2]
[15] In regard to the second grievance, referring to a request for paid leave and based on clause 17.17 of the collective agreement, the Board Member concluded in the following words that the respondent's decision to reject the request for leave had not been unreasonable:
... In the circumstances, I believe that, in this case, the employer had reason to liken Mr. Lévesque's request to a request for additional sick leave and that it correctly applied clause 17.17.
It is quite clear, as I have already mentioned, that my role consists in determining whether the employer's refusal was justified, and that I cannot substitute my decision for the employer's. However, I find it unfortunate that the parties were unable to reach agreement.[3]
[16] Guy Lévesque is not disputing the decision on grievance 166-34-31394, but is only disputing the decision on the second grievance.
ISSUES
[17] What is the standard of review?
[18] Did the Board Member err in not admitting Guy Lévesque's evidence?
ANALYSIS
What is the standard of review?
[19] Guy Lévesque argues that in regard to the Board Member's failure to admit relevant evidence the standard of review is that of correctness; in regard to the Board Member's failure to consider certain relevant facts, the standard of review would rather be that of a patently unreasonable decision.
[20] The respondent, on the other hand, argues correctly that the question of the standard of review of decisions concerning the admission of evidence was decided in Teeluck v. Canada (Treasury Board).[4] In Teeluck, the trial judge held that "The decisions of adjudicators on evidentiary matters are not generally reviewable unless they are found to be patently unreasonable, or irrational."[5] The decision was upheld by the Federal Court of Appeal.
Did the Board Member err in not admitting Guy Lévesque's evidence?
[21] Clause 17.17 of the agreement reads: "At its discretion, the Employer may grant leave with or without pay for purposes other than those specified in this Agreement."[6]
[22] Mr. Lévesque's representative stated during the hearing that he had attempted to adduce as evidence a number of items for the purpose of establishing the Employer's bad faith when the latter reviewed Mr. Lévesque's application for leave under clause 17.17.[7] The representative declared: "[translation] Confronted with the objection of the Employer's representative to the admissibility of the evidence, the Board Member ... refused to let me file this evidence on the premise that another grievance on this issue should have been filed."[8] The respondent does not dispute this statement.
[23] Mr. Lévesque argues that the rejection of evidence tending to establish the Employer's bad faith in the application of its discretion, which was crucial not only in light of the relevant clause of the collective agreement but also in the context of the workplace harassment, constitutes an error.
[24] The respondent concedes that the question of bad faith in the exercise of the Employer's discretion is relevant in the particular context of clause 17.17 of the agreement. However, it argues, the Board Member did not err when he did not admit the evidence, since it was reasonable for the Board Member to decide that article 16 of the agreement already provides a comprehensive scheme applicable to a request for leave in relation to a sickness- or injury-related inability to work. This provision encompasses all situations of inability to work and provides exclusively for recognition of specific work-related accidents under clause 16.05. Leave for work-related accidents is specifically provided in clause 17.16 of the agreement. Clause 17.17 was not applicable and the question of bad faith in the exercise of the Employer's discretion was therefore not relevant.
[25] If one accepts this argument, the Board Member should have found that clause 17.17 was not applicable in the case of Guy Lévesque prior to the hearing and rejected the evidence on that ground. If, on the other hand, he was prepared to consider the application of clause 17.17, the evidence was admissible.
[26] The Court accepts Guy Lévesque's argument, conceded by the respondent, that the Employer's bad faith is relevant to the application of clause 17.17. The Court accepts Mr. Lévesque's argument that it is necessary to show that the Employer abused its discretion if an applicant is to meet the requirements of clause 17.17, and consequently that the evidence tending to demonstrate the Employer's bad faith was necessary. Certain situations exist in which it would be open to the Board Member not to admit evidence even if it were necessary. However, to dismiss evidence solely because the evidence could be used for other purposes is not an adequate reason. The Court concludes that the Board Member's decision not to admit the evidence was patently unreasonable.
[27] The respondent's argument is that even if the Board Member erred, this error is unimportant. If clause 17.17 is not applicable, the evidence would not have been relevant even if the Board Member had accepted it. However, if the Employer was acting in bad faith, this attitude would have tainted his decision as a whole, including the ruling that clause 17.17 was not applicable. Thus the Board Member had to determine whether the Employer was acting in bad faith if he was to arrive at a complete decision; he erred in not accepting the evidence on this point.
CONCLUSION
[28] The application for judicial review is allowed.
ORDER
THIS COURT ORDERS that the decision of the Board Member be set aside and that the matter be remitted to the Public Service Staff Relations Board for determination by another panel.
"Michel M.J. Shore"
Judge
Certified true translation
Suzanne Gauthier, C.Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-141-03
STYLE: GUY LÉVESQUE and
THE ATTORNEY GENERAL OF CANADA
(CANADA CUSTOMS AND REVENUE AGENCY)
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MAY 25, 2004
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR. JUSTICE SHORE
DATED: MAY 31, 2004
APPEARANCES:
Sean T. McGee and
Annie G. Berthiaume FOR THE APPLICANT
Hélène Brunelle FOR THE RESPONDENT
SOLICITORS OF RECORD:
NELLIGAN O'BRIEN PAYNE FOR THE APPLICANT
Barristers and Solicitors
Ottawa, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General
of Canada
Ottawa, Ontario
[1] R.S.C. 1985, c. P-35 (the Act).
[2] Applicant's Record, Decision of Board Member, Tab 2 at pp. 12-13, paras. 44-45.
[3] Decision of Board Member, supra, at p. 14, paras. 54-55.
[4] [2000] F.C.J. No. 1748 (QL) (F.C.A.), aff'd [1999] F.C.J. No. 1544 (T.D.).
[5] Teeluck, supra at para. 24.
[6] Respondent's Record, Agreement between the Canada Customs and Revenue Agency and the Professional Institute of the Public Service of Canada, Group: Computer Systems Administration (all employees), Tab A.
[7] Respondent's Record, Affidavit of Martin Ranger sworn April 30, 2003, Tab 3, at p. 17, para. 8.
[8] Affidavit of Martin Ranger, supra, at p. 17, para. 9.