Date: 20050524
Docket: T-1596-04
Citation: 2005 FC 734
BETWEEN:
ATTORNEY GENERAL OF CANADA
Applicant
and
DANIEL ISRAEL ASSH
Respondent
REASONS FOR ORDER
STRAYER D. J.
INTRODUCTION
[1] This is an application for judicial review of a decision of an adjudicator appointed under the Public Service Staff Relations Act (PSSRA) 1985, c. P-35, section 92 issued on August 11, 2004.
FACTS
[2] The respondent is a lawyer employed as a Pensions Advocate with Veterans Affairs Canada. Acting as such he had, between 1993 and 1996, assisted a Mrs. Maria Orn, the widow of a veteran, to obtain certain benefits. He had no contact with her after 1996. Mrs. Orn died on July 30, 2001. A few weeks after that Mr. Assh was informed that, a few weeks before her death, Mrs. Orn had once again revised her will and for the first time had provided for a bequest of $5,000 to Mr. Assh. It is not in dispute that Mr. Assh knew nothing of this until after Mrs. Orn's death.
[3] Mr. Assh promptly reported this bequest to his superiors, having regard to the "Conflict of Interest and Post-Employment Code for the Public Service". After the matter was discussed and reviewed Mr. Assh was ordered, by a letter from the Director General, Human Resources Division, of Veterans Affairs Canada to refuse the bequest. The letter stated:
Accepting a bequest of $5000 cannot reasonably be considered as a normal expression of courtesy. Acceptance by Public Servants of gifts or bequests from clients may raise some suspicion and result in the public view that preferential services may be available for a price, thus compromising the integrity of the Government. The public must accept that a Public Servant will provide equal services to all.
As a result of the above-mentioned reasons and by virtue of my authority under the Code, I must direct you to decline the bequest. . . .
Mr. Assh complied, returning an uncashed cheque to the executor.
[4] He grieved this decision and his grievance was unsuccessful at all levels. He then referred the matter for adjudication under section 92 of the PSSRA and at the same time commenced an application for judicial review of the final grievance decision. Counsel for the Attorney General of Canada confirmed that the proceeding for judicial review is simply in abeyance and the Attorney General accepts that that remedy can be pursued by the respondent should this present application determine that the adjudicator had no jurisdiction to deal with the matter under section 92.
[5] Before the adjudicator the Attorney General had taken the position that a grievance of this type could not be referred for adjudication. There is no dispute that the grievance was properly filed under section 91. It is common ground that with respect to section 92 the relevant provision is subparagraph 92(1)(b)(i) which would require, for the adjudicator to have jurisdiction, that there have been in respect of this employee "disciplinary action resulting in suspension or financial penalty . . . .". The applicant argued before the adjudicator, and before me, that there had been no disciplinary action resulting in a financial penalty: the respondent had followed the order of his superior and therefore provided no grounds for disciplinary action. The adjudicator noted that by section 33 of the Code an employee who does not comply with the Code "is subject to appropriate disciplinary action up to and including discharge". In her view it should not be necessary for an employee to breach an order before he can have recourse to adjudication. Since in her view it would be reasonable to expect that if the respondent had refused to return the bequest he would have been disciplined and some financial penalty would have been applied to him, this is sufficient to meet the criterion of "disciplinary action resulting in suspension or a financial penalty" as required for her to have jurisdiction under section 92 in this matter. She apparently so found on the basis of the following hypothesis:
. . . had the grievor elected to disregard the direction to return the bequest, his conduct would have been viewed as wrong, he would have most likely been disciplined, and his insistence upon his right to retain the bequest would most likely have resulted in the termination of his employment, or at the very least, a suspension. . . .
I take it from this that she was not assuming that the loss of the bequest was a "financial penalty" as such: she was basing her jurisdiction on, not an actual discipline action, but an apprehended discipline action. I assume she was equally basing it on an apprehended "financial penalty" resulting from that apprehended disciplinary action. For the purposes of this decision, however, it is not necessary to consider the penalty further.
[6] The adjudicator then proceeded to find that the retention of this bequest by the respondent would not conflict with the Conflict of Interest and Post-Employment Code for the Public Service. She took into account the size of the bequest in relation to the value of the estate, the fact that the testatrix had no children and had distributed her estate widely, the fact that Mr. Assh had had no contact with the deceased since 1996 and was completely unaware that he was mentioned in her will, the fact that he did not learn of the bequest until after her death thus making it impossible that he could act to her benefit in future, etc.
[7] The applicant seeks to set aside the adjudicator's decision on the basis that: (1) the adjudicator had no jurisdiction under section 92 as there was no "disciplinary action resulting in suspension or a financial penalty"; and (2) she erred on the merits of the case by finding no conflict with the Code.
ANALYSIS
Standard of Review
[8] The applicant asserts that, with respect to the adjudicator's decision concerning jurisdiction, the proper standard is correctness whereas with respect to her conclusions on the merits of whether there was a conflict of interest the standard would be patent unreasonability. The respondent agrees with the latter but says that with respect to the issue of jurisdiction the proper standard is reasonableness simpliciter.
[9] The criteria of the pragmatic and functional approach to standard of review must be considered. There is no privative clause as such in the PSSRA which may suggest less deference. The respondent instead argues that the whole scheme of that Act is designed to preclude enforcement by the courts. However sections 18 and 18.1 of the Federal Courts Act R.S.C. 1985 c. F-7 provide for judicial review. In any event the availability of judicial review is not per se determinative. More pertinent is the question of expertise. The PSSRB is recognized as having considerable expertise in the matter of federal public service employment relations and this should suggest more deference. The purpose of the legislation is to facilitate the effective administration of labour relations in the public service and this also suggests deference to the Board created to administer it. On the other hand the nature of the question involved here suggests a significant role for the Court. What is really involved is, in my view, a mixed question of fact and law applying the language of subparagraph 92(1)(e)(i) to the facts of this case to determine whether what is in question is "disciplinary action resulting in suspension or a financial penalty" thus giving the Adjudicator jurisdiction. I believe that the standard of review on the jurisdictional issue is thus reasonableness simpliciter.
[10] With respect to the merits of the case, namely whether there was a conflict of interest, the parties agree that the standard of review is patent unreasonability and I agree. This would require an assessment of events by reference to the Code which by its language invites, I believe, the application of the kind of expertise inherent in the Adjudicator with respect to the functioning of the public service.
Jurisdiction
[11] I have concluded that the decision of the Adjudicator that this matter came within the language of subparagraph 92(1)(b)(i) is unreasonable. In effect she concluded that, if a grievor could have been disciplined and could have been subjected to a financial penalty had he disobeyed the order to return the bequest, then his grievance can be treated as involving "disciplinary action resulting in suspension or a financial penalty". I believe that goes contrary to the actual language of the section as well as to the scheme of the Act. Subsections 91(1) and 92(1) provide as follows:
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91.(1) Where any employee feels aggrieved
(a) by the interpretation or application, in respect of the employee, of (i) a provision of a statute, or of a regulation, by-law, direction or other instrument made or issued by the employer, dealing with terms and conditions of employment, or
(ii) a provision of a collective agreement or an arbitral award, or
(b) as a result of any occurrence or matter affecting the terms and conditions of employment of the employee, other than a provision described in subparagraph (a)(i) or (ii),
in respect of which no administrative procedure for redress is provided in or under an Act of Parliament, the employee is entitled, subject to subsection (2), to present the grievance at each of the levels, up to and including the final level, in the grievance process provides for by this Act.
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92.(1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
(a) the interpretation or application in respect of the employee of a provision of a collective agreement or an arbitral award,
(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(i) disciplinary action resulting in suspension or a financial penalty, or
(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, or
(c) in the case of an employee not described in paragraph (b), disciplinary action resulting in termination of employment, suspension or a financial penalty,
and the grievance has not been dealt with to the satisfaction of the employee, the employee may, subject to subsection (2), refer the grievance to adjudication.
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91.(1) Sous réserve du paragraphe (2) et si aucun autre recours administratif de réparation ne lui est ouvert sous le régime d'une loi fédérale, le fonctionnaire a le droit de présenter un grief à tous les paliers de la procédure prévue à cette fin par la présente loi, lorsqu'il s'estime lésé :
a) par l'interprétation ou l'application à son égard :
(i) soit d'une disposition législative, d'un règlement - administratif ou autre -, d'une instruction ou d'un autre acte pris par l'employeur concernant les conditions d'emploi,
(ii) soit d'une disposition d'une convention collective ou d'une décision arbitrale;
b) par suite de tout fait autre que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses conditions d'emploi.
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92.(1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur :
a) l'interprétation ou l'application, à son endroit, d'une disposition d'une convention collective ou d'une décision arbitrale;
b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;
c) dans les autres cas, une mesure disciplinaire entraînant le licenciement, la suspension ou une sanction pécuniaire.
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It will be seen that subsection 91(1) allows an employee to grieve in respect of the interpretation of statutes or other instruments issued by the employer (such as the Code), a provision of a collective agreement or arbitral award, or as a result of any occurrence or matter affecting the terms and conditions of employment. Subsection 92(1) on the other hand is much narrower. It allows an employee who has unsuccessfully grieved under section 91 to refer to an adjudicator only, in respect of him, the interpretation or application of a collective agreement or arbitral award, or "disciplinary action resulting in suspension or a financial penalty" or termination of employment or demotion. This indicates that under section 91 there is a wide range of complaints that an employee may grieve concerning the application to him of statutes, regulations, or other instruments such as the Code. There are a myriad of possible complaints of this nature where such instruments affect the employee in his workplace. Many rules, if disobeyed, could lead to disciplinary action. But by section 92 it is clear that in respect of the interpretation and application of such instruments adjudication is only provided in respect of a limited field of grievances, namely those involving disciplinary actions resulting in suspension or a financial penalty or termination of employment or demotion. While counsel could provide me with no judicial authority on this subject in relation to the scheme of the PSSRA, I believe that is the obvious intent of subsections 91(1) and 92(1). For this reason I think that one must take subparagraph 92(1)(b)(i) to mean what it says, namely to refer to actual disciplinary action resulting in suspension or a financial penalty and not possible disciplinary action of this sort.
[12] Nor does this lead to any serious injustice. What it means is that once a grievance has been dealt with at the final level, and is not referable for adjudication, the grievor can seek judicial review in this Court of the final level grievance decision. This is not an illusory remedy. As was said by Evans J.A. in Vaughn v. Canada [2003] 3 F.C. 645 (C.A.):
136 Fourth, the availability of judicial review of an adverse final level decision on a grievance that cannot be referred to an adjudicator under section 92 provides external discipline for decision-makers, and brings an independent measure of quality control to both process and outcome. On an application for judicial review to the Trial Division under section 18.1 of the Federal Court Act, the Court can be asked to review the fairness of the administrative process, the rationality of material findings of fact, and the lawfulness of the decision or action in question.
On appeal the Supreme Court of Canada at [2005] S.C.J. No. 12 at paragraphs 38 and 39 recognized the legitimacy of a grievance process which did not always permit adjudication but allowed for judicial review of grievance decisions.
[13] The adjudicator appeared to justify her approach by reference to the maxim "obey now, grieve later" but seemed to interpret the phrase as reading "obey now, adjudicate later". In this she appeared to be influenced by private sector grievance and arbitration procedures under collective bargaining agreements and the provisions of provincial labour law. But it was open to the grievor here to obey and then to grieve and that is precisely what he did.
[14] It was unreasonable of the adjudicator to interpret the phrase "disciplinary action" as including possible disciplinary action or even probable disciplinary action. The only "action" taken here was the order from the Department for the respondent to return the bequest. That was like any other order which a superior might give to an employee which the latter might choose to obey even if unwillingly.
[15] In these circumstances it is not necessary for me to decide whether there was a "financial penalty" here in the forced return of the bequest. For present purposes it is enough to say that there could not have been a financial penalty "resulting" from disciplinary action as there was no disciplinary action.
Merits
[16] Having regard to the foregoing, it is not necessary or appropriate for me to review the decision of the adjudicator on its merits as in my view it was made without jurisdiction through an unreasonable conclusion as to the application of subsection 92(1). The merits of the case can be addressed on judicial review of the final grievance decision which, as I mentioned earlier, is in abeyance at the moment. Suffice it to say that nothing I have said in these reasons should be taken to suggest that the respondent would not have an arguable case on such judicial review.
DISPOSITION
[17] I will therefore order that the decision of the arbitrator of August 11, 2004 be quashed and the matter remitted back to the adjudicator for reconsideration in accordance with these reasons. No costs are awarded.
(s) "B.L. Strayer"
Deputy Judge
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1596-04
STYLE OF CAUSE: Attorney General of Canada v. Daniel Israel Assh
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: May 4, 2005
REASONS FOR ORDER: Strayer D.J.
DATED: May 24, 2005
APPEARANCES:
Mr. Neil McGraw FOR THE APPLICANT
Mr. Steven Welchner FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE APPLICANT
Welchner Law Office
Ottawa, Ontario FOR THE RESPONDENT