Date: 20050602
Docket: T-349-03
Citation: 2005 FC 801
Toronto, Ontario, June 2nd, 2005
Present: The Honourable Madam Justice Heneghan
BETWEEN:
DEBBIE COTE
Applicant
and
ATTORNEY GENERAL OF CANADA and
TREASURY BOARD
(SOLICITOR GENERAL CANADA - CORRECTIONS BOARD)
Respondents
REASONS FOR ORDER AND ORDER
INTRODUCTION
[1] In this application Debbie Cote (the "Applicant") seeks judicial review, pursuant to the Federal Courts Act, R.S.C. 1985, c. F-7, as amended, of the decision of Ms. Francine Chad Smith, Q.C., an Adjudicator of the Public Service Staff Relations Board (the "Adjudicator"). In her decision, dated December 11th, 2002 the Adjudicator dismissed the Applicant's grievance against the termination of her employment in the Federal Public Service. In this application, the Applicant seeks an order setting aside the Adjudicator's decision and referring the matter back to a different Adjudicator for re-determination.
BACKGROUND
[2] The Applicant began her employment with the Correctional Service of Canada (the "CSC") on July 30th, 1996, as a secretary to the Regional Administrator of Finance, at Regional Headquarters Pacific. On March 23rd, 1998, she accepted a position as a DP-03 Program Delivery Officer in the Pacific region and worked in several locations, including Elbow Lake Institution, Ferndale Institution, Kent Institution, Sumas Centre, Matsqui Institution, and Mountain Institution. She was a Program Delivery Officer ("PDO") working in the substance abuse program. Her duties involved provision of instruction and counselling to inmates dealing with substance abuse issues.
[3] In July 2000, a disciplinary investigation was begun by the CSC to explore certain allegations that the Applicant had been involved in an inappropriate relationship with Inmate X. At that time, Inmate X had been transferred involuntarily from Ferndale Institution to Matsqui Institution. During an interview at Ferndale, Inmate X said that he was able to disclose important information concerning staff members at Ferndale Institution. Subsequently, Inmate X said that a staff member at Ferndale was "having sex with inmates" but refused to provide further details until he was returned to Ferndale.
[4] On July 14th, 2000, Inmate X was interviewed by two employees of CSC. At this time, Inmate X provided "detailed information" about his alleged relationship with the Applicant between September and December 1999. A further interview took place with Inmate X on July 17th. At that time, he was asked to provide more details about his allegations, in particular, the allegation concerning his meeting with the Applicant at the Pan Pacific Hotel in downtown Vancouver on October 31st, 1999.
[5] Subsequent to these interviews with Inmate X, a disciplinary investigation was convened on July 24th, 2000, to further explore the allegations that the Applicant had engaged in an inappropriate relationship with Inmate X. The Applicant was suspended without pay, effective July 25th, 2000, pending the outcome of the disciplinary investigation. The chronology of events leading up to her suspension is set out in the Disciplinary Investigation Report prepared by Mr. John Eno, the Applicant's supervisor and Ms. Mary Danel, Deputy Warden, dated August 11th, 2000. In the course of preparing that Report, various personnel with CSC were interviewed, either in person or by telephone. The Applicant was interviewed twice in connection with this disciplinary investigation. Inmate X was interviewed once. Mr. Michael Nicholson, Program Officer with CSC, was interviewed by telephone. Ms. Brenda Lam, Acting Director of Sumas Centre, Ms. Danielle Fortier, an employee of CSC and the IPO assigned to Inmate X while he was at Ferndale Institution, and Ms. Jilles Hummerston, IPO at Elbow Lake Institution who had provided the original training to the Applicant, were also interviewed.
[6] In the course of being interviewed for the purposes of this investigation, the Applicant was directly asked about the nature of her relationship with Inmate X, including the amount of time she had spent with him, her involvement with him, absences from the Institution, meetings with him in downtown Vancouver including Stanley Park, and whether she had met him in her hotel room at the Pan Pacific Hotel in downtown Vancouver on October 31st, 1999. The Applicant was also questioned about telephone contact with Inmate X.
[7] The Applicant provided details about her interactions with Inmate X at the Institution and outside the Institution, while on escorted passes. She, however, denied that she was engaged in an inappropriate sexual relationship with him and that Inmate X had been in her room at the Pan Pacific Hotel on October 31st, 1999. She denied, as well, that she had driven him back to Maple Ridge, a suburb of Vancouver, around 11 p.m. that night. The Applicant stated that the only person in her room at the hotel the night in question was Mr. Nicholson who came to her room between 10:30 and 11 p.m. staying until 2 - 2:30 a.m., talking and watching television. According to Mr. Nicholson, they also drank black Sambuca.
[8] During her second disciplinary investigation, the Applicant was specifically questioned about certain events relating to October 31st. She was asked about her statement, during her first interview, that she had left the hotel on Sunday evening for the purpose of going to McDonalds to get something to eat. Parking receipts were produced and shown to the Applicant and she was questioned about the fact that the times on the parking receipts did not correspond with the times that she had said that she had been out of the hotel. The parking receipts showed that she had left the hotel later than she said and these later time frames contradicted her earlier statements that once having returned from McDonalds, she did not leave the hotel again that night. During the second interview, the Applicant was unable to offer an explanation why the parking tickets showed times that did not correspond with her earlier statements.
[9] During the second interview, the Applicant was also asked about discrepancies between her first statement and the statement provided by Mr. Nicholson. In his statement Mr. Nicholson said that he had been in the Applicant's room for only 45 minutes; this was a significant difference from the Applicant's account when she said that he had been there for some several hours. Mr. Nicholson said that he had been there for 45 minutes to an hour between 10 and 10:30 p.m. When this difference in accounts was put to the Applicant, she was unable to explain the difference. The parking ticket shows that the Applicant left the hotel after 11 p.m. and did not return until 1 a.m. the next day.
[10] In the course of carrying out this investigation, Mr. Eno and Ms. Danel conducted a thorough review of the telephone records for the Applicant's work cell phone, her institutional travel record, related unescorted temporary absence permits and work release permits pertaining to Inmate X, the Institutional Officer Manager System (the "OMS") information, as well as viewing the particular room at the Pan Pacific Hotel where the Applicant stayed on October 31st, 1999. The Disciplinary Investigation Report, dated August 11th, 2000, made the following findings:
1. that it is more likely than not that Offender X was present in the Applicant's hotel room on the night of October 31st, 1999;
2. the continuing frequency of contact between the Applicant and Offender X, both in person and through the use of her CSC cell phone, was seen to be inappropriate;
3. the Applicant's use of her CSC cell phone to contact Offender X was seen to be inappropriate; and
4. the Applicant's failure to disclose information relating to Offender X was seen as inappropriate.
The Report concluded that the Applicant's behaviour amounted to the breach of the standards of professional conduct.
[11] The Applicant was provided the opportunity to respond to this Report and presented a written reply dated September 5th, 2000. She took issue with the conclusions drawn by the investigating team and expressed her disagreement with the ultimate conclusion reached. Both the Disciplinary Investigation Report and the Applicant's response to it were submitted to the Assistant Deputy Commissioner of Operations, Ms. Heather Bergen.
[12] In a letter dated September 21st, 2000, Ms. Bergen decided to terminate the Applicant's employment, pursuant to paragraph 11(2)(f) of the Financial Administration Act, R.S.C. 1985, c. F-11, as amended, on the grounds that she had entered into an unauthorized relationship with Inmate X. The dismissal letter provides, in part, as follows:
. . .
Based on the information available to me, I have concluded that you have in fact violated the CSC Code of Discipline and Standards of Professional Conduct by entering into an inappropriate relationship with an offender incarcerated in the Pacific Region.
Representations made in your defense at our September 5, 2000 and September 11, 2000 meetings as well as your written submission did not in my view reduce the weight of evidence contained in the above mentioned investigation report, nor did it provide me with any circumstances which may have mitigated in your favour.
I am satisfied on the balance of probability, you have entered into an unauthorized relationship with offender X [name omitted]. A professional relationship means loyalty to the values, ethics and standards of the Correctional Service of Canada. Staff must be diligent in their responsibility to record and make available for review all offender information, which could contribute, to sound decisions affecting the offender or public safety. Your actions not only jeopardized the offender's safety but the safety of the Public as well. I am satisfied that as a result of your behaviour you have rendered yourself incapable of performing your duties with CSC because you have violated the trust that we require to manage offenders in an appropriate manner. In essence, the trust so vitally important between management and correctional staff in a correctional environment has been violated to the point that it cannot be restored.
Based on the foregoing and in accordance with Section II of the Financial Administration Act I have no alternative but to terminate your employment in the Correctional Service of Canada as of July 25, 2000.
. . . [emphasis in original]
[13] The Applicant pursued the grievance process provided under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the "PSSRA"). Her grievances, up to the final level, were dismissed. She then sought adjudication pursuant to section 92(1)(b) of the PSSRA. The hearing before the Adjudicator began on August 27, 2002. The Applicant and Inmate X testified as well as other witnesses. A number of exhibits were entered in the proceedings before the Adjudicator, as well as the Disciplinary Investigation Report of August 11th, 2000 and the Applicant's response to that Report. The Adjudicator's Decision was issued on December 11th, 2002, upholding the dismissal of the Applicant and dismissing her grievance.
[14] The Adjudicator found that the employer, that is CSC, had discharged its onus of proof by showing the alleged facts on a preponderance of evidence. She rejected the Applicant's evidence, doubted her credibility and largely adopted the evidence of Inmate X and the Applicant's supervisor, as corroborated by the objective evidence.
[15] Although the Adjudicator examined the possibility that the Applicant did not have specific knowledge of the Code of Discipline and Standards of Professional Conduct, she concluded that the evidence showed that incident reports and sharing of information were a significant duty for all employees who had direct contact with inmates. As well, she noted that the Applicant had given evidence of her high degree of initiative and the general training she underwent and on these grounds, concluded that the Applicant was sufficiently notified of the Code of Discipline and Standards of Professional Conduct.
[16] The Adjudicator did not accept the Applicant's explanations that because she was not advised of the Code of Discipline and Standards of Professional Conduct, mitigating factors should lead to the imposition of a reduced penalty. Here, the Adjudicator found that the Applicant's actions amounted to conduct which was fundamentally and inherently wrong and that she need not be apprised of the formal policies to appreciate that her conduct was incompatible with her duties and responsibilities of employment. As well, the Adjudicator found that the Applicant's conduct was repetitive and continued notwithstanding concerns by her supervisor that she maintain an appropriate distance from inmates and not become, or be perceived as becoming, too familiar with them. The Adjudicator concluded that the relationship between the employer and the Applicant was irreparably disrupted and that any possibility of rehabilitation was illusory.
[17] The substance of that decision and the Adjudicator's factual findings are as follows:
a). The grievor failed to make required reports regarding her work-related dealings with Inmate X;
b). The grievor's interactions with Inmate X, whether by telephone or in person, were excessive and exceeded professional requirements, and she failed to make reports reflecting these dealings;
c). Contrary to her supervisor's express instructions, the grievor accompanied Inmate X on an escorted pass and met with Inmate X for reasons unrelated to the duties and responsibilities of her employment;
d). Inmate X was in the grievor's hotel room on October 31, 1999. While I was not readily willing to accept the testimony of Inmate X over that of the grievor, his version of the events was consistent with objective evidence contained in the telephone records, the parking receipts, and the details of the room occupied by the grievor including the view from the room. His evidence was also consistent with the evidence of Mr. Nicholson. Furthermore, I found the grievor's evidence was not credible in many instances, particularly with respect to the reasons she spent time with Inmate X outside her employment duties and responsibilities, and with respect to what transpired on those occasions. My concerns with respect to her credibility were reinforced by her failure to submit written reports with respect to those activities and her failure to advise other employees, particularly Inmate X's parole officer and her supervisor, Mr. Eno;
e). The grievor failed to maintain a suitably professional relationship with Inmate X;
f). The grievor conspired to breach the terms and conditions of Inmate X's release, or condoned Inmate X breaching the terms and conditions on at least two occasions. Those occasions were when she met him in Vancouver while he was on the work release program and then when she met him at the Pan Pacific Hotel;
g). The grievor's conduct vis à vis Inmate X was a marked departure from the standards outlined in the Professional Standards and demonstrated significant breaches of the Code of Discipline; and
h). The grievor's conduct in relation to Inmate X was highly inappropriate.
[18] The Adjudicator's Decision is dated December 11th, 2002. The hearing took place between August 27th and August 29th, 2002. Following the hearing, the Adjudicator wrote the Applicant's representative and counsel for the Respondent on September 13th, 2002, indicating that she wished to convene a teleconference call concerning the matter. That letter expressed the Adjudicator's concern regarding the potential negative impact her decision would have upon the Applicant's personal life and indicated that she wished to discuss suggestions counsel may have in order to assist in reducing the impact of the pending decision upon the Applicant and her husband who was also a correctional supervisor.
[19] The Adjudicator's letter provides in part as follows:
...
I have a concern regarding the potential negative affect of my decision upon Ms. Cote's personal life. As you will recall, she testified she was happily married to a correctional supervisor, and they had an 11-month old child. Having considered the issues and evidence, I have no doubt she was engaged in an inappropriate relationship (sufficiently unprofessional) with the prisoner in question, and that it is more probable than not that he was in her hotel room at the Pan Pacific Hotel. Beyond that, I am not certain that it is necessary to make a finding with respect to whether or not they engaged in sexual intercourse; however, even without so finding, the inference will be there.
Naturally, the foregoing findings will not permit me to send her back to work as a program delivery officer. But of course her husband will be at the work site(s) in the vicinity and will have to deal with the negative fallout.
...
[20] The Applicant received notice of the Adjudicator's Decision on January 10th, 2003 and commenced this application for judicial review on February 6th, 2003.
DISCUSSION AND DISPOSITION
[21] The decision here in issue is that of an adjudicator acting as a member of the Public Service Staff Relations Board. In Fraser v. Canada (Public Staff Relations Board), [1985] 2 S.C.R. 455, the Supreme Court of Canada described the analytical approach to be followed by an adjudicator and said the following at page 464:
It should be noted, at the outset, that the Adjudicator correctly directed himself according to the principles enunciated in Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768. In that case the Court said, at p.772:
The question for the adjudicator was whether the employer had just and sufficient cause to discharge the appellant. In deciding this question the adjudicator had three tasks before him. First, did the employee engage in the conduct alleged? Second, was the conduct deserving of disciplinary action on the part of the employer? Third, if so, was the offence serious enough to warrant discharge?
[22] The Adjudicator is vested with a broad mandate in conducting an adjudication pursuant to section 92(1) of the PSSRA, as discussed in McCormick v. Canada (Attorney General) (1998), 161 F.T.R. 82 (T.D.) at pages 85-86 as follows:
In determining the degree of deference which should be accorded to the adjudicator's decision, reference must be made to four factors: the specialized nature of the tribunal, whether a statutory right of appeal exists, the nature of the issue to be decided by the adjudicator, and the existence of a privative clause: Canada (Attorney General) v. Wiseman (1995), 95 F.T.R. 200 (F.C.T.D.), which held that the decision of the adjudicator, who was appointed pursuant to the PSSR Act, should be given "considerable or significant curial deference, particularly since it concerns a matter squarely within the scope of the arbitrator's jurisdiction and special expertise." Only decisions not supported by the evidence are subject to judicial intervention.
[23] The Supreme Court in Fraser, supra, also addressed the circumstances in which judicial intervention in an adjudicator's decision would be justified. At pages 464-465 of that decision those grounds are limited as follows:
A reviewing court, whether under s. 28(1)(b) of the Federal Court Act, or under the common law principles of judicial review, should not interfere with the decision of a statutory decision maker in a case such as this unless the statutory decision maker makes a mistake of law, such as addressing his or her mind to the wrong question, applying the wrong principle, failing to apply a principle he or she would have applied or incorrectly applying a legal principle. See Trans Mountain Pipe Line Co. v. National Energy Board, [1979] 2 F.C. 188 (C.A.), at p. 121; Canadian Lift Truck Co. v. Deputy Minister of National Revenue for Customs and Excise (1955), 1 D.L.R. (2d) 497 (S.C.C.), at p. 498; Dominion Engineering Works Ltd. v. Deputy Minister of National Revenue (Customs and Excise), [1958] S.C.R. 652, at p. 656; Hetex Garn A.G. v. Anti-dumping Tribunal, [1978] 2 F.C. 507 (C.A.)
[24] In my opinion, the Adjudicator in this case erred by asking herself the wrong question. I refer to paragraph 15 where she said as follows:
The most significant factual issue in the case appeared to be whether the grievor engaged in sexual relations with Inmate X. There were other inconsistencies in the evidence that were material in assessing matters of credibility and reliability. However, because the framework of the facts pertinent to the issues of the subject matter in issue was not in dispute, it shall be presented in a narrative form with matters pertaining to the significant controversial issue and other disparate evidence being specifically addressed as deemed appropriate.
[25] Later, in paragraph 57 of her decision, the Adjudicator declined to address this issue:
In light of the findings of fact outlined above, and in light of the discussion hereinafter, I find it is not necessary to decide this issue.
[26] The Adjudicator erred by identifying that which she considered to be the critical issue and then failing to address it. She was authorized to identify the issues; she was then obliged to analyse them. It is not the role of this Court, in an application for judicial review, to re-weigh the evidence and reach a conclusion.
[27] There are other problems with the Adjudicator's decision.
[28] The Adjudicator's findings of fact are vulnerable, in my opinion, in light of the letter of September 13, 2003 which forms part of the record. That letter raises questions as to whether she took irrelevant and extraneous factors into consideration when making her decision.
[29] As well, the Adjudicator made an ambiguous finding with respect to the Applicant's receipt and knowledge of the Code of Discipline and Standards of Professional Conduct. She said the following at paragraph 58:
The evidence did not clearly establish the grievor had received the Code of Discipline and Professional Standards, or that she had specific knowledge of them. However, it was clear from the evidence that incident reports and sharing of information was a significant duty for all employees who had direct contact with the inmates. In light of the grievor's own evidence about her high degree of initiative, and given the general training that she underwent, the fact she had been charged with the responsibility of training volunteers to take prisoners out on passes, the fact that she had general interaction with staff - including Inmate X's parole officer, and the fact she had completed some OMS training and used the OMS to obtain information regarding Inmate X, I can only conclude she had a sufficient understanding of the requirements of reporting and sharing information and the underlying reasons therefor.
[30] Reading these reasons, as a whole, I find that they are incomplete in more than one respect. In R. v. Sheppard, [2002] 1 S.C.R. 869, the Supreme Court of Canada commented on the necessity of a decision-maker providing "reasoned reasons". Although that decision was made in the context of criminal law and the Court, at page 880, said that there are significant differences between the criminal law adjudication process and that followed by administrative tribunals, ultimately the decision-maker is required to articulate a sound line of reasoning. The reasoning in that case can and has been applied in the administrative law context on a number of occasions; see Adu v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 693 (T.D.) (Q.L.).
[31] In the result, I conclude that the application for judicial review should be allowed and the matter remitted to a different adjudicator for re-hearing.
[32] In light of my conclusion, it is not necessary for me to comment upon the penalty imposed here by the Adjudicator.
ORDER
The application for judicial review is allowed, the decision of the Adjudicator is quashed and the matter is remitted to a different adjudicator. The Applicant shall have her taxed costs.
"E. Heneghan"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-349-03
STYLE OF CAUSE: Debbie Cote v. Attorney General of Canada et al.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: October 26, 2004 - Subsequent to hearing correspondence was received from Applicant dated October 29, 2004 and responses from Respondent dated November 1 and 4, 2004 - Direction rendered November 18, 2004
REASONS FOR ORDER
AND ORDER BY: HENEGHAN J.
APPEARANCES:
Mr. Chritstopher P. Dyson FOR THE APPLICANT
Mr. Eric Chapman
Mr. Richard E. Fader FOR THE RESPONDENTS
SOLICITORS OF RECORD:
Yearwood & Company
Surrey, BC FOR THE APPLICANT
John H. Sims, Q.C. FOR THE RESPONDENTS
Deputy Attorney General of Canada