BETWEEN:
and
Heard at Ottawa, Ontario, on March 15, 2006.
Judgment delivered from the Bench at Ottawa, Ontario, on March 15, 2006.
REASONS FOR JUDGMENT OF THE COURT BY: MALONE J.A.
Docket: A-577-05
Citation: 2006 FCA 117
CORAM: DÉCARY J.A.
SEXTON J.A.
MALONE J.A.
BETWEEN:
ATTORNEY GENERAL OF CANADA
Appellant
and
GRANT GALE
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on March 15, 2006)
[1] This application for judicial review arises by reason of the termination of the respondent, a correctional officer at the Saskatchewan penitentiary, due to a single incident of sexual harassment against another employee.
[2] In an earlier decision involving the present parties, this Court allowed the respondent's appeal on the grounds of procedural unfairness and quashed the August 17, 2001 decision of the adjudicator Joseph Potter (reported as 2004 FCA 13). The matter was remitted back to the adjudicator with the direction that he consider one specific piece of evidence which concerned the whereabouts of a third party on the day of the harassment incident and which Mr. Potter at the time of the hearing thought was of some consequence.
[3] In concluding that the evidence was entirely irrelevant, Mr. Potter did exactly what this Court asked him to do. He considered the evidentiary point and rendered a decision on July 16, 2004, again dismissing the grievance. While the language he uses is at times quarrelsome, this relates to his irritation with the Federal Court of Appeal in sending the matter back to him, rather than any feeling of bias against the respondent. We can see no basis on the record before the judge on which he could have concluded that there was a reasonable apprehension of bias against Mr. Gale (reported as 2005 FC 1503; order dated November 4, 2005).
[4] As to the judge's statement that the adjudicator 'failed to deal in a realistic manner with the evidence of Ms. Mardell's work location', the judge was clearly wrong. The adjudicator dealt with the evidence as follows at paragraph 43 and 44 of his second decision dated July 16, 2004:
Counsel for the employer stated:
The presence or absence of L. Mardell is a red herring, it is entirely irrelevant.
I agree. In my view, nothing in this matter hangs on the balance of whether L. Mardell worked that day in question or not.
(see Gale v. Treasury Board (Solicitor General of Canada) 2004 PSSRB 88)
[5] The issue was termination of employment under a collective agreement; a subject which is at the core of an adjudicator's expertise and which gives rise to the most deferential standard of review (see Public Service Alliance of Canada v. Her Majesty the Queen in Right of Canada, 2005 FCA 366 at paragraph 18). There is nothing in the record before us that would suggest that Mr. Potter's decision was "clearly irrational" or "not in accordance with reason" (Attorney General of Canadav. Public Service Alliance of Canada, [1993] 1 S.C.R. 941).
[6] We would allow the appeal, set aside the decision of the Federal Court judge dated November 4, 2005, and reinstate the adjudicator's decision dated July 16, 2004. The appellant should be awarded his costs on appeal.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-577-05
Appeal from an Order of the Honourable Justice O'Keefe dated November 4, 2005 in file T-1519-04
STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA
and
GRANT GALE
PLACE OF HEARING: Ottawa
DATE OF HEARING: March 15, 2006
REASONS FOR JUDGMENT OF THE COURT: (DÉCARY J.A., SEXTON J.A., MALONE J.A.)
DELIVERED FROM THE BENCH BY: MALONE J.A.
DATED: March 15, 2006
APPEARANCES:
Mr. Richard Fader FOR THE APPELLANT
Mr. Martel Popescul FOR THE RESPONDENT
SOLICITORS OF RECORD:
John Sims, Deputy Attorney General of Canada FOR THE APPELLANT
Ottawa, Ontario
Sanderson, Balicki & Popescul FOR THE RESPONDENT
Prince Albert, Saskatchewan