Date: 20031008
Docket: T-933-02
Citation: 2003 FC 1169
Ottawa, Ontario, this 8th day of October 2003
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
PRESENT:
LARRY De WOLFE
Applicant
- and -
CORRECTIONAL SERVICE OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
Introduction
[1] This is an application for judicial review of the decision of Doug Malanka, Appeals Officer ("Appeals Officer"), dated May 9, 2002, under the Canada Labour Code, Part II (the "Code"). The Code addresses issues of occupational health and safety and is applicable to employees in the federal public service pursuant to section 11(1.1) of the Financial Administration Act, 1985, R.S.C. c. F-11 (the "Act").
[2] The respondent did not object to the Court entertaining this application as though the application had been brought by Correctional officers James Schellenberg and Daniel Woods. It is obvious that Mr. De Wolfe was improperly named as the applicant in this proceeding. There is no dispute that the parties interested in and with standing to bring this proceeding are Correctional officers, James Schellenberg and Daniel Woods. Pursuant to Rule 103 of the Federal Court Rules, 1998,SOR/98-106, and in light of the misjoinder, I will grant an order amending the style of cause naming James Schellenberg and Daniel Wood as applicants in this proceeding and striking Larry De Wolfe as applicant. For the purposes of these reasons, Correctional officers James Schellenberg and Daniel Wood will be referred to as the "applicants".
[3] At the hearing of this application the parties also consented to have the name of the respondent changed from "Correctional Services of Canada" to the "Attorney General of Canada", and I will so order. For the purposes of these reasons, the "Attorney General of Canada" will be referred to as the "respondent".
Background
[4] On May 10, 2001, the applicants invoked their right to refuse work under part II of the Code at the Drumheller Institution (the "Institution").
[5] The applicants' refusal to work was based on a dissatisfaction with the staffing practice on living units 8 & 11 of the Institution. The applicants submitted that these units were understaffed in light of what they claimed to be increased tensions at the Institution due to threats made by inmates towards officers on May 9 and May 10, 2001. The Health and Safety Officer who investigated the refusal issued a Direction on May 14, 2001, ordering the Institution to take immediate measures to correct the under staffing issue, as it constituted a danger to correctional officers.
[6] The Correctional Service of Canada ("CSC") appealed the Direction on June 7, 2001, pursuant to subsection 146(1) of Part II of the Code. On August 14, 2001, Mr. Fader, counsel for the CSC, requested an oral hearing be held to deal with the appeal. On October 11, 2001, the Appeals Officer held a conference call to determine the date of the hearing. Mr. Larry De Wolfe, a correctional officer, employee and co-chair of the Joint Occupational Health and safety Committee ("JOSH") at the Institution, while asserting that he was not connected to a national union, and who did not consider himself a union advocate, nevertheless accepted to represent the Applicants at the hearing. He requested an early hearing date, while Mr. Richard Fader, counsel for the CSC, requested a later date. It was agreed that the hearing would be held on December 12, 2001, at Drumheller, since the Appeals Officer indicated his intention to take a view of the institution. During this conference call, Mr. De Wolfe indicated that legal counsel might be brought in for the hearing. Towards the end of the conference call, the Appeals Officer stated that he would be providing the parties a written confirmation of the decision to hold the hearing at Drumheller on December 12 at 9:00 a.m., and of the exact location where the hearing would take place.
[7] The appeal hearing was held on December 12, however, the location was changed to Calgary, not Drumheller, as previously indicated at the October 11 conference call. Messrs. De Wolfe, Wood and Schellenberg all claimed that they had not received written notification of the change until December 12, however in further testimony Mr. De Wolfe acknowledged that Mr. Wood had received his letter of notification two days before, on December 10. A letter of notification, dated December 4, 2001, was sent to Mr. Fader, counsel for the CSC, and copies of the letter sent to Mr. Fader were sent to the applicants at their work place, the Institution, and not to their home address. The evidence also shows the employer, the CSC, also received fax notification.
[8] On December 12, Mr. De Wolfe attended at Drumheller, not realizing that the hearing location had been changed to Calgary. The hearing had begun in Calgary at 9:00 a.m. Mr. De Wolfe eventually appeared at the hearing in Calgary at 12:30 p.m., claiming not to have received notice of the change of venue. By the time Mr. De Wolfe arrived at the hearing, counsel for the CSC had already adduced witnesses and conducted his direct examination in the absence of Mr. De Wolfe. The Appeals Officer, recognizing that there may have been a problem with notice, provided Mr. De Wolfe with taped recordings of what had occurred at the proceedings prior to his arrival. The recordings proved to be "a bit hard to hear" and at times "were very muffled". The following morning, Mr. De Wolfe objected to the course the hearing was taking and asked that the hearing be restarted from the beginning. Counsel for the CSC objected on the grounds that the two applicants had been given the opportunity to present evidence and they had not chosen to do so. Ultimately, it was agreed that Mr. De Wolfe would be provided with notes prepared by the Appeals Officer on what had transpired at the hearing up to the time Mr. De Wolfe arrived. The hearing recessed for an hour to provide Mr. De Wolfe an opportunity to review the notes, and then resumed. Mr. De Wolfe was given full opportunity to cross-examine witnesses and call witnesses of his own.
[9] The Appeals Officer decided on May 9, 2002 that a danger did not exist for the applicants and revoked the Direction issued by the Health and Safety officer.
[10] On June 19, 2002, the applicant filed an application for judicial review, on the grounds that the Appeals Officer erred in his interpretation of section 128 of the Code, and that he failed to observe the principle of procedural fairness.
Appeals Officer's Decision
[11] The Appeals Officer determined that the issue to be decided was whether a potential condition existed that constituted a danger under the Code for the applicants. He determined that the dangers described by the applicants, namely inmate threats and increased tensions in the Institution, were speculative in nature and that there was no evidence to support the alleged threat of inmate attack in the past or the future and that the assertion was hypothetical.
[12] The Appeals Officer first dealt with the issue of threats made by inmates. He found that there was no persuasive evidence that the inmates were about to act on their threats at the time of the refusal to work, or at a later date. He therefore found that the threat remained hypothetical or speculative.
[13] The Appeals Officer found no evidence to confirm that tensions were unusually high on the day of the refusals to work. The incident reports did not describe such conditions, nor did the testimonies of Mr. Goruik and Mr. Yemen, two officers with more experience than the applicants, who described the tension levels on the night in question as normal.
[14] The Appeals Officer determined that the staffing for units 8 and 11 on the night in question was consistent with past practice at the Institution. Deputy Warden Goruik claimed that assigning three officers to the unit was consistent with the post order and that this interpretation and practice had been in effect without incident for 20-30 years at the Institution. As such, the Appeals Officer was not persuaded on the evidence that this longstanding practice constituted a potential hazard on the evening in question that could reasonably be expected to cause injury before it could be corrected.
[15] For the above reasons, the Appeals Officer found that a danger under the Code did not exist for the applicants and rescinded the direction that Health and Safety Officer Campbell issued to the Institution on May 14, 2001.
Issues
[16] The applicants raise two issues on judicial review. The first issue is whether the Appeals Officer breached the rules of procedural fairness. The second is whether the Appeals Officer's decision should be set aside on the grounds that it is unreasonable. In light of my conclusion, the failure to provide proper notice vitiated the proceeding, I need not address the second issue.
Analysis
[17] The applicants submit that the Appeals Officer failed to fulfil his duty of procedural fairness when he proceeded to hold the appeal hearing notwithstanding the inadequate notice of hearing. The applicants argue that they did not receive proper notice of the appeal hearing, were not informed of the case to be met on appeal, and did not have the opportunity to participate effectively in the appeal hearing, ie., to attend the entire hearing and to seek representation.
[18] The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, in discussing the principles underlying the duty of procedural fairness, wrote that: "...the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision.". Though procedural fairness is variable, and must be decided in the context of each case, an application of the Baker criteria for procedural fairness shows that the parties should have been given (1) notice of the issues on appeal and disclosure of any relevant documents; (2) written notice of the date, time and location of the hearing; and (3) a meaningful opportunity to present evidence and make submissions at the appeal hearing, as well as have the legal representation of their choice.
[19] The applicants submit that greater procedural protection should have been given for several reasons. Firstly, paragraph 146.2(h) of the Code states that once an Appeals Officer decides to hold an oral hearing, the officer shall give the parties an opportunity to present evidence and make submissions to the officer. While the Appeals Officer notified the employer's side by mail and fax, he only notified the employee's side by mailing a copy of the letter sent to the employer and informally by advising the National Vice-President of the Union, orally. Secondly, the Appeals Officer was acting judicially, and as the decision is final, greater procedural protections should be afforded. Thirdly, the importance of the decision to the applicants involved is great, as their reputations will be affected if it is determined that the work refusal was not justified. Finally, Mr. De Wolfe had a legitimate expectation to receive written notice of the hearing.
[20] The applicants submit that notice of the issues on appeal and disclosure of any relevant documents should have been given, especially as counsel for the CSC had access to a number of documents, such as observation books and logs. As the reputation of the applicants was at stake, a greater degree of disclosure was required.
[21] The applicants also submit that adequate notice of the date and location of the hearing was not given. The letters mailed to the applicants were dated December 4, 2001, and provided only eight days notice by regular mail, and shorter actual notice. The oral notice given by Mr. Wladyka, Director of Workplace Well-being for the CSC, to Mr. Langlois, National Vice-President of the Union was insufficient as Mr. Langlois was not involved in the hearing, and he was not informed of the change of venue to Calgary until the day before the hearing.
[22] Finally, the applicants submit that the arrangement made at the hearing was not a fair solution to the problem of the applicants' initial absence. The recordings of the proceedings were unclear, and neither Mr. De Wolfe, Wood or Schellenberg had time to listen and fully consider them. Mr. De Wolfe voiced his objections to continuing twice before finally agreeing to examine the Appeals Officer's notes and resume the hearing an hour later. It is the applicants' submission that Mr. De Wolfe's participation in the hearing did not constitute a waiver of their rights, as he was not chosen as their representative. The lack of notice deprived the applicants of their right to the representation of their choice, the right to be present at the hearing and the ability to prepare. As such, the applicants were not afforded the appropriate level of procedural fairness demanded by the seriousness of the situation.
[23] The respondent submits that due to the statutory and factual context of the application for judicial review, the applicants were only entitled to a minimal level of procedural fairness, and the fairness afforded to them greatly exceeded what was required. As section 146.1 of the Code states that an appeal should be conducted in a summary way and without delay, such a non-adversarial inquiry into the decision of a safety officer should be afforded only minimal procedural fairness. Also, the decision will not have a great impact on the applicants, as asserted by Mr. De Wolfe as their right to refuse work in the future is not affected and a negative determination does not per se reflect the correctness of their decision to refuse work. (See Fletcher v. Canada (Treasury Board), [2002] F.C.J. No. 1541 (F.C.A.) (QL).
[24] The respondent advanced a number of arguments in support of its submission. Firstly, that the applicants' case hinges on the erroneous contention that Mr. De Wolfe was not their representative. The respondent argues that the record shows that Mr. De Wolfe acknowledged that he represented the applicants and that he was identified as such on a number of occasions. When asked in a conference call on October 11, 2001, if he would be representing the applicants, Mr. De Wolfe agreed that he would be, and he was identified in the safety officer's report as the employees' representative. He gave Terrel Roberts verbal notice to appear as a witness at the hearing, and a July 3, 2001, letter from the Appeals Office to Mr. De Wolfe and copied to the applicants, clearly identified Mr. De Wolfe as their representative. Further, Mr. De Wolfe acted as the applicants' representative at the hearing, cross-examining witnesses and calling his own, as well as making a closing statement. Hence, as the applicants had the opportunity to retain counsel and clearly chose Mr. De Wolfe, any dissatisfaction felt by the applicants should be directed towards their representative agent, Mr. De Wolfe, and should not be the subject of a judicial review.
[25] Secondly, the respondent submits that the Code does not require any form of pre-hearing disclosure or particulars to be given. Regardless of this, the investigation report issued by the safety officer depicted the issues and legal requirements to be met, as well as the rights, recourses and prohibitions. The applicants received this report and were well-informed of the case to be met. A July 3, 2001, letter to Larry De Wolfe and the applicants informed them of the appeal that had been made, how to respond to that appeal, and a contact number to call if they had any questions. Hence, it is submitted that the applicant did have sufficient prior notice as to the nature of the case to be made.
[26] Thirdly, the respondent submits that there was no confusion over the date of the hearing. The date had been set during the October 11, 2001, conference call. Letters were mailed to all participants on December 4, even though the applicants denied receiving the mail before December 12, 2001. As a side note, Mr. De Wolfe identified Mr. Wood as having received his letter two days earlier, on December 10, thus he was aware of both the hearing date and new location. Furthermore, the respondent submits that even if an irregularity in the notice had occurred, it was cured at the hearing. The applicants had an opportunity to listen to a tape of the proceedings as well as read the notes of the Appeals Officer. They had full opportunity to call and cross-examine witnesses as well as make closing statements. Thus, the applicants suffered no disadvantage from their self-induced late arrival.
[27] Based on the above submissions, the respondent submits that there was no denial of procedural fairness and the applicants were permitted to participate in the proceedings in a meaningful way.
[28] At the outset, I find that the applicants' first argument, the contention that Mr. De Wolfe was not their representative, is without merit. The evidence clearly points to Mr. De Wolfe acting in a representative capacity for the applicants from the beginning. Further, the Code permits non-lawyer representation.
[29] I also find the applicants' argument that they did not have notice of the issues and disclosure of the relevant documents to be without merit. On this point, I am essentially in agreement with the respondent's submissions. The applicants did have notice of the case they had to meet.
[30] It is, however, apparent on the evidence that the applicants were not given proper or timely notice of the change of venue for the appeal hearing. Knowledge of the date of the hearing is not particularly useful information to a responding party when that party is not informed of the location of the hearing. What is abundantly clear from the evidence is that the Appeals Officer during the conference call held on October 11 set the time and place of the appeal hearing, December 12, 2001, at Drumheller. The Appeals Officer also undertook that he would, through his assistant, be providing Mr. De Wolfe a written confirmation of the decision to hold the hearing at Drumheller on December 12 at 9:00 a.m., and of the exact location where the hearing would take place. There is nothing in the evidence to explain why the Appeals Officer changed his mind about the location of the hearing. We do know, however, that the hearing did begin at 9:00 a.m. on December, 12, in Calgary, not at Drumheller. The respondent, having received faxed notification, on December 4, 2001, as well as written notification of the change of venue was represented by counsel. Mr. De Wolfe did not appear in Calgary, because he was not notified of the change of venue. His attendance at Drumheller on December 12, 2001, is consistent with his contention that he had not received notice to the change of venue. As a result, he was absent for a significant portion of the hearing when evidence was being adduced against the position of the applicants. Even if I were to accept that the applicants were only entitled to a minimal level of procedural fairness in the circumstances, I am of the view, that by failing to notify the applicants or their representative, in a timely manner of the change of venue for the hearing, the Appeals Officer failed to afford the applicants this minimal level of procedural fairness.
[31] Further, it is no answer to argue that the "so-called irregularities" in notice were cured at the hearing. I am of the view that when a decision is made to convene a hearing, then timely notice of the time and place of a hearing is fundamental to the principles of natural justice. Any other view would render the holding of the hearing pointless. Mr. De Wolfe, as representative of the applicants, had the authority to speak for them. However, in the circumstances, his reluctant participation in the proceeding cannot be taken as a waiver of the rights of the applicants to procedural fairness. Mr. De Wolfe clearly and repeatedly objected to the proceeding being conducted in his absence, and insisted that it begin again. I find that he proceeded at the hearing under protest. The time afforded the applicants to review the recordings and the Appeals Officer's notes was clearly inadequate. At a minimum, the proceeding should have been adjourned to allow time for the applicants to properly review the materials and prepare and, more importantly, to be present. I find the Appeals Officer's attempts to cure the lack of proper and timely notice in this matter fell short of the minimal requirement of procedural fairness.
[32] The respondent argues that the applicants were made aware of the change of venue indirectly. On this point there is nothing in the evidence to clearly indicate that Mr. De Wolfe was made aware of the change of venue before the hearing date. I question why he would have travelled to Drumheller, if he knew the hearing was proceeding in Calgary. I also question the timeliness of the written notice, particularly in the circumstances of a change in venue. Why was the notice only issued within seven days of the hearing when the conference call setting a firm date was held on October 11, almost nine weeks earlier? Moreover, the Appeals Officer elected to fax the employer on the same date the letter issued, but not the applicants. The circumstances surrounding the adequacy of notice are further aggravated, in my view, by the fact that the notices to the applicants consist of carbon copies of the letter sent to counsel for the employer. The applicants were issued no separate letters. Further, the letters in question were sent to the Institution, and not to the applicants' home. I do not accept the argument advanced by counsel for the respondent that the oral notice given to Mr. Langlois, National Vice-President of the Union, was adequate notice and would somehow correct the situation. I agree with the applicants that such notice was clearly insufficient in the circumstances.
[33] The efforts of the Appeals Officer at the hearing did not cure the deficient notice. I find that the Appeals Officer failed to fulfil his duty of procedural fairness when he proceeded to hold an appeal hearing without adequate notice of the change of location of the hearing to the applicants. In so doing, he denied the applicants their right to a fair hearing.
[34] The courts have consistently recognized that denial of a right to a fair hearing invariably renders a decision invalid. Even the absence of any real and present prejudice cannot remedy such an infringement. Mr. Justice Le Dain, writing for a unanimous Supreme Court in Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643 at p.661, stated:
..., I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing.
Conclusion
[35] For the above reasons, I find that the Appeals Officer failed to fulfil his duty of procedural fairness and, consequently, the applicants were denied a fair hearing. As a result, the appeal will be allowed, the May 9, 2002, decision of Appeals Officer Malanka will be quashed, and the matter will be ordered back for re-hearing before a different Appeals Officer. Given this determination, it will not be necessary, nor desirable, to consider the second issue dealing with the merits of the decision.
ORDER
THIS COURT ORDERS that:
1. The style of cause is amended by naming James Schellenberg and Daniel Wood as applicants and by striking Larry De Wolfe as applicant.
2. The style of cause is further amended by naming the "Attorney General of Canada" as respondent and striking "Correctional Services of Canada" as respondent.
3. The judicial review application of the decision of Doug Malanka, Appeal Officer, dated May 9, 2002, under the Canada Labour Code, Part II, is allowed.
4. The May 9, 2002, decision of Appeals Officer Malanka is quashed and the matter is ordered back for re-hearing before a different Appeals Officer in accordance with these reasons.
"Edmond P. Blanchard"
Judge
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: T-933-02
STYLE OF CAUSE: Larry De Wolfe v. Correctional Service of Canada
PLACE OF HEARING: Calgary, Albert
DATE OF HEARING: Wednesday, September 17, 2003
REASONS FOR ORDER BY: BLANCHARD, J.
DATED: October 8, 2003
APPEARANCES BY:
John R. Carpenter For the applicant
Mr. Ricahrd E. Fader For the respondent
SOLICITORS OF RECORD:
Chivers Kanee Carpenter For the applicant
101 - 10426 81th Avenue
Edmonton, Alberta T6E 1X5
Morris Rosenberg For the respondent
Deputy Attorney General of Canada
300 Laurier Avenue West
Ottawa, Ontario, K1A 0R5
FEDERAL COURT
Docket: T-933-02
BETWEEN:
LARRY De WOLFE
Applicant
- and -
CORRECTIONAL SERVICE OF CANADA
Respondent
REASONS FOR ORDER AND ORDER