Date: 19991006
Docket: T-1825-98
OTTAWA, Ontario, this 6th day of October, 1999
PRESENT: THE HONOURABLE MR. JUSTICE MacKAY
BETWEEN:
DEORAJ TEELUCK
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by TREASURY BOARD
(Solicitor General - Correctional Service Canada)
Respondent
UPON application by the applicant for judicial review of, and for an order setting aside, the decision of an adjudicator, acting under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35, dated August 20, 1998, concerning a grievance of the applicant;
UPON this matter coming on for hearing in Fredericton, New Brunswick on June 16, 1999, when counsel for each of the parties was heard and decision was then reserved, and upon consideration of submissions then made;
ORDER
IT IS ORDERED that the application is dismissed with costs to the respondent as the parties may agree or as may be assessed on the usual party and party basis.
W. Andrew MacKay
JUDGE
Date: 19991006
Docket: T-1825-98
BETWEEN:
DEORAJ TEELUCK
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
as represented by TREASURY BOARD
(Solicitor General - Correctional Service Canada)
Respondent
REASONS FOR ORDER
MacKAY J.
[1] The applicant seeks judicial review of and an Order setting aside an adjudicator"s decision made on behalf of the Public Service Staff Relations Board, dated August 20, 1998. In that decision, the adjudicator ruled that the applicant was dismissed by Corrections Canada ("CSC") for just cause, and his grievance and its referral to adjudication were dismissed.
[2] The issues raised in this application for judicial review primarily concern the application of the appropriate the standard of review in relation to the adjudicator"s decision which upheld the employer"s determination to end Mr. Teeluck"s employment on finding that he had sexually harassed a fellow worker.
The facts
[3] The applicant was an employee at the Atlantic Institution, commonly known simply as Renous, a maximum security penitentiary located at Renous, New Brunswick, since it opened in 1986. On November 17, 1996, Mr. Teeluck was in charge of Unit 4, the segregation/dissociation unit. He had not been scheduled to work that particular assignment, but had traded assignments with another employee at the beginning of the shift. Ms. Karen Matthews (the "complainant"), had also traded duties with another officer to work in Unit 4 that day. It was unusual for the applicant and the complainant to be working together. Relations between them had been strained and they generally avoided working together. Another CSC employee, Mr. Jean LeBlanc, was also working at the Unit 4 post, which is only eight feet by ten feet.
[4] When Ms. Matthews arrived at the post in Unit 4 on November 17, 1998, the applicant noticed that she was not in regulation uniform. Her tie was missing and the top two buttons of her shirt were undone under her jacket. The applicant mentioned that she was not in regulation dress and the complainant responded that the shirt was chafing her neck. After a short exchange about allergies and rashes, the complainant went to the landing outside the post.
[5] When she returned to the unit and began to take off her jacket, she later claimed that the applicant rolled his office chair and moved to a position in front of her. The adjudicator"s decision (at page 5) records her account of the harassing incident as follows:
| She says, and Mr. Teeluck acknowledges, that he asked her: "What, you got books in your pocket?" She responds with: "What are you talking about?" She stops taking off her jacket. At that same moment, she says he raises both his hands and then cups and feels her left breast with his right hand and proceeds to squeeze her nipple with his thumb and forefinger. It lasted no more than one or two seconds. |
| She responded with indignation: "Don"t touch my tits! Leave my tits alone! Jean (Mr. LeBlanc), did you see that? He touched my breast!" She alleges that Mr. Teeluck then rolled his chair back and referred to the indication of her aroused nipples (protruding in the outline of her shirt): "I thought you must have liked it because there was nothing round there before". |
[6] Mr. Teeluck testified that while he had asked the complainant if she had books in her pockets, he contends that this was to call attention to her chest and to have the complainant look down to realize that her bra was showing. He says he wanted to indicate discreetly that she should button her shirt. He has maintained throughout that the events as described by Ms. Matthews did not happen and that he did not touch her.
[7] Soon after the alleged incident, the applicant left the office and the complainant asked Mr. LeBlanc if it looked like she had books in her pocket and whether he had seen the applicant touch her breast. LeBlanc said that he had not seen anything. He testified to this effect before the adjudicator, and also that he had not observed Mr. Teeluck move his chair and, though he knew the other two had been talking, he had not heard what was said.
[8] The next day, the complainant reported the incident to her supervisor, who made arrangements for her to see the Deputy Warden. She recounted her story and met with Mr. Deschênes, the institution"s psychologist, who later testified that she was very distressed at the time. She recorded her story in writing on the following day and she filed a written complaint on November 20, 1996.
[9] Six days after the incident, the applicant filed a sexual harassment complaint against Ms. Matthews in connection with the incident. He alleged that she subjected him to deliberate humiliation and embarrassment by conduct that was inappropriate and offensive by adjusting her shirt in an explicit way to humiliate him and to mock his discomfort.
[10] The warden of the institution called an investigation into the allegations of both the complainant and the applicant. In the course of the investigation, another employee at the institution, Ms. McMullin, came forward to allege a somewhat similar earlier incident with the applicant. She later testified before the adjudicator that in October 1996 the applicant blocked her path in the hallway and said "Is that a book in your pocket? Your tits look awful flat." She was carrying a small notebook in her shirt pocket and the applicant allegedly poked the notebook, pushing it against her breast. She did not report the incident or mention it to her peers, she testified. It was not until she heard rumours of the later incident involving Ms. Matthews that she told her supervisor of her encounter with Mr. Teeluck.
[11] The investigators of the complaints produced reports in the middle of January 1997, and on 3 March of that year the Warden of the Atlantic Institution terminated the applicant"s employment, by letter in the following terms:
| I have completed a full review of the Harassment Investigation of the complaint by Karen Matthews and the Disciplinary Investigation completed by Unit Manager, John Harris and Senior Personnel Advisor, Charlene Sullivan. You have received copies of both investigations. The Disciplinary Hearing was held, this date with your representative. I have responded to the issues you raised during this hearing. All the above information was taken into account in arriving at my decision. |
| Throughout the said investigations and including the Disciplinary Hearing you have consistently denied any involvement in the said sexual harassment of Ms. Matthews. You have not presented any mitigating circumstances. |
| I now find that you are guilty of sexually harassing Ms. Matthews on November 17, 1996, inside the penitentiary. This serious misconduct constitutes a major breach of the CSC Code of Discipline. |
| The Correctional Service of Canada has signed a "Zero Tolerance Policy on Harassment" with the Union of the Solicitor General Employees. You are aware, or ought to have been aware, of this policy. |
| I have carefully reviewed this misconduct and your employment record. Your behaviour has resulted in a situation in which I no longer have the confidence in your ability to maintain professional relationships with fellow employees. You are a peace officer and have sworn to uphold the law. Based on the above, I have concluded it is necessary to terminate your employment. |
| Therefore, by virtue of the authority delegated to me pursuant to Article 11(2) of the Financial Administration Act, I must inform you that I hereby terminate your employment with the Correctional Service of Canada effective 1500 hours, 03 March 1997. |
| You have the right, in accordance with your collective agreement, to present a grievance relating this action directly to the final level of the procedure.1 |
[12] That same day, the applicant filed the grievance considered by the adjudicator, which ultimately led to this application for judicial review.
Hearing of the adjudicator
[13] The hearing of the applicant"s grievance before the Public Service Staff Relations Board adjudicator was held in April, 1998. The adjudicator heard from a number of witnesses, including the applicant, the complainant, Mr. LeBlanc and the Warden of the institution. Also, the adjudicator heard from Ms. McMullin regarding her claims of a similar incident involving the applicant. Mr. Deschênes also testified, giving opinion evidence without being fully qualified as an expert before the tribunal.
[14] Some testimony and some evidence considered by the adjudicator is said by the applicant not to be allowable as evidence in a court of law and improperly considered by the adjudicator. For example, the adjudicator heard and considered that the applicant and Mr. LeBlanc had refused to submit to a "lie detector" test, while the complainant was willing to have such a test. The adjudicator read and considered the report written by the Correction Services investigators without hearing from all the witnesses whose accounts are contained therein in the form of unsworn statements.
[15] Following the hearing, the decision of the adjudicator, supporting the dismissal of the applicant and dismissing the applicant"s grievance was released on 20 August 1998.
Issues
[16] The applicant raises a number of issues, which I deal with in turn: the appropriate standard of review, the application of that standard in relation to the evidence considered by the adjudicator, the onus of proof on which the adjudicator based his decision, and his assessment of whether the penalty imposed by the employer, i.e., dismissal from employment, was appropriate.
Standard of review
[17] A necessary preliminary question in an application for judicial review of an administrative tribunal is that of the appropriate standard of review. Many administrative tribunals, and the Public Service Staff Relations Board in particular, are generally accorded significant deference on questions that are squarely within their jurisdiction and expertise. In Canada (Attorney General) v. Cleary2 Mr. Justice Rothstein, then of this court, held,
| The parties agree, as do I, that the standard of review from the decision of an adjudicator under the Public Service Staff Relations Act is patent unreasonableness. In other words, the error must be obvious. See Barry v. Canada (Treasury Board) (1997), 221 N.R. 237 at 239-240 (F.C.A.). |
[18] That reflects the standard earlier enunciated for review of decisions of the Board when its statute contained a privatice clause, by the Supreme Court of Canada in Canada (Attorney General) v. PSAC.3 In that case, Mr. Justice Cory, speaking for the Majority of the Court, said in part:
| ... Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly". "Unreasonable" is defined as "not having the faculty of reason, irrational, not acting in accordance with reason or good sense". Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test. |
| ... |
| It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational.4 |
[19] The repeal of the privative clause formerly found in its enabling statute does not mean that decisions of the Public Service Staff Relations Board are now more readily set aside. As said by Mr. Justice Bastarache for the Supreme Court in Pushpanathan v. Canada (Minister of Citizenship and Immigration),5
| the absence of a privative clause does not imply a high standard of scrutiny, where other factors bespeak a low standard. |
As the decision of Rothstein J. finds, relying upon the Court of Appeal, this Court has clearly recognized the high standard of deference to be accorded to the Board"s decisions on matters within its special expertise, as concerned the adjudicator in this case. The Court will not intervene unless it finds the decision patently unreasonable.
Evidentiary issues
[20] The applicant urges that in this case the adjudicator erred by considering evidence of various kinds which are not properly admissible in a matter as serious as this.
[21] Clause 92(1)(b)(ii) of the Public Service Staff Relations Act,6 gives disciplined employees the right to refer grievances to adjudication. The adjudicator appointed pursuant to section 93 of the Public Service Staff Relations Act has all the powers, rights and privileges of the Public Service Staff Relations Board, including that under paragraph 25(c), which provides:
| 25. The Board has, in relation to the hearing or determination of any proceeding before it, power ...
|
25. En ce qui concerne l'audition ou le règlement de toute affaire dont elle est saisie, la Commission peut_:
|
[22] Parliament has seen fit to give administrative tribunals, such as the adjudicator or the Board in this case considerable latitude to accept and hear evidence without getting tied up in objections and procedural wrangling. Such an arrangement is conducive to informal hearings where all relevant materials can be brought before the tribunal for expedited review.
[23] The special evidentiary provision of the Public Service Staff Relations Act is not unique. Every province, in fact, has enacted substantially similar provisions to give adjudicators in the labour and employment milieu wide latitude when considering disputes.
[24] In United Brotherhood of Carpenters and Joiners of America (CJA), Local 579 v. Bradco Construction Ltd.7 the Supreme Court of Canada considered a provision of the Newfoundland Labour Relations Act, 1977,8 similar to paragraph 25(c) of the Act here in issue. Mr. Justice Sopinka, writing for the Court, commented as follows:
| Section 84(1) of The Labour Relations Act, 1977 provides that the arbitrator may receive and accept such evidence as he deems advisable whether or not it would be admissible in a court of law. ... While provisions such as these do not oust judicial review completely, they enable the arbitrator to relax the rules of evidence. This reflects the fact that arbitrators are often not trained in the law and are permitted to apply the rules in the same way as would be done by reasonable persons in the conduct of their business. Section 84(1) evinces a legislative intent to leave these matters to the decision of the arbitrator. Accordingly, an arbitrator's decision in this regard is not reviewable unless it is shown to be patently unreasonable. ...9 |
That comment applies to paragraph 25(c) of the Public Service Staff Relations Act. The decisions of adjudicators on evidentiary matters are not generally reviewable unless they are found to be patently unreasonable, or irrational.
[25] Applying that standard of review in relation to the main submissions of the applicant that the adjudicator erred by improperly taking account of certain evidence, I am not persuaded that in any of those respects the decision can be said to be patently unreasonable.
[26] Thus, the adjudicator's reference to the fact that Ms. Matthews had volunteered during the employer's investigation of the alleged incident to take a lie detector test while Mr. Teeluck and Mr. LeBlanc refused to do so was not patently unreasonable. That reference appears in the adjudicator's summary, within his decision, of the employer's evidence and argument. It is not a factor upon which the adjudicator relies in setting out his "conclusion and reasons for the decision".
[27] Also, it was not patently unreasonable for the adjudicator to take into account the evidence of Ms. McMullin, which he considered to be "strikingly similar" to that of Ms. Matthews. He applied the same test as a Court would in seeking to assess evidence said to be of similar facts to those at issue, and his conclusion to admit the evidence and to give it weight was not patently unreasonable.
[28] Further, it was not patently unreasonable for the adjudicator to consider and to make findings, and comment upon, the "rat code", a code of conduct, said to exist at the institution, which discouraged reporting on the conduct of fellow officers. The adjudicator's comments were directed to explaining Mr. LeBlanc's failure to observe or comment upon the incident, and to report in his decision difficulties faced by Ms. Matthews and Ms. McMullin following their allegations. While neither of those matters were directly relevant to the issues before the adjudicator, evidence of the existence of the code and its possible impact was before him and it was not unreasonable for him to comment on it. Indeed, in the circumstances, it might have been unreasonable if he failed to comment.
[29] In two further respects the adjudicator's treatment of evidence is said to be in error. First, he relied upon the opinion evidence of the psychologist, Mr. Deschênes, who was not qualified as an expert witness, but whose evidence assessing Ms. Matthews' demeanour when she reported the incident to him was given weight by the adjudicator in his conclusion that she was credible. Second, the adjudicator had, in the record before him, the investigation reports which included unsworn statements of various individuals, some of whom were in support of Mr. Teeluck. Few of them were called to testify before the adjudicator. In my view, that does not mean that their "evidence" which was hearsay before the adjudicator was given weight in his conclusion or that there was no direct evidence before the adjudicator, unlike the circumstances in Bond v. New Brunswick (Board of Management)10 where a decision was overturned because it was based entirely on hearsay. In my opinion, in light of the discretion to consider evidence vested in the adjudicator under paragraph 25(c) of the Act, I would not find that in either of these respects, i.e., consideration of the psychologist's evidence and assessment and consideration of the internal investigation reports, the adjudicator acted patently unreasonably.
[30] Finally, it was not patently unreasonable for the adjudicator to consider the reports from the CSC's internal investigations. Those were a part of the record before him. His reference, in his conclusion, to the investigators' conclusion, that the incident as alleged by Ms. Matthews probably happened, as "strong enough in the circumstances" concerns the mandate of the investigators. In my opinion, it does not support the submission of the applicant that this indicates a fettering of the adjudicator's discretion. Rather, his conclusion read as a whole is based upon his stated assessment of the credibility of the parties and other witnesses, and of the evidence before him. His conclusion cannot be said to be patently unreasonable in relation to the evidence.
[31] It is also urged that the adjudicator erred by failing to give consideration to certain evidence said to be relevant. Thus, evidence of the activity of Ms. Matthews immediately following the alleged incident was not considered in assessing the credibility of her version of events, and the fact that the applicant was acquitted of a charge of sexual assault laid as a result of the incident was not referred to by the adjudicator. These and other matters said to be omitted from consideration do not, in my opinion, render the decision patently unreasonable. None of the matters referred to are directly relevant to the issue before the adjudicator, i.e., whether the employer's disciplinary action, terminating Mr. Teeluck's employment was warranted. It was not patently unreasonable for the adjudicator not to rely upon these matters in the evidence presented to him.
The onus of proof
[32] The applicant urges that the adjudicator reversed the onus in this case by his reference, in his conclusion, that Mr. Teeluck's claim that Ms. Matthews "set him up" was not supported by any evidence produced by the applicant other than the fact she did not like to work with him and that he did not want to work with her either. In my view, this does not demonstrate that the onus was on the applicant to establish he was innocent of the harassment claimed by the applicant. Rather, the adjudicator properly stated where the onus lay in his statement11:
| The standard of proof in a case such as this is that of a balance of probabilities. Because the allegations concern sexual harassment, both sides agree that there should be clear, cogent and compelling evidence that the actions complained of did occur. For, if the allegations are proven the usual response is that it could warrant termination of the employee's employment. Where there are such serious allegations and potentially serious ramifications for the employee, the precedents suggest a clear standard. |
[33] He then reviewed the evidence particularly that which he considered useful in assessing credibility of the complainant and the applicant. His reasons support his conclusion based on the evidence that the applicant did sexually assault his co-worker, and that the employer had just cause to discipline the applicant.
[34] The standard of proof, the onus placed on the employer and the conclusions of the adjudicator cannot be said to be patently unreasonable on the evidence before the adjudicator.
Appropriateness of the penalty
[35] It is urged the adjudicator erred by failing to assess the appropriateness of the disciplinary action taken by the employer, i.e., the termination of the applicant's employment. Yet the adjudicator did not ignore this aspect of matters before him. In his conclusion he states that the penalty was "within the range that is appropriate for this type of conduct. Mr. Teeluck did not present any mitigating factors to the employer, nor did he do so at the hearing of this matter. He is the author of his own misfortune". I am not persuaded that the adjudicator ignored the matter of the appropriateness of the penalty imposed.
Conclusion
[36] In my opinion, the adjudicator's decision cannot be found to be patently unreasonable, in light of the evidence before him, to which his decision refers, in any of the respects which the applicant's claim to judicial review raises. I am not persuaded there is any basis to warrant intervention by the Court.
[37] Thus, the application is dismissed by separate order. The Order goes with costs to the respondent, as requested, on the usual party and party basis, as the parties may agree or failing agreement as may be assessed in accord with the Court's tariff of costs, column III.
JUDGE
OTTAWA, Ontario
October 6, 1999.
__________________1Letter of Dale Cross, Warden of the Atlantic Institution to Deoraj Teeluck, dated 3 March 1997, at Tab 4 of the Applicant"s Supplementary Record.
2[1998] F.C.J. No. 1920 (QL), Court No. T-1533-96, at para 2.
3[1993] 1 S.C.R. 941
4[1993] 1 S.C.R. 941 at 962-964.
5[1998] 1 S.C.R. 982 at para. 30.
6 R.S.C. 1985, c. P-35.
7[1993] 2 S.C.R. 316.
8S.N. 1977, c. 64, s. 84(1).
9[1993] 2 S.C.R. 316 at 343-344.