Date: 20021018
Docket: T-1668-01
Neutral citation: 2002 FCT 1084
BETWEEN:
GRANT GALE
Applicant
AND:
TREASURY BOARD
(Solicitor General Canada Correction Service)
Respondent
[1] This is an application for judicial review pursuant to section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7 in respect of a decision of Joseph W. Potter, Vice-Chairperson of the Public Service Staff Relations Board ("the Adjudicator"), dated August 17, 2001 wherein the applicant's grievance was dismissed and the termination of his employment upheld. The applicant now seeks an order quashing this decision and referring the matter back to a different adjudicator for reconsideration.
[2] The applicant is a former correctional officer at the Saskatchewan Penitentiary in Prince Albert, Saskatchewan.
[3] On November 25, 1999, pursuant to section 11(2)(f) of the Financial Administration Act, R.S.C. 1985, c. F-11 (as amended), the applicant was dismissed from his position as correctional officer for sexually harassing a female colleague while at work. This incident allegedly occurred on May 19, 1999 at the Federally Sentenced Women's Unit ("FSWU") of the Saskatchewan Penitentiary where both the applicant and the complainant (referred to as Ms. "X" in the decision) were working at that time. This is a maximum-security unit which has three tiers housing inmates.
[4] Following his dismissal, the applicant filed a grievance which was the subject of adjudication by the Public Service Staff Relations Board pursuant to section 92 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("the Act"). During the oral hearing, both complainant and the applicant testified, along with several other witnesses.
[5] After the evidence was presented, during the submissions of counsel, it is alleged that the Adjudicator raised a point of concern, enquiring why the applicant would have testified that correctional service officer L. Mardell was not among the persons named by the applicant as responding to an incident on the day in question. In light of the fact that the issue appeared to be of "critical" concern to the Adjudicator, counsel for the applicant advised that he may wish to re-open his case to call evidence on this point. Records of the Saskatchewan Penitentiary would clarify and verify the location at which L. Mardell was working. The Adjudicator adjourned the hearing to allow counsel for the Correctional Services and for the applicant to obtain that information and submit it to him by agreement.
[6] The Adjudicator was kept informed by counsel as to their progress in obtaining the critical piece of evidence during the next ensuing two hours. The hearing reconvened after approximately two hours and the Adjudicator was advised by counsel that verification was not available at that moment, but that it could be obtained in a few weeks. It was agreed that counsel would submit the information by agreement to the Adjudicator within a few weeks. The process agreed upon was that counsel for the respondent would submit the information to counsel for the applicant. He would then send it on to the Adjudicator.
[7] Counsel for the respondent was delayed in obtaining the sought-after evidence. When he produced it in the form of a letter dated August 14, 2001, a further 6-day delay was occasioned due to two errors: the letter referred to "M. Mardell" instead of "L. Mardell", and a date of May 20, 1999 appeared instead of May 19, 1999. On August 21, 2001, the corrected reporting letter (dated August 17, 2001) was received by counsel for the applicant for submission to the Adjudicator. It confirmed that the applicant's testimony at the hearing on this point had been correct and, consequently, that the Adjudicator was wrong in assuming that L. Mardell was working within the FSWU at the relevant time the incident took place.
[8] Counsel for the applicant had no opportunity to submit this evidence to the Adjudicator since the decision (dated August 17, 2001) was received on the very same day. That decision dismissed the grievance, upholding the applicant's termination. The applicant now seeks to quash that decision by this application for judicial review on the grounds of lack of procedural fairness since the Adjudicator had rendered his decision before having been aware of the answer to his query; namely the whereabouts of L. Mardell on the day of the incident.
[9] The central issue in these proceedings is whether the Adjudicator exceeded his jurisdiction or, in the alternative, acted without jurisdiction by failing to consider all materials and evidence before reaching his decision. If answered in the alternative, this question raises a further one, i.e. what is the appropriate remedy in these circumstances.
[10] The applicant submits that his rights which were protected by the rules of natural justice include the right to fully present evidence which is fundamental to the duty of fairness. It is submitted that in rendering his decision without the relevant piece of evidence regarding the whereabouts of L. Mardell, the Adjudicator in the case at bar breached the duty of fairness and, in so doing, acted without or in excess of his jurisdiction.
[11] The applicant argues that the matter was of serious concern and relevant to the question of credibility of the complainant and the applicant. Credibility was of vital importance in the present case.
[12] The applicant refers to factors in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 which support the conclusion that in the case at bar, the Adjudicator was bound by a high degree of procedural fairness.
[13] He argues that his right to provide a critical piece of evidence to the Adjudicator and have him consider it was of vital importance to the case. The Adjudicator's incorrect assumption as to the fact at issue led him to perceive the testimony of the applicant to be suspect.
[14] Finally, he argues that the Adjudicator's decision prevented him from establishing that he had greater credibility than the complainant and the procedure followed by the Adjudicator denied him the opportunity to complete his submissions of the evidence directly bearing on that very issue of credibility. It is submitted that the duty of fairness owed to the applicant was breached when the Adjudicator made findings as to the merits of the case based on credibility assessment without affording the applicant the opportunity to submit the sought-after evidence for consideration.
[15] The respondent submitted that the applicant's version of the events is inaccurate and that the Adjudicator did not consider the presence of L. Mardell to be a "critical" piece of evidence either during argument or in his reasons. This is reinforced by the fact that counsel for the respondent conceded, at the conclusion of the hearing, that it had no problem agreeing that L. Mardell was not working on the FSWU but was in the A & D in the main institution as sworn to by the applicant.
[16] The respondent notes that the applicant's suggestion that his credibility would have been lost had a finding been made that L. Mardell was working in the FSWU on the day in question is a speculative assessment of the Adjudicator's reasoning.
[17] Furthermore, the respondent notes that the Adjudicator did not make a finding nor did he even allude to the fact that the applicant's credibility would have been lost had a finding been made that L. Mardell was working in the FSWU on the day in question.
[18] Having carefully reviewed the submissions of the parties and the tribunal record, I am not persuaded that the Adjudicator violated the applicant's right to a full and complete hearing or failed to observe principles of procedural fairness and natural justice. I would therefore dismiss this application for judicial review for the following reasons.
[19] The adjudication of the applicant's grievance and the Adjudicator's decision that resulted are governed by the provisions of the Act, especially sections 92 to 97. In Teeluck v. Canada (Treasury Board) (1999) 17 F.T.R. 39 (F.C.T.D.), MacKay J. spoke of the broad latitude given to an adjudicator to accept and hear evidence of relevant facts without procedural limitations. He stated the following at para. 22-24:
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.
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.
In United Brotherhood of Carpenters and Joiners of America (CJA), Local 579 v. Bradco Construction Ltd. [[1993] 2 S.C.R. 316] the Supreme Court of Canada considered a provision of the Newfoundland Labour Relations Act, 1977 [S.N. 1977, c. 64, s. 84(1)], 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 the 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. ... [[1993] 2 S.C.R. 316 at 343-344.]
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.
[20] I would add that an adjudicator appointed in accordance with the Act is not bound by rigid rules of evidence and has discretion to give the various portions of evidence the weight he or she sees fit: Rhéaume v. Canada (Attorney General), [2002] F.C.J. No. 128 (QL) (F.C.T.D.) at para. 27-30. However, this broad power given to an adjudicator in evidentiary matters cannot have the effect of limiting the duty imposed on administrative tribunals to observe the requirements of natural justice and procedural fairness. In this regard, the following comments of Chief Justice Lamer (as he then was) in Université du Québec à Trois-Rivières v. Larocque [1993] 1 S.C.R. 471 at 489-493 are particularly apposite:
The appellant argued that this provision gave a grievance arbitrator exclusive jurisdiction to decide on the relevance of the evidence presented to him and that his decisions in this regard are consequently beyond the scope of judicial review except in the event of patently unreasonable error.
This argument cannot be accepted. Section 100.2 of the Labour Code does give a grievance arbitrator complete autonomy in dealing with points of evidence and procedure; but the rule of autonomy in administrative procedure and evidence, widely accepted in administrative law has never had the effect of limiting the obligation on administrative tribunals to observe the requirements of natural justice.
...
For my part, I am not prepared to say that the rejection of relevant evidence is automatically a breach of natural justice. A grievance arbitrator in a privileged position to assess the relevance of evidence presented to him and I do not think it is desirable for the courts, in the guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of the grievance arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice.
(Emphasis added)
[21] That brings us back to the point at issue in this case: was there a breach of natural justice as a result of the Adjudicator's refusal to wait for the tendering of evidence confirming the whereabouts of L. Mardell before rendering his decision, in light of the decision to adjourn the hearing for two hours and subsequently ordering counsel to obtain that information and submit it to him by agreement?
[22] It appears from the applicant's sworn affidavit that following the presentation of the evidence at the hearing, during the course of argument, the Adjudicator raised a point of concern to him, as to whether one L. Mardell was working at the relevant time at the FSWU or in the main institution, which is an entirely separate area located a distance away from the FSWU. The applicant had testified that L. Mardell was not at the FSWU at the relevant time.
[23] I note that the applicant bases his entire argument that he was denied a right to a full and fair hearing on the allegation that the Adjudicator made it clear that the issue of the whereabouts of L. Mardell was of vital importance to his assessment of credibility of the applicant and the complainant. The applicant contends that the Adjudicator recognized and acknowledged that the evidence to be submitted was critical and indeed relevant to the matter by expressly raising the issue and indicating to the parties that he was granting them time to provide it to him. There is, however, conflicting evidence on this point. Thus, in her sworn affidavit, Ms. Bonnie Davenport, Regional Chief, Staff Relations and Compensation with the Respondent who attended at all material times the adjudication of the grievance and assisted counsel for the respondent, stated the following:
6. That I have personally read the contents of the Applicant's affidavit supporting his application for judicial review, Court File No. T-1668-01.
7. That I am aware that the Applicant, in his affidavit, had made various statements that were not tendered into evidence or made by the Adjudicator at any time during the adjudication hearing.
8. That at no time during the adjudication hearing do I recall, nor do my notes indicate, that the Adjudicator said what is attributed to him in paragraph 7 of Grant Gale's affidavit: "That the Adjudicator made it clear that the issue was of vital importance to his assessment of credibility. If the witness or documents of the Saskatchewan Penitentiary confirmed that L. Mardell was indeed working at the FSW Unit, my credibility would be lost."
9. That at no time during the adjudication hearing do I recall, nor do my notes indicate, that the Adjudicator said what is attributed to him in paragraph 20 of Grant Gale's affidavit: "...the Adjudicator stated was of serious concern to him in assessing credibility."
[24] Of course, one can only speculate as to what was really said at the hearing as it appears that at no time during the adjudication was a court reporter or an electronic recording device present to record the evidence, and therefore no transcript of the hearing is available. The only evidence that could be available are the handwritten notes of the testimonies of all witnesses prepared by the affiant Bonnie Davenport.
[25] In Mercier v. Canada (Human Rights Commission), [1994] 3 F.C. 3 (F.C.A.), the Federal Court of Appeal held at para. 14 that that which procedural fairness requires depends on the nature of the investigation and the consequences which it may have on persons affected by it. Fundamentally, there must be assurance in each case that the individual affected has been informed of the substance of the evidence on which the tribunal intends to rely in making its decision and that the individual has been offered an opportunity to reply to that evidence and to present all relevant arguments relating thereto.
[26] No doubt that the consequences of an adverse finding regarding the credibility of the applicant in the case at bar are serious. However, a thorough perusal of the Adjudicator's decision reveals no indication that he made a finding of fact that L. Mardell worked at the FSWU on May 19, 1999 nor that he based his final decision on such a finding. Contrary to what the applicant alleges, there is no evidence to suggest that the Adjudicator was assuming that L. Mardell was on site at the relevant time, working at the FSWU rather than at the main institution. Nor is there the slightest indication that he drew a negative inference against the applicant and made an adverse finding of credibility in the absence of evidence as to the whereabouts of L. Mardell at the relevant time. His reasons simply illustrate that he preferred the complainant's testimony as to her own whereabouts at the relevant time for other reasons (see paragraphs 137-140 of the decision). This is not a case where the applicant did not have an opportunity to present evidence on a key question decided by the adjudicator.
[27] In the case at bar, while one may question why the Adjudicator did not wait for the evidence clarifying the whereabouts of L. Mardell in the face of an express wish by counsel for the applicant to re-open his case and an undertaking by both counsel to adduce further evidence on this point, it is to be recalled that rejection of relevant evidence, or refusal to admit it, will not automatically amount to a breach of natural justice in every case. As Lamer C.J. held in Larocque, supra, the rejection of relevant evidence must have an impact on the fairness of the proceeding such that it leads unavoidably to the conclusion that there has been a breach of procedural fairness. Absent any evidence establishing that the sought-after evidence regarding the whereabouts of L. Mardell was of "serious concern" to the Adjudicator and of "such critical importance" to his assessment of the credibility of the applicant and complainant and his ultimate decision, I can only conclude that the Adjudicator's refusal to wait for confirmation did not have "an impact on the fairness of the proceeding such that it leads unavoidably to the conclusion that there has been a breach of procedural fairness". It may well be that the Adjudicator simply decided not to place much weight on this evidence and that he could dispose of the matter without deciding the issue, but it is not up to a Court, on review, to speculate as to the motives underlying an adjudicator's decision to reject, or refuse to admit, evidence or determine its relevance unless it is clearly established that it would have affected the ultimate decision.
[28] Considering the conclusion I have reached, it is not necessary to deal with the issue of the appropriate remedy. Accordingly, I hereby dismiss this application for judicial review with costs.
JUDGE
OTTAWA, Ontario
October 18, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1668-01
STYLE OF CAUSE: Grant Gale v. Treasury Board (Solicitor General Canada Correctional Service)
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: 2-OCT-2002
REASONS FOR : ROULEAU, J
APPEARANCES:
Mr. Martel D. Popescul, Q.C. APPLICANT
Mr. Richard Fader RESPONDENT
SOLICITORS OF RECORD:
Sanderson Balicki Popescul APPLICANT
Morris Rosenberg RESPONDENT
Deputy Attorney General of Canada
Treasury Board of Canada Secretariat