Ottawa, Ontario, February 13, 2006
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
CANADACUSTOMS AND REVENUE AGENCY
and
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review brought by the Canada Customs and Revenue Agency (CCRA) seeking to set aside an evidentiary ruling made by the Public Service Staff Relations Board (Board) in the context of an ongoing grievance arbitration. Specifically, the CCRA is asking this Court to determine the correctness of an advance decision by the Board to apply the doctrine of issue estoppel to findings made in an earlier adjudication between the same parties.
[2] The earlier adjudication took the form of an Independent Third Party Review (ITPR) which considered the termination of the Respondent's employment with the CCRA and found it to be unwarranted.
[3] The underlying dispute concerns the Respondent's medical disability and the handling of that issue by the CCRA. The record discloses that the Respondent sustained repetitive strain injuries in February, 1994 caused by her employment as a computer audit specialist. For several years thereafter, the parties made efforts to find some form of accommodation which would allow the Respondent to continue in her employment but ultimately those attempts failed.
[4] In 1997, the CCRA terminated the Respondent's injury-on-duty leave. That decision led to the filing of a grievance on October 7, 1997. On June 29, 1998, the CCRA suspended the Respondent without pay. That decision led to a second grievance dated July 3, 1998 which alleged "discipline without cause". On April 19, 1999, the CCRA placed the Respondent on sick leave/vacation leave. That decision led to a third grievance dated May 6, 1999. On August 28, 2000, the CCRA terminated the Respondent's employment, ostensibly, on non-disciplinary medical grounds. That decision led to the ITPR adjudication which took place between November, 2001 and March, 2002. The ITPR process was mandated and created pursuant to s. 54 of the Canada Customs and Revenue Agency Act (CCRA Act), 1999 c.17. The process provided for an independent, expedited and fair hearing of CCRA human resources complaints.
[5] The ITPR hearing was lengthy and the process it adopted was quite formal or court-like. The hearing was convened before a reviewer who was an experienced lawyer. The ITPR process also involved the following judicial characteristics:
· Oral and documentary evidence was presented and witnesses were cross-examined;
· Oaths were administered;
· Both parties were represented by counsel;
· Objections were made and ruled upon;
· Expert witnesses were called and qualified;
· The hearing was recorded by a court reporter;
· Affidavits were accepted;
· Written arguments, of more than 200 pages, were submitted; and
· The final decision was detailed and canvassed the relevant evidence and jurisprudence.
[6] The ITPR reviewer found in favour of the Respondent and he was sharply critical of the CCRA treatment of the Respondent. His conclusion was as follows:
I find, therefore, that the Employer did not make any good faith attempt to provide Ms. Sherman with an alternative position within the department once it made the determination that Ms. Sherman could not perform her essential job tasks.
I also find that the job descriptions relied upon by the Employer in creating its PDA were exaggerated and inappropriate and that the essential physical tasks of the ECAS auditor's position were within the ranges established by the January 1996 WCB appeal decision.
These requirements were known to the Employer and Ms. Sherman took every opportunity to remind the Employer that they remained the basis of any job description.
I find, as well, that the absence of medical evidence referred to by the Employer in termination was not supported by the evidence in this matter. Dr. Chernin and Dr. Birenbaum both knew that there was significant information available as a result of the WCB process. They chose to proceed without requesting or reviewing such information.
Instead he relentlessly pursued the FAE. It is questionable whether an FAE performed by Dr. Baird, a chiropractor, at the Mississauga AIM Clinic, could provide the depth of understanding of Ms. Sherman's disability that the parade of doctors, specialists and assessors from WCB who had examined Ms. Sherman over a period in excess of five years.
Without reviewing this past medical documentation, Dr. Chernin could not fairly determine whether or not there was evidence that would have allowed the department to return to work, with or without accommodation.
Given that Dr. Chernin's opinion formed the basis of the Employer's termination letters, and that Dr. Chernin specifically based his opinions on the erroneous PDA provided by the Employer and a failure to consider the medical record, I find that there was no basis to terminate Ms. Sherman because of any inability to perform the essential tasks of her employment.
I find, as well, that the Employer's blind insistence on a full FAE without regard to either Ms. Sherman's limitations or the actual essential tasks of her employment was wrong-headed and not justifiable under the circumstances.
Indeed, I am left with the distinct impression that the effort to arrange a second FAE, following the receipt of Dr. Chernin's letter in August of 1999, was little more than smoke and mirrors, undertaken in an effort to put Ms. Sherman in a position where she would have to refuse a direct order from her superior.
Having seen the Employer's consistent refusal to reconsider the PDA or the manner of testing, notwithstanding internal advice to the contrary and the decision of the WCB on that very issue, I cannot accept that the repeated attempts to order Ms. Sherman to attend the FAE based on that PDA were made in good faith.
I find that the Employer's conduct in insisting on an unlimited FAE, and in accepting and relying upon an opinion from Dr. Chernin that patently did not take into consideration the bulk of the medical evidence available to him, was not reasonable.
Consequently, I find that the grounds for Ms. Sherman's dismissal, given in the Employer's August 28, 2000 letter, cannot be sustained.
[7] The reviewer's decision, dated February 25, 2003, ordered the CCRA to reinstate the Respondent with appropriate accommodations and the payment to her of lost wages and benefits.
[8] A dispute then arose between the parties as to the level of the Respondent's entitlement to back wages and the ITPR reviewer was asked to rule on that issue. He did so and the CCRA then launched an application for judicial review to this Court from that aspect of the award. In a decision handed down by Justice Konrad von Finckenstein on February 3, 2005 that application was dismissed along with the following observations:
[26] The Respondent also argued orally before me that mandamus is a discretionary remedy and that I should decline to exercise it because in this case the Applicant can avail herself of alternative relief under the WCB. While there is no dispute that mandamus is a discretionary relief, I see no reason for acceding to this submission. These proceedings have been going on since 1994. The Reviewer found that the CCRA acted in bad faith in not accommodating the Applicant. If this matter is ever going to end and result in a normal employer-employee relationship, an early and clear solution must be brought to the dispute. The WCB proceedings may take more time, will cause further strain between the parties and may result in a different outcome with respect to the hours of pay. This would be counterproductive to resolving this dispute. Accordingly, I am convinced this is not a case where I should decline to exercise my discretion.
[9] It is perhaps of some significance that in early 2000 the Respondent initiated a complaint to the Canadian Human Rights Commission (Tribunal) in connection with her treatment by the CCRA with particular reference to the issues of accommodation and termination. That process continues and led to a ruling by the Tribunal on October 5, 2005 that the findings of the ITPR reviewer were neither binding upon it nor were they subject to the application of the doctrine of issue estoppel. I am told that that ruling is now the subject of a pending judicial review before this Court which has not yet been set for hearing.
[10] After her successful ITPR hearing, the Respondent moved to reactivate her three previous grievances. The adjudication of those grievances fell to the Board and an adjudicator was appointed. Before hearing evidence, the Board was asked to rule on a preliminary point of evidence. In the decision, the Board described the preliminary issue as follows:
[2] Just prior to the start of the hearing before me, the parties agreed that the first determination I should make is whether a decision made in another forum with respect to Ms. Sherman and her ability to work should give rise to an issue estoppel. Ms. Sherman, and her union the Professional Institute of the Public Service of Canada ("PIPSC"), assert that the decision of the Independent Third Party Reviewer ("ITPR") who inquired into Ms. Sherman's subsequent non-disciplinary termination made a final decision, on the same issues before me, involving the same parties, in a judicial process. Consequently, Ms. Sherman argued, as a matter of discretion, I should not permit the employer to re-litigate those same issues. In response, the employer argued that the same matters are not before me. In any event, as a matter of discretion, I should not defer to the earlier decision because there is a foundation to conclude that the decision was not fair to the employer's evidence and the employer should not be essentially "penalized" again in this forum and prevented from making its case anew.
[11] After hearing the parties and reviewing much of the record from the ITPR hearing, the Board rendered a thoughtful 19-page decision and held as follows:
[46] Balancing all of the relevant criteria set out in Danyluk (above), and having particular regard to the factor of potential injustice, I am satisfied that the principle of issue estoppel should be applied.
Decision
[47] The employer may not re-litigate before me the nine points determined by the ITPR reviewer. Counsel shall seek to agree about other findings the reviewer made to which the doctrine of issue estoppel should be applied, because those findings were fundamental to his decision-making. Failing agreement, the matter will be determined when the hearing reconvenes.
[48] The parties should contact the Board's Registrar to schedule further dates.
[12] The Board also rejected an argument by the CCRA that it was bound to follow certain earlier worker's compensation (WCB) decisions which had endorsed the CCRA attempts to accommodate the Respondent. The Board seems to have reached that conclusion (in concordance with the ITPR decision) on the basis that the WCB decisions were not determinative of the larger duty owed to the Respondent by the CCRA under the collective agreement and in accordance with its overarching employment and human rights obligations.
[13] The application by the CCRA brought before me asks that the Board's issue estoppel ruling be set aside, at least with respect to seven of nine factual conclusions reached by the ITPR adjudicator and adopted by the Board.
[14] Counsel for CCRA was candid in acknowledging that the Board had jurisdiction to deal with the Respondent's three grievances. Although there is some apparent overlap between those grievances and the jurisdiction of the WCB, he conceded that s. 91 of the Public Service Staff Relations Act, RS 1985, c. P-35, did not operate to remove the Board's jurisdiction to deal with these matters. He argues, however, that the Board's issue estoppel ruling was sufficiently profound that it represented a type of jurisdictional error for which immediate relief should be granted. He also acknowledged, in argument, that the principle of prematurity was a potential obstacle to obtaining the requested relief.
[15] What makes this case somewhat unusual is that counsel for the Respondent did not seek to invoke the principle of prematurity in defence of the CCRA's application. He submitted that there was some procedural value in having this evidentiary ruling reviewed before the Board reconvened its hearing on the merits. I am told that the parties have reached a similar accommodation with respect to the Respondent's pending judicial review application from the Tribunal's contrary issue estoppel ruling in that collateral proceeding. There, the CCRA has agreed not to raise the principle of prematurity in defence of the Respondent's application.
[16] Notwithstanding the parties' stated desire to have me review the correctness of the Board's issue estoppel ruling, I am not disposed to do so. I do not think it prudent to depart from the well established legal principle of prematurity simply because the parties do not seek to rely upon it. There are a number of reasons for this.
[17] Firstly, I think that the Board itself has an interest in not having this Court interfere with its evidentiary or procedural rulings before it has completed its mandate.
[18] Secondly, most of the underlying policy concerns which support the principle of prematurity apply in this case, notwithstanding the parties' mutual accommodations. Those policy concerns include the potential for mootness, the risk of fragmentation of the process or the piece-meal resort to the courts on interlocutory matters, and the absence of a complete record at a preliminary stage including the inability to determine how the Board's rulings were used in its ultimate decision. There is, as well, the potential that the Board may modify or adjust its ruling once it begins the process of considering and weighing other evidence. All of these considerations are thoroughly discussed in Air Canada v. Lorenz (2000) 1 F.C. 494 and in Zündel v. Canada (Human Rights Commission) (2000), 256 N.R. 125 (C.A.).
[19] Given the extensive litigation history between these parties and their active use of this Court, I think that there exists a distinct possibility for judicial review from the ultimate decision of the Board. Given that potential, it would be a better use of judicial resources and it would facilitate a more coherent approach to have all of the review issues heard at one time at the end and with the benefit of the complete record, including the final Board decision.
[20] I also do not believe that an agreement by the parties not to raise the issue of prematurity is binding upon me in the exercise of my judicial review discretion. This point was conceded by both counsel in argument. While there may be cases where such an agreement would constitute a special circumstance justifying early intervention, I am reluctant to give it precedence over the important policy considerations which generally discourage such judicial interference at a point such as this.
ORDER
THIS COURT ORDERS that:
1. this application is dismissed; and
2. party and party costs are payable to the Respondent.
" R. L. Barnes "
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1743-04
STYLE OF CAUSE: CANADA CUSTOMS AND REVENUE AGENCY
and
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 6, 2006
REASONS FOR ORDER
AND ORDER: THE HONOURABLE MR JUSTICE BARNES
DATED: February 13, 2006
APPEARANCES:
Mr. Christopher Leafloor for the Applicant
Joseph Cheng
Mr. Steven Welchner for the Respondent
SOLICITORS OF RECORD:
John H. Sims, Q.C. for the Applicant
Deputy Attorney General of Canada
Department of Justice
Nelligan O'Brien Payne Lawyers for the Respondent
Barristers & Solicitors
Ottawa, Ontario