Date: 19980304
Docket: T-910-97
BETWEEN:
STEPHANIE B. REID
Applicant
- and -
ATTORNEY GENERAL OF CANADA
(Agriculture and Agri-Food Canada)
Respondent
REASONS FOR ORDER
(edited version of those delivered orally from the Bench on March 4, 1998)
REED, J.:
[1] Despite Ms. Crocker's valiant efforts, I think the decision that must be rendered is clear. The decision under review must be set aside.
[2] I agree that much of the adjudicator's decision deals with factual findings and evidence relating to both the amount of time and the circumstances under which the applicant was engaged in new product review. At the same time, I cannot ignore the adjudicator's concluding comments. They indicate that his decision was significantly influenced by, indeed, I would say, based on what he understood to have been an agreement between the parties that certain changes in the applicant's job description were to be made. The concluding paragraph of his decision reads:
| Therefore, in conclusion, on the balance of probabilities the grievor has not satisfied me on the evidence that she was performing duties that were beyond those in her job description or that she was asked to perform any extra duties which she claims to have performed. Also, especially since the employer, at the hearing, agreed to update the wording and/or language of the April 2, 1996 job description, I believe that this job description is an accurate reflection of the duties performed by the grievor. |
[3] One of the updates the adjudicator identified in his reasons as having been agreed upon was:
| There should be a new heading added after [the first paragraph on page 2] and the paragraph following should read as follows: |
| Review and evaluate and license new veterinary biologics product submissions revisions and/or updates (labels, production outlines, inserts, etc ...) to currently licensed products as submitted by the manufacturer for product file maintenance and licensure status. |
[4] The respondent denies that any agreement to this amendment was ever given and refuses to implement it. Thus the adjudicator's decision was based on a misapprehension of the agreement the parties had reached. I think this can fairly be characterized as the misapprehension of a material fact even though the "fact" relates to the prospective conduct of the parties rather than to the disputed facts before the adjudicator. The decision therefore fits within the category that is described in subsection 18.1(4) of the Federal Court Act as a decision based on findings of fact that have been made "without regard for the material before [the decision-maker]".
[5] A court when reviewing a decision accepts the reasons for decision as they are articulated by the decision-maker. To accept Ms. Crocker's argument would require me to rewrite the adjudicator's decision. I have not been persuaded that it is proper for me to do so.
[6] With respect to the amount of time the applicant spent on new product review, I do not perceive there to be a dispute. I understand it to be agreed that during the time under discussion, 5% of the applicant's time was spent on this activity. Where and how that should be recorded in her job description will be a matter for the adjudicator who rehears her grievance.
[7] Counsel for the respondent argues that the grievance should be returned for reconsideration to the same adjudicator. I am not persuaded that this is appropriate. I understand that he is now retired. In addition, the matter was originally heard on November 25 and 26, 1996. His recollection of what occurred at the hearing is likely to be somewhat faded now. It seems fairer to the parties that there be a fresh hearing so that all the evidence is fresh in the mind of the adjudicator who decides.
[8] I am persuaded that the usual practice of sending the matter back for rehearing by a different adjudicator is the appropriate disposition to make.
[9] An order will be signed in accordance with these reasons.
Judge
OTTAWA, ONTARIO
March 4, 1998