Date: 19991119
Docket: T-252-98
BETWEEN:
FLOYD JOSS
Applicant
- and -
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR ORDER
REED, J.:
[1] The applicant seeks an order setting aside a decision, dated January 13, 1998, made by Barry Turner, an adjudicator of the Public Service Staff Relations Board. That decision dismissed the applicant's grievance of a ten day suspension without pay that had been imposed on him as a result of findings that he had harassed two employees of Agriculture Canada.
[2] The adjudicator's decision is challenged on two main grounds: (1) the adjudicator lacked jurisdiction because the main issue in dispute had been determined earlier by another adjudicator and was thus res judicata; (2) the applicant was denied a fair hearing because the adjudicator proceeded with the hearing even though a witness that the applicant had subpoenaed did not appear.
Factual Context
[3] The findings of harassment that underlie the decision that is the subject of the present application arose out of interactions between the applicant, Dr. Joss, and Messrs. Simmons and Barlow. Dr. Joss is a veterinarian with Agriculture Canada. In 1993, he worked in a meat plant in Lethbridge and had a number of meat inspectors reporting to him. One of these was Mr. Simmons. Mr. Barlow was a Human Resources Advisor with Agriculture Canada in Calgary.
[4] Dr. Joss became concerned about Mr. Simmons use of sick leave. Indeed, in August 1988, Mr. Simmons had been sent a letter by L.K. Anderson, Regional Veterinary Director, expressing concern about Mr. Simmons "high incidence and pattern of short term sick leave usage". Mr. Simmons was asked to provide a medical certificate for all absences and was warned that if there was no improvement in his attendance he would be referred to Health and Welfare Canada for assessment as to whether he was medically capable of performing the duties of his position.
[5] Sometime before February 7, 1994, Mr. Simmons was asked by Health and Welfare to attend for a medical assessment. This caused him to file a grievance against Dr. Joss because he had not been approached prior to this initiative, and had not been given warning that there was, at that time, concern about his sick leave usage. This grievance was heard by Mr. Barlow.
[6] In the course of investigating the complaint, Mr. Barlow became aware of a number of incidents about which Mr. Simmons was concerned and suggested to Mr. Simmons that if he wished to pursue them the appropriate course of action would be to file an harassment complaint against Dr. Joss. Mr. Simmons did so on March 18, 1994. This complaint was also investigated by Mr. Barlow.
[7] During the March-July 1994 period, Dr. Joss complained to both Mr. Barlow and other members of Agriculture Canada's Human Resources staff (e.g., Rosemary Turner, Director Human Resources, Alberta Region, and Ms. Czesia Czyezyro, Director, Staff Relations, Human Rights Branch, Ottawa) that it was not appropriate to have Mr. Barlow investigate Mr. Simmons' harassment complaint because it had been Mr. Barlow who had suggested to Mr. Simmons that such a complaint be filed. Also, Dr. Joss did not consider Mr. Barlow to be an unbiased person. Messrs. Joss and Barlow had had previous dealings with each other and these had not always been amicable.
[8] Mr. Barlow rendered a decision on Mr. Simmons' March 1994 harassment complaint in July of 1994. He found that three of the six incidents reported by Mr. Simmons constituted harassment of him by Dr. Joss. These were: (1) an exchange that occurred in the parking lot on September 8, 1993, when Mr. Simmons was leaving work early after having taken time off during the day for a medical appointment, during which exchange Dr. Joss suggested that Mr. Simmons' job might be in danger as a result of his frequent absences; (2) a remark in the lunch-room in February of 1994, when Dr. Joss commented that what Mr. Simmons was eating smelled like cat food; (3) an incident in March of 1994, when Mr. Joss had wanted to use a tape recorder to tape a meeting he was having with Mr. Simmons and his Union representative, prior to Simmons' filing the harassment complaint of March 18, 1994.
[9] These findings of harassment led to a five day suspension without pay being imposed on Dr. Joss, and Mr. Simmons was relocated to another meat plant so that he and Dr. Joss would not work in the same locations. Dr. Joss filed a grievance with respect to the decision that he had harassed Mr. Simmons on three occasions, and the five day suspension without pay that had been imposed.
[10] In anticipation of the hearing of the grievance, Dr. Joss conducted himself in ways that led to further complaints being filed against him. In the summer or fall of 1994, he asked some co-workers of Mr. Simmons whether they could tell him if they remembered any occasion on which Mr. Simmons had taken time off improperly. Dr. Joss also approached Mr. Simmons' doctor to seek verification as to whether he had seen Mr. Simmons on September 8, 1993, (the day of the parking lot incident). He did this by initially making an appointment to see the doctor, with a medical concern of his own. When the doctor did not provide Dr. Joss with the information in writing that he sought, Dr. Joss wrote to the College of Physicians and Surgeons and asked the College to require the doctor to do so. The College responded as Dr. Joss requested. Mr. Simmons' doctor did not have a written record of having seen Mr. Simmons on September 8, 1993, and responded that he was unable from his records to determine whether he had seen Mr. Simmons in one of the outpatient departments, at one of the hospitals or by personal visit. The doctor was already very annoyed at Dr. Joss' enquiries and the approach that had been taken, and wrote a letter expressing his displeasure.
[11] Dr. Joss' grievance of the five day without pay suspension that had been imposed the previous July was scheduled for hearing on June 1, 1995. On May 30, 1995, Dr. Joss went to Mr. Barlow's office in Calgary, to serve him with a subpoena to require him to attend as a witness. Dr. Joss had not made an appointment to see Mr. Barlow, and Mr. Barlow was not in his office. Dr. Joss stated to the staff in the Human Resources office that even if he had made an appointment, Mr. Barlow would have taken steps to avoid the service of the subpoena. The derogatory remarks he made about Mr. Barlow led to a letter from Rosemary Turner to Dr. Joss instructing him to contact her directly in future, rather than her staff.
[12] A settlement agreement was reached on the morning of June 1, 1995, and a hearing of Dr. Joss' grievance, thus, became unnecessary. The agreement was signed by Lindsay Jeanes, counsel for the employer, Treasury Board (Agriculture Canada), and Peter Keebler, counsel for Dr. Joss. The agreement contained preambular statements explaining Dr. Joss' motivation and replaced the five day suspension without pay that had originally been imposed on Dr. Joss with a reprimand. The settlement agreement reads:
| IT IS HEREBY AGREED THAT: |
| The Employer recognizes that Dr. Floyd Joss' expression of dissatisfaction with Basil Simmons arises from a sincere sense of duty and diligence to Dr. Floyd Joss' position and concern for Mr. Simmons' excessive use of sick leave, and further they recognize that Dr. Floyd D. Joss has expressed his concern that bias existed in the investigatory process conducted by Vince Barlow; |
| And further they recognize that Dr. Floyd D. Joss has not pursued his legal right to a full grievance hearing which would allow mitigating circumstances of the events surrounding this grievance to be brought to the attention of the Adjudicator; |
| And in the interests of amicably settling the matter between all the parties, Dr. Floyd D. Joss is to have his disciplinary action reduced from five (5) days suspension to a Letter of Reprimand which is to be placed on his file for a period not to exceed two (2) years from the initial grievance decision of July 24, 1994, and thereafter it shall be removed as per the collective agreement. |
| It is agreed that this document shall be attached as an addendum to the Letter of Reprimand. |
[13] On the following day, Dr. Joss took a copy of this settlement agreement to his workplace. He stated that a number of his co-workers had been under subpoena as witnesses for the June 1, 1995, hearing and were curious as to what had happened. He made the settlement agreement available to them. Someone faxed a copy of the agreement to Mr. Simmons' workplace and it was posted on the bulletin board in that location. This caused Mr. Simmons to file, on June 7, 1995, yet another harassment complaint against Dr. Joss. Dr. Joss' supervisor, Mr. Outhwaite, reacted by suspending Dr. Joss with pay for an indefinite period of time, pending investigation of this new complaint. The indefinite suspension was cancelled after nine days and Dr. Joss returned to work with conditions imposed prohibiting communication with Mr. Simmons.
[14] Mr. Barlow subsequently also filed complaints alleging that Dr. Joss had harassed him. These were filed on July 4, 1995. Mr. Barlow cited the comments Dr. Joss had made in May-July 1994 that Mr. Barlow was biased, the more recent comments Dr. Joss made calling the 1994 investigation a "kangaroo court" and "bogus", as well as the derogatory comments made by Dr. Joss in the Calgary Human Resources office on May 30, 1995.
[15] Ms. Archibald, an Investigations Conciliation Officer, was given responsibility to investigate the Simmons' complaints of April 26, concerning the enquiries by Dr. Joss of Mr. Simmons' co-workers and his doctor, the June 7, 1995 complaint with respect to the posting of settlement agreement, and the Barlow complaints of July 4, 1995. She found that at least some of the conduct that was the subject of those complaints constituted harassment. Her reports, dated November 14, 1995, led to a ten day suspension without pay being imposed on Dr. Joss by decision of December 27, 1995.
[16] Dr. Joss filed two grievances, one with respect to the indefinite suspension with pay of June 1995, which had been turned into a nine day suspension, and the second with respect to the ten day suspension without pay of December 27, 1995.
[17] The first grievance was heard by adjudicator Rosemary Simpson on April 15, 1997. She had to decide (1) whether the nine day suspension with pay was disciplinary or merely administrative in nature (if the latter was the case she had no jurisdiction to hear the grievance) and (2) if the suspension was disciplinary, whether it had been justified.
[18] Adjudicator Simpson heard evidence from Dr. Joss, from his lawyer Mr. Keebler, from Mr. Barlow, Mr. Simmons and Mr. Outhwaite. She determined that the June 1995 suspension was disciplinary and that it had not been justified. The latter decision was based on a number of findings by her: no harm would have occurred to Mr. Simmons as a result of Dr. Joss remaining in the workplace - the two were already in separate work locations; there was no evidence that Dr. Joss's continued employment in his job would have impeded the investigation; a suspension even with pay was demeaning to Dr. Joss and undercut the respect he was entitled to have from subordinates; the posting of the settlement agreement in his workplace was not a blameworthy act in any way - it was not harassment. The relevant part of her decision reads:
| It was argued that Dr. Joss' action in posting the settlement document was inappropriate. On the other hand, Dr. Joss' position was that there were many misapprehensions, misunderstandings, in the workplace as to what had taken place at the adjudication hearing the week before and employees, especially those who had been subpoenaed to the hearing but had not been called to give evidence, had questions. Rather than try to explain the contents of the settlement, he decided that the fairest thing to do was simply post it and let the document speak for itself. There was no prohibition against publication. I accept Dr. Joss' evidence that there was no intent to harass anyone. It was a neutral act intended to clarify the situation for concerned people in the workplace. It does not present Mr. Simmons in a bad light, anymore than it does Dr. Joss. It is simply a settlement document. |
| Based on the evidence I received at the hearing, I do not find that Dr. Joss' posting of the settlement document was a blameworthy act in any way. At that time, feelings were still running high after the cancelled adjudication hearing and Mr. Simmons saw harassment of him in the posting of the settlement where he should not have. At this stage, intervention by management to de-escalate emotions would have been desirable, especially in light of the fact that the parties had not found it necessary to proceed with a full adjudication hearing the week before and had reached a settlement. It was time to build on that settlement and positively encourage a better labour relations environment between management and Dr. Joss and between Basil Simmons and Dr. Joss. Instead, management over-reacted and ordered Dr. Joss out of the workplace. There is little evidence that they considered other alternatives. |
| I must, therefore, declare that the action of the employer in imposing a nine-day suspension with pay (which started as an indefinite suspension) on Dr. Joss was unjustified and must therefore be rescinded. I direct the employer to remove all reference to the indefinite suspension from the grievor's file. As the grievor failed to establish that he suffered any loss of pay or benefits as a result of the suspension, I am not awarding him any compensation therefor. Finally, I would not be inclined to award Dr. Joss the other remedies which he requested even if I had the authority to do so. [Underlining added.] |
[19] Adjudicator Simpson added:
| Although this is not an essential part of my decision, I would like to add that in examining the background leading to this grievance I have concluded that many mistakes have been made by different people. For example, the competition which Dr. Joss lost and his successful appeal before the Public Service Commission, only to have the competition ultimately cancelled, have added to Dr. Joss' sense of grievance. Similarly, the fact that Vince Barlow, who had been the technical advisor in the above competition and who had suggested that parts of Mr. Simmons' original grievance would be more appropriate in a separate grievance and this turned into the original harassment grievance, should be investigating the harassment grievance outraged the grievor's sense of justice. It appears to me that Dr. Joss is not unjustified in his concerns about the choice of Mr. Barlow to investigate Mr. Simmons' grievance against him. In the particular circumstances of this case, considering the acrimonious relationship between them, I believe that allowing Mr. Barlow to determine the validity of Mr. Simmons' harassment grievance against Dr. Joss certainly gives the appearance of bias. This original decision which found some allegations founded set in motion a train of very serious events. Dr. Joss' single-minded pursuit of his remedies and his outspokenness, which were apparent at the hearing, have exacerbated problems in work relationships with a number of people and created resentments. I would recommend that the parties make positive efforts to lower the level of acrimony between them and find a way of resolving their differences that would allow them to make a fresh start. To do so, changes would be required on both sides. [Underlining added.] |
[20] The investigation reports of Ms. Archibald were not placed in evidence before adjudicator Simpson. They could be characterized as irrelevant to that proceeding since the suspension in question had taken place before their preparation.
[21] Ms. Archibald's reports were part of the evidence before adjudicator Turner in November 1997, in the hearing that resulted in his decision of January 13, 1998. He did not hear direct evidence from any of Messrs. Barlow, Simmons, Outhwaite or Keebler. He heard oral evidence from Ms. Archibald and from Dr. Stemshorn, Regional Director, Alberta Region (who did not hold that position at the time of the relevant events). Adjudicator Turner also heard oral evidence from Dr. Joss. In addition he had a copy of adjudicator Simpson's decision and relevant documentary evidence.
[22] The investigation reports prepared by Ms. Archibald found that Dr. Joss' action in introducing the settlement agreement into the workplace, in approaching Mr. Simmons' doctor for information, in making derogatory comments about Mr. Barlow to the office staff on May 30, 1994, and in a letter written to Dr. Anderson, dated June 14, 1995, were acts of harassment. A significant finding was that Dr. Joss had known or ought to have known that the settlement agreement of June 1, 1995, was intended to be kept confidential and that it was introduced into the workplace for the purpose of embarrassing Mr. Simmons.
[23] Adjudicator Turner concurred with the conclusions reached by Ms. Archibald, and Dr. Joss' grievance of his ten day suspension without pay was dismissed. Both Ms. Archibald and Adjudicator Turner concluded that it had been improper and an act of harassment for Dr. Joss to introduce a copy of the settlement agreement into the workplace.
Res Judicata
[24] The doctrine of res judicata is a form of estoppel and derives from the principle that no court shall try a cause or issue if the same matter has been heard and finally decided in a previous suit between the same parties in a court of competent jurisdiction. The principle applies to adjudicative boards, commissions and other tribunals as well as to courts: see Canada (Attorney General) v. Canada (Canadian Human Rights Commission) (1991), 43 F.T.R. 47.
[25] The applicable tests for deciding whether issue estoppel exists are set out in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 at 253-255. These are: (1) the same question must have been decided, the resolution of that question being fundamental to the decision within which the estoppel is created; (2) the decision said to create the estoppel must be final; (3) the parties must be the same in both proceedings. There is no dispute that the second and third criteria are met in this case.
[26] Counsel for the respondent argues that the questions decided by adjudicator Simpson and adjudicator Turner are not the same because the former was asking whether the nine day June 1995 suspension with pay was justified, while the latter was asking whether the ten day December 1995 suspension without pay was justified. In my view, this is not the proper question for issue estoppel. The question that counsel for the respondent has phrased compares the causes of the respective adjudicative hearings. That is, the questions are akin to asking whether cause of action estoppel exists. A negative answer to that inquiry does not determine whether issue estoppel exists.
[27] In this case, the issue of whether the posting of the settlement agreement in the workplace was harassment was addressed by both adjudicators. The question then is whether the first proceeding creates an estoppel with respect to that issue insofar as the second is concerned.
[28] I return to the analysis set out by the majority of the Supreme Court in the Angle decision. In order to have issue estoppel, not only must the question in the two proceedings be the same but the question must be "fundamental" to the proceeding of which it is a part. The decision within which the issue is decided must be unable to stand absent a determination of the issue. I quote from Mr. Justice Dickson, at 255:
| ... It will not suffice if the question arose collaterally or incidentally in the earlier proceedings or is one which must be inferred by argument from the judgement. ... The question out of which the estoppel is said to arise must have been "fundamental to the decision arrived at" in the earlier proceedings ... the nature of the enquiry which must be made [is]: |
| ... whether the determination on which it is sought to found the estoppel is "so fundamental" to the substantive decision that the latter cannot stand without the former. Nothing less than this will do. |
[29] Adjudicator Simpson's assessment of the non-harassment nature of the posting of the memorandum was not fundamental to her decision in this sense. It was a factor that she considered in reaching her decision. It was properly relevant for her to do so. However, if she had failed to address that issue, her decision would still have stood; a failure to consider whether harassment had occurred would not have undermined her decision.
[30] The rational for the requirement that the issue be fundamental to the decision out of which the estoppel arises is illustrated by this case. Counsel for the respondent points out that the respondent did not adduce evidence before adjudicator Simpson with respect to whether the introduction of the settlement agreement into the workplace was an act of harassment - the respondent did not see that issue as fundamental for the purposes of the hearing. The hearing was to assess whether the nine day suspension pending investigation of the merits of the harassment complaint was justified. The evidence on which adjudicator Simpson relied for the finding that harassment did not exist was incomplete. Thus, to treat adjudicator Simpson's finding that harassment did not exist as creating an estoppel for the second proceeding would be to rely upon a finding that had not been fully litigated - because it was not fundamental to the first hearing.
[31] I cannot conclude that adjudicator Simpson's decision created issue estoppel with respect to whether or not the posting of the settlement agreement constituted an act of harassment.
Natural Justice - Failure to Adjourn
[32] I do not understand the respondent to contest that adjudicator Turner refused to adjourn the proceedings as a result of the non-attendance of the subpoenaed witness Rosemary Turner. Counsel for the respondent argues that that failure was, however, an inconsequential error because the evidence she was being called to give related to the applicant's res judicata argument and that argument is without merit.
[33] The applicant's affidavit reads:
| 25. ... I believe Ms. Turner was a critical witness. As the senior officer in the Human Resources Department for the Federal Government, Ms. Turner would have given evidence about the series of punishments I had been issued for essentially the same offence. |
| 26. I indicated to Adjudicator Turner that Ms. Turner was a critical witness and that she had been subpoenaed. Adjudicator Turner said there was nothing he could do about it. Adjudicator Turner refused to take into evidence the documentation confirming that Ms. Turner had been properly served. Without Ms. Turner's availability to testify, I believe, much of the critical evidence was missing. |
[34] Control over procedure is within an adjudicator's discretion. At the same time, the refusal of a properly subpoenaed witness to attend is not a matter to be condoned. There was a breach of natural justice in refusing to adjourn to allow Ms. Turner to attend. I must therefore consider whether that error was inconsequential.
[35] I note, first of all, that the evidence Dr. Joss sought to elicit from Ms. Turner was not with respect to whether or not res judicata or issue estoppel existed, which to a large extent is a legal question. To the extent that her evidence would have related to the context within which the events in issue before adjudicator Turner had arisen, to the events surrounding the suspension with pay of June 1995, it would be relevant. Dr. Joss states that he considered it crucial. Apart from Dr. Joss, she would have been the only witness before adjudicator Turner who had first had knowledge of any of the events in question.
[36] The decisions that were cited as examples of the principle that an inconsequential breach of natural justice will not result in the setting aside of a decision are: Schaaf v. Minister of Employment and Immigration, [1984] 2 F.C. 334 (F.C.A.), Canadian Cable Television Association v. American College Sports Collective of Canada Inc., [1991] 3 F.C. 626 (F.C.A.), and Minister of Employment and Immigration v. Pak Fai Chung [1993] 2 F.C. 42 (F.C.A.).
[37] Those decisions deal with situations in which there was absolutely no doubt that the error that occurred could not have affected the decision that was eventually made. In the Schaaf decision, the decision-maker failed to follow the procedure set out by the regulations, and to give the applicant an opportunity to present evidence and make submissions, because the applicant indicated at the commencement of the hearing that he did not contest the factual issue in question, i.e., that he had overstayed his visitor's visa. In the light of this admission, it was held that the error in not following the usual procedure was inconsequential.
[38] In the Canadian Cable Television case, information was received outside the hearing process by the dissenting member of the panel. It was held that this was an inconsequential error because: the majority decision was not influenced by the information; the information was in any event public and already part of the record; none of the information was adverse to the applicant's position.
[39] In the Pak Fai Chung case there was no breach of natural justice in refusing an adjournment at the reopening of a hearing, to allow the Crown to argue against the reopening, because the decision to reopen could have been the subject of a judicial review application at an earlier time and had not been.
[40] The situation in the present case does not fit within the principle illustrated by these decisions. To decide that the absence of Ms. Turner's evidence was inconsequential requires the Court to speculate as to what her evidence would have been and to decide that it would have had no effect on adjudicator Turner's decision. This requires the Court to speculate both as to the content of that evidence and the likely impact it could have had on the adjudicator. Also, this speculation would take place in the absence of any indication from the adjudicator as to why he did not require Ms. Turner's attendance. He mentioned Dr. Joss' agreement to proceed without Mr. Outhwaite, who had also been subpoenaed, but is completely silent with respect to Ms. Turner's absence. In any event, this situation is not one in which the Court can conclude that the breach of natural justice that occurred resulted in an inconsequential error.
Adjudicator's Assessment of the Evidence
[41] The above analysis did not require any assessment of the findings of fact made by the adjudicator. While the applicant's written application asserts that the adjudicator ignored relevant evidence, and took into account irrelevant evidence, and improperly concluded that harassment had occurred, these arguments were not pursued orally on the hearing of the application. Counsel would be aware that a high degree of deference is shown by the Court to findings by an adjudicator on questions of fact - the test is often phrased as whether or not the decision is patently unreasonable.
[42] Since I have found that a breach of natural justice occurred, which requires the setting aside of the decision under review, I do not need to consider whether there are errors in the assessment of the evidence that might lead to a conclusion that the decision was patently unreasonable. Some aspects of the record, however, raise questions that I think, in fairness, should be articulated.
[43] Ms. Archibald's report, the basis of the December 27, 1995 suspension, contains a finding that Mr. Simmons did not see the text of the settlement agreement until it was posted in his workplace. This was based on Mr. Simmons' assertion to her that this had been the case, and on Mr. Barlow's statement to Ms. Archibald that Mr. Simmons had not been involved (applicant's motion record, page 118). This was proved to be false. In response to Dr. Joss' enquiries prior to the hearing before adjudicator Turner, Ms. Jeanes wrote in a memorandum, dated November 10, 1997, that was provided to adjudicator Turner:
| I [Lindsay Jeanes] do not know whether or not Mr. Simmons ever saw the signed typed document but the typed document was essentially the same as the handwritten document that he was shown at the Courthouse. |
[44] Secondly, adjudicator Turner, in his decision, recounts Ms. Archibald's evidence as being that neither side would have anticipated that the settlement agreement would become public: "Ms. Archibald testified that neither side could have anticipated the M.O.U. getting into the public domain, even though it did not have a non-publication clause included in it." This appears to be based on the fact that Ms. Archibald wrote in December 1995, after her report had been finalized, that Ms. Jeanes understood from Mr. Keebler that the settlement agreement would be kept confidential (applicant's motion record, page 248). Yet Ms. Archibald's report recounts that she had been told by Mr. Keebler that the settlement agreement would not have been accepted by Dr. Joss if there had been restrictions on its distribution (applicant's motion record, page 119), and Ms. Jeanes makes no reference to the document being confidential in the document she authored in November 1997.
[45] The evidence is clear that the first two paragraphs of the settlement agreement, describing Dr. Joss' motivation in expressing concern about Mr. Simmons' absences, were inserted at Dr. Joss' insistence. He was not prepared to forgo the hearing of his grievance in their absence. He saw the June 1, 1995 hearing procedure as his opportunity to vindicate himself from what he considered to have been an unfair decision by Mr. Barlow. Adjudicator Turner wrote: "Dr. Joss should have known or ought to have known that [the settlement agreement] was a confidential document signed in good faith between two lawyers settling a personal matter that directly concerned him" (emphasis added). But agreement, or lack thereof, to a settlement of Dr. Joss' grievance was a matter for the parties to decide, not the lawyers. It was for Dr. Joss to consent, or not, to the settlement of his grievance. There was no obligation on him to accept something merely because it had been agreed to by the lawyers.
[46] Lastly, Adjudicator Turner wrote in his conclusion:
| With respect to the most important indiscretion, that is the conscious release of the M.O.U., I cannot imagine any motive by the grievor other than harassment towards Mr. Simmons. ... |
Yet the record contains Dr. Joss' very credible explanation as to why he took the document into his workplace - as part of his explanation to his fellow workers as to what had happened and why the hearing of his grievance had been cancelled.
[47] I make these comments, knowing that the applicant's case will be reheard, with no further analysis being necessary.
Procedure Before the Adjudicator
[48] It is unfortunate that proceedings before adjudicators are not taped so that a reviewing court can have access to a transcript of exactly what was said. In this case, I was presented with an affidavit of George Sigvuldason as to what was and was not said by Dr. Joss to adjudicator Turner and, therefore, what should and what should not be considered part of the record. Mr. Sigvuldason was assisting counsel for the respondent during the adjudication hearing. His assertions as to what should and should not be part of the record were based on the handwritten notes he took.
[49] It is very unsatisfactory to ask a Court to determine the record in the proceeding below on the basis of notes taken by a representative of one of the parties to that proceeding. In addition, the perception of the opposing party, particularly when that party is self-represented, must be considered. It is neither expensive, nor technologically difficult to tape the proceedings. It would surely be fairer to all to do so.
[50] The content of the record is not a significant issue in this case. Apart from one document that both counsel agreed was not part of the record below, I accepted the contents of the record as it was presented by the applicant, with the additions provided by the respondent. My comments are really a plea for a change in practice so that future judicial reviews will not be plagued with disputes about what is and what is not part of the record.
Conclusion
[51] For the reasons given, I can not conclude that issue estoppel operates in this case to prevent adjudicator Turner deciding whether the introduction of the settlement agreement into the workplace was harassment. I conclude, however, that the refusal to adjourn to await the evidence of Ms. Turner was a breach of natural justice, the consequences of which justify the
setting aside of the decision in question. Accordingly, the judicial review application will be
allowed; the decision in question set aside and the matter referred back for rehearing by a different adjudicator.
Judge
OTTAWA, ONTARIO
November 19, 1999