Date: 20060324
Docket: T-1817-04
Citation: 2006 FC 381
Ottawa, Ontario, March 24,
2006
PRESENT: THE HONOURABLE MADAM JUSTICE SIMPSON
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
LILLIAN
SHNEIDMAN
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
In
this application, the Attorney General of Canada (the “Employer”) seeks
judicial review, pursuant to section 18.1(4)(a) of the Federal Courts Act,
R.S.C. 1985, c. F-7 (the “Act”), of a decision dated September 9, 2004
(the “Decision”) made by an adjudicator (the “Adjudicator”) appointed under the
Public Service Staff Relations Act, R.S.C., c. P-35, in which she
determined, on a preliminary motion, that Lillian Shneidman’s discharge from
the Canada Customs and Revenue Agency (“CCRA”) was void ab initio.
THE BACKGROUND
[2]
In
2001 an investigation was commenced into allegations that Lillian Shneidman
(the “Employee”) had accessed confidential taxpayers’ information without
authorization, and had disclosed that information to a third party (the
“Allegations”).
[3]
In
March 2001, the Employee met twice with Normand Rodrigue, a Senior Investigator
with the Employer’s Security Directorate, who was investigating the Allegations.
Prior to the first meeting, the Employee asked Mr. Rodrigue if she should have
a union representative present, and she was told that there would be no point
because a union representative would have no right to make representations
during the meeting. Both meetings, therefore, proceeded without the presence of
her union representative.
[4]
Mr.
Rodrigue prepared an investigation report in which he indicated that the
allegations against the Employee had been substantiated. The Employee was asked
to submit a written response to this report. To permit her to prepare her
response, the Employer offered the Employee the opportunity to review an
unredacted copy of the investigation report on the basis that she would read it
alone, without the assistance of her union representative, and without taking
notes. She was, however, offered the opportunity to view a redacted copy of the
investigation report with her union representative. The Employee was not happy
with these offers; she wanted an opportunity to view an unredacted copy of the investigation
report with her union representative prior to submitting a response. This
request was denied, and the Employee did not prepare a response. Accordingly,
her employment was terminated on May 18, 2001, without the benefit of her response.
THE GRIEVANCE
[5]
On
May 24, 2001, the Employee grieved her termination (the “Grievance”). The Grievance
read as follows:
I grieve the letter of dismissal given to
me on May 18, 2001 by Don Collins and signed by Gerry Troy. I maintain that
this decision to terminate my employment is unwarranted, unreasonable,
excessive and without just, reasonable and sufficient cause.
[6]
The
Grievance asked that the following corrective action be taken in relation to the
Employee’s termination:
·
She wanted
to be reinstated in her position as a PM-2 Non Filer Investigator effective May
18, 2001.
·
She wanted
all references to her termination and all ancillary matters removed from any
and all files in which they were contained and destroyed in her presence.
·
She wanted
to suffer no loss of pay and benefits and wanted to be granted any other remedy
to make her whole again.
[7]
Under
the CCRA’s grievance process, grievances dealing with termination are first
considered at the final level. This Grievance was unsuccessful at that level. The
Employee then referred it to adjudication, and a hearing before the Adjudicator
was scheduled for May 25, 2004.
THE PRELIMINARY
OBJECTION
[8]
On
May 18, 2004, just one week before the hearing, the Employee raised a
preliminary objection. She alleged that her termination was void ab initio
due to violations of article 17.02 of a collective agreement between the Public
Service Alliance of Canada and the Canada Customs and Revenue Agency. There was
no issue between the parties that article 17.02 was in force at the relevant
time. It provided that:
When an employee is required to attend a
meeting, the purpose of which is to conduct a disciplinary hearing concerning
him or her or to render a disciplinary decision concerning him or her, the
employee is entitled to have, at his or her request, a representative of the Alliance attend the meeting. Where
practicable, the employee shall receive a minimum of one day’s notice of such a
meeting.
[9]
The
Employee made two separate arguments in the preliminary objection. First, she said
that she had been denied union representation during her two meetings with Mr.
Rodrigue. Second, she argued that she had been denied union representation when
given the opportunity to read the unredacted investigation report.
THE ISSUES BEFORE THE
ADJUDICATOR
[10]
The
Adjudicator first had to decide whether she had jurisdiction to consider the
preliminary objection. This depended on whether the wording of the Grievance was
broad enough to cover allegations that breaches of the collective agreement had
occurred prior to the termination. She then considered whether Article 17.02 of
the collective agreement had, in fact, been breached, and what the appropriate
remedy would be for such a breach.
The Decision
[11]
The
Decision is structured in three parts. First, the Adjudicator assumed
jurisdiction on the basis that:
The text of her grievance is clear and
broad enough to include a challenge to the validity of the disciplinary action
because of a denial of contractual due process. Ms. Shneidman clearly challenges
the ‘decision to terminate my employment…’ and in the corrective action
requested, she included the statement: ‘… that I be granted any other remedy to
make me whole again.’
Second, she turned to the interpretation of
article 17.02 of the collective agreement, and found that the term
“disciplinary hearing” encompassed both the meetings with Mr. Rodrigue, and the
viewing of the unredacted investigation report. Accordingly, she decided that
the Employee had been denied union representation. Lastly, the Adjudicator
concluded that the Employee’s termination had been void ab initio.
The Issue on Judicial
Review
[12]
The
first issue before this Court is whether the Adjudicator erred when she
concluded that she had jurisdiction to consider the preliminary objection.
THE STANDARD OF REVIEW
[13]
The
Employer submits that the standard of review on the jurisdictional question is
correctness, while the Employee proposes patent unreasonableness.
[14]
The
Employer submits that the preliminary objection effectively constituted a new
grievance: it addressed pre-termination procedures, which allegedly violated the
collective agreement, and which the Employer says were not included in the
grievance, as opposed to the decision to terminate, which was the subject of
the grievance. The Employee, on the other hand, says that a grievance need not
specifically mention a pre-termination violation of a collective agreement if
that violation is subsumed in the propriety of the discharge.
[15]
The
Public Service Staff Relations Act (the “PSSRA”) neither provides
for an appeal, nor includes a privative clause. Parties to an adjudication
under the PSSRA only have recourse to judicial review. However, the fact
that judicial review is available for jurisdictional errors, under paragraph
18.1(4)(a) of the Act, suggests that an adjudicator is not given
deference on jurisdictional issues.
[16]
The
PSSRA establishes a scheme to deal with labour disputes in the Federal Public
Service. Jurisdictional limitations are present to ensure that adjudicators
only consider cases that are properly brought under the PSSRA.
[17]
In
my view, the interpretation of the scope of the Grievance is not an exercise
which engages the expertise of the Adjudicator. This is to be contrasted with a
decision on the merits, in which that expertise would be most valuable. The
real issue here is whether, in the face of paragraph 92(1)(a) of the PSSRA
which is reproduced below in paragraph 21, it was open to the Adjudicator to
read the Grievance as broadly as she did, and I think that is a question of law,
which is clearly within the purview of this Court.
[18]
For
these reasons, I have concluded that the Adjudicator is not entitled to
deference on the jurisdictional issue, and that the standard of review on this
issue is correctness.
JURISDICTIONAL ISSUE
[19]
The
law as set out in Burchill v. Canada, [1981] 1 F.C. 109 (C.A.), and
applied in Shofield v. Canada (Attorney General), [2004]
F.C.J. No. 784 (T.D.) establishes that an adjudicator does not have
jurisdiction to hear a complaint that is not included in a grievance. In Canada (Treasury
Board) v. Rinaldi, [1997] F.C.J. No. 225 (T.D.) the Court held
that an adjudicator may have jurisdiction where the language of the original
grievance is broad enough to encompass the issue raised for adjudication.
Accordingly, the issue in this case is whether the Grievance, which expressly
grieves only the decision to terminate, can be read to encompass
pre-termination violations of the collective agreement.
[20]
Counsel
for the Employee argued that her Grievance could be characterized as an attack
on all aspects of her termination, and that her complaints about violations of
article 17.02 of the collective agreement were covered by the Grievance. As
discussed below, I am not persuaded by this argument for two reasons. First,
the PSSRA suggests that the problems related to the collective agreement
are not included in the Grievance because section 92 of the PSSRA
provides a separate mechanism for grieving violations of collective agreements.
Second, the language of her Grievance is clear and does not directly or
indirectly refer to a violation of the collective agreement.
[21]
Section
92 of the PSSRA provides as follows:
|
92. (1) Where an employee
has presented a grievance, up to and including the final level in the
grievance process, with respect to
(a) the interpretation or
application in respect of the employee of a provision of a collective
agreement or an arbitral award,
(b) in the case of an
employee in a department or other portion of the public service of Canada specified in Part I of
Schedule I or designated pursuant to subsection (4),
(i) disciplinary action
resulting in suspension or a financial penalty, or
(ii) termination of
employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial
Administration Act, or
(c) in the case of an
employee not described in paragraph (b), disciplinary action resulting in
termination of employment, suspension or a financial penalty, and the
grievance has not been dealt with to the satisfaction of the employee, the
employee may, subject to subsection (2), refer the grievance to adjudication.
|
92. (1) Après l'avoir porté
jusqu'au dernier palier de la procédure applicable sans avoir obtenu
satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant
sur :
a) l'interprétation ou
l'application, à son endroit, d'une disposition d'une convention collective
ou d'une décision arbitrale;
b) dans le cas d'un
fonctionnaire d'un ministère ou secteur de l'administration publique fédérale
spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du
paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une
sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux
alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;
c) dans les autres cas, une
mesure disciplinaire entraînant le licenciement, la suspension ou une
sanction pécuniaire.
|
Section 92 distinguishes grievances
relating to the provisions of collective agreements from grievances relating
terminations. Both parties acknowledge that this grievance was referred to
adjudication under paragraph 92(1)(c) of the PSSRA. It permits
the adjudication of grievances relating to disciplinary action resulting in
termination. Paragraph 92(1)(a), on the other hand, permits the adjudication of
grievances relating to the interpretation or application of provisions of the
collective agreement. The present Grievance refers only to the decision to
terminate the Employee, and, therefore, was properly referred to adjudication
under paragraph 92(1)(c). If the Grievance had been intended to encompass a
procedural complaint about a violation of article 17.02 of the collective
agreement, that portion of the Grievance should have been referred to
adjudication under paragraph 92(1)(a).
[22]
The
Employee’s counsel argued that she grieved her dismissal and that the entire
process was part of the dismissal. However, in my view, she grieved the
decision to terminate, and she grieved the letter of dismissal that contained
that decision. The language of the Grievance is clear, and it does not invoke
the collective agreement or raise pre-termination issues. In addition, contrary
to the reasoning of the Adjudicator, the phrase “made whole” in the Employee’s request
for corrective action clearly relates to a monetary award, and does not imply a
request for relief for breaches of the collective agreement. In my view, the
Employee’s grievance is properly characterized as an attack only on the
decision to terminate her employment.
CONCLUSION
[23]
For
these reasons I have concluded that the Adjudicator acted without jurisdiction
when she heard the preliminary objection. In view of this conclusion, it is not
necessary to address the other aspects of the Decision.
[24]
The
Decision will be set aside.
JUDGMENT
UPON the
Applicant’s application for judicial review of the Decision;
AND UPON reviewing the
material filed and hearing the submissions of counsel for the Applicant and
Counsel for the Respondent in Ottawa, Ontario on Tuesday, January 10, 2006;
AND UPON reserving my
decision in order to give this matter further consideration.
NOW THEREFORE THIS COURT
ORDERS that:
- The application for
judicial review is allowed with costs.
- The Decision is set
aside and the Grievance is to be heard on its merits by a different
adjudicator.
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