Date: 20050207
Docket: T-2409-03
Citation: 2005 FC 183
Ottawa, Ontario, February 7, 2005
Present: Madam Justice Danièle Tremblay-Lamer
BETWEEN:
PIERRE ARCHAMBAULT
Applicant
and
CANADA CUSTOMS AND
REVENUE AGENCY
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a Public Service Staff Relations Board adjudicator's decision that the applicant's grievances could not be referred to adjudication under section 92 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (PSSRA).
[2] The applicant worked at the Canada Customs and Revenue Agency (the respondent) as a collection contact officer from January 10, 2000, to March 31, 2001. The respondent told Mr. Archambault he would be on probation for a maximum of 12 months.
[3] Over that period, the applicant was given general training in the first two weeks of work and additional training on May 30 and 31 and June 6, 7 and 8, 2000.
[4] On September 14, 2000, the applicant was warned verbally and in writing that a marked improvement in his performance was required, failing which his rejection on probation would be contemplated.
[5] An evaluation period followed, with meetings with the applicant twice a week, until October 30. An evaluation report for that period was given to Ms. Fortier, Assistant Director, Revenue Collections Branch.
[6] Ms. Fortier notified the applicant of his rejection on probation on October 30, 2000. She said that according to various evaluations, he did not meet the employer's expectations, and that he would cease to be an employee after two weeks' notice, as of November 14, 2000.
[7] On November 16, 2000, the applicant filed two grievances in relation to his rejection on probation, and these were dismissed by the Adjudicator for want of jurisdiction since they could only be referred to adjudication if they were of a disciplinary nature.
Analysis
[8] The provisions of the PSSRA on the jurisdiction of an adjudicator provide 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.
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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;
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[9] Therefore, paragraph 92(1)(c) of the PSSRA, which is applicable to the case at bar, provides that an adjudicator appointed under the Act has jurisdiction solely over "disciplinary action resulting in termination of employment, suspension or a financial penalty".
[10] In an attempt to clarify what needs to be done in considering this issue, the Federal Court of Appeal in Canada (Attorney General) v. Penner, [1989] F.C. 429 (C.A.), based on the Supreme Court of Canada's decision in [1978] 2 S.C.R. 15">Jacmain v. Canada (Attorney General), [1978] 2 S.C.R. 15, held that an adjudicator appointed under the PSSRA is not concerned with a rejection on probation "as soon as there is evidence satisfactory to him that the employer's representatives have acted, in good faith, on the ground that they were dissatisfied with the suitability of the employee for the position." (Penner, supra at p. 441.) In that case, an adjudicator simply has no other choice; similarly, see Altwasser v. Canada (1993), 104 D.L.R. (4th) 256 (F.C.A.).
[11] The onus is on the employer to establish "some evidence the rejection was related to employment issues and not for any other purpose": Canada (Attorney General) v. Leonarduzzi, [2001] F.C.J. No. 802 (T.D.)(QL).
[12] However, it is important to remember that were it found that an employer's decision to dismiss an employee was in fact a disguised disciplinary termination of employment, this could be a decision made in bad faith, and an adjudicator would have jurisdiction over the issue: Canada (Treasury Board) v. Rinaldi, [1997] F.C.J. No. 225 (T.D.)(QL). In that case, the Federal Court repeated the following comments by Marceau J.A. in Penner, supra at p. 440: "A camouflage to deprive a person of a protection given by statute is hardly tolerable." It is up to the grievor to establish that his rejection constituted a disguised disciplinary dismissal: Rinaldi, supra.
[13] In the case at bar, the Adjudicator decided that the termination of the applicant's employment relationship was not disguised disciplinary action, it was indeed related to employment issues, and he thus lacked jurisdiction to hear the grievance. What then is the standard of review for that decision?
[14] In light of the recent Supreme Court of Canada decisions on pragmatic and functional interpretation (see, for example, Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982), an adjudicator's decision deserves greater deference, in my view, even though the privative clause the legislation once contained has since been repealed.
[15] The nature of the action taken by the employer against the employee comes within the recognized expertise and experience of people designated as adjudicators. Whether the employer acted in good faith in terminating the employment relationship for employment-related reasons or rather took disciplinary action under cover of employment-related reasons is an issue that falls squarely under the jurisdiction conferred on adjudicators under the Act. Even if, ultimately, the issue is of a jurisdictional nature, it requires a thorough investigation of the facts relating to the intentions and actual conduct of the employer.
[16] Put simply, jurisdiction under paragraph 92(1)(c) of the PSSRA depends on whether the employee's dismissal was the result of disciplinary action. That is a pure finding of fact, so in my view the applicable standard of review is patent unreasonableness.
[17] In the case at bar, the evidence before the Adjudicator supported a finding that the respondent acted in good faith and dismissed the applicant for employment-related reasons: the applicant quite simply failed to meet expectations despite the many warnings given and efforts made to improve his work performance.
[18] The Adjudicator's decision is based on his assessment of the evidence and cannot be described as patently unreasonable. The intervention of this Court is therefore unwarranted.
Attack on the reputation of Ms. Jennifer Champagne
[19] The applicant accused Ms. Jennifer Champagne, counsel for the respondent before the Public Service Staff Relations Board, of fabricating evidence, forgery and perjury.
[20] The evidence in the record shows that this accusation is completely unfounded. The respondent filed a supplementary affidavit to this effect, the affidavit of Isabelle Lajeunesse, Senior Labour Relations Advisor at the Canada Customs and Revenue Agency, in which she explains in detail why there were different versions of the applicant's performance evaluation and that at no time was it the respondent's intention to falsify the document in question.
[21] I note that the applicant chose not to cross-examine the affiant. Accordingly, the facts in the affidavit are held to be true.
[22] I also note that the representatives of the respondent communicated with the applicant to point out to him that an assertion under oath that documents were falsified could have serious consequences and that it was the applicant's responsibility to fully explain the basis for such a conclusion.
[23] In spite of that, the applicant persisted with his very serious accusation against counsel and failed to provide the Court with any evidence in support of the alleged fraud.
[24] The fact that he filed a private complaint with a justice of the peace in no way substantiates his claim that counsel is the subject of a criminal court proceeding.
[25] As Cory J. indicated in Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at p. 1178:
. . . The reputation of a lawyer is of paramount importance to clients, to other members of the profession and to the judiciary. A lawyer's practice is founded and maintained upon the basis of a good reputation for professional integrity and trustworthiness. It is the cornerstone of a lawyer's professional life. Even if endowed with outstanding talent and indefatigable diligence, a lawyer cannot survive without a good reputation. . . .
[26] A party is not entitled to attack the reputation of a lawyer with impunity, as in the case at bar. The Court cannot condone such behaviour.
[27] Consequently, given the applicant's conduct and the seriousness of the accusation, the Court assesses costs against the applicant in accordance with Tariff B, column V.
[28] For these reasons, the application for judicial review is dismissed with costs.
ORDER
THIS COURT ORDERS that the application for judicial review be dismissed with costs in accordance with Tariff B, column V.
"Danièle Tremblay-Lamer"
J.
Certified true translation
Peter Douglas
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2409-03
STYLE OF CAUSE: Pierre Archambault
and
Canada Customs and Revenue Agency
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: February 2, 2005
REASONS FOR ORDER
AND ORDER: Madam Justice Danièle Tremblay-Lamer
DATE OF REASONS: February 7, 2005
APPEARANCES:
Pierre Archambault for the applicant
Raymond Piché for the respondent
SOLICITORS OF RECORD:
6-345, rue Nobel
Laval, Quebec
H7N 4A2 for the applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada
Montreal, Quebec for the respondent
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