Sherman v. Canada (Canada Customs and Revenue Agency), 2005 FC 173

Date: 20050203

Docket: T -1046-04

Citation: 2005 FC 173

Ottawa, Ontario, this 3^rd day of February, 2005

Present:           THE HONOURABLE MR. JUSTICE von FINCKENSTEIN

BETWEEN:

                                                           SIMONE SHERMAN

                                                                                                                                            Applicant

                                                                           and

                                    CANADA CUSTOMS AND REVENUE AGENCY

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                Simone Sherman, (the "Applicant") was employed as an Electronic Commerce Auditor with the Canada Customs and Revenue Agency ("CCRA"). The Applicant suffered an injury to her right hand and arm on February 21, 1994, which was described by her treating physician as "a work related musculoskeletal injury which affected both her upper limbs, her shoulders and her neck". The Applicant stopped working on July 18, 1994 to recuperate from her injury and returned to the workplace on December 18, 1995. Upon her return, she worked only 4 hours per day in a less physically demanding position. At this point commenced a seemingly endless dispute between the Applicant and her employer regarding:

-           the type of work she could perform;

-           the position she should fill;

-           the efforts that the employer should make to accommodate her;

-           the hours of work she could perform; and

-           the amount of pay to which she was entitled.

[2]                The Applicant filed several claims with the Workman's Compensation Board ("WCB") (since renamed the Workman's Safety and Insurance Board but for simplicity, referred to in these reasons throughout as WCB) and grievances under the applicable collective agreement. It is unnecessary to go into the detail of these claims and grievances (several of which are still ongoing). Suffice it say to say that the key issues outstanding between the Applicant and the CCRA remain unresolved. Her employment was terminated by CCRA as of August 28, 2000.

[3]                The Applicant grieved this dismissal unsuccessfully and then initiated an Independent Third Party Review of her termination as provided for under Independent Third Party Review Guidelines ("ITPRGuidelines") adopted by the CCRA pursuant to the Canada Customs and Revenue Agency Act S.C. 1999 c.17 s.54 (the "CCRA Act"). Following a 19 day hearing, the Independent Third Party Reviewer ("Reviewer"), on February 25, 2003, decided that CCRA had failed to accommodate the Applicant and that the Applicant had been unjustly dismissed. He, therefore, ordered her reinstated effective August 28, 2000. The key portion of his ruling reads as follows:

Consequentially, I order that Ms. Simone Sherman be reinstated to her home position as an ECAS auditor, effective August 28, 2000. I should note, as well, that it flows from my findings, that the Employer's obligations to accommodate Ms. Sherman in that position have not been met and would, necessarily, continue upon reinstatement.

I find, as well, that such reinstatement entails the provision of all wages and benefits that would have been due and payable to Ms. Sherman, has she not been excluded from the workplace and had continued in her job as an auditor with the CCRA from August 28, 2000.

[4]                A dispute then arose between the Applicant and her employer as to the interpretation of this ruling with respect to retroactive pay. On January 6, 2004, the Applicant's representative wrote to the Reviewer asking him the following two questions:

We ask that you clarify your decision as follows:

1.              Was it your intent that Ms. Sherman's retroactive pay entitlement be restricted to 4 hours per day rather than 7.5 hours (i.e., a full day's pay)?

2.             Is the completion of a Functional Abilities Evaluation a precondition to her return to work?

[5]                The Reviewer asked the CCRA if he had jurisdiction to issue a clarification. According to the affidavit of the Applicant's union representative, the CCRA's Office of Dispute Management (ODM) advised the Reviewer that he was free to proceed but that he would not be paid for providing the clarification. Neither the Applicant, nor the Respondent made any submissions to the Reviewer. The Reviewer issued a clarification on February 5, 2004, which provided:

I found, as well that such reinstatement to her home position entailed "the provision of all wages and benefits that would have been due and payable to Ms. Sherman, had she not been excluded from the workplace and had continued in her job as an auditor with the CCRA from August 28, 2000."

You may recall from your examination of the transcript of the hearing that the evidence presented showed that Ms. Sherman's home or substantive position was as an electronic commerce auditor with the CCRA, which was clearly a full-time position, notwithstanding the temporary accommodation efforts which resulted in her working limited hours prior to her dismissal. Consequently, any reinstatement would have been back to her substantive position which was a full-time position, and the retroactive pay and benefits calculated accordingly.   

[6]                On March 1, 2004, the CCRA provided the Applicant with back pay based on four hours per day. On March 3, 2004, her union filed a grievance seeking back pay for 7.5 hours per day. On April 6, 2004, her union's counsel made a formal demand for full back pay retroactive to August 28, 2000. CCRA counsel sent a formal rejection letter on May 6, 2004, maintaining that the Applicant's back pay for the termination period should be based on four hours per day. The Applicant has been paid retroactive pay for four hours per day to date.

RELIEF SOUGHT

[7]                On October 18, 2004, the Applicant brought this application for an order of mandamus seeking:

1.        an order of mandamus requiring the CCRA to provide her with back pay dating from August 28, 2000, based on a full time rate of pay, with interest.

2.        costs on a solicitor-client basis due to the bad faith of the Respondent.

ISSUES

[8]                The following issues are raised in this motion:

1.         Does the CCRA have a legal duty to provide the Applicant with retroactive pay at the rate of 7.5. hours per day?

2.         Does the Applicant have an alternative and adequate avenue of redress?

STATUTORY PROVISIONS

[9]                The relevant portions of sections 50, 51, 52 and 54 of the CCRA Act provide:

50. The Agency is a separate employer under the Public Service Staff Relations Act.

51. (1) Notwithstanding subsections 11(2) and (3) and section 12 of the Financial Administration Act, the Agency may, in the exercise of its responsibilities in relation to personnel management,

(a) determine its requirements with respect to human resources and provide for the allocation and effective utilization of human resources;

(b) determine requirements for the training and development of its personnel and fix the terms and conditions on which that training and development may be carried out;

(c) provide for the classification of Agency positions and employees;

(d) determine and regulate the pay to which persons employed by the Agency are entitled for services rendered, the hours of work and leave of those persons and any related matters;

(e) provide for the awards that may be made to persons employed by the Agency for outstanding performance of their duties, for other meritorious achievement in relation to those duties and for inventions or practical suggestions for improvements;

(f) establish standards of discipline for its employees and prescribe the financial and other penalties, including termination of employment and suspension, that may be applied for breaches of discipline or misconduct and the circumstances and manner in which and the authority by which or by whom those penalties may be applied or may be varied or rescinded in whole or in part;

(g) provide for the termination of employment or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct, of persons employed by the Agency and establish the circumstances and manner in which and the authority by which or by whom those measures may be taken or may be varied or rescinded in whole or in part;

(h) determine and regulate the payments that may be made to Agency employees by way of reimbursement for travel or other expenses and by way of allowances in respect of expenses and conditions arising out of their employment; and

(i) provide for any other matters that the Agency considers necessary for effective personnel management, including terms and conditions of employment not otherwise specifically provided for in this subsection.    

(2) The Commissioner must apply the penalties, including termination of employment and suspension, under paragraph (1)(f) and provide for termination or demotion under paragraph (1)(g) on behalf of the Agency.               

53. (1) The Agency has the exclusive right and authority to appoint any employees that it considers necessary for the proper conduct of its business.

(2) The Commissioner must exercise the appointment authority under subsection (1) on behalf of the Agency.                

54. (1) The Agency must develop a program governing staffing, including the appointment of, and recourse for, employees.

Collective agreements

(2) No collective agreement may deal with matters governed by the staffing program.

[10]            The relevant portion of the ITPR Guidelines provide:

The reviewer will:

-                limit participation to the parties in conflict. The parties will have the right to be accompanied or represented by a person of their choice. The reviewer will have the option of addressing or requesting a response from any person directly involved with the review. A case is considered a private matter between the parties involved;

-                give expression to the principles of procedural fairness (i.e. the right to be heard, etc);

-                comply with the laws governing the Agency and its employees;

-                determine the relevancy of the information provided by the parties. The reviewer will not have the power to subpoena witnesses.    The parties may be required to support their cases though documentation and should be prepared to share documents at the reviewer's discretion. On staffing matters linked to a selection process, the reviewers will be limited to examining the events and decisions related only to the placement phase and not to those related to the assessment or prerequisite phases;

-                ensure people with disabilities are reasonably accommodated and that the language of choice of the complainant is respected;

-               request internal subject-matter experts to provide policy-related interpretations as required. Such information will be made available to the parties in conflict;

-                consider each case on its own merit, i.e. the reviewer will not be bound by previous decisions or precedents. However, the reviewer will be required to review previous decisions that are relevant to the case;

-                advise the parties of the impact on the eventual review decision of not acting in good faith with respect to the review process, e.g. not providing documentation as agreed, not showing up, and not giving available evidence;

-                reach a decision based on the information provided as early as possible;

-               issue a final and binding written decision, including rationale, within ten (10) calendar days after the final exchange of information between the parties and the reviewer. The report would be forwarded to the ODM, preferably in electronic format, for distribution to the parties in conflict (including representatives, when involved, and the manager's local human resources advisor), the responsible Assistant Commissioner, and the relevant functional division within the Human Resources Branch;

The written decision shall include the following: the names and work location of the parties, the nature of issue, the decision taken and corrective measures, the rationale for the decision and a brief description of the process used. The report should include a reminder to the parties not to disclose case-related personal information about other individuals, and not contain sensitive business related information such as taxpayer data. A detailed transcript of the hearing is not required; and

-                consult the parties on the nature of the corrective measures under consideration before making a final decision on this matter. The range of possible corrective measures is detailed in Appendix III.

Appendix III                            Range of corrective measures

[underlining added]

ANALYSIS

ISSUE 1:         Does the CCRA have a legal duty to provide the Applicant with retroactive pay at the rate of 7.5. hours per day?

[11]            The Respondent maintains that no such legal duty exists because:

a)          the original Reviewer's decision did not order reinstatement and back pay at 7.5 hours per day, as he did not have jurisdiction to do so under the ITPR process;

b)          the Reviewer's subsequent clarification has no legal effect as he was functus officio; and

c)          in the alternative, the Reviewer's subsequent clarification has no effect as it was issued unfairly without giving the Respondent an opportunity to make submissions.

[12]            In order to obtain an order for mandamus, an applicant must fulfill the seven criteria set out in Apotex v. Canada (Attorney General) [1994] 1 F.C. 742 at para 45:

(i)             There must be a public legal duty to act;

(ii)            The duty must be owed to the applicant;

(iii)           There is a clear right to the performance of that duty. In particular:

(A)           The applicant has satisfied all conditions precedent giving rise to the duty;

(B)            There was (i) a prior demand for performance of the duty; (ii) a reasonable time to comply with the demand unless refused outright; and (iii) a subsequent refusal which can be either expressed or implied, e.g. unreasonable delay;

(iv)          No other adequate remedy is available to the applicant;

(v)           The order sought will be of some practical value or effect;

(vi)           The Court in the exercise of discretion finds no equitable bar to the relief sought; and

(vii)         On a "balance of convenience" an order in the nature of mandamus should issue;   

The parties agree that in this application their dispute concerns criteria (i), and (iv).

[13]            In order to determine whether a duty in this sense exists, we must first examine the statutory scheme under which the CCRA operates.

[14]            The statutory scheme regarding human resources in the CCRA is fairly straightforward. The CCRA Act establishes the CCRA as a separate employer and spells out the rights of the CCRA with respect to human resource management. Sections 51 and 54 make it abundantly clear that the CCRA "must develop a program governing staffing, including the appointment of, and recourse for, employees". Furthermore, the CCRA "may in the exercise of its responsibilities in relation to personnel management ... provide for the termination of employment or the demotion to a position at a lower maximum rate of pay, for reasons other than breaches of discipline or misconduct".

[15]            Pursuant to the Act, the CCRA adopted the ITPR Guidelines which give the Reviewer power to review termination for non-disciplinary reasons (see excerpt set out in para 10 above). The Reviewer, if he decides in favour of an Applicant, can then issue corrective measures which can include an order of reinstatement, an order to accommodate and an order of remittance of last salary and benefits. (See Appendix III set out in para 10 above) .

[16]            In this case, the Reviewer issued an order of reinstatement, ordered the continuation of efforts to accommodate the Applicant and a retroactive reinstatement of wages and benefits. The CCRA accepted the Reviewer's award and proceeded to implement the award, according to its understanding of it.

[17]            When a dispute arose as to the meaning of the award, the CCRA did not dispute the request for clarification, nor argue that the Reviewer had no jurisdiction, it merely objected to paying him for the supplemental services. Apparently there was no authority for payment of these additional services. (See Applicant's Record at p. 10).

[18]            I fail to see how it can be argued that the Reviewer did not have jurisdiction to order reinstatement and retroactive pay at the rate of 7.5 hours per day. The Act obliges the agency to:

-               provide for the termination of employment for reasons other than breaches of discipline or misconduct (s. 51(1)(g))

-               to develop a program governing staffing, including the appointment of, and recourse for, employees (s. 54(2)).

The ITPR Guidelines provide for recourse in cases of termination and they also allow for the award of orders of reinstatement and continuing efforts to accommodate, as well as the remittance of lost salary and benefits. Acting under the ITPR Guidelines, the Reviewer explicitly found that there was a failure to accommodate and ordered reinstatement and retroactive pay. When a question arose as to how to calculate back pay, the Reviewer, with both parties' consent, clarified this order.

[19]            Having set up the ITPR process, having participated in the hearing, having started to implement the award (as interpreted by CCRA), having failed to object to the award and having failed to seek judicial review of the award , the CCRA is now estopped from asserting at this late date that the Reviewer lacked jurisdiction to make the award. As succinctly stated by Campbell J. In Ontario Provincial Police ( Commissioner) v. Silverman (2000), 49 O.R. (3d) 272 at paragraph 25:

.. A basic principle of our law estops a party who invites a tribunal to accept jurisdiction from saying, when he finds that the tribunal decides against him, that the tribunal lacked the very jurisdiction he invited it to exercise: Ex p. Pratt, Re Pratt (1884), 12 Q.B.D. 334 at p. 341, 53 L.J. Ch. 613, per Bowen L.J., quoted by Gliders J.A. in Imperial Tobacco v. Imperial Tobacco Sales,1939] O.R. 627 at p. 644,72 C.C.C. 321 at p. 346.

[20]            The Respondent further asserts that the Reviewer was functus officio and that his clarifying award has no legal effect. It is well established that a tribunal upon making its award becomes functus and cannot revisit its earlier decision (see Halford v. Seed Hawk Inc [2004] F.C.J. No. 557). However, it is equally well established that a tribunal can issue a clarifying award as long as it does not create new or broader rights than those conferred in its initial award (see Cargill Ltée v. Syndicat national des employées de Cargill Ltée [2002] F.C.J. No 981). That is precisely the situation here; the original award reinstated the Applicant and granted her salary and benefits. The dispute now concerns the calculation of the retroactive salary and benefits. These are not new and broader rights but merely a clarification of how to calculate the rights already awarded.

[21]            Similarly, I cannot accept the argument that the clarification was provided in an unfair manner because the Reviewer issued it without accepting submissions. The Reviewer spent 19 days hearing the parties and wrote a detailed 82 page decision. He did not seek submissions from either side and I am not sure how submissions from the parties could assist the Reviewer in determining what was in his own mind when he made his decision. The letter from the union requesting clarification, dated January 6, 2004, was one page long and merely set out the issue. It did not contain any submissions. Thus, the issuance of the clarification was not unfair as neither the Applicant nor the CCRA was not given another chance to make submissions. The Reviewer, being thoroughly familiar with the case and his own detailed decision, supplied, at the request of one party and with the consent of the other, (or at least without their objection after being duly informed of the request,) a clarification. I fail to see the due process violation that the Respondent alleges.

[22]            The Applicant argues, in the alternative, that even if the original award and the clarification was defective, it was up to the Respondent to seek judicial review. Having failed to do so within the time frames provided, the Applicant states that the Respondent's questioning of the award and the clarification, in the context of an application for a mandamus, amount to a collateral attack, relying on [1983] 2 S.C.R. 594">Wilson v. the Queen [1983] 2 S.C.R. 594. I would agree with the Applicant, however, as I have already found in her favour on the basis of the interpretation of the Act and the ITPR Guidelines, there is no need here to canvass the law of collateral attacks and explain why the actions of the Respondent in this case do indeed constitute a collateral attack.

ISSUE 2:         Does the Applicant have an alternative and adequate avenue of redress?

[23]            The Respondent argues that the Applicant has three alternative avenues of redress:

a)          The WCB appeals commenced in 1998;

b)         Her grievance commenced in 1997, 1998 and 1999 which are now before the PSSRB; and

c)         The new grievance filed on March 3, 2004, based on the failure to implement the Reviewer's award and clarification.

[24]            The are two problems with this argument. First, the PSSRB process is only available with respect to grievances regarding matters "in respect of which no administrative procedure for redress is provided for in or under an Act of Parliament" (s. 91 of Public Service Staff Relations Act, ( R.S. 1985, c. P-35 )). Both the CCRA Act and the Canadian Human Rights Act provide for alternative administrative procedures. Thus, these alternative procedures would deprive the PSSRB of jurisdiction to deal with the Applicant's grievances (see Dhudwal v. CCRA 2003 PSSRB 116 and Canada (Attorney General) v. Boutilier [2000] 3 F.C. 27).

[25]            Secondly, any hearing before either the WCB or the PSSRB, on the assumption they had jurisdiction, would produce a rehearing of the entire dispute and could result in; a) different factual findings and b) different awards. Even the Respondent concedes this point. As he states in his argument found in the Applicant's Record at pp. 278 and 280:

If the Applicant were to be successful in these appeals, the WSIB may award her benefits in regard to the 3.5 hours per day of pay that she now seeks in this application for judicial review.

If the Applicant were to be successful in these grievances, the PSSRB could award tot he Applicant compensation in regard tot he 3. 5 hours per day of pay that she now seeks in this application for judicial review.

If the Applicant were to be successful in this grievance, the Applicant may be awarded compensation in regard to the 3.5 hours per day of pay that she now seeks in this application for judicial review. [underlining added]

I see no reason why the Applicant should have to re-litigate these issues and have to take the risk that the WCB would come to a conclusion other than the one produced by the ITPR process. The issue has been fully litigated and an award has been made. Besides being grossly unfair to the Applicant, I can think of no applicable legal principle that would demand relitigation of the issue. Accordingly, the Respondent's argument on this point also does not succeed.

[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.

COSTS

[27]            The Applicant asked for solicitor and client costs on the basis that the objections of the CCRA to the issuance of a mandamus is scandalous, frivolous and vexatious and an abuse of the Court. In addition, she argues that the CCRA has acted in bad faith throughout, as evidenced by the Reviewer, and accordingly, a sanction by way of solicitor and client costs is warranted. I fail to see how the CCRA's position before me was scandalous, frivolous and vexatious and an abuse of the Court. While I did not agree with the Respondent's submissions, they were based on reasonable arguments. I am also mindful that this case was the first award made under the ITPR process and thus it is not surprising that there were teething problems and the need to clarify the ambit of the ITPR process by litigation. This litigation does not qualify as an abuse of this Court. As far as bad faith is concerned, the Reviewer's finding concerned the failure to accommodate, it has no bearing on the issue before we which concerns essentially jurisdictional issues. Accordingly, I will only award cost to the Applicant on a party to party basis.

CONCLUSION

[28]            Given that the parties agreed that, other than the two criteria discussed above, the Applicant meets all the seven criteria stated in Apotex v. Canada (Attorney General) [1994] 1 F.C. 742, an order for mandamus as requested shall issue.

                                               ORDER

THIS COURT ORDERS that:

1.         The requested order for mandamus shall issue; namely the Respondent shall the provide the Applicant with retroactive pay (with interest) dating from August 28, 2000, based on a full-time rate of pay.

2.         The Applicant is entitled to her costs from the Respondent on a party to party basis.

"K. von Finckenstein"

                                                                                                   Judge                     

                         FEDERAL COURT OF CANADA

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  T-1046-04                    

STYLE OF CAUSE: Simone Sherman

                                                                    v.

                                                                        Canada Customs and Revenue Agency

PLACE OF HEARING:                                 Ottawa, Ontario

DATE OF HEARING:                                   January 26, 2005

REASONS FOR ORDER OF:                      THE HONOURABLE MR. JUSTICE VON FINCKENSTEIN

DATED:                     February 3, 2005          

APPEARANCES:

Steven Welchner                                               FOR APPLICANT

Christopher Leafloor                                          FOR RESPONDENT

SOLICITORS OF RECORD:

Nelligan O'brien Payne LLP                                          FOR APPLICANT

Ottawa, ON               

Morris Rosenberg

Deputy Attorney General of Canada                  FOR RESPONDENT