Date: 20020129
Docket: T-2397-00
OTTAWA, Ontario, January 29, 2002
BEFORE: Rouleau J.
BETWEEN:
CHARLOTTE RHÉAUME
Plaintiff
AND:
ATTORNEY GENERAL OF CANADA
Defendant
ORDER
[1] The application for judicial review is dismissed.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20020129
Docket: T-2397-00
Neutral citation: 2002 FCT 98
BETWEEN:
CHARLOTTE RHÉAUME
Plaintiff
AND:
ATTORNEY GENERAL OF CANADA
Defendant
REASONS FOR ORDER
ROULEAU J.
[1] This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, against an adjudication dated November 27, 2000 which Board member Jean-Pierre Tessier, sitting as a grievance adjudicator pursuant to s. 92 of the Public Service Staff Relations Act ("PSSRA"), R.S.C. 1985, c. P-35 ("the Act"), made dismissing the plaintiff's grievance against a "constructive dismissal" for being beyond the deadline. The plaintiff is seeking an order quashing the adjudication, on the basis that the adjudicator exceeded his jurisdiction and contravened the rules of natural justice and procedural fairness, and ordering a re-hearing on the merits of the issue before a new adjudicator.
[2] The plaintiff has been an employee of the federal Public Service since February 1985. Since May 1987 she has held an indeterminate position in the Department of National Revenue, which became the Canada Customs and Revenue Agency ("the employer") on November 1, 1999, in the business window technical interpretations section, customer service division. Her employment contract was governed by the Act and the applicable master agreement.
[3] On November 27, 1990 the plaintiff had to stop work in accordance with a medical recommendation. In a letter dated March 4, 1991 the physician attending the plaintiff indicated to the employer that she would be able to return to work on April 1, 1991, but could not return to her previous position. The physician recommended that the plaintiff be transferred to another work location.
[4] In a letter to Marc Milliard, regional manager, human resources, Customs and Excise, on December 6, 1991 the plaintiff repeated her wish to return to work, noting that as of January she would have no source of income.
[5] By a letter dated June 30, 1993, 28 months after the letter of December 6, 1991 was sent, the employer offered the plaintiff a position of inquiry officer in the interpretation and services division of the REGLO. The plaintiff accepted this new position on July 16, 1993 and started on August 2, 1993.
[6] The plaintiff later learned in 1995 that the Department had unilaterally decided she was on long-term unpaid sick leave between April 1, 1991 and August 2, 1993. In a letter from the Deputy Minister of Revenue Canada to the plaintiff on April 18, 1995, he said the following:
[TRANSLATION]
As regards the loss of salary you mentioned in your letter, representatives of the Department have informed me that this resulted from your long-term unpaid sick leave. A review of the circumstances indicated that during this period you were treated fairly and equitably, taking into account the limitations imposed by your physician, your well-being and the continuance of operations.
[7] The employer did not pay the plaintiff a salary for the period between April 1, 1991 and August 2, 1993.
[8] At the time of her illness, on January 23, 1991, the employer's regional medical evaluation officer for Health and Welfare Canada, Dr. Rolland Meloche, relegated the file to industrial accidents and occupational diseases. On March 21, 1991 the Sun Life of Canada Public Service Employees Disability Insurance Settlement Office suggested that the plaintiff make a benefit application to the Commission de la santé et de sécurité du travail (CSST) for a decision by that body.
[9] An initial decision by the CSST was made on April 24, 1991, the Bureau de révision paritaire made its decision on June 29, 1992 and the case was appealed to the Commission d'appel en matière de lésion professionnelle (CALP).
[10] At the same time, on January 22, 1992 the grievance settlement procedure for injustices due to harassment was going forward and the plaintiff was asking as compensation to be paid a sum of money [TRANSLATION] "covering all the salary lost and related benefits, retroactive to April 1, 1991". The employer asked that the hearing before the CALP be postponed pending a decision on the grievances. The adjudicator of the Public Service Staff Relations Board ("the Board") heard the grievances in 1993 and 1994, represented by her union on a basis of harassment. The adjudicator dismissed the grievances on June 27, 1994.
[11] On January 26, 1996 the CSST found that it had not been established that this was an industrial accident or occupational disease. In July 1996, following the final decision by the CALP that it was not an industrial accident, the Sun Life disability insurance company agreed to review the plaintiff's file from the "disease" aspect. On July 11, 1996 Sun Life refused to pay disability benefits from the period between April 1, 1991 and August 2, 1993.
[12] Finally, by a letter dated May 26, 1997 Sun Life agreed to review the plaintiff's file and its decision was taken by the employer's union for review to the Public Service National Joint Council ("NJC"), on which representatives of the employer and of the union and an evaluation medical officer sat. By a letter dated December 15, 1997 the NJC rendered a final negative decision regarding the plaintiff, and this decision was communicated to her on December 29, 1997.
[13] In view of the NJC's negative decision, the plaintiff on February 2, 1998 filed a grievance authorized by her union in which she claimed [TRANSLATION] "payment of [her] salary and fringe benefits lost for the period from April 1, 1991 to August 2, 1993". In her grievance the plaintiff argued that her condition was not an illness, as her employer maintained, and was actually a constructive dismissal.
[14] In a letter dated December 21, 1999 the Board regarded the matter as having been decided, dismissed and closed. The grievance was referred to adjudication before the Board and, after an application for review by the plaintiff, the hearing was scheduled for September 18 and 19, 2000.
[15] At the start of the hearing the employer's representative raised two objections declining jurisdiction based on the fact that the matter was res judicata and the grievance prescribed. The adjudicator Tessier indicated that the declinatory exceptions would be taken under advisement and proceeded to hear the grievance on the merits. In his decision of November 27, 2000 he concluded that the grievance was prescribed and dismissed it on that ground.
[16] The plaintiff filed an application for judicial review on December 28, 2000.
[17] On September 17, 2001 the plaintiff filed a written motion pursuant to Rule 369 of the Federal Court Rules (1998) seeking the Court's leave to enter three new exhibits in the record, namely the Sun Life letter dated May 26, 1997 and two letters from the Board dated January 24, 2001 and February 19, 2001 respectively, in support of the plaintiff's memorandum in reply. The defendant did not object to this motion.
[18] Pursuant to an order by Richard Morneau, prothonotary, on October 1, 2001 the plaintiff entered these exhibits as a supplementary record.
[19] In his decision of November 27, 2000 the adjudicator relied, first, on the written account of February 4, 1991 of a meeting in January 1991 between two Revenue Canada managers (Marc Milliard, regional manager, human resources, and Joanne Desjardins, regional chief, administrative services) in concluding that:
[TRANSLATION]
THE EMPLOYER'S REPRESENTATIVES WHO CONTACTED MS. RHÉAUME IN WRITING OR REPORTED ON HER WERE ALWAYS CERTAIN SHE WISHED TO BE TRANSFERRED TO ANOTHER DEPARTMENT.
[20] He continued, commenting that on the evidence,
[TRANSLATION]
. . . IT SEEMS CLEAR THAT THE GRIEVOR KNEW FROM 1991 ONWARDS THAT SHE WOULD BE WITHOUT INCOME IN JANUARY 1992. IN HER LETTER OF DECEMBER 6, 1991 SHE SPECIFIED "ESPECIALLY AS NEXT JANUARY I WILL BE COMPLETELY WITHOUT INCOME".
[21] Then, he referred to the grievance filed in January 1992, in which the plaintiff claimed [TRANSLATION] "a sum of money covering all the salary lost and related benefits, retroactive to April 1, 1991". He further noted that [TRANSLATION] "Sun Life's refusal in 1996 . . . was a reminder [to the plaintiff] that she was without insurance benefits and without salary for the period from 1991 to 1993".
[22] On the question of parallel remedies, the adjudicator dismissed the plaintiff's argument as follows:
[TRANSLATION]
IT IS ESSENTIAL TO MAINTAINING GOOD WORKING RELATIONS THAT MATTERS PROCEED PROMPTLY AND THAT GRIEVANCES BE FILED WITHIN SPECIFIC DEADLINES. REMEDIES RELATING TO THE PAYMENT OF DISABILITY BENEFITS DID NOT IN ANY WAY PREVENT THE FILING OF GRIEVANCES AT THE PROPER TIME ON THE NON-PAYMENT OF REMUNERATION IF MS. RHÉAUME FELT SHE WAS ENTITLED TO DO SO. FURTHER, IN ANOTHER GRIEVANCE IN 1992 . . . SHE CLAIMED A SUM OF MONEY AS COMPENSATION FOR HER LOSS OF SALARY. THE USE OF SEVERAL PROCEEDINGS ON ACCOUNT OF ONE EVENT DOES NOT CREATE AN EXTENSION OF DEADLINES SO THAT, IN THE EVENT THE FIRST GRIEVANCE IS DISMISSED, ANOTHER CAN BE FILED SEVERAL YEARS LATER.
[23] The adjudicator Tessier concluded that the deadlines had begun to run for the plaintiff on July 16, 1993. He gave the following reasons for his decision:
[TRANSLATION]
IN ANY CASE, ALL THE INCIDENTS RELATING TO THE PAYMENT OF SALARY AND THE TRANSFER APPLICATION OCCURRED BETWEEN 1991 AND 1993. ACCORDINGLY, THAT WAS WHEN THE EVENT, IF ANY, WHICH COULD BE THE SUBJECT OF A GRIEVANCE OCCURRED. I CANNOT SEE WHY ON JULY 16, 1993 AT THE LATEST, AT THE TIME SHE OBTAINED A POSITION, MS. RHÉAUME DID NOT FILE A GRIEVANCE, IF SHE FELT SHE WAS ENTITLED TO DO SO, CLAIMING HER SALARY FOR THE PERIOD IN WHICH SHE WAS WITHOUT PAY.
[24] The adjudicator concluded that the grievance was prescribed and dismissed it on this ground:
[TRANSLATION]
FOR ALL THESE REASONS, I MUST CONCLUDE THAT THE GRIEVANCE IS PRESCRIBED, AS IT WAS FILED SEVERAL YEARS AFTER THE EVENT GIVING RISE TO IT (NON-PAYMENT OF SALARY IN 1992-1993). THIS CONCLUSION SUFFICES TO DISPOSE OF THE GRIEVANCE.
[25] Essentially, the principal question in the case at bar is whether the adjudicator erred in fact or in law in rendering his decision, so justifying this Court's intervention. The plaintiff made the following arguments:
(1) Did the adjudicator contravene the audi alteram partem rule by refusing to hear the plaintiff's objections to the employer's declinatory exceptions and so infringe the plaintiff's right to be heard?
(2) Did the adjudicator err in disposing of the grievance without hearing any evidence from the employer about the non-payment of her salary, her status and the existence of an actual offer of employment?
(3) Did the adjudicator render a decision on an erroneous finding of fact made in a capricious manner or without regard for the material before him, and did he refuse to exercise his jurisdiction by not considering the substance of the grievance, namely the "constructive dismissal" or the salary entitlement of the plaintiff?
(4) Did the adjudicator fail to observe the rules of natural justice by refusing to admit in evidence two documents submitted by the plaintiff?
[26] At the start of the hearing before the adjudicator the employer's representative made two preliminary objections, namely exceptions declining jurisdiction based on the fact that the matter was res judicata and the grievance prescribed. The plaintiff objected to the filing of these declinatory exceptions and the adjudicator ruled in favour of the employer's representative, who submitted his evidence. It can be seen from reading the adjudicator's decision that the plaintiff had an opportunity to submit her evidence on the question of the declinatory exceptions. This Court is satisfied that the rules of natural justice (audi alteram partem) were observed.
[27] As to the refusal to admit in evidence at the hearing two documents filed by the plaintiff, s. 96.1 of the Act gives adjudicators all the powers, rights and privileges conferred on the Board in s. 25 of the Act, including full discretion regarding questions of evidence. The Federal Court of Appeal has applied these rules in the context of the Act and concluded that the courts should exercise great judicial restraint in reviewing an adjudicator's decisions on evidence. The documents referred to by the plaintiff deal with the substance of the case. They therefore were not relevant to the adjudicator's decision, which was limited to the question of prescription deadlines. This Court considers that the exclusion of the documents by the adjudicator was not a patently unreasonable error justifying the Court's intervention.
[28] Parliament has seen fit to give administrative tribunals very wide latitude when they are called on to hear and admit evidence so they will not be paralyzed by objections and procedural manoeuvres. This makes it possible to hold a less formal hearing in which all the relevant points may be put to the tribunal for expeditious review.
[29] An adjudicator appointed in accordance with the Act has jurisdiction to hear and try grievances referred to adjudication pursuant to s. 92 of the Act, and even if there is no privative clause the standard of judicial review applicable to the adjudicator's decision is whether that decision is patently unreasonable.
[30] Applying this standard of review to the plaintiff's arguments regarding the fact that the adjudicator made an error in taking certain evidence into account, I am not persuaded that his decision was patently unreasonable. The plaintiff's argument that the oral evidence introduced following the writing of February 4, 1991 is inadmissible and irrelevant, its purpose being to contradict or change the terms of a legal act contained in various documents, cannot be upheld. The adjudicator was not bound by rigid rules of evidence and could give the various points of evidence the weight he saw fit. It is accordingly impossible for me to conclude that the adjudicator Tessier exceeded his jurisdiction and denied the right to a fair hearing by admitting the defendant's oral evidence concerning the account of the meeting of February 4, 1991.
[31] The adjudicator made no patently unreasonable error justifying this Court's intervention when he concluded that (a) by July 16, 1993 at the latest, the plaintiff had learned of the non-payment of salary giving rise to the grievance, and (b) the grievance dealing with that event, submitted on February 2, 1998, was prescribed [TRANSLATION] "as it was filed several years after the event giving rise to it". Section 100 of the Act authorizes the Board to make regulations in relation to the procedure for the presentation of grievances. Section 71(3) of the Board's Rules of Procedure and clause M-38.10 of the collective agreement between the Treasury Board and the Public Service Alliance provide that a grievance must be filed within the 25 days following the day on which the employee first had knowledge or was notified of the act or omission giving rise to the grievance.
[32] The adjudicator found that the employer had made every reasonable effort to accommodate the application for reinstatement made by the plaintiff, as it was required to do under the collective agreement, and his decision that the grievance was past the deadline is supported both by the Act and the Regulations as well as by the evidence in the record.
[33] The Regulation on which the adjudicator relied in making his decision, and which applies to public servants filing grievances, is the following:
|
71.(1) An employee described in paragraph 92(1)(b) of the Act may present a grievance to the employee's immediate supervisor or the local officer-in-charge in the form referred to in section 70 ...
. . . . .
(3) an employee shall present a grievance no later than on the twenty-fifth day after the day on which the employee first had knowledge of any act, omission or other matter giving rise to the grievance or the employee was notified of the act, omission or other matter, whichever is the earlier.
(My underlining)
|
71.(1) Le fonctionnaire visé à l'alinéa 92(1)b) de la Loi peut présenter un grief à son supérieur hiérarchique immédiat ou à son chef de service local, sur la formule visée à l'article 70 ...
. . . . .
(3) Le fonctionnaire présente son grief au plus tard 25 jours après le premier en date des jours suivants : le jour où il a eu connaissance pour la première fois de l'action, de l'omission ou de la situation à l'origine du grief ou le jour où il en a été avisé.
(C'est moi qui souligne)
|
[34] A summary of the facts in the case at bar indicates the dates on which the plaintiff learned that her salary was suspended for the period from April 1, 1991 to August 2, 1993:
on December 6, 1991, in correspondence she sent to Mr. Milliard, regional manager, human resources, she noted that she would be without pay as of January 1992;
in 1995 the Department had decided she was on long-term unpaid leave and this decision was communicated to the plaintiff by the Revenue Canada Deputy Minister on April 18, 1995;
on March 21, 1991 Sun Life of Canada suggested that the plaintiff make a benefit claim; on April 24, 1991 the CSST dismissed her claim and the Bureau de révision paritaire made its decision on June 29, 1992; that decision was appealed;
on July 11, 1996 Sun Life of Canada denied the disability benefits;
on May 26, 1997 Sun Life of Canada agreed to review the case before the National Joint Committee by a letter dated December 15, 1997; a negative decision was communicated on December 29, 1997;
on February 2, 1998 the plaintiff filed her grievance stating that [TRANSLATION] "this was a constructive dismissal";
on December 21, 1998 the Board dismissed the grievance as being res judicata;
on September 18 and 19, 2000 she went to adjudication and in a decision dated November 27, 2000 the grievance was dismissed as prescribed;
on December 28, 2000 the application for judicial review was filed.
[35] It is clear from the background to the case that the plaintiff learned in 1991 that her salary was being suspended for the period in question. Whatever her arguments might be, whether illness or constructive dismissal, the fact remains she had been aware of the situation since 1991. Finally, even if I made an error in concluding that the plaintiff was aware of the situation since 1991, rather than December 29, 1997, and so the 25-day deadline began to run from that time, in my opinion the adjudicator Tessier would still be right in concluding that the grievance was prescribed. In that event, the grievance would still be prescribed since it was filed 35 days after December 29, 1997, the date on which the plaintiff was informed of the final decision by the National Joint Committee.
[36] Consequently, the application for judicial review is dismissed.
OTTAWA, Ontario
January 29, 2002
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: T-2397-00
STYLE OF CAUSE: Charlotte Rhéaume
v.
Attorney General of Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: November 19, 2001
REASONS FOR ORDER AND ORDER BY: ROULEAU J.
DATED: January 29, 2002
APPEARANCES:
Charlotte Rhéaume PLAINTIFF FOR HERSELF
Carole Bidal FOR THE DEFENDANT
SOLICITORS OF RECORD:
Charlotte Rhéaume PLAINTIFF FOR HERSELF
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario
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