Date: 20091221
Docket: T-518-09
Citation: 2009 FC 1299
Ottawa, Ontario,
December 21, 2009
PRESENT: The Honourable Madam Justice
Tremblay-Lamer
BETWEEN:
SYLVIE PAGÉ
Applicant
and
THE ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Sylvie Pagé (the applicant) seeks judicial
review under subsection 18.1(4) of the Federal Courts Act, R.S.C.
1985, c. F-7, of a decision of the grievance adjudicator (“adjudicator”) in Pagé
v. Deputy Head (Service Canada), 2009 PSLRB 26, dated March 3, 2009,
which upheld her dismissal from the federal public service.
FACTS
[2]
The applicant held the position of benefits
officer at Service Canada.
[3]
On three occasions from 1997 to 2000 she
processed her stepsister’s file and authorized the payment of pension benefits
to her.
[4]
In September 2003, the applicant once again authorized priority pension payments
for her stepsister. Contrary to the situation from 1997 to 2000, she was not
entitled to these payments.
[5]
The employer was notified of the situation and
initiated an internal investigation, which showed that the applicant knew that
she was not allowed to process a family member’s file and that she deliberately
circumvented the operations system by forwarding priority payments to her
sister, although she knew that her sister was not entitled to them.
[6]
After receiving the investigation report and
following an interview, the employer dismissed the applicant. The dismissal
letter stated that the applicant had committed fraud against the federal
government and that because of these activities she was no longer reliable.
[7]
The applicant filed a complaint and the
adjudicator considered the matter de novo, dismissed the complaint and
upheld the dismissal.
[8]
The adjudicator essentially believed the
employer’s version of the facts. According to her, to accept the applicant’s
version of the facts, it would have been necessary to believe in a series of
errors, irregularities and implausible mistakes in judgment.
[9]
In addition, the applicant had a lot of
experience and an impeccable employment record, which made her explanations
about negligence and lack of knowledge all the more improbable. Among the
important elements which led the adjudicator to conclude that she had acted
knowingly was the fact that the applicant modified the T4 form confirming the
taxable payment received by her stepsister by changing the amount on the form
from $8167.71 to $816.71. According to the adjudicator, this change could not
have been accidental as the applicant had submitted.
[10]
Having concluded that the applicant had acted
deliberately, that she knew that her stepsister was not entitled to the
benefits she had paid to her and that she was aware of the Code of Ethics
and the Canada Pension Plan Manual, which prohibited her from processing
her sister’s file, the adjudicator summarized her decision about the fault
committed as follows:
Ms. Pagé clearly violated the Code and the CPP manual.
Her misconduct is contrary to the basic principles relating to the integrity of
public servants and the public service as a whole. Without going so far as to
characterize Ms. Pagé’s actions as fraud, I find that through her
misconduct Ms. Pagé placed herself in a conflict of interest by handling
her stepsister’s file. She gave preferential treatment to a member of her
family, and she committed a breach of trust against the federal government by
granting benefits to a person who was not entitled to them.
(Pagé, above, para. 163)
[11]
As far as the factors mitigating the severity of
the fault are concerned, the adjudicator considered the applicant’s previously
unblemished employment record, the isolated nature of the breach and the
absence of personal benefit.
[12]
However, she dismissed the applicant’s argument
to the effect that her lengthy service was also a mitigating factor and noted
that in the case of breach of trust and conflict of interest it may be an
aggravating circumstance, reinforcing the conviction that a public servant must
know what constitutes a conflict of interest and appreciate the seriousness of
it.
[13]
The adjudicator also concluded that internal
conflict-of-interest policies were clear and that even if the applicant’s
co-workers had a lax approach by not checking the payment authorizations in
question although they should have done so, that does not excuse her conduct.
[14]
She also underlined the fact that although the
applicant acknowledged that she should not have handled her stepsister’s file
and that she had made mistakes in processing it, and she had cooperated in the
investigation of her conduct, she did so by submitting a defence based on
errors made in good faith. However, that defence was not credible. The
applicant did not acknowledge the key act of which she had been accused, namely,
of paying benefits to her stepsister knowing that she was not entitled to them.
In fact, during the investigation and before the adjudicator she consistently
denied having acted knowingly. The adjudicator concluded that if the applicant
was not aware that her stepsister was not entitled to the benefits she paid to
her, she was wilfully blind. According to the adjudicator, the applicant was
not honest, tried to minimize her responsibility and expressed no regret.
[15]
She also found that some other considerations
were relevant to the issue of the appropriate sanction. She noted that the
applicant held an important position in which she acted as a trustee of public
funds, which required the utmost confidence of her employer. These factors
increased the gravity of the applicant’s fault. Considering the applicant’s lack
of honesty and regret, the adjudicator concluded that the relationship of trust
with the employer had been irreparably broken and the adjudicator stated that
she was “perplexed” about the applicant’s rehabilitation potential.
Accordingly, dismissal was the appropriate sanction.
STANDARD OF
REVIEW
[16]
This application for judicial review raises
questions of mixed law and fact and the Court must show deference to the adjudicator’s
answers to this type of question. In this case the
applicable standard of review is that of reasonableness (see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 and Ayangma v. Canada (Treasury Board), 2007 FC 780, 315 F.T.R. 217).
ANALYSIS
1) Did the adjudicator render an unreasonable decision by
upholding the sanction for a fault other than what the employer had alleged?
[17]
According to the applicant, the adjudicator
erred by maintaining her dismissal without having concluded that she had
committed the fault of which she was accused by her employer, that is to say, a
fraud. It is not up to an adjudicator to replace the fault alleged by the
employer by an alternative one.
[18]
The Attorney General submitted that the
misconduct alleged by the employer is not a fraud, but rather the fact that the
applicant had paid benefits to her stepsister knowing that she was not entitled
to them. The Attorney General noted that the dismissal letter did not only
accuse the applicant of fraud but also mentioned the breach in the relationship
of trust between her and the employer and affirmed that the applicant no longer
had the honesty and integrity essential to her employment.
[19]
According to the Attorney General, the
adjudicator’s decision is consistent with the dismissal letter. The Attorney
General underlined the fact that the applicant’s misconduct infringed the basic
principles concerning the integrity of public servants and that the applicant
committed a breach of trust towards the federal government.
[20]
I consider the adjudicator’s decision reasonable
for the following reasons.
[21]
First, it must be underlined that the grievance
process before an adjudicator is not a type of (quasi-) judicial review of an
employer’s decision to sanction a guilty employee. Even if his role involves
determining if the sanction was warranted when it was made, an adjudicator
hears the matter de novo. Under the Public Service Labour Relations
Act, S.C. 2003, c. 22, section 2, an adjudicator may hear
witnesses (para. 226(1)(a)) and accept any evidence to establish
the facts of the matter (para. 226(1)(d). The adjudicator is
therefore not bound by the findings of fact suggested by the employer.
[22]
The fact that in a dismissal letter an employer
uses a term which may have a precise meaning in civil or criminal law, such as
the word “fraud” does not mean that he is accusing the employee of having
committed the fault involving all of the constituent elements attributed to
this term by a jurist. The employer is not a lawyer and the letter of dismissal
is neither a declaration nor an indictment. In fact, the employer has no
authority to legally characterize the acts of an employee he intends to
sanction; therefore, such a characterization is not binding on the adjudicator.
[23]
As the authors Rodrigue Blouin and Fernand Morin
explained in their book Droit de l’arbitrage de grief, [grievance adjudication law] 5th ed., Cowansville, Yvon Blais,
2000, at pages 557-58, [translation]
“an adjudicator’s function first consists in ensuring that the alleged
act actually is the employee’s and that it is truly a breach of conduct.
. . . When he considers that there is professional misconduct the adjudicator
must then characterize its degree of gravity” (emphasis added).
[24]
It is therefore necessary to distinguish cases
in which an adjudicator upholds a dismissal on the basis of facts different from
those for which the employer imposed a sanction from those cases in which,
while concluding that the facts alleged by the employer actually did happen, an
adjudicator characterizes the gravity of the alleged misconduct differently
than the employer did. In the first case the employee is likely to be unable to
defend himself properly because he does not know the case against him, and this
infringes the principle of procedural fairness. On the other hand, in the
second case, the employee’s ability to make full answer and defence is not in
any way compromised because he very well knows that case against him.
[25]
This case belongs to the second category. The
adjudicator concluded that the applicant knew that she was not allowed to pay
the benefits at the heart of this matter to her stepsister and that her conduct
was premeditated and deliberate. The fact that the applicant knowingly disposed
of money that did not belong to her as if it was hers is precisely the conduct
of which the employer accused her. On the basis of this conclusion, in my
opinion the adjudicator could have described the applicant’s conduct as
fraudulent. It is possible that she did not do so to avoid using a word which
may entail significant consequences in a context where this was not strictly
necessary.
[26]
In fact, “fraud” was not the only reason for the
applicant’s dismissal: the letter stressed the fact that the employer did not
have any more trust in her considering her lack of honesty and integrity. The
adjudicator determined that the alleged misconduct was established on a balance
of probabilities.
[27]
Having concluded that the employer was justified
in dismissing the applicant, the adjudicator had to decide if the sanction was
appropriate in the circumstances.
2) Did the adjudicator render an unreasonable decision by
concluding that the dismissal was an appropriate sanction in this case?
[28]
According to the applicant, the adjudicator
erred in her assessment of the factors which would warrant a sanction less
severe than a dismissal.
[29]
Accordingly, the adjudicator should have
considered the applicant’s long service record as a mitigating circumstance.
[30]
In addition, she should have considered that the
fact the applicant had used the “priority payment” procedure to pay a pension
to her sister rather than the account review process was a mitigating
circumstance. The first procedure entails a review of the payment authorization
but not the second one. The applicant therefore chose the method by which she
could have been apprehended if the expected review had been done in compliance
with the applicable procedures. It is not her fault if these procedures were
not respected.
[31]
The applicant insisted on the fact that the
adjudicator had cited the translation of the investigation report, which was
initially written in English and in which it was wrongly asserted that one of
the applicant’s co-workers would not have detected her stepsister ineligibility.
The original report actually did say that the error could have been detected if
the verifications had been done. The applicant’s choice showed that she had no
fraudulent intention and suggested that the applicant had not abused the
prerogatives conferred by her position.
[32]
Finally, the adjudicator should have considered
that her cooperation with the investigation into her conduct was an attenuating
circumstance, as well as her acknowledgment of the fact that she had made a
mistake in processing her stepsister’s file. The fact that the applicant gave her
version of the facts which was different from the one accepted by the
adjudicator, does not in any way detract from the usefulness of her cooperation
and admissions.
[33]
The Attorney General submitted that the
adjudicator’s decision to consider the applicant’s length of service as an
aggravating rather than a mitigating factor was reasonable. In fact, the
applicant submitted that she had no knowledge of the conflict-of-interest
policies which she infringed by processing her stepsister’s file. The adjudicator
was justified in concluding that the length of service reinforces the
conviction that the person knows what a conflict of interest is as well as
appreciating the gravity of it. She was acting well within the scope of her
expertise and the Court must show deference to her.
[34]
I agree with the Attorney General that the Court
must show deference to the adjudicator’s decision resulting from her assessment
of the mitigating and aggravating factors in this case. I do not see anything
unreasonable in this decision.
[35]
The dismissal letter shows that the breach in
the relationship of trust between the employer and the applicant is at the
heart of her dismissal. It was reasonable for the adjudicator to conclude that
the breach of trust committed by the applicant was that much more serious
because the trust was based on a lengthy service record.
[36]
I consider that the adjudicator was also entitled
to conclude that the “lax approach” taken by the applicant’s co-workers does
not excuse her conduct. The adjudicator did not believe in the applicant’s good
faith and instead concluded that she very well knew what she was doing. This
conclusion is well supported and is warranted on the basis of the facts in the
record. Nothing would warrant this Court’s intervention to change it. The fact
that the adjudicator believed that the applicant’s misconduct would not have
been detected by a proper verification is of no importance: employees’ mistakes
do not excuse the applicant’s conduct any more than does a possible weakness in
the verification system as such.
[37]
I also note that the investigation report cited
by the adjudicator at paragraph 31 of her decision showed that the applicant
should have known that her co-workers systematically failed to verify requests
for payment. In these circumstances, use of the priority payment method is in no
way evidence of her good faith.
[38]
As far as the applicant’s cooperation with the
investigation is concerned, the adjudicator noted that it was alleged in the
context of a defence based on mistakes. Far from having admitted the key act of
which she had been accused, namely, willingly and knowingly paying
benefits to which her stepsister was not entitled, the applicant denied this
contention during the employer’s investigation as well as before the adjudicator.
The adjudicator did not consider the version of the facts given by the
applicant to be credible and concluded that her “cooperation” in the investigation
could not be considered a factor mitigating her guilt. Clearly put, one does
not cooperate with an investigation by lying to the investigator. I do not see
anything unreasonable about this conclusion, quite the contrary.
[39]
For these reasons, an
intervention by this Court is not warranted. The application for judicial
review is dismissed with costs.
JUDGMENT
THE COURT ORDERS
that:
The application
for judicial review is dismissed with costs.
“Danièle Tremblay-Lamer”
Certified true
translation
Francie Gow, BCL,
LLB
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