Date: 20091027
Docket: T-1962-08
Citation: 2009 FC 1093
Ottawa, Ontario, October 27,
2009
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
LANCE
ROGERS
Applicant
and
CANADA
REVENUE AGENCY
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application under section 18.1 of the Federal Courts Act, R.S.C.,
2002, c.8, s. 14 in the matter of a decision (the Decision) of an adjudicator
from the Public Service Labour Relations Board in Board File 166-34-37434,
dated November 19, 2008, where the Adjudicator determined he did not have
jurisdiction to consider the merits of the Applicant’s grievance.
[2]
For
the reasons set out below the appeal is dismissed.
I. Facts
[3]
The
Applicant is employed by the Respondent, Canada Revenue Agency (CRA) as an
auditor. The Applicant involved himself in a friend’s tax matter, which was
eventually resolved in the manner advocated by the Applicant. Prior to taking
the action, the Applicant had discussed intervening in the friend’s tax matter
with his supervisors and was told not to involve himself in the file. After the
friend’s tax matter was resolved, the Applicant stated that he saw his role in
the matters as an “accomplishment”.
[4]
At
the time of his annual performance review, the Applicant advised his superior
of the “accomplishment” and asked that it be mentioned in his appraisal review.
Instead CRA launched an investigation into the event and determined that the
Applicant had acted improperly by intervening on behalf of a taxpayer that resulted
in the Applicant placing himself in a conflict of interest as well as
disobeying management. The Applicant became stressed and hurt by the
accusations and investigation and took two sick leaves, supported by a medical
certificate.
[5]
The
Applicant received a five-day disciplinary suspension in relation to the
allegations by his employer that he breached CRA’s Conflict of Interest Code
and committed an act of insubordination. The Applicant filed a grievance
challenging this disciplinary decision. CRA reduced his suspension to a written
reprimand. The Applicant then referred his grievance to adjudication in order
to continue to challenge the written reprimand.
[6]
Under
the Public Service Staff Relations Act, R.S.C., 1985, c. P-35
(the former Act), the Applicant was entitled to refer his grievance to
adjudication if the employer’s disciplinary action resulted in a financial
penalty. It has been established that a written reprimand is neither a
suspension nor a financial penalty (see Canada (Attorney
General) v. Lachapelle, [1979] 1 F.C. 377 (T.D.), 91 D.L.R. (3d) 674;
aff’d [1980] 1 F.C. 55 (C.A.), [1979] F.C.J. No. 128). CRA objected to the
jurisdiction of an adjudicator in this case, arguing that the Applicant was no
longer the subject of a disciplinary action that resulted in a financial
penalty. The parties agreed that the Public Service Labour Relations Board’s
hearing would be limited to evidence and argument with regard to the
Adjudicator’s jurisdiction.
[7]
At
the hearing, the Applicant testified that as a direct result CRA’s disciplinary
actions he suffered from a stress-related disability and ultimately depleted
his sick leave bank. When he needed to use his sick leave for unrelated reasons
he was forced to take sick leave without pay. The Applicant argued that the use
of his sick leave was a direct result of CRA’s disciplinary action, and as
such, CRA’s disciplinary action resulted in a financial penalty. CRA argued
that an employee leaving the workplace on sick leave rather than leaving
because the employer asked them to is not disciplinary action and cannot be
considered a financial penalty resulting from disciplinary action under
paragraph 92(1)(c) of Public Service Staff Relations Act.
[8]
The
Adjudicator determined that he did not have the jurisdiction to hear the
grievance because there was no financial penalty resulting from the
disciplinary action taken as per paragraph 92(1)(c). At paragraph 31 of
the Decision, the Adjudicator stated that the Applicant had not presented any
evidence to establish that the sick leave was the inevitable consequence of the
employer’s investigation and disciplinary action.
II. The
Statutory Framework
[9]
On
April 1, 2005, the Public Service Labour Relations Act, S.C. 2003, c.
22, s. 2, enacted by section 2 of the Public Service Modernization Act,
S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public
Service Modernization Act, the reference to adjudication must be dealt with
in accordance with the provisions of the Public Service Staff Relations Act
(the former Act).
[10]
Subsection
92(1) of the former Act reads as follows:
|
Adjudication of Grievances
Reference to Adjudication
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.
|
Arbitrage
des griefs
Renvoi
à l'arbitrage
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.
|
III. Standard
of Review
[11]
The
standard of review with respect of the legal test applied to an adjudicator in
determining questions of jurisdiction is correctness and a standard of
reasonableness applies in reviewing the adjudicator’s application of the facts
to the correct legal test (Canada (Attorney General) v. Basra, 2008 FC
606, 327 F.T.R. 305 at paragraph 13).
IV. Issue
[12]
The
Applicant raised the following issue:
(a) Did the adjudicator apply an
incorrect legal test in assessing whether the sick leave taken by Mr. Rogers
amounted to a financial penalty resulting from disciplinary action?
[13]
The
Applicant argues that the Adjudicator erred in applying an “inevitability” test
rather than a “causation/remoteness” test in assessing whether the Applicant’s
sick leave resulted from disciplinary action. The Respondent argues that the
Court should not ignore the inevitability test established for such cases by
transplanting the common law test for causation and remoteness established in
negligence cases. Both parties rely on the Federal Court of Appeal decision in Massip v.
Canada (Treasury
Board),
61 N.R. 114, [1985] F.C.J. No. 12 (F.C.A.).
[14]
In
Massip, above, a foreign service officer had her foreign posting
cancelled for disciplinary reasons, resulting in her loss of the foreign
service premium. The Deputy Chairperson of the Public Service Labour Relations
Board determined he did not have the jurisdiction to hear the grievance as the
cessation of payment of the Foreign Service Premium to the griever after she
was recalled to Ottawa did not constitute a financial penalty under
the relevant provision. Justice Patrick Mahoney, for the majority of the
Federal Court of Appeal, determined that the Applicant had been the subject of
a disciplinary action, the action resulted in a financial loss, and that the
financial loss was a penalty. Therefore, Justice Mahoney concluded the
Adjudicator had jurisdiction to hear the matter.
[15]
Justice
Mahoney wrote:
I accept that Parliament’s intention, in
limiting access to adjudication to certain types of grievance, was to spare the
Board the necessity of dealing with matters of little real detriment to the
griever. However, why should parliament have intended that disciplinary action
in the form of a directly imposed financial penalty of, say, $25 or $50, be
amenable to adjudication, while disciplinary action of another sort, indirectly
by inevitably leading to a $790 loss of pay should not. In choosing its words,
Parliament did not, and had no reason to, foreclose access to adjunction
entailing disciplinary action resulting indirectly in a financial penalty.
The remoteness of the financial penalty
from the disciplinary action is a proper consideration. However, it does not
arise here. The loss arose immediately and inevitably from the disciplinary
action […]
[16]
There
is agreement that in Massip, above, the Federal Court of Appeal
established that a “financial penalty” can be imposed either directly or
indirectly. What is at issue between the parties is the role played by the
terms “inevitability” and “remoteness”.
[17]
The
Applicant argues that a simple test of causation should have been applied by
the Adjudicator. They cite Resurfice Corp. v. Hanke, 2007 SCC 7, [2007]
1 S.C.R. 333 for the position that the “but for” test applies in determining
issues of causation. I note that Resurfice Corp., above, is a torts
case.
[18]
The
Applicant also argues that in Massip, above, the Court of Appeal stated
that the remoteness of the financial penalty from the disciplinary action is a
proper consideration. The remoteness inquiry asks whether the harm is too
unrelated to the wrongful conduct to hold the wrongdoer fairly liable (see Mustapha
v. Culligan of Canada Ltd., 2008 SCC 27, [2008] 2 S.C.R. 114).
[19]
When
considering the correct test to apply in this case I am guided by the
principles of statutory interpretation that the words of an Act are to be read
in their entire context and in their grammatical and ordinary sense
harmoniously with the scheme of the Act, the object of the Act, and the
intention of Parliament (see 65302 British Columbia Ltd. v. Canada,
[1999] 3 S.C.R. 804, at paragraph 50, Trustco Mortgage Co. v. Canada,
[2005] 2 S.C.R. 601, at paragraph 10). Finding the correct interpretation
requires a purposive analysis giving such fair, large and liberal construction
and interpretation as best ensures the attainment of the Act’s objectives (see Rizzo
and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Interpretation Act,
R.S.C. 1985, c.1-12, s. 12, Ruth Sullivan in Construction of Statutes,
4th ed. (Toronto: Butterworths, 2002) at pages 195-196, 219).
[20]
I
agree with the Respondent that in Massip, above, the Federal Court of
Appeal opened the door to indirect losses, but limited those losses to those
that were inevitable. This is consistent with the purpose of the Act to limit
the types of grievances, as stated in Massip, above, and the wording of
the provision as “disciplinary action resulting in suspension or financial
penalty” [emphasis added].
[21]
Therefore,
the Adjudicator applied the correct legal standard.
[22]
At
the hearing the parties agreed that the sole issue to be determined was the
correctness of the legal test used by the Adjudicator. Therefore, it is not
necessary for me to determine the issue of its application to the facts of this
case. If I were to do so, I would have found the application to be reasonable. As
noted at paragraph 31 of the decision, the Applicant did not present any
evidence to establish that the sick leave was an inevitable consequence of the
employer’s investigation and disciplinary action. It was the Applicant’s burden
to prove this point (see Canada (Attorney General) v.
Demers,
2008 FC 873, [2008] F.C.J. No. 1087, see also Guay and Treasury Board
(Revenue Canada, Taxation), [1995] C.P.S.S.R.B.
No. 19 where the Board’s decision with regard to the sick leave credits was
supported by uncontradicted evidence provided by the griever).
[23]
As
I understand it, the Applicant argues that should I find that the Adjudicator
erred by applying the “inevitability” test, then the matter should be sent back
to a different Adjudicator for a new hearing. The Respondent argues that if I
determine the wrong legal test was applied, the case should be submitted to the
same Adjudicator in accordance with the correct legal standard. As I have
already determined that the Adjudicator applied the correct test and would have
found that its application was reasonable if required to do so, it is not
necessary for me to address this issue.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application is dismissed with costs to the Respondent.
“ D.
G. Near ”
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