Date: 20110505
Docket: T-958-10
Citation: 2011 FC 527
[UNREVISED CERTIFIED ENGLISH
TRANSLATION]
Ottawa, Ontario, May 5,
2011
PRESENT: The Honourable
Mr. Justice Scott
BETWEEN:
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ODA KAGIMBI
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Applicant
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and
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THE ATTORNEY GENERAL OF
CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This is an application for judicial review of a decision dated May 19,
2010 (the adjudicator’s decision), by the adjudicator, upholding the dismissal
of Oda Kagimbi (the applicant), which occurred on September 18, 2007.
I. Facts
[2]
On December 23, 2006, after completing correctional officer training
for a period of 13 weeks, including a two-week probationary period, the
applicant accepted an indeterminate job offer as a correctional officer at the
CX-01 level, at the Cowansville penitentiary.
[3]
The
employment was subject to a probationary period of 12 months starting on
December 19, 2006. After four weeks of work, the
applicant’s immediate supervisor, Mr. Leduc, met with her and asked if she
was comfortable with her work. She answered no
because she had not yet worked at each position.
[4]
A week later, Mr. Leduc informed the applicant that she had
to redo her training with a second group. At the beginning of February 2007, she started her training again
under the supervision of Nicolas Matte, Correctional Officer. A week later, she was asked to meet with the assistant warden
of the penitentiary, accompanied by a supervisor, a union representative and a
unit manager. A flyer entitled “the Enigmatic
Oda,” referring to the applicant, had been distributed in patrol vehicles.
[5]
It was then explained to the applicant that the staff wanted an
investigation to be held for harassment. She was asked to identify the authors of the flyer, which she was unable
to do. During this meeting, Ms. Legault
also asked the applicant about the progress of her training, and the applicant
told her that she was managing to find answers to her questions. At the end of the meeting, the warden promised to inform
the applicant of the outcome of the investigation on the flyer and to meet with
her again regarding this. There was no follow-up with the applicant on the
outcome of the investigation.
[6]
At the beginning of August 2007, the applicant’s supervisor handed
her a memorandum informing her that a meeting would be held with her in
September regarding her performance assessment. This memorandum explained that the shortcomings pointed out to her since
she was first hired would be discussed.
[7]
On September 17, 2007, the supervisor called the applicant on
the radio to inform her that the warden would meet her at 11 a.m. and that she
would have to be accompanied by a union representative. Ms. Poisson, the warden
of the penitentiary, was accompanied by Susanne Legault, assistant warden. The applicant was accompanied by a union representative.
The warden handed the applicant a negative assessment,
which she asked her to sign. The applicant
signed the assessment, checking the box [TRANSLATION] “disagrees with the
content” designated for this purpose. The warden
then gave her a letter confirming her termination effective at noon that same
day.
[8]
On September 18, 2007, the applicant filed a grievance
through the union against the respondent for dismissal without good and
sufficient cause. A lawyer initially represented
the applicant, but he withdrew before the grievance hearings.
[9]
On February 24, 2010, the respondent sent to the applicant incident
observation reports on which the applicant’s performance assessment was based. The applicant submits that she was not aware of the
existence of most of these reports and the facts reported in them. In addition,
she emphasizes that she had never had a meeting with a superior in which she
was told about shortcomings or errors relating to these incident reports.
The applicant represented herself at her grievance hearings,
which took place from March 8 to 11, 2010, before Adjudicator Michèle A.
Pineau.
A. The
impugned decision
[10]
In her decision, the adjudicator summarized the arguments and
testimony of the two parties. She reiterated that
the legislative provisions applicable to dismissal during a probationary period
are not the same as those that apply to the dismissal of a person appointed for
an indeterminate period. She referred to subsection 62(1)
of the Public Service Employment Act, 2003, c. 22 [PSEA], which
provides that the deputy head may, at any time, dismiss an employee during the
probationary period.
[11]
The adjudicator then explained that the case law limits her jurisdiction
to ensuring that the dismissal decision was taken in good faith and for a
reason related to the employment. The burden is
thus on the employee, in this case the applicant, to demonstrate on a balance
of probabilities, that the employer acted in bad faith. The adjudicator dismissed the grievance on the ground that
the applicant had not succeeded in proving bad faith.
B. The
orders sought
[12]
The applicant asks that the Court issue the following orders:
[TRANSLATION]
a. Set
aside in this case the adjudicator’s decision dated May 19, 2010, by
Michèle A. Pineau.
b. Reinstate
the applicant in her employment as a correctional officer (CX-01), with all her
rights and privileges, and including the right to compensation and benefits
that she would have received from September 17, 2007.
c. Order
the employer to pay her the amount of $20,000 in moral damages, including
interest and compensation provided by law.
At the
hearing, the applicant’s counsel amended her request to keep only the conclusion
regarding setting aside the adjudicator’s decision. The Court allowed this amendment
request.
II. Issues
[13]
The
applicant’s criticisms of the decision raise the following three issues:
a.
Did the adjudicator err in her assessment of the facts or make
omissions warranting the Court’s intervention?
b.
Were the adjudicator’s findings reasonable given the facts and
evidence in the record?
c.
Did the adjudicator correctly interpret subsection 62(1) of
the PSEA?
III. Applicable
standards of review
[14]
The
first issue is the assessment of the facts and evidence by the adjudicator, who
has expertise in labour relations. Therefore, the standard is reasonableness.
Tribunals have a margin of appreciation
within the range of acceptable and rational solutions. A court conducting a
review for reasonableness inquires into the qualities that make a decision
reasonable, referring both to the process of articulating the reasons and to
outcomes. In judicial review, reasonableness is concerned mostly with the
existence of justification, transparency and intelligibility within the
decision-making process. But it is also concerned with whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir v. New Brunswick, 2008 SCC 9 at
para. 47 [Dunsmuir]).
[15]
The applicant presented the second issue as affecting the
adjudicator’s jurisdiction. In Lyndsay v.
Canada (Attorney General), 2010 FC 389 at para. 36, Justice de
Montigny reiterates that a true issue of jurisdiction arises only where the tribunal
must decide whether its statutory grant of power gives it the authority to
decide a particular issue. In this case, this
issue is rather one of assessing the facts and evidence: the Court must
determine whether the adjudicator made findings that were not related to the
evidence submitted before her. The
jurisdiction of the adjudicator to determine the issues submitted to her is
not, strictly speaking, called into question. Accordingly, the standard
of review is reasonableness.
[16]
The third issue is a mixed question of fact and law since it
relates to the application of subsection 62(1) of the PSEA to the facts of
this case.
The Court owes deference to the adjudicator’s
interpretation and again the applicable standard is reasonableness:
The category of questions of mixed fact
and law should be limited to cases in which the determination of a legal issue
is inextricably intertwined with the determination of facts. Often, an
administrative body will first identify the rule and then apply it. Identifying
the contours and the content of a legal rule are questions of law. Applying the
rule, however, is a question of mixed fact and law. When considering a question
of mixed fact and law, a reviewing court should show an adjudicator the same
deference as an appeal court would show a lower court (Dunsmuir, at para. 164,
and Canada (Attorney General) v. Amos, 2011 FCA 38).
IV. Analysis
QUESTION 1: Did the adjudicator
err in her assessment of the facts or fail to consider evidence that would warrant
the Court’s intervention?
[17]
The applicant submits that the adjudicator made
errors in assessing the facts and omitted certain pieces of evidence of major
importance, which vitiates her decision. First, the adjudicator stated that Mr. Matte,
who had conducted the applicant’s second training and had given her a negative assessment,
had been giving training for six years when he had only been working at the
correctional centre for two years. Mr. Matte
testified that he had not received training and had not been selected by interview
to give training. It was after receiving an e-mail inviting officers interested
that he became a trainer. The adjudicator failed to make reference to this in her
decision. The adjudicator allegedly also erred when she wrote that Mr. Leduc
was responsible for all the front-line supervisors when this was not the case.
[18]
The applicant also points out that the adjudicator did not mention
a report, the content of which she strongly disputes and which was misplaced. Taking it into consideration allegedly discredited the
respondent. The adjudicator allegedly also
failed to consider the fact that many incident reports that call into question
the applicant’s professional abilities were written several days, weeks or
months after the incidents, whereas according to the evidence in the record,
these reports must normally be written by officers present at the scene of the
incident before the end of their shift or, at the latest, the next day.
[19]
The applicant further claims that the adjudicator failed to take
into account her testimony that Mr. Matte had made false statements and had
also contradicted himself. She also alleges that
the adjudicator failed to consider Mr. Leduc’s admission that he had never
met with the applicant to inform her of the content of the various reports that
criticized her conduct and characterized her as unsafe, because he did not have
the time and was on vacation. The adjudicator
allegedly ignored Mr. Leduc’s admission that he kept
the applicant in her job for nine months although he characterized her conduct as
unsafe.
[20]
The applicant further alleges that the adjudicator failed to point
out that there was no evidence to establish that the employer had followed up
on observation reports. The adjudicator
allegedly also failed to notice an error in Mr. Leduc’s testimony. He stated that he had asked the applicant who had written
the flyer even though he was not even present at the meeting where it was
discussed. The adjudicator allegedly also
erred by indicating that the second report blaming the applicant had been
written at the request of the supervisor of officers on probation, Mr. Boutin,
whereas Mr. Matte testified that he had written that report at Mr. Leduc’s
request.
[21]
The respondent admits that Mr. Matte had less than six years’
experience as a trainer and that Mr. Leduc was not the supervisor of all the
correctional officers, but just a small group of them. He further admits that Mr. Matte wrote the first report on his own
and the second report at Mr. Leduc’s request. The respondent submits that these errors are not important
and do not warrant the Court’s intervention because these facts were not
determinative in the adjudicator’s finding that the applicant failed to
establish that the respondent had acted in bad faith.
[22]
The respondent submits that the decision was not based on findings
made in a perverse or capricious manner because it took into consideration the
evidence in the record. None of the errors identified,
be they challenged or admitted, have an impact on the adjudicator’s decision
that the applicant’s dismissal was related to the employment, that there was no
subterfuge or deception and that it was not done in bad faith.
[23]
The respondent also submits that the adjudicator considered all
the evidence before her and focused on the essential aspects. She did not have an obligation to refer to every piece of
evidence before her. Additionally, he states
that the parties argued contradictory versions of some facts. The adjudicator decided to give more credibility to the
employer’s version, which is not an error of fact. The respondent also submits that some of the so-called
errors were merely the applicant’s statements that were not based on evidence.
Failure to consider these statements cannot be
characterized as an error. For example, the
respondent admits that he did not provide any evidence in writing to
demonstrate that observation reports were followed up on, simply because these
documents do not exist. Therefore, the
adjudicator did not err by not mentioning these reports.
[24]
Section 62
of the PSEA reads as follows:
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Termination of
employment
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Renvoi
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62.
(1) While an employee is on probation, the deputy head of the organization
may notify the employee that his or her employment will be terminated at the
end of:
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62.
(1) À tout moment au cours de la période de stage, l’administrateur général
peut aviser le fonctionnaire de son intention de mettre fin à son emploi au
terme du délai de préavis :
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(a) the notice period
established by regulations of the Treasury Board in respect of the class of
employees of which that employee is a member, in the case of an organization
named in Schedule I or IV to the Financial Administration Act, or
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a) fixé, pour la catégorie de
fonctionnaires dont il fait partie, par règlement du Conseil du Trésor dans
le cas d’une administration figurant aux annexes I ou IV de la Loi sur la
gestion des finances publiques;
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(b) the notice period determined
by the separate agency in respect of the class of employees of which that
employee is a member, in the case of a separate agency to which the
Commission has exclusive authority to make appointments, and the employee
ceases to be an employee at the end of that notice period.
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b) fixé, pour la catégorie de
fonctionnaires dont il fait partie, par l’organisme distinct en cause dans le
cas d’un organisme distinct dans lequel les nominations relèvent
exclusivement de la Commission. Le fonctionnaire perd sa qualité de
fonctionnaire au terme de ce délai.
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[25]
The adjudicator had to determine whether the applicant’s dismissal
was related to the employment, if it was neither a subterfuge nor a deception
and whether it was done in bad faith.
[26]
Paragraph 18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, c. F-7 sets out the circumstances in which the Court’s
intervention is warranted:
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Grounds
of review
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Motifs
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(4)
The Federal Court may grant relief under subsection (3) if it is satisfied
that the federal board, commission or other tribunal:
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(4)
Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est
convaincue que l’office fédéral, selon le
cas
:
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(d) based its decision or order
on an erroneous finding of fact that it made in a perverse or capricious
manner or without regard for the material before it;
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d) a rendu une décision ou une
ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive
ou arbitraire ou sans tenir compte des éléments dont il dispose;
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It is apparent that the Board’s raison d’être is the
resolution of labour management disputes that may erupt between the Federal
Government and its employees. The area of expertise of
the Board is in the field of labour relations involving the Federal Government
and its employees.
The Board has been given wide powers and
the protection of a privative clause. Its members are experienced and skilled
in the field of labour relations. The legislator made it clear that labour
disputes, such as those presented in this case, were to be resolved by the
Board. The Court should not be quick to interfere.
QUESTION 2: Were the adjudicator’s findings
reasonable given the facts and evidence in the record?
[36]
The applicant claims that the adjudicator based her decision on
facts and evidence outside the record, which amounts to an excess of
jurisdiction.
The adjudicator wrote that she had asked Mr. Leduc
for “time to become familiar with the work” (paragraph 36 of the
decision), although no testimony made reference to this statement of fact, and
in cross-examination, Mr. Leduc had instead stated that he had decided to
not dismiss the applicant right away because he wanted to give her another
chance to catch up. She also notes that the
adjudicator mentioned an incident of “taking no action to control an inmate
during an escort” (paragraph 34 of the decision), while this incident was
not reported in any other testimony. In her
decision, the adjudicator allegedly erred in stating that the applicant had not
denied the facts she was accused of, whereas, in fact, she did deny the
incidents relating to certain observation reports.
[37]
The respondent submits that these alleged errors have no impact on
the adjudicator’s decision and do not warrant the Court’s intervention. The respondent further submits that these allegations of
errors are, in fact, a misreading of the decision by the applicant. The phrases quoted were apparently taken out of context and
do not take into account the entire text. These
errors are not critical and would not have changed the adjudicator’s decision.
[38]
Without a transcript of the hearing, the Court cannot determine
whether the adjudicator had indeed made an error in Mr. Leduc’s testimony
at paragraph 36 of her decision. Even if it were
the case, this error on its own cannot warrant the Court’s intervention given
that, in this case, it is not a determinative factor in the decision.
[39]
The applicant also alleges that the adjudicator erred in stating
that “taking no action to control an inmate during an escort” was part of the determinative
incidents that led to the decision of dismissal since there was no other
evidence in the record establishing these facts.
[40]
However, in the observation reports filed in evidence, an incident
is described in which the applicant was escorting an inmate to a medical
consultation and failed to intervene to calm him down when the situation became
worse:
[TRANSLATION]
When the inmate became
agitated, raised his voice and stood up, she did not approach the room or speak
to the inmate to try to calm him down and when she saw that the situation was
not improving, she did not call for reinforcements. I therefore
pressed my portable alarm to summon help (Officer’s Statement or Observation
Report, dated May 18, 2007).
[41]
Although the Court admits that the description found at paragraph 34
of the decision is vague and lacks details, it cannot conclude that the reference
to this incident is false or erroneous. It is reasonable to conclude that this is the incident to which the
adjudicator meant to refer.
[42]
Finally, the applicant claims that the adjudicator erred in
finding that she “did not deny the incidents for which she was criticized”
although she denied that some of these incidents even occurred. In her decision, the adjudicator found, at paragraph 74:
In addition, the grievor did
not deny the incidents for which she was criticized but rather challenged their
interpretation. The employer has considerable leeway when interpreting facts
because it will need to abide with the consequences of its decision. The
employer does not have to interpret the facts exactly, insofar as the facts are
indeed related to the grievor’s employment, performance or conduct … .
[43]
The Court notes that the adjudicator erred in writing that the
applicant did not deny the incidents when she states the contrary. In fact, the adjudicator clearly wrote in her decision that
the employee simply disagreed with the incidents alleged against her:
First, Mr. Leduc asked for
reports but did not make any effort to verify the facts, so his assessment of
the incidents was arbitrary.
… The reports were full of unfounded statements, and
the incidents were exaggerated. The purpose of the second training session and
the subsequent reports was merely to support the employer’s decision to reject
her. … The reports used as the basis for her rejection were prepared without
her knowledge, and she did not have an opportunity to contest them or to
re-establish the facts. … The grievor argued
that the incidents reported by certain employees were merely hearsay and that
she was never informed of them. … She further
argued that the employer’s statement that she “appeared to lack confidence” is
a value judgment unsupported by fact. The grievor disagreed that she required
constant supervision because she often worked alone when on patrol, in the
tower, in the control centre or at the main entrance (adjudicator’s decision at paras. 41, 43 and 44).
[44]
Although the adjudicator presented the applicant’s position in
this manner, she stated that she did not dispute, strictly speaking, the facts
alleged against her. The Court finds that, in these
circumstances, this is a fatal error because the adjudicator based her decision
on the erroneous premise that the applicant was not disputing the reported
incidents.
[45]
From reading the decision, it is clear that the adjudicator did
not find it necessary to assess the credibility of some of the testimony, or to
weigh the probative value of some pieces of evidence, such as the observation
reports and the performance assessment reports, which included the grounds and
incidents that led to the applicant’s dismissal. In fact, this documentary evidence describes the applicant as having an “[inability
to] meet the expected objectives with respect to mastering security equipment
and mastering security posts as well as the ability to learn and the ability to
react to a critical incident”. The adjudicator
took no position on the context in which these reports were written or on when
they were written on the circumstances in which they were requested from the
employees.
[46]
The Court’s role is not to determine what the adjudicator’s
decision should have been as to the value of the evidence alleged against the
applicant.
Nevertheless, the adjudicator should have taken into
consideration the applicant’s objections to the content of this evidence and
have established its probative value rather than merely made assumptions on their
merit and content. Failure to take into
account the applicant’s objections renders the adjudicator’s principal finding
that “the facts are indeed related to the grievor’s employment, performance or
conduct” arbitrary.
[47]
Therefore, the adjudicator’s finding that the applicant had not
made the required demonstration for her application to be allowed relies on a
fundamental error, that of considering that the applicant admitted that all of
the incidents alleged against her had occurred, when that was not the case. This is a palpable error, which calls into question because
the reasonableness of the decision under judicial review and warrants the Court’s
intervention.
[48]
Having given an affirmative answer to the second question, it is
not necessary to answer the third question of whether the adjudicator correctly
interpreted subsection 62(1) of the PSEA.
[49]
The Court cannot presume what the adjudicator’s decision would
have been if it had not been for this error. For these reasons, the decision of May 19, 2010, by Adjudicator,
Michèle A. Pineau should be set aside and the matter referred to another
adjudicator for redetermination.
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