Date: 20110211
Docket: T-1482-10
Citation: 2011 FC 163
Ottawa, Ontario, February 11, 2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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MOHAMMED TIBILLA
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Applicant
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and
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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 made by Ms. Cheryl Fraser,
Assistant Commissioner, Human Resources Branch, at the Canada Revenue Agency
(CRA) dated June 9, 2010, in which she denied the applicant’s grievance at the
final level.
[2]
For
the reasons below, this application for judicial review shall be denied.
[3]
The
respondent requested and it is agreed by the applicant that pages 28 to 184 of
the applicant’s record (exhibits “A” and “B”) be sealed because of personal information
that are included in these pages. The Court agrees and an order shall follow.
I. Facts
[4]
The
applicant worked for CRA in both the Collection and Audit departments on a term
basis from March 2006 and June 2009.
[5]
His
employment contract was terminated on June 30th, 2009.
[6]
During
that time, Mr. Michel Adam was the applicant’s manager from December 6, 2006
until June 30, 2009 and Mr. Francois Blais was his team leader from December 6,
2006 to October 10, 2008. Mr. Christian Dion was his second team leader from
October 2008 until June 2009.
[7]
During
the time of his service, the applicant was evaluated three times. One was made by
Mr. Blais and another one made by Mr. Dion.
[8]
In
the applicant’s Employee Performance Management Report (EPMR) covering the
period from September 1, 2007 until August 31, 2008 (2008 EPMR), Mr. Blais
determined that the applicant’s global results “mostly met expectations”.
[9]
On
April 29, 2009, Mr. Dion signed the applicant’s 2009 EPMR and put a check mark
in the box “results do not meet expectations”, therefore indicating that the
performance was unsatisfactory. Mr. Dion attached an Annex to the 2009 EMPR
which refers among other things, to 11 different files the applicant was
working on during the period in question (October 13, 2008 to March 31, 2009).
[10]
Prior
to the meeting to discuss the 2009 EMPR, Mr. Adam and Mr. Dion offered to the
applicant to be accompanied by a union representative.
[11]
During
the meeting (April 29, 2009) to discuss his 2009 EMPR, Mr. Adam told the
applicant that the term of his contract would not be extended, which was
confirmed by letter dated May 21, 2009. The applicant’s employment ended on
June 30, 2009.
[12]
On
June 3, 2009, the applicant, with the support of his bargaining agent, filed a
grievance, challenging his 2009 EMPR. The applicant alleged in his grievance
that management did not act in accordance with the CRA internal policy and
guidelines. The grievance was denied at the first, second and third level of
the grievance process.
[13]
The
grievance was then heard at the fourth and final level by Mr. Marc-André
Cousineau, Labour Relations Advisor. The applicant was represented by Ms. Lyson
Paquette, Labour Relations Advisor for the Union.
[14]
Following
the hearing, Mr. Cousineau prepared a document entitled “précis de grief au
palier final”, in which he recommended to dismiss the grievance (see Tab “I” of
Volume 1 of the respondent’s record, page 77). This document was sent to the decision-maker,
Ms. Cheryl Fraser. On June 9, 2010, Ms. Fraser denied the grievance at the
final level. This is the decision under review.
II. Decision under Review
[15]
The
CRA representative reviewed the applicant’s file and found that management did
provide the applicant with training and coaching and sufficient time to improve
his performance, but that despite all this, the applicant was not able to meet
the expectations set for him for the period of October 13, 2008 to March 31,
2009, as was indicated in his evaluation on April 29th, 2009.
III. Issues
[16]
The
sole issue here is the following:
a) Does
the June 9, 2010 decision by the CRA, warrants the intervention of the Court?
IV. Standard of Review
[17]
The
applicant did not make any submissions with respect to the applicable standard
of review. However, the respondent submits that the applicable standard is
reasonableness, given that the Federal Court has already applied that standard
to non-adjudicative final level grievance decisions which interpret and apply
internal policies and procedures (Cox v Canada (Attorney General), 2008
FC 596 at para 11; Hagel v. Canada (Attorney General), 2009 FC 329 at
para 27, aff’d 2009 FCA 364).
[18]
I
agree with that proposition. Therefore, the Court will intervene only if the decision
does not fall 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,
[2008] SCJ No 9.
A. Does the June 9, 2010
decision by the CRA Assistant Commissioner, Human Resources Branch, warrant the
intervention of the Court?
[19]
The
applicant alleges falsification of documents, conspiracy, bad faith and racism
on the part of the respondent. He submits that the respondent connived in an
ill manner to issue a poor evaluation for the sole objective of unduly
terminating his employment. He also argues that management did not follow its own
policies and guidelines.
B. Falsification of
documents, conspiracy, bad faith and racism
[20]
The
applicant alleges that both of his superiors falsified documents and
artificially created errors in order to discredit him. He states that inferences
based on these falsified and dubious evidences were made and used to assert the
applicant’s work performance from which he was given a poor evaluation.
[21]
The
applicant submits that he was never told that he had to improve his performance
to the point that his job was at risk.
[22]
He also
alleges that management ignored exhibits “A” and “B” of his affidavit (pages 28-184
of the applicant’s record) “in order to conceal the inherent weakness and
irregularities therein embodied which rendered them unconvincing, unreliable
and insignificant in this manner” (para 123 of the applicant’s arguments
and page 19 of the applicant’s record).
[23]
The
applicant also contends that his first team leader, Mr. Blais, demonstrated a
racist attitude towards him by using racist slurs and by deliberately and
disrespectfully distorting the names of immigrants in a mocking manner.
[24]
The
applicant further alleges that Mr. Dion treated him in a harsh, threatening,
intimidating and harassing manner by retorting to his questions (para 18, page
10 of the applicant’s record). These attitudes towards him played a role in the
issuance of a poor evaluation for the sole purpose of terminating his
employment.
C. The respondent did not follow its own Policy
and Guidelines
[25]
The
applicant argues that in a fair and objective situation, management would have
established an action plan for him.
[26]
He
also states
that in any case, he contests the determination by Mr. Cousineau that he
received ample classroom training or that he received the stated 37.5 hours of
mentoring and direct coaching.
[27]
At
the hearing, the applicant submitted a new argument, alleging a breach of
procedural fairness.
[28]
The
respondent argues that the Court should not conclude that exhibits “A” and “B” (mentioned
by the applicant) were ignored by the decision-maker because they were not
before her. The applicant was duly represented by Ms. Paquette and she did not
submit them.
[29]
The
respondent submits that numerous paragraphs from the applicant’s arguments
should not be considered because they are not supported by the evidence.
[30]
Finally,
the respondent underscores that he did not have the obligation to establish an
action plan for the applicant because the 2008 EMPR did not conclude that the applicant
had not met expectations and in that evaluation, measures were mentioned to be
taken to improve the applicant’s performance. Therefore, CRA was not in breach
of its own Policy and Guidelines.
V. Analysis
[31]
The
Court is of the opinion that the decision rendered by the Assistant
Commissioner is reasonable. She gave cogent reasons to dismiss the grievance at
the final level. She considered all the circumstances in the applicant’s file
and the submissions made by his union representative.
[32]
She
analyzed the CRA Performance Management Policy (Policy) and Employee
Performance Management Guidelines (Guidelines) and came to the conclusion
that the applicant had been provided with appropriate support and counsel to
increase his performance but in fact did not meet the expectations for the
period of October 13, 2008 to March 31, 2009 as mentioned in his evaluation of
April 29, 2000. The basis for that conclusion stems from the “Précis de grief
au palier final” prepared for the Assistant Commissioner by Mr. Marc-André
Cousineau who heard the parties at level 4 of the grievance process
(respondent’s record, pages 78 and 79).
[33]
The
Court is not satisfied that the applicant demonstrated a reviewable error in
the application of the Policy and the Guidelines by the decision-maker in this
case.
[34]
The
applicant is contesting the fact that exhibits “A” and “B” were ignored or not
examined by the Assistant Commissioner. However, Ms. Sylvie Bolduc’s affidavit
shows that these exhibits were not submitted at the final level (para 13 of Ms.
Sylvie Bolduc’s affidavit, page 10 of Vol. 1 of the respondent’s record). Even
if these exhibits were submitted at the first and second levels of the
grievance process as alleged at page 21 of the applicant’s factum (para 142, page
21 of the applicant’s record), it is not the decisions from these levels that
that the Court has been called to review. The Court shall not consider evidence
that was not before the decision maker (Assn. of Architects (Ont) v Assn. of
Architectural Technologists (Ont.), 2002 FCA 218 at para 30, leave to
appeal to SCC refused [2002] SCCA No 316).
[35]
With
regards to the contentions alleged by the applicant of falsification of
evidence, conspiracy, bad faith and racism, these issues were no raised in the
grievance and therefore cannot be decided on an application for judicial review
as stated in Nametco Holdings Ltd v M.N.R., 2002 FCA 149 at para 2:
One cannot rely in such a motion on
precedents involving the amendment of pleadings before or during a trial, where
the trial court will ultimately have all the necessary evidence and both
parties can examine or cross-examine witnesses on the amended issues. Nor is it
like seeking leave to introduce new evidence on appeal. There are strict requirements
for that special measure, even if it applied here (which it does not), and the
applicant has not met the criteria for such introduction. Instead this is a
judicial review whose purpose is to see if the tribunal whose decision is under
review committed any reviewable error in the way it dealt with the case before
it, not some other case it might have heard but did not. New evidence is
admitted on judicial review only on occasions where it is relevant to some
issue concerning the hearing procedure, or jurisdiction, of a tribunal.
[36]
The
same reasoning is applied to the applicant’s new argument at the hearing on the
issue of breach of procedural fairness.
[37]
The
Court notes that the applicant was represented at each and every level of the
grievance process and cannot tender new evidence in this application for
judicial review.
[38]
He
also amended his application at the hearing to ask for $4,000 for costs and
agreed that he would be ready to pay $3,500 if the application was dismissed.
JUDGMENT
THIS COURT
ORDERS that the application for judicial review be dismissed. The
applicant shall pay costs to the respondent in the form of a lump sum for an
amount of $3,500. Pages 28 to 184 of the applicant’s record (exhibits “A” and
“B”) are to be kept under seal.
“Michel
Beaudry”
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