Date: 20070116
Docket: T-1975-05
Citation: 2007 FC 28
Ottawa, Ontario, January 16,
2007
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
CHANDER
P. GROVER
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
The
National Research Council of Canada (NRC) suspended Dr. Chander P. Grover’s
employment indefinitely without pay because he would not undergo an examination
by a physician chosen by the employer. The adjudicator ruled that the NRC did
not have sufficient grounds to make such a request and allowed Dr. Grover’s
grievance. The Applicant asserts that the adjudicator erred and that the
decision should be quashed.
JUDICIAL PROCEDURE AND
ISSUE
[2]
The
present application for judicial review concerns a decision by an adjudicator
with the Public Service Labour Relations Board (Board). The case raises a
significant issue for labour and employment law: what is the balance to be
struck between an employee’s right to privacy and an employer’s legitimate duty
to maintain a safe workplace?
BACKGROUND
[3]
Dr.
Grover is a physicist specializing in the field of optics. He began work for
the NRC in 1981. In 1996, Dr. Grover was appointed as the Director of a newly
created section, the Radiation Standards and Optics Section with the Institute
of National Measurement Standards (INMS). The section was comprised of four
groups: Ionizing Radiation Standards, Optics, Photometry & Radiometry, and
Photonic Systems. (Decision of the Adjudicator, dated October 3, 2005 at paras.
9-10; Applicant’s Application Record (AAR), Vol. 1, Tab 2, p. 7; Exhibit E-15,
Transcripts of the Canadian Human Rights Tribunal, dated May 21, 1996; AAR,
above, Tab 5-80, pp. 377 and 381)
[4]
Dr.
Grover’s appointment as Director, and the creation and structure of his
section, was the result of a finding of discrimination against the NRC. Three
other human rights complaints by Dr. Grover from the 1990s remain outstanding
before the Canadian Human Rights Commission. There is also an ongoing action
for discrimination under the Canadian Charter of Rights and Freedoms,
Schedule B, Part I to the Canada Act 1982 (U.K.) 1982 c.11
filed in 2002. (Exhibit E-15, above; AAR, above, p. 373; Decision of
Adjudicator, dated October 3, 2005, at paras. 9-10; AAR, above, Vol. 1, Tab 2,
p. 7)
[5]
On
August 1, 2003, Dr. Peter Hackett, a Vice President with the NRC, was appointed
the Acting Director General for the INMS in addition to his regular duties. Dr.
Grover attended a management committee meeting with the new Acting Director
General on September 3, 2003. He found that Dr. Hackett treated him poorly
during the meeting and began to suspect that the real purpose of Dr. Hackett’s
appointment was to address his own situation. (Decision of the Adjudicator,
above, at paras. 12-13; AAR, above, Vol. 1, Tab 2, p. 8)
[6]
Dr.
Grover wrote to Dr. Arthur Carty, the President of NRC, to express his concern
that “this arrangement is directly linked to my situation, and that Dr. Hackett
has been sent to deal with me.” He closed his letter by saying, “The
aggregate of these issues has caused me considerable stress.” (Exhibit G-6:
Letter from C. Grover to A. Carty, dated September 8, 2003; AAR, above, Vol.
3, pp. 423-423)
[7]
Dr.
Hackett also wrote to Dr. Carty about the September 3, 2003 INMS management committee
meeting. He reported that he found Dr. Grover’s, conduct during the meeting to
be inappropriate. He ended his memo by stating: “Dr. Grover’s behaviour would
make it very difficult to manage the INMS using the management committee as the
primary management instrument. I shall consider other approaches.” (Exhibit
G-5: Memo to Arthur Carty; AAR, above, Vol. 3, p. 321)
[8]
Throughout
the fall of 2003, Dr. Grover became increasingly uncomfortable with Dr. Hackett’s
approach towards him and the management of the INMS. The situation came to a
head when the two again openly disagreed during a management committee meeting
held on January 14, 2003. Among other things, Dr. Grover had expressed concerns
about Dr. Hackett’s plan to expand the management committee to include Group
Leaders. Dr. Grover again found that Dr. Hackett treated him poorly during the
meeting in front of his colleagues. (Decision of the Adjudicator, above, at
para. 17; AAR, above, Vol. 1, Tab 2, p. 8; Exhibit E-2: Letter from C. Grover
to A. Carty, dated January 20, 2004; AAR, above, Vol. 2, p. 310)
[9]
After
the January 14, 2003 meeting, Dr. Hackett confronted Dr. Grover. According to Dr.
Grover, Dr. Hackett accused him of being disruptive “and said that he would not
tolerate this any further.” Dr. Grover wrote again to the NRC President to
protest what he viewed as mistreatment by Dr. Hackett. He stated: “It seems as
though Dr. Hackett is purposefully trying to antagonize me, and minimize my
role within the Institute. This has caused me a significant amount of stress
and has made it difficult for me to function effectively.” (Exhibit E-2, above;
AAR, above)
Medical
Certificates and Increasing Friction with NRC
[10]
Not
long after this letter to Dr. Carty, Dr. Grover attended with his regular
physician, Dr. Marcel Reny. A medical certificate was issued by Dr. Reny
which prescribed that Dr. Grover take “stress leave for four weeks, spread over
eight weeks, as required”. Dr. Hackett accepted this certificate and the sick
leave was authorized. (Decision of the Adjudicator, above; AAR, Vol 1, Tab
2, p. 8)
[11]
Over
the ensuing months, other issues arose between Dr. Hackett and Dr. Grover. In
February 2004, Dr. Hackett directed Dr. Grover to participate in a performance
and merit review. Dr. Grover explained that the NRC President had exempted him
from such reviews since the human rights settlement of 1996. On March 8, 2004,
President Carty wrote to Dr. Grover that: “as Dr. Hackett communicated to you
in his letter dated February 19, 2004, I expect PPRs and Merit Reviews to be
conducted for all managers here at the NRC.” (Decision of the Adjudicator,
above; AAR, above, Vol. 1, Tab 2, pp. 8-9)
[12]
Dr.
Grover testified before the Board that he did not interpret Dr. Carty’s letter
to mean that the 1996 agreement regarding his participation in these process
was specifically rescinded. He simply could not believe that the President
would do that. At the same time, Dr. Hackett began to threat Dr. Grover with
discipline if he did not participate. (Decision of the Adjudicator, above at
para. 20; AAR, above, Vol. 1, Tab 2, p. 9; Affidavit of Chander Grover at para.
9; AAR, above, Vol. 4, Tab 9, p. 939)
[13]
Dr.
Hackett also wanted Dr. Grover to urge his employees to participate in the
“Evolution” process, which was established to review and re-organize the INMS.
Given that co-operation was voluntary, Dr. Grover explained that he regarded
constant reminders to his staff as “arm twisting”. Dr. Hackett took objection
to Dr. Grover’s views, advising on March 4, 2004, that he regarded Dr. Grover’s
responses as “insubordination and misconduct”. (Exhibit G-10; Series of email
between P. Hackett and C. Grover; AAR, above, Vol. 3, pp.
523-525, 524 for quote)
[14]
On
March 30, 2004, Dr. Grover returned to his physician and was issued a second
medical certificate with the same prescription as before – 4 weeks sick leave,
to be used over 8 weeks as required. Dr. Grover generally used this sick leave
by taking off those days – Mondays and Fridays – when management committee
meetings were scheduled. He testified before the Board that he was
intentionally avoiding Dr. Hackett because he found the encounters to be
extremely stressful. (Decision of the Adjudicator, above at paras. 21 and 25;
AAR, above, Vol. 1, Tab 2, p. 9)
[15]
Dr.
Hackett had noted Dr. Grover’s absence from management committee meetings and
the fact they coincided with the days Dr. Grover took for sick leave. Dr.
Hackett testified before the Board that he regarded attendance at these
meetings to be a primary responsibility for managers. In April 2004, Dr.
Hackett changed the days of the week on which the meetings were scheduled to
see if this would improve Dr. Grover’s attendance. He found that Dr. Grover’s
sick days changed to those same days. (Decision of the Adjudicator, above at
para. 30; AAR, above, Vol.
1, Tab 2, p. 10)
[16]
Following
an analysis of Dr. Grover’s use of sick days over this period, another NRC
manager, Mr. Steve Blais, reported to Dr. Hackett that it was evident that Dr.
Grover was using sick leave to avoid management committee meetings. Mr. Blais,
who was advising Dr. Hackett on his handling of Dr. Grover throughout this
period, concluded that this was a “flagrant misuse of the leave”. (Exhibit E-1,
Tab 9: Email from S. Blais to P. Hackett, dated June 3, 2004; AAR, above, Vol.
1, Tab 5-B-9, p. 80; Exhibit G-11: Email between S. Blais and P. Hackett, dated
April 28, 2004; AAR, above, Vol. 3, p. 528)
[17]
Dr.
Hackett never told Dr. Grover about the concerns regarding his absences from
management committee meetings. Dr. Hackett also testified that he was not ready
to accept the conclusion that Dr. Grover was abusing sick leave. (Decision of
the Adjudicator, above at para. 34; AAR, above, Vol. 1, Tab 2,
p. 10)
[18]
Another
disagreement arose between Dr. Grover and Dr. Hackett with respect to the
nomination process for a group leader position in Dr. Grover’s section. On
April 26, 2004, Dr. Hackett formally disciplined Dr. Grover with a written
reprimand. Further disciplinary action was taken on the same issue on June 1,
2004, with the imposition of a three day suspension without pay. (Decision of
the Adjudicator, above at para. 23; AAR, above, Vol. 1, Tab 2, p. 9)
[19]
On
the same day the discipline was levied, Dr. Grover had attended for a medical
appointment. His regular physician, Dr. Reny, was unavailable, so he attended
with Dr. A. Saeed, a colleague of Dr. Reny’s. Dr. Saeed issued a medical
certificate with the same prescription for sick leave as previously recommended
by Dr. Reny. Dr. Grover provided the medical certificate to the NRC on June 2,
2004. (Decision of the Adjudicator, above at para. 27; AAR, above, Vol. 1, Tab
2, p. 10; Exhibit G-12: email from C. Grover to P. Hackett, dated June 2, 2004;
AAR, above, Vol. 3, p. 530)
Medical
Certificate Rejected
[20]
After
being notified of the June 1 discipline, Dr. Grover advised Dr. Hackett that he
would be on sick leave from June 4, 2004 to June 28, 2004. Dr. Hackett
responded with a letter dated June 10, 2004, which observed that this latest
request for sick leave followed the June 1, 2004 discipline matter specified
above. The letter further noted that it “is the third such certificate which
you have produced since February 2, 2004 providing identical prescribed
treatment and from two different physicians.” (Exhibit E-1, Tab 8: Email from
C. Grover to P. Hackett, dated June 3, 2004; AAR, above, Vol.
1, Tab 5-B-8, p.79; Part of Exhibit G-14: Letter from P. Hackett to C. Grover,
dated June 10, 2004; AAR, above, vol. 3, p. 539)
[21]
Dr.
Hackett’s letter further advised that the NRC would not accept the latest certificate
“until such time as your medical situation has been confirmed by a physician of
the NRC’s choosing.” This physician would “determine both the validity of your
current medical situation as well as your medical capacity to resume your
duties and responsibilities.” Dr. Grover was directed not to return to the
workplace until Dr. Hackett received the results of this assessment. (Part of
Exhibit G-14: Letter from P. Hackett to C. Grover, dated June 10, 2004; AAR,
above, vol. 3, p. 539)
[22]
At
the time of Dr. Hackett’s June 10, 2004, letter, Dr. Grover had been away from
work less than 40% of the time since he tendered the first medical certificate
dated January 27, 2004; however, he had maintained all of his duties with the
exception of attending management committee meetings with Dr. Hackett. Dr.
Grover was a senior manager with 44 employees reporting to him. He was also
actively filling three Group Leader positions and did not have an
administrative assistant. The NRC acknowledged that he had an unusually heavy
workload, but also agreed that he was meeting his obligations with the
exception of the management meetings. (Exhibit E-1, Tab 28: Memo re Dr. C.
Grover sick Leave se; AAR, above, Vol. 1, Tab 5-B-28, p. 139; Exhibit E-1, Tab
1: INMS Organization Chart; AAR, above, Vol. 1, Tab 5-B-1, p. 72; Decision
of the Adjudicator, above at paras. 29-30, 48 and 142; AAR, above, Vol. 1, Tab
2, p. 10, 13 and 29)
[23]
Dr.
Grover replied to Dr. Hackett’s letter through his legal counsel. On June 18,
2004, counsel asked Dr. Hackett to identify the specific problems with the
medical certificate and why it was deficient. Dr. Hackett was also advised that
Dr. Grover attended with a new physician because his regular physician was
unavailable. It was also explained that the new physician was provided with the
previous medical certificates and “saw no reason to vary from the treatment
which had been prescribed” by the regular doctor. (Letter from D. Yazbeck to P.
Hackett, dated June 18, 2004; AAR, above, Vol. 3, p. 546)
[24]
Legal
counsel for the NRC responded by letter that an assessment by “a physician
designated by the NRC” was still required. On June 28, 2004, Dr. Grover
returned to work. Dr. Hackett called him into his office and ordered him
to leave the workplace. Dr. Hackett testified that it was a calm meeting
whereas Dr. Grover described the encounter as being very difficult and that it
left him humiliated and even scared. (Letter from R. Snyder to D. Yazbeck,
dated June 23, 2004; AAR, above, Vol. 3, p. 548; Decision of the Adjudicator,
above at para. 40; AAR, above, Vol. 1, Tab 2, p. 11)
[25]
The
NRC unilaterally scheduled a medical assessment for Dr. Grover with Comcare
Health Services on June 30, 2004. Dr. Grover notified the NRC that he would not
attend. This was met with a letter from Dr. Hackett on June 29, 2004,
indicating that failure to attend would be considered insubordination.
(Decision of the Adjudicator, above at para. 41; AAR, above, Fol. 1, Tab 2, pp.
12-13)
[26]
Dr.
Grover did not attend the scheduled examination. On July 7, 2004, Dr. Hackett
wrote to advise Dr. Grover that a previously scheduled trip to Tokyo was
cancelled. This was followed by a letter dated July 19, 2004, which explicitly
disciplined Dr. Grover because he refused to attend with the NRC’s chosen physician.
The letter stated, “Your persistent refusal to follow direction by continuing
to blatantly disregard my instructions is unacceptable and cannot and will not
be tolerated.” He was advised that he was suspended for three days without pay
and that he may be subject to further discipline, including termination. In a
separate letter of the same date, Dr. Hackett advised that a new appointment
with Comcare was scheduled within the next 48 hours and that Dr. Grover would
be subject to discipline if he failed to attend. (Decision of the Adjudicator,
above at paras. 42-44; AAR, above, vol. 1, Tab 2, p. 12)
[27]
Also
on July 19, 2004, the NRC’s counsel wrote to Dr. Grover’s counsel, expressly
advising that Dr. Grover would not be entitled to participate in selecting a
physician to conduct an independent medical evaluation. NRC counsel also
emphasized again that failure to attend with the physician chosen by NRC would
“attract consequences”. (Part of Exhibit G-14: Letter from R. Snyder to D.
Yazbeck, dated July 18, 2004; AAR, above, Vol. 3, p. 570)
[28]
Dr.
Grover wrote a letter to Dr. Hackett dated July 20, 2004. It indicated that he
would not attend an examination with the NRC’s chosen physician, but he would
be prepared to subject himself to “an assessment by an independent physician
agreed to by both myself and NRC”. Dr. Hackett and the NRC did not bother
to respond to this proposal. (Part of Exhibit G-14: Letter from C. Grover to P.
Hackett, dated July 20, 2004; AAR, above, Vol. 3, p. 571)
[29]
Dr.
Hackett did write to Dr. Grover on July 28, 2004. He advised that “your refusal
to attend the rescheduled IME set for July 21, 2004 with Comcare Health
Services constituted a further act of insubordination”. Dr. Hackett imposed a
penalty of five days suspension without pay, to be served upon Dr. Grover’s
return to the workplace. In the same letter, Dr. Hackett further advised Dr.
Grover that, due to his refusal to attend with Comcare, he was now in a “no
work, no pay” situation effective July 21, 2004, and his salary was ceased. (Part
of Exhibit G-14: Letter from P. Hackett to C. Grover, dated July 28, 2004; AAR,
above, Vol. 3, p. 675)
[30]
On
August 1, 2004, Dr. Hackett was replaced by Dr. Sherif Barakat as the Acting
Director General of the INMS. Dr. Grover viewed this as an opportunity to
resolve the situation. He wrote to Dr. Barakat indicating that he had been
under stress since January 2004, but he was now ready to return to work. As
evidence, he attached an updated medical certificate by his regular physician,
Dr. Reny. (Decision of the Adjudicator, above at para. 50; AAR, above, Vol.
1, Tab 2, p. 3)
[31]
Dr.
Barakat sought advice about the situation from NRC Human Resources. Upon
learning the background, he wrote to Dr. Grover, advising that his latest
medical certificate was refused. He also refused Dr. Grover’s request for
vacation pay, thereby depriving Dr. Grover of any pay whatsoever. Finally, Dr.
Barakat advised that the “no work, no pay” status would continue until Dr.
Grover attended for an IME as scheduled by NRC. (Decision of the Adjudicator,
above at paras. 51-52; AAR, above, Vol. 1, Tab 2, pp. 13-14; part of G-14:
Letter from S. Barakat to C. Grover, dated August 10, 2004; AAR, above, Vol. 3,
p. 588)
[32]
On
August 16, 2004, Dr. Grover wrote to Dr. Barakat. He again offered to undergo a
medical assessment by a physician chosen by both NRC and himself. In the event
this offer was refused, Dr. Grover asked for a rationale. This letter went
unanswered by NRC. (Decision of the Adjudicator, above at para 53; AAR, above,
Vol. 1, Tab 2, p. 14; Letter from C. Grover to S. Barakat, dated August 16,
2004; AAR, above, Vol. 3, p. 603)
[33]
Dr.
Grover requested a meeting with Dr. Barakat and they met on August 17, 2004. Dr.
Grover wanted clarification on the matter and details on exactly what the NRC
was looking for. He did not obtain any further information other than being
informed that an NRC policy applied to his situation. He asked for a copy of
this policy and the NRC’s Occupational Health and Safety Policy was provided to
him a few weeks later. (Decision of the Adjudicator, above at paras. 54-56;
AAR, above, Vol. 1, Tab 2, p. 14)
[34]
Dr.
Grover tried to return to work on August 18, 2004, as he believed he was
entitled to do pursuant to a confusing letter he received from NRC’s Pay and
Benefits Section. Dr. Grover was confronted by Dr. Barakat and ordered to leave
the premises. (Decision of the Adjudicator, above at paras. 55-56; AAR, above,
Vol. 1, Tab 2, p. 14; Decision of the Adjudicator, above at para. 41; AAR,
above, Vol. 1, Tab 2, pp. 12-13)
[35]
Over
the ensuing months, Dr. Grover tried to resolve the situation on a number of
occasions. He continued to refuse to attend with a physician chosen by NRC and
explained that he was still unclear about the NRC’s concerns. Several of his
own concerns had still to be addressed by the NRC. (Decision of the
Adjudicator, above at paras. 58-60; AAR, above, Vol. 1, Tab 2,
pp. 12-13)
[36]
During
the same period, Dr. Grover learned that the NRC was proceeding to reorganize
the INMS and his own Section. He was later informed that his section was being
dismantled with two groups being taken away. As well, his section was going to
be transferred to another Institute within the NRC, where Dr. Grover would be
reporting to an individual who he viewed as part of the discriminatory cases
from the 1990s. (Letter from S. Barakat to C. Grover, dated October 28, 2004;
AAR, above, Vol. 3, p. 681; Letter from C. Grover to S. Barakat, dated November
4, 2004, AAR, Vol. 3, p. 689)
[37]
On
December 1, 2004, Dr. Grover received a letter from Dr. Andrew Woodsworth, an
NRC Vice President. The letter indicated that, in a “final” attempt to resolve
the situation, the NRC set out 12 points that justified the NRC’s concerns and
position. Dr. Woodsworth further informed Dr. Grover that the three day and
five day suspensions for refusing to attend the IME were being rescinded, but
he would remain in a “no work, no pay” status. (Part of G-14: Letter from A.
Woodsworth to C. Grover, dated December 1, 2004; AAR, above, Vol.
3, pp. 703-706)
[38]
Another
Vice President, Mr. David Simpson, took over from Dr. Woodsworth in February
2005. On February 24, 2005, Dr. Grover wrote to Mr. Simpson and set out five
options that could resolve the matter. These options were refused by NRC.
(Decision of the Adjudicator, above at paras. 62-63; AAR, above, Vol. 1, Tab 2,
p. 16)
[39]
The
NRC and Dr. Grover engaged on the possibility of a referral to Health Canada for an
examination. Dr. Grover was agreeable to this proposal provided the consent to
the release of his personal information could be modified. He was told that
this was impossible. The matter was at this point at the time the Board
hearings commenced in April 2004. (Decision of the Adjudicator, above at paras.
63 and 66; AAR, above, Vol.
1, Tab 2, p. 16)
ANALYSIS
Standard
of Review
[40]
It
is well-established that courts must determine the appropriate standard of
review through a pragmatic and functional approach. The factors to be
considered are: (1) the presence or absence of a privative clause; (2) the
relative expertise of the decision-maker; (3) the purpose of the statute and
provision in question; and (4) the nature of the problem. (Dr. Q. v. College
of Physicians and Surgeons of British Columbia, [2003] 1
S.C.R. 226)
[41]
There
is no privative clause in the Public Service Staff Relations Act, R.S.C.
1985, c. P-35 (PSSRA). This could suggest a lower standard of review were it
not for the significance of the second factor, the relative expertise of the
decision-maker. The Federal Court and Federal Court of Appeal have repeatedly
held that adjudicators under the PSSRA generally deserve the highest standard
of deference in light of their particular experience and expertise in the filed
of labour relations. (Public Service Alliance of Canada v. Canada (Canadian
Food Inspection Agency), 2005 FCA 366, [2005] F.C.J. No. 1849 (QL) at
paras 18-19-20-21-22)
[18] It is generally accepted that the interpretation and
application of a collective agreement, including references under the PSSRA
alleging its violation fall within the purview of the PSSRB's expertise and
call for the highest degree of deference known as patent unreasonableness (see
for instance, Barry v. Treasury Board (1997), 221 N.R. 237 (F.C.A.); Connors
v. Canada (Revenue B Taxation), [2000] F.C.J. No. 477 (T.D.), (Q.L.); Attorney
General of Canada v. Social Science Employees Assn. et al. 240 D.L.R. (4th)
335; White v. Canada (Treasury Board), [2004] F.C.J. No. 1231, 2004 FC
1017).
[19] However, the applicant contends that the decisions of the
Supreme Court in Voice Construction Ltd. v. Construction & General
Workers' Union, Local 92, [2004] 1 S.C.R. 609 and Alberta Union of
Provincial Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727
have altered the standard of review applicable in labour disputes. According to
the applicant, these decisions stand for the general proposition that the
interpretation or application of collective agreements in the context of labour
disputes no longer call for the highest degree of deference. I do not believe
that to be the case.
[20] The two decisions relied upon have not been construed as the
applicant suggests. Indeed, the Ontario Court of Appeal specifically refused to
adopt the approach proposed by the applicant in Lakeport Beverages v.
Teamsters Local Union 938 (2005), [2005] O.J. No. 3488, as did the Federal
Court in Currie et al. v. the Queen (CCRA), [2005] F.C.J. No. 922, 2005 FC
733. I am aware of no decision in which the pronouncement of the Supreme Court
in Voice Construction and in Lethbridge Community College has
been applied as the applicant proposes.
[21] In addition, unlike the arbitrator in the Voice
Construction decision, the Chairperson of the PSSRB is not an ad hoc
adjudicator appointed by the parties. The PSSRB is a statutory tribunal created
by Parliament by virtue of the PSSRA. In my view, this institutional expertise
favours a more deferential standard of review, which is in stark contrast to
the nature of the standard applied in Voice Construction.
[22] Furthermore, the
question of whether the provisions of the collective agreement were triggered
on the facts of this case is one of mixed fact and law. This again
distinguishes the present application from the issue which arose in Voice
Construction.
[42]
The
purpose of the statute is the expeditious resolution of labour disputes in the
federal public sector by adjudicators experienced in the area. This factor
similarly militates towards a higher standard of deference.
[43]
With
respect to the fourth factor, nature of the problem, it must be recognized that
most kinds of issues arising out of decisions by the Board’s adjudicators will
always attract the highest standard of deference. Exceptions would be purely
jurisdictional issues or questions of law that are not within the normal area
of expertise of such adjudicators. In the present case, the Applicant’s issues
are almost all related to findings of fact or findings of mixed fact and law.
The Applicant does generally contest two questions of law, namely the meaning
of discipline and the test for barring an employee from work for safety reasons;
however, these are legal questions that fall squarely within the field of
labour relations, with due deference owed to the adjudicator. (Public
Service Alliance of Canada v. Canada (Canadian
Food Inspection Agency), 2005 FCA 366, [2005] F.C.J. No. 1849 (F.C.A.)
(QL))
[44]
The
Applicant has relied on the case of Canada (Attorney
General) v. Assh, 2005 FC 734, [2005] F.C.J. No. 923 (QL), for the
proposition that determinations related to disguised disciplinary action are
jurisdictional and therefore attract a less deferential standard of review. Therefore,
for the case at bar, the analysis in Archambault v. Canada (Customs and
Revenue Agency), 2005 FC 183, [2005] F.C.J. No. 229 (QL), and upheld by the
Federal Court of Appeal 2006 FCA 63, [2006] F.C.J. No. 207, on this issue is
preferable. In this case, Justice Danièle Tremblay-Lamer of the Federal Court explained
that such questions attract the highest standard of review:
[15] …Whether the employer acted in
good faith in terminating the employment relationship for employment-related
reasons or rather took disciplinary action under cover of employment-related
reasons is an issue that falls squarely under the jurisdiction conferred on
adjudicators under the Act. Even if, ultimately, the issue is of a
jurisdictional nature, it requires a thorough investigation of the facts
relating to the intentions and actual conduct of the employer.
[16] Put simply,
jurisdiction under paragraph 92(1)(c) of the PSSRA depends on whether
the employee's dismissal was the result of disciplinary action. That is a pure
finding of fact, so in my view the applicable standard of review is patent
unreasonableness.
[45]
All
of the issues raised by the Applicant, whether fact, law, or mixed fact and
law, are within the particular expertise of PSSRB adjudicators. The applicable
standard of review is patent unreasonableness.
Disciplinary
action
[46]
The
PSSRA established a regime for the resolution of grievances by employees in the
federal public sector. In accordance with this regime, some grievances are
classified as non-adjudicable, which means that the final level of
decision-maker is the employer and there is no right to independent
adjudication; however, employees have the right to adjudication before the Board
for other kinds of issues that are regarded as more significant. Early on, the
Courts recognized that some employers might try to avoid adjudication by
attempting to mischaracterize the true nature of their actions. The Board
adjudicators are required to look at the substance of an action rather than its
form to determine whether they have jurisdiction. In the words of the Court of
Appeal, “A camouflage to deprive a person of a protection given by statute is
hardly tolerable.” (PSSRA, above, sections 91 and 92; Canada (Attorney
General) v. Penner, [1989] 3 F.C. 429 (C.A.), [1989] F.C.J. No.
461 (QL); Archambault, above at paras. 9-12)
[47]
Under
subsection 92(1) of PSSRA, employees have the right to adjudication in respect
of disciplinary action resulting in a financial penalty. Consistent with Penner,
above, the caselaw of the Board and its predecessor recognize that sometimes
employers engage in “disguised discipline” to avoid adjudication. As a
threshold issue, adjudicators must determine whether employer’s actions that
are, on their face, administrative in nature are in reality disguised
discipline. In reaching this determination, adjudicators must look at all the
surrounding facts and circumstances. (PSSRA, section 92; Nolan and Treasury
Board (Health and Welfare Canada), [1994]
C.P.S.S.R.B. No. 115 (QL); Tobin and Treasury Board (Fisheries and Oceans Canada), [1990]
C.P.S.S.R.B. No. 11 (QL))
[48]
In
the present case, Dr. Grover grieved the employer’s actions in putting him on
involuntary leave without pay status for failing to undergo a medical
assessment by a physician of the NRC’s own choosing. The NRC claimed that this
was only an administrative action intended to protect the safety of the
workplace. Dr. Grover maintained that the NRC’s actions were in fact
disciplinary, or disguised discipline, and therefore the adjudicator had
jurisdiction. The adjudicator ruled in favour of Dr. Grover and the Applicant
now contests that finding.
[49]
The
thrust of the Applicant’s arguments on this issue are that the adjudicator made
some errors of fact and that she failed to appreciate that employers who
suspend employees for safety reasons are doing so for administrative reasons.
(Applicant’s Memorandum of Fact and Law, paras. 97-98 and 108-118; AAR, above,
Vol. 5)
[50]
The
latter point, argued at paragraphs 108 to 117 of the Applicant’s Memorandum of
Fact and Law, can be summarily dismissed. As a matter of labour law, the
adjudicator clearly understood the difference between administrative and
disciplinary action; however, she simply rejected the NRC’s arguments that it
was truly acting without any intention to punish Dr. Grover or correct
misconduct. As stated by the adjudicator:
[120] …the simple fact that the
employer characterised its actions as administrative by referring to an
administrative policy or prerogative does not automatically make them so. An
analysis of the facts and context will be determinative.
[51]
The
adjudicator highlighted several facts which led her to the conclusion that the
decision to cease Dr. Grover’s salary and bar him from the workplace was in
fact disciplinary. Perhaps most significantly, she observed that in the
beginning the NRC expressly treated the matter as disciplinary. She correctly
points out that “Dr. Hackett was telling the grievor [in his letters] that a failure
to an administrative measure would be considered insubordination, and
therefore, a disciplinary matter. Only later on did the employer characterise
its actions as also administrative.” (Decision of the Adjudicator, above at
paras. 123 and 124 for quote; AAR, above, Vol. 1, Tab 2, pp. 25-26)
[52]
The
NRC explicitly levied discipline on the grievor twice – a three day suspension
and a five day suspension – for failing to attend with a physician chosen by
the NRC, calling his actions “insubordination”. It was only at the time of the
second suspension that the NRC then purported to take administrative action by
ceasing Dr. Grover’s salary indefinitely.
[53]
The
adjudicator also noted that the NRC did not offer Dr. Grover the opportunity to
exhaust his sick leave and it refused his request for vacation leave. There was
no reason to deny Dr. Grover in this way unless the motivation was to punish or
otherwise compel a different course of conduct on his part. These are the very
hallmarks of disciplinary action. The adjudicator clearly demonstrated that she
understood the proper principles of discipline by stating. “The measures were
used to bring compliance on the part of the grievor.” (Decision of the
Adjudicator, above at paras. 135 and 138 for quote; AAR, above, Vol. 1, Tab 2,
pp. 22-23)
[54]
While
the adjudicator’s reasoning is sound, it is worth noting that Board
jurisprudence on similar facts have applied similar reasoning. In Tobin,
above, the Department of Fisheries and Oceans ordered the grievor to submit to
a medical examination. When he failed to attend, he was suspended indefinitely
without pay. The employer objected to the adjudicator’s jurisdiction for the
same reasons as in the present case, but the adjudicator ruled that under the
circumstances, the indefinite suspension was “disciplinary in nature”.
[55]
The
adjudicator in the present case also made reference to the correspondence and
the “overall context and attitude of the employer”. The employer sent literally
dozens of letters to Dr. Grover from June 2004 until April 2005. Almost every
single one suggests or states that Dr. Grover was insubordinate, guilty of
misconduct, or was facing termination. The tone of these letters is
unmistakable and hardly reflects compassion for Dr. Grover’s health, the
ostensible reason for the NRC’s “administrative action”. (Decision of the
Adjudicator, above at para. 134; AAR, above, Vol. 1, Tab 2, p. 27)
[56]
The
Applicant further attacks the decision by arguing that the adjudicator made
several factual errors in the following passage:
…The grievor was also found to be
insubordinate by not attending management meetings. He was found to be
insubordinate by not cooperating and by resisting preparing a performance
review for himself. He was perceived to be uncooperative, as regards the reorganisation
of his section and of the Institute itself, as implemented by Dr. Hackett…
(Decision of the Adjudicator, above at
para. 134; AAR, above, Vol. 1, Tab 2 p. 22; Applicant’s Memorandum of Fact and Law,
paras. 95-101; AAR, above, Vol. 5, pp. 964-965)
[57]
Dr.
Grover agrees with the Applicant that formal discipline was not imposed in any
of the circumstances described above. However, the Applicant is placing too
much emphasis on the word “found” and misapprehends the adjudicator’s meaning.
Based on the adjudicator’s more fulsome summary of the evidence at paras. 19-34
of her decision, it is obvious that she understood formal discipline was not
imposed in these cases. She nevertheless concluded, quite reasonably, that the
NRC regarded Dr. Grover as insubordinate for failing to attend management
meetings and resisting a performance review.
[58]
Specifically,
Mr. Blais, Manager of Employee Relations, felt that Dr. Grover was avoiding
management meetings by way of a “flagrant misuse” of sick leave. Dr. Grover
also testified that he was threatened with discipline by Dr. Hackett for
resisting a performance review. In both instances, there is evidence that the
NRC regarded Dr. Grover as insubordinate, though discipline was not imposed.
(Exhibit E-1, Tab 9: Email from S. Blais to P. Hackett, dated June 3, 2004;
AAR, above, Vol. 1, Tab 5-B-9, p. 80; Affidavit of C. Grover, para. 9; AAR,
above, Vol. 4, Tab 9, p. 939)
[59]
With
respect to co-operation with the reorganization of the Institute, the evidence
is clear that Dr. Hackett threatened Dr. Grover with discipline because he
refused to pressure his employees to participate in the “Evolution” process.
Again, the adjudicator’s finding is correct and based on the evidence.
(Affidavit of C. Grover, para. 9; AAR, above, Vol. 4, Tab 9, p. 939)
[60]
The
Applicant has asserted that the adjudicator’s decision should be quashed
because she improperly relied on a particular document in finding that the
employer’s actions were disciplinary. Both parties to the adjudication had
entered one large exhibit with numerous documents. The NRC’s legal counsel
advised the adjudicator that the employer did not object to Dr. Grover’s
exhibit provided all of the documents were subsequently authenticated in the
course of the hearing. Dr. Grover’s legal counsel later verified the
authenticity of all the documents through the testimony of Dr. Grover. The
Applicant never objected to this, nor did the Applicant object at the time of
final arguments. The Applicant now submits that it can rest on its objections
as to admissibility of documents until it gets to the Federal Court. This it
cannot do and the argument is dismissed.
[61]
The
Applicant further submits that the adjudicator was “cherry picking” the
evidence by relying on the document in question, a letter from Dr. Grover,
without due regard to other related documentation, namely the employer’s
response. The employer’s letter must be read together with Dr. Grover’s
subsequent letter, which demonstrates that the employer’s points were
erroneous. No doubt the adjudicator had proper regard for all of the
surrounding correspondence. (Applicant’s Memorandum of Fact and Law, para. 106;
AAR, above, Vol. 5, p. 966; Part of Exhibit G-14: Letter from S. Barakat to C.
Grover, dated September 24, 2004; AAR, above, Vol. 3, p. 118;
Part of Exhibit G-14: Letter from C. Grover to S. Barakat, dated September 27,
2004; AAR, above, Vol. 3, p. 120)
[62]
Based
on all the foregoing, the adjudicator’s findings with respect to the
disciplinary nature of the NRC’s actions were correct. In any event, the
adjudicator had considerable evidence on which to rely and it cannot be said
that her decision was patently unreasonable.
Legal Standard to be met by NRC before
barring Dr. Grover’s from work until attending a physician not of his own
choice
[63]
The
Applicant argues in respect of two points in regard to the adjudicator’s
decision in relation to her identification of the legal standard or test that
the employer had to meet in the circumstances. First, the Applicant contended
that the adjudicator misinterpreted the relevant labour law jurisprudence
regarding the employer’s right to require a medical examination for the purpose
of maintaining a safe workplace. In a similar vein, the Applicant argued that
the adjudicator failed to liberally interpret the NRC’s policy on this very
issue.
[64]
The
adjudicator’s analysis and her definition of the appropriate legal standard,
springs directly from the applicable labour law jurisprudence. The foundational
principle is that employees have a strong right to privacy with respect to
their bodily integrity and a medical practitioner; therefore, a trespass is
committed if an employee is examined against his or her will. Consequently, the
employer cannot order an employee to submit to a medical examination by a
doctor chosen by the employer unless there is some express contractual
obligation or statutory authority. (Thompson and Oakville (Town) 1963),
41 D.L.R. (2d) 294 (Ont.H.C.) at p. 302)
[65]
Notwithstanding
the above, it is also well established that employers have an important
obligation to ensure a safe workplace. This means employers have the right to
know more about an employee’s medical information if there are reasonable and
probable grounds to believe the employee presents a risk to health or safety in
the workplace.
[66]
It
does not follow that an employer can automatically demand that an employee
undergo a medical examination. Rather, to balance the employee’s right to
privacy and bodily integrity, the employer must explore other options to obtain
the necessary information. If the employer is dissatisfied with these other
options, including and in particular a medical certificate tendered by the
employee, it has the duty to clearly explain to the employee or state the
reasons why the information is insufficient. Again, this respects the
employee’s rights to privacy and allows him or her to assess the employer’s
objections and produce other information if needed. It is only after all of
these steps have been canvassed that an employer can in certain instances
insist that an employee must attend a doctor chosen by the employer. (Air
Canada and Canadian Airline Employees Association (1982), 8 L.A.C. (3d) 82
(Simmons) at pp. 13-14; Riverdale Hospital and Canadian
Union of Public Employees, Local 79 (1985), 19 L.A.C. (3d)
396 (Burkett) at pp. 406-407; Nelsons Laundries Ltd. and Retail Wholesale
Union, Local 580 (1997), 64 L.A.C. (4th) (Somjen) at pp.
125-127)
[67]
The
Ontario
Divisional Court recently affirmed the arbitral jurisprudence in this
regard. In Ontario Nurses’
Association v. St. Joseph’s Health Centre (2005), 76 O.R. (3d) 22
(Ont.Div.Ct.), the Court ruled as follows:
[19] We were referred to a number of
arbitral cases canvassing the issue of what information an employer can require
of an employee returning from a medical leave. Not surprisingly, in view of the
privacy interests involved, limits of reasonableness have been developed by
arbitrators.
[20] The weight of the arbitral cases is
that employers are entitled to seek medical information to ensure that a
returning employee is able to return to work safely and poses no hazard to
others. The employee's initial obligation is to present some brief information
from the doctor declaring the employee is fit to return. If the employer has
reasonable grounds on which to believe that the employee's medical condition
presents a danger to herself or others, the employer may ask for additional
information to allay the specific fears which exist, explaining the reasons to
the employee. The request must be related to the reasons for absence; no broad
inquiry as to health is allowed. In my view, these are sound principles.
[68]
It
is also important to emphasize again that the employer’s interest must relate
to safety. Concerns about the validity of an employee’s sick leave cannot
justify a demand for a medical examination. Indeed, there is a “fundamental
difference” between requiring a medical examination for fitness to work versus
testing the validity of an illness. (Riverdale Hospital, above at pp.
405-406)
[69]
The
Applicant takes issue with the adjudicator’s statement that “the request for an
independent medical examination to determine fitness to work should be
considered only in exceptional and clear circumstances”. The Applicant argues
that the articulation of a need for “exceptional and clear circumstances” is
somehow inconsistent with the jurisprudence. There is no merit to this
argument.
[70]
Numerous
cases speak to the requirement that a medical examination must be shown to be
“necessary” due to a “legitimate doubt”. The onus lies on the employer, who
must be prepared to call “cogent evidence” to support its position. The need
for a medical examination is described as “drastic action” which must have a
“substantial basis” and will only be required in “rare cases”. In light of such
arbitral commentary, the adjudicator’s description of the need for “exceptional
and clear circumstances” clearly arises from the cases. (Riverdale Hospital, above at
pp. 406-407; K. Nicholson and Treasury Board (National Defence),
[1/991] C.P.S.S.R.B. No. 267 (QL) at pp. 10-11; Dennison and Treasury Board
(Solicitor General), [1983] C.P.S.S.R.B. No. 89 (QL) at p. 20; Consumers
Glass and C.A.W., Local 29 (1990), 18 C.L.A.S. 171 (Marcotte) at paras 40
and 44; Nelson Laundries, above at p. 123)
[71]
Finally,
the Applicant argues that the adjudicator should have interpreted the NRC’s
Occupational Health and Safety Policy in a more “liberal” fashion. The policy
indicates there must be “sufficient evidence” for a management to be concerned
over the ability of an employee to perform his or her job “without creating a
safety risk”. Basically, the Applicant asserts that the employer met this
requirement if it could show a potential risk of some kind.
[72]
Again,
the Applicant’s argument has no merit and is inconsistent with the arbitral
jurisprudence. The significance of the risk will depend on the seriousness of
the illness and the nature of the employee’s duties. Furthermore, “reasonable
and probable grounds” must exist for assuming the employee is a danger. This
would necessarily exclude speculation or conjecture. Indeed, in the words of
one arbitrator, “An employer may not refuse to allow an employee to return to
work on the mere possibility of medial problems in the future.” The NRC policy
is consistent with this jurisprudence and it was properly interpreted by the
adjudicator. (Air Canada, above; Kolski and Treasury Board
(Agriculture Canada), [1994] C.P.S.S.R.B.
No. 149 (QL) at p. 21; Inco Ltd. and United Steelworkers (1988), 35
L.A.C. (3d) 108 (Burkett) at pp. 112-113; Nelsons Laundries, above at
pp. 126-127)
Failure by
NRC to justify demand that Dr. Grover see physician not of his own choice
[73]
The
Applicant does not agree with the adjudicator’s conclusion that the NRC did not
have sufficient reasons to demand a medical assessment. No grounds exist whatsoever
to suggest that the adjudicator’s decision was patently unreasonable in this
regard.
[74]
The
“mere possibility” that an employee may be ill or otherwise presents a safety
risk does not amount to “reasonable and probable grounds” for so believing.
Significantly, throughout the numerous letters to Dr. Grover, the NRC does not
specify any particular grounds for believing Mr Grover is a safety risk.
During the hearing, NRC witnesses testified that Dr. Grover was witnessed
having health problems in the workplace. Notably, these observations were never
mentioned previously. If the concerns were bona fide, they would have been
raised at the appropriate time.
[75]
Finally,
the Applicant makes no mention of the procedural aspect of this test. The
Applicant apparently accepts that employers must show that they have reasonable
and probable grounds to be concerned about a safety risk caused by the
employee’s health; however, there is also a “procedural fairness” component as
well. According to the case law, the employer must clearly explain its reasons
for doubting an employee’s medical certificate. More significantly, it must be
open to other options to satisfy its concerns short of demanding an assessment
by a doctor not of the employee’s choosing. (Nelsons Laundries, above at
p. 125)
[76]
In
the present case, Dr. Grover offered to attend other doctors, including a
doctor mutually agreed upon by the parties. The NRC failed to acknowledge this written
proposal the first few times it was presented. The NRC did not provide a
rational explanation as to why it refused this option. The grievances clearly
would have been successful for this reason alone. Similarly, this application
for judicial review must be dismissed because, regardless of any other alleged errors,
the decision as a whole is reasonable. (Law Society of New
Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paras. 55-56)
No Reviewable
Error on Findings of Fact
[77]
It
is well established, and the applicant concedes, that the findings of fact by
an administrative tribunal will attract the highest standard of deference. The
patently unreasonable standard is so high that it has been described as
something that is clearly irrational. (Dr. Q., above)
[78]
The
adjudicator made a statement that the NRC failed to address Dr. Grover’s health
concerns with him. Based on the full summary of evidence, it is clear that the
adjudicator recognized that Ms. Lorna Jacobs had raised a health concern with Dr.
Grover; however, the adjudicator’s period of reference was following Dr.
Hackett’s order of June 10, 2004, that Dr. Grover must stay home until he
attends with a physician of the NRC’s choosing. At no time from June 10, 2004
until the hearing before the Board were those concerns raised with Dr. Grover.
There is no patently unreasonable finding here. (Decision of the Adjudicator,
above at paras. 36-37; AAR, above, Vol. 1, Tab 2, p. 11; Applicant’s
Memorandum of Fact and Law, paras. 27-69; AAR, above, Vol. 5)
[79]
The
Applicant also asserts that the adjudicator erred by concluding that Dr. Grover
never had an opportunity to provide further information from his physicians
because it was never clear what the NRC was looking for. This finding of the
adjudicator is closer to one of mixed fact and law. The adjudicator noted that Dr.
Grover was understandably confused by the NRC’s actions. The NRC was saying
he was so ill that he was a safety risk at work, while at the same time
questioning the validity of the sick leave. The adjudicator noted other
inconsistencies, for example, the fact that the NRC was informed about the
reasons for two different physicians with the same prescription, yet continued
to raise the issue without explaining why it was apparently rejecting the
explanation. The adjudicator was entitled to reach this conclusion based on the
evidence. (Decision of the Adjudicator, above at para. 119; AAR, above, Vol. 1,
Tab 2, p. 25; Applicant’s Memorandum of Fact and Law, paras. 72-75; AAR, above,
Vol. 5)
CONCLUSION
As the
Supreme Court has taught, courts on judicial review should not at every element
of a decision subject it to a test of reasonableness. Rather, the decision as a
whole must be considered. If there are sufficient reasons to support the
decision, it should not attract interference by the Courts. In light of the
adjudicator’s reasons in the present case, the decision is upheld. (Ryan,
above at paras. 55-56)
JUDGMENT
THIS COURT
ORDERS that the application
for judicial review be dismissed with costs.
Obiter
Prior to this
case reaching the Federal Court, at the first instance adjudicative level:
Had a case
been made for the insubordination of an individual, the outcome may have been
different, but it was not!
Had a case
for disciplinary measures been made in respect of an individual for not
cooperating within an institutional hierarchy, thus, being a detriment to the
hierarchy and the institution itself, the outcome may have been different, but
it was not!
Had a case
been for the incompetency of an individual within an institutional structure,
again, the outcome may have been different, but it, certainly, was not!
The case is
imply about whether an institution can demand of one of its employees to be
examined by a physician of its choice (barring the privacy of the individual
from his choice) for behaviour which it decides is detrimental to the
institution – because that behaviour may put the institution and its work at
risk (What that risk is, is never spelled out), nor was any case made in that
vein; had it been made, the outcome may have been different, but it was not!
However, the above
underlying themes, in regard to what the case is not about, surfaced on a
continuous basis, and had to be separated from what the case is about.
It is a
fact-driven case in judicial review to which it is a challenge to peg general
legal or jurisprudential principles without recognizing and considering the
narrative, in and of itself, in all of its details which were available to the
first instance, trier of fact, adjudicator; and then to remind the applicant,
due to the nature of the pleadings, that this was not an appeal but a judicial
review in which the standard of review is critical (as in all judicial
reviews); and, consequently, it was for this Court not to lose sight, due to
the various themes which surfaced, of whether the adjudicator was in her right
to decide as she did, on the basis of the evidence before her.
Thus, the
Court came to its conclusion on the basis of the four corners of the
adjudicator’s decision stemming from the evidence, itself, made available to
the Court.
Whether this
Court would have arrived a the same decision was not at issue; it was simply
whether the decision of the adjudicator is logically inherent to the
point-specific evidence, assessed in light of the appropriate standard of
review to the case.
“Michel M.J. Shore”
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