Date: 20080219
Docket: T-1279-07
Citation: 2008 FC 216
Montréal, Quebec, the 19th day
of February 2008
Present: The
Honourable Mr. Justice Martineau
BETWEEN:
MICHEL
AUBERT
Applicant
and
TRANSPORT
CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
By this application
for judicial review, the applicant is contesting the legality of a decision
handed down on June 15, 2007 (the impugned decision) by Linda Brouillette, director
general of Human Resources (the administrative decision-maker) at Transport Canada (the Department), dismissing the applicant’s grievance on
the grounds that it was time-barred and, in any event, without merit.
[2]
In IBM Canada Ltd. v. Hewlett-Packard (Canada) Ltd., [2002] F.C.J. No. 1008 (QL), 2002 FCA 284, the Federal
Court of Appeal stated that the temptation to characterize certain issues as “jurisdictional”
for the purpose of attracting a less deferential standard was to be resisted. In
this case, the administrative decision-maker has the authority to decide if a
complaint is time-barred and is better placed than the Court to make a decision
regarding “the date on which [the applicant] is notified orally or in
writing or on which he or she first becomes aware of the action or
circumstances giving rise to grievance” in accordance with Article 35.09 of the
collective agreement between the Treasury Board and the Canadian Federal Pilots
Association (the collective agreement) which provides for a 25-day period for
the filing of a first-level grievance.
[3]
Having considered the
existence of a privative clause, the relative expertise of the administrative
decision-maker, the objective of the Act in question and the nature of the
problem, I conclude first that the standard of review applicable to a decision
dismissing a public servant’s grievance filed under section 208 of the Public Service Labour
Relations Act, S.C.
2003, c. 22, s. 2 (the Act) for reasons of lateness is that of patent
unreasonableness (Trépanier v. Canada (Attorney General), [2004] F.C.J. No. 1601 (QL), 2004 FC 1326; Desloges v.
Canada (Attorney General), [2007] F.C.J. No. 85 (QL), 2007 FC 60). On the
other hand, it is the standard of correctness that applies to the
interpretation or the particular scope that the administrative decision-maker may
give to the Values
and Ethics Code for the Public Service (the Code) (Canada (Attorney General) v. Assh, [2006]
F.C.J. No. 1656 (QL), 2006 FCA 358). Lastly, the question of whether there is
in fact a conflict of interest (real or apparent) seems to call for a greater
degree of deference, so that this last aspect must be reviewed according to the
reasonableness simpliciter
standard.
[4]
The reasons and the
circumstances surrounding the applicant’s grievance are clearly set out in the
affidavits submitted by the respondent. The predominant evidence in the record
indicates that the applicant filed his grievance more than two years after
having been informed of the Department’s position with respect to his request
to hold more than one job simultaneously. The administrative decision-maker’s
decision of lateness is supported by the evidence in the record. It does not
seem to me to be patently unreasonable in the circumstances.
[5]
Indeed, as early as 2004,
the Department notified the applicant in writing that he was not authorized to work
as a pilot for foreign companies outside his regular working hours since such
activity could lead to a perception of conflict of interest, which is what the
applicant is contesting today. Subsequently, in her letter of February 20,
2006, Nicole Pageot, director general of the Quebec region, further specified
as follows: [translation] “The only occasions where a civil aviation
inspector is allowed to fly an aircraft during days off or outside working
hours are where the inspector is flying a private plane for recreational
purposes, or renting a plane for personal reasons, or when the flights occur
within an approved alternative training program, which cannot be the case
here.” Now the applicant wishes to submit that this decision is unreasonable in
that the exceptions mentioned are too restrictive.
[6]
In a letter dated
August 22, 2006 sent by the applicant’s counsel, Marc Grégoire, Nicole Pageot,
Merlin Preuss and Yves Gosselin of the Department are collectively invited to [translation] “please review your
decision as soon as possible”. Since there were no new facts and no new
confidential report was produced under the Code, the present administrative
decision-maker, Ms. Brouillette, did not act in an arbitrary or capricious
way by treating the applicant’s counsel’s request as a late application for
review. Indeed, the starting date of the limitation period is not postponed simply
because the administrative decision-maker agrees to reply anew to a request concerning
which she has already taken a final position, which is the case here. The Department’s
position has not changed and has always been the same. It was up to the
applicant to file a formal grievance within the 25-day period provided for in
the collective agreement if he wished to contest the validity of that position.
[7]
Counsel for the
applicant pleads today before this Court that the applicant’s grievance is not time-barred
since it constitutes in fact an [translation] “ongoing grievance.” But
the contrary position argued here by counsel for the respondent does not seem
to me to be unreasonable since it can be supported by case law and by doctrine.
Indeed, it is not a case where [Translation]
“the benefits of the collective agreement are being claimed in a context where
the work underlying this claim is to be carried out successively and where the
breach of the collective agreement is recurrent or repetitive.” (Rodrigue Blouin and Fernand
Morin, Droit de l’arbitrage de grief, 5th edition (Les Éditions Yvon
Blais inc., 2000), at paragraph V.55, at pp. 311-12). Learned counsel for the applicant draws a
parallel with an employer’s refusal to allow an employee to work overtime or to
recognize an employee’s work experience gained with other employers. However,
these last examples seem to me to be factual situations very different from the
case being examined. The main object of the applicant’s grievance is the
legality of a firm decision at a fixed point in time not to allow him to work
during weekends for foreign companies, subsequent to the filing of a confidential
report by the applicant in 2004.
[8]
Considering my
conclusion with regard to the question of limitiation, it is not necessary to
review the legality of the administrative decision-maker’s alternative
conclusion that in any event, the applicant’s grievance is without merit.
Nonetheless, since the parties dwelled at length during the hearing on the
question of conflict of interest, I would specify here that the applicant did
not convince me that a well-informed person, having studied in depth the
question of conflict of interest, in a realistic and practical manner, would
arrive at a different conclusion from that of the administrative
decision-maker. (Threader v. Canada (Treasury Board), [1987] 1 F.C. 41).
Having considered the evidence in the record, including the applicant’s job
description, as well as the ethical values in the Code, I agree with the
administrative decision-maker’s general conclusion. It seems to me to be
reasonable in the circumstances.
[9]
I do not believe that
the legality of the impugned decision rests on an incorrect interpretation of
the provisions of the Code. In any case, the Code has relative legal weight and
does not confer any rights on the applicant. In this case, the provisions in
the Code with respect to conflicts of interest are not part of the collective
agreement. Nor do I believe that it is necessary to distinguish between a real
and an apparent conflict of interest. In my view, both types of conflict are
clearly contemplated by the Code. The refusal to allow the applicant to hold
two jobs is within the Department’s authority. This is a case where the public
interest must prevail over the applicant’s personal interest and where the
applicant’s conduct must stand up to the most thorough public scrutiny.
[10]
In conclusion, the
applicant must arrange his personal affairs so as to avoid any type of conflict
of interest, real, apparent or potential. It is therefore reasonable to find,
as indeed did the administrative decision-maker, that [Translation] “the fact [of] authorizing
[the applicant] to fly aircraft for foreign companies during [his] free time
could lead to a perception of conflict of interest” and that “[m]ore specifically,
this situation of double employment could, among other things, raise questions
of loyalty to Transport Canada, of dual commitment and of public interest.”
[11]
For these reasons,
the application for judicial review must be dismissed. Considering the result,
the respondent shall be entitled to its costs.
ORDER
THE
COURT ORDERS that the
application for judicial review be dismissed with costs to the respondent.
“Luc Martineau”
Certified
true translation
Brian
McCordick, Translator
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