Date: 20080716
Docket: T-1607-07
Citation: 2008 FC 873
Ottawa, Ontario, July 16, 2008
PRESENT:
The Honourable Mr. Justice Louis S. Tannenbaum
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
FRANÇOIS
DEMERS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
undersigned has before him an application for judicial review of the decision
of a grievance adjudicator dated August 16, 2007. In this decision, the
adjudicator allowed the respondent’s grievance and ordered that the fine
imposed on the respondent be repaid to him. The adjudicator also ordered the
employer to compensate the respondent for the salary and benefits lost as a
result of his sick leave.
[2]
The
employer is the Correctional Service of Canada (hereinafter CSC) and the respondent
is a correctional officer for the CSC.
[3]
The applicant,
the Attorney General of Canada, is alleging that the adjudicator erred in fact
and in law or exceeded his jurisdiction by reversing the fine and by ordering
that the employer compensate the respondent for the benefits and salary lost as
a result of his sick leave.
Statement of the facts
[4]
The respondent
has been working as a correctional officer for the CSC since 1977. At the time
of the incident he was working at the Cowansville Institution.
[5]
In
June 2005, the CSC adopted a new dress code and the officers’ uniform was
changed. These changes were designed in collaboration with the Union of
Canadian Correctional Officers (hereinafter UCCO).
[6]
The former
uniform required that the agents wear a tie, while the new uniform prohibited
wearing a tie. The evidence established that the tie for the work uniform was
eliminated at the suggestion of the officers themselves.
[7]
The respondent
refused to take off the tie notwithstanding the new dress code and the new guidelines,
as he had always worn a tie while performing his duties.
[8]
On October
28, 2005, the respondent’s supervisor, Pierre Sansoucy, wrote a memorandum (exhibit 14)
to Mr. Demers which read:
[translation]
WEARING THE UNIFORM
Sir,
Karine Dutil A/U.M. of sector
2 mandated me to meet with you regarding the wearing of the new uniform. We
have been informed that you do not wear the new uniform. As you are aware, a
dress code has been in effect since the arrival of the new uniform. The failure
to observe this dress code will result in disciplinary action which could go so
far as suspension. I spoke with the national and local union representative on
this subject. They support the Service in implementing the wearing of the uniform.
Therefore, if you have not complied with this dress code, I would ask you to
immediately do so. I will meet with you when I return from vacation to see
whether you have complied with this requirement.
I am counting on your usual
cooperation.
Pierre Sansoucy C/S sector 2
c.c.: employee file; K. Dutil U.M.
P.S. I will place a code
accompanied by this memorandum in your locker.
[9]
The
undersigned is satisfied that Mr. Sansoucy gave the respondent a copy of
the dress code with the memorandum (exhibit 14).
[10]
It would
be worthwhile to refer to certain sections of the dress code:
8. Employees must wear
CSC uniforms, and CSC-issued occupational clothing items, in strict compliance
with this document. No visible additional items or substitution of “look‑alike”
items are permitted, unless authorized in this document.
9. … Uniformed employees . .
. will not:
f. mix uniform and
non-uniform clothing items, for casual or other wear (e.g. baseball cap);
g. alter the original look of the
uniform (work or dress) in any way.
[Emphasis
added.]
[11]
In the
arbitral award, at paragraph 41, the adjudicator said:
I note that the dress code does not
prohibit wearing a tie.
I find it difficult to understand this finding
by the adjudicator. Sections 8 and 9 of the dress code are clear to the effect
that “[e]mployees must wear CSC uniforms . . . and that “[n]o
visible additional items . . . are permitted.”
When something is not permitted, it is therefore
prohibited. The dictionary Le Petit Robert indicates that the antonym of
[translation]
“permission” is [translation] “prohibition.”
[12]
On
November 29, 2005, the respondent received another memorandum (exhibit 17).
This memorandum reads as follows:
[translation]
WEARING A TIE
Sir,
I met with you on November 29, 2005,
to advise you that wearing a tie with the work uniform did not satisfy the
Service’s dress code. I advised you that you would be subject to disciplinary
action if you refused to comply. I advised you that you would have to wear the
uniform in accordance with the dress code and be well-attired out of respect
for the image of the Service that you represent. You told me that wearing a tie
was essential because it is your perception that this imposes respect when
dealing with clientele. You also told me that you were ready for the disciplinary
action that would be taken against you in order to avail yourself of your
rights. You explained to me that you did not understand the Service’s rationale
on this point. I explained to you what I knew and why the tie was no longer
being worn with the work uniform. I told you that I understood your opinions
but that I did not approve of your approach. In closing, I told you again that
the next time I saw you wearing a tie or dressed in a manner that did not
comply, there would be disciplinary action. I asked you a final time to comply.
I thereby advised you that you had been reported
by a supervisor for your harsh words about him. I told you that I would see you
again regarding that matter and that you were exposing yourself to disciplinary
action.
For your information.
Pierre Sansoucy C/S
c.c.: record; UM
[13]
It is also
in evidence (exhibit 18, en liasse) that on November 27, 2005 and
December 4, 2005, the respondent was advised that he was not allowed
to wear a tie while he was working.
[14]
Exhibit 20
refers to meeting between the employer’s representatives and the respondent,
held on December 5, 2005. This reads as follows:
[translation]
MEETING OF DECEMBER 5, 2005
On Monday morning at 7:00 a.m., we met
with François Demers in the conference room of administration 3. He was
accompanied by Mario Martel and Francine Boudreault from the Union. Management was represented by Karine
Dutil A/U.M. and Pierre Sansoucy S.C.O. The first subject was the tie worn by Mr. Demers.
I repeated before all of those in attendance how we would proceed against Mr. Demers
if he continued to insist on wearing his tie. He told us that he would exhaust
all of his options. He told us that he wanted to have his written warning
before leaving the institution. This was done. The second matter was the report
that was made by the supervisor, Murielle Leblanc. He explained the situation
from his perspective. Ms. Dutil explained to him that the report no longer
stood, that management had misinterpreted Ms. Leblanc’s report.
Mr. Demers explained that he had reported Ms. Leblanc and that he
wanted additional explanations and that he was dissatisfied. In the end, he
told us that he was declaring war.
Pierre Sansoucy C/S
c.c.: François Demers; Dossier; U.M. pav.
9 ”
[15]
Exhibits 22
and 23 were filed in evidence and respectively read as follows:
[translation]
MEETING OF DECEMBER 8, 2005
Sir,
On December 8, 2005, at about 7:00 p.m., I
met you with Mario Martel of the Union and Alessendria Page U.M at
administration 3 of the Cowansville Institution. I ordered you to remove your
tie and not to wear it during your shift. You refused and disciplinary action followed
(fine).
Pierre Sansoucy C/S
c.c.: record; U.M
Summary of the facts
Mr. Demers began to wear his new
uniform only in the beginning of November 2005 even though he had received
the … in about June 2005. When he put on his new uniform, he added and
wore a tie. He was warned four times to remove it and he was given a written
warning on 05/12/05 for his refusal to remove it. Despite all of these efforts,
he continued to wear it.
Employee’s declaration
The employee maintains that a tie is part
of the uniform. He will continue to wear it and is prepared to do whatever is
necessary to that end. To him, a tie imposes discipline on the clientele.
Disciplinary action
Faced with Mr. Demers’s refusal, I
had no choice but to impose a $75 fine for wearing his tie.
Correctional Supervisor Pierre Sansoucy
05/12/08
[16]
When Mr. Demers
was warned about wearing a tie and he refused to take it off, he stated that
for him it was essential because the tie called for respect from the clientele.
He explained his reasons to the psychiatrist who assessed him on February 13, 2006,
in the following words:
[translation]
. . . that a tie is a tool which is as
useful as handcuffs or any other tool. A tie lends reverence but also helps him
establish a boundary between him and the inmates.
[17]
After imposing
the $75 fine on December 8, 2005, the respondent left the institution in tears
(see exhibit 5) and went to the hospital. He was diagnosed with “adjustment
crisis”(exhibit 25) and on January 17, 2006, his physician ordered that he
stop working for three months.
[18]
When Mr. Demers
received warnings before December 8, 2005, and even when he received the
written warning on December 5, 2005, he had not given any signs that would have
indicated the above-described reaction and diagnosis.
[19]
On
December 13, 2005, Mr. Demers filed an application for benefits with the Commission
de la santé et de la sécurité du travail (hereinafter CSST) for an
industrial accident. This application was refused and, at the time of the
hearing before the adjudicator, was before the Commission des lésions professionnelles
du Québec.
[20]
Other
events followed:
(A) On December 25, 2005, Mr. Demers filed
the following grievance:
[translation]
Description of the grievance:
Abuse of authority by the employer
leading to discrimination and harassment, all because of a tie.
I am being prohibited from earning a
living, since I no longer have access to the institution.
Corrective actionS requested:
1. Make wearing a tie optional in the
dress code.
2. Reimburse me for all lost sums of
money.
3. Be present at all levels at the
employer’s expense.
(B) On December 26, 2005, Mr. Demers reported
to the Cowansville Institution saying that he wanted to return to work, claiming
that he was no longer on industrial accident leave, but rather that he had been
off work since December 8, 2005. As he did not have a medical certificate
attesting that he was able to return to work, he was refused access to the institution.
[21]
At the
request of the CSC, on February 13, 2006, Mr. Demers was examined by Dr. Lafontaine,
psychiatrist. His report was filed in the record before the adjudicator as exhibit 1.
I believe it worthwhile to refer to certain passages from this assessment,
including the findings:
[translation]
ASSESSMENT MANDATE:
The purpose of the assessment
is to respond to the following questions:
1.
What is
your diagnosis?
2.
What is
the foreseeable date of consolidation of the injuries?
3.
Is
treatment warranted?
4.
Are there
functional limitations?
5.
Do you
foresee a permanent impairment?
6.
What would
be a foreseeable date for return to normal work, i.e. without working selected
positions?
. . .
PERSONAL PSYCHIATRIC HISTORY:
Negative.
FAMILY PSYCHIATRIC HISTORY:
Negative..
. . .
CURRENT FOLLOW-UP:
There was only one meeting on December 8,
when he was at the emergency clinic. He was seen only once by a psychiatrist,
who diagnosed with a conflict with the employer. He saw his family physician, Dr. Laguë,
who on January 17, 2006, had him stop work for three months for situational
adaptation disorder.
. . .
SUMMARY OF RELEVANT FACTS:
Mr. Demers tells us that his condition
was caused by his employer’s intransigence. He adds that it is also the
employer’s arrogance and the pressure that it put on Mr. Demers that were such
that when he stopped working, he left his work in tears.
. . .
Mr. Demers recognizes that he has a hot
temper, but he will not give up, he tells us. He feels that the employer is
aggressive. He is under the impression that they are trying to crush him. Mr. Demers
acknowledges that he is not easy-going. He tells us that he learned from his
mother that when we have convictions, we must stick with them, and that is what
he is doing now. He tells us that if he cannot work wearing his tie, he will
have to be dismissed.
. . .
MENTAL ASSESSMENT:
. . .
Occasional irritable humour and affect, at
times, but generally Mr. Demers is not depressed. He is somewhat anxious
however. We note that there is a slight tremor in his hands. His thinking is
normal, in terms of form and substance. The ideic substance is not melancholy,
hypochondriatic, suicidal or psychotic. The associative processes and perceptual
modalities are normal:
. . .
ANSWER TO MANDATE:
1.
DIAGNOSIS
Axis I Adaptation disorder
with anxiodepressive humour.
Axis II No diagnosis.
Axis III No diagnosis.
Axis IV Stress factors: labour
relation problems.
Axis V The global
functioning scale is 70-75.
2.
WHAT IS
THE FORESEEABLE DATE OF CONSOLIDATION OF THE INJURIES?
At this time, I find that the condition is
consolidated as of the date of the assessment: February 13, 2006.
3.
IS
TREATMENT WARRANTED?
No specific treatment is warranted.
4.
ARE THERE
FUNCTIONAL IMPAIRMENTS?
There is no medical psychiatric
functional impairment.
5.
DO YOU
FORESEE A PERMANENT IMPAIRMENT?
There is no permanent impairment either.
6.
WHAT WOULD
BE A FORESEEABLE DATE FOR RETURN TO NORMAL WORK, I.E. WITHOUT WORKING SELECTED
POSITIONS?
As for returning to work, this seems to
me to depend rather on the administrative situation that exists with respect to
Mr. Demers. In terms of medical psychiatric impairments, Mr. Demers
does not have any and he is not unfit to do his work.
[22]
Following Dr.
Lafontaine’s assessment, the CSC asked Mr. Demers in a letter dated
March 6, 2006, (exhibit 30) to return to work on March 15, 2006.
I refer to the following passages from this letter:
[translation]
At our request, you submitted to the
medical assessment on February 13, 2006, at the office of Dr. Sylvain
Louis Lafontaine. Dr. Lafontaine’s medical expert report confirms that you
do not have any functional limitation or any permanent medical impairment and
that you have been able to return to work as a corrections officer I since
February 13, 2006.
Further, Adam Poch, Labour Relations Advisor
at Regional Administration, confirmed to us on March 1, 2006, that CSST had refused
your industrial accident claim.
Considering that we have not received any
medical report from your attending physician since the day of your absence and
considering the results of the medical assessment of February 13 to the effect
that you are fit to return to work, we ask you to report for work on March 15,
2006, on the day shift and to confirm your presence to Pierre Sansoucy, corrections
supervisor, on receipt of this notice.
. . .
[23]
Following
this letter, there was a telephone conversation on March 7, 2006,
between Mr. Demers and his supervisor, Mr. Sansoucy. This conversation
was summarized in a memorandum (exhibit 30) which reads as follows:
[translation]
SUMMARY OF RETURN CALL OF 2006-03-07
Sir,
On March 7, 2006, at about 1:30 p.m. I
returned your call. You told me that you had received a letter from the Service
by Purolator asking you to return to work on March 15, 2006. You told me that
you were on vacation as of that date. I explained to you that you did not have
enough leave credits to take the vacation that you had requested given that you
had been on unpaid leave since December 23, 2005. I explained to you
that you had enough credits for three 12-hour days but that then you would have
to return to work or give me a medical note to justify your absence. You told
me that I should do as I pleased and that in any event, I would do as I wanted.
I asked you when you would be returning to work, you told me 2012. Then I told
you that your industrial accident had been refused and that we would have to
talk when you returned to determine how you would repay the Service. Then you
asked me if you should wear a tie or not! I told you not to wear a tie and that
if you did there would be disciplinary action. I asked you again when you were
returning to work and you told me that I would know in due course.
Pierre Sansoucy, S.O.C .
c.c.: employee record; C. Guérin S.D; K.
Dutil, U.M.
[24]
Mr. Demers
did not return to work.
[25]
On August
1, 2006, at the request of the CSC, Dr. Lafontaine carried out a second
assessment (exhibit 2). I observe that, while the findings of this report
are quoted in the adjudicator’s decision, the adjudicator did not however refer
in her decision to the findings of the same physician in his report dated
February 13, 2006. There is no doubt that between the date of the assessment on
February 13, 2006, declaring him medically fit to return to work, and
the assessment dated August 1, 2006, Mr. Demers’ health had declined to
the point that he could no longer work . However, if we believe the substance
of the telephone conversation of March 7, 2006, if he had been given
permission to wear his tie, he would have returned to work at that time.
[26]
In his
battle against the dress code, Mr. Demers’ representative wrote to the
employer on January 17, 2006. This missive reads in part as follows:
[translation]
With respect to wearing a tie as such,
our client explained many times to his superiors that this element helped
distance him from the clientele and ensured discipline and respect. His 28 years
of service attest to this.
. . .
Please advise us whether the CSC will
maintain this position toward Mr. Demers and whether it will still
prohibit him from wearing his tie.
Mr. Demers will for his part continue his
efforts to put an end to this prohibition and to effectively and professionally
fulfill his duties.
It goes without saying that our client
will hold the CSC liable for all the damages that he may incur in regard to
this prohibition, including the salary loss and related damages, where
applicable.
[27]
The
employer replied to this letter on January 25, 2006, stating as follows:
[translation]
Sir,
The uniform was selected by a national
committee composed of members of the national union executive and senior
officials of the Correctional Service of Canada. The dress code came from this
committee. In the scale of issue of uniforms, there is no tie for the work
uniform. Accordingly, Mr. Demers must comply with this dress code.
In regard to his loss of salary, your
client, Mr. Demers, has been on industrial accident leave since December 8,
2005. To resume working, he must provide the employer with a certificate from
his physician confirming to us that he is able to return to work.
Sincerely,
Claude Guérin
Deputy Director
The $75 fine
[28]
The
adjudicator decided that the employer was not justified to impose a fine and
ordered the CSC to repay this amount to Mr. Demers (see the findings of
the arbitral award).
[29]
The
uniform was designed in collaboration with the union (exhibits 14 and 29,
testimony of Mr. Sancoucy). All of the officers except Mr. Demers agreed
to comply with the dress code and stopped wearing the tie with their work
uniform. Although the adjudicator had determined that the code did not prohibit
wearing a tie, in my opinion it was prohibited.
[30]
The employer
asked Mr. Demers on at least four occasions to remove his tie and finally
there was a written warning but Mr. Demers continued to defy the employer who,
in my opinion, had no choice but to fine him $75, an amount that is albeit
quite modest.
[31]
The
standard of review which applies to the decision to set aside the fine is that
of reasonableness. I am of the opinion that the disciplinary action was
justified and that the adjudicator’s decision to set it aside was unreasonable.
The order to compensate Mr. Demers
[32]
At this
time, we should refer to the following paragraphs of the arbitral award:
121. There is consistent jurisprudence to
the effect that, where an employee is absent because of an industrial accident
or for an extended period of time, the employer may require a medical
certificate of fitness for work before authorizing the employee to return to
work. In this regard, the respondent cited Stinson, Lorrain, and Ricafort,
as well as paragraph 7:6142 of Canadian Labour Arbitration.
122. Nevertheless, it is my view that the
principles stated in the decisions on which the respondent relies do not apply
in the specific circumstances of this case for the following reasons. I have
concluded that the fine imposed on Mr. Demers was an unjustified disciplinary
penalty. According to the respondent’s evidence, psychological distress over
being prohibited from wearing a tie became apparent before the meeting on
December 8, 2005, as shown by the e‑mail of December 2, 2005, from Mr.
Desrosiers to Mr. Sansoucy. That distress emerged in acute form during the
meeting on December 8, 2005, and this was recorded in an observation
report. The respondent, therefore, cannot deny that the CSC was aware of Mr.
Demers’ personal situation or that it could have taken preventive action. The
CSC did not concern itself with Mr. Demers’ well-being until February 2006,
when it asked him to undergo a psychiatric assessment so he could return to
work. As has already been explained, the psychiatrist confirmed the attending
physician’s opinion as to the reason Mr. Demers had been absent since
December 8, 2005.
123. I emphasize the psychiatrist’s
conclusion that Mr. Demers’ stress increased because the CSC stood by its decision
to prohibit the wearing of a tie. As a result, he is now unfit to return to
work for an indefinite period. The second psychiatric assessment confirmed that
Mr. Demers’ condition had worsened. Both psychiatric assessments concluded that
Mr. Demers’ condition would last as long as the CSC insisted that he not wear a
tie.
124. These facts lead me to conclude that
Mr. Demers went on sick leave against his will as a direct result of the stress
caused by the CSC’s continued intransigence about the prohibition on wearing a
tie. Having found that the CSC did not try to find a reasonable solution for
Mr. Demers before imposing a penalty on him, contrary to what the dress code
allows, I am of the opinion that Mr. Demers should not lose any income as a
result of taking involuntary sick leave. Accordingly, I order the respondent to
compensate Mr. Demers for the lost benefits and income resulting from such sick
leave.
[33]
According
to the adjudicator, the employer was intransigent because he asked Mr. Demers
to comply with the dress code. As I already stated, in my opinion the employer had
no choice. The dress code had been established and all of the officers had
complied with it except Mr. Demers. We cannot describe requests made
regarding compliance with the rules as “intransigent.” In the case of Mr. Demers,
we observe that it was indeed him who was being stubborn. He was the one who
declared war and who explained to Dr. Lafontaine that if he could not work
wearing his tie his employer would have to dismiss him.
[34]
In her
decision, the adjudicator referred to Mr. Demers’ psychological distress. Bear
in mind that the adjudicator’s field of expertise is in labour relations and,
unless she refers to the opinion of either a physician or a psychologist in
determining that a certain event caused psychological distress to Mr. Demers,
she is clearly exceeding her powers.
[35]
At
paragraph 122 of her decision, the adjudicator determined that the
psychological distress manifested itself before the meeting of December 8, 2005,
as indicated by the e‑mail dated December 2, 2005, from Mr.
Desrosiers to Mr. Sansoucy. The adjudicator refers to exhibit 19. I
cannot find that this document establishes that Mr. Demers was in a state
of psychological distress. Indeed, this e-mail was followed 20 minutes later by
a second e-mail attesting that even though Mr. Demers had left the institution
at 7:00 p.m., he had returned around 7:20 p.m. to work his shift.
[36]
The
evidence established that on December 8, 2005, after receiving the fine, Mr. Demers
was emotional and in tears. However, the adjudicator did not have the required
expertise to determine that there was an acute manifestation of this distress
during the meeting of December 8, 2005. In fact, the meeting in
question was not the one where Mr. Demers received the fine.
[37]
Dr.
Lafontaine’s assessment dated February 13, 2006, established that Mr. Demers
does not suffer from any mental illness and that there is no permanent impairment.
Further, it was determined that no further treatment was required.
[38]
Dr.
Lafontaine’s second report, about six months later, has a diagnosis of “severe
major depression.”
[39]
Bear in
mind that Mr. Demers refused to return to work in March 2006 when Dr. Lafontaine
stated that he was fit to do so. The last time that he had been asked to remove
his tie was on December 8, 2005. Two months later, i.e. in
February 2006, he was declared medically fit to resume work but he
refused to return.
[40]
I am of
the opinion that Mr. Demers is responsible for his current predicament. I
am also persuaded that in December 2005 the employer could not have known that Mr. Demers
was in the circumstances described in the medical report dated August 1, 2006 (exhibit 2).
In my opinion, the employer did not err in any way and the adjudicator’s
decision ordering the employer to compensate Mr. Demers is unreasonable.
[41]
Before the
adjudicator, the applicant also raised the argument that she did not have the
power to decide the grievance at issue based on the provisions of
paragraph 209(1)(a) of the Public Service Labour Relations Act (paragraph 49 of the decision).
Considering my findings in regard to both of the adjudicator’s orders, I need
not address this argument.
JUDGMENT
FOR THE ABOVE REASONS, THE COURT ORDERS
AND ADJUDGES that
(1)
The
applicant’s application is allowed;
(2)
The
adjudicator’s decision is set aside;
(3)
The
grievance is referred back to the Public Service Staff Relations Board with the
direction that the grievance be dismissed in accordance with the reasons of
this decision;
(4)
Without
costs.
“Louis S. Tannenbaum”
Certified
true translation
Kelley
Harvey, BCL, LLB
List of doctrine and
authorities
1.
Public Service
Labour Relations Act,
c. P-33.3
2.
Brown and
Beatty, Canadian Labour Arbitration (4th edition) online,
paragraph 7:3610
3.
Bédirian
v. Canada (Attorney General), [2007] F.C.J. No. 812
4.
Byfield
and Canada Revenue Agency,
2006 PSSRB 119
5.
Dayco (Canada) Ltd v. National Automobile,
Aerospace and Agricultural Implement Workers Union of Canada, [1993] 2 S.C.R. 230
6.
Dr. Q. v.
College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226
7.
Lorrain
and Treasury Board (Solicitor General of Canada), 1985 PSSRB No. 5
8.
Noel and
Treasury Board,
2002 PSSRB 26
9.
Re
Hunter Rose Co. Ltd. And Graphic Arts International union, Local 28-B, 27 L.A.C. (2d) 338, 1980
10.
Ricafort
and Treasury Board (Department of National Defence), 1988 PSSRB No. 321
11.
Ryan v.
Canada (Attorney General), [2005] F.C.J. No. 110
12.
Stinson
and Treasury Board (Department of National Defence), 1989 PSSRB No. 74
13.
Vorvis v.
Insurance Corp. of British
Columbia,
[1989] 1 S.C.R. 1085
14.
Wallace
v. United Grain Growers Ltd., [1997] 3 S.C.R. 701
15.
Gauthier
v. National Bank of Canada, 2008 FC 79
16.
Chopra v.
Canada (Treasury Board), 2005 FC 958
17.
Alberta
Union of Provincial Employees v. Lethbridge Community College, [2004] 1 S.C.R. 727
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