Date: 20130429
Docket:
T-1296-11
Citation:
2013 FC 438
Ottawa, Ontario,
April 29, 2013
PRESENT: The
Honourable Madam Justice Gagné
BETWEEN:
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MAHMOOD KHALID
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Applicant
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and
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NATIONAL RESEARCH COUNCIL
OF CANADA
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Dr. Mahmood Khalid [applicant] seeks judicial review, pursuant to section
18.1 of the Federal Courts Act, RSC 1985, c F-7, of
the final level grievance decision of Mr. John Coleman [decision-maker],
Vice-President of the National Research Council of Canada [NRC or employer],
made on April 29, 2011. In that decision, the decision-maker dismissed the
applicant’s grievance which challenged the employer’s decision to not rescind his
pre-retirement transition leave agreement [PRTL], as he had requested.
[2]
To respond to the applicant’s request, the employer had to
exercise its discretion to determine whether exceptional or unforeseen
circumstances justified granting the applicant’s request to rescind his PRTL.
In refusing to do so, the employer took into account, amongst other considerations,
the financial and operational conditions prevailing at the NRC at the time, and
the fact that the applicant’s request was based on changes in his personal
circumstances which were unrelated to the NRC.
[3]
For the reasons that follow, this application for judicial review
will be dismissed.
Facts
[4]
On
July 16, 2009, while employed by the NRC Institute of Aerospace Research, the
applicant applied for a two-year PRTL from April 29,
2010 to April 29, 2012. The purpose of this application was to enable the
applicant to work in Europe and to be closer to his ailing mother who then
lived in the United Kingdom. The applicant’s declared intentions were to take a
position as a seasonal lecturer at the von Karman Institute for Fluid Dynamics [VKI]
in the UK.
[5]
A
PRTL is a special working arrangement whereby an eligible employee who is
within two years of being eligible for full retirement can have his or her work
week reduced. By the end of the leave period the employee is required to
resign. While on a PRTL, the employee’s pay is adjusted in accordance with the
reduced working hours, but pension and benefits coverage and premiums remain
unaffected.
[6]
The
Treasury Board’s Directive on Leave and Special Working Arrangements, which
applies to the NRC’s PRTL Program, requires employees on a PRTL to maintain a
minimum of 60% of their workload during the leave period.
[7]
Unknown
to the employer at the time the applicant’s PRTL was filed and approved, the
applicant had accepted the position of Head of Department Aeronautics/Aerospace
Department at the VKI in Belgium and was expected to start on September 1,
2009. The applicant had signed a binding contract with the VKI on April 29,
2009, some three months before applying for a PRTL.
[8]
In
order for the applicant to be available to work at the VKI on September 1, 2009
and to be within two years of retirement at the beginning of his PRTL period,
he needed to take an eight-month vacation leave starting on September 1, 2009,
immediately prior to the beginning of his PRTL in May 2010.
[9]
The
applicant first inquired with the Pay and Benefits department of the NRC on
July 13, 2009 and asked Ms. Plescia, an NRC Pay and Benefits Advisor, to send
him some information on the PRTL program. On July 14, 2009, Ms. Plescia replied
to the applicant by email and forwarded him three links to the NRC’s web site. These
links provided all relevant information regarding the program, including the
requirement to work 60% of the workable hours during the two-year period. The
same day, the applicant sent Ms. Plescia a new email, advising her that he was
unable to open the last web site link, the one containing the form to be filled
and submitted. He did not mention any difficulties opening the links providing
the relevant information on the program.
[10]
The
applicant completed the application form on July 16, 2009, and under the
heading “Leave period” the applicant indicated “40% of mandatory hours to be worked out
with supervisor”. He did not complete the section “Please indicate days to be
taken off” and forwarded the form to the NRC. During the week
that followed, Dr. Zan, the applicant’s supervisor, had questioned him on two
occasions to ascertain whether he fully understood the terms and conditions of
the PRTL program, given the significant consequence that the applicant’s
resignation would be required at the end of the two-year period.
[11]
An exchange of emails followed between the applicant and Ms.
Plescia whereby the applicant wanted to know his take home pay if he was to
work 40% of his workable time (and not take off 40% of the workable time) and Ms.
Plescia wanted to know what days during the week the applicant intended to take
off. It seems quite obvious when reading this series of emails that there was a
misunderstanding between the two concerning the applicant’s intention.
[12]
Meanwhile,
the applicant had sent an email to Dr. Zan on July 23, 2009 asking him to
proceed with his PRTL. Dr. Zan did so that same day by signing the application
form and forwarding it to the Pay and Benefits department.
[13]
On August 4, 2009, Ms. Plescia sent an email
to the applicant advising him that she had received his application form, that
it was incomplete and that she was sending it back to him with the incomplete
sections highlighted. The applicant then filled the section “Please indicate
days to be taken off” by indicating “Tuesday and Thursday”.
[14]
The
applicant moved to Europe in September of 2009 and commenced his new employment
as the Head of Department Aeronautics/Aerospace Department at the VKI. As noted
earlier, the applicant admittedly did not fully disclose his employment at the
VKI to the NRC.
[15]
On
October 1, 2009, after having read the communiqué concerning the applicant’s
appointment at the VKI, Dr. Zan sent the applicant an email reiterating what
was said to the applicant in July 2009, that is that based on the employer’s
conflict of interest guidelines, he was required to disclose his VKI
arrangement to the NRC Conflict of Interest Office.
[16]
Some
four months later, in an email dated February 8, 2010, the applicant informed
Dr. Zan that he would resign from his position with the VKI, as he “never got
over missing [his] friends and Canada.” He asked Dr. Zan if there was a way to
retract his PRTL arrangement. Dr. Zan provided a brief response to this email
stating that he would try to find out what could be done.
[17]
On
February 9, 2010, the applicant sent an email to Denise Le Voguer, an NRC Human
Resources Generalist, advising her of changes in his family situation (his
mother’s death in October 2009, his divorce from his wife and his children’s
request that he return to Canada) and his desire to revert to his full-time
position.
[18]
On
February 18, 2010, the applicant was advised by an NRC Conflict of Interest
Officer that “While there would be no difficulties for him to continue to teach
at VKI, while continuing his NRC regular duties during his upcoming
pre-retirement period, we had major concerns that serving as Head of Department
Aeronautics/Aerospace Department at VKI, which included leading research
activities, would not be in line with the NRC’s approach to managing conflict
of interest.” The applicant responded that the NRC’s refusal to accept his
departmental head position was consistent with his plans to resign and return
to Canada.
[19]
On
February 11, 2010, the applicant informed Dr. Zan and Ms. Le Voguer that as a
result of Ms. Desjardins’ determination, he was left with no alternative but to
resign his position at the VKI and report back to the NRC.
[20]
On
February 17, 2010, Dr. Zan wrote to the applicant stating that the
pre-retirement arrangement seemed to be binding and irrevocable.
[21]
On
February 18, 2010, the applicant emailed Jerzy Komorowski, NRC Director
General, indicating that as a result of changes in his family circumstances he
wished to return to Canada and would like to have his pre-retirement plan
cancelled. He also stated that he had just learned from his correspondence with
Ms. Desjardins that the Treasury Board requirement for work during the pre-retirement
phase was a minimum of a 60% workload, rather than the 40% that he believed he
had agreed to according to his request for leave.
[22]
On
February 19, 2010, the applicant sent a further email to Ms. Le Voguer,
reiterating the fact that he had relied on the employer’s approval of his
application as an acknowledgment that he would be permitted to work at a 40%
workload during the leave period. He noted that he would not have proceeded
with the PRTL had he been told that he was required to commit to working a 60%,
rather than a 40%, workload.
[23]
By
letter dated March 23, 2010, Mr. Komorowski informed the applicant that the NRC
would not be entertaining the applicant’s request to cancel the PRTL agreement
and that he was committed to three days of work per week under the agreed
arrangement, which represented a 60% workload.
[24]
Upon
his return to Canada, on June 15, 2010, the applicant grieved the employer’s
decision to not cancel his PRTL agreement. During the grievance process, the
applicant reiterated that he only found out about the 60% workload requirement
in February 2010 and that he would never have taken a pre-retirement leave had
he been initially informed of that condition. The NRC took the position that
any failure on its part to clarify the situation after the application was
submitted was immaterial given that the applicant should have informed himself
of the policy and its various requirements.
[25]
On
February 11, 2011, Mr. Komorowski denied the applicant’s grievance at the first
level. This decision was maintained by the final level decision-maker on April
29, 2011 following a hearing held on March 29, 2011; hence the present
application for judicial review.
[26]
The
decision-maker found that the NRC management exercised its judgement and its
managerial responsibilities in a fair and reasonable manner in handling the
applicant’s PRTL application and his subsequent request to have it rescinded.
In fact, while the Treasury Board’s Directive and the NRC pre-retirement
program both allowed for the possibility of cancellation in “exceptional or
unforeseen circumstances” at the employer’s discretion, the financial and
operational considerations equally needed to be taken into account. In support
of the management’s decision, the decision-maker also noted that no additional
revenues or major contracts were expected upon the applicant’s return and that
additional expenses could impact the already challenged financial situation of
the institute.
[27]
Although
there was reasonable evidence supporting the applicant’s contention that until
shortly before his return to Canada he was not aware of the requirement to work
an average of three days per week as opposed to two, this did not render the
initial decision unreasonable. There was shared responsibility for the misunderstanding
between the NRC and the applicant. As such, while the NRC had the “opportunity”
to help clarify the situation regarding the applicant’s minimum obligations
under the pre-retirement leave program, the applicant had a “responsibility” to
inform himself of all applicable terms and conditions of the policy and he
failed to do so. The decision-maker further noted that this misunderstanding
was not the only reason that triggered the applicant’s decision to rescind his
pre-retirement leave arrangement and that the applicant’s decision to resign
from the VKI and return to his full-time position with the NRC did not confer
any obligations on the employer to accede to his request.
Issues
[28]
This
application for judicial review raises the following issues:
1) What
is the appropriate standard of review applicable to the decision-maker’s
decision?
2) Did
the decision-maker commit a reviewable error in deciding to not rescind the
applicant’s July 2009 PRTL agreement?
[29]
The
second issue is twofold as the applicant asserts two reviewable errors on the
part of the decision-maker. He submits that the rationale for denying his
request to rescind the PRTL agreement was unreasonable in view of the evidence.
In addition, he argues that the NRC committed a negligent misrepresentation
when it approved the applicant’s request for PRTL as submitted without making
any clarifications regarding the percentage of the workload requirement, and
that in disposing of this issue, the decision-maker either failed to apply or
incorrectly applied the legal principles relating to negligent misrepresentation.
[30]
Significantly,
during oral submissions, counsel for the respondent argued that the applicant
did not raise a claim for negligent misrepresentation before the decision-maker.
Counsel for the applicant replied that the issue of negligent misrepresentation
was implicitly argued and that it was in fact the substance of the applicant’s
grievance before the decision-maker.
Applicable
Standard of Review
[31]
The two-step process in the standard of review analysis set
out in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]
requires the reviewing court to “ascertain whether the jurisprudence has
already determined in a satisfactory manner the degree of
deference to be accorded with regard to a particular category of question” and,
where
this first inquiry proves unfruitful, to “proceed to an
analysis of the factors making it possible to identify
the proper standard of review” (Dunsmuir , above at para 62). The focus
of the analysis remains on the nature of the issue that was
before the tribunal under review (Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 4, [2009] 1 S.C.R. 339 [Khosa]).
Other factors to consider in determining whether an administrative decision-maker is entitled to
deference include the existence of a privative clause, a discrete and special administrative regime in which the decision-maker has special expertise and the nature of the question of law
(Dunsmuir, above, at para 55). As per Dunsmuir, deference is
generally
appropriate where a tribunal is interpreting its own home
statute or statutes that are closely connected to its
function, with which the tribunal has particular familiarity. Deference may
also
be warranted where a tribunal has developed particular
expertise in the application of a general common law or civil
law rule in relation to a specific statutory context (Dunsmuir, above,
at para 54;
Khosa, above, at para 25; Canada (Canadian Human Rights
Commission) v Canada (Attorney General), 2011 SCC 53 at para 16, [2011] SCJ No 53).
[32]
The
parties in this case disagree on the standard of review to be applied to the
final level grievance decision made by the employer. The applicant is of the
view that although the existence of “exceptional or unforeseen circumstances”
as intended by the policy is a question of fact reviewable on the standard of
reasonableness, any consideration by the decision-maker of legal principles
that fall outside of his expertise, namely those relating to the applicant’s
allegation of negligent misrepresentation by the employer, should be reviewed
against the standard of correctness (Canada
(Attorney General) v Assh,
2006 FCA 358, [2006] FCJ No 1656 [Assh]).
[33]
In Assh, the Federal Court of Appeal
was called upon to decide whether a final level determination of whether there
was a
conflict of interest in violation of the employer’s
Conflict of Interest Code was a question of law. The Court held that
determining the existence of conflicts of interest engaged the application of
common law concepts, independent of the decision-maker’s institutional
expertise and concluded that correctness was the appropriate standard for
reviewing the final level grievance decision regarding the interpretation of
the Conflict of Interest Code (Assh, above, at paras 42-46, 50 and 53).
[34]
The
respondent referred the Court to a number of decisions for the proposition that
the standard of reasonableness should be applied to non-adjudicative final
level grievance decisions which interpret and apply internal procedures and
policies (Hagel v
Canada (Attorney General),
2009 FC 329 at para 27, [2009] FCJ No 417 [Hagel]; Peck v Canada
(Parks Canada), 2009 FC 686 at para 23, [2009] FCJ No 1707; Insch v
Canada (Revenue Agency), 2009 FC 869 at para 14, [2009] FCJ No 1525; Spencer
v Canada (Attorney General), 2010 FC 33 at para 32, [2010] FCJ No 29).
[35]
As Justice O’Keefe
noted in Backx v Canada (Canadian Food Inspection Agency), 2010 FC 480
at para 22, [2010] FCJ No 559, as the case law regarding the appropriate
standard of review for various final level decisions made under
the Public Service Labour Relations Act, SC 2003, c 22 [PSLRA] is not settled in the jurisprudence, a contextual approach is preferable.
[36]
While I agree
with the respondent that on judicial review of non-adjudicable grievance decisions
made by a public employer, this Court has generally adopted the standard of
reasonableness in reviewing primarily factual questions that involve the application of various administrative employer policies to specific
circumstances, I do not believe that the cases cited by the respondent are determinative.
None of those cases involved a situation where, like in this case, the relevant
policy was or became part of the employee’s terms and conditions of employment and where the employee alleged, in part, that the employer breached its
duty of care.
[37]
In
Appleby-Ostroff v Attorney General of Canada, 2010 FC 479, [2010] FCJ No 558 [Appleby-Ostroff], Justice O’Keefe
held that when a
guideline, policy or directive became part of an employee’s
terms and conditions of employment and when the employee
grieved to the employer under the PSLRA alleging that the employer breached the policy, the final level grievance decision made by
the employer was not to be accorded deference. The Court specified
that this was not
because the applicable policy was law, as it was not, but
because it had become part of the employee’s terms and conditions of employment so that the employee was entitled to a correct final level grievance decision. Although Appleby-Ostroff
concerned
the unilateral assumption of policies by the employer into the
terms and conditions of the employees’ contract of employment and the issue of
the applicability of either of two distinct policies, I believe that the
Court’s determination remains instructive for the purposes of the present case.
The interpretation and application of an internal policy that forms part of the
applicant’s legal and binding contract of employment (the PRTL agreement)
cannot be regarded as a factual or primarily factual question, particularly
where an issue of negligent misrepresentation by the employer arising out of
the employment relationship is raised.
[38]
With
regard to the expertise of the decision-maker, it has been held that “the lack of an independent arbitrator under the final level grievance
process is a
strong indicator that such decision-makers are to be afforded less deference” (Appleby-Ostroff, above, at para 52; Assh,
above, at para 44). In deciding the applicant’s grievance, the decision-maker
exercised managerial functions and not legal expertise. I am mindful of the
fact that the purpose of the legislative regime is to “facilitate
the resolution of labour disputes expeditiously, inexpensively and with
relatively little formality” (Canadian Federal Pilots Assn v Canada
(Attorney General),
2009 FCA 223 at para 55, [2009] FCJ No 822) and that
final level decision-makers are generally given deference when interpreting and
applying internal policies and procedures (Peck v Canada (Parks Canada), 2009 FC 686 at para 21, [2009] FCJ No 1707).
However, in my view, this does not extend to contractual obligations arising
out of an individual employee’s employment contract governed by the employer’s
policies. Furthermore, I note that the privative
clause of section 214 of the PSLRA has been found to be relatively
weak compared to the language of section 233 which protects decisions made by
independent adjudicators (Appleby-Ostroff, above, at para 53; Hagel above, at paras 23-24; Assh, above, at para 35).
[39]
Considering
all of these factors, I am of the view that while the employer’s reading and
application of the policy in determining the terms and conditions of the
applicant’s contract of employment, as well as the decision-maker’s disposition
of the applicant’s claim of negligent misrepresentation regarding the
percentage of the workload requirement, point towards the standard of
correctness, the decision-maker’s factual assessment of whether the applicant’s
circumstances amounted to “exceptional or unforeseen circumstances” warranting
the cancellation of the PRTL agreement is worthy of deference.
This was the question that was put before the decision-maker in this case.
[40]
I
shall therefore review the first question against the standard of correctness
and the second question against the standard of reasonableness.
Review of the Impugned Decision
The reasonableness of
the impugned decision
[41]
The
decision-maker found that the applicant’s circumstances were of a personal
nature and were given full consideration at the time that the applicant’s
request was approved. Yet the decision-maker held that the alleged change of
circumstances must be balanced with the employer’s financial and operational
considerations under the policy, which were prevailing in the applicant’s case
and which were considered both when the applicant’s PRTL was approved and when
his request to rescind it was denied.
[42]
Dunsmuir, above, at para 47,
teaches us that reasonableness is primarily concerned with the existence of
justification, transparency and intelligibility within the decision-making
process and that reasonable decisions will fall within a range of possible
acceptable outcomes which are defensible in respect of the facts and law.
[43]
It
would be difficult for the Court to question, on the deferential standard of reasonableness, the decision-maker’s
balancing of concurring managerial concerns referred to in the impugned
decision, given the employer’s discretion and expertise over the
subject-matter. It would also be difficult to question his findings i) that
when the applicant applied for a PRTL in July 2009, there were likely “job
applications, personal contacts, and possibly even interviews underway on [the
applicant’s] part with VKI about this challenging career opportunity before [he]
departed NRC” – since it was subsequently known through discovery that a
binding employment contract was signed with the VKI in April 2009 – and ii)
that the applicant’s reasons for wanting to return to Canada and to his full
time job with the NRC had nothing to do with the terms of his PRTL arrangement
or with his newly discovered potential conflict of interest.
[44]
The
decision-maker accepted the applicant’s position that he only discovered the
60% workload requirement in February 2010. He qualified the situation as a
misunderstanding and attributed the responsibility for that misunderstanding to
both the applicant and the employer. That characterisation by the decision-maker
is reasonable when we consider all the evidence before the Court.
[45]
First,
the primary and complete source of information available to the applicant was
provided by Pay and Benefits when an email was sent to him, at his request, with
the three links to the NRC’s web site. All the terms and conditions of the
program were included, such as the right to “have [the employee’s] workweek
reduced by up to 40 per cent.” The applicant replied to that email stating that
he could not open the link containing the form to be submitted. He did not
mention that he could not open the link containing the terms and conditions of
the program. The applicant stated in an affidavit filed in support of his
application that in fact, he could not open any of the three links sent by Ms.
Plescia. He did not say so at the time he received the email and he cannot now put
the blame on the NRC for not ensuring he had all the relevant information on
hand before applying for a PRTL. This is even more the case when one considers that
Dr. Zan had recommended twice to the applicant to make sure he fully understood
the PRTL program before filing his application, as the consequence was
significant, and that Dr. Zan waited a week before approving the applicant's
application form.
[46]
Second,
the application form itself, which was completed by the applicant after he had
presumably perused the terms and conditions of the program and it does not
reflect the applicant's assertion that he expected to be working 40% of his
workable hours during the PRTL period. Under the section “Leave Period” he
indicated “40% of mandatory hours to be worked out with supervisor” and under
the section “Please indicate days to be taken off” he wrote “Tuesday and
Thursday.” The latter clearly indicated that the applicant would work 60% of
his workable hours on Monday, Wednesday and Friday. Although the possibility
exists that the applicant meant otherwise, given the information he submitted,
it is difficult to place the entire responsibility on the employer for not
having clarified the situation with him.
[47]
Third,
the applicant argues that if he knew of the requirement to work 60% of his
workable hours, he would not have applied for a PRTL and he would not have
accepted the position at the VKI. This argument is undermined by the fact that the
applicant signed an indefinite contract of employment with the VKI on April 29,
2009, some three months prior to applying for a PRTL. It is also weakened by
the fact that the applicant was far from being transparent with his employer
during his negotiations with the VKI and during the discussions with the
employer regarding his PRTL application. He only abided by the NRC’s Conflict
of Interest Policy after Dr. Zan noticed the communiqué announcing the
applicant’s appointment as Head of Department Aeronoutics/Aerospace Department
at VKI. In fact, it could be that if the NRC would have known of the applicant’s
true intentions at the time he applied for a PRTL, the applicant may have been
required to choose between his appointment at the VKI and the NRC’s PRTL
program.
[48]
Fourth,
the series of emails sent by the applicant to the NRC from February 8 to
February 18, 2010 clearly indicates that the reasons for the applicant's
decision to return to Canada are strictly related to a change in his personal circumstances.
The applicant’s mistaken impression that he only had to work 40% of his
workable hours during the PRTL leave and the fact that he could be prevented
from working at the VKI due to a conflict with the interest of the NCR appear
to be afterthoughts on the applicant’s part.
The applicant’s
claim for negligent misrepresentation
[49]
If
the applicant’s claim for negligent misrepresentation was not argued before the
decision-maker, it may well be that the issue was not viewed as contentious and
it should therefore not be considered by this Court on judicial review. The jurisprudence is
well-established that on judicial review, a decision cannot be impugned on the
basis of an issue not raised before the administrative decision-maker, unless
the new issue is a jurisdictional one, which is not the case here (see Toussaint
v Canada (Labour Relations Board), [1993] FCJ No 616 (FCA), at para 5; Shubenacadie
Indian Band v Canada (Canadian Human Rights Commission) (re Macnutt),
[1997] FCJ No 1481 at paras 37-43; and
Nametco Holdings Ltd v Canada (Minister of National Revenue), 2002 FCA
149, at para 2).
[50]
However,
neither party had mentioned that fact in their written representations, and it
was unclear at the outcome of the hearing before the Court whether, and how,
this argument was presented to the decision-maker. Therefore, I will assess the
applicant’s claim.
[51]
Two
issues should be addressed with regard to the applicant’s claim of negligent
misrepresentation against the NRC: i) whether the constitutive elements for liability in negligence are established, and in the affirmative ii) whether
a partial defence for contributory negligence is available to the employer as a
result of the applicant’s failures.
i)
Whether the constitutive elements for liability in negligence are established
[52]
As per Spinks
v Canada (CA), [1996] 2 FC 563 at para 20, [1996] FCJ No 352 [Spinks],
citing Queen v Cognos Inc, [1993] 1 S.C.R. 87 [Cognos], the legal test for liability in
negligence includes five constitutive elements: i) there must be
a duty of care based on a “special relationship” between the representor and the representee; ii) the representation in question must
be untrue,
inaccurate, or misleading; iii) the representor must have
acted negligently in
making said representation; iv) the representee must have
relied, in a reasonable
manner, on said negligent misrepresentation; and v) the
reliance must have been
detrimental to the representee in the sense that damages
resulted.
[53]
It has been held that “foreseeable reliance is sufficient
to create a special relationship in most cases” (Spinks, above, at para 22). There is no doubt that in the circumstances of this
case the applicant at least partially relied on the employer when he asked Ms.
Plescia to forward to him, as promised, “some information on pre retirement
leave facility”. Considering
the reasonable foresight of the applicant’s risk by the employer, the Court can
conceivably come to the conclusion that a duty of care arose out of the
employment relationship in the circumstances.
[54]
While in email correspondence with Ms. Plescia the
applicant communicated his intention to have a 40% workload during his transition
leave,
he received from the NRC Pay and Benefits Advisor all the precise information
which should have clearly indicated that the policy only permitted a 40%
reduction of working hours. Of greater importance, the applicant was aware that
once his PRTL application was approved he was required to resign his position
at the end of the leave period.
[55]
With
respect to the second and third criteria, it should be noted that the applicant
was never provided with information that does not correspond to
the content of the policy. Furthermore, he did receive a signed approval of his
application as it was filled out. If this approval was inaccurate or
misleading, which might not be the case, the applicant must bear the
responsibility.
[56]
Was
the employer’s communication of web links to the relevant policies sufficient to discharge its duty of reasonable care? In the circumstances of this
case, I am of the opinion that it was. The applicant had been working for
the NRC for over 27 years and was therefore familiar with its organisation and
general policies. The evidence of email communication between the applicant and
the NRC Pay and Benefits Advisor shows that the applicant inquired about his
take home pay if he would be working 40% of his regular working hours. Instead
of correcting or contradicting him, Ms. Plescia replied that she needed to know
the exact days a week he intended to take off. In Spinks, above, at para
29, the Federal Court of Appeal made clear that “a person may be “misled” by a failure to divulge as much
as by advice that is inaccurate or untrue. In the same way that absent
information
can be “erroneous”, as discussed above, missing information
can be misleading. […] Consequently, the duty may be breached not only by
positive misstatements but also by omissions, for they may be just as
misleading.” If the duty of care was discharged through email correspondence, a
misleading omission in such an email would raise a significant problem.
However, that is not the case. It appears from the July 13 email that the
applicant himself relied primarily on information that he requested be sent to
him in writing. That is confirmed by Dr. Zan’s first
refusal to sign the applicant’s PRTL application before he had familiarized
himself with the PRTL terms and conditions.
[57]
As
per Cognos, above, at para 121, “the applicable standard of care should be the one used in every negligence case, namely the universally accepted, albeit hypothetical, “reasonable
person.”
The standard of care required by a person making
representations is an objective one.” Applying that standard, I
find that the employer acted with care by recommending that the applicant
familiarize himself with the PRTL program and by making sure he understood its
term and conditions. The mere fact that the applicant chose not to review the
documentation sent and chose not to advise Ms. Plescia that he could not open the web site link - providing her with the
opportunity to make the information available otherwise as she probably did
with the application form - do not amount to negligence or omission on the
employer's part.
[58]
The
forth criterion for
liability in negligent misrepresentation requires actual and reasonable
reliance on alleged misrepresentation. The applicant states that he
relied on both his email exchange with the NRC Pay & Benefits Advisor and the fact that his application form was
approved by his direct supervisor, Dr. Zan. In the circumstances, it would have
been more reasonable for the applicant to rely on the information and
documentation provided and on the recommendations of Dr. Zan than on a few
confusing emails in which the parties simply and clearly misunderstood each
other. In her emails, Ms. Plescia does not
confirm the applicant's understanding, nor does she provide an answer to his
request to be informed of his take home pay should he be working 40% of his
working hours. Basically, in her July 20 email, Ms. Plescia asks the applicant which days he intends to take as leave
without pay and the applicant replies that, for the sake of argument, he would
work on Tuesday and Thursday. This information contradicts his application
form where he states instead that he would take leave on Tuesday and
Thursday.
[59]
The applicant’s alleged reliance on the NRC’s approval of
his application form favours the respondent’s position rather than the
applicant’s. Since the NRC had reasons to believe that
the applicant had familiarized himself of the PRTL policy, it was reasonable to
read the application form as conforming with the terms and conditions of the
program, that is that the applicant intended to take “40% of mandatory hours to
be worked out with supervisor” as his leave period, to be taken off on Tuesdays
and Thursdays.
[60]
Finally, the applicant submits that as a
result of the NRC’s negligent representation, he lost his full-time employment
with the NRC. Again, he had accepted the position with the VKI three months prior
to applying for a PRTL and three months prior to any representation having been
made by the employer. Furthermore, he had decided to resign from his employment
at the VKI due to a change in his personal circumstances and prior to having
discovered that he misunderstood the terms and conditions of the PRTL program.
Therefore, the misunderstanding regarding the percentage of statutory workable
hours under the PRTL program is not the causa causans for the applicant’s
alleged damages.
[61]
Accordingly, I am of the opinion that none of the five constitutive elements
required to conclude that the NRC is liable for negligent misrepresentation
were adequately established on the facts of this case.
ii)
The partial defence for contributory negligence
[62]
Having
determined that the NRC did not commit a negligent misrepresentation in law in
the applicant’s case, there is no need to determine whether the applicant was contributory negligent and participated in causing his
own damages.
[63]
The application will therefore be dismissed. Costs shall
follow the event.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is dismissed.
2. The respondent
shall have his costs of the application.
"Jocelyne
Gagné"
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