Date: 20130509
Docket: T-996-12
Citation: 2013 FC 489
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, May 9, 2013
PRESENT: The Honourable Mr. Justice
de Montigny
BETWEEN:
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CHRISTINE GIRARD
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Applicant
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and
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THE DEPARTMENT OF HUMAN RESOURCES AND
SKILLS DEVELOPMENT CANADA (HUMAN RESOURCES BRANCH)
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Christine
Girard (the applicant) asked her employer for a leave of absence without pay
for one year, but her employer refused her request. The applicant filed a
grievance against this decision, which grievance was dismissed. She also filed
a harassment complaint.
[2]
The
facts alleged in the harassment complaint were found not to meet the definition
of harassment set out in the Policy on the Prevention and Resolution of
Harassment in the Workplace (the Policy) in force at that time. The
applicant filed a grievance against this decision, and this grievance, too, was
dismissed at the second level of the grievance process on April 20, 2012.
[3]
The
applicant is now applying for judicial review of this decision under
section 18.1 of the Federal Courts Act, RSC 1985, c F-7.
[4]
For
the reasons that follow, I find that this application should be dismissed.
I. Facts
[5]
At
the relevant time, the applicant was employed by the Department of Human
Resources and Skills Development Canada (HRSDC). She performed the duties of a
labour relations manager at the PE-05 level until October 25, 2010, when
she was appointed to a position at a higher group and level (EX-01) on an
acting basis. The applicant was notified on August 29, 2011, that she
would have to return to her substantive position because of operational
requirements.
[6]
In
the meantime, on August 26, 2011, the applicant had been interviewed for a
position in the Labour Relations Branch. The applicant alleges that when she
was asked about the biggest ethical dilemma she had ever had to deal with in
the workplace, she told Sylvain Dufour, who was presiding over the interview,
that her example was a bit sensitive, given her duties, and she asked for his
assurance that her answer would not be repeated outside the context of the
interview. Mr. Dufour apparently assured her that such would be the case,
and the applicant then told the committee about her example, which concerned a
situation involving one of the respondent’s assistant deputy ministers. The
applicant states that while she was telling the committee about her example, Mr. Dufour
suddenly stopped her, told her very firmly that he did not want to hear any
more about it and ordered her to think carefully about the people sitting
around the table when she chose an example of an ethical dilemma.
[7]
On
September 20, 2011, the applicant notified her employer that she had
applied for an assistant director general’s position with the city of Lévis and
that she had been offered the job. She therefore requested a one-year leave of
absence without pay from her position in the federal public service. The
request was denied on September 26, 2011, because of operational
requirements. Unhappy with this decision to deny her leave without pay, the
applicant filed a grievance on October 23, 2011. This grievance, which was
dismissed at the final level of the grievance process on April 20, 2012,
is not at issue in the present application for judicial review.
[8]
Having
still not returned to her duties after being denied leave without pay, the
applicant was notified on November 23, 2011, that she was on unauthorized
leave without pay. On December 12, 2011, the applicant filed a grievance
against the decision finding her to be on unauthorized leave without pay. On
April 20, 2012, this grievance, too, was dismissed, and it is no longer at
issue in the present application for judicial review.
[9]
On
December 12, 2011, the applicant also filed a harassment complaint under
her employer’s Policy, in connection with the denial of her request for unpaid
leave. On January 17, 2012, Brenda Marcoux, Delegated Manager for the
Prevention and Resolution of Harassment in the Workplace, dismissed the
complaint on the grounds that the applicant’s allegations did not constitute
harassment within the meaning of the Policy. She reached this conclusion
because (1) the alleged vexatious, abusive and offensive conduct connected
with the denial of her request for unpaid leave did not disclose any act,
comment or display that demeaned, belittled, or caused personal humiliation or
embarrassment to the applicant; and (2) the incident described by the
applicant, which occurred during the interview with Mr. Dufour, did not
meet the definition of harassment set out in the Policy. The applicant grieved
the dismissal of her complaint, and on April 20, 2012, the Assistant Deputy
Minister dismissed all three of the applicant’s grievances at the final level.
II. The impugned decision
[10]
Although
the Assistant Deputy Minister dismissed all three of the applicant’s grievances
in his decision, only the portion of the decision concerning the grievance
relating to the harassment complaint is at issue in the present application for
judicial review.
[11]
After
reviewing the information in the file and analyzing the situation, the
Assistant Deputy Minister adopted the decision and reasons of Delegated Manager
Brenda Marcoux, who had found that the evidence presented by the applicant in
support of her complaint did not meet the definition of harassment set out in
the Policy. His reasons are summed up in one paragraph:
[translation]
Finally, as regards your grievance concerning the dismissal of your
harassment complaint, I support the decision of the Delegated Manager for the
Prevention and Resolution of Harassment in the Workplace to the effect that the
evidence you presented does not meet the definition of harassment as stipulated
in the Treasury Board Secretariat’s Policy on the Prevention and Resolution of
Harassment in the Workplace.
III. Issues
[12]
This
application for judicial review essentially raises two issues:
(a) Did the Assistant Deputy
Minister breach the principles of procedural fairness by failing to ask the
applicant to present her position personally?
(b) Did the Assistant Deputy
Minister err in finding that the applicant’s allegations did not constitute
harassment within the meaning of the Policy?
IV. Analysis
[13]
The
grievance at issue in this case was filed by the applicant under
subsection 208(1) of the Public Service Labour Relations Act, SC 2003,
c 22 [PSLRA]. The applicant is of the opinion that she was harmed by the
application of the Policy. Subsection 208(1) of the PSLRA reads as follows:
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208. (1) Subject to subsections (2) to (7),
an employee is entitled to present an individual grievance if he or she feels
aggrieved
(a) by the
interpretation or application, in respect of the employee, of
(i) a provision of a
statute or regulation, or of a direction or other instrument made or issued
by the employer, that deals with terms and conditions of employment, or
(ii) a provision of
a collective agreement or an arbitral award; or
(b) as a
result of any occurrence or matter affecting his or her terms and conditions
of employment.
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208. (1) Sous réserve des
paragraphes (2) à (7), le fonctionnaire a le droit de présenter un grief
individuel lorsqu’il s’estime lésé :
a) par l’interprétation ou l’application
à son égard :
(i) soit de
toute disposition d’une loi ou d’un règlement, ou de toute directive ou de
tout autre document de l’employeur concernant les conditions d’emploi,
(ii) soit de
toute disposition d’une convention collective ou d’une décision arbitrale;
b) par suite de tout fait portant
atteinte à ses conditions d’emploi.
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[14]
As
the applicant’s individual grievance cannot be referred to adjudication under
section 209 because it is not related to one of the enumerated subjects,
the decision taken at the final level in the process provided for in
section 208 is final and binding, and no further action may be taken under
the PSLRA.
[15]
The
complaint resolution process provided for under the Policy has six steps, which
may be summarized as follows:
(a) Filing a complaint: The complainant must
submit a complaint, in writing, setting out the nature of the allegations, the
name of the respondent, the relationship of the respondent to the complainant,
the date and description of the incident(s), and, if applicable, the names of
the witnesses;
(b) Screening and
acknowledgment of the complaint: The complaint is screened to determine whether it
was filed within the prescribed time (i.e., within one year of the alleged
harassment) and whether it includes the information listed in the first step;
(c) Review of the complaint: The delegated manager
reviews the complaint and determines at this stage whether the allegations are related
to harassment;
(d) Mediation: If the delegated
manager decides that the allegations constitute harassment within the meaning
of the Policy, he or she must offer mediation;
(e) Investigation: If the situation
cannot be resolved through mediation, the delegated manager may launch an
investigation and appoint an investigator. If the delegated manager is
satisfied that he or she has all the facts and that the parties have been
heard, he or she may also decide not to undertake an investigation and to
proceed to the final step;
(f) Decision: The delegated manager
reviews all the relevant information and decides what action to take.
[16]
There
is no need to proceed to an analysis of the standard of review where the case
law has already determined this issue in a satisfactory manner: Dunsmuir v New
Brunswick, 2008 SCC 9 at para 62, [2008] 1 S.C.R. 190. This
Court has already determined that the reasonableness standard applies to a
decision maker’s findings of fact in an individual grievance presented under
subsection 208(1) of the PSLRA: see Hagel v Canada, 2009 FC 329 at
para 27, 352 FTR 22, aff’d in 2009 FCA 364, 402 NR 104 [Hagel]; Tibilla
v Attorney General of Canada, 2011 FC 163 at paras 17-18 (available on
CanLII). As for questions of procedural fairness, it is trite law that the
applicable standard is correctness: Sketchley v Canada (Attorney General),
2005 FCA 404, [2006] 3 FCR 392.
(a) Did the Assistant Deputy
Minister breach the principles of procedural fairness by failing to ask the
applicant to present her position personally?
[17]
The
applicant submitted that the Assistant Deputy Minister was obliged to launch an
investigation or at least allow the parties to be heard in accordance with the audi
alteram partem rule, as provided under the Policy. According to the
applicant, the Assistant Deputy Minister not only refused to launch and
investigation, but also never contacted or tried to contact the applicant to
give her the opportunity to assert her rights and have her workplace harassment
complaint heard.
[18]
There
is no doubt that grievors are entitled to some degree of procedural fairness: see
Hagel, above, at paras 34-35. However, the case law has established
that procedural fairness may vary, depending on the context, and that a hearing
is not always required for a party to be heard. In the present case, neither
the PSLRA nor the Policy provides for a duty to hold a hearing, and the
applicant has not referred the Court to any other instrument providing for such
a duty. The real issue is whether the applicant had a real opportunity to
present her position and make her arguments: Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras 21-28 (available
on CanLII).
[19]
Under
the Policy, an investigation is launched only if the facts submitted in support
of the complaint relate to harassment. However, as was mentioned above, the
Delegated Manager concluded after reviewing the complaint (third step) that the
facts did not meet the definition of harassment. She therefore did not have to
complete the other steps in the process and proceed with an investigation.
[20]
It
should be noted that the applicant was specifically notified of the steps set
out under the Policy and of the fact that the Delegated Manager would review
her allegations to determine whether they met the definition of harassment. The
applicant was also warned that she would not be contacted unless it was deemed
necessary. Despite this, the applicant did not think it necessary to provide
the Delegated Manager with additional information, nor did she provide the
Assistant Deputy Minister with further evidence for her grievance. Indeed, in
the present application for judicial review, she did not adduce any new facts
that she had been unable to present and that the decision makers had failed to
consider.
[21]
In
the circumstances, I find that the applicant had an adequate opportunity to
make representations and inform the decision makers of any facts she deemed to
be relevant to establishing that she had been harassed. Accordingly, the
Court’s intervention is unwarranted since there was no breach of the principles
of procedural fairness.
(b)
Did
the Assistant Deputy Minister err in finding that the applicant’s allegations
did not constitute harassment within the meaning of the Policy?
[22]
The
applicant submitted that the Assistant Deputy Minister erred in not accepting
the facts alleged in her complaint as proven and in finding, having regard to
the evidence on file, that the facts did not establish that she had been
harassed. In her view, the Assistant Deputy Minister and the Delegated Manager
did not consider the intimidation to which she was subjected and did not make
the connection between the threats made against her at the interview with Mr. Dufour
and the reprisals that followed and resulted in, among other things, her being
denied leave without pay.
[23]
It
is true that the reasons of the Assistant Deputy Minister are very brief and do
not really elaborate on his reasons for concluding that the applicant’s
complaint does not meet the definition of harassment under the Policy. However,
one should not lose sight of the fact that the Assistant Deputy Minister
endorsed the decision of the Delegated Manager, thereby adopting her reasons as
his own. Here is what the Delegated Manager wrote in her letter to the
applicant, dated January 17, 2012:
[translation]
In your complaint, you state that the respondents acted toward you in a
way that was vexatious, abusive and offensive. I note that you describe how the
three respondents were involved in the decision to deny you leave without pay
for personal needs. You also describe this situation as unreasonable
interference in your career. Having reviewed the facts set out in your
complaint, I cannot find any act, comment or display that demeaned, belittled,
or caused personal humiliation or embarrassment to you.
Although I can understand your disappointment with the decision and the
process followed in making it, I cannot conclude that your allegations meet the
definition of harassment found in the Policy on the Prevention and
Resolution of Harassment in the Workplace.
Regarding the incident that occurred during the interview when
Mr. Dufour allegedly cut you off and told you to think carefully about the
people around the table, this incident, as you described it, does not meet the
definition of harassment in the Policy on the Prevention and Resolution of
Harassment in the Workplace.
Consequently, your complaint will not be investigated, and the file will be
closed.
[24]
The
Policy defines harassment as follows:
. . . any improper conduct by an individual that is directed at and
offensive to another person or persons in the workplace, and that the
individual knew, or ought reasonably to have known, would cause offence or
harm. It comprises any objectionable act, comment or display that demeans,
belittles, or causes personal humiliation or embarrassment, and any act of
intimidation or threat. It includes harassment within the meaning of the Canadian
Human Rights Act.
[25]
These
reasons are entirely intelligible and give the applicant the reasons for which
her complaint was dismissed. Even if a delegated manger accepts as proven the
facts brought to his or her attention at the review stage of the complaint, he
or she must nevertheless determine whether the facts constitute harassment
within the meaning of the Policy and may, if necessary, ask for additional
information in this regard. This is exactly what the Delegated Manager did in
this case.
[26]
Indeed,
it was only in her application for judicial review that applicant submitted
that she had felt intimidated. The file does not support this allegation.
Moreover, it should be noted that it was not the refusal to renew her
secondment that led to the applicant’s grievance, but the refusal to grant her
leave without pay. On this point, there is every indication that the decision
was made strictly for operational reasons, as evidenced in particular by the
memorandum to the Assistant Deputy Minister, Human Resources Branch, regarding
the applicant’s request for leave without pay.
[27]
The
applicant’s disappointment is understandable, given that she had applied for a
position outside the public service and would no doubt have appreciated having
a security net if she discovered that the position that she ended up accepting
even before presenting her grievance was not to her liking. However, the fact
that she disagreed with the findings of the Assistant Deputy Minister and the
Delegated Manager, and that she would clearly have preferred that they drew
different inferences from the facts brought to their attention, is not enough
to show that the decisions are unreasonable.
[28]
In
light of the evidence on record, I therefore find that it was not unreasonable
for the Assistant Deputy Minister to dismiss the applicant’s grievance and to
confirm the decision of the Delegated Manager according to which the
allegations in the complaint did not lead to a finding of harassment within the
meaning of the Policy. Accordingly, this application for judicial review must
be dismissed.
JUDGMENT
THE COURT ORDERS AND
ADJUDGES that the application for judicial review be dismissed, with costs.
“Yves de Montigny”
Certified true translation
Michael Palles
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