which had a history of failing to
meet its operational requirements. This involved a restructuring of the RDGO
and a reorganization of work in the office.
[4]
Mr.
Miller met with the Applicants and explained that he was initiating a new
structure in which there would be no employees at the AS-01 group and level. There
would be one AS-05, one AS-02 and one CR-4. Mr. Miller intended to bring his
former assistant with him to work in the RDGO and to fill the new AS-02 position.
[5]
Subsequently,
Mr. Miller met with the Applicants on a number of occasions and offered to
assist them with training and in finding suitable alternate positions within
the federal government at the same group and level. The Applicants were
unwilling to consider moving into alternate positions, even in one instance
which would have meant a promotion to AS-02 level, and refused temporary work assignments
to other AS-01 positions.
[6]
The
Applicants also met with Ms. Catherine Vick, Regional Director of Human
Resources, PWGSC, of the Ontario Region, to discuss their situation. They asked
that Ms. Vick provide them with information to support Mr. Miller’s actions. She
directed them to some websites which, according to the Applicants, Ms. Vick
stated explained what a manager needs to consider when developing a new organizational
structure. Ms. Vick also informed the Applicants that management had a right to
reorganize the office.
[7]
On
October 15, 2008, the Applicants filed complaints of harassment, including
abuse of authority, against Mr. Miller, Ms. Vick and others pursuant to the
Treasury Board Policy on Prevention and Resolution of Harassment in the
Workplace (Harassment Policy). The Harassment Policy governs the complaint
process for harassment in federal departments and organizations.
[8]
The
Applicants alleged that Mr. Miller harassed them and abused his authority by
pressuring them to accept positions outside of the RDGO and by acting contrary
to the rules and procedures governing employment in the public service in order
to facilitate his former administrative assistant joining that office and his
restructuring of the RDGO. The Applicants alleged that Ms. Vick facilitated Mr.
Miller’s efforts to remove them from their positions knowing that his actions constituted
harassment.
[9]
Pursuant
to the Harassment Policy, if a complaint is not resolved through mediation, the
delegated manager may launch an investigation by retaining an independent
investigator. The investigator must provide the delegated manager with a
written report. Ms. Lorenzato was the delegated manager and Ms. Audrey Devlin, of
Devlin and Associates, was appointed to investigate the Applicants’ complaints
(the investigator). The Applicants’ complaints were essentially the same and
were investigated concurrently.
[10]
On
July 2010, PWGSC provided the parties with the investigator’s preliminary
reports. On November 22, 2010, the Applicants’ union representative, Craig
Spencer, submitted lengthy responses to the preliminary reports on the
Applicants’ behalf. These asserted that the complaint against Mr. Miller was
that he abused his authority by foregoing the formalities of public service
staffing law and removing the Applicants from their indeterminate positions. Further,
that the investigator had failed to determine if Mr. Miller held such authority
and asserted that, if he did not, then his actions constituted an abuse and a
violation of the Harassment Policy. And, that Ms. Vick
had failed in her duty owed to the Applicants when she supported Mr. Miller’s
decision.
[11]
The
final reports of the investigator were provided to the Applicants in December
2010 and found that their complaints of harassment and abuse of authority were not
substantiated. Mr. Miller had acted within his authority as RDG and his
actions did not constitute harassment. The investigator found that some of the
Applicants allegations were scurrilous, defamatory and malicious. As to the
complaint against Ms. Vick, the investigator found that none of the allegations
had been substantiated.
[12]
On
February 7, 2011, Ms. Lorenzato adopted the findings of the final investigation
reports which found that the Applicants’ complaints were unsubstantiated. This
is the judicial review of Ms. Lorenzato’s decisions
(collectively, the Decision).
Legislative and
Policy Background
[13]
The
Applicants filed their complaints pursuant to the Harassment Policy. The
record does not contain any guidelines or other documents which might flesh out
the Harassment Policy’s procedural content.
[14]
The
Public Service Employment Act, SC 2003, c 22, ss 12, 13 (PSEA) gives the
Public Service Commission (the Commission) the responsibility for appointment
of employees in the federal public service. The Commission can delegate this
authority to deputy heads that, in turn, can authorize others, such as
departmental managers, to exercise those powers. The Financial
Administration Act, RSC 1985, c F-11 (FAA) confers authority on the
Treasury Board in all matters relating to human resources management in the
federal public administration. The Treasury Board may determine the human
resources requirements of the public service and provide for the allocation of
effective utilization of human resources in the public sector. The Preamble
and subsections 2(1), 11, 15(1), 16, 24, 29, 30(1), and 51 of the PSEA and subsections
7 (1)(b), 7(1)(e), 11.1(1), and 12(1) of the FAA are relevant to this
proceeding.
Issues
[15]
The
Applicants submit that this judicial review raises the issue of the appropriate
standard of review and of whether PWGSC failed to observe the principles of
procedural fairness in rendering its decision to dismiss the Applicants’
complaints of abuse of process and harassment. The Respondent submits that the
issue is whether the investigator breached the rules of procedural fairness and
natural justice.
[16]
The core of the matter giving rise to this judicial review is the
question of whether the PWGSC properly investigated the Applicants’ complaints
of harassment and abuse of authority. Therefore, I agree with the parties that the
issue before this Court is whether the Decision, which adopted and was based on
that investigation, was procedurally fair.
Positions
of the Parties
The
Applicants
[17]
The
Applicants’ principal allegation is that PWGSC did not conduct a thorough
investigation before rendering its Decision to dismiss their harassment
complaints.
[18]
The
Applicants submit that the content of the duty of procedural fairness owed by
administrative decision makers depends on the circumstances of each case (Baker
v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker])
and that the analysis and standard of fairness applied in Potvin v Canada
(Attorney General), [2005] FCJ No 547 (QL) (TD) [Potvin] is also applicable
to this case (Potvin, above, at paras 25, 28; Bell Canada v
Communications, Energy and Paperworkers Union of Canada, [1999] 1 FC 113 at
para 43).
[19]
Further,
that procedural fairness requires that a neutral and thorough investigation be
conducted. A thorough investigation requires that the investigator:
- investigate all major
allegations in the complaints;
- investigate all
obviously crucial evidence;
- confront the
respondent with submissions from the complainants that call into question
the respondents’ position; and
- provide the
parties with the opportunity to make all relevant representations in
response to the preliminary investigation report and to have all these
representations considered.
(Sketchley
v Canada (Attorney General), 2005 FCA 404 at para 120-123; Public Service
Alliance of Canada v Canada (Treasury Board), 2005 FC 1297 at paras 42-50
[PSAC])
[20]
The Applicants
also submit that the investigator's report contains three significant errors
which breach these procedural fairness obligations. The investigator
failed to (a) investigate the Applicants’ core allegation; (b) investigate
crucial evidence; and (c) address the substance of their complaint.
[21]
As
to the failure to investigate the core allegation, the Applicants’ submit that
their principal allegation against Mr. Miller and Ms. Vick concerned the manner
in which the Applicants were removed from their positions. Specifically, that
Mr. Miller’s actions were inconsistent with the obligations that arise from a federal
public service workplace reorganization and the provisions of the PSEA and FAA.
Although the Applicants made submissions on the law of staffing in the federal
public service, the investigator failed to consider or assess them. The Applicants
submit that the investigator did not refer to any documents which indicate the
source of Mr. Miller’s authority and that the final reports did not consider
the statutory limits on Mr. Miller’s authority to reorganize the workplace in
the manner in that he did, which was primarily motivated by his wish to bring
his former assistant with him to his new role. Further, the investigation did
not address Mr. Miller’s decision to use an informal staffing process rather
than a workforce adjustment (WFA).
[22]
The
Applicants submit that without such inquiries, the investigator could not
possibly have undertaken a thorough investigation.
[23]
As
to the failure to investigate crucial evidence, the Applicants submit that they
questioned the lack of documentation supporting Mr. Miller’s staffing decisions
and requested the investigator to seek the disclosure of these documents. This
evidence was crucial as it would have either confirmed or defended their
allegations against Mr. Miller and Ms. Vick. The investigator did not request
that Mr. Miller produce the “paper record”, if any, leading to his decision to
remove them from their positions, yet found that Mr. Miller acted within his
authority without providing any reasons or addressing the source of this authority.
[24]
The
Applicants submit that among the links Ms. Vick emailed to them was a
departmental policy on organizational change. The investigator found that Mr.
Miller had acted within the policy without providing any reasons why this was
so or whether the policy addressed the statutory limits on Mr. Miller’s
authority generally, or, in the context of the Applicants’ particular
circumstances. The Applicants also submit that the report suggests that the
investigator did not review any of the other information that Ms. Vick provided
to the Applicants.
[25]
Finally,
the Applicants submit that the investigator improperly focussed on concerns
with the Applicants’ performance. However, Mr. Miller’s actions would necessarily
be “viewed through a different lens” if it had first been determined whether or
not he had complied with his obligations under the law governing public service
employment. It was impossible for the investigator to properly appreciate the
impact of Mr. Miller’s behaviour towards the Applicants without first making
that determination.
Respondent’s Submissions
[26]
The
Respondent makes two principal submissions being that: (i) Mr. Miller’s exercise
of authority did not constitute harassment; and (ii) the PWGSC complied with
its procedural fairness obligations.
[27]
The
Respondent submits that the procedural fairness issues must be considered in
light of the Policy’s definition of harassment and abuse of authority.
Harassment and abuse of authority require intentionally harming an employee and
must be more than just a flawed administrative decision (McElera v Canada (Industry), [2003] FCJ No 1001 (QL) (TD) at para 11). The Policy
defines harassment as follows:
Harassment…is 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 objectionably act, comment or display
that demeans, belittles, or causes personal humiliation or harassment, and any
act of intimidation or threat. It includes harassment within the meaning of the
Canadian Human Rights Act.
[28]
In
the reports, the investigator refers to the Department of Justice’s definition
of abuse of authority: “Taking undue advantage of a position of authority to
endanger an employee’s job, undermine an employee’s job performance, threaten
an employee livelihood or interfere with his career.”
[29]
The
Respondent submits that the evidence as set out in the investigation reports
confirms that there was a reasonable basis in fact supporting Mr. Miller’s
actions. Therefore, those actions did not constitute an abuse of authority (Bartrud
v Office of the Superintendent of Financial Institutions, [2006] CPSSLRB No
65 at paras 75 and 84).
[30]
The
Respondent submits that, at their core, the Applicants’ complaints concern
alleged breaches of staffing rules. There are other avenues of redress for
perceived breaches of public service staffing requirements including a
complaint to the Commission or a grievance. However, even if there was a
breach of staffing rules, this does not amount to harassment or abuse of
authority as they require an intention to harm and the investigation found as a
fact, that there was no evidence to support such a finding.
[31]
The
Respondent submits that the content of procedural fairness depends on context.
The circumstances of each case dictate the degree of thoroughness required (Slattery
v Canada (Human Rights Commission), [1994] FCJ No 181 (QL) (TD) at paras
55, 56 and 69, aff’d [1996] FCJ No 385 (QL) (CA) [Slattery]).
Here the investigation process was procedurally fair as PWGSC conducted a
thorough and neutral investigation (Slattery, above; Miller v Canada
(Attorney General), [1998] FCJ No 1564 (QL) (TD)). The investigator inquired
into the Applicants’ core allegation, that by removing them from their position,
Mr. Miller acted contrary to public staffing rules. The investigator had
sufficient evidence to determine that Mr. Miller had bona fide plans to
restructure the organization and appropriately concluded that there was no
evidence that he violated any rules governing public service employment. Even
if Mr. Miller was mistaken about his right to restructure his organization,
this error does not amount to harassment.
[32]
The
Respondent submits that case law establishes that the courts will only
intervene where there is an “unreasonable omission” in the investigation or
where the investigation is “clearly deficient.” There is an unreasonable
omission or a clear deficiency in an investigation where the investigator fails
to investigate “obviously crucial evidence,” which omission or deficiency cannot
be rectified by bringing it to the investigator’s attention in the parties’
submissions made in response to the preliminary investigation reports. Minor
omissions or deficiencies which can and ought to be corrected by the parties in
their submissions do not justify judicial review (Slattery, above, at
paras 56,
69). An investigation does not lack thoroughness merely because the
investigator does not analyze each and every allegation raised by the
complainant (Slattery, above, at paras 56 and 67- 69).
[33]
As
to the Applicants’ assertion that the investigation failed to investigate
crucial evidence, the Respondent submits that the Applicants do not have any
evidence that paper documentation supporting Mr. Miller’s staffing decisions
even exists. The investigator was provided with sufficient evidence to
determine that Mr. Miller had bona fide plans to restructure; accordingly, his
actions did not constitute harassment. Given this, a failure to request
additional written documents detailing restructuring plans does not constitute a
failure to investigate “obviously crucial evidence.”
[34]
Finally,
the Respondent submits that the Applicants’ performance was relevant to the
investigation as it corroborated that the RDGO was in need of restructuring. The
investigator did not breach procedural fairness in analyzing the Applicant’s
performance.
Standard of
Review
[35]
Where
previous jurisprudence has satisfactorily determined the standard of review
applicable to a particular issue before the court, the reviewing court may
adopt that standard (Dunsmuir
v New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paras
50 and 57 [Dunsmuir]). I agree with the
parties that the standard of review for a question of whether an investigation
report is thorough is as in this case an issue of procedural fairness to be
reviewed on a correctness standard (Busch v Canada (Attorney General),
2008 FC 1211 at para 12 [Busch]; Shaw v Canada (Royal Canadian
Mounted Police), 2013 FC 711 at para 28; PSAC, above at para 24; Thomas v Canada (Attorney
General), 2013 FC 292 at para 38 [Thomas];
Sketchley, above, at paras 46, 52, 55).
[36]
It
is also well-established that no deference is owed to a tribunal decision maker
on an issue of procedural fairness (Dunsmuir, above, at para 50; Canada
(Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339 at para 43 [Khosa]; Sketchley, above, at para 53; Gravelle v
Canada (Attorney General), 2006 FC 251 at para 24 [Gravelle]).
Analysis
Was the
investigation and decision-making process procedurally fair?
[37]
The
starting point of this analysis is to determine what was required of PWGSC in
order to fulfill the duty of procedural fairness it owed the Applicants. Put
otherwise, what was the content of the duty of fairness in the present case?
[38]
In
Potvin, above, the Court held that the policy at issue in that case (the
Policy on Prevention and Resolution of Harassment in the Workplace for the Tax
Court of Canada) codified the extent of the requirements of the procedural
fairness owed in the circumstances. Similarly in Thomas, above, Justice
Kane found that the same Harassment Policy as is applicable in this case, and
related PWGSC Guidelines, served to codify the investigator’s procedural
fairness obligations.
[39]
Here,
the Harassment Policy sets out the steps to be followed in the complaint
process. This includes the use of investigators who will provide the delegated
manager with a written report of his or her findings and conclusions which the
delegated manager may rely upon in deciding if harassment has occurred. However,
in this case, and unlike Thomas, above, no reference is made in the
submissions by the parties or in the investigation reports to any guidelines
supporting the Harassment Policy which could further flesh out the required investigative
process. The Harassment Policy merely states that investigators are expected
to meet the requirements as outlined in the Competency Profile for Internal and
External Harassment Investigators and to apply the principles of procedural
fairness.
[40]
In
the absence of a guideline regarding specific procedural fairness guarantees, PWGSC
is required to adhere to the principles previously described in Sketchley
and Baker, above. Here, however, the only aspect of procedural fairness
at issue is the thoroughness of the investigator’s reports.
[41]
In
Slattery, above, Justice Nadon, then of this Court, considered the
content of the duty of fairness in the context of an investigation of
complaints of discrimination and the decision of the Canadian Human Rights
Commissioner’s (CHRC) to dismiss the complaints. That decision was based on an
investigator’s report which found that the allegations of discrimination were
not founded on the evidence.
[42]
Justice
Nadon addressed the degree of thoroughness required by an investigation as
follows:
[55] In determining the degree of thoroughness
of investigation required to be in accordance with the rules of procedural
fairness, one must be mindful of the interests that are being balanced: the
complainant's and respondent's interests in procedural fairness and the CHRC's
interests in maintaining a workable and administratively effective system. […]
[…]
[56] Deference must be given to administrative
decision-makers to assess the probative value of evidence and to decide to
further investigate or not to further investigate accordingly. It should only
be where unreasonable omissions are made, for example where an investigator
failed to investigate obviously crucial evidence, that judicial review is
warranted. Such an approach is consistent with the deference allotted to
fact-finding activities of the Canadian Human Rights Tribunal by the Supreme
Court in the case of Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554.
[57] In contexts where parties have the legal
right to make submissions in response to an investigator's report, such as in
the case at bar, parties may be able to compensate for more minor omissions by
bringing such omissions to the attention of the decision-maker. Therefore, it
should be only where complainants are unable to rectify such omissions that
judicial review would be warranted. Although this is by no means an exhaustive
list, it would seem to me that circumstances where further submissions cannot
compensate for an investigator's omissions would include: (1) where the
omission is of such a fundamental nature that merely drawing the
decision-maker's attention to the omission cannot compensate for it; or (2)
where fundamental evidence is inaccessible to the decision-maker by virtue of
the protected nature of the information or where the decision-maker explicitly
disregards it.
[43]
Justice
Nadon considered whether the investigation then before the Court was thorough and,
if not, whether the omissions in the report could be corrected by the applicant’s
responding submission. He considered the applicant’s submission that the
investigation was not thorough because some of the witnesses that she had
identified had not been interviewed and because the report contained no
analysis regarding the role played by the section head in harassing the
applicant.
[44]
Justice
Nadon found that the investigator considered all of
the fundamental issues contained in the applicant's complaint, including the
section head's treatment of the applicant. The fact that there was “no analysis
of certain specific allegations in the investigator’s written report or in the
CHRC's reasons for dismissal did not indicate that the allegations were not
considered by the investigator and was not a ground for review.” He further stated
the following:
[69] The fact that the Investigator did not
interview each and every witness that the applicant would have liked her to and
the fact that the conclusion reached by the investigator did not address each
and every alleged incident of discrimination are not in and of themselves fatal
as well. This is particularly the case where the applicant has the opportunity
to fill in gaps left by the investigator in subsequent submissions of her own.
In the absence of guiding regulations, the investigator, much like the CHRC,
must be master of his own procedure, and judicial review of an allegedly
deficient investigation should only be warranted where the investigation is
clearly deficient. […]
[45]
Ultimately,
in Slattery, Justice Nadon concluded that there were no grounds to
review the CHRC’s decision based on a lack of thoroughness in the investigation
or other violation of a rule of procedural fairness. Also see Miller v Canada (Canada Human Rights Commission),
[1996] FCJ No 735 (QL) (TD) at p 201.
[46]
In
the present case, the content of the duty of fairness required that the
investigator conduct a thorough investigation and that the Applicants be given
an opportunity to respond to the preliminary reports. This is similar to the procedure
for initiating and responding to a complaint in the CHRC’s procedure (Potvin,
above, at para 25; Moussa v Canada (Public Service Commission),
2007 FC 884 at para 38). Although here the parties do not have an opportunity
to make further submissions to the delegated manager who makes the ultimate
decision on the complaint, they are permitted to, as the Applicants did, make
further submissions following their review of the preliminary investigation
reports. In my view that aspect of the duty of fairness was met leaving only
the degree of thoroughness employed by the investigator in the context of the
Applicants’ complaints to be considered.
[47]
The
Applicants assert that the investigation was not thorough because the
investigator failed to investigate their core allegation being the manner in
which they were removed from their positions and the source of the authority to
permit that action. It should perhaps be noted, for purposes of clarity, that
the Applicants’ employment with the federal civil service was not terminated.
Nor were they involuntarily deployed to other positions.
[48]
Upon
reviewing the investigation reports and supporting record, I am satisfied that
the investigator considered the Applicants’ allegation that Mr. Miller’s
actions were inconsistent with the obligations which arise out of a federal
public workplace reorganization. That is, the investigator thoroughly
investigated the Applicant’s core complaint of abuse of authority.
[49]
The
Applicants’ original complaint included an allegation, amongst many others,
that Mr. Miller had a “blatant disregard for the rules and regulations
that govern us all with respect to hiring and other HR principles”, “unethical”
staffing processes and that the harassment stemmed from his efforts to remove
them from their AS-01 positions and to restructure the RDGO. The original
complaint contained no reference to any specific legislative provisions in
relation to that allegation.
[50]
The
preliminary investigator’s reports summarized the Applicants’ complaints as
being that Mr. Miller had harassed them by his repeated efforts to remove them
from their substantive positions and transfer them to other positions in order
to facilitate his former assistant joining the RDGO, a patronage appointment.
He had thereby abused his authority by contravening the rules and procedures
governing employment in the public service.
[51]
The
Applicants’ union representative submitted lengthy replies to the preliminary
investigation reports which put forth several submissions. The replies stated
that the investigator had an obligation to inform herself of the staffing
system of the federal public service and that she had several resources
available to her to undertake this task, such as the PWGSC’s Human Resource
Community and the Public Service Commission.
[52]
The
replies also noted that at the request of the investigator, the union representative
had provided an overview of the options available to a manager who wishes to
displace an employee from an indeterminate position (the Memo). However, that
there was no evidence that this document was considered by the investigator. The
replies also note that the investigator did not consider the source of Mr.
Miller’s authority to undertake the changes in the office. Further, that it
was the presence or absence of a paper trial which could have informed the
investigator as to whether Mr. Miller’s actions were appropriate.
[53]
The
Memo, dated March 2, 2010, was attached to the replies. It asserts that while
there are various ways an indeterminate employee can leave or be dismissed from
his or her position, there must be a “paper trail” to support such actions. If
the investigator was not given the documentation to support one of the options
then “she knows from the outset that the actions were outside the law”. The
Memo includes provisions of the PSEA, the FAA and extracts from a document
concerning WFAs and the grievance process from same. In the context of WFAs, it
asserts that management has the right under the FAA to reorganize the delivery
of its services, but that in doing so, new job descriptions must be written,
positions must be classified and new job numbers added to the organizational chart.
In order to determine if Mr. Miller’s actions were appropriate, the
investigator was required to inquire into such documentation.
[54]
The
Memo does not, however, specify the alleged breaches of the provisions of the PSEA
or the FAA by Mr. Miller or Ms. Vick. Nor does it specifically address Mr.
Miller’s authority, in the context of that legislation, to reorganize the
RDGO. It does address the requirements for WFAs. However, the complaints and
the investigation reports make it clear that Mr. Miller was attempting to avoid
a WFA process as he hoped that alternate arrangements could be agreed upon
which would be in the best interest of all concerned, a potential result of a
WFA being the loss of the Applicants’ employment.
[55]
While
it is true that the Memo was not referred to in the investigation reports, the
investigator, whose decision formed the basis for PWGSC’s ultimate decision in
this case (Sketchley, above at para 37) was
not obliged to refer to every piece of evidence and she is presumed to have
reviewed all the evidence (Florea v Canada (Minister of Employment and Immigration),
[1993] FCJ No 598 (QL) (CA); Cepeda-Gutierrez v Canada (Minister of
Citizenship and Immigration), [1998] FCJ No 1425 (QL) (TD) at para 17). It
is also significant that the Memo was provided in response to the
investigator’s request leading to the inference that the investigator was alert
to the Applicant’s view that Mr. Miller lacked authority to restructure the
RDGO as he did and their submissions on the issue. However, as indicated
earlier, the Memo does not specify any breaches of the public service statutory
requirements, policy or rules, and suggests only that a paper trail should have
been generated to substantiate the changes made to the office.
[56]
Further,
the final investigation reports acknowledged that the preliminary reports had
been provided to the parties and that the Applicants, through their union
representative, had provided lengthy responses (which attached copies of the
Memo), but concluded that, as no new evidence was contained in the responses,
no changes were required to the preliminary reports.
[57]
The
investigation reports concerning the complaints against Mr. Miller describe the
evidence considered by the investigation and sufficiently contemplate Mr.
Miller’s authority. A summary description of the pertinent evidence and the investigators
findings follows:
- One
witness, a senior staff member at NHQ, confirmed that he had ongoing
discussions with Mr. Miller over many months concerning his plans to
restructure the office and region;
- Another
witness, a former senior staff at NHQ, stated that there was an inherent
and explicit expectation that Mr. Miller would improve the performance of
the Ontario region and that the office structure would be brought into
alignment with the other regional offices both by re-assigning and
realigning work in order to do so;
- The
investigator refers to an email exchange between two witness dated June
25-July 4, 2007 which predates Mr. Miller’s arrival in the RDGO, and in
which one witness confirms problems with the efficiency and operation of
the RDGO;
- Throughout
the reports, the investigator cites the evidence of several witnesses and
concludes that the Applicants provided no evidence that Mr. Miller had
violated any rules governing public service employment; there was no
defamation, and, that Mr. Miller had the authority to organize the office
in the manner he felt best served the region;
- One
witness reported that he advised Mr. Miller to be transparent and to keep
the staff informed of his plans as they evolved. He states the goal was
to implement a sensible and effective structure. The witness states that
Mr. Miller had expressed concerns that the RDGO was not working well as a
team;
- The
investigator found that Mr. Miller made numerous ongoing efforts to assist
the Applicants in coming to terms with the changes and to locate
comparable positions for them which they declined. The investigator found
that these efforts were neither bullying nor attempts to threaten them;
- Mr.
Miller indicated that his mandate was to rebuild and overhaul a region
which had an unfortunate history as he noted that there were serious
issues in some of the regions and that Ontario had the most significant
challenges. Considerable latitude was given by the Deputy and the
Associate Deputy to the RDGs to carry out their tasks;
- Mr.
Miller’s evidence was that he had continuing discussions with the Regional
Executive Committee, the RDG’s NHQ HR Staff including the ADM, and the
Associate Deputy Minister concerning the plans for rebuilding and
improving the Region and the RDGO in particular. Feedback and suggestions
that he received were incorporated into subsequent iterations of the
plan. A mandate to implement his proposal was implicit in those
discussions, and through an email to him from the NHQ Director General,
Human Resources Policies and Programs in June of 2008.
[58]
The
investigation reports concerning the complaints against Ms. Vick also described
the evidence considered by the investigator which included Ms. Vick’s evidence
that Mr. Miller was entitled to re-structure and re-assign staff and that his
actions were not in contravention of any policy or rules governing the public
service.
[59]
The
investigation report concerning Ms. Betts’ complaint against Ms. Vick addressed
the allegation that Ms. Vick had effectively harassed her by failing to provide
copies of policies and regulations governing public service employment and
re-assignment. Ms. Vick had directed Ms. Betts to the
Treasury Board and department websites as well as a PWGSC “Policy 005” which
detailed the process to be followed for organizational change. The
investigation report lists Policy 005 and the email from Ms. Vick
providing some of the requested information and referring Ms. Betts
to websites where more information concerning her inquiry could be obtained. The
fact that the investigator referred to this documentation confirms that she was
aware of and considered it.
[60]
The
investigator concluded that all of the policies and procedures regarding
assignments and organizational changes were available to all employees on the
departmental intranet or Treasury Board websites to which Ms. Betts had been
directed. Therefore, it was not reasonable to suggest that Ms. Vick had
withheld information. The investigator also found that Mr. Miller acted within
the departmental Policy 005, regarding organizational change.
[61]
The
investigator also considered the complaint against Ms. Vick which concerned her
responsibilities in connection with Mr. Miller’s arranging of work assignments
for Ms. Betts in other units. The summary of Ms. Vick’s evidence indicated
that she advised the Applicants that management had a right to re-organize how
work is done and she explained that it was “Classification at headquarters”
which would make decisions about new jobs.
[62]
In
all of the reports, the investigator considered and concluded that Mr. Miller
had acted within his authority and noted that there was no evidence that his
actions contravened the policy regarding public service employment. The investigator
found that Mr. Miller had the authority to assign work particularly where there
were changes in the organizational structure and that it was not uncommon for
senior level managers to transfer in a trusted administrative professional to a
vacant position which was what occurred in this case. Mr. Miller had a different
expectation of the work to be performed than had his predecessor. Further, RDGs
across the country were engaged in discussions about the level of support needed
and the structure of the RDGOs.
[63]
Based
on this and as stated above, I am satisfied that the investigator considered the
Applicants’ allegation that Mr. Miller’s actions were inconsistent with the
obligations which arise out of a federal public workplace reorganization. That
is, that she did investigate the Applicant’s core complaint of abuse of
authority and concluded that it was unfounded.
[64]
The
Applicants also submit that the investigation was not thorough because the investigator
failed to address their submission that a paper trail supporting the
restructuring should have been generated and investigated (Busch, above).
According to the Applicants, the investigation seems to simply have accepted at
face value Mr. Miller’s explanation of his authority rather than investigating
this issue further (Gravelle, above).
[65]
The
investigator’s duty of thoroughness does not require it to interview every
person proposed by a complainant (Miller, above, at para 10; Slattery,
above at para 69). The investigator must simply ensure that all fundamental
issues raised in the complaint have been dealt with in the report (Batemen v
Canada (Attorney General), 2008 FC 393 at para 29). The investigator also
has a duty to consider crucial evidence (Slattery, above).
[66]
Given
that the investigator concluded, based on the evidence, that Mr. Miller’s interactions
with the Applicants for the purpose of assisting them in alternate placements
did not constitute harassment, the existence of a “paper trail” to demonstrate
Mr. Miller plans to reorganize the RDGO is, in my view, not crucial evidence in
these circumstances. The investigator found that there was evidence to
indicate that there were plans to reorganize the office.
[67]
The
investigator undertook a thorough analysis of all the evidence submitted by the
Applicants, Mr. Miller and numerous witnesses. The evidence was that
operational problems at the RDGO pre-existed Mr. Miller’s appointment. Further,
that the reassignment of some work tasks which Mr. Miller
implemented, such as ATIP work, had been under discussion for a considerable
period of time before Mr. Miller assumed the RDG position. Similarly, that the
restructuring of the RDGOs to improve their effectiveness had also been
discussed before Mr. Miller assumed the RDG position. And, that there was an
expectation that when he assumed that position that Mr. Miller would take steps
to improve the efficiency of the office. This supported the investigator’s
finding that his actions taken to affect the restructuring were validly founded
and did not constitute harassment. Put otherwise, that they were done in good
faith.
[68]
Therefore,
as there was evidence of an intent to restructure the office pre-dating Mr.
Miller’s arrival, even if the investigator had made the further inquiries that
the Applicants’ wish and even if a breach of any statutory or policy requirement
was discovered as a result, this would not have changed the outcome. As Mr.
Miller’s actions were not motivated by bad faith and did not constitute
harassment, a “paper trail” of the restructuring plan was not, therefore, obviously
crucial evidence that the investigator was under an obligation to undertake,
but failed to pursue.
[69]
In
my view, there was therefore no breach of procedural fairness as the
investigator did investigate the issue that the Applicants identified as its
core allegation and addressed the substance of their complaint, the essence of
which was that Mr. Miller had harassed them and abused his authority in
removing them from their positions. There was no omission in the investigation
nor was it clearly deficient. In my view, the investigator did not fail to
consider obviously crucial evidence.
[70]
As
to the investigations against Ms. Vick, the Applicants’ claims are primarily
centred on the allegation of abuse of authority by Mr. Miller and Ms. Vick’s
alleged enabling of that abuse. Therefore, and for the reasons set out above, the
investigations of Ms. Vick’s actions also met the content of procedural
fairness.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application for judicial review is
dismissed.
“Cecily Y. Strickland”
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