Docket: A-91-12
Citation: 2013
FCA 223
CORAM: NOËL J.A.
TRUDEL
J.A.
MAINVILLE
J.A.
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BETWEEN:
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GANDHI JEAN PIERRE
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Applicant
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and
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PUBLIC SERVICE ALLIANCE OF CANADA
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Respondent
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REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
This is an application for judicial review filed
by the applicant, Gandhi Jean Pierre, in respect of a decision of the Public
Service Labour Relations Board (the Board) made by Member Stephan J. Bertrand (Jean-Pierre
v. Arcand, 2012 PSLRB 23).
[2]
The Board dismissed the applicant’s complaint
under section 190 of the Public Service Labour Relations Act, S.C. 2003,
c. 22, s. 2 (the Act). It thereby declined to
find that Pierre Arcand (the respondent before the Board) had acted “in a
manner that is arbitrary or discriminatory or that is in bad faith in the
representation” of the applicant, specifically, in refusing to represent him in
a grievance he had filed after the employer refused to consider his application
regarding a notice of interest for an acting assignment (see section 187
of the Act).
[3]
The dispute between the applicant and the Public
Service Alliance of Canada arose from a very simple sequence of events. I
describe these events here, if only to demonstrate how far a case can escalate
when an applicant is convinced that his point of view represents the only
possible outcome to the dispute and that the failure to recognize this view leads
to the inevitable conclusion that the justice system is corrupt and its
decision-makers are biased and acting in bad faith.
The relevant
facts
[4]
The applicant is an immigration officer at the
Montréal office of Citizenship and Immigration Canada. While the applicant was
on an acting assignment at the Embassy of Canada in Mexico, the Director of Operations
at the Montréal office posted a notice of interest seeking potential applicants
to temporarily staff some acting supervisor positions in Quebec. Interested
applicants had to submit the required documentation before November 18,
2009.
[5]
The applicant learned of this notice through
unofficial channels, specifically, a co-worker, and indicated his interest
before the deadline, although he needed an extension to send in the required
documentation. The applicant finally submitted his duly completed application seven
(7) days after the deadline. This delay was fatal to the application, as
the employer refused to consider it.
[6]
This led the applicant to contact his union
representative. At the outset, a union representative at the national level
determined that, in his opinion, a grievance regarding the employer’s refusal
to consider the applicant’s application had no chance of succeeding because the
notice of interest concerned an acting appointment of less than four
(4) months, for which there is no remedy (see the Public Service
Employment Regulations, SOR/2005-334, at sections 12 to 14).
[7]
However, in the hope of obtaining a settlement
offer from the employer, a grievance simply seeking to have the employer
consider the application was nevertheless filed at the first level of the
employer’s grievance process. The grievance did not contain any allegations of
contempt or discrimination towards the applicant. This grievance was dismissed
and then, at the applicant’s request, taken by the union to the second level of
the grievance process. However, Pierre Arcand advised the applicant that
although the union would not be withdrawing the grievance, it would no longer be
representing him. This led the applicant to file a complaint against Pierre
Arcand for refusing to represent him in a grievance that he has since put on
hold.
The Board’s decision
[8]
After noting that the applicant’s burden of
proof required that he establish that the respondent, Pierre Arcand, had broken
his duty of fair representation, the Board reviewed a few legal principles
underlying its ultimate decision, which was a dismissal of the complaint.
[9]
Among other things, the Board noted that
although an employee is entitled to an appropriate analysis of his or her case,
he or she is not entitled to the most thorough investigation possible (Reasons
of the Board at paragraph 43). Similarly, the Board’s role is to rule on
the bargaining agent’s decision-making process and not on the merits of its
decision (ibid. at paragraph 44, citing Halfacree v. Public
Service Alliance of Canada, 2009 PSLRB 28). Finally, the Board, citing Canadian
Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509, and Noël v.
Société d’énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207,
stated that the threshold for establishing arbitrary conduct—or discriminatory
or bad faith conduct—is purposely set quite high so that bargaining agents are
afforded substantial latitude in representational decisions (ibid. at
paragraph 48).
[10]
Having considered the facts and the evidence
adduced by the parties, the Board then concluded that the applicant had not
discharged his burden of proof. Specifically, the Board wrote:
49 . . .
My examination of the facts and of the evidence submitted by the parties did
not reveal any signs of discriminatory, arbitrary or bad faith behaviour by the
respondent. Nothing that the complainant presented established, on a balance of
probabilities, a violation of section 187 of the PSLRA. The complainant
failed to adduce any independent evidence, documentary or otherwise, proving
that the respondent had previously refused to represent him or a reason for
that refusal. The respondent denied that it had occurred and was not
cross-examined on that issue during his testimony. The complainant did not
adduce any evidence or context to support that allegation.
50 Similarly,
the complainant failed to adduce any independent evidence, documentary or
otherwise, in support of his argument that the respondent colluded with the
employer when he withdrew the bargaining agent’s representation.
51 In
addition, nothing in the evidence presented to me led me to conclude that the
respondent displayed an uncaring or cavalier attitude toward the complainant’s
interests or that he acted misleadingly or maliciously or with personal
hostility. I have no reason to believe that the respondent acted negligently or
that he treated the complainant differently from other employees or that any such
distinction was based on illegal, arbitrary or unreasonable grounds.
52 Moreover,
I find that the respondent was aware of the circumstances of the grievance and
that he possessed all the necessary information to make a decision about the
complainant’s representation at the second level of the process. I am also
satisfied that the respondent examined the circumstances of the grievance,
understood its merits and made an informed decision as to whether the
bargaining agent should continue to represent the complainant. The respondent’s
conclusions did not differ from those of the other two union representatives
involved in the complainant’s case, Mr. Thériault and Mr. Boulanger.
Analysis
[11]
The standard of review that applies to decisions
of the Board regarding fair and equitable representation is reasonableness (Boulos
v. Public Service Alliance of Canada, 2012 FCA 193; Beaulne v. Public
Service Alliance of Canada, 2011 FCA 62, leave to appeal to
S.C.C. refused, 34256 (September 8, 2011); McAuley v. Chalk River
Technicians and Technologists Union, 2011 FCA 156).
[12]
Having carefully analyzed the record, including
the exhibits to which the applicant made specific reference in his argument, I
am satisfied that the Board’s decision falls within a range of “possible, acceptable
outcomes which are defensible in respect of the facts and [the applicable] law”
(Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 47).
Therefore, in my view, there are no grounds for this Court to intervene in
respect of this aspect of the applicant’s application for judicial review.
[13]
I am also of the view that there are no other
grounds for this Court to quash the decision under review and refer the matter
back to the Board for rehearing because of an alleged breach of the principles
of procedural fairness and natural justice. Nothing in the record gives
credence to the applicant’s allegations in this regard.
[14]
That said, I would like to make a few comments
on the applicant’s argument before this Court, the full text of which was filed
in the record at the hearing.
[15]
The applicant took a shot-gun approach,
attacking all the persons involved in his case, beginning with the employer’s
representative, Mr. Vassalo, then turning to the union representatives, Pierre
Arcand and Éric Thériault. Mr. Vassalo was accused of engaging in [translation] “arbitrary, abusive and
disrespectful behaviour” and of abusing his power on multiple occasions, while
the other two, supposedly known for their allegiances to management, unlawfully
represented the applicant when they had no authority to do so. The Public
Service Alliance of Canada (the respondent in the present case) is not left
unscathed by the applicant’s accusations either. The union is accused of
tolerating the irregularities mentioned above and violating its own statutes
and by-laws. Its representatives were guilty of colluding with the employer to
trample on the applicant’s rights and perpetuate the discrimination he had
suffered at the hands of the employer.
[16]
But the worst accusations are reserved for Board
Member Bertrand. According to the applicant, Board Member Bertrand [translation] “analyzed [the evidence]
superficially with a closed mind and a predisposition for the respondent”. He
rendered a decision that was [translation]
“unreasonable, abusive and contrary to the open courts principle” by
rejecting the applicant’s evidence, not discussing all his arguments and
preferring the evidence of the employer or the union representatives. The Board
Member was [translation] “wilfully
blind”. He was hostile and biased in his handling of the evidence and [translation] “betrayed the principles of
justice”. The Board Member even went so far as to [translation] “alter [the applicant’s] entire argument,
suggesting that the argument was short, even immaterial”.
[17]
Convinced that all these accusations are
warranted, the applicant concludes that his fundamental rights under
sections 11 and 15 of the Canadian Charter of Rights and Freedoms,
Part I of the Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (U.K.), 1982, c. 11, [translation] “were deliberately trampled
on by Board Member Bertrand”. The applicant states that this left his [translation] “confidence in the
administration of justice severely shaken”. He is therefore seeking a remedy
through the courts only out of obligation.
[18]
These accusations are very serious, could have
far-reaching implications for the persons involved and cannot be allowed to go
unchallenged, particularly since they have no basis in the evidence or in the
decision of Board Member Bertrand. In this case, it should be noted that Board
Member Bertrand is a member of an independent quasi-judicial tribunal.
[19]
The Board and its decision makers perform “primarily
adjudicative” functions and are expected to observe the standard of
impartiality applicable to courts (Newfoundland Telephone Co. v. Newfoundland
(Board of Commissioners of Public Utilities), [1992] 1 S.C.R. 623 at
paragraph 27). Moreover, the Board requires that its members adhere to a
code of conduct and guidelines associated with this duty of impartiality (see Code
of Conduct and Guidelines for Members of the Public Service Labour Relations
Board (December 19, 2011), online at Public Service Labour Relations
Board < http://pslrb-crtfp.gc.ca/about/codeofconduct_e.asp
>). According to this code, a board member must, among other things,
•
approach every hearing with an open mind with
respect to every issue;
•
listen carefully to the views and submissions of
the parties and their representatives;
•
conduct all hearings expeditiously, preventing
unnecessary delays, while ensuring that all parties have a fair opportunity to
present their case; and
•
explain to an unrepresented party the relevant
evidentiary and procedural rules that have a bearing on the conduct of the proceeding.
[20]
An objective reading of the decision of the
Board Member, who presided over a five-day hearing and carefully reviewed the
file, shows that he formed an opinion on the issues in an impartial and
independent manner. He was under no obligation to address all the applicant’s allegations
of wrongdoing in his reasons. It is important to bear in mind that the Board
Member’s role was to decide a grievance on the basis of the sequence of events
discussed above for which the remedy sought was simply [translation] “that the employee’s application for an
assignment as a supervisor at Inland Processing be considered in accordance
with the criteria set out in the notice of interest dated November 10,
2009” (Respondent’s Record, Volume 1 at page 44). In hearing the case over which he presided, he was allowed to
administer the evidence in accordance with the task assigned to him, that is,
to dispose of the grievance described above.
[21]
Nor can the Board Member be faulted for
preferring the versions of the employer and the union representatives over that
of the applicant, given the contradictory evidence. That was his role as first-instance
decision maker, a role in which he has recognized expertise, hence the
deference owed by this Court to findings of fact made by the Board (Boshra v.
Canadian Association of Professional Employees, 2011 FCA 98 at paragraphs 44,
49).
[22]
In closing, I now turn to the applicant’s
statement that the entire proceeding surrounding his grievance undermined his
confidence in the administration of justice. This is how the applicant sees it.
I can respect that, but I do not share his view in this case.
[23]
In R. v. S. (R.D.), [1997] 3 S.C.R. 484
at paragraph 91, the Supreme Court of Canada notes that
[a]
system of justice, if it is to have the respect and confidence of its society,
must ensure that trials are fair and that they appear to be fair to the
informed and reasonable observer. This is a fundamental goal of the justice
system in any free and democratic society.
[24]
This informed and reasonable observer is not, as
the Supreme Court reminds us in that same case, “a ‘very sensitive or
scrupulous’ person, but rather a right-minded person familiar with the
circumstances of the case” (at paragraph 36).
[25]
Applying this analytical framework, I conclude
that the facts in this case are not at all likely to raise a reasonable
apprehension of bias in a reasonably informed person. In other words, an
informed person, viewing the matter realistically and practically and having
thought the matter through, would not think that it is more likely than not
that the Board Member in this case rendered an unjust decision (Gagliano v.
Canada (Commission of Inquiry into the Sponsorship Program and Advertising
Activities, Gomery Commission), 2011 FCA 217, citing Committee for
Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369).
[26]
I would therefore dismiss that application for
judicial review with costs.
“Johanne Trudel”
“I agree.
Marc Noël, J.A.”
“I agree.
Robert M. Mainville J.A.”
Certified true
translation
Francois Brunet,
Revisor
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