Date:
20130214
Docket: A-366-12
Citation: 2013 FCA 36
CORAM: SHARLOW
J.A.
TRUDEL
J.A.
WEBB
J.A.
BETWEEN:
DWIGHT W. GASKIN
Applicant
and
CANADA REVENUE AGENCY
and
PUBLIC SERVICE LABOUR
RELATIONS BOARD
Respondents
REASONS FOR JUDGMENT
TRUDEL J.A.
[1]
This
is an application for judicial review by Mr. Gaskin requesting that the Court
set aside a decision of the Public Service Labour Relations Board (the Board),
dated July 20, 2012 [2012 decision]. In the decision under review (2012 PSLRB
76), the Board dismissed Mr. Gaskin’s complaint under sections 133 and 147 of
the Canada Labour Code, R.S.C., 1985, c. L-2 (the Code) that the Canada
Revenue Agency’s (CRA) decision of October 31, 2011 to terminate him was a
retaliatory measure which violated his rights to occupational health and safety
as provided for under Part II of the Code.
[2]
Mr.
Gaskin’s circumstances were not new to the Board. In the 2012 decision, the
Board notes that "the facts relating to the reasons for the alleged
retaliation … remain the same as those already considered and decided by the
[Board]" in 2008 (at paragraph 9). The 2008 decision is reported at 2008
PSLRB 96 and also dismisses Mr. Gaskin’s complaint. The main difference between
the two proceedings lies in the event that triggered the complaints: in 2008,
it was the CRA’s decision to take Mr. Gaskin off the list of employees on sick
leave as of August 8 (as he had exhausted his sick leave credits) whereas in
2012, it was his termination from employment.
[3]
To
better understand Mr. Gaskin’s position, it is useful to provide a brief
overview of Part II of the Code, which deals with occupational health and
safety. The stated purpose of Part II "is to prevent accidents and injury
to health arising out of, linked with or occurring in the course of employment
[to which Part II of the Code applies]" (see section 122.1). Sometime in
the fall of 2007 and on the basis of section 128, Mr. Gaskin refused to work,
alleging violence in the workplace and an unsafe work environment (p. 200 of
applicant’s record). Mr. Gaskin advanced these allegations while he was facing
personal and family related issues relating to the custody of and access rights
to his children. Mr. Gaskin also requested an investigation into possible
criminal conduct by certain individuals. Mr. Gaskin is of the view that the
supervisors with whom he shared his concerns about the well-being of his
children, the lifestyle of their mother, and other various difficulties he
encountered during proceedings in the family division of the Superior Court,
did nothing to respond to these concerns including notifying the proper
authorities. As a result, he argues that the employer did not discharge its
contractual and other legal obligations to protect him and his children. He
asserts that this “failure to protect”
constitutes a violation of the state’s obligations and responsibilities under
domestic and international law. These allegations form the basis of Mr.
Gaskin’s refusal to work and of what he describes as the substance of his
occupational health and safety complaint.
[4]
Mr.
Gaskin argues that his complaint under Part II of the Code was met with
retaliation, namely his removal from extended sick leave in 2008 and
termination in 2011. Mr. Gaskin argues that the employer could not take these
measures until his complaint was fully investigated and all his avenues of
redress exhausted, "including under domestic procedure and international
complaint and communication mechanisms" (applicant’s memorandum of facts
and law at paragraph 16).
[5]
Had
an occupational health and safety investigation been held and a report properly
issued following his complaint, the whole matter, he claims, would have turned
out differently. At the hearing of this application, it seems that Mr. Gaskin
was asking this Court to intervene, amongst other reasons, on the basis that
the Board was wrong on two counts: first in not ordering the employer to
investigate his occupational health and safety complaint and report on it, and
second in not waiting for that report before issuing its decision. I wish to
address these particular grounds of complaint before turning to the decision
under review.
[6]
Part
II of the Code lists the procedural steps to be followed once an occupational
health and safety complaint has been filed. Put simply, complaints under Part
II are referred to health and safety officers for investigation (section 129).
In turn, their decisions can be appealed to the Occupational Health and Safety
Tribunal Canada (the Tribunal) to be considered by Appeals Officers designated
by the Minister of Labour. The Tribunal exercises the functions of an
administrative tribunal and although its decisions are final and binding, they
may be subject to judicial review by the Federal Court pursuant to section 18.1
of the Federal Courts Act, R.S.C., 1985, c. F-7. This is not the
scenario that brings the parties to our Court. We are not sitting in appeal of
a decision of the Federal Court concerning the process for adjudicating the
workplace health and safety concerns of Mr. Gaskin. Rather, we are reviewing a
decision of the Board regarding Mr. Gaskin’s allegations of retaliation
by the CRA in light of his complaint relating to workplace health and safety
filed pursuant to sections 133 and 147 of the Code. This type of complaint is
properly in front of the Board. Indeed, subsection 133(1) of the Code provides
that:
|
133. (1) An
employee, or a person designated by the employee for the purpose, who alleges
that an employer has taken action against the employee in contravention of
section 147 may, subject to subsection (3), make a complaint in writing to
the Board of the alleged contravention
[Emphasis
added.]
|
133.
(1) L’employé — ou la personne qu’il désigne à cette fin — peut, sous réserve
du paragraphe (3), présenter une plainte écrite au Conseil au motif
que son employeur a pris, à son endroit, des mesures contraires à l’article
147
[Je
souligne.]
|
[7]
As a result, I find that
Mr. Gaskin is wrong when he alleges that the Board “failed in the
responsibility to exercise its jurisdiction and failed to discharge its legal
obligation and duty to act” (application for judicial review at paragraph (d)).
[8]
This being said, I move on
to the 2012 Decision that is properly before us. While Mr. Gaskin’s notice of
application includes numerous and vague allegations grounded in very diverse
elements of the law, I have identified two issues to be analysed: (1) whether
the Board denied Mr. Gaskin due process and erred in finding that an oral
hearing was not required to determine the issues in the complaint; (2) whether
it erred in finding that the complaint (a) established no prima facie
case for the exercise of a right under section 147 of the Code and (b) was moot
in light of the Board’s 2008 Decision.
Procedural fairness
[9]
In his application, Mr. Gaskin takes the position that the
Board denied him both due process and a fair hearing. Under section 41
of the Public Service Labour Relations Act, S.C. 2003, c. 22, s.2, the
Board is vested with the discretion to determine matters without an oral
hearing. In this case, the Board determined that it
was possible to decide the matter on the basis of the record. I fail to see how
that decision deprived Mr. Gaskin of the opportunity to present his case and
have a decision made using a fair, impartial and open process (Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 28), particularly given
this complaint appears identical to the complaint considered in 2008, but for
the circumstances underpinning the employer’s decision.
[10]
In its
reasons, the Board explained its decision not to hold
a hearing and stated that it had reviewed all of the documents on the record as
well as the 2008 Decision. It also noted that although invited to provide a
response to the respondent’s request for summary dismissal of the complaint,
Mr. Gaskin did not reply (2012 Decision at paragraph 3).
[11]
I adopt here the reasoning of our Court in Boshra v.
Canadian Association of Professional Employees, 2011 FCA 98 at paragraph 9
where it was found that “it is not for a reviewing court to substitute its
exercise of discretion for that of the Board. Judicial intervention on the
ground of procedural fairness is only warranted where an oral hearing is
necessary to provide a reasonable opportunity for parties to effectively make
their case or to answer that against them”. Mr. Gaskin’s case does not meet
these requirements.
Section 147 of the Code and the issue of mootness
[12]
Section 147 of the Code
prohibits employers from taking reprisal actions against an employee who has
exercised a right pertaining to workplace health and safety matters protected
in the Code:
|
147. No employer
shall dismiss, suspend, lay off or demote an employee, impose a
financial or other penalty on an employee, or refuse to pay an employee
remuneration in respect of any period that the employee would, but for the
exercise of the employee’s rights under this Part, have worked, or take any
disciplinary action against or threaten to take any such action against an
employee because the employee
(a) has
testified or is about to testify in a proceeding taken or an inquiry held
under this Part;
(b) has
provided information to a person engaged in the performance of duties under
this Part regarding the conditions of work affecting the health or safety of
the employee or of any other employee of the employer; or
(c) has
acted in accordance with this Part or has sought the enforcement of any of
the provisions of this Part.
[Emphasis
added.]
|
147. Il
est interdit à l’employeur de congédier, suspendre,
mettre à pied ou rétrograder un employé ou de lui imposer une sanction
pécuniaire ou autre ou de refuser de lui verser la rémunération afférente à
la période au cours de laquelle il aurait travaillé s’il ne s’était pas
prévalu des droits prévus par la présente partie, ou de prendre — ou menacer
de prendre — des mesures disciplinaires contre lui parce que :
a)
soit il a témoigné — ou est sur le point de le faire — dans une poursuite
intentée ou une enquête tenue sous le régime de la présente partie;
b)
soit il a fourni à une personne agissant
dans
l’exercice de fonctions attribuées par la présente partie un renseignement
relatif aux conditions de travail touchant sa santé ou sa sécurité ou celles
de ses compagnons de travail;
c) soit
il a observé les dispositions de la présente partie ou cherché à les faire
appliquer.
[Je souligne.]
|
[13]
The Board
determined that the applicant failed to establish a prima facie case for
exercising any rights protected by section 147 of the Code. It noted that, in
2008, the Board determined that paragraphs 147(a) and (b) did not
apply to Mr. Gaskin. The only question was whether, pursuant to paragraph 147(c),
the CRA’s actions constituted a reprisal because the complainant was exercising
a right to refuse to work in light of his health and safety concerns protected
by section 128 of the Code. On the evidence, it found that the applicant was
not exercising a valid right to refuse to work, and the CRA’s actions could not
be considered a reprisal.
[14]
In the
current proceedings, the Board determined that the decision to terminate the
complainant’s employment was an extension of the decision to place the
applicant on leave without pay. As Mr. Gaskin brought forward no new grounds or
reasons nor any new exercise of a protected right to bring his complaint within
the parameters of section 147, the findings of the previous decision applied to
the current proceedings, and the question was moot.
[15]
Having
carefully examined the record, I conclude that the Board could reasonably
conclude as it did in relying on the 2008 Decision, which provided detailed
reasons setting out the facts and the law relating to the dispute. The
applicant did not meet the requirements of a protected right to refuse to work,
and never contacted the CRA as to his status or his intention to return to
work.
[16]
Although Mr. Gaskin’s
complaints against his employer are numerous, they remain vague and do not
identify the danger that prevented him from attending to his responsibilities
in the workplace. Indeed, at the hearing of this application, Mr. Gaskin was
unable to show the link between the asserted danger and his employer, but for
the alleged duty of the CRA to get involved in his personal life and to protect
him and his children.
Conclusion
[17]
For these reasons, I
propose to dismiss Mr. Gaskin’s application for judicial review with costs.
"Johanne
Trudel"
“I
agree
K. Sharlow J.A.”
“I
agree
Wyman W. Webb J.A.”
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