Date: 20120208
Docket: A-23-11
Citation: 2012 FCA 44
CORAM: EVANS
J.A.
TRUDEL
J.A.
STRATAS
J.A.
BETWEEN:
ZABIA CHAMBERLAIN
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
Introduction
[1]
This is an
application for judicial review by Zabia Chamberlain, a long-time employee in
the federal public service. Ms Chamberlain requests the Court to, among other
things, set aside a decision of the Public Service Labour Relations Board
(Board), dated December 13, 2010, and remit the matter to a different member of
the Board for re-determination. The decision under review is reported as Chamberlain
v. Treasury Board, 2010 PSLRB 130.
[2]
In that
decision, the Board dismissed aspects of Ms Chamberlain’s complaints. All her
complaints allege that the employer had taken reprisal action against her for
exercising her rights under Part II of the Canada Labour Code, R.S.C.
1985, c. L-2 (Code).
[3]
In his
capacity as an Adjudicator, the Board member who decided the complaints also
considered grievances brought by Ms Chamberlain arising from essentially the
same factual matrix. The Adjudicator only had jurisdiction over the grievances
if they concerned serious disciplinary action by the employer, including the
imposition of a financial penalty. Finding that he had no jurisdiction to hear
Ms Chamberlain’s grievances, the Adjudicator dismissed them. His reasons can be
summarized as follows.
[4]
The
grievances did not allege that the employer had taken any disciplinary action
against her contrary to paragraph 209(1)(b) of the Public Service
Labour Relations Act, S.C. 2003, c. 22, s. 2. Moreover, even if they did,
Ms Chamberlain had not provided prima facie evidence of disciplinary
action that would have given him jurisdiction to hear her grievances.
[5]
Despite
some overlap in the subject matter of the grievances and complaints, the
present application for judicial review concerns only the Board’s decision
dismissing the complaints. The statutory provisions referred to in these
reasons are included in an Appendix.
Decision under review
[6]
The Board
has jurisdiction under section 240 of the Public Service Labour Relations
Act to hear complaints under Part II of the Code. This includes sections
133 and 147 which provide that employees may complain that an employer has
taken reprisal action against them for, among other things, reporting
conditions at work that might endanger employees’ health and safety, and
seeking to enforce a provision of Part II of the Code.
[7]
The Board
first considered Ms Chamberlain’s complaint that, in the e-mails she sent to
the Senior Assistant Deputy Minister on April 22 and May 25, 2008, she had
stated that she refused to work because her work environment was unsafe, and
that reprisals had been taken against her for invoking this right under section
128 of the Code.
[8]
The Board
rejected this argument. It concluded that Ms Chamberlain could not rely on the
e-mails for this purpose because they did not specifically state that she was
refusing to work, and she did not refer to the Code. Further, she had continued
to work until the end of May 2008. Accordingly, the Board dismissed the
complaints concerning her right to refuse to work because Ms Chamberlain had
not given the employer the notice required by subsection 128(6).
[9]
However,
the Board took the view that the e-mails could also be construed as alleging a
violation of section 124 of the Code, which requires employers to ensure that
employees’ health and safety at work are protected. The Board referred to the
Adjudicator’s finding in the grievance hearing that Ms Chamberlain had adduced
no evidence that the employer had taken any disciplinary action against her,
including the imposition of a financial penalty. Similarly, the Board held that
there was no evidence that the employer had taken reprisals against her as a
result of the e-mails of April 22 and May 25, 2008, at least until the date of
the grievance. All four complaints could therefore be dismissed in so far as
they relate to those e-mails.
[10]
The Board
also held that it had no jurisdiction to deal with the complaints because they
were time-barred by subsection 133(2) of the Code. This provides that a
complaint may be made under section 133 within 90 days of the action allegedly
giving rise to it. The first complaint was filed with the Board on April 23,
2009, a year after the e-mail of April 22, 2008, and eleven months after the
e-mail of May 25, 2008.
[11]
Nonetheless,
recognizing the confusing way in which Ms Chamberlain had framed her complaints
to the Board, the Board did not stop there. It considered that the complaints
could also be taken to allege that the employer’s failure to accommodate her
health needs constituted reprisal action following the invocation of her right
under section 124 of the Code to a safe workplace, and the employee’s duty
under section 126 to report safety concerns.
[12]
However,
because of the limitation period in subsection 133(2), the Board only had
jurisdiction to deal with allegations of reprisals for invoking a right under
the Code that occurred less than 90 days before the filing of the first
complaint on April 23, 2009.
[13]
Accordingly,
the Board ordered that a hearing would be scheduled to hear the merits of the
complaints, but only in so far as they alleged that the employer had taken
reprisals against Ms Chamberlain after January 23, 2009, as a result of the
exercise of her rights under the Code.
Issues and analysis
[14]
Although
Ms Chamberlain stated often at the hearing that the Board’s decision was wrong
and unreasonable, and its procedures were unfair, she found it difficult to be
more precise. Nor do her extensive written submissions point specifically to
errors of law or fact allegedly made by the Board that would engage this
Court’s powers on judicial review.
(i) procedural fairness
[15]
A
principal basis of her allegation that the Board denied her a fair opportunity
to present her case and to answer that against her seems to be that the Board
declined to issue summonses to witnesses whom Ms Chamberlain wished to call to
give evidence. At the start of the hearing, the employer objected to summonses
issued to four individuals. Two were not available to attend, Ms Chamberlain
agreed that the summons issued to the third be quashed, and the Board ruled
that a fourth person had no evidence to give that was relevant to the
jurisdictional issues that the Board had to decide. The Board made it clear
that, when the jurisdictional issues had been resolved, the question of
summonses to these and other witnesses could be revisited at a hearing on the
merits of the complaints.
[16]
In my
view, these rulings did not deny Ms Chamberlain her right to a fair opportunity
to put her case before the Board on whether it had jurisdiction to entertain
her complaints.
[17]
I can
appreciate that Ms Chamberlain did not expect that the five days scheduled for
the Board hearing would be taken up entirely with the jurisdictional issues
raised by the employer. I can also well appreciate that this may have caused
her to be confused and frustrated. However, she agreed that neither she nor
counsel assisting her asked the Board to explain any aspect of the procedure
that she did not understand, nor did the employer’s objections to the Board’s
jurisdiction take her by surprise. I see no basis here for impugning the
fairness of the Board’s procedure.
[18]
Ms
Chamberlain also says that the Board was not impartial. The basis of this
allegation is not altogether clear, though during the hearing Ms Chamberlain
reiterated that: the Board did not refer to many of the documents and prior
decisions that she had placed before it; gave closer attention to the
jurisprudence relied on by the employer; and made findings with which she disagrees.
[19]
The fact
that Ms Chamberlain may not agree with the Board’s conclusions on issues, with its
assessment of the relevance of the material before it, or with its selection of
the material that it included in its reasons, comes nowhere near to
establishing that a reasonable person, who had thought the matter through in a
practical way, would infer that the Board had not adjudicated Ms Chamberlain’s
complaints fairly.
(ii) substantive errors
[20]
I am not
persuaded by Ms Chamberlain’s written or oral submissions that the Board
committed any reviewable error of law or fact. She emphasized at the hearing that,
in finding no evidence of any reprisal by the employer, the Board relied too
heavily on the facts found by the Adjudicator in dismissing her grievances,
namely the absence of prima facie evidence that the employer had
disciplined Ms Chamberlain for invoking her rights under the Code.
[21]
In the
context of this case, there are substantial similarities between the concepts
of reprisal and discipline, and the evidence pertaining to them. Accordingly,
in my view it was not unreasonable for the Board to have given significant
weight to the findings on the grievances when making analogous findings on the
complaints.
[22]
I would
only add that the reasons given by the Board indicate that, despite the
voluminous and confusing nature of Ms Chamberlain’s submissions, it dealt fully
and fairly with her complaints and the issues that they raised.
Conclusion
[23]
For these
reasons, the application for judicial review will be
dismissed with costs.
“John
M. Evans”
“I
agree
Johanne
Trudel J.A.”
“I
agree
David
Stratas J.A.”
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