Date:
20090827
Docket: A-368-08
Citation: 2009 FCA 254
CORAM: LÉTOURNEAU
J.A.
PELLETIER
J.A.
RYER J.A.
BETWEEN:
FREDERICK JAMES TOBIN
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
INTRODUCTION
[1]
This
appeal concerns the status and effect of rules of conduct promulgated by the
employer in the federal public service. In particular, the appeal raises the
question of how such rules apply to criminal convictions of public servants
employed by the Correctional Service of Canada (the CSC).
[2]
The
appellant, Mr. Tobin, was dismissed by the CSC after he pleaded guilty to
criminal harassment of a woman he met in the course of his duties for the CSC. In
reasons reported as 2007 PSLRB 26 (Decision), an adjudicator appointed under
the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 reinstated
Mr. Tobin on the ground that, since the conduct giving rise to the criminal
conviction was off duty conduct, the employer had not met the burden of showing
that it was entitled to discipline the employee. On the CSC’s application for
judicial review, Mr. Justice Campbell, the applications judge, set aside the adjudicator’s
decision and sent the matter back for redetermination in accordance with the
legal principles set out in his reasons. This is an appeal from that decision.
FACTS
[3]
A brief
summary of Mr. Tobin’s occupational history is found at paragraph 35 of the applications
judge’s reasons, reported as 2008 FC 740, [2008] F.C.J. No. 932 (“Reasons”), as
follows:
35
Mr. Tobin's substantive position at the
time his employment was terminated was that of a Consultative Psychologist
(PS-03) at the Regional Treatment Centre [RTC] which is part of a maximum
security penal institution in Kingston,
Ontario. Mr. Tobin commenced employment with the
CSC in 1988, and since that time has primarily worked as the Program Director
at the Female Behavioural Unit. For the period ending in 2000, Mr. Tobin acted
in several positions, including Acting Deputy Executive Director of the RTC and
acting Deputy Warden of the Prison for Women.
[4]
At the
time of his dismissal, Mr. Tobin was acting Deputy Warden, Correctional Operations,
at the Collins Bay Institution. He was dismissed on May 7, 2004, after he
pleaded guilty on April 28, 2004 to criminal harassment of HM [the female
victim] by threatening conduct contrary to section 264 of the Criminal Code.
Mr. Tobin was originally charged in an indictment alleging six counts
including, in addition to the offence to which he pleaded guilty, the offences
of uttering death threats, unlawful confinement, intimidation on a highway,
criminal harassment by watching and besetting, and sexual assault. As a result
of Mr. Tobin’s guilty plea, the Crown did not proceed on the other counts.
[5]
According
to the Agreed Statement of Facts put before the Court at the time of
sentencing, the circumstances of the offence were as follows. In 2001, HM obtained
a Social Services work placement with Corrections Canada where she was
supervised by Mr. Tobin. A short time later, Mr. Tobin, who was married, and HM
become involved in an intimate relationship. After a few months, Mr. Tobin’s
overly-possessive and manipulative behaviour led HM to attempt to end the
relationship on a number of occasions. Finally, as a result of a specific
incident involving other employees, HM decided to break off the relationship
for good. This led to a series of repeated, unwanted telephone calls from Mr.
Tobin, some of which resulted in messages of a degrading nature being left on
HM’s answering machine. As a result of these calls, HM decided to leave her
home and to spend the night at her parent’s house. En route, she met Mr. Tobin going
in the opposite direction, toward her home. Mr. Tobin turned his car around,
pursued HM and eventually caught up with her. Due to Mr. Tobin’s aggressive
driving, HM thought it necessary for her safety to pull into a parking lot,
where Mr. Tobin followed her. At the sentencing hearing, the Court was advised
that the following facts, put to the Court by the prosecutor, were admitted:
The two
remained in their respective automobiles, and spoke to one another, before
proceeding across the lot to a strip mall on [street name]. The accused
approached her vehicle, and proceeded to berate, degrade, and otherwise
totally, verbally abuse the victim [HM] for a period estimated by [HM] to be
close to two hours – during which time she was crying, and fearful of her
safety.
After
repeated demands that she accompany the accused into his car, and after
consistent refusals, the victim finally relented, and got into his vehicle –
being fearful of what he would do, if she continued to resist.
The accused
proceeded to […] Conservation Area, stopping first at Tim Horton’s
drive-through. HM testified that, during the drive, Tobin threatened to kill
her, and that she was fearful for her life …that her life was in danger, when
they arrived at [the Conservation Area].
After approximately
one hour at [the Conservation Area], the victim decided to try to pacify the
accused by agreeing with his efforts and demands – this in an effort to … not
to enrage him further. She finally convinced the accused that she wanted to get
together with him and that she loved him. This appeared to satisfy him, and he
then returned her to her vehicle …
THE COURT: Do
you agree with that statement of fact, Mr. Smith?
MR. SMITH: Sir,
for the purposes of the plea, those facts are admitted as substantially
correct.
Appeal Book,
pages 101 – 106
[6]
Mr. Tobin
was given a suspended sentence and placed on probation for a period of eighteen
months, subject to a number of conditions, including a prohibition on the
possession or ownership of firearms for a period of five years.
[7]
When it
became known that Mr. Tobin had been arrested and charged with several criminal
offences, the CSC suspended him from his duties. He was then reinstated, though
in a different position, pending the disposition of the criminal charges. After
his guilty plea, he was suspended once again and then dismissed, as of the date
of the post-conviction suspension. Mr. Tobin grieved his dismissal. As noted,
his grievance was successful and he was ordered reinstated, but that order was
set aside following the CSC’s application for judicial review.
EMPLOYMENT IN THE PUBLIC SERVICE
[8]
Before
reviewing the adjudicator’s decision, it may be useful to review some of the
provisions governing discipline of employees in the public service and, in
particular, employees of the CSC.
[9]
The
starting point is the Financial Administration Act, R.S.C. 1985, c. F-11
(the FAA), which deals with the organization of the Government of Canada. The
FAA establishes the Treasury Board, a committee of cabinet supported by a
secretariat, which acts as the central agency in relation to a number of the
functions of government. For present purposes, the relevant provisions of the
FAA (as of May 7, 2004, the date of Mr. Tobin’s dismissal) are the following:
|
7. (1) The Treasury Board may act for the Queen’s
Privy Council for Canada on all matters relating to
(a) general administrative policy in the public service of
Canada;
(b) the organization of the public service of Canada or any
portion thereof, and the determination and control of establishments therein;
…
(e) personnel management in the public service of Canada,
including the determination of the terms and conditions of employment of
persons employed therein;
11.(2)
Subject to the provisions of any enactment respecting the powers and
functions of a separate employer but notwithstanding any other provision
contained in any enactment, the Treasury Board may, in the exercise of its
responsibilities in relation to personnel management including its
responsibilities in relation to employer and employee relations in the public
service, and without limiting the generality of sections 7 to 10,
…
(f) establish standards of discipline in the public
service and prescribe the financial and other penalties, including
termination of employment and suspension, that may be applied for breaches of
discipline or misconduct, and the circumstances and manner in which and the
authority by which or whom those penalties may be applied or may be varied or
rescinded in whole or in part;
|
7. (1) Le Conseil du Trésor peut agir au nom
du Conseil privé de la Reine pour le Canada à l’égard des questions suivantes
:
a) les grandes orientations applicables à
l’administration publique fédérale;
b) l’organisation de l’administration publique
fédérale ou de tel de ses secteurs ainsi que la détermination et le contrôle
des établissements qui en font partie;
[…]
e) la
gestion du personnel de l’administration publique fédérale, notamment la
détermination de ses conditions d’emploi;
11. (2) Sous réserve des seules dispositions de tout
texte législatif concernant les pouvoirs et fonctions d’un employeur
distinct, le Conseil du Trésor peut, dans l’exercice de ses attributions en
matière de gestion du personnel, notamment de relations entre employeur et
employés dans la fonction publique :
[…]
f) établir
des normes de discipline dans la fonction publique et prescrire les sanctions
pécuniaires et autres y compris le licenciement et la suspension,
susceptibles d’être appliquées pour manquement à la discipline ou pour
inconduite et indiquer dans quelles circonstances, de quelle manière, par qui
et en vertu de quels pouvoirs ces sanctions peuvent être appliquées,
modifiées ou annulées, en tout ou en partie;
|
[10]
These provisions establish that
the Treasury Board has the responsibility for the organization of the public service,
that it exercises the functions of the employer in employer/employee relations
in the public service, and that it may establish standards of discipline for
members of the public service. Since the disciplinary standards in question
here were created by the Commissioner of Corrections (the Commissioner), it is
necessary to identify the provisions by which the Treasury Board’s authority to
promulgate such standards was delegated to the Commissioner. That authority is
found in section 12 of the FAA:
|
12.
(1)
The Treasury Board may authorize the deputy head of a department or the chief
executive officer of any portion of the public service to exercise and
perform, in such manner and subject to such terms and conditions as the
Treasury Board directs, any of the powers and functions of the Treasury Board
in relation to personnel management in the public service and may, from time
to time as it sees fit, revise or rescind and reinstate the authority so
granted.
|
12. (1) Le Conseil du Trésor peut, aux
conditions et selon les modalités qu’il fixe, déléguer tel de ses pouvoirs en
matière de gestion du personnel de la fonction publique à l’administrateur
général d’un ministère ou au premier dirigeant d’un secteur de la fonction
publique; cette délégation peut être annulée, modifiée ou rétablie à
discrétion.
|
[11]
The CSC is a department, as
defined in section 2 of the FAA, because it is named in column I Schedule I.1
of the Act:
|
"department"
means
(a) any of the departments named in Schedule I,
(a.1) any of the divisions or branches of the public
service of Canada set out in column I of Schedule I.1,
…
|
«ministère »
a) L’un des ministères mentionnés à l’annexe I;
a.1) l’un des secteurs de l’administration publique
fédérale mentionnés à la colonne I de l’annexe I.1;
…
|
[12]
The Treasury Board authorization
referred to in subsection12(1) of the FAA has been given effect in section 50
of the Public Service Terms and Conditions of Employment Regulations which
are Appendix A to the Treasury Board Terms and Conditions of Employment
Policy:
|
50. Subject to any
enactment of the Treasury Board, a deputy head may:
- establish standards of discipline
1.
for
employees;
2.
for
persons occupying teacher and principal positions in the department of Indian
and Northern Affairs, and
- prescribe, impose and vary or rescind, in whole or in
part, the financial and other penalties, including suspension and
termination of employment, that may be applied for breaches of discipline
or misconduct.
|
50. Sous
réserve de tout édit du Conseil du Trésor, l'administrateur général peut :
- établir des normes de conduite
1.
à
l'égard des employés;
2.
à
l'égard des personnes occupant un poste de professeur ou de directeur d'école
au ministère des Affaires indiennes et du Nord, et
2.
prescrire, imposer, modifier ou annuler, en tout ou en partie, les pénalités,
d'ordre financier ou autre, y compris la suspension et le licenciement
susceptibles d'être appliquées pour infraction à la discipline ou inconduite.
|
|
|
[13]
The Commissioner’s status and
powers are set out in the Corrections and Conditional Release Act, S.C.
1992, c. 20 (the Corrections Act):
|
6. (1) The Governor
in Council may appoint a person to be known as the Commissioner of
Corrections who, under the direction of the Minister, has the control and
management of the Service and all matters connected with the Service.
…
97.
Subject to this Part and the
regulations, the Commissioner may make rules
(a)
for the management of the
Service;
(b) for the matters described in section 4; and
(c) generally for carrying out the purposes and provisions
of this Part and the regulations.
…
|
6. (1) Le gouverneur en conseil nomme le
commissaire; celui-ci a, sous la direction du ministre, toute autorité sur le
Service et tout ce qui s’y rattache.
[…]
97. Sous réserve de la présente partie et de
ses règlements, le commissaire peut établir des règles concernant :
a) la gestion du Service;
b) les questions énumérées à l’article 4;
c) toute autre mesure d’application de cette partie
et des règlements
[…]
|
|
|
98. (1) The Commissioner may designate as
Commissioner’s Directives any or all rules made under section 97.
|
98. (1) Les règles
établies en application de l’article 97 peuvent faire l’objet de directives
du commissaire.
|
|
|
|
|
[14]
It was not disputed before the applications
judge, nor before us, that the Commissioner is a deputy head of a department.
[15]
The Commissioner has exercised
his delegated authority by promulgating Commissioner’s Directive No. 060 dated
March 30, 1994, which includes the Code of Discipline, one element of
which is in issue in these proceedings. Article 3 of the Commissioner’s
Directive provides as follows:
|
3. Employees of the
Service are responsible for adhering to the Standards of Professional
Conduct. Arising from the Standards of Professional Conduct are a number of
specific rules that employees of the Correctional Service of Canada are
expected to observe. Some examples of infractions are given in a list below
each specific rule. These lists are not exhaustive.
|
3. On s'attend à ce
que les employés du Service respectent les Règles de conduite
professionnelle. Des règles de conduite professionnelle découlent un certain
nombre de règles précises que les employés du Service correctionnel du Canada
doivent observer. Une liste d'exemples d'infractions se trouve sous chaque
règle précise. Ces listes ne sont pas exhaustives.
|
[16]
The specific rule in issue in
this appeal has been described as Standard 2, which is a reference to the
Standard of Professional Conduct which gives rise to the rule. That Standard
reads as follows:
Standard 2
CONDUCT AND APPEARANCE
Behaviour, both on
and off duty shall reflect positively on the Correctional Service of Canada and on the
Public Service generally. All staff are expected to present themselves
in manner that promotes a professional image, both in their words and in their
actions. Employee dress and appearance while on duty must similarly convey
professionalism, and must be consistent with employee health and safety.
Discussion and Relevance
The way in which
employees speak and present themselves is an important part of a professional
Correctional Service. We lead by example. As role models for offenders, staff
are responsible for setting high standards which offenders can respect and
emulate. The use of abusive language, showing discourteousness towards other
people and disrespect for their views, or other such behaviour will encourage
offenders to act in the same manner, and so create an environment that is
unfavourable to healthy interaction. Staff must take care, both on and off
duty, to present themselves as responsible law-abiding citizens.
Employees who commit
criminal acts or other violations of the law, particularly if the offences are
repeated or serious enough to result in imprisonment, do not demonstrate the
type of personal and ethical behaviour considered necessary in the Service. Accordingly,
any employee who is charged with an offence against the Criminal Code or
against other federal, provincial or territorial statutes must advise his or
her supervisor before resumption of duties.
(emphasis added)
Appeal Book,
pages 152 – 153
[17]
The corresponding rule in the
CSC Code of Discipline, CSC/SCC 1-11 (R-94-02) (Standard 2) [Code of
Discipline] is as follows:
Conduct and
Appearance
6. Behaviour, both
on and off duty, shall reflect positively on the Correctional Service of
Canada and on the Public Service generally. All staff are expected to present
themselves in a manner that promotes a professional image, both in their
words and in their actions. Employees dress and appearance while on duty must
similarly convey professionalism, and must be consistent with employee health
and safety.
Infractions
An employee has
committed an infraction, if he or she:
…
c) acts, while on
or off duty, in a manner likely to discredit the Service;
d) commits an
indictable offence or an offence punishable on summary conviction under
any statute of Canada or of any province or territory, which may bring
discredit to the Service or affect his or her continued performance with the
Service;
|
Conduite
et apparence
6. Le comportement d'une personne, qu'elle soit de service ou non,
doit faire honneur au Service correctionnel du Canada et à la fonction
publique. Tous les employés doivent se comporter de façon à rehausser l'image
de la profession, tant en paroles que par leurs actes. De même, lorsqu'ils
sont de service, leur apparence et leurs vêtements doivent refléter leur
professionnalisme et être conformes aux normes de la santé et de la sécurité
au travail.
Infractions
Commet une infraction l'employé qui :
[…]
c) se conduit d'une
manière susceptible de ternir l'image du Service, qu'il soit de service ou
non;
d) commet un
acte criminel ou une infraction punissable sur déclaration sommaire de
culpabilité en vertu d'une loi du Canada ou d'un territoire ou d'une
province, risquant ainsi de ternir l'image du Service ou d'avoir un effet
préjudiciable sur le rendement au travail;
|
(emphasis added)
[18]
The use of the term “Standard
2” to refer to the infractions c) and d) of section 6 of the Code of
Discipline can lead to ambiguity. For the purposes of these reasons, I
will reserve the use of the phrase Standard 2 to refer to the article of
Standards of Professional Conduct which is entitled “Standard 2 – Conduct and
Appearance”. I will use the expression Disciplinary Infraction to refer to the
infractions listed at paragraphs c) and d) of article 6 of the Code of
Discipline. Where I wish to refer to both the Standards of Professional
Conduct and the Code of Discipline, I will refer to the Commissioner’s
Standards.
[19]
While
the employer has the right to establish rules of conduct and to discipline
those who breach those rules, the exercise of that disciplinary power is
subject to review. The Public Service Staff Relations Act, the
legislation in place at the time of Mr. Tobin’s dismissal and which, by virtue
of section 61 of the Public Service Modernization Act, S.C. 2003, c. 22
continues to apply to the adjudication of his dismissal, provides that:
|
92.
(1)
Where an employee has presented a grievance, up to and including the final
level in the grievance process, with respect to
(a) the interpretation or application in respect of the
employee of a provision of a collective agreement or an arbitral award,
(b) in the case of an employee in a department or other
portion of the public service of Canada specified in Part I of Schedule I or designated
pursuant to subsection (4),
(i)
disciplinary action resulting in suspension or a financial penalty, or
(ii)
termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial
Administration Act, or
(c) in the case of an employee not described in paragraph
(b), disciplinary action resulting in termination
of employment, suspension or a financial penalty,
and the grievance has not been dealt with to the
satisfaction of the employee, the employee may, subject to subsection (2),
refer the grievance to adjudication.
93. The Board
shall assign such members as may be required to hear and adjudicate on
grievances referred to adjudication under this Act.
|
92. (1) Après l’avoir porté jusqu’au dernier
palier de la procédure applicable sans avoir obtenu satisfaction, un
fonctionnaire peut renvoyer à l’arbitrage tout grief portant sur :
a) l’interprétation ou l’application, à son endroit,
d’une disposition d’une convention collective ou d’une décision arbitrale;
b) dans le cas d’un fonctionnaire d’un ministère ou
secteur de l’administration publique fédérale spécifié à la partie I de
l’annexe I ou désigné par décret pris au titre du paragraphe (4), soit une
mesure disciplinaire entraînant la suspension ou une sanction pécuniaire,
soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la
gestion des finances publiques;
c) dans les autres cas, une mesure disciplinaire
entraînant le licenciement, la suspension ou une sanction pécuniaire.
93. La Commission désigne,
en tant que de besoin, les commissaires pour entendre et juger les griefs
renvoyés à l’arbitrage en application de la présente loi.
|
[20]
The grievance process referred
to section 92 is the grievance process provided in the Collective Agreement
between the employer and the union which represents the employee’s bargaining
unit. In this case, the bargaining unit is the Health Services Group and the
union is the Professional Institute of the Public Service of Canada. There is
no dispute that the procedures provided for in the Collective Agreement were
complied with and that Mr. Tobin’s dismissal was properly referred for
adjudication pursuant to section 92 of the Public Service Staff Relations
Act.
THE ADJUDICATOR’S DECISION
[21]
Mr. Tobin was informed of his
dismissal by means of a letter, which is reproduced in full below:
Correctional Service Canada
Ontario Region
May 7, 2004
Mr. Fred Tobin
[Address]
Dear Mr. Tobin:
I have completed a full
review of the Plea and Sentencing document along with the Administrative Review
conducted in 2002. I have also taken your comments from our meeting of April
28, 2004, into consideration.
As indicated by your
union representative on May 4, 2004, you have pled guilty to engaging in
threatening conduct directed at [HM], thereby causing [HM] to reasonably, in
all the circumstances, fear for her safety, and you did thereby, commit an
offence contrary to section 264(2)(d) of the Criminal Code of Canada. You
are on record as accepting responsibility for your actions in relation to this
conviction and have been imposed a suspended sentence and eighteen months
probation by the Court.
You have contravened
Standard 2 – Conduct and Appearance of the Code of Discipline and the
Standards of Professional Conduct:
-Acts, while
on or off duty, in a manner likely to discredit the Service;
-Commits an indictable
offence or an offence punishable on summary conviction under any statute of Canada or any
province or territory, which may bring discredit to the Service or affect his
or her continued performance with the Service.
In making my decision, I
have concluded that the behaviour you have demonstrated is incompatible with
the duties you were required to perform as a Psychologist and with the
behaviour expected of the Correctional Service of Canada.
You have brought the
Correctional Service of Canada into disrepute in the eyes of the public, the
staff and offenders, and the trust and confidence that you were once afforded
have been irrevocably damaged.
I have taken into
account your years of service and your disciplinary record; however, this does
not mitigate the seriousness of your actions. Therefore, based on the foregoing
and in accordance with the Financial Administration Act, Section 11(2), you are
hereby advised that your employment with the Correctional Service of Canada is
terminated effective April 23, 2004.
Yours sincerely,
[signed]
Nancy L. Stableforth
Deputy Commissioner, Ontario
Cc: PIPSC
Appeal
Book, pages 197-198
[22]
Mr. Tobin grieved his
dismissal; his grievance was submitted for adjudication. The adjudicator found
that since Mr. Tobin’s dismissal was for off-duty conduct, and since a proven
link with the workplace had not been established, the behaviour in question was
beyond the CSC’s control and therefore “any discipline imposed for that
off-duty behaviour cannot stand.” (emphasis added): see paragraph 109 of the Decision.
The adjudicator ordered Mr. Tobin reinstated without loss of pay or benefits.
[23]
The adjudicator’s analysis
proceeded on the basis of an agreement between counsel that, since the conduct
in question was off-duty conduct, the test to be met was that set out in Millhaven
Fibres Ltd. v. Oil, Chemical & Atomic Workers International Union, Local
9-670, [1967] O.L.A.A. No. 4, (“Millhaven Fibres”) a case involving
a private sector dispute governed by the terms of the collective agreement between
the parties.
[24]
The adjudicator
considered each of the five Millhaven Fibres factors which he framed as
follows:
1 ) Did Mr. Tobin’s conduct harm the
CSC’s reputation and has his criminal conviction rendered his conduct
injurious to the general reputation of the CSC and employees working at
the CSC?
2) Did Mr.
Tobin’s behaviour render him unable to perform his duties satisfactorily?
3) Has Mr.
Tobin’s behaviour led to refusal, reluctance, or inability of other CSC employees
to work with him?
4) Has Mr.
Tobin been guilty of serious breach of the Criminal Code?
5) Did
Mr. Tobin’s conduct place difficulty in the way of CSC properly carrying out its
function of efficiently managing its work and efficiently directing its workforce?
[25]
The adjudicator
found that the employer had not satisfied the five factors. In regard to the
first factor, he held that proof of injury to reputation would require proof of
the state of CSC’s reputation both before and after the events giving rise to
Mr. Tobin’s dismissal, as well as proof that any deterioration in that
reputation, was due to Mr. Tobin’s conduct. He also found that there was no
evidence that Mr. Tobin’s ability to do his job had been impaired. The adjudicator
found that “strong objective evidence” would be required to convince him “that
Mr. Tobin would be treated as a pariah were he to be reinstated.” (Decision at
paragraph 101). As for the issue as to whether or not Mr. Tobin committed a
serious criminal offence, the adjudicator noted that there was a joint submission,
which was accepted by the Court, that an appropriate sentence would be a
suspended sentence and 18 months probation. He concluded from this that Mr.
Tobin had not committed a serious criminal offence. Finally, the adjudicator
found that there was no evidence of any work-performance issues in the period
between Mr. Tobin’s initial suspension and the date of his dismissal.
[26]
On the basis of this analysis,
the adjudicator concluded as follows:
109 As I
stated earlier, there must be some proof that the criteria in Millhaven
Fibres apply, as, generally speaking, employers have no authority over what
employees do outside their working hours. Employers must prove some link
between events that occur during off-duty hours and the workplace. I do not
believe, in the facts before me, that the employer has proven that a link
exists. As stated earlier, absent that essential link, Mr. Tobin’s off-duty
behaviour is beyond the CSC’s control and any discipline imposed for that
off-duty behaviour cannot stand.
[27]
The employer, represented by
the Attorney General of Canada, applied for judicial review of the Decision.
THE FEDERAL COURT DECISION
[28]
The Attorney General’s
application for judicial review of the Decision alleged it was a patently
unreasonable decision: see Appeal Book, page 75. Mr. Justice Campbell, the applications
judge, allowed the application for judicial review.
[29]
When the matter first came
before the applications judge, he raised, on his own motion, the issue of the
appropriate standard against which to assess Mr. Tobin’s conduct. The applications
judge inquired as to “why was Mr. Tobin’s conduct not considered according to
the Commissioner’s Standards?” (Reasons at paragraph 4) as opposed to the
standard found in the arbitral jurisprudence, namely the test articulated in Millhaven
Fibres. Since the parties had agreed to proceed on the latter basis before
the adjudicator, the applications judge’s inquiry caught both parties by
surprise. The applications judge adjourned the matter for further submissions
on this issue. In his response, the Attorney General argued that the
appropriate standard by which to assess Mr. Tobin’s conduct was the Commissioner’s
Standards, thereby taking a position at odds with the position he had taken
before the adjudicator. Mr. Tobin maintained his previous position that the Millhvaven
Fibres test applied.
[30]
After having considered the
parties’ submissions, the applications judge indicated that he would proceed on
the basis that the Commissioner’s Standards applied and not the Millhaven
Fibres test. In his view, the issue of the correct standard against which
to assess Mr. Tobin’s conduct was of such fundamental importance that the use
of the wrong standard would result in a miscarriage of justice. However, in
light of the Attorney General’s change in position, he found that Mr. Tobin
should be allowed his costs of the application for judicial review, in any
event of the cause. This then was the first error which the applications judge
identified in the adjudicator’s decision.
[31]
Turning to the merits of the
case, the applications judge reviewed the legislative provisions dealing with
personnel management in the public service and, in particular, to the
management of the workforce of the CSC. He found that the Commissioner’s authority
to make rules relating to conduct and discipline derived from section 97 of the
Corrections and Conditional Release Act, S.C. 1992, c. 20.
[32]
The applications judge then
dealt with Mr. Tobin’s argument that the Commissioner’s Directive was
administrative in nature and therefore, as a matter of law, was not binding on
the adjudicator. Mr. Tobin’s argument rested on the decision in Martineau v.
Matsqui Institution, [1978] 1 S.C.R. 118, a case arising under the first
version of the Federal Courts Act, R.S.C. 1985, c. F-7 where the Court’s
jurisdiction excluded decisions or orders of an administrative nature. In
addition, Mr. Tobin argued that since the delegation of authority to the
Commissioner was made pursuant to Treasury Board Terms and Conditions of
Employment Policy, the result was merely policy and therefore did not have
the force of law. The applications judge dealt with this argument at some
length and rejected it on the basis that “the intent of the legal regime
described above, and in particular the function of the Employment Policy,
considered in the context of a need to establish enforceable rules of conduct
for CSC employees, provides authority to the Commissioner to achieve this
result” (Reasons at paragraph 27).
[33]
The applications judge then
reviewed the facts and the CSC’s decision. The applications judge also found
that the adjudicator erred in failing to properly apply the evidence. The
substance of his reasoning on this issue is found in the following passage
taken from his Reasons at paragraph 48:
48 … As a
result, the first consideration that the Adjudicator should have directed his
mind to is the evidence used to support Mr. Tobin’s termination, and whether
that conduct “harms” the CSC’s reputation since this is exactly what Ms.
Stableforth found. Instead of doing this, the Adjudicator found that Mr.
Tobin’s off-duty conduct was irrelevant. It appears that his finding is based
in his conclusion, expressed in paragraph 88 that he required evidence from
some source that would somehow create the opinion he was required to form and
express. This is a misapprehension of duty. It is only the Adjudicator who can
form the opinion through use of his or her own knowledge and analytical
ability. No proof of loss of public respect is necessary to reach a conclusion.
That is, whether the public’s confidence in, and respect for, the CSC will be
diminished if Mr. Tobin is not terminated is not a matter of proof; it is a
matter of judgment, correctly, fairly and reasonably applied.
[34]
The applications judge went on
to find that the legal questions raised by Mr. Tobin’s dismissal were outside
the adjudicator’s expertise, relying on paragraph 60 of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 [Dunsmuir]:
60
As mentioned earlier, courts must also continue
to substitute their own view of the correct answer where the question at issue
is one of general law "that is both of central importance to the legal
system as a whole and outside the Adjudicator's specialized area of
expertise" (Toronto (City) v. C.U.P.E.,
at para. 62, per
LeBel J.). Because of their impact on the administration of justice as a whole,
such questions require uniform and consistent answers. Such was the case in Toronto
(City) v. C.U.P.E., which dealt with
complex common law rules and conflicting jurisprudence on the doctrines of res
judicata and abuse of process issues that are at
the heart of the administration of justice (see paragraph 15, per
Arbour J.).
Reasons
at paragraph 53
[35]
As a result, he held that the
standard of review was correctness and that the adjudicator had erred in law in
his analysis of the applicable principles. In the alternative, the applications
judge found that the adjudicator’s decision was unreasonable as it constituted
a “flawed evidentiary and analytical process” which led to a decision which did
not fall “’within a range of possible, acceptable outcomes which are defensible
in respect of the facts and law.’ (Dunsmuir at paragraph 47)” (Reasons
at paragraph 55). The applications judge set aside the adjudicator’s decision
and referred the matter back for redetermination by a different adjudicator in
accordance with his (the applications judge’s) reasons.
THE
ISSUES
[36]
Counsel for Mr. Tobin frames
the issues in the appeal as follows:
1 - Should the Court have declined to entertain this
argument [the effect of the employer’s standards of conduct]? As this matter
was not raised before the Adjudicator or even in the application for judicial
review, the Court should have declined to entertain this argument.
2- What is the standard of review? The Adjudicator
rendered a decision squarely within the area of his expertise concerning labour
relations and evidentiary matters. As such, the standard of review was
reasonableness simpliciter.
3- Did the Adjudicator err by not treating
the CSC Standard as binding? There is no legal or factual basis to conclude
that the Standard was binding on the Adjudicator in a way that restricted his
jurisdiction.
4- Did the Adjudicator err in
the manner in which he assessed the evidence? The Adjudicator committed no
error in assessing the evidence, particularly in so far as the onus was on the
employer and he was only dealing with whether the evidence supported the
factual assertions made by the employer.
[37]
For the reasons which follow, I think
that the issues are better stated in the following way:
1-
What is
the standard of review of the adjudicator’s decision?
2-
Did the
adjudicator err in choosing to apply the Millhaven Fibres test?
3-
Did the
adjudicator err in his application of the Millhaven Fibres test?
ANALYSIS
1- What is the standard of review of
the adjudicator’s decision?
[38]
The applications
judge’s first
task was to correctly identify the appropriate standard of review of the
adjudicator’s decision: see Dr. Q v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 43.
[39]
The
applications judge acknowledged the Supreme Court’s direction in Dunsmuir
that, generally speaking, an expert tribunal acting within the scope of its
expertise is entitled to deference, that is to say, to have its decision
assessed on the deferential standard of reasonableness. However, the
applications judge found that the two questions which he identified did not
fall within the adjudicator’s expertise since the latter was an expert in
labour relations and not in “complex legal questions such as those which arose
in Mr. Tobin’s grievance.”: see Reasons at paragraph 53. Consequently he
applied the standard of correctness and found that the adjudicator had made
reviewable errors in his analysis.
[40]
In my view, the applications
judge’s assessment of the standard of review was flawed. An adjudicator under
the Public Service Staff Relations Act is not simply an expert in labour
relations but an expert in public service labour relations. I find that the
applications judge defined the adjudicator’s field of expertise too narrowly. The
“complex legal questions” which the applications judge held to be outside the
adjudicator’s expertise were the kind of questions which public service
grievance adjudicators are commonly called upon to decide. I find that the
applications judge erred and that the proper standard of review of the
adjudicator’s decision was reasonableness. The adjudicator was an expert
tribunal acting squarely within his expertise and, to that extent, was entitled
to deference, even on questions of law: see Dunsmuir at paragraph 54.
2- Did the adjudicator err in choosing to
apply the Millhaven Fibres test?
[41]
Mr. Tobin
argues that the applications judge had no right to raise the issue of the
application of the Commissioner’s Standards. It is true that in the traditional
view of the adversarial system, the judge normally deals only with the issues,
which are put before him or her by the parties. That said, there must be some
room for the courts to intervene where the parties’ characterization of an
issue creates a risk of deforming the law. That was the case in Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982
where the case reached the Supreme Court without any of the parties having
raised or discussed the issue determining the standard of review. The Supreme
Court nonetheless proceeded to deal with the issue, acknowledging that it had
not been fully argued before it, on the basis that the question was a
prerequisite to the disposition of the case:
The
certification of a "question of general importance" is the trigger by
which an appeal is justified. The object of the appeal is still the judgment
itself, not merely the certified question. One of the elements necessary for
the disposition of an application for judicial review is the standard of review
of the decision of the administrative tribunal whose decision is being
reviewed, and that question is clearly in issue in this case. Reluctant as this
Court is to decide issues not fully argued before it, determining the standard
of review is a prerequisite to the disposition of this case.
Pushpanathan, supra at paragraph 25
[42]
So it is in this case. The
issue raised by the applications judge was a question which was a prerequisite
to the disposition of the case. The adjudicator, perhaps misled by the Attorney
General’s acquiescence, went directly to the issue of off-duty conduct, as
raised in the arbitral jurisprudence, without regard to the context provided by
the CSC’s Standards of Professional Conduct and the Code of Discipline
itself.
[43]
At
paragraph 109 of his Decision, the adjudicator articulated his conclusion as
follows:
… Employers must prove some link
between events that occur during off-duty hours and the workplace. I do not
believe, in the facts before me, that the employer has proven that a link
exists. As stated earlier, absent that essential link, Mr. Tobin’s off-duty
behaviour is beyond the CSC’s control and any discipline imposed for that
off-duty behaviour cannot stand.
[44]
It is
clear from this passage, as it is from the balance of the adjudicator’s
decision, that he viewed the issue before him as whether Mr. Tobin’s criminal
conviction justified any discipline, and not whether the discipline imposed as
a result of Mr. Tobin’s conviction was appropriate in the circumstances. The applications
judge was entitled to raise, as he did, the effect of the Commissioner’s
Standards. Had he failed to do so, the debate before the Court would have proceeded
on an untested premise, namely that the Commissioner’s Standards are irrelevant
in the assessment of the employer’s response to off-duty conduct.
[45]
Having
established that the applications judge had the right to raise the issue of the
standard against which to measure Mr. Tobin’s conduct, the question of which
standard applies remains. Much
of the debate
before the applications judge and before this Court turned on the effect to be
given to the Commissioner’s Standards and specifically whether they were
“binding” on the adjudicator. What “binding” means in this context is not
entirely clear. The function of an adjudicator is to determine if the facts
relied upon by the employer in sanctioning an employee have been established
and, if they have, to assess whether the penalty imposed by the employer is
appropriate.
[46]
The power to
promulgate the Code of Discipline implies the right to assess employee
conduct against the terms of that Code, otherwise it serves no useful purpose.
I reviewed the
links in the chain of delegated authority from the Treasury Board to the
Commissioner of the CSC. If there is a missing link in this chain, it has not
been shown to us. The Treasury Board’s authority to establish standards of
discipline in the public service was delegated to the Commissioner who
exercised it by promulgating the Code of Discipline.
[47]
If the Commissioner has the right
to promulgate the Code of Discipline, then presumably, he or she must
have the right to have employee conduct assessed against the rules set out in
the Code, otherwise they serve no useful purpose. That process cannot be
short-circuited by assuming that since the conduct complained of is off-duty
conduct, another set of rules apply.
[48]
Standard 2 of the Standards of Professional
Conduct, which are intended to be read with the Code of Discipline,
specifically contemplates its application to off-duty conduct. In this case, the
Disciplinary Infraction contemplates that a criminal conviction could be the
object of disciplinary proceedings. The criminal conviction referred to in the Disciplinary
Infraction is not limited to a criminal conviction arising from conduct on the
employer’s premises. Counsel for Mr. Tobin conceded this point. Consequently, the
applicability of the Commissioner’s Standards to off-duty conduct does not
arise in the way in which it did in Millhaven Fibres.
[49]
There may be many reasons why a
criminal conviction raises different issues in the correctional context than it
does in other contexts. The Standards of Professional Conduct specifically
provide that:
The way in which
employees speak and present themselves is an important part of a professional
Correctional Service. We lead by example. As role models for offenders,
staff are responsible for setting high standards which offenders can respect
and emulate (emphasis added)
…
Employees who commit
criminal acts or other violations of the law, particularly if the offences are
repeated or serious enough to result in imprisonment, do not demonstrate the
type of personal and ethical behaviour considered necessary in the Service.
[50]
These issues were raised in the
letter dismissing Mr. Tobin from his employment:
In making my
decision, I have concluded that the behaviour you have demonstrated is incompatible
with the duties you were required to perform as a Psychologist and with the
behaviour expected of the Correctional Service of Canada. (emphasis added)
[51]
In the same way, the Standards of
Professional Conduct and the Code of Discipline deal with conduct which
will bring discredit to the CSC. Having regard to the CSC’s mission, the
assessment of whether a criminal conviction, and the circumstances of that
conviction, will bring discredit to the CSC are factors to be considered in
assessing the appropriateness of the penalty imposed on Mr. Tobin.
[52]
These are important considerations
which have a direct bearing on the issues which were before the adjudicator.
The next adjudicator will have to consider them and give them the weight which
he or she finds appropriate. The failure to consider them, that is, the failure
to apply the Commissioner’s Standards, would be unreasonable. This does not
preclude an adjudicator from concluding that in all the circumstances, the
penalty imposed is not appropriate but that decision would have to be justified
in light of the Standards of Professional Conduct and the Code of Discipline.
[53]
As a result, the adjudicator’s
decision to proceed on the basis of an analysis of the Millhaven Fibres
factors does not withstand review on the standard of reasonableness.
[54]
This conclusion is not affected by
the authorities referred to in Mr. Tobin’s argument. In the context of whether
the Code of Discipline is “binding”, this is not a case in which there
is a conflict between a law and some other official act, where the issue is
whether the official act has a coordinate status with the law. Endicott v. Canada (Treasury Board), 2005 FC 253, relied upon by
Mr. Tobin, is such a case. The issue in this case is simpler: it is whether the
promulgation of the Code of Discipline was an exercise of properly
delegated authority. I have found that it was.
[55]
Similarly, this is not a case
where the outcome turns on the characterization of the product of the delegated
authority as either administrative policy or legal norm. That was the issue in Martineau,
supra, a case decided under the Federal Courts Act, R.S.C. 1985, c.
F-7 at a time when mere “administrative” decisions were excluded from the
Court’s jurisdiction. That distinction no longer has the importance it once
had.
[56]
Finally, I do not accept Mr. Tobin’s
argument that the Code of Discipline represents an unauthorized
infringement on collective bargaining in the public service. Paragraph 11(2)(f)
of the FAA specifically provides the Treasury Board with the authority to
prescribe standards of discipline. That authority has been properly delegated
to the Commissioner. The management rights clause in the collective agreement
specifically preserves those rights which the employer “has not specifically
abridged, delegated or modified” by the collective agreement: see Appeal Book,
page 223. Article 37.01 of the collective agreement, upon which Mr. Tobin
relies in support of his argument, is, on its face, a clause dealing with the
dissemination of information with respect to “departmental standards of
discipline”: see Appeal Book, page 300. It is not our function to interpret the
collective agreement but since the argument has been raised, I would simply
comment that I see nothing in that clause which would compel the conclusion
that departmental standards of discipline must be negotiated.
[57]
As a
result, I conclude that the applications judge was entitled to raise and
consider the question of the appropriate standard by which to assess Mr.
Tobin’s conduct. While one can appreciate how the adjudicator came to decide
that issue as he did, nonetheless it was unreasonable of him to proceed as he
did in light of the explicit language of the Commissioner’s Standards. I would
therefore dismiss the appeal on this ground.
3-Did the adjudicator err in his
application of the Millhaven Fibres test?
[58]
The applications
judge did not limit himself to the question of the appropriate standard but
also examined the manner in which the adjudicator applied the Millhaven
Fibres test. In the Memorandum of Fact and Law filed on his behalf, Mr.
Tobin attempted to justify the adjudicator’s position. As a result, this issue
is also before us.
[59]
One of the issues before the adjudicator was
the question of harm to the employer’s reputation. The adjudicator dealt with
this question as follows:
[89] There is no
evidence of harm suffered by the CSC as a result of Mr. Tobin’s off-duty
behaviour. To arrive at such a conclusion, I would need evidence of the
following:
a) the
CSC’s reputation before the events of July 2002;
b) the
CSC’s reputation following the events of July 2002; and
c) if
there was any deterioration of the CSC’s reputation in the pre- and post-July
2002 period, whether that deterioration was directly attributable to Mr.
Tobin’s off-duty conduct.
[60]
The adjudicator does not specify
the form such evidence should take. There may be a role for direct evidence of
loss of reputation in some circumstances but it was clearly unreasonable for
the adjudicator to set a standard which, for all practical purposes, could
never be met. The reputation of a national institution cannot be measured or
assessed in the same way as the reputation of a person in a community. How did
the adjudicator conceive such evidence might be put before him?
Would it be by way of public opinion surveys? Quite apart from
the issue of cost and the judicious use of public funds, it seems to me that
the design of such surveys would be fraught with difficulties. For example,
how would the employer know to begin the process of collecting evidence of its
reputation before the incidents in question? The idea that the state of the
CSC’s reputation can be gauged with arithmetical precision and that changes in
that reputation can be attributed with certainty to one factor or another is
simply unreasonable.
[61]
The passage which the applications
judge cited from Fraser v. Canada (Public Service Staff Relations Board), [1985] 2 S.C.R. 455 [Fraser]
at paragraph 50 of his Reasons is particularly apposite in this regard. The
issue in Fraser was whether a public servant’s criticism of government
policy resulted in a perception of an impairment of his ability to discharge
his duties as a public servant. The concept of impairment, like the concept of
discredit, is rather elastic. This is what the Supreme Court said:
Turning to impairment
in the wider sense, I am of the opinion that direct evidence is not necessarily
required. The traditions and contemporary standards of public service can be
matters of direct evidence. But they can also be matters of study, or written
and oral argument, of general knowledge on the part of experience public sector
adjudicators, and ultimately of reasonable inference by those adjudicators.
Fraser, supra at
paragraph 48
[62]
The same is true of the question
of whether certain conduct brings the CSC into discredit. The question is one
which calls for the application of common sense and measured judgment. The
adjudicator erred when he reduced it to a question of empirical evidence.
[63]
The second question in respect of
which the adjudicator erred is in the assessment of whether the offence to
which Mr. Tobin pleaded guilty was a serious breach of the Criminal Code.
The adjudicator essentially assessed seriousness by the severity of the penalty
imposed. In Mr. Tobin’s case, the adjudicator found that a suspended sentence
and 18 months probation did not satisfy him that Mr. Tobin committed a serious
breach of the Criminal Code.
[64]
The seriousness of an offence is
assessed according to subjective and objective criteria: see, for example, R.
v. L.M, [2008] 2 S.C.R. 163 at paragraphs 24 and 25. The objective criteria
are normally the maximum punishment which could be imposed on the accused and
the mode of prosecution, that is, by indictment or by summary conviction. In
this case, the offence to which Mr. Tobin pleaded guilty, criminal harassment
by threatening conduct, is a hybrid offence, that is, the Crown may choose to
proceed by indictment or by summary conviction. Proceeding by indictment is
reserved for more serious offences. Where the Crown proceeds by indictment, as
in this case, and the accused is convicted, the maximum punishment is ten
years, which is a significant sentence. The objective criteria are indicative
of the gravity of the offence in the eyes of the legislator who, of course,
does not have any information as to the circumstances of a particular offence.
[65]
The subjective criteria are the
circumstances surrounding the commission of the offence which may either be
either mitigating or aggravating factors. All of the surrounding circumstances
are to be considered, not merely those which are relevant to the count to which
the person has pleaded guilty. In the present case, there were a number of
circumstances which were relevant to the assessment of the subjective gravity
of the offence and which do not appear to have been considered. In his
Decision, at paragraph 80, the adjudicator sets out a lengthy list of factors
which Mr. Tobin argued should be considered as mitigating factors in his case.
The adjudicator did not, at any time, consider a number of factors which could
be considered to be aggravating factors. Such factors could include:
-the nature of the work relationship
between Mr. Tobin and the victim at the material times.
-the persistent refusal of Mr. Tobin to
allow the victim to terminate the relationship.
-Mr. Tobin’s position as a role model for
all offenders, including sexual offenders and offenders with relationship
issues.
-Mr. Tobin’s employment as a consulting
psychologist who could be expected to be aware of the damaging consequences of
his behaviour on the victim.
-the seriousness of the conduct to which
Mr. Tobin admitted at the sentencing hearing.
[66]
The approach adopted by the
adjudicator in this case relied simply on the sentence imposed by the trial
judge following a joint submission from the Crown and the defence. The
adjudicator does not appear to have grasped the significance of the suspended
sentence, the period of probation and the prohibition on the possession of
firearms. The effect of the suspended sentence is that if Mr. Tobin breached
the terms of his probation order, he could be brought back before the Court
which could then impose the sentence, including a period of imprisonment of up
to 10 years, which was appropriate in the circumstances. The Courts have consistently
held that a period of probation is not a “light” sentence. It imposes
restrictions on an offender’s liberty as well as conditions leading to penal
consequences in the case of a breach: see Jayasekara v. Canada (Minister of Citizenship and
Immigration),
2008 FCA 404 at paragraph 54; R v. B. (M.), [1987] O.J. No. 276 (Ont. C.A.). Finally, a prohibition on the
possession of firearms is a condition which, by the terms of section 109 of the
Criminal Code, must be imposed where a person is convicted of an
indictable offence in the commission of which violence
against a person was used, threatened or attempted and for which the person may
be sentenced to imprisonment for ten years or more. These circumstances were
present in the present case and are a further indication of the seriousness of
the offence to which Mr. Tobin pleaded guilty.
[67]
Consequently,
the sentence imposed by the criminal court cannot be treated as a distillation
of the objective criteria and the subjective factors surrounding the offence. The
Criminal Code requires the sentencing judge to take into account factors
which may or may not be relevant in the employment context: see section 718 of
the Criminal Code. It was unreasonable for the adjudicator to limit his
analysis on this issue to the sentence imposed.
[68]
For these reasons, I conclude that
even if one assess the adjudicator’s decision on the basis on which it was
argued before him, that is, the application of the Millhaven Fibres
test, the adjudicator’s decision is unreasonable in two material respects and
cannot stand. I would therefore send the matter back for a new hearing.
CONCLUSION
[69]
I would
dismiss the appeal with costs in this Court to the Attorney General. I would
not disturb the order of costs made by the applications judge.
[70]
I would return the
matter for a re-hearing before a different adjudicator with the following
directions:
a)
the matter is to
proceed on the basis that the Commissioner’s Standard applies to the assessment
of Mr. Tobin’s behaviour and to the assessment of the appropriateness of the
penalty imposed by the employer.
b)
it is open to the
adjudicator to conclude from Mr. Tobin’s conduct and the objective and
subjective factors surrounding his criminal conviction that he brought
discredit to the Correctional Service of Canada, without the necessity of
direct evidence of loss of reputation.
"J.D.
Denis Pelletier"
“I
agree
Gilles
Létourneau J.A.”
“I
agree
C. Michael Ryer J.A.”
Email this Content