Date:
20101221
Docket: A-17-10
Citation: 2010 FCA 355
CORAM: LÉTOURNEAU
J.A.
NADON
J.A.
TRUDEL
J.A.
BETWEEN:
CHARLOTTE RHÉAUME
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
TRUDEL J.A.
Introduction
[1]
This is an
appeal from a decision of Justice Robert Mainville, J.A. (the judge), then of
the Federal Court, dated December 16, 2009 (2009 FC 1273). The judge
dismissed Ms. Rhéaume’s application for judicial review of the decision of
an adjudicator, who had dismissed her grievance filed on January 21, 2002,
under the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the
Act), for lack of jurisdiction.
[2]
The
appellant submits that the judge made a number of errors in fact and in law justifying
the intervention of this Court. I disagree.
Relevant facts
[3]
The
factual background set out in the judgment under appeal provides us with the
following information:
•
In 2001,
the appellant was working for the Canada Customs and Revenue Agency, now, for
the revenue component, the Canada Revenue Agency (the Agency or the employer). She
occupied the PM-2-level position of enquiries officer and was a member of the Public
Service Alliance of Canada.
•
Following
an administrative reorganization, she was assigned to a new position, namely
that of reviewing officer, another PM-2-level position, in Tax Services. Since
her new tasks were very different, the appellant, while continuing to receive
her PM-2 salary, was temporarily assigned to a training plan that involved
performing PM-1-level tasks.
•
Feeling aggrieved
by this new assignment, and with the support of her union, the appellant filed
a grievance on January 21, 2002. Her grievance went through the three
levels of the grievance process and was eventually dismissed on
February 2, 2004, in a decision of the Assistant Commissioner of the
Agency’s Human Resources Branch.
•
The union
refused to refer the grievance to adjudication before the Public Service Labour
Relations Board.
[4]
However,
the appellant decided to refer the grievance to adjudication herself. To do so,
she referred three grievances to adjudication, relying on subsection 92(1)
and section 99 of the Act.
[5]
Further to
the Agency’s preliminary objections, the adjudicator dismissed the grievance
for lack of jurisdiction, hence the application for judicial review before the Federal
Court and the appellant’s alternative request to be allowed, out of time, to
apply for judicial review of the final decision dated February 2, 2004.
[6]
As to the
reference under section 99 of the Act, the judge upheld the adjudicator’s
conclusion that the appellant could not seek this remedy reserved exclusively for
employers and bargaining agents. The appellant is not appealing that
conclusion.
Issues
[7]
In her
notice of appeal, the appellant makes no fewer than 20 criticisms of the
judge. She proposes seven issues, all of which revolve around three themes:
(1) the
standard of review applicable to the adjudicators’ decision, which according to
the appellant is that of correctness;
(2) the
adjudicator’s error, upheld by the judge, that the grievance was invalid under
paragraphs 92(1)(a), (b) and (c) of the Act;
(3) her alternative
request.
(a) Standard of review
[8]
As
prescribed in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190
(at paragraph 64), the judge performed an analysis to identify the proper
standard of review. He then wrote at paragraph 42:
[42] Considering the
nature of the labour relations scheme established by the statute in question
and the legal issues raised, I consider that the adjudicator’s decision should
be reviewed on the standard of reasonableness. In any event, as I will point
out later, the adjudicator’s decision is not only reasonable but also correct
from all points of view. Accordingly, although, in my view, the standard of
review of reasonableness applies in this case, I would reach the same
conclusions by applying the correctness standard. [Emphasis added.]
[9]
This
finding of the judge makes deciding between the parties’ positions unnecessary
since he was satisfied that the adjudicator’s decisions met both the standard
of correctness and that of reasonableness. I therefore do not intend to
comment further on the judge’s standard of review analysis. The Court will
consider this issue another time.
Relevant legislation
[10]
To better
grasp the appellant’s submissions concerning the two other references, it is
worth reproducing subsections 92(1) and 92(2) of the Act.
|
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.
(2) Where a grievance that may be
presented by an employee to adjudication is a grievance described in
paragraph (1)(a), the employee is not entitled to refer the
grievance to adjudication unless the bargaining agent for the bargaining
unit, to which the collective agreement or arbitral award referred to in that
paragraph applies, signifies in the prescribed manner its approval of the
reference of the grievance to adjudication and its willingness to represent
the employee in the adjudication proceedings.
|
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.
(2) Pour pouvoir renvoyer à l’arbitrage
un grief du type visé à l’alinéa (1)a), le fonctionnaire doit
obtenir, dans les formes réglementaires, l’approbation de son agent
négociateur et son acceptation de le représenter dans la procédure d’arbitrage.
|
References under subsection 92(1) of
the Act
[11]
References
under paragraph 92(1)(c) concern references to adjudication in
cases of disciplinary action resulting in, among other things, termination of
employment.
[12]
In that
respect, the appellant argues that the exhibits attached to her grievance [translation] “show the sequence of the
employer’s actions, which led to her demotion and her constructive dismissal,
covered up as a workforce adjustment” (appeal book at page 107). The
adjudicator and the judge therefore erred in not accepting her grievance under
this paragraph.
[13]
The judge
examined this argument (see paragraph 46). He stated that neither a close
reading nor a broad and generous interpretation of the grievance supported such
a conclusion:
. . . The grievance
concerns administrative reorganization, lack of training, the contested
assignment of duties, requests for priority for other positions, and so on. The
corrective measures requested are of the same type. This is not a grievance
about constructive dismissal, and the adjudicator’s decision in this respect is
not only reasonable but also correct.
[14]
I see no
error here warranting the Court’s intervention.
[15]
At the
hearing before this Court, it was very clear that, as the adjudicator had noted
at paragraph 9 of his reasons, the substance of the appellant’s grievance
concerned the application of the Workforce Adjustment Policy, an integral part
of the collective agreement reached between the Agency and the Public Service
Alliance of Canada for the Program Delivery and Administrative Service group,
of which Ms. Rhéaume was a part (appellant’s book of authorities, tab 6,
appendix E).
[16]
In
reality, the grievance concerns the interpretation or application in respect of
the appellant of a provision of a collective agreement, as described at
paragraph 92(1)(a), above. Any grievance under that paragraph must
be approved by the bargaining agent. The appellant admits that she did not
receive such an approval. Moreover, she did not refer a grievance under that
provision. The judge therefore did not err in finding that the conditions of
paragraph 92(1)(a) had not been satisfied.
[17]
The
appellant also alleged that she had been unjustly dismissed under
paragraph 92(1)(b), which applies only to designated public
servants.
[18]
She has
not satisfied me that the judge erred in finding that the appellant was not
covered by that paragraph. No more has she satisfied me that the judge erred in
upholding the decision of the adjudicator, who wrote at paragraph 13:
In the second reference to adjudication, dated March 16,
2004, the grievor added “[translation] constructive dismissal, demotion and
work force adjustment” to section 15 of the referral form. None of those topics
are discussed in the grievance. Therefore, none of those topics can be raised
during adjudication. By raising them, the grievor has in fact submitted a new
grievance or significantly altered the grievance already filed. In accordance
with the principles set out in Burchill v. Attorney General of
Canada, [1981] 1 F.C. 109 (C.A.),the adjudicator
must deal with the grievance as originally filed and cannot consider a
grievance the essence of which has been changed.
(b) Alternative request
[19]
The
decision of whether or not to grant an extension of time is an exercise of
discretion. Upholding the
principles that guide this exercise, the judge found that the application had
to fail for the reasons set out at paragraphs 50 to 59 of his decision. Again, I can see no error.
Conclusion
[20]
The
appellant is asking the Court to exercise its discretion by not awarding any
costs against her. Counsel for the respondent has no mandate to agree to this
request. He claimed costs in his memorandum.
[21]
Having
considered the factors and other discretionary powers of the Court in awarding
costs (see section 400 of the Federal Courts Rules, SOR/98-106), I
find there is no basis for allowing the appellant’s request.
[22]
Therefore,
I propose to dismiss the appeal with costs.
“Johanne
Trudel”
“I
agree.
Gilles Létourneau J.A.”
“I
agree.
M. Nadon J.A.”
Certified
true translation
Johanna
Kratz
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