Date: 20100122
Docket:
A-330-08
Citation: 2010 FCA 24
CORAM: NOËL
J.A.
PELLETIER J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
BALKAR SINGH BASRA
Appellant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR
JUDGMENT BY THE COURT
[1]
This
is an appeal from a decision of Pinard J. (the Federal Court Judge) dated May 21,
2008, allowing an application for judicial review and quashing the decision of
the Public Service Labour Relations Board upholding the appellant’s grievance
against his suspension without pay pending an investigation in relation to
criminal charges arising from off-duty conduct, and ordering his reintegration.
[2]
The
Federal Court Judge held that the adjudicator failed to apply the proper test
in determining whether he had jurisdiction to hear the grievance. He further
concluded that in any event, the adjudicator committed a palpable or overriding
error when he held that there was no evidence to support the suspension.
THE FACTS
[3]
The
appellant was a correctional officer with the Correctional Service of Canada
(CSC or the employer) at Matsqui Institution in Abbotsford, British Columbia.
[4]
The
CSC was informed by letter dated March 24, 2006 that the appellant was charged
with sexual assault pursuant to section 271 of the Criminal Code, R.S.C.
1985, c. C-46. The letter was sent to CSC by P.A. Insley, Information and
Privacy Coordinator/Crown Counsel, Criminal Justice Branch, Ministry of the
Attorney General of British Columbia.
[5]
In
addition to the attached information (indicating that the Crown had elected to
proceed by indictment) the letter provided the following information:
The following is a
synopsis of the allegations which led to the charge noted above:
According to the Police
report, Mr. Basra first had contact with the complainant through a chat line.
They eventually met for an evening of drinking and clubbing. On the second
meeting the couple were at Mr. Basra’s house having a few drinks before going
out for dinner. After a few sips of the third drink which Mr. Basra made for
her, the complainant began to fade, feeling unfocused and hazy. She awoke the
next morning naked on Mr. Basra’s bed. She was unable to remember most of the
previous evening after the point of sipping the third drink.
Reportedly, Mr. Basra
gave the complainant a false name; however, the police were able to locate him
from the complainant’s cell phone records. When questioned by the police, Mr.
Basra denied having had sex with the complainant or even knowing her and
refused to give a DNA sample. A DNA warrant was obtained and Mr. Basra’s DNA
was found to match an exhibit taken from the complainant
[Emphasis
by the respondent]
[6]
On
April 3, 2006, the CSC suspended the appellant without pay pending the
completion of a disciplinary investigation. The letter advising the appellant
of this measure reads (Reasons of the adjudicator, para. 13):
…
This is to advise that
you are hereby suspended indefinitely without pay effective immediately,
pending the completion of a disciplinary investigation, which has been convened
to establish the facts surrounding your involvement in the allegation that you
have contravened the Correctional Service of Canada’s Standard of Professional
Conduct.
Information received
from the Crown Counsel, Ministry of Attorney General this date advises you have
been charged with sexual assault under Section 271 of the Criminal Code of
Canada.
During this period of
suspension you are not to enter CSC premises without the permission of the
Warden or his representative.
You will be contacted by
the investigating manager in due course.
…
[7]
The
two officers charged with the investigation followed the criminal proceedings
by attending the courthouse in Surrey, British Columbia, to monitor the proceedings.
[8]
The
appellant grieved his suspension, characterizing it as a disciplinary
suspension pursuant to paragraph 209(1)(b) of the Public Service
Labour Relations Act, enacted by section 2 of the Public Service
Modernization Act, S.C. 2003, c. 22 (the PSLRA):
|
209. (1) An employee may refer to
adjudication an individual grievance that has been presented up to and
including the final level in the grievance process and that has not been
dealt with to the employee’s
satisfaction if the grievance is related to
…
(b) a disciplinary action resulting in
termination, demotion, suspension or financial penalty;
…
|
209. (1) Après
l’avoir porté jusqu’au dernier palier de la procédure applicable sans avoir
obtenu satisfaction, le fonctionnaire peut renvoyer à l’arbitrage tout grief
individuel portant sur :
[…]
b) soit une mesure
disciplinaire entraînant le licenciement, la rétrogradation, la suspension ou
une sanction pécuniaire;
[…]
|
[My emphasis]
[9]
The
grievance was heard before adjudicator Paul Love (the adjudicator) who held
that the suspension was initially an administrative suspension but became
disciplinary after one month, and that a disciplinary suspension was not
justified in the circumstances. The adjudicator ordered the appellant
reinstated to his position effective May 3, 2006, with back pay, full benefits
and interest.
[10]
A
judicial review application was brought by the respondent against his decision.
The Federal Court Judge granted the application on two grounds. First, he held
that the adjudicator erred in assuming jurisdiction over the grievance without
applying the proper test. In particular, he found that the adjudicator failed
to consider whether the employer intended to punish the appellant when it
imposed the suspension without pay. The Federal Court Judge went on to hold
that in any event, the adjudicator committed a reviewable error when he held
that there was no evidence that the appellant deceived the police. The matter
was remitted to a different adjudicator for re-determination.
ANALYSIS AND DECISION
[11]
The
appeal raises the following two issues: (a) did the adjudicator fail to apply
the proper test in holding that the suspension was disciplinary in nature as
contemplated by paragraph 209(1)(b) of the PSLRA? (b) was it open to the
Federal Court Judge to set aside the decision of the adjudicator on the basis
that the adjudicator’s decision upholding the grievance was unreasonable?
[12]
Turning
to the first question, the Federal Court Judge noted that there were divergent
views as to the standard of review applicable to a decision of an adjudicator
dealing with jurisdiction (Reasons, para. 12). However, he concluded that regardless
of the standard applicable, the adjudicator failed to properly assess whether
he had jurisdiction to hear the grievance in issue (Reasons, para. 19 in
fine).
[13]
The
gist of the reasons of the Federal Court Judge for coming to this conclusion is
as follows (Reasons, para. 19):
In this case, the adjudicator considered that the existence of a
disciplinary investigation, and the fact that the applicant had been suspended
without pay, was sufficient to give him jurisdiction over the matter under paragraph
209(1)(b) of the PSLRA. However, the adjudicator did not consider, as he
is directed to by the jurisprudence, whether the employer’s intention, in
suspending the applicant, was to punish him. Rather, it appears that the
adjudicator merely considered that, due to the length of time the investigation
was taking, the suspension became disciplinary by default. Therefore, I
conclude that this is a serious error, as the adjudicator applied the incorrect
test, which is sufficient in itself to warrant the intervention of this Court.
[…].
[14]
It
was suggested by this Court during the course of the hearing that the fact that
the suspension was without pay may have been sufficient in itself to allow for
the conclusion that the measure was disciplinary in nature. That is, the
withholding of the pay is prima facie punitive since it deprives the
employee of the salary to which he or she is otherwise entitled (compare Cabiakman
v. Industrial Alliance Life Insurance Co., [2004] 3 S.C.R. 195, at paras 68
and 69). It is no answer to say, as the respondent suggests, that had the
investigation exonerated the appellant, he would have been entitled to his full
pay retroactively (Memorandum of the respondent, para. 65). It remains that while
he was suspended the appellant was deprived of his salary.
[15]
Confronted
with this, Counsel for the respondent requested the opportunity to make further
submissions on this issue. In a letter dated December 23, 2009, Counsel pointed
out that the withholding of the pay is a mandatory aspect of any suspension
according to the CSC’s long established policy (reference is made to CSC’s
Guide to Staff Discipline and Non Disciplinary Demotion or Termination of
Employment for Cause). Since the “without pay” aspect of the suspension is
mandatory, Counsel submitted that it cannot be viewed as reflecting a punitive
intent on the part of the employer (Submission of December 23, p. 2).
[16]
Counsel
for the appellant vigorously challenges that assertion. He contends that the
CSC is authorized to suspend employees with or without pay and has done so in
the past (Submission of January 5, 2010).
[17]
We
need not dwell on this issue because it is apparent from a careful reading of
the reasons that the adjudicator did in fact consider the intent of the
employer in reaching his decision.
[18]
In
this respect, the adjudicator found that the measure was administrative in
nature during the first thirty days and became disciplinary thereafter. In
drawing this distinction, the adjudicator was of the view that, although there
was no intention to punish on the part of the employer during the initial
thirty days, this ceased to be the case when the employer allowed the
suspension to run indefinitely, pending the outcome of the prosecution
(Reasons, paras. 99 and 100). The reasons cannot be read otherwise as there is
no other basis upon which the adjudicator could have drawn the distinction.
[19]
It therefore
cannot be said that the adjudicator failed to consider the intention of the
employer in reaching his decision and the Federal Court Judge erred in holding otherwise.
[20]
The
second issue is the adjudicator’s position that the letter from Crown counsel’s
office, quoted earlier in these reasons, could not be used to establish the
facts in support of the respondent’s position because it was hearsay evidence.
The arbitrator expressed himself as follows:
120 While the
rules of evidence are relaxed in an adjudication hearing under the Act, in my
view it would be an adjudicative error to use hearsay evidence to prove a
fundamental material fact. … The weight that can be attached to hearsay
evidence for establishing material disputed facts is minimal, and I place no
weight on the hearsay evidence for establishing facts.
…
129 … There is no
evidence that Mr. Basra deceived the police in their investigation. There is no
duty on him to "take responsibility," if in fact he is innocent of
the offence, and he is presumed innocent until proven guilty.
[21]
In
characterizing the use of hearsay evidence to establish a material fact as an adjudicative
error, the adjudicator was articulating a principle which is at odds with
paragraph 226(1)(d) of the PSLRA which provides that an adjudicator may
accept any evidence, whether admissible in a court of law or not. The
adjudicator is not bound to accept hearsay evidence but he cannot reject it out
of hand simply because it is hearsay. The issue is whether it is reliable. In
this respect, we note that there are elements of information contained in the
letter from Crown counsel’s office which are not contradicted and do not appear
to be controversial. It was unreasonable, and an error of law, for the
adjudicator to conclude that evidence was not to be considered simply because
it was hearsay.
[22]
Later
in the same paragraph, the adjudicator comments that the weight to be attached
to hearsay evidence is minimal and that he attaches no weight to hearsay
evidence. It is trite law that it is for the adjudicator to weigh the evidence
before him, but it is equally trite that in order to do so, he must consider
it. He can not dismiss it out of hand because it is hearsay evidence. In this
case, one of the issues raised was whether the appellant had deceived the
police. The adjudicator held that there was no evidence on point, thereby
ignoring the contents of the letter from Crown counsel’s office, which was
material to that issue.
[23]
The Federal
Court Judge held that this error justified the Court’s intervention, a
conclusion with which we agree.
[24]
Since
the matter must go back to the adjudicator, it may be useful to provide some
guidance on certain procedural issues. In Wm. Scott & Co., [1977] 1
C.L.R.B.R. 1, at para. 13, Chairman Weiler wrote:
… arbitrators should
pose three distinct questions in the typical discharge grievance. First has the
employee given reasonable cause for some sort of discipline by the employer? If
so, was the employer’s decision to dismiss the employee an excessive response
in all of the circumstances of the case? Finally, if the arbitrator does
consider discharge excessive, what alternative measures should be substituted
as just and equitable?
See also Tobin v. Canada (Attorney General), 2009 FCA 254, [2009]
F.C.J. No. 968 at paragraph 45 (Tobin).
[25]
This
framework has since been extended to other disciplinary proceedings: see Palmer
& Snyder, Collective Agreement Arbitration in Canada (4th
ed.) (LexisNexis Canada Inc., Markham, 2009) at paragraph 5.187.
[26]
The
employer bears the onus of proving the underlying facts which are invoked to
justify the imposition of discipline: Palmer & Snyder, supra, at
paragraph 10.67. This applies to both the facts justifying the imposition of
the discipline as well as the appropriateness of the discipline.
[27]
In
this case, the respondent took the position that it did not discipline the
appellant, as a result of which it could not, without contradicting itself,
lead evidence of the conduct which justified the discipline. Instead the issue
before the adjudicator was cast in terms of the decision in Larson v.
Treasury Board (Solicitor General Canada -
Correctional Service), 2002 PSSRB 9 (Larson), a case which
dealt with the suspension of a CSC employee who was charged with a criminal
offence. The Larson factors assume that the measure is disciplinary in
nature, and seek to assess whether the continued employment of the employee
presents a serious and immediate risk to the legitimate concerns of the
employer (Larson, at para. 161).
[28]
The
difficulty with this approach is that it skips the first step in the process
which is the proof by the employer of the facts which justify the imposition of
discipline. In the case of the CSC, disciplinary conduct is the subject of the
Code of Discipline and the Standards of Professional Conduct. In Tobin,
this Court held that the employer was entitled to assess employee conduct by
reference to the Code of Discipline and Standards of Professional Conduct: see
paragraphs 46 and 47.
[29]
As a
result, the adjudicator’s first task upon rehearing the matter is to determine
if the employer has proven that there has been a breach of the Code of
Discipline or Standards of Professional Conduct. If the employer satisfies that
burden, the next question is whether the disciplinary measure imposed was
excessive. If not, the measure stands. If the adjudicator finds that the
measure is excessive, then the adjudicator must address the question of the
appropriate measure. These are discrete questions, each of which merits careful
consideration. They cannot simply be subsumed into an analysis of the Larson
factors, which do not deal with the question of whether the employer was justified
in imposing a disciplinary measure.
[30]
In
his reasons, the Federal Court Judge directed that the matter be returned to a different
adjudicator. We agree with the appellant that there is no basis for sending the
matter back to a different adjudicator. Adjudicator Love is familiar with the
matter and there is no reason to believe that he will not determine the matter
objectively if it is returned to him (see Gale v. Canada (Treasury Board), 2004 SCA 13, at para.
18, [2004] F.C.J. No. 186).
[31]
The
appeal will therefore be dismissed but the order of the Federal Court Judge will
be varied so as to provide that the matter be remitted to the original
adjudicator, or another adjudicator if he is unavailable to act, so that it may
be decided again in conformity with these reasons, based on the existing record
or such other evidence as the adjudicator may decide to allow. The parties
shall assume their respective costs.
“Marc Noël”
“J.D. Denis Pelletier”
“Carolyn Layden-Stevenson”
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