Date: 20100429
Docket: A-468-09
Citation: 2010 FCA 116
CORAM: LÉTOURNEAU
J.A.
EVANS J.A.
SHARLOW
J.A.
BETWEEN:
LANCE ROGERS
Appellant
and
CANADA REVENUE AGENCY
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1]
This is an
appeal by Lance Rogers from a decision of the Federal Court (2009 FC 1093), in
which Justice Near dismissed his application for judicial review to set aside a
decision of an Adjudicator of the Public Service Staff Relations Board (2008
PSLRB 94).
[2]
The Adjudicator
had dismissed Mr Rogers’ grievance against disciplinary action, on the ground
that it had not resulted in “termination of employment, suspension or a
financial penalty”, and therefore could not be referred to adjudication under
subsection 92(1) of the Public Service Staff Relations Act, R.S.C. 1985,
c. P-35, the legislation governing this dispute. The relevant paragraph provides
as follows:
|
92. (1) Where an employee has presented a
grievance, up to and including the final level in the grievance process, with
respect to
…
(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.
|
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 :
[…]
c) dans les
autres cas, une mesure disciplinaire entraînant le licenciement, la
suspension ou une sanction pécuniaire.
|
If Mr Rogers cannot bring himself within paragraph 92(1)(c),
he will be unable to pursue his grievance beyond the second level of the
internal grievance process, where it was dismissed.
[3]
Mr Rogers,
an employee of the Canada Revenue Agency (CRA), was warned by his superiors not
to involve himself personally in the tax problem of someone he had met through
his church. Mr Rogers’ Director undertook to send to a Problem Resolution
Officer the information that Mr Rogers had provided about his acquaintance’s
problem.
[4]
Mr Rogers
subsequently learned from a specialist in the CRA about “remission orders”,
which he thought might be helpful in resolving the tax problem of his
acquaintance. Consequently, he explained the issue to the specialist and
suggested that he refer the matter to the Problem Resolution Officer. Eighteen
months later, Mr Rogers was informed that the problem had been satisfactorily resolved
through the issue of a remission order.
[5]
When Mr
Rogers received his annual performance review, he noted that his success in
resolving this problem was not mentioned as an achievement. However, having brought
this to the attention of his superiors, he was advised that the CRA had
launched an investigation into whether he had acted improperly by disobeying
the direction of his superiors not to become personally involved in the problem
of an acquaintance and by breaching the Conflict of Interest Code and
Guidelines.
[6]
That
investigation caused Mr Rogers such stress that he took a month or so of
medically approved paid sick leave. On returning to work, he met with the CRA investigators
who explained the allegations to him. This caused him to take another period of
paid sick leave, which his doctor again approved, because of stress.
[7]
After completing
its investigation, the CRA concluded that Mr Rogers had acted improperly as
alleged, and imposed a five-day disciplinary suspension on him. As a result, he
took a third period of stress-related sick leave. This exhausted Mr Rogers’
paid sick leave, and when he took further leave, for unrelated reasons, it was
unpaid.
[8]
At the
second level of the grievance process, the CRA reduced the suspension to a
written reprimand. Nonetheless, Mr Rogers referred his grievance to
adjudication. The Adjudicator rejected the grievance, on the ground that the
written reprimand did not result in a financial penalty and thus could not be the
subject of adjudication.
[9]
The
Adjudicator held that, even if Mr Rogers had taken sick leave as a result of
the stress caused to him by the investigation and disciplinary action, and thus
depleted the amount of paid sick leave available to him for future use, he had
not proved that it was an inevitable consequence of the disciplinary action
taken by the CRA. Consequently, since the disciplinary action had not resulted,
even indirectly, in a financial penalty, the Adjudicator dismissed the grievance.
[10]
In his
application for judicial review, Mr Rogers says that, in selecting the
applicable legal test for determining when a disciplinary action results in a
financial penalty, the Adjudicator erred in law in his interpretation of the
decision of this Court in Massip v. Canada (1985), 61 N.R. 114 (Massip).
[11]
The
Adjudicator regarded Massip as holding that financial loss caused
indirectly by disciplinary action may constitute a financial penalty resulting
from the disciplinary action, provided that it is proved to be an inevitable
consequence of the impugned action. Justice Near agreed with the Adjudicator’s
interpretation of Massip.
[12]
The
parties agree that whether the Adjudicator erred in law depends on whether his
interpretation of a binding decision of this Court, Massip, was correct.
Neither challenges the correctness of the decision, although they do not agree
on what it decides. Consequently, correctness is the applicable standard of
review in this case.
[13]
Counsel
for Mr Rogers submits that Massip simply requires proof that a financial
loss was caused by the disciplinary action and is not too remote a consequence
of it. He argues that a financial loss is not too remote, and thus constitutes
a financial penalty for the purpose of paragraph 9(2)(c), if it was a
reasonably foreseeable consequence of the disciplinary action. Massip
was an easy case on its facts, counsel says: since the financial loss to the
employee was an inevitable consequence of the disciplinary action, it was
obviously not too remote.
[14]
I do not
agree. In my opinion, Massip did not introduce common law concepts of
causation and reasonable foreseeability into paragraph 92(1)(c): a
financial loss does not become a financial penalty for this purpose simply
because it is a reasonably foreseeable consequence of the disciplinary action.
[15]
The facts
of Massip are instructive. The grievor’s foreign posting had been terminated
for disciplinary reasons, but she continued to be employed at the same level in
Canada. However, her removal from
the foreign posting entailed the loss of the remaining $790.30 of the foreign service
premium to which she would otherwise have been entitled.
[16]
Writing
for the majority, Justice Mahoney said (at para. 5):
The Applicant was the
subject of disciplinary action. That disciplinary action resulted in a
financial loss. The issue, as I see it, is whether the loss was a penalty.
In determining whether a financial loss resulting from
disciplinary action is a financial penalty, he said (at para. 6) that the
impugned disciplinary action need not have “directly imposed” the financial
loss; it was enough that it “indirectly but inevitably” led to a loss of pay. The
Court reasoned that Ms Massip’s demotion deprived her of the rights that she
had by virtue of holding the out-of-Canada foreign service position, including
the right to the premium. As Justice Mahoney put it (at para. 7):
[The foreign service
premium] is primarily incentive payment. I do not see how its loss can be
regarded as any less a financial penalty than the loss of any other component of
an employee’s remuneration entitlement.
[17]
It was not
necessary for the disciplinary action under review to spell out each and every
financial benefit that the disciplinary transfer removed from the employee. No
remoteness issue arose in Massip, it was said (at para. 8), because
The loss arose immediately and inevitably
from the disciplinary action by operation of an express provision incorporated
in the collective agreement governing the Applicant’s employment.
[18]
In my view,
this cannot be read as an invitation to adjudicators to consider, whenever a
financial loss is not the inevitable result of the disciplinary action, whether
a financial loss which is caused by, but is not implicit in, a disciplinary
action was reasonably foreseeable. Even if an employee proved that a financial loss
was a reasonably foreseeable consequence of the written reprimand (or other disciplinary
action), it still could not be characterized as a financial penalty, that is, a
part of the punishment for the misconduct, because it was not implicit in the written
reprimand.
[19]
This
reading of Massip is fully consistent with the text of paragraph 92(1)(c).
In particular, it gives effect to Parliament’s choice of the words “financial penalty”,
rather than “financial loss”. I do not agree with the suggestion of
counsel for Mr Rogers that, in the present context, penalty and loss are
synonymous.
[20]
The
Adjudicator’s interpretation of Massip is also consistent with the
French text of the paragraph, which uses the phrase « entraînant une sanction
pécuniaire ». The verb « entraîner » can
mean “involve” or “entail” (Harrap’s Standard French and English Dictionary
) or « avoir pour conséquence nécessaire, inévitable » (Le Nouveau
Petit Robert). In my opinion, the French text captures precisely the
meaning given in Massip to the English version of paragraph 92(1)(c).
[21]
It may well
be that, like the foreign service premium in Massip, Mr Rogers’ entitlement
to paid sick leave is part of the package of his remuneration. Nonetheless, the
fact he had to use it because of the stress caused by the disciplinary action
does not make the diminution of his right to paid sick leave a financial
penalty. Mr Rogers had taken sick leave because he was stressed as a result of
the investigation and the disciplinary proceedings, not because it was implicit
in the disciplinary action.
[22]
For these
reasons, I would dismiss the appeal with costs.
“John
M. Evans”
“I
agree
Gilles Létourneau J.A.”
“I
agree
K. Sharlow J.A”
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