Date:
20070608
Docket: A-505-06
Citation: 2007 FCA 221
CORAM: DESJARDINS
J.A.
NOËL
J.A.
NADON
J.A.
BETWEEN:
THE ATTORNEY GENERAL OF CANADA
Appellant
and
HENRI BÉDIRIAN
Respondent
REASONS FOR JUDGMENT
DESJARDINS J.A.
[1]
The
Court has before it an appeal from a decision of a Federal Court judge (Bédirian
v. Canada (Attorney General), 2006 FC 1239, [2006]
F.C.J. No. 1564 (QL)), which allowed the application for judicial
review of a decision by adjudicator Sylvie Matteau on a grievance pursuant to
section 92 of the Public Service Staff Relations Act, R.S.C. 1985, c.
P-35 (the Act).
FACTS
[2]
The
respondent is a lawyer with the Department of Justice of Canada (group and
level LA-3A). Since 1996 he has held the position of director, tax litigation,
in the Quebec Regional Office (QRO).
[3]
On
or about February 17, 2000 a complaint of sexual harassment was filed against
him. An investigation was initiated and two lawyers were instructed to act as
investigators. The investigators concluded that two of the allegations in the
complaint were valid. They recommended as disciplinary action a suspension of
three days without pay and demotion so as to completely abolish the
relationship of subordination between the manager and the two victims, as well
as any other employee (A.B. vol. V, pages 1376 to 1382).
[4]
On
July 28, 2000 the then Deputy Minister, Morris Rosenberg, approved the
investigators’ conclusions and imposed a number of disciplinary penalties on
the respondent. Inter alia, he relieved the respondent of his position
as manager and imposed on him a suspension of three days without pay, while
preserving his classification level and rate of pay.
[5]
The
respondent challenged the Deputy Minister’s decision by a grievance pursuant to
paragraph 92(1)(b) of the Act, seeking a number of forms of relief,
including general and punitive damages totalling nearly $2 million.
[6]
On
October 31, 2002, after 19 days of hearing, the Board Member, Anne E. Bertrand,
concluded that there was no basis to the allegations of sexual harassment made
against the respondent. She quashed the Deputy Minister’s decision. She ordered
that the employer reinstate the respondent in his position as manager,
reimburse what he had lost in fringe benefits, strike out the three-day
suspension imposed on the respondent, reimburse the lost salary resulting from
that suspension and delete the Deputy Minister’s letter dated July 28, 2000
from the file. The effect of deleting this letter was to remove all reference
to the disciplinary action imposed on the respondent, including the warning of
dismissal in the event of a repetition of harassing conduct, the requirement
that he take training in harassment and sexual equality, the requirement that
he write a letter of apology to the person who had alleged the sexual
harassment and the description of the letter as being a reprimand. However,
Board Member Bertrand did not believe it was appropriate for her to reserve
jurisdiction on the additional claims contained in the respondent’s grievance.
[7]
After
the grievance was allowed the employer, of its own accord, undertook a review
of the respondent’s performance appraisals, allowing the respondent to receive incentive
pay. The employer also reimbursed him for 118 days of sick leave. It provided
him with the services of a consultant in reasserting his authority on his
return to his managerial position: this service lasted for nearly a year. The
employer made him a written offer of a position at level LA-3B in Ottawa and training
in the new duties of that position. It paid him the sum of $102,250 as
representation fees in connection with the complaint, the grievance and the
applications for judicial review.
[8]
Board
Member Bertrand’s decision was the subject of an application for judicial
review by the respondent. An application was also made by the employer, but was
later discontinued without costs. The application for judicial review was
allowed by the trial judge on April 14, 2004. The latter referred the grievance
back to the adjudicator so she might exercise her jurisdiction fully and make a
decision on the monetary claims filed by the respondent.
[9]
Sylvie
Matteau was the designated adjudicator. The parties were agreed that all the
evidence presented to Board Member Bertrand should be included. It was further
agreed that the function of adjudicator Matteau was not to revise the
assessment of the evidence presented to Board Member Bertrand or the
conclusions she had drawn from it. Adjudicator Matteau’s function was “simply
to exercise fully the adjudicator’s jurisdiction with regard to the claim for
damages contained in the grievor’s grievance” (paragraph 143 of adjudicator
Matteau’s reasons).
[10]
On
January 19, 2006 the adjudicator dismissed the respondent’s claim for damages
in connection with the grievance. In her view, the employer had committed no
separate fault making it liable in delict.
[11]
On
October 17, 2006 the trial judge allowed the respondent’s application for
judicial review, quashed the decision by adjudicator Matteau and referred the
matter back to another adjudicator for a decision to be made on the awarding of
damages. The trial judge considered that the investigative process was vitiated
and this required compensation to the respondent.
APPLICABLE STANDARD OF
REVIEW
[12]
The
trial judge was careful to set out the applicable standard of review according
to the pragmatic and functional analysis. She considered each of the contextual
factors and found that: (1) the Act contained no privative clause; (2) the
application of the rules of civil liability was outside the labour law
jurisdiction and expertise of the adjudicator; (3) the provision in question
was essentially intended to resolve disputes or to determine the rights of
parties; and (4) the adjudicator’s decision involved the interpretation and
application of the rules of civil liability. The trial judge came to the
conclusion that the applicable standard of review was that of reasonableness simpliciter.
[13]
The
parties did not challenge that conclusion. They also accepted that the Court of
Appeal’s function was to review the administrative decision by determining the
appropriate standard of review and then by deciding whether it was correctly
applied by the trial judge (Prairie Acid Rain Coalition v. Canada (Minister
of Fisheries and Oceans), 2006 FCA 31, at paragraphs 13 and 14).
ANALYSIS
ISSUE
[14]
The
issue before adjudicator Matteau and before the trial judge was to determine
whether, by taking the disciplinary action which it considered it was justified
in taking, the employer had committed an independent civil fault giving rise to
damages. This is a question of law and a mixed question of fact and law. The Public
Service Staff Relations Act contains no provision in this regard. The Court
has to rely on the tests developed in earlier judgments in this area. The
burden of proof is on the public servant.
APPLICABLE TESTS IN CASE
LAW
[15]
In
Vorvis v. Insurance Corp. of British Columbia, [1989] 1 S.C.R. 1085, the Supreme
Court of Canada recognized that an employer may be liable in tort if it commits
an actionable wrong (paragraph 29). The Supreme Court of Canada restated this
principle in Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701,
at paragraph 73.
[16]
The
Supreme Court of Canada recognized in Wallace that in the course of
dismissal employers ought to be candid, reasonable, honest and forthright with
their employees and should refrain from engaging in conduct that is unfair or
is in bad faith by being, for example, untruthful, misleading or unduly
insensitive. Some types of injury resulting from a failure to comply with this
requirement, such as humiliation, embarrassment and damage to one’s sense of
self-worth and self-esteem, might all be worthy of compensation in the form of
an extension of the period of reasonable notice. The compensation does not flow
from the dismissal itself, but rather from the manner in which the dismissal
was conducted by the employer. These principles were set out in paragraphs 98
and 103 of the Supreme Court of Canada’s reasons in Wallace:
¶98 The obligation
of good faith and fair dealing is incapable of precise
definition. However, at a minimum, I believe that in the course of
dismissal employers ought to be candid, reasonable, honest and forthright
with their employees and should refrain from engaging in conduct that is unfair
or is in bad faith by being, for example, untruthful, misleading or unduly
insensitive. In order to illustrate possible breaches of this obligation,
I refer now to some examples of the conduct over which the courts expressed
their disapproval in the cases cited above.
. . . . .
¶103 It has long
been accepted that a dismissed employee is not entitled to compensation for
injuries flowing from the fact of the dismissal itself: see e.g. Addis,
supra. Thus, although the loss of a job is very often the cause of
injured feelings and emotional upset, the law does not recognize these as
compensable losses. However, where an employee can establish that an employer
engaged in bad faith conduct or unfair dealing in the course of dismissal,
injuries such as humiliation, embarrassment and damage to one’s sense of
self-worth and self-esteem might all be worthy of compensation depending upon
the circumstances of the case. In these situations, compensation does not
flow from the fact of dismissal itself but rather from the manner in which the
dismissal was effected by the employer.
[Emphasis
added.]
[17]
A
breach of this duty of good faith and fair dealing in the manner of dismissal
is one of several factors properly compensated for by an addition to the notice
period (paragraph 88). The Supreme Court of Canada dismissed the argument that
the employer could be sued in tort for breach of a good faith and fair dealing
obligation with regard to dismissals. It expressly refused to recognize the
existence of such a tort (paragraph 77).
[18]
In
McKinley v. BC Tel, [2001] 2 S.C.R. 161, the Supreme Court of Canada
applied the Wallace reasoning, saying at paragraph 74:
¶74 Where a
dismissal is accompanied by bad faith or unfair dealing on the part of the
employer, Wallace establishes that such conduct merits compensation by
way of an extension to the notice period. This remedy is not triggered by the
dismissal itself, but by the exacerbating factors that, in and of themselves,
inflict injury upon the employee. The nature of this remedy thus was described
in Wallace, at para. 103, as follows:
[W]here an employee can
establish that an employer engaged in bad faith conduct or unfair dealing in
the course of dismissal, injuries such as humiliation, embarrassment and damage
to one's sense of self‑worth and self‑esteem might all be worthy of
compensation depending upon the circumstances of the case. In these situations,
compensation does not flow from the fact of dismissal itself but rather from
the manner in which the dismissal was effected by the employer.
Wallace also made
clear that the extent by which a notice period should be extended for bad faith
or unfair dealing in the conduct of a dismissal will depend, in each case, on
the degree of injury that an employee sustains. While recognizing that tactics
that affect the employee’s ability to find new employment is particularly
deserving of such a remedy and may merit more compensation, the majority also
ruled that “intangible injuries”, which give rise to emotional damage, also may
suffice to attract an award in the form of an extended notice period (para.
104).
[Emphasis
added.]
[19]
Adjudicator
Matteau applied the test developed in Vorvis and Wallace. At
paragraph 144 of her reasons, she summed up the applicable test as
follows :
¶144 In Vorvis (supra) and Wallace
(supra), the Supreme Court of Canada developed a four-point analysis
for determining whether the civil liability of the employer is engaged. The questions
before me are therefore the following:
(1) As worded by
the Federal Court (2004 FC 566, ¶ 24), has the grievor shown, on a balance of
probabilities, that the employer was at fault or acted negligently or in bad
faith?
(2) If so, is the
fault independently actionable on the basis of the tort or
contractual liability of the employer (Vorvis (supra) and Wallace
(supra))? In other words, is the civil liability of the employer
engaged?
(3) If so, has
the grievor established harm?
(4) If so, has
the grievor established a probable causal link between the harm sustained and
the actions criticized and established?
[Emphasis
by adjudicator Matteau.]
[20]
Adjudicator
Matteau examined each of the faults alleged by the respondent and considered
whether these were independent civil wrongs giving rise to delictual liability
by the employer. She concluded that there was no independent fault.
[21]
In
the view of the trial judge, adjudicator Matteau properly defined the concept
of fault as she did in paragraph 144 of her reasons (supra). However,
she considered that adjudicator Matteau had said nothing about the actions or
conduct of the employer which constituted fault that could make it civilly
liable. It seemed proper to the trial judge that the awarding of compensation
in a question of disciplinary action be treated in the same way as in the case
of a dismissal (paragraph 25). The trial judge said the following:
¶22 It is also most
important to note that the precedents which guide the Court in this area have
to do with situations of dismissal for which a specific legal remedy exists,
namely granting a period of reasonable notice (otherwise known as “Wallace
damages”). Wallace established that where a dismissal is accompanied by
bad faith or unfair dealing on the part of the employer, such conduct merits
compensation by way of an extension to the notice period. This remedy is not
triggered by the dismissal itself, but by the exarcerbating factors that, in
and of themselves, inflict injury upon the employee. In McKinley v. BC Tel,
[2001] 2 S.C.R. 161, dealing with a dismissal situation, Iacobucci J.
summarized the rules set out in Wallace as follows, at paragraph 74:
Where a dismissal is
accompanied by bad faith or unfair dealing on the part of the employer, Wallace
establishes that such conduct merits compensation by way of an extension to the
notice period. This remedy is not triggered by the dismissal itself, but by the
exacerbating factors that, in and of themselves, inflict injury upon the
employee.
¶23 The situation
at bar arises in the context of disciplinary action imposed on the employee,
not dismissal. Consequently, the remedy of an extension to the notice period is
not available to compensate the applicant, despite the fact that, as we will
see below, the harm suffered was related to unfair treatment by the employer.
Strict construction of the case law would have the effect of denying the
applicant adequate compensation for the harm suffered. In my opinion, this
cannot be the case.
¶24 As I see it,
in Wallace and McKinley, supra, the Supreme Court of Canada
intended to indicate that conduct involving bad faith or unfair treatment by
the employer opened the way to the possibility of compensating the employee. In
a dismissal situation, such compensation takes the form of a reasonable
extension of the notice period. In a situation of disciplinary action, fault by
the employer should in my opinion lead to the same remedy. It would be illogical
and inconsistent to suggest that the employer had such responsibility at the
time of the dismissal, and not when it imposed disciplinary action.
¶25 Consequently, it
seems proper to the Court for the awarding of compensation in a disciplinary
action situation to be subject to the same analytical approach as in the case
of a dismissal. Thus, I feel that the test which is appropriate for
creating entitlement to compensation in such a case is the one stated in Wallace
in a situation of reasonable notice relating to dismissal, at paragraphs 98 and
103 respectively:
. . . employers ought to
be candid, reasonable, honest and forthright with their employees and should
refrain from engaging in conduct that is unfair or is in bad faith by being,
for example, untruthful, misleading or unduly insensitive.
. . . where an employee
can establish that an employer engaged in bad faith conduct or unfair dealing
in the course of dismissal, injuries such as humiliation, embarrassment and
damage to one’s sense of self-worth and self-esteem might all be worthy of
compensation depending upon the circumstances of the case.
[Emphasis
added.]
[22]
The
trial judge indicated that in her opinion the proper test was that set out in Wallace
(referring to paragraphs 98 and 103 of Wallace, cited above). She
considered adjudicator Matteau’s conclusions on each of the faults alleged. For
each of these faults the trial judge felt that adjudicator Matteau had not
asked the right question, namely whether the employer had been candid and
honest with the employee and whether it had acted in bad faith or treated the
employee unfairly (paragraph 27).
[23]
In
the trial judge’s view, the Deputy Minister’s decision regarding the respondent
was vitiated because of the employer’s conduct. The evidence was not given a
careful review. It is critically important in an investigation which has
serious consequences for an employee’s life and career that the procedure be
fair and equitable (paragraph 42). She explained that the employer’s independent
actionable fault was the unfair treatment of the employee in the process of
making a decision regarding him:
¶44 There is no
doubt that the Deputy Minister’s decision was not taken on the basis of
clear, cogent and compelling evidence that the acts complained of had been
committed, that the conduct objected to was persistent and repetitive or
that it was a serious act, as required by the following cases on the point: Janzen
v. Platy Enterprises Ltd., [1989] 1 S.C.R. 1252; Canada (Human Rights Commission)
v. Canada (Canadian Armed Forces)(Re Franke), [1999] F.C.J. No. 757 (QL);
Lippé et Commission des droits de la personne et des droits de la
jeunesse du Québec v. Québec (Procureur général), [1998] R.J.Q. 3397.
¶45 In short, where
the employer takes disciplinary action which has such serious consequences for
the employee on the basis of a deficient investigation and procedure, it
cannot meet the standard of fair conduct to the employee. The serious harm
that resulted for Mr. Bédirian, such as humiliation, embarrassment, loss of
self-esteem and loss of the reputation so important to a lawyer, in my view
gave rise to compensation for him.
[24]
In
my opinion, the trial judge made an error of law in imposing on the employer a
duty of good faith and fair dealing outside the context of a dismissal and in
characterizing a breach of that duty as an independent civil wrong giving rise
to compensation.
[25]
In
Wallace the Supreme Court of Canada recognized the existence of a duty
of good faith and fair dealing in the course of a dismissal so as to protect
employees at a time when they are most vulnerable. As the Supreme Court of
Canada explained, at paragraph 95 of its reasons:
¶95 The point at
which the employment relationship ruptures is the time when the employee is
most vulnerable and hence, most in need of protection. In recognition of
this need, the law ought to encourage conduct that minimizes the damage and
dislocation (both economic and personal) that result from dismissal. In Machtinger,
supra, it was noted that the manner in which employment can be terminated
is equally important to an individual's identity as the work itself (at p.
1002). By way of expanding upon this statement, I note that the loss of
one's job is always a traumatic event. However, when termination is
accompanied by acts of bad faith in the manner of discharge, the results can be
especially devastating. In my opinion, to ensure that employees receive
adequate protection, employers ought to be held to an obligation of good faith
and fair dealing in the manner of dismissal, the breach of which will be
compensated for by adding to the length of the notice period.
[Emphasis
added.]
[26]
At
paragraph 107 of its reasons, the Supreme Court of Canada added:
¶107 In my view, there
is no valid reason why the scope of compensable injuries in defamation
situations should not be equally recognized in the context of wrongful
dismissal from employment. The law should be mindful of the acute
vulnerability of terminated employees and ensure their protection by
encouraging proper conduct and preventing all injurious losses which might flow
from acts of bad faith or unfair dealing on dismissal, both tangible and
intangible. I note that there may be those who would say that this
approach imposes an onerous obligation on employers. I would respond
simply by saying that I fail to see how it can be onerous to treat people
fairly, reasonably and decently at a time of trauma and despair. In my
view, the reasonable person would expect such treatment. So should the
law.
[Emphasis
added.]
[27]
However,
nothing in Vorvis and Wallace suggests that a breach of an
obligation of good faith and fair dealing amounts to an actionable wrong. The
Supreme Court of Canada has always required that there be an independent civil
wrong for the employer to be liable in tort. This requirement undoubtedly
applies whether in a case coming from a common law or from a civil law
jurisdiction. In Wallace, it expressly refused to recognize that a
breach of a duty of good faith and fair dealing could make the employer liable
in tort (paragraph 77). Instead, the breach of the duty was to be compensated
for by an extension of the period of reasonable notice, notice to which the
employee was entitled under the employment contract.
[28]
When
she concluded that the unfair treatment of the employee by the employer in the
course of disciplinary action gave rise to compensation in the form of damages,
compensation which the respondent could not have obtained by other means, the
trial judge essentially concluded that, contrary to Wallace, a delict
existed.
[29]
The
question the trial judge should have asked was whether the employer had
committed an independent and actionable civil wrong according to the
well-settled principles of delictual liability, not whether the employer had
acted in bad faith or treated the employee unfairly. Conduct in bad faith or
unfair dealing is not in itself an actionable, independent civil wrong. The
existence of a civil wrong is determined rather in terms of the reasonable
person test (see Jean-Louis Baudouin and Patrice Deslauriers, La
responsabilité civile, 6th ed., Cowansville, Que., Yvon Blais, 2003, at pp.
127-130; Allen M. Linden and Bruce Feldthusen, Canadian Tort Law, 8th
ed., Markham, Ont., Lexis Nexis Butterworths, 2006, at pp. 140-144).
NEED FOR INVESTIGATION
[30]
Despite
the respondent’s contention that there should never have been an investigation
(paragraph 149 of adjudicator Matteau’s decision), the trial judge noted at
paragraph 30 that it was necessary for the investigation to be held:
¶30 Before
considering the alleged faults, it is worth mentioning that there is no
question of blaming the employer for initiating an investigation. The evidence
before both adjudicators established that the sexual harassment complaint made
against the employee was serious enough to warrant such an investigation.
[31]
She
further added, at paragraph 31:
¶31 However, in view of the dramatic consequences of the result
of such an investigation for the employee, it is of crucial importance for the
investigation not to be vitiated by any serious procedural error that could
cast doubt on the validity of the decision resulting from it. On this point, I
concur entirely with the comments by the writers Geoffrey England, Roderick Wood
and Innis Christie, Employment Law in Canada, loose-leaf, Markham, Ont.,
Butterworths, 2005, see § 11.97:
. . . The seriousness of
the consequences to an employee of being found liable for sexual harassment …
has occasioned courts to impose various procedural safeguards before dismissal
is warranted. Thus, an employer must conduct an effective and fair
investigation of an allegation of sexual harassment against an employee before
invoking dismissal. … This includes … ensuring that all relevant witnesses are
interviewed; maintaining accurate and comprehensive records of the course of
the investigation; probing the credibility of the victim rather than
pre-judging his or her account to be accurate; and not pre-determining the
outcome of the investigation until all of the relevant evidence has been
carefully sifted and weighted.
[32]
Procedural
error gives rise to an action in administrative law and labour law: however,
there can only be liability in delict if there was a civil wrong which has a
causal link to the damage.
APPLICATION
OF LAW TO FACTS
[33]
It
is important to note when beginning this part of the analysis that Board Member
Bertrand and adjudicator Matteau were the only ones who had the benefit of
hearing the witnesses. The trial judge had only the transcript. This Court is
thus in the same position as she was in assessing the evidence.
[34]
The trial judge analyzed the faults noted from the evidence
by Board
Member Bertrand, which adjudicator Matteau could not question.
There were six of these, as follows:
1. the use of a
workplace assessment report dating from 1998 as evidence against
Mr. Bédirian when the report did not concern him;
2. failure to
inform the investigators of the apologies offered by Mr. Bédirian;
3. failure to
give the investigators the various initial statements and documents in the
record before the investigation began;
4. use by the
investigators of a burden of proof not consistent with the law existing in
Canada;
5. failure by the Senior
Advisor to inform the Deputy Minister of Mr. Bédirian’s offer of apologies;
6. the Deputy Minister’s
decision based on inadequate conclusions.
[35]
I
will analyze each of these faults considered by the trial judge.
1. The use of a workplace
assessment report dating from 1998 as evidence against Mr. Bédirian when the
report did not concern him
[36]
Board
Member Bertrand referred to the 1998 appraisal, in paragraphs 16 to 24 of her
reasons, citing certain passages from pages 37 and 42 of the 1998 appraisal
(E-1):
¶16 In 1998, at the request of Mr. Dion from the QRO, who had
been told that there were problems at that office, Ms. Gravelle-Bazinet
initiated a workplace assessment to be conducted by the experts at Watson
Wyatt. According to Ms. Gravelle-Bazinet, the assessment report noted that the
QRO employees had a perception that there were sexual harassment problems
involving senior management (see the assessment report, E-1, at page 37).
The experts recommended that the QRO make a firm decision on sexual harassment
practices in its workplace (pp. 41-42). The following are the passages from
pages 37 and 42 of the assessment (E-1):
[Translation]
A
few women testified that sexual advances had been made toward them.
The testimony refers to harassment and unacceptable (sexual) behaviour toward
some women by a few men at the QRO or by senior management.
. . . . .
That
the QRO and its managers take a firm position on sexual harassment practices by
making the employees, among others, aware of what action they can take in
response.
¶17 Ms. Gravelle-Bazinet testified that the Deputy Minister at
the time, George Thompson, said that he was very concerned about the situation,
as did the Assistant Deputy Minister, Mario Dion. Mr. Dion told Ms.
Gravelle-Bazinet to follow up on the matter with the QRO's Regional Director,
Jacques Letellier.
¶18 In July 1998, Ms. Gravelle-Bazinet reminded Jacques
Letellier of his responsibility as a manager. She referred in particular to the
statement of managers' obligations in Policy E-4 (p. 28). She told him to meet
with his managers and remind them of their responsibility in this regard.
¶19 In August or September 1998, Ms. Gravelle-Bazinet met with
the QRO management team to discuss the assessment conducted a few months
earlier, and she then met with the employees of the QRO three times; she said
that the meetings generated a great deal of discussion. The main complaint was
that there was a lack of respect. A committee was created to establish an
action plan, and a joint advisory subcommittee was also created.
¶20 A new Deputy Minister, Morris Rosenberg, was appointed at
that time, in August 1998. Ms. Gravelle-Bazinet briefed him on Policy E-4 and
the report on the assessment conducted at the QRO. He shared the others'
concerns, and he asked Ms. Gravelle-Bazinet to be [translation] “extremely
attentive to the problems at the QRO” and “to tell him” if there were any.
¶21 Ms. Gravelle-Bazinet admitted that the assessment conducted
at the QRO did not uncover any allegations against Mr. Bédirian. There are 70 employees in the QRO's tax sector and,
according to Ms. Gravelle-Bazinet, “senior management” includes the Director
General (of the QRO) and all the managers under the Director General.
¶22 The federal Deputy Minister of Justice, Morris Rosenberg,
testified in this case. He was appointed to the position on July 1, 1998. He
was called to the bar in 1977, and his studies include a Master of Laws from
Harvard University. Mr. Rosenberg has been working in the Public Service of
Canada since 1979.
¶23 Mr. Rosenberg too stressed that the main work of the Office
of Conflict Resolution is to resolve conflicts in the workplace, including
conflicts involving harassment. When he began in his new position, he reviewed
the assessment conducted at the QRO in 1998 with the help of the advisor, Ms.
Gravelle-Bazinet. He recalls that there was a problem with “respect” from
management at the QRO and, in the Tax Litigation Section, concerns about
“equitable treatment”. There was also a reference to a sexual harassment
problem involving “senior management” (see page 37 of E-1).
¶24 A national forum was held in Montreal on October 22-23,
1998, and Deputy Minister Rosenberg chose that opportunity to convey the
general message that respect and equality for everyone had to be achieved.
During the forum, a woman employed by the Department of Justice even asked him
what he was going to do about sexual harassment in the workplace. He openly
affirmed his commitment to creating a conflict-free workplace (see E-2 and
E-3).
[Emphasis
added.]
[37]
Board
Member Bertrand also noted at paragraph 143:
¶143 During her testimony, Ms. Dufresne provided the preliminary
report dated April 1998 that was written following the interviews conducted at
the time of the assessment. All of the information was available at that time,
and the preliminary report set out the findings. The groups and persons
identified as sources of conflict were grouped together by sector. For the tax
sector, the criticism was that the female lawyers were more like “assistants”.
Among the six people named as sources of conflict, it was not Mr. Bédirian
but rather Jacques Letellier who was named as the head of senior management.
In Ms. Dufresne's opinion, when the respondents in the preliminary or even the
final assessment report referred to “senior management”, they meant the sector
directors. The tax sector was not identified in the references to senior
management in the negative comments in the report. Ms. Dufresne testified
that, during the on-site sessions held after the preliminary report (E-41)
was tabled, it became increasingly obvious that Jacques Letellier was the
sixth person identified as a source of conflict. Ms. Gravelle-Bazinet and
Sylvie Charleboix were involved with her in those sessions.
[Emphasis
added.]
[38]
Board
Member Bertrand concluded, at paragraphs 341 and 342:
¶341 An appreciable amount of evidence was filed on the
assessment that had been conducted at the QRO in 1998 (E-1) in order to show
the problems that had existed there, including the perception of a sexual
harassment problem, which had reached even the men of the QRO or senior
management. With reference to the complainant, the employer attempted to
show that this perception could stem from his behaviour as a man at the QRO or
again as a member of senior management. It is my view after having heard
the whole of the evidence and having read the documentation filed in this
dispute that the references to behaviour problems related to sexual
harassment at the QRO and in particular the passages noted on pages 37 to 42 of
the assessment (E-1), which are repeated in the executive summary, do not apply
to Mr. Bédirian and therefore should not have been used as evidence against him.
¶342 I would add that “senior management” refers to the
Department's executives rather than the directors of the various sections at
the regional offices, who as a group comprise the management committee. In
support I am relying on Exhibit E-3, the agenda for the forum held in Montreal
in October 1998, which clearly indicates the composition of senior management,
namely the Deputy Minister, Associate Deputy Minister Mr. Dion, Director
General Jacques Letellier, Ms. Gravelle-Bazinet and other Department
executives. The Directors, such as the complainant Mr. Bédirian, do not appear
on that list. Accordingly, the passage found on page 37 of the assessment
(E-1), which talks about harassment and unacceptable behaviour on the part of
some men at the QRO or of senior management simply cannot be applied to apply
to Mr. Bédirian, since he was Director at that time and was not yet part of
senior management.
[Emphasis
added.]
[39]
Document E-1, [TRANSLATION] “workplace assessment, June
1998”, was entered in evidence (A.B. Vol. IV, page 1309). The passage cited by Board Member Bertrand on page 37 is part of the unfairness factors which were listed.
The respondent was not concerned as a member of “senior management” on page 37
of assessment E-1, but he was concerned as a manager at paragraph 42 of the
same document, dealing with recommendations made by the consulting firm Watson
Wyatt. In short, as a manager after 1998 the respondent had the responsibility
of applying a firm policy of non-tolerance to sexual harassment and had
received special training in this regard. The testimony of Deputy Minister
Rosenberg leaves no doubt as to the weight he attached to the respondent’s
responsibility for acting responsibly under that policy. However, at no time in
his testimony did the Deputy Minister mention that he considered the respondent
a member of the group covered by the events leading up to the work assessment
made in 1998.
[40]
I
will explain.
[41]
Deputy Minister Rosenberg took up his duties on July 1,
1998 (A.B. vol. I, page 232, line 15, to page 235, line 18). He explained the
reasons which guided his decision when he commented on the letter of July 28,
2000 which he sent to the respondent (A.B. vol. I, from page 287, line 14, to
page 290, line 23):
A The first one, it
says:
[TRANSLATION]
I am relieving you of
your position as manager forthwith. At the same time, you will be assigned by
your regional director Donald Lamer to a position without managerial
responsibility at your current level of pay.
And I thought about this
and I felt that it was warranted for the following reasons. Firstly our policy,
the departmental policy is quite explicit on the responsibilities of managers,
at page five (5) of the policy, it says:
“Department of Justice
managers had a special responsibility for creating a workplace, where
harassment is not likely to occur and for responding quickly and effectively if
it does.”
Further down on that
page, it says:
“Your presence, oh sorry
make it clear, this is in the last paragraph, that insults and derogatory jokes
would not be tolerated and that they could lead to disciplinary action.”
So I thought there was a
responsibility of setting out our policy, our policy is probably one of the
more explicit policies in the government of those much further, for example
than the Treasury Board policy in stipulating the role of managers, with
respect to harassment and conflict in the workplace. I also felt that there
were some specific circumstances in this case, that Maître Bedirian had not
come to this without any knowledge of this. He had the knowledge of this policy
and the office, the Quebec office was briefed on this policy when it came out;
but he also had had positions as a harassment agent in 1993, and I understand
had taken some training as a result, that there had been a further opportunity
for training in 1996. That following the workplace assessment, there had been
meetings both between Matilde and the management of the Quebec regional office
and Jacques Letellier, that then had a management with the Quebec regional
office to make the point that we would not tolerate, the department would not
tolerate sexual harassment and it was up to managers to do everything they
could to put a stop to it. I also understand that Maître Bedirian, after the
workplace assessment, was a chair of harassment committee in the office. So I
felt that he had special knowledge and should have had special sensitivity to
these issues. At the same time, I was really trying to balance off to interest,
I felt that it was not tenable under the circumstances to keep Maître Bedirian
in the management position. I was concerned about Maître Bedirian being in a
position of authority over specially young female staff, not just the
complainants but other young female staff. At the same time, I wanted to
balance it in a way that was going to deal with the problem, but in all other
ways, trying to preserve Maître Bedirian’s status, his seniority, his
compensation, his paying benefits. That is why we created a position at the
equivalent rank, Maître Bedirian was in a, what is called an L.A.3.A.
management position, we created an L.A.3.A.
Me MICHEL BEAUDRY:
L.A.3.A., L.A. what
L.A. ?
A. 3.A
Q. 3.A. O.K.
A. Management
position which is what he was in, we created a position, what we call senior
practitioner L.A.3.A. We have two (2) senior streams in the department, one is
management, one is senior practice. The L.A.3.A. senior practitioner recognizes
people at a very senior level in the department and Maître Bedirian, in terms
of the practice of law, had always been well regarded, well respected in the
office and we felt that we wanted to maintain that, but simply wanted to deal
with the management part of it, because of the concern for employees in the
office, so that was the reason for that. I had already spoken about three (3)
day suspension, it was a notice that any repetition of any sexual harassment
could result in immediate dismissal. I request that Maître Bedirian undertake a
training on harassment and gender quality, and given the impact of the
incidents on the complainant, that Maître Bedirian send a letter of apology.
And as is our policy, letters of reprimand, of which this is one would stay on
the file for a period of two (2) years from the date of the position.
[42]
In
cross-examination, he said the following (A.B. vol. I, from page 296, line 12,
to page 298, line 18):
[TRANSLATION]
CROSS-EXAMINED BY MARYSE
LEPAGE,
Counsel for the
applicant:
Q Mr.
Rosenberg, I understand you indicated you were familiar with Exhibit E-1,
which is the workplace assessment made in June ’98?
A That’s right.
Q You are familiar with
this document?
A Yes.
Q Is Mr. Bédirian identified
in the document?
A I don’t believe
so, not specifically.
Q Does his name appear
in it?
A Not specifically.
Q Is it referred to
directly?
A No.
Q I refer
you to Exhibit E-5, which are my comments on June 16, 2000, and in
particular I refer you to the last page of the document, the affidavit, the
sworn statement of Louise Martin. Are you familiar with this document?
A Yes.
Q In
particular, are you familiar with paragraph 3 of the document?
A Yes.
Q Can
you read us paragraph three?
A It
says:
[TRANSLATION]
The verbal
feedback given following the workplace investigation by Sylvie Charlebois
indicated, among other things, that Henri Bedirian was a gentleman.
Q Thank
you. You have referred us to certain passages from the Wyatt report – Exhibit
E-1.
A Hum!
Hum!
Q I
understand that the only passage relevant to the questions of harassment is
that on page 37?
A There
are two (2) passages, the one on page thirty-seven which starts
with:
[TRANSLATION]
Some
women testified they were subjected to advances of a sexual nature . . .
Q Hum!
Hum!
A And
the one on page forty-two, this is recommendations that …
Q O.K.
A . . . which says
could it be our case:
[TRANSLATION]
Managers
take a firm position on sexual harassment practices, and among other things
make employees aware of recourses available to them.
Q Right,
thank you. To your personal knowledge, sir, how long has Henri Bedirian been
a manager in the Montréal regional office?
A From
what I understand, he has been a manager since 1980, I will have to refresh my
memory on this.
[Emphasis
added.]
[43]
Further
on, he stated (A.B. vol. I, from page 299, line 16, to page 301, line 6):
[TRANSLATION]
Q O.K.
Do you have any personal knowledge of Mr. Bedirian’s file, his general file,
his file as an employee?
A When
you say “personal knowledge”, what do you mean?
Q Are
you familiar with Mr. Bedirian’s file, without having specific knowledge of it?
A The
knowledge I have of Mr. Bedirian’s file, I understand that it comes out of what
I have learned about it from this case.
Q O.K.
From what you have learned of this file, have complaints been made against
Mr. Bedirian in the past?
A I
am not aware of any specific complaint that was made against Maître Bedirian,
prior to the complaints that were, the complaint that was lodged by Maître
Letellier de St-Just.
Q So,
to your knowledge, no other complaint in the past?
A I
am not aware of any other complaints in the past.
Q O.K.
A Any
formal complaints in the past.
Q You
mentioned, during the forum which followed the workplace assessment, you
mentioned you had been notified and informed that the harassment was
continuing, is that right?
A That’s
right.
Q Could
you explain at what point in the forum exactly?
A The
best I could do, during the passage of time, I believe that it was the second
day, it was a two (2) day forum, the Thursday and the Friday, the Friday the
23rd, I believe that before the sum up, there was a period of questions and
answers; that anybody in the room could ask me questions or raise any issues.
Q O.K.
A And
it was in that context that it took place.
Q Right,
when you were notified at that time, was Mr. Bedirian’s name mentioned?
A When
that question was asked, there was no, no specific person was named.
[Emphasis
added.]
[44]
In
her decision Board Member Bertrand summarized the Deputy Minister’s testimony
as follows :
Deputy
Minister Rosenberg’s decision of July 28, 2000
¶202 Deputy Minister Rosenberg testified that he read all the
documents given to him by Ms. Gravelle-Bazinet and obtained legal advice from within his Department. He
agreed with the investigators’ conclusion that two of the seven allegations had
been proved. He met with Ms. Gravelle-Bazinet and John Power to determine the
next steps to take, and he made his decision on July 28, 2000 (see P-1).
¶203 According to the Deputy Minister, his decision was based on
the fact that Mr. Bédirian was a manager, that the Policy in his
Department went further than those in other departments in the sexual
harassment context and that the complainant knew the Policy and had sat on a
sexual harassment committee in the past, not to mention the fact that he had
received training in this regard. Moreover, since Mr. Bédirian had chaired the
harassment committee following the assessment conducted at the QRO in 1998, he
had a greater responsibility in relation to this sort of conduct. Taking away
his manager's position was appropriate, said the Deputy Minister, because he
should no longer supervise young female lawyers. Notwithstanding these facts,
the Deputy Minister said that Mr. Bédirian was highly regarded in his
Department and was well respected as a lawyer. Keeping him at the same level
was therefore fair.
¶204 The Deputy Minister was not aware of any complaint against Mr.
Bédirian prior to this one. According to him, he relied on the fact that the
1998 assessment pointed indirectly at Mr. Bédirian given the passages on pages
37 and 42 (E-1).
[Emphasis
added.]
[45]
There is nothing in the Deputy Minister’s testimony to
support the final sentence in Board Member Bertrand’s
paragraph 204.
[46]
Consequently, the trial judge could not say at paragraph
35:
¶35 Thus,
the employer relied on material which was never proven and which, in the
Deputy Minister’s admission, was taken into account in the decision.
[Emphasis
added.]
[47]
However,
it is true that the Deputy Minister had read among other things the executive
summary (A.B. vol. V, pages 1385-1386), which read in part as follows:
• In the WA
questionnaire, the employees of the Tax Litigation Section raised the following
as sources of conflict (Annex 9):
• Management
of Henri Bédirian:
-
lack
of transparency in his decision making
-
inability
to deal with conflict
-
female
lawyers feel disadvantaged when high profile files are assigned
-
shows
lack of respect for employees: frequently ridicules or intimidates employees
when they request clarification
-
one
respondent in this section stated that many female employees complained of
sexual advances on the part of the “haute gestion”.
[Emphasis added.]
[48]
However,
nothing in the Deputy Minister’s testimony indicated that he associated the
respondent with the [TRANSLATION] “senior management” of the assessment
conducted in 1998, in view of the passage at page 37 of assessment E-1. On the
contrary, as indicated earlier at paragraph 43 of my reasons, the Deputy
Minister said (and Board Member Bertrand also noted it):
I am not aware of any
specific complaint that was made against Maître Bédirian, prior to the
complaints that were, the complaint that was lodged by Maître Letellier de
St-Just.
[49]
As
regards the passage on page 42 of assessment E-1, as I said at paragraph 39 of
my reasons, the respondent was concerned as a manager.
[50]
The
Deputy Minister was also aware of the recommendations of the investigators, who
had stated (A.B. vol. V, page 1380):
[TRANSLATION]
We note that the manager
has been employed by the Department for 16 years. We have had no information
indicating that his record is not clean and we assume that it is.
[51]
Board
Member Bertrand’s factual conclusion, in the final sentence of her paragraph
204, was unreasonable, even patently unreasonable, because it was not supported
by the evidence. The trial judge erred in approving it.
[52]
It
is worth pointing out that the Deputy Minister again testified before
adjudicator Matteau. I reproduce paragraphs 54 to 57 of adjudicator Matteau’s decision,
which summarize his testimony.
¶54 Morris
Rosenberg, Deputy Minister of Justice from July 1, 1998 to December 20, 2004,
testified. He confirmed that he was the author of the disciplinary measure
imposed on the grievor and confirmed that the Senior Advisor reported directly
to him at that time.
¶55
The Deputy Minister stated that, in determining
the disciplinary measure to be imposed on the grievor, he took into
consideration a number of factors. He specified that, first of all, the decision
was made under the departmental workplace harassment prevention policy, for
which the employer is responsible. He took into consideration the fact that the
investigation had been conducted by not one but two investigators, one of them
an experienced investigator and a former member of the Public Service Staff
Relations Board. Also considered was the fact that the grievor had management
responsibilities, including additional responsibilities under the departmental
workplace harassment prevention policy, and had received training in these
matters.
¶56
The Deputy Minister also took into consideration
the fact that the QRO had had morale problems for a few years because of the
workplace atmosphere, and the fact that the Senior Advisor had held discussions
on this point with this group in the past. He also took into consideration his
own workplace harassment prevention responsibilities. Lastly, he considered the
fact that, at a meeting with the employees of the QRO on October 22 and 23,
1999, some female lawyers openly complained to him about the workplace
atmosphere at the QRO. He acknowledged that he made his decision after
reviewing all the material on the matter provided to him by the Senior Advisor.
¶57 The Deputy
Minister also confirmed that to some extent he followed the progress of the
case during the hearing before Adjudicator Bertrand. He stated that, although
he was not informed of the progress of the hearing on a daily basis, he was
kept informed in a general way by the legal counsel involved. He stated that he
considered the case an important one that the Department took seriously. He
realized that the case would have repercussions and some degree of notoriety. It was the
first such case at the Department.
[53]
I
now analyze faults 2, 3, 4 and 6 considered by the trial judge.
2.
Failure to inform the investigators of the apologies
offered by Mr. Bedirian
3. Failure to give the investigators the various initial statements and
documents in the record before the investigation began
4. Use by the investigators of a burden of proof not consistent with
the law existing in Canada
6.
The Deputy Minister’s decision based on inadequate conclusions.
[54]
In
this regard, Board Member Bertrand wrote at paragraphs 368 and 369 of her
decision:
¶368 In
my view, the Department of Justice’s Policy does not provide for a high enough
burden of proof to establish allegations of sexual harassment. The case law
indicates that such allegations attract a stigma that will likely persist for
the so-called harasser for years, in some cases forever. It is for that
reason that these cases require such great sensitivity in their handling,
procedures and outcome. A decision must never be made in the case of a person
“accused” of sexual harassment without evidence that is clear, cogent and
compelling and definitely more than probable. It is my view that the burden of
proof indicated in the Policy, which entails a general assessment, as well as
the burden of proof used by the investigators in this case, were not in
accordance with the law that exists in Canada.
¶369 I
would also like to add that the investigators did not receive all of the
information that had been disclosed by the two lawyers Ms. Letellier de St-Just
and Ms. O'Bomsawin further to their conversations and meetings in December 1999
and January 2000, namely the notes of Ms. Meagher, Ms. Lévesque, Monique Bond
of the Office of Conflict Resolution and Mr. Dion, which included the
information gathered from Mr. Bédirian. As I noted earlier, The Policy
emphasizes the importance of keeping a record that includes dates and times of
the alleged incidents in order to document the accuracy of the events and the
response.
[55]
According
to the evidence, independent and experienced investigators were appointed
pursuant to the policy Towards a Conflict- and Harassment-Free Workplace,
a policy that applied to all the Department’s staff, including senior managers
(policy commented on by Board Member Bertrand in her decision, A.B. vol. I,
page 171, paragraphs 343 to 350). One of the investigators also had experience
in the field of harassment investigations. Assessment of the mistakes made by
the employer in not forwarding initial statements and errors of law made by the
investigators were within the expertise of Board Member Bertrand. They gave
rise to the grievance and to the relief provided by the Act and labour law.
They did not involve delictual liability.
5. Failure
by the Senior Advisor to inform Deputy Minister of Mr. Bedirian’s offer of
apologies
[56]
On
fault 5, the trial judge (at paragraph 36 of her reasons) cited adjudicator
Matteau, who considered that the evidence had shown that the Senior Advisor had
herself heard the offer to make apologies from the respondent’s own mouth, had
failed to inform the Deputy Minister of this in her executive summary and had
falsely indicated that no apologies were made. The trial judge blamed
adjudicator Matteau for not considering whether such action by the employer was
fair to the respondent.
[57]
At
paragraphs 58 and 59 of her reasons, adjudicator Matteau wrote the following
(A.B. vol. I, page 27, paragraphs 58 and 59):
¶58 The
Deputy Minister did not recall being told that the grievor apparently offered
apologies to the complainant. When the Deputy Minister was informed of
Adjudicator Bertrand's decision, which found that apologies had been offered,
he did not follow up or confront the Senior Advisor on this point. The transfer
of responsibilities to Associate Deputy Minister Collette had already taken
place. In fact, he did not follow up on Adjudicator Bertrand's decision in any
way. He also stated that he had not discussed the case with anyone other than
the persons involved, but conceded that people in the field must have been
aware of the grievor’s reassignment following the Deputy Minister’s decision to
relieve him of his management responsibilities.
¶59 Associate
Deputy Minister Dion explained his reaction to the apologies offered by the
grievor. He stated that he had just spent several hours with the two female
lawyers involved. He noted how upset they were. The grievor could not get off
that easily. Simple apologies were not enough given the state of the two female
lawyers. As well, those apologies were offered at the very end of the
discussion with the grievor, when it had become clear that there would be
repercussions including an investigation. Associate Deputy Minister Dion
specified that, in his opinion, the point was not to determine whether the
apologies were sincere or not. Rather, in his opinion the apologies appeared
inadequate in the circumstances. Under cross-examination, he stated that,
at later meetings including the meeting at which the Deputy Minister made his
decision, he did not recall discussions about these apologies being offered.
[Emphasis
added.]
[58]
She
then wrote, at paragraphs 168 to 175:
¶168 It was
alleged that the Senior Advisor presented a document that falsified the facts.
In her executive summary, she did not inform the Deputy Minister of the offer
to apologize that she herself had heard the grievor utter. In that document she
wrote that, at the February 2, 2000 meeting, the grievor had not acknowledged
wrongdoing and had not offered apologies (Exhibit E-34, page 3). As well,
in the memorandum accompanying the executive summary (Exhibit E-35, page 2)
and containing her recommendations, she indicates that the grievor:
[TRANSLATION]
. . . . .
7. Denied any wrongdoing, showed no concern
for the complainant or even for [the other female lawyer], and
expressed no desire to apologize, from the time he was first informed of the
allegations by Mario Dion and the Senior Advisor until his final submissions
were presented;
.
. . . .
¶169 Although the
grievor may be convinced that he offered sincere apologies, the wording he used
throughout this matter leaves room for interpretation. That was
what the Senior Advisor and Associate Deputy Minister Dion concluded. Before
Adjudicator Bertrand, the grievor was quite clear: [translation] “. . . I am
prepared to apologize, Madam Chair, I am prepared to apologize if I made a
misstep, if I ever failed to express myself properly and if they misinterpreted
my comments. I never wanted to harass anyone.” (page 111 of Henri Bédirian’s
examination and cross-examination, August 22, 2001).
¶170 This wording
of the apologies offered by the grievor, even before Adjudicator Bertrand, is
conditional: if the complainants have misinterpreted his words, he will
apologize. He does not acknowledge having “made a misstep”. However, he does
not appear to acknowledge that his apologies are conditional.
¶171 At the
hearing before Adjudicator Bertrand, the grievor acknowledged issuing a blanket
denial of all the allegations of which the Senior Advisor and Associate Deputy
Minister Dion informed him in February 2000 (page 51 of his August 22,
2001 examination and cross-examination): [translation] “. . . I realize that I
issued a blanket denial of all those allegations, the way they threw them at
me; I did not admit to any incident for which I was blamed.” Thus it cannot
be concluded that the assessment of the grievor’s statements by Associate
Deputy Minister Dion and the Senior Advisor was erroneous.
¶172 As well, the
Deputy Minister testified that he alone made the decision to suspend the
grievor and to relieve him of his staff management responsibilities. The Deputy
Minister confirmed that he did not recall being told that apologies had been
offered by the grievor. However, when the Deputy Minister explained the
factors taken into consideration in determining the appropriate disciplinary
measure, he did not note a lack of contrition or an absence of apologies by the
grievor.
¶173 The Deputy
Minister stated, instead, that he took into consideration a number of other
factors. The responsibility of the employer and the managers under the
departmental workplace harassment prevention policy was the first factor. He
also took into consideration the fact that not just one but two respected
investigators had come to the conclusion that two allegations were founded. As
well, he took into consideration the fact that the grievor had received
workplace harassment prevention training and that the Office had already
intervened with the grievors and managers at the QRO. Lastly, given the matter
in its entirety and the fact that the grievor was a manager, the Deputy
Minister considered it inappropriate to allow the grievor to continue in his
responsibilities. That said, a demotion was not called for, and the Deputy
Minister protected the grievor's classification level.
¶174 It was not
established that the representations by the Senior Advisor concerning the
apologies had a determining effect on the disciplinary measure imposed. The
Deputy Minister based his decision on the information then available to him,
which was mainly made up of the investigation report prepared by two
experienced investigators who found merit in two allegations out of a total of
seven.
¶175 It was only
when the entire matter was considered in detail by Adjudicator Bertrand that
she found that certain conclusions of the investigation were erroneous, that
the grievor could be blamed only for inappropriate comments, and that the
disciplinary measure imposed by the Deputy Minister was inappropriate and
should have been limited to a reprimand.
[Emphasis
added.]
[59]
However,
it should be noted that, in preparing their recommendations for the Deputy
Minister, the investigators twice noted that the respondent had not made any
apology (A.B. vol. V, pages 1380 and 1381). Paragraph 172 of adjudicator
Matteau’s decision indicates that the Deputy Minister did not mention before
her that the respondent’s lack of contrition or failure to apologize was a
factor in making the decision.
[60]
I
accept adjudicator Matteau’s finding of fact at paragraph 174 of her decision,
that:
¶174 It was not
established that the representations by the Senior Advisor concerning the
apologies had a determining effect on the disciplinary measure imposed. The Deputy
Minister based his decision on the information then available to him, which was
mainly made up of the investigation report prepared by two experienced
investigators who found merit in two allegations out of a total of seven.
[Emphasis
added.]
CONCLUSION
[61]
I
conclude that the order made by adjudicator Matteau, in which she dismissed the
claim for damages in the grievance, is well founded. The trial judge erred in
finding otherwise.
[62]
I
would allow the appeal and would set aside the judgment of the Federal Court
dated October 17, 2006 and I would dismiss the application for judicial review.
“Alice
Desjardins”
I
concur.
Marc Noël J.A.
I
concur.
M. Nadon J.A.
Certified
true translation
Brian
McCordick, Translator
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