Date: 20070517
Docket: A-169-06
Citation: 2007 FCA 192
CORAM: SEXTON
J.A.
PELLETIER
J.A.
MALONE
J.A.
BETWEEN:
LILLIAN SHNEIDMAN
Appellant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
SEXTON J.A.
[1]
This is an
appeal from a decision of Simpson J. of the Federal Court in Attorney
General of Canada v. Lillian Shneidman, 2006 FC 381. In the court below,
Justice Simpson allowed an application for judicial review by the Attorney
General of Canada (the “Employer”) from a decision of an adjudicator appointed
under the Public Service Staff Relations Act, R.S.C., c. P-35 (the
“Adjudicator”), in which the Adjudicator determined that the termination of Lillian
Shneidman’s employment with the Canada Customs and Revenue Agency (“CCRA”) was
void ab initio.
[2]
For the
reasons that follow, I would dismiss the appeal.
FACTUAL BACKGROUND
[3]
Ms. Shneidman
was employed as a Non-Filer/Registrant Field Officer in the Enforcement and
Verification Division of the Toronto North, Tax Services Office of the CCRA. In
2001, an investigation was conducted by the Employer’s Internal Affairs
Division into allegations that Ms. Shneidman had accessed confidential
taxpayers’ information without authorization, and had disclosed that
information to a third party.
[4]
On March 7
and 8, 2001, Ms. Shneidman met with Normand Rodrigue, a Senior Investigator
with the Employer’s Internal Affairs Division Security Directorate assigned to investigate
the allegations. Ms. Shneidman asked Mr. Rodrigue prior to the first meeting
whether she should have a union representative present. He responded that there
would be no point because the union representative would not be permitted to
make representations during the meeting. Ms. Shneidman therefore attended the
meetings without a union representative.
[5]
After his
investigation, Mr. Rodrigue prepared an investigation report in which he
concluded that the allegations against Ms. Shneidman had been substantiated. Ms.
Shneidman was asked to prepare a response to the investigation report. To
assist her in preparing this response, the Employer was prepared to allow Ms.
Shneidman to view a redacted version of the report with her union representative.
However, Ms. Shneidman’s request to view the complete report with the
assistance of her union representative was refused. She was told that she would
be permitted to read the complete version of the report in the presence of her
union representative, but that the union representative could not see the
report, nor could Ms. Shneidman take notes while reviewing that version of the
report. The Employer took the position that the redacted portions could not be
revealed except to Ms. Shneidman because they contained confidential taxpayer
information. Ms. Shneidman deemed these conditions unsatisfactory and therefore
did not prepare a response to the report. On May 18, 2001, Ms. Shneidman’s
employment with the CCRA was terminated.
[6]
Ms.
Shneidman grieved the termination on May 24, 2001. The grievance provided as
follows:
I grieve the letter of
dismissal given to me on May 18, 2001 by Don Collins and signed by Gerry Troy.
I maintain that this decision to terminate my employment is unwarranted,
unreasonable, excessive and without just, reasonable and sufficient cause.
[7]
The CCRA’s
grievance procedure requires that grievances dealing with termination are first
considered at the final level of the internal grievance process. Ms.
Shneidman’s grievance was denied at this level on June 26, 2003. She therefore
referred her grievance to adjudication and a hearing was scheduled for May 25
to 28, 2004.
[8]
One week
prior to the hearing, on May 18, 2004, Ms. Shneidman raised a preliminary
objection, arguing that her rights under article 17.02 of the collective
agreement between the Public Service Alliance of Canada and the CCRA had been
violated when she was denied union representation at her meetings with Mr.
Rodrigue and in reading the unredacted version of the investigation report.
Article 17.02 provides as follows:
When an employee is
required to attend a meeting, the purpose of which is to conduct a disciplinary
hearing concerning him or her or to render a disciplinary decision concerning
him or her, the employee is entitled to have, at his or her request, a
representative of the Alliance attend the meeting.
Where practicable, the employee shall receive a minimum of one day’s notice of
such a meeting.
[9]
According
to Ms. Shneidman, the violation of article 17.02 rendered her termination void ab
initio.
[10]
The Adjudicator’s
decision regarding this preliminary objection was the subject of judicial
review before Justice Simpson and is now the subject of the appeal to this
Court.
DECISIONS BELOW
1) Decision of the Adjudicator
[11]
The first
issue addressed by the Adjudicator was whether she had jurisdiction to consider
the preliminary objection, a question that turned on whether the wording of the
grievance was broad enough to include a challenge to the validity of the
disciplinary action because of a denial of contractual due process. The
Adjudicator concluded that the grievance was sufficiently broad to give her
jurisdiction over the preliminary objection. In her view, the grievance
language encompasses any argument that challenges the validity of the
termination of employment, including the claim that the termination was void ab
initio because of a violation of contractual due process.
[12]
Next, the
Adjudicator looked to article 17.02 and considered whether the term
“disciplinary hearing” used in the provision includes the investigatory
meetings with Mr. Rodrigue and the viewing of the unredacted investigation
report. In the Adjudicator’s view, these situations were both disciplinary
hearings. Denying Ms. Shneidman union representation, therefore, amounted to a
violation of article 17.02. The appropriate remedy for this violation,
according to the Adjudicator, was to render the termination of Ms. Shneidman’s
employment void ab initio.
2) Decision of Simpson J.
[13]
In the
Federal Court, Simpson J. held that the Adjudicator had incorrectly taken
jurisdiction over the preliminary objection and thus allowed the application
for judicial review on that basis.
[14]
According
to Justice Simpson, section 92 of the Public Service Staff Relations Act,
R.S.C., c. P-35 (“PSSRA”), which dictates the types of grievances that may be
referred to adjudication, distinguishes between grievances relating to
collective agreements and grievances relating to termination of employment. In
her view, Ms. Shneidman’s grievance relates only to the Employer’s decision to
terminate Ms. Shneidman’s employment, not to violations of the collective
agreement. Because the grievance did not invoke the collective agreement,
Justice Simpson concluded that the Adjudicator had no jurisdiction to consider
the effect of article 17.02. Accordingly, she set aside the decision of the Adjudicator.
In light of this holding, Simpson J. found it unnecessary to consider the other
aspects of the Adjudicator’s decision.
STANDARD OF REVIEW
[15]
A point of
considerable divergence between the parties is the standard of review to be
applied to the Adjudicator’s conclusion that she had jurisdiction over Ms.
Shneidman’s grievance. In the court below, Simpson J. reviewed the
Adjudicator’s decision against a standard of correctness. Ms. Shneidman submits
that the pragmatic and functional analysis should have directed Justice Simpson
to apply a standard of patent unreasonableness. The Employer, conversely,
supports Justice Simpson’s conclusion that a standard of correctness is
appropriate in the circumstances.
[16]
It is now
well-established that courts reviewing the decisions of administrative
decision-makers must apply the pragmatic and functional approach to determine
the applicable standard of review: Dr. Q v. College of Physicians and
Surgeons of British Columbia, [2003] 1 S.C.R. 226 at paragraph 25 (“Dr.
Q”), Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at
paragraph 21, Pusphanathan v. Canada (Minister of Citizenship and
Immigration), [1998] 1 S.C.R. 982 at paragraph 27 (“Pushpanathan”). The
Supreme Court of Canada has explained that questions which are jurisdictional
in nature are nevertheless to be subject to the pragmatic and functional
inquiry: Pusphanathan at paragraph 28. The pragmatic and functional
approach involves consideration of four contextual factors: the nature of the
question at issue, the relative expertise of the tribunal, the presence or
absence of a privative clause or statutory right of appeal, and the purpose of
the legislation and the provision in particular: Dr. Q at paragraph 26. The
Supreme Court has stressed, however, that the factors should not be applied
mechanically; the task for the Court in conducting the analysis is to ascertain
the core issues affecting the appropriate standard of review: Dr. Q at
paragraph 26.
[17]
In the
present case, this Court stands in review of a decision of the Federal Court.
At this secondary appellate level, the role for the Court is to assess whether
the reviewing judge chose and applied the correct standard of review. Thus, the
normal standards of appellate review articulated in Housen v. Nikolaisen,
[2002] 2 S.C.R. 235 (“Housen”) apply: Dr. Q at paragraph 43, Davies
v. Canada (Attorney General), 2005 FCA 41 at paragraph 7
(“Davies”). Questions of law are reviewed on a standard of correctness: Housen
at paragraph 8. Questions of fact are reviewed on a standard of palpable and
overriding error: Housen at paragraph 10. Questions of mixed fact and law
are likewise reviewed on a standard of palpable and overriding error, unless the
lower court judge made an extricable error of law: Housen at paragraph
37. The lower court’s assessment of the proper standard of review is a matter
of law to be reviewed against a standard of correctness: Davies at
paragraph 8. Consequently, it is appropriate for this Court to conduct its own
pragmatic and functional analysis to assess whether Justice Simpson identified
the correct standard with which to review the Adjudicator’s decision.
[18]
The first
factor relevant to the pragmatic and functional analysis is the nature of the
question at issue. The question that concerns us here is whether the
Adjudicator properly interpreted the criteria setting out the boundaries of an
Adjudicator’s jurisdiction in subsection 92(1) of the PSSRA. This is a pure
question of law and thus suggests that little deference should be shown to the
Adjudicator’s decision.
[19]
A second
factor bearing on the appropriate standard of review is the relative expertise
of PSSRA adjudicators relative to the expertise of courts in assessing the
question at issue. Decision-makers under the PSSRA have been found to have
considerable expertise in labour relations matters such as the interpretation
of collective agreements: Public Service Alliance of Canada v. Canada (Canadian
Food Inspection Agency), 2005 FCA 366, Canada (Attorney General) v. Public Service
Alliance of Canada,
[1993] 1 S.C.R. 941 at page 952 (“PSAC”). However, this Court has held
that PSSRA adjudicators cannot claim expertise in interpreting the PSSRA, a
factor that suggests less deference should be accorded to such decisions: Canada
v. Marinos, [2000] 4 F.C. 98 at paragraph 16 (F.C.A.).
[20]
The other
factors to be considered are the presence or absence of a privative clause and
statutory right of appeal, and the purpose of the legislation. The PSSRA
contains neither a privative clause nor a statutory right of appeal, thus
favouring neither a high nor low level of deference to the Adjudicator’s
decision. Finally, the purpose of the legislation is to provide federal public
service employees an effective system of redress for their grievances, a factor
that may suggest some deference is owed: PSAC at 952, Canada (Attorney General) v. Assh, 2005 FC 734 at paragraph 9.
[21]
Viewed in
their totality, these factors lead me to conclude that Simpson J. correctly
held that the appropriate standard of review to be applied to the Adjudicator’s
decision regarding her jurisdiction to hear Ms. Shneidman’s complaint is correctness.
ANALYSIS
[22]
The sole
question considered by the Adjudicator in her analysis of the jurisdictional
issue was whether the text of Ms. Shneidman’s grievance was broad enough to
encompass a claim that her termination was void ab initio because of a
violation of her procedural rights under the collective agreement. In the
Adjudicator’s view, the grievance was sufficiently broad. She therefore concluded
that she had jurisdiction over the preliminary objection.
[23]
On
judicial review, Justice Simpson agreed that the issue was whether the
grievance could be read to encompass pre-termination violations of the
collective agreement. She concluded, however, that the grievance did not encompass
a complaint about violations of article 17.02 of the collective agreement.
Justice Simpson therefore allowed the appeal.
[24]
In my
view, however, before considering the breadth of the grievance, it was
necessary to ask whether Ms. Shneidman “presented a grievance” regarding the
violation of her rights under article 17.02 of the collective agreement to the
final level within the meaning of the opening words of subsection 92(1) of the
PSSRA. Whether or not the language of the grievance is potentially broad enough
to include a complaint that the collective agreement has been violated, the
complaint will not be permitted to proceed to adjudication, and thus will not
be in the adjudicator’s jurisdiction, unless it has been specifically raised at
the final level. Neither the Adjudicator nor Justice Simpson considered this preliminary
question of whether the specific claims relied upon by Ms. Shneidman before the
Adjudicator had been raised at the final level. After considering this question,
I find no basis for interfering with Simpson J.’s conclusion that the Adjudicator
erred in taking jurisdiction over Ms. Shneidman’s complaint that her collective
agreement rights were violated.
[25]
Subsection
92(1) of the PSSRA sets out criteria for referring a grievance to adjudication.
It directs that only those grievances presented “up to and including the final
level in the grievance process” can be referred to adjudication:
|
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.
|
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.
|
[26]
To refer a complaint
to adjudication, the grievor must have given her employer notice of the
specific nature of her complaints throughout the internal grievance procedure: Canada (Treasury Board) v. Rinaldi, [1997] F.C.J. No. 225 at paragraph 28 (F.C.T.D.)
(“Rinaldi”). As Thurlow C.J. (as he then was) indicated in Burchill
v. Canada, [1981] 1 F.C. 109 (F.C.A.), only those grievances that have been
presented to and dealt with by all internal levels of the grievance process may
subsequently be referred to adjudication:
In our view, it was not open to the applicant,
after losing at the final level of the grievance procedure the only grievance
presented, either to refer a new or different grievance to adjudication or to
turn the grievance so presented into a grievance complaining of disciplinary
action leading to discharge within the meaning of subsection 91(1). Under that
provision it is only a grievance that has been presented and dealt with under
section 90 and that falls within the limits of paragraph 91(1)(a) or (b) that
may be referred to adjudication. In our view the applicant having failed to
set out in his grievance the complaint upon which he sought to rely before the
Adjudicator, namely, that his being laid off was really a camouflaged
disciplinary action, the foundation for clothing the Adjudicator with
jurisdiction under subsection 91(1) was not laid. Consequently, he had no such
jurisdiction.
(See
also Schofield v. Canada (Attorney General), 2004 FC 622)
[27]
Where the grievance
on its face is sufficiently detailed, the employer will have notice of the nature
of the employee’s grievance at all levels. However, where, as here, it is not
clear on the face of the grievance what grounds of unlawfulness will be relied
upon by the employee, the employee must provide further specification at each
stage of the internal grievance process as to the exact nature of her complaint
if she intends to refer the matter to adjudication.
[28]
Both parties benefit
from this notice requirement. The employer must understand the nature of the
allegations to be able to adequately respond to them. The employee likewise benefits
from the notice requirement because it allows her to understand the reasons why
the employer has rejected her grievance. Indeed, the notice requirement has been
found to be a critical component of the conciliation process provided for in
the PSSRA: Rinaldi at paragraph 22.
[29]
In the present case, although
the wording of Ms. Shneidman’s grievance might arguably have been broad enough
to encompass violations of contractual due process, a person reading the
grievance would not know that she intended to allege that her rights to union
representation under article 17.02 of the collective agreement had been
violated. Ms. Shneidman implicitly acknowledged this fact when she advised the
Public Service Staff Relations Board by letter one week prior to the hearing
before the Adjudicator of her intention to raise the issue of the violation of
the collective agreement at the outset of the hearing.
[30]
Consequently, if she
intended to raise the issue relating to representation by her union
representative as part of her grievance, Ms. Shneidman was required to make
submissions to this effect at the final level. She failed to do so and therefore
it was not open to her to raise the argument in front of the Adjudicator. In
answer to a question as to what notice had been provided by Ms. Shneidman with
respect to the issue of lack of union representation, counsel for both parties
could only point to two letters written by Ms. Shneidman. In the first letter,
dated May 15, 2001, from Ms. Shneidman to Don Collins, Assistant Director,
Revenue Collections, Ms. Shneidman does make reference to the denial of
appropriate union representation. However, this cannot be sufficient to present
the grievance at the final level because the letter preceded the filing of the
grievance, which took place on May 24, 2001. Indeed, the letter even preceded
her dismissal. The second letter, dated May 29, 2001, from Ms. Shneidman to Rob
Wright, Commissioner, CCRA, contains no reference to the denial of union
representation. The Adjudicator therefore did not have jurisdiction to consider
Ms. Shneidman’s preliminary objection.
[31]
Having found that the
Adjudicator erred in holding that she had jurisdiction over Ms. Shneidman’s
preliminary objection, it is unnecessary to consider the additional issues
raised in this appeal, namely, whether article 17.02 of the collective
agreement was violated and the appropriate remedy for any such violation.
DISPOSITION
[32]
For the
foregoing reasons, I would dismiss the appeal with costs.
"J. Edgar Sexton"
"I
agree
J.D. Denis Pelletier J.A."
"I
agree
B. Malone J.A."
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