Docket: A-282-15
Citation: 2016 FCA 149
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CORAM:
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PELLETIER J.A.
WEBB J.A.
DE MONTIGNY J.A.
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BETWEEN:
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DONALD JAMES
SATHER
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Applicant
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and
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DEPUTY HEAD
(CORRECTIONAL
SERVICE OF CANADA)
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Respondent
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REASONS FOR
JUDGMENT
PELLETIER J.A.
[1]
Mr. Sather (the Applicant) brings this
application for judicial review of the decision of an adjudicator appointed pursuant
to the Public Service Labour Relations and Employment Board Act, S.C.
2013, c. 40, s. 365, dismissing his grievance of his dismissal from employment
with the Correctional Service of Canada (the Employer). The adjudicator’s
decision is cited as 2015 PSLREB 45 (the Decision). The basis of the dismissal
was the allegation that the Applicant committed an infraction of the Commissioner’s
Code of Discipline when he committed an act of personal or sexual
harassment against another staff member by sexually assaulting the complainant.
The Applicant grieved his dismissal and, while he did not testify on his own
behalf, his defence was that the sexual relations between him and the
complainant were consensual. He sought to establish this defence by attacking
the complainant’s credibility.
[2]
The adjudicator, having considered all the
evidence, found that while some of the complainant’s evidence was not credible,
her evidence that she did not consent to having sexual relations with the Applicant
was credible. He went on to find that he was entitled to draw an adverse
inference from the fact that the Applicant did not testify as to his version of
events. The adjudicator, therefore, dismissed the grievance.
[3]
Before us, the Applicant renewed his attack on
the complainant’s credibility. Counsel for the Applicant conceded that the
adjudicator was free to believe the complainant with respect to some aspects of
her evidence and to disbelieve her with respect to other aspects. He also
conceded, following the teachings of the Supreme Court of Canada in R. v.
Ewanchuk [1999] 1 S.C.R. 330 as re-affirmed in R. v. J.A. 2011 SCC
28, [2011] 2 S.C.R. 440, at paragraph 34, that consent means consent to the
sexual acts in question at the time they occurred. However, counsel for the
Applicant also relies on paragraph 30 of the Ewanchuk decision in which
the Supreme Court of Canada held that:
The complainant's statement that she did not
consent is a matter of credibility to be weighed in light of all the evidence
including any ambiguous conduct. The question at this stage is purely one of
credibility, and whether the totality of the complainant's conduct is
consistent with her claim of non-consent.
[4]
Counsel’s submissions were essentially that when
all of the evidence is considered, including the instances where the
adjudicator found that the complainant was not credible with respect to specific
items, the adjudicator could not reasonably conclude that the complainant’s
evidence that she did not consent to having sexual relations with the Applicant
was credible.
[5]
The standard of review of the decision of an
arbitrator is reasonableness with respect to questions of fact. The question as
to whether the complainant consented to have sexual relations with the
complainant at the time those relations occurred is a pure question of fact. As
a result, the Applicant must show, as he attempted to do, that the
adjudicator’s decision was unreasonable.
[6]
The adjudicator began his analysis by
recognizing that in civil matters, there is only one standard of proof and that
is proof on a balance of probabilities. He then quoted extensively from the Ewanchuk
and J.A cases on the issue of consent. The adjudicator then reviewed
the evidence, acknowledging the inconsistencies in the complainant’s evidence
to which counsel for the Applicant drew his attention. He drew conclusions as
to which parts of the complainant’s evidence he believed and which he did not.
On the crucial issue of consent, the adjudicator found that the complainant’s
evidence was “clear that she was not consenting to any
sexual activity”: see the Decision at paragraph 166. After considering
the Applicant’s argument as to the improbability of certain evidence, which the
Employer relied upon to establish the timeline of events, the adjudicator
concluded:
After considering all the evidence, I accept
as credible that the complainant’s evidence shows on the balance of
probabilities, she was sexually assaulted by the grievor.
See the Decision at paragraph 170
[7]
After having come to this conclusion, the
adjudicator then addressed the issue of adverse inference. He noted that there
is no presumption of innocence in civil cases. He then stated that the Applicant’s
failure to testify should result in an adverse inference that his evidence with
respect to sexual assault would not be helpful to his case: see the Decision at
paragraphs 173-175.
[8]
Only two people were present when the sexual
assault is alleged to have occurred. Only one of them gave evidence. If the
complainant is not believed, there is no other evidence in relation to her
consent. The adjudicator clearly understood this:
The complainant’s evidence is uncontradicted
as only she and the grievor were in the truck and he did not testify. It follows
that the only way [the Employer] could not have met its onus to establish that
the sexual assault took place was if the evidence disclosed that the
complainant lacked credibility. Even though a complainant’s testimony may
lack credibility on some issues, her testimony on the substance of the
allegations may pass scrutiny. She can be believed on some matters and not
believed on others while still warranting a finding that she was assaulted.
See the Decision at paragraph 160 (emphasis
added)
[9]
Counsel for the Applicant relied on the
proposition that the Employer could not succeed if the complainant lacked
credibility. As noted, he conceded that the critical issue was whether the
complainant was to be believed when she said she did not consent to the sexual relations
but argued that in light of the omissions, inconsistencies, and improbabilities
to which he pointed, the complainant should be found to lack credibility and,
therefore, it was unreasonable for the adjudicator to find her credible on the
issue of consent. It seems to me that this amounts to arguing that a tribunal
should assess a complainant’s credibility globally and then either believe all
or none of the complainant’s evidence. This is the opposite of what is taught
in Ewanchuk.
[10]
In support of this line of argument, he
painstakingly took us through the evidence and invited us to draw inferences
adverse to the complainant. It hardly needs to be said that this is not our
role. The adjudicator heard all of the evidence, saw all of the witnesses and,
to quote from
R. D. Gibbens in "Appellate Review of Findings of Fact" (1991-92), 13
Advocates' Q. 445, at p. 446, quoted with approval in Housen v. Nikolaisen,
2002 SCC 33, [2002] 2 S.C.R. 235 at paragraph 14:
The insight gained by the trial judge who
has lived with the case for several days, weeks or even months may be far deeper
than that of the Court of Appeal whose view of the case is much more limited
and narrow, often being shaped and distorted by the various orders or rulings
being challenged.
[11]
In these circumstances, the adjudicator is the
trial judge. He lived with this case over several months and was intimately
familiar with all of the evidence. While I have considered the portions of the
evidence to which counsel drew our attention, that evidence must be assessed in
the light of the whole of the evidence. The adjudicator was in a position to do
this. We are not. I was not persuaded that the adjudicator’s assessment of the
evidence was such that it led him to a conclusion that was outside the range of
possible acceptable outcomes. I would not interfere with the adjudicator’s
conclusion that the complainant should be believed when she says that she did
not consent to sexual relations with the Applicant and that, as a result, she
was sexually assaulted.
[12]
As to the issue of drawing an adverse inference,
the Decision makes it clear that the adjudicator decided the issue of the
complainant’s credibility before he considered the effect of the Applicant’s
failure to testify. As I read the Decision, the adjudicator treated the adverse
inference as simply tending to confirm the conclusion to which he had come
after a review of all the evidence. Since this issue is not determinative of
the result, it is not necessary to say any more about it.
[13]
The Applicant also raised the issue of the Employer’s
bad faith and lack of procedural fairness. While the Employer’s initial
disclosure of its investigation report was clearly unsatisfactory in its
liberal use of redactions, the adjudicator ordered full disclosure, which
remedied any potential breach of procedural fairness. The Employer’s possible
bias does not affect the fairness of the proceedings before the adjudicator.
[14]
As a result, I would dismiss the application for
judicial review with costs.
“J.D.
Denis Pelletier”
“I agree.
Wyman W. Webb J.A.”
“I agree.
Yves
de Montigny J.A.”
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