Docket: A-368-15
Citation:
2016 FCA 115
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CORAM:
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GAUTHIER J.A.
SCOTT J.A.
RENNIE J.A.
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BETWEEN:
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MARY ALICE
LLOYD
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Applicant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
RENNIE J.A.
[1]
Mary Alice Lloyd has brought this judicial review application
to set aside the decision dated July 23, 2015 of an adjudicator of the Public
Service Labour Relations and Employment Board (the Board). In the decision (2015
PSLREB 67), the adjudicator dismissed the applicant’s
grievance against a 40-day disciplinary suspension by her employer, the Canada
Revenue Agency (CRA).
[2]
In my view, the decision should be set aside in part. A
brief summary of the facts and reasons of the adjudicator provides the
necessary context.
[3]
In February 2006, the applicant was on long-term
disability leave. A grievance relating to her disability leave was pending. One
of the disputed issues in the grievance was whether the applicant had sent an
email dated June 30, 2005 to her supervisor. At the grievance hearing, the applicant
intended to prove that she had in fact sent that email.
[4]
Because she was on leave, the applicant was
required to ask CRA’s IT department to copy data from her home drive (H: drive,
which CRA employees used to store both personal information and work in
progress) where the email resided, and deliver it to her.
[5]
After advising her team manager of her request
and obtaining his permission, the applicant communicated with the CRA’s IT
department in order to procure a copy of the desired email on her H: drive. The
exact nature of these communications was a matter of dispute before the
adjudicator – both the communication between the applicant and her manager (at
least two conversations) and between the applicant and the IT manager she
initially contacted to obtain a work authorization or “ticket”, were contested.
Neither this person, nor the applicant’s team manager testified. The employee
from IT who actually performed the work did testify.
[6]
The IT department copied the entire H: drive,
rather than just the email in question. This copy of the applicant’s H: drive
was delivered to her by CRA in the form of approximately 16 CDs.
[7]
The applicant received the CDs in the lobby of
her workplace. She took the CDs home, viewed them, and found the email she
required. She labelled the CDs and stored them in a locked cabinet provided by
CRA until the time they were required for the grievance hearing. In 2008, as
her own computer was not working, she used the laptop of her then-boyfriend to
make two copies of the relevant CD.
[8]
In the course of the adjudication of the applicant’s
disability grievance the applicant produced a paper print-out of the June
email. Counsel for CRA objected to its admissibility, and demanded production
of the CD in order to prove the existence of the email. The applicant then produced
all 16 of the CDs, advising that as they contained taxpayer information their confidentiality
should be protected. CRA seized the CDs.
[9]
The CRA’s Internal Audit and Fraud Prevention
Directorate (IAFPD) began an investigation. The CRA administratively suspended
the applicant indefinitely on November 6, 2009 based on the IAFPD’s preliminary
findings. Over a year later, on December 22, 2010, the IAFPD released its final
report.
[10]
The CRA imposed a 40-day disciplinary suspension
on March 17, 2011. The Notice of Disciplinary Action set out the reasons for
imposing the suspension:
1.
That the applicant had removed from the
workplace unprotected CDs containing taxpayer information and downloaded them
onto a non-CRA device.
2.
That the applicant had not attempted to limit
the quantity of information removed.
3.
That the contents of the CDs had been downloaded
to her computer and her then-boyfriend’s laptop.
4.
That her conduct breached section 241 of the Income
Tax Act R.S.C., 1985, c. 1 (5th Supp.) (ITA), and that her job as a
criminal investigator involved investigating such breaches in the criminal
context, meaning she was familiar with the seriousness of such breaches.
5.
That she did not cooperate in immediately
turning over her computer and her then-boyfriend’s laptop.
6.
That there was continuous and ongoing risk of
release and disclosure of high volumes of sensitive taxpayer information.
7.
That the applicant did not show remorse.
[11]
Ultimately, the adjudicator found that “the evidence clearly supports the employer’s reasons for
imposing discipline and that it considered all mitigating factors. In fact, the
evidence supports the claim that, but for these mitigating factors, Ms. Lloyd’s
employment would have been terminated” (paragraph 360). He continued at
paragraph 363, noting that “[r]emoving taxpayer
information from the work site without a specific need and without very
explicit approval is, I believe, an action not be condoned.” He
dismissed the grievance.
[12]
The decision of the adjudicator is to be
reviewed on a standard of reasonableness: Bridgen v. Canada (Correctional
Service), 2014 FCA 237. Reasonableness requires that the outcome be justified
by transparent and intelligible reasons: Dunsmuir v. New Brunswick, 2008
SCC 9, [2008] 1 S.C.R. 190. The reasons in respect of the suspension of 40 days
do not meet this standard.
[13]
The adjudicator examined the events surrounding
the delivery to the applicant of a copy of her H: drive, and whether the
applicant requested the entire drive or simply her personal email, or whether
she was told that they would have to copy the entire drive. The adjudicator’s
treatment of the evidence on these issues, and their relation to the
appropriateness of the suspension, is problematic.
[14]
The adjudicator noted that the applicant’s
position was that she requested that only the email be copied, and was told
that the entire H: drive had to be copied. However, the adjudicator concluded
that this issue was not “relevant”, and declined
to make a finding on the matter, although it was central to the allegations of
misconduct that justified the 40-day suspension. He did conclude, as noted,
that she had removed taxpayer information without need and express authorization
in contravention of CRA policy.
[15]
The adjudicator also discussed the contested
issue of whether any information was downloaded to the applicant’s computer or
her boyfriend’s laptop. He noted that this was one of the key factors
considered in imposing the 40-day suspension, as it underlay the ongoing risk
of disclosure of taxpayer information. However, the adjudicator was ultimately of
the opinion that nothing significant turned on this point (paragraphs 310-317).
He determined this to be “an irrelevant technical
question” (paragraph 352), less important than the fact that the CDs had
been inserted into a non-CRA device.
[16]
In consequence, there was no factual basis upon
which it could be concluded that section 241 of the ITA was breached. A
breach of section 241 requires that the applicant knowingly disclosed taxpayer
information, and thus the applicant would have needed to know that by
inserting a CD into a computer or laptop in order to view or copy information
that the information contained therein would be downloaded to the device’s hard
drive. The applicant testified that she did not know that information
would be downloaded from the CDs when she inserted them first into her
computer, and then her boyfriend’s laptop. Again, the adjudicator never made a
finding on this issue.
[17]
I note, parenthetically, CRA’s submission at the
adjudication that the word “knowingly” in
section 241 was mere “semantics”. This is deeply
troubling. The language of Parliament is never “semantics”,
and it is an elementary concept of law that the word “knowingly”
engages a critical and essential element of mens rea. Allegations of
violations of section 241, being a criminal provision, should not be lightly
made, and there was, on the record here, no foundation for the allegation of
its breach.
[18]
One element of the Notice of Disciplinary Action
remains. The applicant loaded a CD onto her ex-boyfriend’s laptop for the
purpose of viewing its contents and making a copy of the CD containing the June
email (The email itself does not contain taxpayer information). This was in
violation of the CRA policy which expressly precludes the copying of CRA
information using computers that do not belong to CRA. The applicant admitted
this was a breach of CRA policy and the adjudicator found accordingly.
[19]
The applicant and CRA propose different
interpretations of the adjudicator’s conclusion at paragraph 360:
I find that the evidence clearly supports
the employer’s reasons for imposing discipline and that it considered all
mitigating factors. In fact, the evidence supports the claim that but for these
mitigating factors, Ms. Lloyd’s employment would have been terminated.
[20]
Counsel for CRA contends that the adjudicator’s assessment
of the 40-day suspension was based solely on the two elements of the Notice of Disciplinary
Action which he found to have been established – the removal of taxpayer
information without express authority of her manager and the copying of the email
using a non-CRA device. The applicant, on the other hand, says that the adjudicator
confirmed the 40-day suspension based on all the elements of the Notice of
Disciplinary Action having being established.
[21]
The preferred reading of paragraph 360 is that
offered by the Crown. The adjudicator expressly considered all of the elements
in the Notice of Disciplinary Action and, after a review of the evidence, made
no findings as to whether the applicant “knowingly”
provided access to taxpayer information to anyone. Further, he considered
whether the information was downloaded and thus disclosed to be irrelevant.
This understanding of paragraph 360 has implications.
[22]
The reasons in support of the 40-day suspension,
however, cannot be sustained. The 40-day suspension was predicated on CRA’s
allegation that there was, in the language of the Notice of Disciplinary
Action, “a continued and ongoing risk of disclosure of
sensitive taxpayer information” arising from the downloading of the CDs
on to the computers of the applicant and her then boyfriend, as well as the
allegation that the applicant had breached section 241. The adjudicator
dismissed these as either irrelevant or made no finding.
[23]
The adjudicator was required to consider the
appropriateness of the length of the 40-day suspension in light of the two acts
of misconduct that had been established – the removal of taxpayer information
without express authority and the use of the non-CRA devices to copy the CD
containing the email. This he did not do.
[24]
In light of the adjudicator’s findings, even on a
generous application of the principles in Newfoundland and Labrador Nurses'
Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3
S.C.R. 708, the basis upon which the 40-day suspension was justified cannot be discerned
without engaging in speculation and rationalization. As I noted in Komolafe
v. Canada (Citizenship and Immigration), 2013 FC 431, at para. 11:
Newfoundland Nurses is not an open invitation to the Court to provide reasons that were
not given, nor is it licence to guess what findings might have been made or to
speculate as to what the tribunal might have been thinking. This is
particularly so where the reasons are silent on a critical issue. It is ironic
that Newfoundland Nurses, a case which at its core is about deference
and standard of review, is urged as authority for the supervisory court to do
the task that the decision maker did not do, to supply the reasons that might
have been given and make findings of fact that were not made. This is to turn
the jurisprudence on its head. Newfoundland Nurses allows reviewing
courts to connect the dots on the page where the lines, and the direction they
are headed, may be readily drawn. Here, there were no dots on the page.
[25]
I would allow the application, in part, with
costs, fixed in the agreed upon amount of $3,000.00, all inclusive. I would remit
the matter to the adjudicator, or if unavailable to another duly appointed adjudicator,
for re-determination of the appropriateness of the suspension in light of the findings
that the applicant breached CRA policy by removing taxpayer information without
express authority from her employer and her utilization of non-CRA devices to make
copies of the CD containing her email. At this point the parties will be at
liberty to make submissions in respect of condonation or any other argument
that the adjudicator may find relevant to determine the length of the
suspension that could be justified by these two findings.
"Donald J. Rennie"
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“I agree
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Johanne Gauthier J.A.”
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“I agree
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A.F. Scott J.A.”
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