Dockets:
A-203-14
A-206-14
Citation:
2015 FCA 206
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CORAM:
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NADON J.A.
WEBB J.A.
BOIVIN J.A.
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Docket: A-203-14
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BETWEEN:
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SHIV CHOPRA
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Appellant
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and
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ATTORNEY
GENERAL OF CANADA
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Respondent
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Docket: A-206-14
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AND BETWEEN:
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MARGARET HAYDON
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Appellant
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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 OF THE COURT
(Delivered from the Bench at Ottawa, Ontario, on
September 22, 2015).
NADON J.A.
[1]
In appeals A-203-14 and A-206-14, the appellants
and the respondent take issue with that part of Mactavish J.’s decision of
March 25, 2014 (2014 FC 246)wherein she held that the adjudicator, in a
decision dated August 4, 2011 (2011 PSLRB 99), had failed to address material
facts and arguments relevant to the issues of delay and condonation. Hence, on
that basis, she allowed the appellants’ judicial review applications and
returned the matter to the adjudicator for redetermination in accordance with
her reasons.
[2]
The appellants challenge the Judge’s decision on
the grounds that she failed to deal with five of the six substantive issues
raised by them in support of their submission that the adjudicator’s decision
should be set aside. The appellants say that the five unaddressed issues raise
important questions with respect to the law on public statement by public
service employees which, if successful, are determinative of their judicial
review applications.
[3]
As, in their view, the adjudicator’s
redetermination decision will be limited to the issue of condonation, the
appellants say that by not addressing the five issues, the Judge has, in
effect, prevented them from obtaining a decision on the merits of these issues.
Thus, in the circumstances, if they are not successful on the redetermination
of the condonation issue, they will have lost the opportunity of having the other
issues determined and consequently will suffer prejudice.
[4]
As we understand the appellants’ position, their
premise is that the adjudicator’s decision of August 4, 2011 is now final other
than in respect of the issue of condonation.
[5]
In our opinion, the appeals should be dismissed.
[6]
Because of her conclusion that the appellants’
judicial review applications were to be allowed on the ground that the
adjudicator had made a reviewable error with regard to whether Health Canada,
the appellants’ employer, had condoned their conduct, the Judge stated at
paragraph 221 of her reasons that there was no need for her to address the
other substantive arguments put forward by the appellants regarding the
speaking out grievances.
[7]
As a result, the Judge granted the appellants’
judicial review applications (in Federal Court files T-2029-11 and T-2030-11)
and remitted the matter back to the same adjudicator for redetermination in
accordance with her reasons. By granting the appellants’ judicial review
applications, the Judge necessarily was setting aside the adjudicator’s
decision (see paragraph 221 of her reasons). This means, in our respectful
opinion, that the adjudicator’s decision of August 4, 2011 is no longer valid,
it is of no effect.
[8]
In our view, the adjudicator’s redetermination
decision will constitute a “new decision” and will be subject to a full
challenge by any of the parties if not satisfied with the result. In other
words, should the appellants wish to raise any of the issues which they say the
Judge failed to address, they shall be at liberty to do so.
[9]
Consequently, we cannot agree with the
appellants that by failing to address the other five substantive issues raised
in their challenge of the adjudicator’s decision, the Judge has precluded them
from raising these issues in the context of a judicial review application of
the adjudicator’s redetermination decision.
[10]
For these reasons, the appeals will therefore be
dismissed with costs.
[11]
We now turn to the respondent’s cross appeals
wherein the respondent says that the Judge was wrong to disturb the adjudicator’s
determination of the issue of condonation, i.e. that Health Canada had not
condoned the appellants’ conduct.
[12]
In our view, there is no basis to intervene. We
have not been persuaded that the Judge erred in concluding, as she did at
paragraph 220 of her reasons, that the adjudicator had failed to address
material facts and arguments relevant to the issues of delay and condonation.
In other words, we are satisfied that it was open, on the record before her,
for the Judge to reach her conclusion.
[13]
The cross appeals will therefore be dismissed
with costs.
“M. Nadon”
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