Docket: A-352-13
Citation: 2014 FCA 237
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CORAM:
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NOËL C.J.
GAUTHIER J.A.
NEAR J.A.
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BETWEEN:
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MICHELLE BRIDGEN
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Appellant
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and
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DEPUTY HEAD
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(CORRECTIONAL SERVICE OF CANADA)
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Respondent
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REASONS FOR
JUDGMENT
NOËL C.J.
[1]
This is an appeal by Michelle Bridgen (Ms.
Bridgen or the appellant) from a decision of the Federal Court (2013 FC 956)
wherein Manson J. (the Federal Court judge) dismissed a judicial review
application by Ms. Bridgen challenging a decision (2012 PSLRB 92) of John
Steeves, adjudicator of the Public Service Labour Relations Board (the adjudicator).
The adjudicator had allowed Ms. Bridgen’s grievance in part by reducing by half
the length of a disciplinary suspension imposed upon her by the Correctional
Service of Canada (the CSC).
[2]
Ms. Bridgen argued before the Federal Court
judge without success that no discipline was warranted. She maintains that
position in the appeal before us.
[3]
For the reasons that follow, I am of the view
that the appeal should be dismissed.
FACTUAL BACKGROUND
[4]
The following facts not being in dispute, I have
taken the liberty to quote the Federal Court judge’s summary:
2. In 2007, [Ms. Bridgen] had been an
employee of [the CSC] for 23 years, and was working out of the Grand Valley
Institution [GVI]. GVI is a women’s prison which incarcerates approximately 80
inmates at all security levels.
3. Through August 2007, [Ms. Bridgen]
held the position of Team Leader [or TL] at GVI. This position involved the
supervision of correctional officers. On September 4, 2007, [Ms. Bridgen] took
the newly created position of Manager of Intensive Intervention Strategies [MIIS].
In that position she reviewed policies and procedures implemented by [the CSC]
at the national and regional level and had no supervisory authority over
correctional officers.
4. On August 31, 2007, Ashley Smith,
then 19 years of age, transferred to GVI for a final time. By that point she
had spent several years incarcerated in various facilities, including a
psychiatric hospital and a previous stay in GVI starting in June, 2007. Her behaviour
at GVI upon returning was very disruptive. Among other things, she physically
assaulted staff and frequently tied ligatures around her neck to cut off her
oxygen supply. This required staff intervention. Until October 2007, Ms. Smith
stated that she tied the ligatures in order to obtain comfort.
5. From October 9 to October 11, 2007,
23 members of GVI staff received training from Ken Allen on “Use of Force” with
inmates after concern was expressed by Regional Headquarters regarding too many
of these incidents with Ms. Smith. Mr. Allen advised those in attendance that
they should not enter her cell unless they saw that Ms. Smith was not
breathing. This instruction was reiterated by GVI’s Acting Warden, Cindy Berry,
in a later memorandum.
6. Following October 12, 2007, Ms.
Smith told staff that she was going to kill herself during a specific manager’s
shift. On October 19, 2007, during the shift of that manager, Ms. Smith tied a
ligature around her neck. Staff did not intervene for 24 minutes, at which
point Ms. Smith had died from self-inflicted strangulation. [Ms. Bridgen] was
not involved with Ms. Smith on the day she died, nor at any time after October
11, 2007.
7. Following Ms. Smith’s death, [the
CSC] initiated an investigation of various front line and management employees
working at GVI by way of a Convening Order dated January 7, 2008 [the
Investigation]. [Ms. Bridgen] and many other employees were interviewed by an
investigatory board and a final report was released on January 25, 2008. Of relevance
to this application, the Investigation report came to the following
conclusions:
That the … TL/MIIS Secure Unit [Ms.
Bridgen] ... provided direction contrary to the [situation management model] by
telling staff they had no reason to enter the cell, to remove Smith’s
ligatures, as the [Acting] Warden and [Deputy Warden] did not concur that she
was in distress when there were clear signs she was. This action contravenes [Commissioner’s
Directive] 567;
That explicit direction was provided to [correctional
managers] and [primary workers] regarding not entering Smith’s cell as long as
she was breathing by…MIIS Bridgen…(and that) this direction … and follow up
actions taken by … MIIS Bridgen … contributed to staff and [correctional
managers]’ belief they were not to go into Smith’s cell as long as she was
breathing.
8. The primary basis for this
conclusion was interviews with three employees who worked with [Ms. Bridgen] at
GVI and dealt with Ms. Smith prior to her death in 2007: Nancy Dickson, Heather
Magee, and Angie Fancey. Ms. Dickson alleged that there was an instance when
she and others were about to enter Ms. Smith’s cell to remove a ligature
from her neck because her eyes were protruding and she was turning blue.
However, as they were entering the cell, [Ms. Bridgen] stopped them, saying
that Ms. Smith was still breathing. Ms. Magee testified to a similar
effect, recalling an incident where [Ms. Bridgen] directed staff not to enter
the cell because Ms. Smith was still breathing. Finally, Ms. Fancey spoke to an
occasion where she and [Ms. Bridgen] listened to Ms. Smith’s breathing,
and even after two minutes had elapsed between breaths, [Ms. Bridgen]
maintained that intervention was not warranted. These events all occurred prior
to October 2007, and none of these witnesses were present or involved with Ms.
Smith when she died on October19.
9. [Ms. Bridgen] rebutted these claims
in a memorandum to [the CSC] on March 12, 2008. With regard to Ms. Dickson’s
testimony, she labels it as confusing and states that she cannot pinpoint the
specific incident referred to. However, she says that generally she would tell
staff to not go into Ms. Smith’s cell when it was unsafe or when Ms. Smith was
not in distress. With regard to Ms. Fancey, she claims that after using
all alternative measures to ascertain whether Ms. Smith was in distress, they
entered her cell. With regard to Ms. Magee, she stated that she told staff not
to go into Ms. Smith’s cell but to develop a plan of action to ensure
everybody’s safety.
10. [The CSC] reviewed the Investigation
report and [Ms. Bridgen]’s March 12 memorandum. On May 5, 2008, [the CSC]
informed [Ms. Bridgen] that she was being suspended for 20 days without pay.
The reasons for the suspension were (in part):
I am of the view that in your role as …
(MIIS), you provided Correctional Managers and Primary Workers with explicit
direction not to enter the cell of an inmate on high suicide watch, as long as
she was breathing/talking and that this contributed to their confusion as to
when interventions were required with inmate Smith.
You erred in the interpretation of what
constituted a medical emergency or medical distress. The direction you provided
to staff not to intervene and to withdraw/reassess contravened CD
(Commissioner’s Directive) 800, CD 843 and CD 567. I believe that the
misdirection you provided to employees and managers contributed to the slow
response to the inmate’s self-injurious behaviour on October 15th and 19th,
2007.
11. [Ms. Bridgen] grieved this
disciplinary decision before the [a]djudicator over six days in 2011 and 2012.
On September 7, 2012, the [a]djudicator rendered his decision.
DECISION OF THE ADJUDICATOR
[5]
After an extensive review of the events leading
up to Ms. Smith’s death, as well as the investigation and disciplinary action
that followed, the adjudicator framed the central question before him as being
whether the CSC had just cause to discipline Ms. Bridgen,
and if so, what level of discipline was appropriate in the circumstances (adjudicator’s
reasons at para. 104). He conducted his analysis by reference to three specific
questions, namely: whether there had been misconduct by Ms.
Bridgen; if so, whether the 20-day suspension imposed by the CSC was an
appropriate penalty in the circumstances; and if not, what penalty was just and
equitable in the circumstances.
[6]
In determining whether there had been
misconduct, the adjudicator considered three central questions. The first was
whether Ms. Bridgen had in fact directed
correctional staff in the manner alleged by the CSC. The second was whether
such directions would have breached the CSC’s policies. The third was whether
the CSC had impermissibly changed the grounds of the discipline imposed on Ms. Bridgen between the date of her discipline and that
of her hearing before the adjudicator.
[7]
The adjudicator decided, based primarily on
witness testimony, that Ms. Bridgen had indeed
directed staff not to enter Ms. Smith’s cell while she was still breathing.
[8]
In support of its allegation that Ms. Bridgen had issued the directions in question, the
CSC provided three witnesses (one correctional manager and two correctional
officers), each of whom testified to having been told by Ms.
Bridgen on at least one occasion not to enter Ms. Smith’s cell to
remove ligatures from around her neck. In each instance, Ms.
Bridgen was alleged to have explained her order on the grounds that Ms. Smith
was still breathing.
[9]
Ms. Bridgen challenged this testimony on three grounds. First, she
provided her own contrasting testimony for some of the occasions in question,
suggesting that her comments had either been misremembered or misrepresented.
Second, Ms. Bridgen pointed to the fact that the
CSC had provided no video records or incident reports in support of its
witnesses’ claims. This, she argued, required the adjudicator not only to
discount these witnesses’ testimony, but also to draw an adverse inference and
conclude that the CSC was withholding evidence in support of Ms. Bridgen’s version of events. Third, Ms. Bridgen argued that the CSC’s witnesses believed
that primary workers (as opposed to management) were being unfairly blamed for Ms.
Smith’s death, and that this made this testimony unreliable.
[10]
The adjudicator ultimately found the CSC’s
version of events more credible. He found Ms. Bridgen’s
testimony vague in comparison to that of the CSC’s witnesses (adjudicator’s
reasons at para. 111). On the matter of video records and incident reports, the
adjudicator found that he was not legally required to make any such inference (adjudicator’s
reasons at paras. 133-135, citing Vieczorek v. Piersma, [1987] 58 O.J.
No. 124 (Ont. C.A.)). Concerning bias on the part of the CSC’s witnesses, the adjudicator
saw no evidence for this assertion (adjudicator’s reasons at para. 157).
[11]
The adjudicator then turned to the question
whether Ms. Bridgen’s directions had contravened the CSC’s policies. In Ms. Bridgen’s disciplinary letter of May 5, 2008, the
CSC maintained that Ms. Bridgen had erred in
interpreting what constitutes a “medical emergency”, and in so doing had
contravened three distinct Commissioner’s Directives (CD 567, CD 800 and CD
843). The adjudicator reviewed these directives and concluded that, on the
version of events which he accepted, those occasions on which Ms. Bridgen had directed staff not to enter Ms. Smith’s
cell had indeed involved “medical emergencies” within the meaning of the
policies in question (adjudicator’s reasons at para. 167). As the adjudicator
found Ms. Bridgen’s directions to fall
outside of the set of responses to medical emergencies mandated by the
policies, he found her in violation of the policies (ibidem).
[12]
Ms. Bridgen argued that, before the adjudicator, the CSC was focusing
its criticism on her actions as Team Leader, the position she had held before
being moved to that of MIIS. In her disciplinary letter of May 5, 2008, however, the CSC had criticized her actions as MIIS.
This inconsistency, according to Ms. Bridgen,
constituted a change in the grounds on which the CSC was claiming to discipline
her. Such a change, she claimed, was impermissible under Canadian labour law.
[13]
The adjudicator rejected this position. He
determined that the doctrine against changing grounds is intended to ensure
that the disciplined employee has sufficient notice of the case to be met (adjudicator’s
reasons at para. 143, citing Brown & Beatty, Canadian Labour Arbitration,
DVD 4th ed. (Toronto: Canada Law Book, 2006) [Brown & Beatty]).
Reviewing the investigation record, the adjudicator concluded that Ms. Bridgen had received ample notice that it was her
actions as Team Leader that formed the basis for her sanction (adjudicator’s
reasons at paras. 145-150).
[14]
Given his conclusion that Ms.
Bridgen had contravened the CSC’s policies, the adjudicator concluded
that some penalty was appropriate. He then turned to the question
whether the 20-day suspension was appropriate. Having found that Ms. Bridgen’s
actions “[were] part of a broader management initiative”,
the adjudicator held this to be “an important mitigating
factor” (adjudicator’s reasons at para. 182). While this did not make
Ms. Bridgen blameless, it warranted a reduction of the suspension.
[15]
Finally, the adjudicator
rejected Ms. Bridgen’s argument that, because the
CSC had failed to punish several others at a managerial level similar to hers, she deserved no discipline. The adjudicator came to this
conclusion because he had insufficient evidence to assess the context of those
other disciplinary decisions (adjudicator’s reasons at para. 187). Considering
such factors as Ms. Bridgen’s tenure at the CSC
(23 years), her clean disciplinary record and the misdirection from higher
management, the adjudicator settled on a 10-day suspension (adjudicator’s
reasons at para. 191).
DECISION OF THE FEDERAL COURT
[16]
Before the Federal Court judge, Ms. Bridgen advanced six grounds in support of her
judicial review application. She argued that the adjudicator had erred in finding
misconduct in actions authorized by the CSC; in failing to properly consider
the CSC’s policies on staff safety and “medical emergencies”; in finding that Ms. Bridgen had been aware of Ms. Smith’s suicide risk;
in failing to draw an adverse inference against the CSC; in finding that the
CSC had not changed the grounds of its discipline; and in failing to account
for the inconsistency in penalties imposed by the CSC.
[17]
After determining that the applicable standard
of review was that of reasonableness, the Federal Court judge dismissed each of
these arguments.
[18]
The first argument was dismissed on legal as
well as factual grounds. First, the Federal Court judge held that, because Ms.
Bridgen had not raised a defence of authorization before the adjudicator, she
would not be permitted to introduce it on judicial review (reasons at para.
21). Second, though he accepted that Ms. Bridgen
had “just (been) following orders”, the Federal
Court judge noted that this factor had been accounted for in the lessening of
her suspension and that she had nevertheless been found to have breached CSC
policy (ibidem). This was a
reasonable determination in his view.
[19]
The other arguments were dismissed by reference
to the reasons of the adjudicator and the record before him (reasons at para.
22-27). In each case, the Federal Court judge found there to be a reasonable
basis for the impugned determination. Despite dismissing her application, the
Federal Court judge declined to award costs against Ms. Bridgen because “[her] conduct [had been] consistent with the position of
management” (reasons at page 11).
POSITION OF THE APPELLANT
[20]
In addition to each of the six issues argued before
the Federal Court judge, the appellant alleges in
her Notice of Appeal that the Federal Court judge erred in dismissing as a
matter of law her authorization argument; in effectively imposing on her a
reverse burden of proof; and in failing to consider an argument made with
respect to a Statement of Defence filed by the CSC in a related civil action.
[21]
In the memorandum of fact and law filed in
support of her appeal, the appellant only advances
two arguments: that the Federal Court judge erred in concluding that it was
reasonable to find misconduct in actions authorized by the CSC, and in concluding
that Ms. Bridgen’s penalty was reasonable
despite evidence of discriminatory discipline. As for the other arguments
raised in her Notice of Appeal, the appellant
claims in her memorandum to “reserve … the right to
address” these in oral argument (appellant’s
memorandum at para. 36).
[22]
The appellant argues that the defence of employer authorization is available to
her on appeal as a matter of law and made out on the record as a matter of
fact.
[23]
The appellant argues that the Federal Court judge erred in refusing to hear
arguments on the defence of employer authorization on the ground that it was
not raised before the adjudicator. Though she may not have expressly raised
this defence, the appellant submits, “she [did] clearly rais[e] … the argument that her conduct was
consistent with the way that [the CSC] interpreted and applied its own policies
…” (appellant’s memorandum at para. 39). The
appellant maintains that this provides the basis for a defence of
employer authorization.
[24]
The appellant characterizes the employer authorization defence as barring
discipline by a given employer for a given action where “…
an employee is induced by [that] employer’s words or conduct to act in [that]
way …” (appellant’s memorandum at para. 41,
citing Brown & Beatty). Citing the instructions of Mr. Allen during the
training session of October 2007 and the follow-up email from Ms. Berry, Ms. Bridgen argues that the CSC induced her actions, in
that it “directly encouraged precisely the sort of
conduct [she] was found to have engaged in” [emphasis omitted] (appellant’s memorandum at para. 44).
[25]
With respect to
discriminatory discipline, the appellant argues
that it is a “well-known principle of Canadian labour
law” that an employer cannot punish only one of two employees who have
engaged in the same conduct (appellant’s memorandum at para. 47, citing Re
Canron Ltd. v. International Molders & Allied Workers, Local 16, (1975)
9 L.A.C. (2d) 391 and the Federal Court judge’s reasons at para. 27, where he
states “… it would be inequitable to punish only one of a
number of responsible management…”).
[26]
According to the
appellant, the adjudicator had before him
compelling evidence of discriminatory discipline and acted unreasonably in
ignoring it. Specifically, she argues that Mr. Allen’s instructions and Ms. Berry’s email constituted conduct “exactly the same as, or worse
than” the conduct for which Ms. Bridgen was
disciplined (appellant’s memorandum at para. 47).
Given that the adjudicator knew of this conduct and knew that Mr. Allen had
never been disciplined and that Ms. Berry’s initial discipline had been
rescinded by the CSC with no hearing, it was not reasonable for the adjudicator
to ignore the bar against discriminatory discipline.
POSITION OF THE RESPONDENT
[27]
The CSC limits its submissions before this Court
to the two issues raised in the appellant’s memorandum. As to the other
arguments set out in the Notice of Appeal, the CSC submits that only arguments
included in a party’s memorandum can be advanced in oral argument (CSC’s
memorandum at paras. 29 and 30, citing Rule 70(1)(a) of the Federal
Courts Rules, SOR/98-106; Sandhu v. Canada (Minister of Citizenship and
Immigration), 184 F.T.R. 30, 2000 CanLII 15526 (FCA) [Sandhu];
Radha v. Canada (Minister of Citizenship and Immigration), 2003 FC 1040,
[2003] F.C.J. No. 1309; Pugh v. Canada (Minister of Public Works and
Government Services), 2006 FC 806, [2006] F.C.J. No. 1033; Dave v.
Canada (Minister of Citizenship and Immigration), 2005 FC 510, [2005]
F.C.J. No. 686; and Foster v. Canada (Attorney General), 2013 FC 306,
[2013] F.C.J. No. 353).
[28]
The CSC argues that the defence of employer
authorization is neither available before this Court as a matter of law, nor
made out on the record as a matter of fact. The CSC asserts that a party cannot
raise an argument for the first time on judicial review. It cites the adjudicator’s
finding that the defence was not raised before him, and argues that Ms. Bridgen has made no attempt whatsoever to challenge
this specific determination, or the reasons supporting it (CSC’s memorandum at
paras. 33 and 34, citing the adjudicator’s reasons at para. 175).
[29]
The CSC also asserts that this defence is not
made out on the record. The CSC concedes that other members of management “communicated a message similar to” that of Ms. Bridgen’s (CSC’s memorandum at para. 36).
However, it submits, the adjudicator expressly took this fact into account and
still concluded that Ms. Bridgen bore some degree
of responsibility for breaching the CSC’s policies, if not enough to justify
the original penalty. His refusal to exclude Ms. Bridgen’s
responsibility entirely was “open to him on the facts and
the law”, and stands as a reasonable decision (CSC’s memorandum at para.
40).
[30]
The CSC submits that the defence of
discriminatory discipline is neither available in the case at bar as a matter
of law, nor made out on the record as a matter of fact.
[31]
The CSC argues that, unlike private sector
labour adjudicators, an adjudicator enabled under the Public Service Labour
Relations Act, S.C. 2003, c. 22, s. 2 is statutorily limited to
consider the grievance or grievances before him or her, and has no jurisdiction
to decide on or consider other potential disciplinary actions or grievances
(CSC’s memorandum at paras. 44-49, citing the Pratte and Urie JJ.A. opinions in
Canada v. Barrett, [1984] F.C.J. No. 249 (C.A.), 53 N.R. 60 [Barrett]).
[32]
The CSC submits that, even if the defence of
discriminatory discipline is open to a grievor, it remains a positive defence
which the grievor bears the burden of proving (CSC’s memorandum at para. 52,
citing Gorsky et al., Canadian Labour Arbitration, (Toronto: Carswell, 2009); and Kelly v. Treasury Board (Correctional Service Canada), 2002 PSSRB 74).
[33]
The CSC further submits that the appellant has
failed to meet this burden. The only evidence submitted in support of the
defence was a chart outlining the initial and ultimate disciplinary measures
taken against various other employees investigated following Ms. Smith’s
death (CSC’s memorandum at para. 52, referring seemingly to the chart at para.
103 of the adjudicator’s reasons). Mere evidence of a disparity in treatment,
however, is not sufficient to make out a defence of discriminatory discipline,
as the disparity may have resulted from any numbers of unknown factors (CSC’s
memorandum at paras. 50 and 51, citing Marceau J.A.’s concurring opinion in Barrett).
In light of the limited nature of the evidence before him, it was reasonable
for the adjudicator to conclude that “it [was] not
possible to discern any pattern in the discipline of other employees”
and that the evidence did not establish a defence of discriminatory discipline
(CSC’s memorandum at para. 53, citing the adjudicator’s reasons at para. 189).
[34]
Finally, the CSC notes that, in the chart in
question, the ultimate disciplinary measures, which are the measures on which
the appellant relied in arguing discriminatory discipline, resulted from alternative
dispute resolution processes. The CSC submits that such outcomes should not be
considered in assessing discriminatory discipline, as parties send matters to
the grievance process for many reasons, including the quality of evidence
available. Were the outcomes of such settlements considered in deciding the
outcomes of cases such as this, it would send a chill through the labour
relations community with respect to the grievance process (CSC’s memorandum at
para. 58).
ANALYSIS AND DECISION
[35]
During the hearing of the appeal, counsel for
the appellant properly limited their argument to the two grounds of appeal advanced
in their memorandum of fact and law (see Sandhu at para. 4). The issue
before this Court is therefore whether the Federal Court judge erred in
rejecting Ms. Bridgen’s defences of employer authorization and discriminatory
discipline.
[36]
Where this Court hears an appeal from a decision
of the Federal Court disposing of an application for judicial review, this Court
must decide “whether the court below identified the
appropriate standard of review and applied it correctly” (Agraira v.
Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R.
559 at para. 45, citing Canada Revenue Agency v. Telfer, 2009 FCA 23, 386
N.R. 212 at para. 18).
[37]
I agree with the parties that the Federal Court
judge identified the proper standard when he selected that of reasonableness.
The issue therefore is whether he applied it correctly.
[38]
In assessing the reasonableness of the
adjudicator’s decision, it is critical to first identify the precise basis on
which the adjudicator found that Ms. Bridgen’s actions amounted to misconduct.
[39]
In oral argument, counsel for the appellant
emphasized the unreasonableness of finding that Ms. Bridgen’s directions to
staff could have resulted in slowing down the response on the day Ms. Smith died.
None of the staff so directed were on duty when Ms. Smith died, and those who
were on duty were not included in the investigation of Ms. Bridgen. It was
therefore impossible to sensibly infer what was going through the minds of
those on duty on the day when Ms. Smith died, and unreasonable to assume that
Ms. Bridgen’s directions had exerted any effect on that day.
[40]
While the view of the CSC was indeed that Ms.
Bridgen had contributed to the slow response to the medical emergency on the
day when Ms. Smith died (disciplinary letter dated May 5, 2008, appeal book,
vol. II, tab 9, reproduced at para. 92 of the adjudicator’s reasons), the
decision of the adjudicator is not based on that premise.
[41]
In his ruling, the adjudicator expressly “read down” these allegations, by reason, among other
things, of those same causality issues raised by the appellant during the
hearing before this Court (adjudicator’s reasons at paras. 171 and 182). Though
he, like the CSC, found that Ms. Bridgen had contravened the CSC’s safety
policies, he framed the consequences of this misdirection in a more
circumscribed fashion, holding that these actions had caused confusion and had contributed
to the slow response in attending to Ms. Smith on those instances when she had actually
interfered with the staff’s decision to intervene (adjudicator’s reasons at
paras. 169, 170, and 176). The exact finding of misconduct is summarized at
paragraph 177 of the adjudicator’s reasons:
… In summary, the grievor violated the
respondent’s policies when she misdirected staff about whether to enter
the cell of Ms. Smith; intervention was required by those policies but
reassessment was considered more important. Prior to October 19, 2007,
the grievor also caused confusion among primary workers about when to enter Ms.
Smith’s cell.
[My
emphasis]
[42]
The issue before this Court is therefore whether
it was reasonable for the adjudicator to find misconduct and confirm that
discipline was warranted on the basis of this more circumscribed
characterization of Ms. Bridgen’s misconduct. Each of the two defences raised
by Ms. Bridgen must be assessed in this context.
[43]
The first point to be addressed is whether the
Federal Court judge erred in holding that Ms. Bridgen could not raise the
defence of employer authorization. He did so on the basis that this defence had
not been raised before the adjudicator.
[44]
This narrow question does not concern the
adjudicator. Only the conduct of the Federal Court judge is in issue. The
standard of review must therefore be framed by reference to his decision. While
a decision limiting or preventing an argument from being made on judicial
review is discretionary in nature, it must nevertheless be made on proper
principle.
[45]
There is no doubt that a decision-maker cannot
err by not deciding an issue that is not raised in the proceedings before him
or her. In this case, the adjudicator firmly indicated that the appellant did
not use the defence of employer authorization (adjudicator’s reasons at para.
175). That I believe is what explains why the Federal Court judge held, without
discussion and citing no authority, that the appellant was barred from
advancing this argument on judicial review.
[46]
However, what the Federal Court judge seems to
have overlooked is that although the appellant did not raise the defence, the
adjudicator chose to address it and went on to reject it. Specifically, he
acknowledged that in acting as she did, Ms. Bridgen had been part of “a broader management initiative” (adjudicator’s reasons
at para. 182). He later expresses the same view by indicating that the
appellant “is being held culpable for actions that higher
management directed staff to do” (adjudicator’s reasons at para. 190)
and that the appellant intervened and reassessed Ms. Smith’s situation in a
manner “consistent with the directions of her supervisors
at the time” (adjudicator’s reasons at para. 201). However, he held that
this did not make her entirely blameless.
[47]
In so holding, the adjudicator in effect rejected
any contention that employer authorization was an absolute defence. He did so
on the basis of a record which he considered adequate for that purpose and no party
takes issue with that (compare Alberta (Information and Privacy Commissioner)
v. Alberta Teachers’ Association, 2011 SCC 61, [2011] S.C.J. No. 61 at para.
47).
[48]
Given that the adjudicator did consider and
reject the contention that partaking in a management initiative or acting in
accordance with directions was a bar to discipline in this case, I do not see how
this issue can be immunized from judicial review. To hold otherwise would leave
a party negatively affected by findings made on a decision-maker’s own
initiative without any remedy.
[49]
Based on the foregoing, it was not open to the
Federal Court judge to prevent Ms. Bridgen from challenging the conclusion
reached by the adjudicator on the issue of employer authorization.
[50]
The issue therefore is whether it was reasonably
open to the adjudicator to hold that the appellant could not rely on the fact
that she had partaken in a broader management initiative and followed
directions as an absolute defence. In so holding, the adjudicator held that
these initiatives or directions were not a justification for contravening the
CSC’s policies with regard to medical emergencies involving an inmate.
Specifically, discipline was justified because, as noted above, her actions caused
confusion among staff and slowed down the time in which staff responded to a
number of medical emergencies.
[51]
The finding that Ms. Bridgen contravened CSC
policy is sensibly explained in the adjudicator’s reasons, where the actual
language of the policies in question is considered in detail. Commissioner’s
Directive 567 alone contained, among other things, the following definitions
and rules (adjudicator’s reasons at para. 60):
…
6. Medical
emergency: an injury or condition that poses an
immediate threat to a person's health or life which requires medical
intervention.
…
17. Staff must ensure that:
a. they know and understand the
applicable law, policies and procedures;
…
c. they take every reasonable step
to return the institution to a safe and secure environment as soon as possible
when they become aware of any situation which, in their opinion, jeopardizes
the safety of the institution or anyone in it;
…
18. In responding to a medical emergency, the
primary goal is the preservation of life and each staff member has an important
role to play:
a. non-health services staff
arriving on the scene of a possible medical emergency must immediately call for
assistance, secure the area and initiate CPR/first aid without delay;
…
[52]
Ms. Bridgen was found as a matter of fact to
have directed officers not to enter Ms. Smith’s cell while the latter was still
breathing, and to have at one point even issued such an order when Ms. Smith could
be heard gasping for air (adjudicator’s reasons at paras. 110, 121-129). This
fact is not in dispute before this Court.
[53]
To find that such behaviour could not be wholly
excused on the grounds that it fit within a broader management initiative was
not unreasonable. Though the adjudicator accounted for this factor in reducing
Ms. Bridgen’s disciplinary penalty, he concluded that she nevertheless retained
some “personal responsibility for the decisions she made
and directions she gave to staff” (adjudicator’s reasons at para. 165).
This determination is a sound one, considering that Ms. Bridgen herself held
real authority as a member of management (adjudicator’s reasons at para 182). I
would add that based on the record before the adjudicator, it is far from clear
that the actions of other management staff, such as Mr. Allen and Ms. Berry,
preceded all proven instances of misconduct by Ms. Bridgen (adjudicator’s
reasons at paras. 24, 138, 179).
[54]
In my view, the decision of the adjudicator rejecting
employer authorization as an absolute defence has not been shown to be
unreasonable.
[55]
With respect to discriminatory discipline, the
adjudicator rejected the appellant’s argument essentially because the evidence
did not allow him to discern any pattern in the discipline of other employees
or to make useful comparisons (adjudicator’s reasons at para. 189). Although he
stated that his role was not to assess the circumstances of their cases
(adjudicator’s reasons at para. 187), he concluded that the evidentiary record
was insufficient to establish the existence of discriminatory discipline.
[56]
The appellant takes issue with this conclusion,
which she labels as unreasonable.
[57]
The position of the appellant before the
adjudicator was based on a chart or list showing the actions taken against the
employees disciplined following the death of Ms. Smith (adjudicator’s reasons
at para. 103; appeal book, vol. II, tab 18). Fourteen employees are listed: six
who were terminated, four who received a sixty-day suspension and four who
received lesser discipline. The adjudicator states in respect of these other
cases (adjudicator’s reasons at para. 103):
… I was given no evidence about the individual
circumstances of each of these other employees, including particulars about why
discipline was changed for any of these individuals. …
[58]
In her memorandum of fact and law, the appellant
took issue with this conclusion with respect to two CSC’s employees, Mr. Allen
and Ms. Berry. During the hearing, the argument was pursued only with respect
to Mr. Allen. According to the appellant, the fact that Mr. Allen engaged in the
same sort of conduct as she, or conduct worse than her own, and received no
discipline establishes the existence of discriminatory discipline. Thus, the
adjudicator acted unreasonably in refusing to consider this evidence.
[59]
I disagree. That the evidence shows that Mr.
Allen was not disciplined begs the question as to why he was treated that way.
As was explained by this Court (Marceau J.A.) in Barrett (at para. 25),
there are “… many reasons that could warrant dissimilar
treatment, reasons that may be quite independent of a strict assessment of the
relative degree of fault …”. Though counsel for Ms. Bridgen sought to
rely on the language of Marceau J.A. during the hearing, he could not point to any
evidence beyond the type deemed insufficient in that case, i.e. “a sole disparity in treatment” (ibidem).
[60]
Significantly, Ms. Stableforth, Regional Deputy
Commissioner for Ontario, was cross-examined at length about the actions of Mr.
Allen (adjudicator’s reasons at para. 102). However, when asked by counsel for
the appellant why other employees were treated the way they were, she answered
that “she could not ‘speak to the rationale for’ the
final decisions made in their situations” (adjudicator’s reasons at
para. 187). If counsel for the appellant wanted to know why Mr. Allen was not
disciplined, it was incumbent upon him to ask the CSC to produce an informed
witness.
[61]
Based on the limited evidence before him, the
adjudicator concluded (adjudicator’s reasons at para. 189):
In my view, it is not possible to discern any
pattern in the discipline of other employees and, specifically, any pattern
that assists the grievor. Again, except for noting that some officers and
managers received some discipline (and others did not), I cannot make any
useful comparisons because I do not know the circumstances of their cases. What
I have before me is a full record as to the grievor's role in the events at GVI
prior to the death of Ms. Smith. All I can do is to consider that record and
make a decision based on it.
[62]
It is apparent from the foregoing that the
adjudicator did not refuse to consider the appellant’s argument based on
discriminatory discipline. Rather, he held that the appellant had failed to
adduce evidence allowing him “to discern any pattern”
establishing that discrimination had taken place (ibidem). This
conclusion is eminently reasonable. I therefore can detect no error in the
Federal Court judge’s refusal to intervene in this regard (reasons at para. 27).
[63]
Given this conclusion, it is not necessary to
address the respondent’s argument, based on Barrett, that regardless of
the state of the evidence, the adjudicator did not have the jurisdiction to consider
this issue of discriminatory discipline.
[64]
I would dismiss the appeal with costs.
“Marc
Noël”
“I agree
Johanne
Gauthier J.A.”
“I agree
D.G.
Near J.A.”
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