Docket: A-301-12
Citation: 2014 FCA 251
CORAM:
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NOËL C.J.
GAUTHIER J.A.
NEAR J.A.
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BETWEEN:
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RACHEL EXETER
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS FOR
JUDGMENT
GAUTHIER J.A.
I.
Introduction
[1]Rachel Exeter (the applicant) seeks judicial review of the decision
of the Chairperson of the Public Service Labour Relations Board (the Board) refusing
to appoint an adjudicator other than the adjudicator already seized with the
applicant’s nine grievances to deal with the applicant’s allegations that the memorandum
of agreement (MOA) meant to settle those grievances should be declared null and
void.
[2]
The applicant and her former employer,
Statistics Canada (the employer) settled the applicant’s nine grievances with
the assistance of adjudicator Pineau (the Adjudicator) without prejudice to her
power to continue the adjudication with respect to unresolved issues (see subsection
226(2) of the Public Service Labour Relations Act, S.C. 2003, c. 22., s.
2 (the Act)). Both parties were represented by counsel during the lengthy
mediation session which ended with the signature of a MOA setting out the terms
of their settlement. Thus, the hearing of the grievances scheduled to resume the
next day was cancelled.
[3]
In her motion dated August 17, 2011 brought
before the Board, the applicant sought an order:
(i) Preventing
the Adjudicator from scheduling, hearing, and making any order as they relate
to the MOA, and
(ii) Appointing an
independent adjudicator to look into the validity of the MOA.
[4]
In support of her motion, the applicant essentially
argued that the Adjudicator could not retain jurisdiction over the matter
because she was biased and had a conflict of interest within the meaning of
subsection 224(2) of the Act. This conflict arose from her direct involvement
in the process that led to the MOA, which was allegedly signed by the applicant
under duress and only after pressure had been exerted by the Adjudicator, who
had also dismissed the applicant’s request(s) for an adjournment. In her view,
the Board had the power to intervene pursuant to section 36 of the Act and
should do so to prevent a violation of her constitutional right to a fair
process.
[5]
On February 24, 2012, in its decision reported
as 2012 PSLRB 24, the Board dismissed the applicant’s motion on two bases.
First, it held that it had no power under the Act to remove an adjudicator
already seized with a grievance. Among other things, the Board noted that in
its view, its interference in matters otherwise properly before an adjudicator
would run contrary to the objective of fair, credible and efficient
adjudication proceedings (paragraphs 12 and 13 of the decision).
[6]
Second, the Board found that even if it had
jurisdiction under section 36 of the Act to remove the Adjudicator, as argued
by the applicant, “it would be inappropriate for the
Board to exercise that power” as “it is more appropriate to let the [A]djudicator
seized with Ms. Exeter’s grievances decide the request for recusal”
(paragraph 15 of the decision). In that respect, it noted that there was no
doubt that an adjudicator has jurisdiction to decide a request for his or her
recusal, and that any adjudicator seized with a grievance is bound by the rules
of natural justice and procedural fairness. Also, the Board specified that any
failure in that respect would be subject to judicial review by the Federal
Court (paragraphs 12 and 14 of the decision).
[7]
For the reasons that follow, in my opinion, the
Board’s conclusion that it was more appropriate to let the Adjudicator decide
whether or not she should recuse herself is reasonable. I also conclude that
there was no breach of procedural fairness by the Board in the process leading
to this decision. I thus propose that the application be dismissed.
II.
Background
[8]
Although not strictly necessary to determine the
issues before us, it is nevertheless useful to briefly describe the sequence of
events leading to the present application in order to provide context for the
issues raised by the applicant. In assembling these facts, I relied primarily
on the material in the applicant’s record, which included, inter alia,
the Adjudicator’s decision.
[9]
First, the applicant states that she was
unprepared for the long mediation session that started in the afternoon of
February 11, 2009 and lasted almost twelve hours. Despite the presence of her
counsel, she says that she did not really have the benefit of advice.
[10]
According to her, she developed migraines, was
sick, tired and hungry. She felt compelled to sign the MOA because of pressure
exerted on her by the Adjudicator who, among other things, was insisting that
the hearing of the grievances would resume the next day, unless the matter
settled.
[11]
She also alleges that she contacted her counsel
around 8:15 a.m. on February 12, 2009 to discuss “negating”
the MOA, but that the said counsel was unhelpful, stating that nothing could be
done and the matter was out of her hands.
[12]
Still, the parties did take steps to give effect
to the MOA. For example, the employer remitted a settlement cheque in the
agreed amount to the applicant who cashed it shortly thereafter. But, according
to the applicant, the employer was not complying with other provisions of the
MOA as she understood them.
[13]
On May 28, 2009, the applicant informed the
Board that she would no longer be represented by counsel and that, as explained
in an earlier letter dated April 30, 2009, the “Adjudicator
Ms. Pineau who is seized with this matter” should intervene, as the
employer was unwilling to properly comply with the MOA. On June 19, 2009, the
employer replied that it was in fact the applicant who was not complying with
the MOA. On July 17, 2009, the employer asked that the Adjudicator remain
seized with the matter.
[14]
By a letter dated February 2, 2010, the
Adjudicator informed the applicant that her grievances would be held in
abeyance pending the outcome of a separate application then before the Federal
Court of Appeal, in which the Court considered whether an adjudicator
appointed to hear grievances under the Act maintains jurisdiction over disputes
relating to a settlement agreement entered into by the parties in respect of
those grievances. As in the present application, in that case, Mr. Amos’s
grievance had been settled through mediation with the assistance of the
adjudicator seized with his grievance and a MOA was signed. Like the applicant,
Mr. Amos had not withdrawn his grievance when the dispute relating to the MOA
arose.
[15]
For reasons not explained in her letter, the
applicant wrote to the Board on March 26, 2010 to withdraw her request that the
Adjudicator intervene further in her matter. However, the employer did not
withdraw its request for such intervention.
[16]
The applicant was advised on May 6, 2010, that “your grievance matters will continue to be held in abeyance
pending the outcome of Amos matter [sic]. Once, and only after, the Federal
Court of Appeal has made its decision, Adjudicator Pineau will provide
directions on how we are to proceed with your files…”.
[17]
On February 3, 2011, the Federal Court of Appeal
issued its decision in Andrew Donnie Amos v. The Attorney General of Canada, 2011 FCA 38, [2012] 4 F.C.R. 67 [Amos]. This decision confirmed the adjudicator’s
determination that he had jurisdiction to consider an allegation that a party
is in non-compliance with a final and binding settlement, where the dispute
underlying the settlement agreement is linked to the original grievance and where
the grievor has not withdrawn his grievance.
[18]
On May 18, 2011, a pre-hearing teleconference was
scheduled to discuss all outstanding issues in the applicant’s grievance files.
[19]
On May 24 and May 26, 2011, the applicant wrote
to the Chairperson of the Board requesting that “prior to
determining whether there has been compliance with the MOA”, the Board
should void the MOA, “as it was signed under
intimidation, duress, undue influence, medical and physical incapacities,
coercion and it is unconscionable”. She also asked the Board for “an investigation into the Adjudicator’s conduct on the account
of procedural fairness”.
[20]
The applicant participated in a teleconference
on June 6, 2011, in which she raised the conflict of interest she perceived
with respect to the determination of the validity of the MOA by the Adjudicator
because of her claims against the latter (page 32 of the applicant’s record).
[21]
Having been denied her informal requests to the Chairperson
of the Board for the appointment of another adjudicator to determine the
validity of the MOA, the applicant filed, on August 17, 2011, the motion which
resulted in the issuance of the decision under review on February 24, 2012
(2012 PSLRB 24).
[22]
Later on the same day, the Adjudicator issued
her own decision (reported as 2012 PSLRB 25) on all outstanding matters in the
applicant’s grievance files, including her request for recusal. After analysing
the arguments and the evidence submitted by the applicant in support of her
August 17, 2011 motion, the Adjudicator dismissed the applicant’s request,
declared the MOA final and binding and made findings with respect to the
parties’ compliance with the MOA. She also ordered that the nine grievance
files be closed.
[23]
The self-represented applicant had difficulty
determining in which forum she should file her applications for judicial review
of the foregoing decisions. After some confusion, it was confirmed that the decision
of the Board was to be reviewed by the Federal Court of Appeal, while the
decision of the Adjudicator was to be reviewed by the Federal Court. The
Federal Court has yet to hear her application for judicial review of the
Adjudicator’s decision in (file number T-943-12).
III.
Issues
[24]
The applicant lists several errors allegedly
made by the Board on page 2 of her memorandum of fact and law. Having
considered the subject of her detailed submissions made in writing and at the
hearing, I believe that the questions for determination can be regrouped as
follows:
(i)
Did the Board err in its interpretation of its
powers under section 36 of the Act?
(ii)
Did the Board err in concluding that, in any
event, even if it had the power to grant the Applicant’s request, it would
still dismiss it on the basis that it was more appropriate that the Adjudicator
deal with the said request?
(iii)
Did the Board breach procedural fairness by
failing to solicit reply submissions from the applicant?
IV.
Legislation
[25]
The most relevant provision in the Act is section
36. It reads as follows:
Powers and
Functions of the Board
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Pouvoirs et
fonctions de la Commission
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36. The Board
administers this Act and it may exercise the powers and perform the functions
that are conferred or imposed on it by this Act, or as are incidental to the
attainment of the objects of this Act, including the making of orders
requiring compliance with this Act, regulations made under it or decisions
made in respect of a matter coming before the Board.
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36. La Commission met
en œuvre la présente loi et exerce les pouvoirs et fonctions que celle-ci lui
confère ou qu’implique la réalisation de ses objets, notamment en rendant des
ordonnances qui exigent l’observation de la présente loi, des règlements pris
sous le régime de celle-ci ou des décisions qu’elle rend sur les questions
qui lui sont soumises.
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[26]
Two other provisions of the Act are
reproduced in Annex “A” to
these reasons. Section 224(2), on which the applicant relied, but does not
apply to an adjudicator as well as subsection 226(2).
V.
Analysis
A.
Standard of review
[27]
The applicant argues that the first issue raises
a jurisdictional question, whereas the second one constitutes a refusal to
exercise one’s jurisdiction. She submits that both should be reviewed on a
correctness standard. I disagree with the applicant’s characterisation of these
issues.
[28]
In Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190, at paragraph 35, the Supreme Court of Canada warns courts
against simply branding issues as involving jurisdictional questions in order
to subject them to broader curial review (see also, Alberta (Information and
Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011]
3 S.C.R. 654, at paragraph 34). In my opinion, whether the Board has the power
to recuse an adjudicator seized with a grievance is no more a true
jurisdictional question than the issue before this Court in Amos (see Amos
at paragraph 24).
[29]
The applicant does not dispute that the Board
has the power to construe the Act. In fact, it is quite apparent from section
36 of the Act that to do so is at the core of its mandate. Although it was done
in a somewhat different context, I adopt the analysis of Evans J.A. in Bernard
v. Canada (Attorney General), 2012 FCA 92, [2012] 4 F.C.R. 370 at
paragraphs 32 to 38 (aff’d 2014 SCC 13). In my view, the deferential standard
of reasonableness is also appropriate here in view of the Board’s expertise in
interpreting its home statute and the strong privative clause in subsection
51(1) of the Act.
[30]
This standard also applies to mixed questions of
fact and law and more particularly in this case, to the Board’s conclusion as
to how it would exercise its power, if, as argued, it had the authority to
recuse the Adjudicator.
[31]
As to the question of procedural fairness, it is
trite law that the correctness standard applies (Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 39 at paragraph 43; Exeter
v. Canada (Attorney General), 2011 FC 86 at paragraphs 16-17, aff’d on this
point 2012 FCA 119 at paragraph 6).
B.
Did the Board err in its interpretation of
section 36 of the Act?
[32]
The applicant argues that the Board
misunderstood the purpose of her motion. In her view, this led to an erroneous
interpretation of the Act because the Board focused on its powers with respect
to “grievances” instead of its power to recuse the
Adjudicator solely in respect of the determination of the validity of the MOA
on the basis of procedural fairness (applicant’s memorandum of fact and law,
page 1, paragraphs 6, 20-23 and 33).
[33]
The applicant attempts to dissociate the authority
of the Adjudicator to deal with the validity of the MOA from her authority over
the applicant’s grievances. But the fact remains that, in Amos, this
Court made it clear that the adjudicator’s power to deal with the enforceability
and implementation of a MOA arises from being seized with the grievances.
[34]
Thus, although it may have been preferable for
the Board to more precisely describe the applicant’s request, I am satisfied
that the Board knew exactly what she was seeking. I agree with the Board when
it states that: “[b]asically, Ms. Exeter’s request is for
the recusal of the [A]djudicator who is seized with her grievances” (see
paragraph 14 of the decision).
[35]
That said, I am also satisfied that the
reasoning of the Board is cogent and sufficient to dispose of the request as
formulated by the applicant. The Board considered not only its power with
respect to “grievances”, as alleged by the
applicant, but also the objectives of the Act and the applicant’s argument regarding
procedural fairness. The Board’s decision that it does not have the power to
recuse an adjudicator seized with a matter is reasonable, whether the request
to recuse applies to all or part of the outstanding matters in the grievance
files.
[36]
I will not dwell further on the interpretation
of section 36, in light of the Board’s conclusion that even if it had the power
to do what was requested by the applicant, it would still dismiss her motion. This
finding would be sufficient to support the Board’s decision regardless of its
interpretation of section 36. Thus, I will now consider the reasonableness of
this conclusion.
C.
Was it reasonable for the Board to conclude
that, in any event, even if it had the power to grant the Applicant’s request,
it would still dismiss it on the basis that it was more appropriate that the
Adjudicator deal with the said request?
[37]
The applicant did not address the Board’s reasoning
on this issue, other than to say that to leave the matter of her recusal to the
Adjudicator constitutes a refusal by the Board to exercise its power and, as
such, constitutes an error justifying our intervention. I disagree.
[38]
If the Board indeed has the power to deal with the
applicant’s request, it also has the discretion to refuse to exercise that
power when it is satisfied that there is an appropriate alternative remedy, as in
this case.
[39]
I agree with the Board that requests for recusal
are more appropriately dealt with by the decision-maker seized with the matter
in respect of which a reasonable apprehension of bias or conflict of interest is
claimed. This is exactly how requests for recusal are dealt with in other forums,
including courts: see for example, Fond du Lac Denesuline First Nation v.
Canada (Attorney General), 2012 FCA 73, 430 N.R. 190; Canada (Attorney
General) v. Khawaja, 2007 FC 533 (Mosley J.); Ihasz v. Ontario, 2013
HRTO 233, [2013] O.H.R.T.D. No. 326; Ng v. Bank of Montreal, [2008]
C.L.A.D. No. 221.
[40]
In our system, one cannot presume that a
decision maker cannot deal fairly with such requests simply because it is
alleged that he or she is biased or has a conflict of interest. The Board’s
decision does not violate the applicant’s constitutional rights or the Board’s duty
to act fairly, for the applicant was entitled, and she is currently exercising
this right, to a review of the decision of the Adjudicator on a correctness
standard. That standard ensures the full respect of all the applicant’s rights
to a fair and impartial adjudication of her recusal motion. In fact, all the
applicant’s concerns will be addressed by the judge who will hear her
application in T-943-12.
D.
Procedural Fairness
[41]
The applicant submits that the Board denied her
participatory rights, thereby breaching its duty to act fairly, by failing to
contact her or provide her with an opportunity to file a reply to the
employer’s submissions. In her view, this also shows that the Board’s action
was discriminatory and in bad faith, given that it did write to the employer to
ask for its submissions (paragraph 46 of the appellant’s memorandum).
[42]
In a letter to the employer and applicant dated
September 22, 2011, the Board transmitted a copy of the applicant’s motion to
the employer, who was not included as respondent in the motion and did not
appear to have received a copy of the motion. The Board also set a short delay
for the employer to submit its representations, if any.
[43]
Although the employer did file brief
submissions, which were copied to the applicant on September 29, 2012, it
basically objected to the motion and responded to the arguments already made by
the applicant in her written representations to the Board. In fact, in its
decision, the Board summarizes the employer’s position as follows: “Statistics Canada opposes the request alleging that it is “…
trivial, frivolous, vexatious, and made in bad faith …” The deputy head denies
that the Adjudicator has an interest in the outcome of Ms. Exeter’s grievances.”
[44]
These issues are not new. On reply, normally one
is entitled to rebut new issues. In any event, it is difficult to understand on
what basis the applicant believed that she needed an invitation to reply to
those submissions if she had anything new and important to add. As noted by the
respondent in its memorandum, there was absolutely nothing precluding the
applicant from filing a reply if she so wished during the five month period
between the filing of those submissions and the issuance of the decision.
[45]
In fact, as the applicant does not deal at all
with this issue in her affidavit, there is no evidence before us that, at the
relevant time, the applicant understood that she had no right to file a reply.
She does not give any detail either as to what else she would have added to the
detailed submissions included in her motion material filed before the Board.
[46]
In the circumstances, although it might have
been preferable for the Board to indicate to the self-represented grievor that
she could file reply submissions if necessary, I cannot conclude that its
failure to do so amounts to breach of procedural fairness.
VI.
Conclusion
[47]
In light of the foregoing, the application for
judicial review should be dismissed.
[48]
There remains the issue of costs in respect of
which the applicant argued forcefully at the hearing. Among other things, she
submits that the respondent withdrew paragraphs 18 to 20 of its submissions,
which alleged that several paragraphs in her affidavit in support of the
application should be struck, just two days before the hearing. This caused her
prejudice as she had already prepared to deal with this argument at the
hearing. She says that in another procedure before this Court (Rachel Exeter
v. Attorney General of Canada, 2014 FCA 105 at paragraph 22) the
lateness of the respondent’s argument that the application was moot was
sufficient to justify awarding no costs to him.
[49]
Each case must be decided on its own facts. In
my view, disputing paragraphs in an affidavit on the basis that they are purely
argumentative or based on hearsay is quite different from raising a substantive
argument like mootness. That said, I believe that the respondent’s costs should
be limited. Thus, I would propose to fix them at an amount of $500.00 (all
inclusive).
“Johanne
Gauthier”
“I agree
Marc Noël C.J.”
“I agree
D.G. Near J.A.”