Docket: A-365-13
Citation:
2015 FCA 32
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CORAM:
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NADON J.A.
WEBB J.A.
BOIVIN J.A.
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BETWEEN:
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ATAUR RAHMAN
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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
NADON J.A.
[1]
This is an appeal from a decision of Phelan J.
of the Federal Court (the Judge) dated October 2, 2013 (2013 FC 1007) who
dismissed the applicant's Judicial review application of a decision of Stephan
J. Bertrand, an adjudicator of the Public Service Labour Relations Board (the
Board) dated January 21, 2013.
[2]
Before the Board was a grievance brought by the
appellant following the termination of his employment. The appellant was hired
by the Department of Indian Affairs and Northern Development (Aboriginal
Affairs) as an environmental scientist, effective January 28, 2008 at Iqaluit, Nunavut. Either on January 28, 2009 or February 2, 2009 the appellant was informed
that his employment had been terminated. As a result, the appellant filed a
grievance on March 9, 2009 seeking reinstatement and damages.
[3]
The hearing of the appellant’s grievance was
fixed for May 29, 2012 at Iqaluit. The hearing proceeded, as scheduled, on May
29 until June 1, 2012 at Iqaluit and then resumed for one day in Toronto on August 27, 2012. The decision was rendered, as I have already indicated, on
January 21, 2013.
[4]
At the beginning of the hearing before the
Board, the respondent made two objections to the Board’s jurisdiction to hear
the appellant’s grievance. First, the respondent argued that as the grievance
had not been filed within the 25 day period provided for in the collective
agreement, the Board was without jurisdiction to entertain it. Second, the
respondent argued that since the grievance concerned the termination of a
probationary appointment made under the Public Service Employment Act, (S.C.
2003, c. 22, ss. 12, 13) (PSEA), it could not be referred to
adjudication under the Public Service Labour Relations Act,( S.C. 2003, c.
22, s. 2) (PSLRA). Hence, the Board was without jurisdiction.
[5]
After hearing the parties’ arguments on the
respondent’s objections, the Board reserved its decision in regard thereto and
proceeded to hear the evidence on the merits of the grievance.
[6]
The following evidence was adduced by the
parties. The appellant testified that his termination had nothing to do with
his work performance or his suitability for the position, but rather resulted
from retribution by his immediate supervisor Ms. Robin Abernethy-Gillis (Ms.
Gillis). According to the appellant, Ms. Gillis took steps which eventually led
to his termination because of his refusal to accept her ongoing sexual advances
which commenced around April 15, 2008. The appellant never reported his
supervisor’s sexual advances prior to his termination nor did he inform anyone
of these events.
[7]
Ms. Gillis testified at the hearing and denied
all of the appellant’s accusations of sexual and professional impropriety.
According to her, the appellant’s work performance left much to be desired and
as a result, she developed a plan to help him increase the level and quality of
his work. More particularly, at a given point in time, i.e. after October 20,
2008, weekly work plan meetings took place to supervise the appellant’s work
more closely.
[8]
At a meeting held on January 22, 2009, Mr. Michael
Nadler, the regional director general of the Nunavut regional office, informed
the appellant of his concerns regarding, inter alia, his
misunderstanding of fundamental issues specific to the tasks assigned to him by
his superiors.
[9]
On January 26, 2009, the appellant was asked to
attend a meeting scheduled for January 27, 2009 with Ms. Gillis and Mr. Nadler.
The appellant did not attend this meeting because of sudden illness which forced
him to go to the hospital for treatment. Shortly after leaving the hospital, the
appellant informed his employer that he would not be returning to the office
before Monday, February 2, 2009.
[10]
Mr. Nadler telephoned the appellant at home on
January 28, 2009. The subject of that conversation was disputed before the
Board. According to Mr. Nadler, he told the appellant that the purpose of the
January 27, 2009 meeting had been to inform him of his rejection on probation
and that a letter confirming this had been sent to him. However, according to
the appellant, Mr. Nadler called him to inquire about his health and to fix a
meeting for February 2, 2009 when he would be returning to the office. According
to the appellant, Mr. Nadler did not inform him that his employment had been
terminated.
[11]
Also on January 28, 2009, the appellant was in
touch with Mr. Atiomo of Aboriginal Affairs’ Winnipeg office to confirm his
willingness to accept a term position in that city and that a deployment and
secondment was not possible from Iqaluit. The appellant made it clear to Mr.
Atiomo that he had decided to leave his employment at Iqaluit.
[12]
The Board made a number of findings which are
crucial to this appeal. With regard to the timeliness
and validity of the rejection on probation, the Board held that it preferred
Mr. Nadler’s evidence regarding the conversation of January 28, 2009. In other
words, the Board found that the appellant was notified, on January 28, 2009
during his conversation with Mr. Nadler that his employment was terminated.
Thus, the Board held that the appellant had been rejected while still on
probation and that he had been notified before the expiry of his probation
period of one year. Consequently, the Board had no jurisdiction to hear
the grievance.
[13]
The Board also found that the appellant’s
grievance had not been filed within the 25 day period provided for in the
collective agreement. In effect, the appellant having been notified of his
termination on January 28, 2009 was required to file his grievance by no later
than March 4, 2009. In the circumstances, as the grievance had been filed on
March 9, 2009, it had been filed out of time. Consequently, the Board concluded
that it did not have jurisdiction to hear the grievance.
[14]
The Board then turned to the merits of the
grievance and stated that although it did not have jurisdiction to entertain
rejections while on probation, it had jurisdiction where the termination was a
sham or camouflage. In other words, if the termination is not based on a good
faith dissatisfaction by the employer of the employee’s suitability for the
job, the Board will have jurisdiction to hear the grievance.
[15]
The Board found the appellant’s evidence
with regard to Ms. Gillis’ conduct “underhanded,
unbelievable, improbable and self serving” (paragraph 62 of Board
reasons). It did not believe the appellant’s testimony that Ms. Gillis had
behaved in the way he suggested. To the contrary, the Board found Ms. Gillis’
testimony credible. In so finding, the Board indicated that it gave
considerable weight to the fact that the appellant had never reported Ms.
Gillis’ behaviour to anyone prior to his termination.
[16]
Further, the Board
found that the documentary evidence supported Ms. Gillis’ testimony that she
had real and legitimate concerns regarding the appellant’s work performance.
[17]
The Board therefore
rejected the appellant’s claim that his termination while on probation was a
sham and camouflage and not based on real concerns and dissatisfaction on the
part of his employer. In so concluding, the Board also rejected the appellant’s
claim of discrimination.
[18]
The appellant
commenced a judicial review application in the Federal Court seeking to set
aside the Board’s decision. His application was heard on September 17, 2013 in Toronto.
[19]
On October 2, 2013,
the Judge dismissed the appellant’s judicial review application. After a brief
review of the facts and of the Board’s decision, the Judge turned to the issues
before him, namely the admission of additional evidence, procedural fairness
before the Board and the validity of the Board’s decision.
[20]
The Judge refused
the admission of the new evidence sought by the appellant other than in respect
of two letters sent by the appellant’s bargaining agent dated May 17 and May
22, 2012. In these letters, the bargaining agent first indicated to the Board that
it would not be acting on behalf of the appellant at his hearing and in the
second letter, it indicated that it would now be acting for the appellant.
[21]
With respect to
procedural fairness, the issue before the Judge was whether the appellant had
had sufficient time to prepare for his hearing of May 29, 2012 in Iqaluit.
Specifically, the appellant submitted that he had only found out, through his
bargaining agent, on May 11, 2012 that his hearing was proceeding on May 29,
2012. The Judge disposed of that issue in the following terms at paragraphs 32
– 35 of his reasons:
B. Breach of Procedural Fairness
[32] It was difficult to determine from
the Applicant in what manner the Adjudicator breached a principle of natural
justice other than the claim that the Applicant had insufficient time to
prepare for the hearing because he received notice of the hearing in mid-May.
[33] The hearing occurred over four days
in Iqaluit from May 29 to June 1, 2012 and a further day in Toronto on August
27, 2012. It is difficult to see how the Applicant could not have gathered his
evidence and argument over that period of time.
[34] Further, there was no request for an
adjournment. Importantly the bargaining agent on May 25, 2012 accepted the
hearing dates. The Applicant is bound by the consent of his bargaining agent.
[35] Therefore, the Court concludes that
there is no breach of procedural fairness.
[22]
With respect to the validity of the Board’s
decision, the Judge found the decision to be reasonable. In particular, he
noted that the Board had found that the appellant’s evidence was not credible
and that in making this finding, the Board had considered and applied the
correct test. The Board had also given clear reasons for its findings.
[23]
For the Judge, the case before him was one of “true credibility” and the Board, as trier of fact, was
in the best position to make such a determination. Consequently, the Judge refused
to intervene and, as a result, the appellant’s judicial review application was
dismissed with costs.
[24]
Not satisfied with the Judge’s decision, the
appellant filed a notice of appeal on November 1, 2013 and filed his memorandum
of fact and law on June 4, 2014 in which he raises a number of issues, namely:
(1) Did the Board deny him procedural fairness by not allowing him more
time to prepare for the May 29, 2012 hearing in Iqaluit?
(2) Did his employer terminate his employment while he was on probation
or after the one year period to do so?
(3) Was his employer’s decision to terminate his employment made in bad
faith?
[25]
For the reasons that follow, I conclude that the
appellant’s appeal must be dismissed.
[26]
First, I will deal with the issue of procedural
fairness. In brief, the appellant’s argument is that he only found out on May 11,
2012 that the hearing of his grievance was scheduled for May 29, 2012 at
Iqaluit. As he was then residing in Toronto, he asked his bargaining agent to
obtain an adjournment of the hearing and a change of venue. The bargaining
agent’s request to the Board was denied primarily because the hearing had been
scheduled well in advance and the employer had already made all travel
arrangements for its witnesses.
[27]
In my view, the Judge did not err in dismissing
the appellant’s arguments on procedural fairness when he said that the
bargaining agent had agreed to the May 29, 2012 date and that the appellant was
bound by the consent of his bargaining agent. To this I would add that it is
clear that the hearing date of May 29, 2012 had been agreed to by the
bargaining agent long before the hearing date. Whether or not it is true that
the bargaining agent did not so inform the appellant prior to May 11, 2012 is
an issue which I need not decide as I find that in the circumstances, the
Board’s decision to deny the adjournment and the change of venue, when sought
by the bargaining agent either on May 22 or May 23, 2012, was not unreasonable.
Thus, if the appellant was prejudiced, as he says he was, because of the short
time which he was given to prepare for the hearing, his recourse, if any, is in
my view against the bargaining agent. Consequently, I am satisfied that there
was no denial of procedural fairness by the Board when it refused to grant the
adjournment and the change of venue sought by the bargaining agent only a few
days before the May 29, 2012 hearing date.
[28]
I now turn to the second and third issues which
I will address as one issue.
[29]
There can be no doubt that the appropriate
standard of review of the Board’s decisions concerning issue numbers 2 and 3 is
that of reasonableness which is the test that the Judge applied in deciding
these issues. Thus, the question is whether the Judge, after identifying the
correct standard of review, applied it correctly to the facts before him. In my
view, he did. At paragraphs 39 and 40 of his reasons, he wrote as follows:
[39] This was a true credibility case
where there was direct conflict between key witnesses. The trier of fact is in
a unique position to make the assessment of credibility. This Court is not in
any position to make that kind of finding or to contradict the Adjudicator’s
decision. The Court is obligated to accord deference to the Adjudicator’s
conclusions.
[40] What this Court can do is consider
the way in which the Adjudicator came to his conclusions. The Court can find no
grounds upon which to overturn the Adjudicator. The legal test used was proper,
the reasoning was clear and the decision falls within a range of results
reasonably open to the decision maker on both the issue of notice and of basis
for termination.
[30]
It is clear from the Board’s reasons that it
found the employer’s witnesses more credible than the appellant. The Board’s
credibility findings are what led it to determine that the appellant had been
terminated while on probation and that his employment had not been terminated
in bad faith or on arbitrary or discriminatory grounds. In other words, as the
Judge made clear in his reasons, this was a “true
credibility case” and, as a result, the credibility findings drove the Board
to the conclusions which it reached on the second and third issues before us.
[31]
At the hearing before us, the appellant took us
through a number of documents which, in his view, showed that the Board had
been wrong in making a number of findings and more particularly its findings on
credibility. Unfortunately for the appellant, I have not been persuaded that
the evidence to which he points actually supports his case. To the contrary, a
review of the various pieces of evidence, to which both the appellant and the
respondent referred us throughout the course of the hearing, leads me to the
conclusion that the Board was right in making the credibility findings that it
made. In any event, I am satisfied that there is nothing in the record which
could justify intervention on our part. Consequently, I agree with the Judge
that the Board’s decision was entirely reasonable.
[32]
For these reasons, I would dismiss the appeal
with costs.
“M. Nadon”
“I agree.
Wyman W. Webb
J.A.”
“I agree.
Richard Boivin
J.A.”
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