Docket: A-246-14
Citation:
2015 FCA 98
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CORAM:
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RYER J.A.
NEAR J.A.
RENNIE J.A.
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BETWEEN:
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MARK HALFACREE
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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 Toronto, Ontario, on April 15, 2015)
RYER J.A.
[1]
This is an appeal from a decision of Annis J. of
the Federal Court (2014 FC 360) dismissing an application for judicial review
of the decision of an adjudicator of the Public Service Labour Relations Board
(the “Board”) dated December 14, 2012 and cited as 2012 PSLRB 130.
[2]
The Board dismissed three grievances that were
filed by Mr. Halfacree.
[3]
The first grievance (PSLRB File No. 566-02-577)
related to a one-day suspension imposed upon Mr. Halfacree, in March of 2006, as
discipline for failing to report for work as instructed, hanging up on his
supervisor in a related telephone conversation and expressly refusing to meet
with his manager. The Board determined that these matters warranted discipline
and upheld the one-day suspension.
[4]
The second grievance (PSLRB File No.
566-02-3081) related to a five-day suspension imposed upon Mr. Halfacree, in
March of 2007, as discipline for two matters. First, for refusing to provide a
medical report supporting his absence from the workplace, that was requested by
his employer. Secondly, for reporting for duty at the wrong workplace and then
refusing to go to the correct workplace. The Board determined that discipline was
warranted for the incorrect workplace matters, but that a three-day suspension,
rather than a five-day suspension, was warranted.
[5]
The third grievance (PSLRB File No. 566-02-3439)
related to the termination of Mr. Halfacree’s employment, in April of 2009, for
insubordination resulting from nine refusals to provide information related to
his absence from the workplace, which had persisted for more than two years
prior to the termination. The Board upheld the termination. It found that Mr.
Halfacree’s repeated failures to provide such information or to meet with
management to discuss his employment constituted insubordinate, if not
contemptuous, conduct on his part.
[6]
Unsatisfied with the Board’s decision, Mr.
Halfacree applied to the Federal Court for judicial review of that decision on several
grounds:
(a)
the Board erred in concluding that Mr. Halfacree
did not establish a prima facie case of discrimination based on family
status or disability;
(b)
the Board erred in finding that Mr. Halfacree
was insubordinate; and
(c)
the Board committed a breach of procedural
fairness by prohibiting Mr. Halfacree’s counsel from cross-examining one of the
employer’s managers as to the source of an allegation that Mr. Halfacree had
been working at a second job since 2003.
[7]
The Federal Court Judge dismissed the application
for judicial review.
[8]
With respect to the family status discrimination
issue, the Federal Court Judge agreed that the Board cited an incorrect legal
test. However, he found that, assuming that the employer had a duty to accommodate,
Mr. Halfacree nonetheless failed to establish that the employer had breached that
duty. In particular, the Federal Court Judge was satisfied that Mr. Halfacree
failed to explain the nature of the family status problem or co-operate with
his employer in attempting to solve that problem. Accordingly, the Federal
Court Judge found that the Board’s conclusion that there had been no
discrimination based upon family status was a reasonable outcome.
[9]
With respect to the disability discrimination
issue, the Federal Court Judge stated that decisions of labour arbitrators and
human rights tribunals have consistently determined that stress, in and of
itself, is not a disability. In addition, he upheld as reasonable the Board’s
finding that there was no evidence before it of any illness or disease that
created a limitation upon Mr. Halfacree that required accommodation. In so
doing, the Federal Court Judge found that the medical evidence before the Board
was uninformative, said little about Mr. Halfacree’s condition and did not
support a conclusion that he was disabled.
[10]
With respect to the insubordination issue, the
Federal Court Judge determined that the employer was entitled to request and
receive medical evidence that explained Mr. Halfacree’s many absences from
work. The Federal Court Judge also found that the employer was entitled to
request meetings with Mr. Halfacree to explain his absences. Accordingly, the
Federal Court Judge upheld as reasonable the Board’s conclusion that Mr.
Halfcree was insubordinate when he refused to provide the requested medical
evidence and to attend meetings to explain his absences from work.
[11]
With respect to the procedural fairness issue,
the Federal Court Judge concluded that because the employer’s decision to
terminate Mr. Halfacree’s employment was based on insubordination, and not on
an allegation that he was working a second job while on sick leave, the
unanswered question as to the identity of the source of that allegation was
irrelevant. Accordingly, he concluded that the Board had not committed a breach
of procedural fairness.
[12]
In this appeal, we must determine whether the
Federal Court Judge correctly determined and applied the standards of review
with respect to the issues that were before him (Agraira v. Canada (Public
Safety and Emergency Preparedness), 2013 SCC 36, at para 47, [2013] 2
S.C.R. 559).
[13]
In his memorandum of fact and law, Mr. Halfacree
raises twelve issues but presents no arguments with respect to them, other than
an argument with respect to the issue of whether the Board adopted an incorrect
test with respect to the establishment of a prima facie case of
discrimination on the basis of family status. This was not in issue before the
Federal Court, as the Crown had conceded that the Board applied an incorrect
legal test.
[14]
The Federal Court Judge determined that the
standard of review for issues of procedural fairness was correctness and for
the balance of the issues before him was reasonableness. In our view, these
determinations were correct.
[15]
Moreover, we are not persuaded that the Federal
Court Judge made any reviewable error in the application of those standards of
review to the issues that were before him when he upheld the Board’s decision
to dismiss the grievances in PSLRB File Nos. 566-02-577 and 566-02-3439 and to
substitute a three-day suspension for a five-day suspension, but otherwise
dismiss the grievance in PSLRB File No. 566-02-3081.
[16]
Accordingly, for the foregoing reasons, the
appeal will be dismissed with costs.
"C. Michael Ryer"
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