Docket: A-169-16
Citation:
2017 FCA 10
CORAM: STRATAS J.A.
GLEASON J.A.
WOODS J.A.
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BETWEEN:
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ATTORNEY
GENERAL OF CANADA
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Applicant
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and
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KAREN GRANT
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Respondent
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Heard
at Toronto, Ontario, on January 12, 2017.
Judgment delivered from the Bench at Toronto, Ontario, on January
12, 2017.
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REASONS FOR JUDGMENT OF THE COURT BY:
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GLEASON
J.A.
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Docket: A-169-16
Citation: 2017 FCA 10
CORAM: STRATAS J.A.
GLEASON J.A.
WOODS J.A.
|
BETWEEN:
|
|
ATTORNEY
GENERAL OF CANADA
|
|
Applicant
|
|
and
|
|
KAREN GRANT
|
|
Respondent
|
REASONS
FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on
January 12, 2017)
GLEASON J.A.
[1]
We have before us an application for judicial
review of the April 29, 2016 decision of the Public Service Labour Relations
and Employment Board (the PSLREB or the Board), upholding three grievances
filed by the grievor stemming from the employer’s decisions to suspend the
grievor without pay, revoke her reliability status and then terminate her
employment. The PSLREB granted all three grievances in a single set of reasons:
Grant v. Deputy Head (Canada Border Services Agency), 2016 PSLREB 37
(available on CanLII).
[2]
In reaching its decision, the PSLREB held that
it possessed jurisdiction over the three impugned decisions under both subparagraph
209(1)(c)(i) and paragraph 209(1)(b) of the Public
Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (the PSLRA).
The Board thus determined that it could review the decisions to suspend the grievor
from her employment and to revoke her reliability status under subparagraph
209(1)(c)(i) of the PSLRA to determine whether these acts
were reasonably necessary to ensure the security of the Canada Border Services
Agency (the CBSA), where the grievor worked. The PSLREB held that the CBSA did not
establish that it was reasonably necessary to suspend the grievor or to revoke
her reliability status for security reasons. The Board also looked at the same
acts as well as the termination under paragraph 209(1)(b) of the PSLRA
and found that they constituted acts of disguised discipline. The Board
therefore found two bases for allowing the grievances, one under
subparagraph 209(1)(c)(i) of the PSLRA and the other
under paragraph 209(1)(b) of the PSLRA.
[3]
In this application, the applicant submits that
the PSLREB’s decision is unreasonable as its interpretation of subparagraph
209(1)(c)(i) of the PSLRA contradicts a long line of case law
from the Board. The applicant says that the PSLREB therefore ought to have
found the grievances challenging the merits of the decision to suspend for
security-related reasons and to revoke the grievor’s security status were
non-adjudicable under subparagraph 209(1)(c)(i) of the PSLRA.
The applicant further submits that the PSLREB’s treatment of the disciplinary
issues was unreasonable as the Board failed to address whether there was
misconduct and whether any such misconduct merited the sanctions imposed.
Finally, the applicant asserts that the CBSA’s rights to procedural fairness
were violated because the Board determined the issue of remedy without hearing from
the CBSA on the issue, after having indicated that the hearing would be
bifurcated.
[4]
We need not decide in this case whether the
Board committed a reviewable error in finding that it possessed jurisdiction to
review the merits of the CBSA’s decisions to suspend the grievor and revoke her
security status under subparagraph 209(1)(c)(i) of the PSLRA as
the Board offered an alternate basis for its decision, namely that these
decisions constituted acts of disguised discipline. Both the Board and this
Court have long recognized the jurisdiction of the Board to review acts such as
these to determine whether they constitute instances of disguised discipline
and, indeed, the applicant does not dispute this.
[5]
Turning to the issue of whether the Board
committed a reviewable error in its treatment of the disciplinary issue, we
believe that when fairly read the PSLREB’s reasons show that the Board turned
its mind to whether cause existed for the impugned decisions and found that the
CBSA did not establish cause. We agree with the respondent that the portion of
the reasons that deals with the disciplinary issue cannot be read in isolation
from the rest of the reasons, which make it clear that the PSLREB found there
was no cause for the impugned actions as the CBSA failed to establish that they
were reasonably necessary. There was ample evidence before the Board from which
it could have reached this conclusion and therefore its determination cannot be
said to be unreasonable.
[6]
Finally, we find no breach of the CBSA’s rights
to procedural fairness. While it is true that the Board did initially rule that
it would bifurcate the hearing between the issues of merits and remedy, it later
reversed this position and the CBSA provided submissions on the remedial issues,
including lost overtime opportunities. The CBSA took the alternate position in
the submissions it made to the PSLREB that reinstatement was appropriate and did
not ever indicate a position to the contrary nor what evidence it might seek to
call in support of a request that the Board not follow its usual practice and instead
decline to award reinstatement. If this were the intent of the CBSA, as counsel
for the applicant fairly conceded, the CBSA’s submissions could have been far
clearer. In our view, a party that seeks to have the PSLREB hold further
hearings and hear additional evidence must clearly so request. In light of the
failure of the CBSA to clearly communicate its position, we do not believe it
was incumbent on the Board to hold an additional hearing. Given this and the
fact that the remedial award does not deal with any calculation other than the parameters
for the quantification of lost overtime opportunities, we do not believe that
the PSLREB breached the CBSA’s rights to procedural fairness. Moreover, if the CBSA
and the grievor cannot agree on the quantification of compensation for lost salary
and benefits, which the Board has not yet been called upon to determine, the CBSA
will have an opportunity to establish its views on these matters before the
Board as it remained seized of implementation issues in its decision.
[7]
We accordingly dismiss this application with
costs, which we settle in the all-inclusive amount of $3600.00.
“Mary J.L. Gleason”
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