Docket: A-475-16
Citation:
2017 FCA 178
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CORAM:
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PELLETIER J.A.
BOIVIN J.A.
GLEASON 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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TIMOTHY PHILPS
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Respondent
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REASONS
FOR JUDGMENT
GLEASON J.A.
[1]
The respondent, a manager at the Canada Revenue
Agency (the CRA), received a 30-day suspension for inappropriate acts involving
a number of subordinate employees. He grieved the suspension, and his grievance
was referred to adjudication before the Public Service Labour Relations and
Employment Board (the PSLREB or the Board). The CRA called several
non-managerial employees to testify as part of the employer’s case at adjudication,
and they appear to have been told by counsel for the employer that their full
names would not be used in the decision.
[2]
There is a dispute as to what transpired before
the Board regarding the request to redact names from the decision. The CRA’s
Assistant Director of Human Resources deposed that counsel for the employer
requested that all non-management employee witnesses be referred to simply by
their initials in the decision and that this request was not opposed by the
applicant. The respondent disagrees and in his affidavit says that the request
for use of initials was made only with respect to a former non-management
employee, and that he agreed only to this request.
[3]
On November 24, 2016, the Board released its
decision to the parties, in which the adjudicator dismissed the grievance and
found that the respondent had engaged in the acts with which he was reproached.
In her decision, the adjudicator used the full names of all the witnesses and
also referred to a former employee who did not testify by her full name.
[4]
Following receipt of the decision, counsel for
the employer wrote to the Board and requested that it redact the names of the non-management
employees and former employee and to refer to them by their initials. The Board
refused to do so, taking the position that the employer had only requested that
the name of the former employee be redacted and that it could not redact the
other individuals’ names as it was functus officio and thus without
jurisdiction to address the issue after the release of the award. At the
employer’s request, the Board did not publish the decision on its website, and the
decision has not yet been posted pending the determination of this application
for judicial review.
[5]
In this application, the applicant seeks to set
aside the decision of the Board refusing the requested redaction. That decision
is contained in emails that were sent to the parties on November 24 and 25,
2016 and confirmed in a subsequent email sent December 16, 2016. The applicant
also seeks an order requiring that the material filed with this Court in
support of this application for judicial review be treated confidentially, even
though the materials have already been filed as part of the Court’s public
file.
[6]
Turning to the former of these requests, I believe
that the Board’s decision cannot stand as it undoubtedly possessed the
jurisdiction to make the requested redactions following the release of its
award.
[7]
It is unlikely that counsel for the employer
would have requested that only the name of the former employee be redacted as
such a request would make little sense because the existing employees have a
far greater privacy interest in having their identities protected. Thus, in all
likelihood, there was a misunderstanding as to the nature of the redaction
request. If this were the case, the adjudicator could amend the decision as in
such event it would have been based on something akin to a clerical error and
the common law doctrine of functus officio permits the correction of
such errors, particularly in the context of an administrative tribunal: Chandler
v. Alberta Association of Architects, [1989] 2 S.C.R. 848 at pp. 861-862,
[1989] S.C.J. No. 102; Herzig v. Canada (Treasury Board), 2002 FCA 36 at
para. 16, 287 N.R. 105, leave to appeal refused [2002] S.C.C.A. No. 88, 301
N.R. 394; Rogers Communications Partnership v. Society of Composers, Authors
and Music Publishers of Canada (SOCAN), 2016 FCA 28 at paras. 70-71, 480
N.R. 325; Association of Justice Counsel v. Canada (Attorney General),
2016 FCA 56 at paras. 17-18, 481 N.R. 113.
[8]
However, even if there had been no
misunderstanding and the employer actually broadened the nature of its
redaction request following the release of the decision, I nonetheless believe
that the adjudicator possessed jurisdiction to deal with the request by virtue
of section 43 of the Public Service Labour Relations Act, S.C. 2003, c. 22,
s. 2. This section gives the PSLREB jurisdiction to amend issued decisions. In
light of the clear wording of section 43, the Board’s determination that it
lacked the authority to make the requested redactions by reason of the doctrine
of functus officio is unreasonable.
[9]
I would therefore allow this application for
judicial review and remit the redaction request to the PSLREB adjudicator who
made the decision so that she may consider the request on the merits. In such
exercise she should weigh afresh the privacy interests of the individuals in
question against any possible need to publish their names. As the respondent
claims he did not have an opportunity to express his position on the request,
the adjudicator should give the parties an opportunity to make submissions on
the issue before ruling upon it.
[10]
Finally, as concerns the request for a
confidentiality order in respect of the materials filed with this Court, I am of
the view that the request is overly broad and that the legitimate privacy
interests of the individuals in question in protecting their identities can be
adequately protected by simply filing a redacted public version of the
materials in which they are referred to by initial. So doing provides little,
if any, derogation to the open courts principle as their identities are not
germane to the decisions. On the other hand, they do have a legitimate concern
about further publicizing their names. A request for an order of this nature
ought to have been made before the materials were filed, but the applicant’s
failure to make a timely request ought not prejudice the individuals’ ongoing
interest in having their privacy maintained.
[11]
I would therefore order that the current version
of the materials be treated as confidential under Rule 151 of the Federal
Courts Rules, SOR/98-106 and that the applicant file a redacted photocopied
public version of the records within fifteen (15) days of the date of this
Court’s judgment, in which the names of the non-managerial employees and former
employee are replaced with initials.
[12]
I do not believe it appropriate to award costs
to the applicant in the circumstances of this case.
"Mary J.L. Gleason"
"I agree
"J.D. Denis Pelletier J.A."
"I agree
Richard Boivin
J.A."
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