Docket: T-129-16
Citation:
2017 FC 1123
Ottawa, Ontario, December 07, 2017
PRESENT: The
Honourable Madam Justice McDonald
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BETWEEN:
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KATHARINE GREEN
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Applicant
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and
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ABORIGINAL
AFFAIRS AND NORTHERN DEVELOPMENT CANADA AND THE ATTORNEY GENERAL OF CANADA
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Respondents
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JUDGMENT AND REASONS
[1]
Katharine Green seeks judicial review of the
decision of the Associate Deputy Minister of Aboriginal Affairs and Northern
Development Canada [AANDC] (now Indigenous and Northern Affairs Canada), Hélène
Laurendeau [Laurendeau], regarding a performance pay grievance filed under s.
208 (1) of the former Public Service Labour Relations Act [PSLRA]
(now the Federal Public Sector Labour Relations Act). Ms. Green obtained
her performance pay as a result of the grievance but was not successful on her
claim that her performance pay was wrongfully withheld as a disciplinary
measure for 3 years.
[2]
This judicial review application was heard along
with two related matters where Ms. Green is the Applicant, being court files T-1721-15
and T-845-16.
[3]
For the reasons that follow, this judicial
review is dismissed without costs.
I.
Background
[4]
Ms. Green is the Director, Research and Policy
in the Specific Claims Branch of AANDC and had yearly performance reviews and
ratings and was entitled to receive performance pay in keeping with her reviews.
For the 2012-13 and 2013-14 years, she only received her performance pay after
filing grievances.
[5]
This judicial review concerns the grievance
filed with respect to her performance pay for the 2014-15 year.
[6]
On June 29, 2015, Ms. Green received a letter
from Colleen Swords, Deputy Minister. This letter confirmed Ms. Green’s
performance ratings for 2014-15 and associated performance pay entitlement in
the amount of $8,204.00.
[7]
Having not received her performance pay, Ms.
Green sent emails in September and October 2015 requesting clarification for
the delay.
[8]
On November 30, 2015 Ms. Green filed a grievance
seeking:
- The immediate
payment of the 2014-15 performance pay in the amount of $8,204.00 without
further interference, with interest, and full compensation for all
damages, including financial damages;
- A complete
review of the 2014-15 performance ratings;
- A full
explanation as to why, by whom and on what authority the performance pay
was allegedly wrongfully withheld for the three consecutive years; and
- The ceasing of “ongoing obstructive, punitive and retaliatory
behaviours” against Ms. Green.
[9]
Ms. Green confirmed in her grievance that she
wished to proceed to a final level grievance decision.
[10]
On December 1, 2015, Ms. Green’s grievance was
acknowledged.
[11]
On December 15, 2015, Ms. Green was contacted to
clarify whether she wanted to proceed with a grievance hearing, submit a
written submission in support of her grievance, or have management render a
decision based on the grievance itself. Ms. Green confirmed that her preference
was that a decision be rendered on the information provided in the grievance.
II.
Decision Under Review
[12]
On December 21, 2015, Laurendeau rendered the
final-level response to Ms. Green’s grievance. She acknowledged an
administrative error delayed the payment of Ms. Green’s performance pay. Specifically,
Ms. Green’s signed performance agreement could not be located. The performance
agreement was found in a secure cabinet on December 3, 2015.Once the agreement
was located, her performance pay was processed.
[13]
Ms. Green’s request for interest and damages was
denied as according to Laurendeau, interest is not payable on money owed by the
Crown.
[14]
The other relief sought by Ms. Green was denied
as Laurendeau considered the request for review of her 2014-15 performance
ratings was “untimely”. In any event, Laurendeau
concluded that Ms. Green was treated fairly and properly under the Directive
on the Performance Management Program for Executives.
[15]
Therefore, Ms. Green’s grievance was partially
upheld.
III.
Standard of Review
[16]
The standard of review for individual grievances
under s. 208(1) of the PSLRA is reasonableness (Kohlenberg v Canada
(Attorney General), 2017 FC 414 at para 18).
[17]
This Court has traditionally found the standard
of review for procedural fairness issues to be correctness (Mission
Institution v Khela, 2014 SCC 24 at para 79).
[18]
However, the Federal Court of Appeal has
recently noted that the standard of review on matters of procedural fairness is
in flux (Vavilov v Canada (Citizenship and Immigration), 2017 FCA 132 at
para 11; Bergeron v Canada (Attorney General), 2015 FCA 160 at paras
67-72). In some cases, the Federal Court of Appeal has deferred to the “choice of procedures” made by administrative
decision-makers regarding procedural fairness rights (Re: Sound v Fitness
Industry Council of Canada, 2014 FCA 48 at paras 39-42).
[19]
However, as discussed below, the majority of Ms.
Green’s procedural fairness arguments are issues that go to the substance of
the decision under review. For that reason, they are assessed under the
reasonableness standard.
IV.
Issues
[20]
The following issues arise in this application:
- Preliminary
Matters
(1)
Style of Cause
(2)
Applicant’s Affidavit
- Is the decision
reasonable?
- Was there a breach
of procedural fairness?
V.
Analysis
A.
Preliminary Matters
(1)
Style of Cause
[21]
Pursuant to Rule 303(2) of the Federal Courts
Rules the Respondent requests that it be identified in the style of cause as
“Attorney General of Canada.” The Respondent
argues that government departments should not be named as parties (Abi-Mansour
v Canada (Attorney General), 2015 FC 882 at para 23).
[22]
Although Ms. Green argues that the Respondent
simply wants to avoid having AANDC named in litigation, she does not point to
any authority which permits the naming of individual government departments.
[23]
Accordingly, the Respondent’s request is granted
and the style of cause shall be amended accordingly.
(2)
Applicant’s Affidavit
[24]
The Respondent also objects to evidence
contained in the Affidavit of Ms. Green which includes information which was
not before the decision-maker. In particular the Respondent objects to exhibits
referenced in paragraphs 3(a), (b), (c), 5-19 and 20, 23 inclusive of the Affidavit
of Ms. Green sworn to on February 29, 2016, and objects to the exhibits which
correspond to those impugned paragraphs, being Exhibits 1-3 and 5-18 inclusive.
Finally, the Respondent objects to any references made to these exhibits in Ms.
Green’s Memorandum of Fact and Law.
[25]
The general principle is that a court on
judicial review must confine itself to the record before the decision-maker (Bekker
v Canada, 2004 FCA 186 at para 11) subject to certain exceptions (Association
of Universities and Colleges of Canada v Canadian Copyright Licensing Agency
(Access Copyright), 2012 FCA 22 at para 20).
[26]
Affidavits are sometimes necessary to bring the
attention of the court to procedural defects that cannot be found in the
record. The Federal Court of Appeal has held that, in such cases, it may be
necessary for evidence introduced via affidavit to supplement the record (McFadyen
v Canada (Attorney General), 2005 FCA 360 at para 15). At the same time,
the onus is on the applicant to object and adduce the evidence supporting an
objection based on procedural fairness before the original decision-maker (Bernard
v Canada (Revenue Agency), 2015 FCA 263 at para 26). Here there is no
evidence of these arguments being raised before Laurendeau. It is therefore not
appropriate for this Court to consider this evidence.
[27]
The following paragraphs and exhibits of Ms.
Green’s Affidavit have not been considered for the purpose of these reasons:
- Paragraphs 3
(a), (b), (c)
- Paragraphs 5-19,
inclusive
- Paragraphs 20,
23
- Exhibits 1-3,
inclusive
- Exhibits 5-18,
inclusive.
B.
Is the decision reasonable?
[28]
Ms. Green argues that the decision is
unreasonable as it failed to consider material facts, failed to address the
substance of the complaint, and failed to provide a meaningful remedy.
(1)
Material Facts
[29]
Ms. Green argues that as part of her grievance
she requested “a full explanation as to why, by whom,
and on what authority my Performance Pay has been wrongfully withheld for the
past three consecutive years.” She argues that the grievance decision is
unreasonable as it failed to respond to this portion of her grievance.
[30]
The PSLRA, at the time of Laurendeau’s
decision, provided a comprehensive legislative scheme for the resolution of
employment-related disputes. The relevant provisions are as follows:
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Right of employee
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Droit de
fonctionnaire
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208 (1) Subject to subsections (2) to
(7), an employee is entitled to present an individual grievance if he or she
feels aggrieved
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208 (1) Sous réserve des paragraphes (2) à (7),
le fonctionnaire a le droit de présenter un grief individuel lorsqu’il
s’estime lésé :
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(a) by the interpretation or
application, in respect of the employee, of
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a) par l’interprétation ou l’application à
son égard :
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(i) a provision of a statute or regulation, or of a direction or
other instrument made or issued by the employer, that deals with terms and
conditions of employment, or
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(i) soit de toute disposition d’une loi ou
d’un règlement, ou de toute directive ou de tout autre document de
l’employeur concernant les conditions d’emploi,
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(ii) a provision of a collective agreement or an arbitral award; or
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(ii) soit de toute disposition d’une
convention collective ou d’une décision arbitrale;
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(b) as a result of any occurrence or matter affecting his or her
terms and conditions of employment.
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b) par suite de tout fait portant atteinte à
ses conditions d’emploi.
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[…]
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[…]
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Binding effect
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Décision définitive et obligatoire
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214 If an individual grievance has been presented up to and including
the final level in the grievance process and it is not one that under section
209 may be referred to adjudication, the decision on the grievance taken at
the final level in the grievance process is final and binding for all
purposes of this Act and no further action under this Act may be taken on it.
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214 Sauf dans le cas du grief individuel qui
peut être renvoyé à l’arbitrage au titre de l’article 209, la décision rendue
au dernier palier de la procédure applicable en la matière est définitive et
obligatoire et aucune autre mesure ne peut être prise sous le régime de la
présente loi à l’égard du grief en cause.
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[31]
The grievance decision under review relates
primarily to Ms. Green’s 2014-15 performance pay. Although Ms. Green raises an issue
with the delay in receiving her performance pay for the previous 2 years, her
performance pay grievances for the years 2012-13 and 2013-14 received final
level responses and were determined with finality pursuant to s.214 of the PSLRA.
Therefore “no further action” could be taken by
Laurendeau pursuant to s. 214, in respect of these grievances in the context of
her 2014-15 performance pay grievance. Ms. Green’s remedy in relation to the
earlier grievances was to seek judicial review.
[32]
The fact that the previous grievances are not
directly referenced in the Laurendeau decision is not sufficient to render the
decision unreasonable. While Ms. Green sought to put evidence into the record
on this judicial review relating to these past grievances, for the reasons
outlined above, this is improper and the evidence was not considered.
[33]
Furthermore, for the grievance decision to be
reasonable, one need only be able to understand the reasoning and the outcome
of the decision (Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 at para 16 [Newfoundland Nurses]).
Here, it is clear that Laurendeau granted Ms. Green’s proposed remedy regarding
the real substance of her core complaint - the 2014-15 performance pay
grievance. Her reasoning for doing so is clear.
[34]
Essentially, Ms. Green seeks to collaterally
attack the final level decisions respecting the previous grievances by seeking
to reopen those decisions on this judicial review. This would render the
process outlined in the PSLRA meaningless and subvert Parliament’s
legislative intent in establishing a distinct grievance process under the PSLRA.
Laurendeau, under s.214 of the PSLRA, could not consider the previous
grievances as a part of the decision under review. This Court on judicial
review must respect Parliament’s legislative intent (Penner v Niagara
(Regional Police Services Board), 2013 SCC 19 at para 31), and courts
cannot “jeopardize the comprehensive dispute resolution
process contained in the legislation by permitting routine access to the
courts…” (Vaughan v Canada, 2005 SCC 11 at para 39).
[35]
Therefore, the decision under review is
reasonable.
(2)
Failure to consider the substance of the
complaint
[36]
Ms. Green argues that the Respondent failed to
address the particulars as to how the performance agreement was located.
[37]
Laurendeau was under no obligation to address
this particular issue in order to make her decision reasonable. Laurendeau
noted that there was an “administrative error,”
and from that description, one can understand the result and reasoning of the
decision. The circumstances behind that administrative error add nothing to the
reasons (Newfoundland Nurses, at para 16).
(3)
Remedy
[38]
Ms. Green argues that the decision is
unreasonable for denying her claim for damages arising from the delay.
[39]
Ms. Green’s claim for financial damages before
Laurendeau was not substantiated by any evidence. Her only proven loss - her
performance pay - was remedied by the Laurendeau decision.
[40]
Notwithstanding the lack of evidence
substantiating her claim for damages, Ms. Green cannot seek monetary
compensation on judicial review. It is well-accepted that this Court on
judicial review does not have jurisdiction to award monetary damages because
such damages are not contemplated by s.18.1(3) of the Federal Courts Act (Canada
v Tremblay, 2004 FCA 172 at para 28; Lac v Canada (Attorney General),
2014 FC 565 at para 34).
[41]
On a review of Laurendeau’s decision, there were
good reasons for granting and denying the various remedies sought by Ms. Green.
The substance of her 2014-15 performance pay grievance was granted. The Laurendeau
decision is reasonable.
C.
Was there a breach of procedural fairness?
[42]
The majority of Ms. Green’s submissions with
respect to procedural fairness are essentially issues with the adequacy of Laurendeau’s
reasons. As an illustration, Ms. Green argues that Laurendeau’s “administrative error” explanation was not sufficient
in the circumstances.
[43]
It is incorrect to frame “adequacy of reasons” as a procedural fairness issue. Newfoundland
Nurses at paras 21-22 holds that it is a substantive issue. The substantive
arguments made by Ms. Green with respect to the reasonableness of the decision
and the explanation offered by Laurendeau are addressed above.
[44]
The submissions with respect to procedural
fairness are without merit.
VI.
Costs
[45]
Although this judicial review is dismissed, in
light of the conduct of the Respondent in delaying payment to Ms. Green of her
performance pay, I decline to award costs to the Respondent.
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