Dockets: T-1150-16
T-1151-16
T-1153-16
Citation:
2017 FC 373
[ENGLISH TRANSLATION]
Ottawa, Ontario, April 19, 2017
PRESENT: The Honourable Mr. Justice Martineau
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Docket: T-1150-16
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BETWEEN:
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MICHELLE GAGNON
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA (THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION CANADA)
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Respondent
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Docket: T-1151-16
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AND BETWEEN:
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MICHELLE GAGNON
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA (THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION CANADA)
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Respondent
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Docket: T-1153-16
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AND BETWEEN:
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MICHELLE GAGNON
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Applicant
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and
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THE ATTORNEY
GENERAL OF CANADA (THE DEPARTMENT OF CITIZENSHIP AND IMMIGRATION CANADA)
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Respondent
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JUDGMENT AND REASONS
[1]
On July 12, 2016, the applicant filed three
separate mandamus applications for judicial review to have grievances Nos.
500357 (T-1151-16), 500360 (T‑1150‑16), and 501048 (T-1153-16)
allowed, which were respectively filed on May 19, 2005, July 28, 2005, and May
2, 2007.
[2]
The three grievances in question were related to
the same situation of psychological harassment that the applicant claims to
have suffered in her workplace when she was employed by the Department of
Citizenship and Immigration [Department]. Today, she is asking the Court to
find that the employer failed to respect the Policy on Prevention and
Resolution of Harassment in the Workplace [Harassment Policy or Policy].
[3]
Although a final decision dismissing the three
grievances was issued on July 22, 2016, by Stefanie Beck, Assistant Deputy
Minister, Corporate Services [Deputy Minister], the applicant—who is
alternatively challenging the reasonableness of that decision—claims that the
Deputy Minister had a legal duty to follow up on her harassment complaints from
March 31, 2005 (T-1151-16), June 28, 2005 (T-1150-16), and May 2, 2007 (T‑1153-16).
[4]
The respondent submits that the applicant cannot
indirectly challenge the merits of the decision issued on July 22, 2016, while
the three applications for judicial review have otherwise become moot.
Alternatively, the Deputy Minister’s decision is reasonable in all regards. The
applicant replied that these applications are not moot, that she does not need
to amend her originating notice, and that she is entitled to the requested
statements.
[5]
For the following reasons, the applications for
judicial review are dismissed.
I.
Legal framework
[6]
The applicant has been working in the public
service since February 24, 1997. In 2005, she held a PE-03 position in the
Department’s Human Resources Division and was excluded from the bargaining
unit. However, in practice, she had the same working conditions as other
employees at her level who were covered by a collective agreement.
[7]
As held by this Court in Public Service
Alliance of Canada v Canada (Attorney General), 2014 FC 1066, [2015] 3 FCR
649, at para 29, “psychological bullying can be one of
the worst forms of harm that can be inflicted on a person over time”.
Thus, as an employer in the federal public service, the Treasury Board is
committed to providing a workplace in which everyone working in the public service
is treated with respect and dignity. In that regard, it is up to the deputy
heads of the various government departments or agencies to foster a
harassment-free workplace.
[8]
In fact, at the time when the applicant filed
the harassment complaints, the Department was required to comply with the
Harassment Policy. That policy, however, was replaced on September 30, 2012, by
the new Treasury Board policy, the additional mandatory requirements of which
are set out in the Directive on the Harassment Complaint Process. The major
changes with that new Policy are primarily related to the application to
agencies in the core public administration, but also to the duties imposed on
the designated authority to apply the Policy and the processing of complaints.
Among other things, the Directive states that the steps in processing a
complaint must be completed within 12 months, unless there are extenuating
circumstances (article 6.1.2).
[9]
The Harassment Policy allows employees to file a
grievance with the delegated manager—who is a senior manager appointed by the
Minister to be responsible for the harassment complaint process—as soon as it
becomes clear that the early resolution of the situation or conflict has failed
or is not deemed appropriate. The Policy defines harassment as “any improper conduct by an individual that is directed at
and offensive to another person or persons in the workplace, and that the
individual knew, or ought to reasonably have known, would cause offence or harm”.
(Note that, in the new Policy, the concept of harassment is expanded to now
include any event or location related to work, and that the individual knew or
ought reasonably to have known would cause offence or harm.) Again, according
to the Harassment Policy, harassment “comprises objectionable
act(s), comment(s) or display(s) that demean, belittle, or cause personal
humiliation or embarrassment, and any act of intimidation or threat.” Harassment
also includes harassment within the meaning of the Canadian Human Rights Act,
RSC 1985, c. H-6.
[10]
Under the Harassment Policy (and the new Policy
in effect), a complaint must be filed within a year of the alleged harassment
and must include the following information: the nature of the allegations; the
name of the respondent; the relationship of the respondent to the complainant
(e.g. supervisor or colleague); the date and a description of the incident(s);
and, if applicable, the names of witnesses. If the conditions are met, the
delegated manager informs the respondent that a complaint has been received and
provides him or her with the particulars of the complaint in writing, including
the allegations. If the admissibility criteria are not met, the delegated
manager informs the complainant in writing that he or she cannot accept the
complaint.
[11]
Once the complaint has been acknowledged, the
delegated manager reviews it and, if necessary, seeks additional information to
determine if the allegations are related to harassment. The difficulty is that
determining what constitutes harassment can be a very complex exercise in
practical terms. Indeed, what may be considered appropriate behaviour by one
person may be seen as harassment by another. Under the Harassment Policy, the
proper exercise of one’s authority or responsibility does not generally
constitute harassment.
[12]
The Harassment Policy states that delegated
managers must be impartial in any complaint process in which they are involved.
If the harassment complaint is not resolved, they must offer mediation. They
must separate the complainant and the respondent, hierarchically, physically,
or both, for the duration of the complaint process, if they deem it necessary.
They must ensure that corrective or disciplinary measures are taken, where
warranted. If the delegated manager is satisfied that he or she has all the
facts and that the parties have been heard, he or she may decide not to
undertake an investigation and decide what action to take. He or she informs
the parties in writing of the outcome of the investigation and ensures that
corrective or disciplinary measures are taken, if warranted.
[13]
Under the Harassment Policy, the delegated
manager must also ensure that the harassment complaint is processed
expeditiously. In general, an employee who files a complaint with a delegated
manager can expect all the steps listed in the Harassment Policy (filing,
preliminary evaluation, mediation, investigation and decision) to be completed
without undue delays, normally in six months or less. On the other hand, if a
complaint on the same issue is or has been dealt with through another avenue of
recourse, the complaint process will not proceed further, and the file will be
closed.
[14]
Under the Harassment Policy, employees can also
file an individual grievance or file a complaint with the Canadian Human Rights
Commissioner if the harassment is based on prohibited grounds. In fact, the Canadian
Human Rights Act states that every person in the workplace has the right to
not suffer harassment based on race, national or ethnic origin, colour,
religion, age, sex, sexual orientation, marital status, family status,
disability, or conviction for an offence for which a pardon has been granted or
in respect of which a record suspension has been ordered. That said, there is
no harassment in this case based on any of those prohibited grounds.
[15]
If mediation has not resolved the complaint, or
if no mediation is undertaken, the delegated manager launches an investigation
and notifies all involved parties. In such cases, the delegated manager must
ensure that the investigator meets all the criteria set out in the Competencies
Profile for Harassment Investigators, that they are impartial, that they
have no supervisory relationship with the parties, and that they are not being
in a position of conflict of interest. The investigator must abide by his or
her mandate and apply all principles of procedural fairness. The parties
involved have the policy to make submissions regarding the preliminary report.
The investigator must submit the final report to the delegated manager,
indicating his or her findings and conclusions.
[16]
The parties involved recognize that, under
paragraph 208(1)(b) of the Public Service Labour Relations Act, SC 2003,
c 22, section 2 [PSLRA], the applicant was entitled to file an individual
grievance if she felt aggrieved as a result of any occurrence or matter
affecting her terms and conditions of employment, which could include any
negative decision by the delegated manager following a harassment complaint (Chamberlain
v Canada (Attorney General), 2015 FC 50, [2015] FCJ No. 22, at para 39 [Chamberlain
FC 2015]). However, the Public Service Labour Relations Board does not have
jurisdiction to hear an individual grievance regarding psychological
harassment, unless it unless it falls into one of the categories set forth in
subsection 209(1) of the PSLRA, which is not the case here (Chamberlain v
Canada (Attorney General), 2012 FC 1027, [2012] FCJ No. 1140; Chamberlain
FC 2015, at para 40).
[17]
Under section 18 of the Federal Courts Act,
RSC 1985, c. F-7, this court has sole jurisdiction, in particular, to issue a
writ of mandamus and grant declaratory relief involving a federal office
(Canada (Attorney General) v Therriault (AG of Canada v Therriault),
[2004] JQ No. 10940, at paras 4–5; Vaughan v Canada, 2005 SCC 11, [2005]
1 SCR 146, at paras 29 and 39 [Vaughan]). That said, mandamus
recourse makes it possible to compel the performance of a public legal duty
that a public authority refuses or neglects to perform although duly called
upon to do so (Dragan v Canada (Minister of Citizenship and Immigration)
(T.D.), 2003 FCT 211, [2003] 4 FC 189, at para 38; Minister
of Manpower and Immigration v Tsiafakis, [1977] 2 FC 216
(CA)).
[18]
In Apotex Inc v Canada (Attorney General),
[1994] 1 FC 742 (CA), confirmed by [1994] 3 S.C.R. 1100, the Federal Court of Appeal
set forth the following conditions that must be respected for this Court to
issue a writ of mandamus:
1) There must be a public duty to act.
2) The duty must be owed to the applicant.
3) There is a clear right to performance of that duty, in
particular:
a) the applicant has satisfied all conditions giving rise to the
duty;
b) there was (i) a prior demand for performance of the duty; (ii)
a reasonable time to comply with the demand unless refused outright; and (iii)
a subsequent refusal which can be either expressed or implied, e.g.
unreasonable delay;
4) No other adequate remedy is available to the applicant.
5) The order sought will be of some practical value or effect.
6) The Court in the exercise of its discretion finds no equitable
bar to the relief sought
7) On a balance of convenience, an order in the nature of mandamus
should issue.
[19]
On the other hand, any final decision made at
the last level of the grievance process by the Deputy Minister is reviewable
based on the standard of reasonableness (Tudor Price v Canada (Attorney
General), 2015 FC 696, [2015] FCJ No. 689, at para 31; Spencer v Canada
(Attorney General), 2010 FC 33, [2010] FCJ No. 29, at paras 18–32;
Girard v Canada (Department of Human Resources and Skills Development),
2013 FC 489, [2013] FCJ No. 544, at para 16; Tibilla v Canada (Attorney
General), 2011 CF 163, [2011] FCJ No. 207, at paras 17–18; Hagel
v Canada (Attorney General), 2009 FC 329, [2009] FCJ No. 417, at
paras 19–27 confirmed by 2009 FCA 364, [2009] FCJ No. 1618; Backx v Canada
(Canadian Food Inspection Agency), 2013 FC 139, [2013] FCJ No. 145,
at para 19; Marszowski v Canada (Attorney General), 2015 FC 271,
[2015] FCJ No. 249, at para 37).
II.
Chronology of facts
and decisions regarding applicant’s harassment complaints and grievances
[20]
On March 31, 2005, while working at the
Department’s Human Resources Branch, the applicant filed a written complaint in
which she alleged that she was a victim of psychological harassment by two
supervisors, Brenda Encarnacion and Marita Somma [the respondents], contrary to
the Harassment Policy.
[21]
More specifically, the applicant alleged that
the respondents did things to belittle, humiliate, and intimidate her. Although
the applicant complained to the respondents about that situation, they still
refused, neglected, or failed to cease the harassment. For example, the
applicant referred to a disciplinary measure that she received in July 2004,
but that was cut in half by the employer. She also complained about the refusal
to grant her a sick leave advance when she was hospitalized in October and
November 2004 and noted certain derogatory comments made by Ms. Somma in
January and February 2005 regarding the quality of her work. Finally, the
applicant noted that, for a few months, her volume of work was less than
normal, while a selection process was in place to fill positions. Given that
situation, which she felt was untenable, the applicant urged the delegated
manager to ensure compliance with the Harassment Policy by ordering an
investigation and, as applicable, by imposing disciplinary sanctions against
the respondents. The applicant also asked that she be removed from her position
under the respondents’ supervision and compensation for the harm that she had
suffered.
[22]
The applicant’s harassment complaint was
processed by the Acting Regional Director for the Quebec Region, Graziella
Mousseau [the delegated manager]. On or about April 15, 2005, the delegated
manager wrote to the applicant to ask her for her cooperation and patience to
be able to fully and effectively resolve her harassment complaint against the
respondents. To that end, the delegated manager asked that the applicant provide
clarification regarding the harassment complaints by April 29, 2005. The
delegated manager also proposed mediation.
[23]
On April 28, 2005, counsel for the applicant
replied to the delegated manager that all the information already provided in
the complaint was enough to justify an investigation, that Ms. Encarnacion
committed other prejudicial acts in April 2005, while the applicant was
prepared to participate in mediation.
[24]
On April 29, 2005, the applicant filed three
grievances regarding the harassment allegations: grievance 500357 challenging
the delegated manager’s alleged refusal to follow up on the harassment
complaint; grievance 500358 challenging the delegated manager’s decision to not
separate the applicant from the respondents; and grievance 500359 challenging
Ms. Encarnacion decision to not grant her overtime. As correction measures, the
applicant sought the application of the Harassment Policy and payment of
compensation for financial losses and non-pecuniary damages (grievance 500357);
separation of the applicant and the respondents (grievance 500358); and three
hours of overtime (grievance 500359). The applicant asked to be heard at
the second level of the grievance process.
[25]
On May 9, 2005, the applicant was put off work
by her doctor.
[26]
On May 31, 2005, the delegated manager retired
from the Department.
[27]
On June 28, 2005, the applicant sent a complaint
directed to the delegated manager directly to the Deputy Minister at the time,
Janice Charette, in which she reiterated the allegations of harassment made
against the respondents in the complaint dated March 31, 2005, and complained
as well about the slowness of the review process for her complaint and the
actions of the delegated manager, Ms. Mousseau. The applicant demanded
compliance with the Harassment Policy and asked that an investigation be
conducted into the delegated manager’s actions and abuse of power, that appropriate
sanctions be taken against the delegated manager, that the applicant be
immediately removed from her work environment, and that she be compensated for
any harm suffered.
[28]
On July 5, 2005, although she still held her
position within the Department, the applicant was placed in a temporary
assignment following a secondment agreement. In fact, the applicant was
seconded to other departments until the time of her transfer to Environment
Canada on May 10, 2010. Since that time, the applicant has no longer been an
employee of the Department.
[29]
In the meantime, on July 27, 2005, the applicant
filed a first application for judicial review (T-1301-05) to force the Deputy
Minister to carry out what she had illegally failed or refused to do or had
unreasonably delayed doing. More specifically, the applicant wants the Court to
order the Deputy Minister to appoint an investigator and/or to refer the
harassment complaint back to the Deputy Minister for review.
[30]
At the same time, on July 28, 2005, the
applicant filed grievance 500360, challenging the Deputy Minister’s decision to
not follow up on her harassment complaint dated June 28, 2005. The applicant
sought the application of the Harassment Policy and payment of compensation for
financial losses and non-pecuniary damages.
[31]
On August 9, 2005, Janice Charrette, the Deputy
Minister at the time, advised counsel for the applicant of her intention to
appoint an investigator to investigate the harassment complaints. At the same
time, she informed her that the employer would not be launching an
investigation into whether or not the delegated manager had delayed following
up on the harassment complaint dated March 31, 2005. However, the applicant
could raise the matter of the delays during the investigation.
[32]
On August 31, 2005, Ms. Montminy [the
investigator] from Harassment Investigation Office at the Department of
National Defence, was appointed by Sylvie Désilets, Acting Manager, to
investigate the harassment complaint.
[33]
On October 7, 2005, Manon Galipeau, Acting
Director, advised the Court in an affidavit produced by the defendant that the
Deputy Minister had already appointed an investigator, Ms. Montminy.
[34]
On November 24, 2005, with the defendant’s
consent, the applicant discontinued her application for judicial review,
without costs.
[35]
On November 30, 2005, a meeting took place with
the investigator, the applicant, and her counsel.
[36]
On December 13, 2005, the investigator recused
herself at the request of the applicant, who feared a risk of bias following
certain comments made by the investigator during the interview.
[37]
On January 18, 2006, the applicant filed
grievance 500450, in which she alleged, among other things, that management
refused to process the complaints dated March 31, 2005 and June 28, 2005, and
had not submitted the names of three investigators for her consideration.
[38]
On March 3, 2006, the applicant was advised that
Jean Filion [the investigator], an independent external consultant with about
fifteen years of experience in conflict resolution and investigations of harassment
complaints, had been selected as the investigator following a request for
proposals in which several firms were considered.
[39]
On April 28 and June 8, 2006, the investigator
met with the applicant.
[40]
On July 13, 2006, a copy of the detailed
harassment allegations was sent to the respondents, who then had an opportunity
to respond to them. The investigator met with them twice. He also contacted 22
individuals. All but three replied to his request for an interview and provided
testimonies regarding the facts reported by the parties.
[41]
On January 10, 2007, a preliminary copy of the
investigation report was sent to the applicant. On February 19, 2007, the
applicant provided her feedback to the investigator.
[42]
In March 2007, the investigator produced his
final 56-page report. The investigator noted in passing that it was not his
duty to make any comments on how the Department handled the harassment
complaint, as that is an administrative procedure and not a question of
harassment (point 8.1). That also applied to the grievances filed by the
applicant (point 8.2). That said, the investigator addressed at length the
various harassment allegations and the evidence on record in that regard
(points 8.5 to 8.33).
[43]
The investigator concluded that all the
applicant’s allegations were unfounded. Aside from the fact that the
investigator questioned the existence of a formal harassment complaint in 2004
(email dated April 1, 2004), several events that occurred in 2004 and 2005 were
carefully examined in the final report. The investigator found that the
relationship between the applicant and the respondents became tense to the
point of being dysfunctional. The investigator noted, however, that it was not
a new situation. In fact, everyone questioned mentioned that they had serious relationship
difficulties with the applicant.
[44]
In short, according to the investigator, it was
not a case of harassment:
[translation]
I must also say that, as rigid as Ms. Somma’s
and Ms. Encarnacion’s management style may be, those styles cannot be the
cause of Ms. Gagnon’s “problems”. On reading the testimonies gathered, it is
clear that, through her conduct and her way of seeing things, Ms. Gagnon put
herself in difficult, conflicting, and stressful positions many times. It is
therefore quite possible that certain events reported by the parties took
place. However, the intensity and interpretations that each person attributes
to those events differs greatly. That said, I am of the opinion that the
respondent’s actions in the events reported are not an expression of
harassment. They are instead an expression of a severe lack of communication
and careful listening on the part of Ms. Somma and Ms. Encarnacion, and on the
part Ms. Gagnon.
[45]
On March 26, 2007, the final investigation
report was sent to the applicants by Albert Deschamps, Regional Director
General for the Quebec Region [new manager]. The new manager noted that [translation] “after
reviewing the report, [he was] satisfied that all the information available was
considered” and concluded that he “agreed with
the investigation’s conclusions”. In doing so, the new manager reminded
the applicant that she could [translation]
“still use the services of the Employee Assistance
Program (EAP) available day and night throughout the year”.
[46]
On May 2, 2007, the applicant filed a grievance
bearing number 501048 indicating that [translation]
“the relevant provisions of the applicable collective
agreement and the Treasury Board’s and Department’s policies and directives
regarding my right to a harassment-free workplace were not respected and are
still not being respected following the filing of my harassment complaint on
March 31, 2005, and are still not being respected following the submission of
the investigation report, which received on March 29, 2007.” The applicant
asked to be heard at the second level. As corrective measures, the applicant
asked that the appropriate disciplinary actions be taken against the person or
persons at fault and that she be granted compensatory damages regarding the non-pecuniary
and financial harm that she claimed to have suffered.
[47]
On April 23, 2008, a second-level hearing was
held before the new manager, regarding grievances 500357, 500358, and 500359,
which the applicant filed on April 29, 2005, as well as grievances 500360,
500450, and 501048 filed on July 28, 2005, January 18, 2006 and May 2, 2007,
respectively.
[48]
On July 3, 2008, the applicant’s six grievances
were dismissed at the second level by the new manager (except grievance 500359,
granting three hours of overtime as a corrective measure). In the refusal
letter, among other things, the new manager noted the following:
[translation]
[…]
In grievance 500357, you allege that
Citizenship and Immigration Canada (CIC) refused to follow up on your
harassment complaint dated March 30, 2005. The delegated manager, Ms. Mousseau,
never refused to process your complaint; quite the contrary, in its letter
dated April 15, 2005, management tried to obtain additional information to
determine the best approach in the matter.
[…]
In grievance 500358, you challenge the
decision to not separate you from the respondents. Given that the delegated
manager tried to obtain additional information from you regarding the
allegations, and based on the information she had at that time, she felt that
it was not justified. Moreover, the Treasury Board’s Policy on Prevention
and Resolution of Harassment in the Workplace indicates that physical
and/or hierarchical separation is not mandatory.
[…]
In grievance 500360, you allege that
management did not follow up on your harassment complaint filed on June 28,
2005. Here again, management did not refuse to deal with your complaint. The
delegated manager was under the impression that the informal process was
proceeding and, because she was not directly involved, she had very little
information in that regard. As well, the letter from Ms. Charrette dated August
9, 2005, indicated that the Department would not be undertaking an
investigation solely for that complaint, as Ms. Mousseau had retired, but you
had the opportunity to raise any concerns during the investigation related to
your complaint dated March 30, 2005.
In the presentation you stated several times
that you had to use an application for judicial review to assert your rights as
an employee. I must note that this is not the case. In July 2005, you sent
three letters to the Deputy Minister of CIC, Ms. Charrette, with the last two
being sent a day apart, on July 28 and 29, 2005. The response to your letter
dated July 5, 2005 was sent to be signed by the Deputy Minister on July 21,
2005, informing you that an investigation would be undertaken as soon as
possible. However, before it was even signed, we received your grievance on
July 28 and your application for judicial review a few days later. The receipt
of those documents forced us to revise the prepared letter twice, resulting in
additional delays.
In grievance 500450, you alleged, in
particular, that management refused to deal with your complaints dated March
30, 2005 and June 28, 2005, and did not provide you with the names of three
investigators for consideration, as indicated in the Treasury Board’s policy.
The Policy on Prevention and Resolution of Harassment in the Workplace
does not prescribe how the investigator is to be chosen. The delegated manager
therefore reserved the right to choose the investigator without consultation.
Management did not refuse to deal with your
complaint. The first investigator was chosen in good faith by management and
was prepared to move quickly on the matter. The delegated manager even incurred
travel expenses to minimize details for meeting with you and your
representative in Québec City rather than Montréal. In doing so, the delegated
manager showed his commitment to advancing the matter and to thus minimizing
the impact for you. The withdrawal of the first investigator in mid-December
2005, inevitably caused delays. However, a new investigator was prepared to
move ahead just over to months after the withdrawal of the first, which is more
than reasonable given the time of year and contracting requirements.
In grievance 501048, you alleged that the
provisions of the collective agreement, the Treasury Board’s Policy on
Prevention and Resolution of Harassment in the Workplace and that of the
Department that offer you a harassment-free workplace are still not being
respected following the filing of your complaint and the report. As you have
not been supervised by the respondents since May 2005, it is hard for me to see
how management has not respected the policies and the collective agreement and
did not offer you a harassment-free workplace. Management finds that it has
helped and supported you a lot by finding you secondments in other departments
and assuming part of the cost of your salary and even relocation after the
filing of the report, the conclusions of which management accepted.
[49]
Following the unfavourable decision by the
delegated manger at the second level, the applicant filed grievances 500357,
500358, 500360, 500450, 501047, and 501048 at the final level. A grievance
hearing before the Deputy Minister was to take place in December 2008, but was
postponed to a latter date (February or March 2009) that was suitable for both
parties. However, the hearing was suspended on consent from the parties,
apparently due to the applicant’s mental exhaustion.
[50]
No action was taken for seven years by either
party regarding the outstanding grievances.
[51]
On July 7, 2015, Édith Bernard, a Senior Human
Resources Advisor, contacted the applicant to inform her that the Department
was prepared to proceed with the hearing of all outstanding grievances
(including grievances 500357, 500360, and 501048, the subject of these
proceedings). At that time, the applicant informed the advisor that she planned
to make submissions on the matter.
[52]
On April 12, 2016, Stefanie Beck, Assistant
Deputy Minister, Corporate Services [Deputy Minister], proceeded to hear all
outstanding grievances, including the three grievances that are the subject of
this dispute. Through our counsel, the applicant argued her point of view and
submitted jurisprudence. However, the applicant agreed to extend the deadline
to allow the employer to respond to her grievances. On May 30, 2016, counsel
for the applicant was informed that the employer planned to respond to the
grievances within two weeks, i.e. no later than June 13, 2016.
[53]
On July 12, 2016, the employer had still not
prepared a response and the Deputy Minister still had not ruled on the merits
of the grievances. Consequently, the applicant filed the current applications
for mandamus judicial review to have the Court allow grievances 500357
(T‑1151-16), 500360 (T‑1150‑16), and 501048 (T-1153-16), and
rule that the Department had a duty to follow up on the complaints dated March
31, 2008 and June 28, 2005, and had failed to comply with the Harassment
Policy.
[54]
On July 22, 2016—ten days after these
applications for mandamus judicial review were filed—the Deputy Minister
issued a final decision dismissing all the grievances. She noted that the
grievances are all related to the harassment complaint dated March 31, 2005.
She noted that the applicant was partly responsible for the delays incurred
during the investigation, particularly when she refused to give clarification
to the delegated manager (in April 2005) or when she personally asked that the
first investigator recuse herself (in December 2005). The applicant did not
provide clarification regarding the allegations in the complaint dated March
31, 2005, until June 2006. The employer therefore did not cause undue delays in
the investigation process. The Deputy Minister also felt that the decision by
the delegated manager (in April 2005) to not separate the applicant and the
respondents was reasonable at that specific time, given her refusal to provide
clarification. The Deputy Minister also could not conclude that the applicant
was harassed. She relied largely on the investigation report, which indicated
that, although the management style of the two respondents was strict, to say
the least, the alleged conduct was not an expression of harassment. Moreover,
the investigation report noted that the applicant contributed to the strained
relations in her workplace. The Deputy Minister thus dismissed the allegations
of harm and noted in passing that the applicant had not taken any steps between
December 2008 and July 2015 to inquire about the status of her grievances.
III.
Merits of the three
applications for judicial review
[55]
The applicant—who did not change her conclusions
and who did not seek, much less obtain, authorization from the Court to amend
her originating notices filed on July 12, 2016—is still asking the Court to
allow grievances 500360 (T-1150-16), 500357 (T‑1151-16), and 501048
(T-1153-16), and rule that the employer failed to comply with the Harassment
Policy. Even though the Deputy Minister examined the merits of the harassment
complaints and the delays incurred in their processing, and issued a final
decision on July 22, 2016, dismissing the three grievances, the applicant
argued that this is an instance in which the Court retains “residual jurisdiction”, as the Deputy Minister is in
a conflict of Interest to rule on workplace issues that arise under section 208
(formerly section 91) of the PSLRA and that cannot be referred to the
adjudication set out in section 209 of the PSLRA (formerly section 92). The
applicant considers that it is a case similar to the situation of
whistle-blowers (Vaughan, at paras 2, 16–17, 21, 29, 39, 72, and 73).
The applicant submitted that she has no effective recourse to argue her claims
that the employer failed to comply with the Harassment Policy, or that the
current dispute-resolution system in the public service is defective regarding
harassment. She also submitted that this dispute raises rights that are
quasi-constitutional. Alternatively, the decision by the Deputy Minister is
unreasonable and must be set aside by the Court.
[56]
The respondent submitted that the Court should
not hear these applications for mandamus judicial review, which have
become moot because the employer fulfilled its duty to investigate the harassment
complaints, while the Deputy Minister issued a final decision dismissing the
applicant’s grievances. There is no infringement of a quasi-constitutional
right, or any possible comparison to the review process for complaints and
whistle-blowing and reprisal against a whistle-blower as seen in the Public
Servants Disclosure Protection Act, SC 2005, c. 46. Moreover, the Court
does not have the authority to allow the grievances, whether through a judicial
declaration or otherwise. In any event, a writ of mandamus cannot be
issued to force the exercise of discretion in a specific way. The only recourse
available is the filing of an application for judicial review to review the
Deputy Minister’s final decision. The problem—a procedural one—is that the
applicant cannot now change her mandamus application to an application
to set aside the Deputy Minister’s decision. Alternatively, the decision issued
is reasonable in all regards. Nonetheless, even if the Deputy Minister
committed a reviewable error—which is denied—the Court cannot set aside the
decision and return the matter to the Deputy Minister for redetermination.
[57]
Having considered the criteria set out in Borowski
v Canada, 1989 CanLII 123 (SCC), [1989] 1 S.C.R. 342, [1989] SCJ No. 14,
at para 16 [Borowski], it is appropriate to hear these applications for mandamus
judicial review and to issue a final judgment regarding the merits of the
case.
[58]
The allegedly moot nature of a mandamus recourse
was raised late by the respondent. Several months passed since the Deputy
Minister’s reached a final decision on July 22, 2016. No motion to strike was
presented by the respondent. On December 29, 2016, two days of hearings were
scheduled by the Court Administrator. On April 4, 2017, the Court in fact heard
the oral submissions by counsel regarding all the issues raised by the parties
in their respective memoranda. In its memoranda dated November 22, 2016, and at
the hearing on April 4, 2017, the respondent continued to ask that the three
applications for judicial review be dismissed, with costs, and it was not until
the end of the day that counsel for the respondent finally left the issue of
costs to the Court’s discretion. Apart from the issue of costs, these
applications for mandamus judicial review are not moot.
[59]
Moreover, the applicant continues to submit that
she does not need to amend her procedures and that she is entitled to a writ of
mandamus or a judicial declaration by the Court allowing the grievances.
Alternatively, her counsel argues that the conclusion in the originating notice
to [translation] “ISSUE any other order that the Court may deem appropriate to
issue” allows the Court to set aside and quash the decision dated July
22, 2016, especially since the respondent relied on it and alternatively argued
that there is no reason to intervene because the Deputy Minister’s conclusions
are based on the evidence on record and are reasonable in this case.
[60]
Rule 301 of the Federal Court Rules,
SOR/98-106 [Rules], state that an application for judicial review (or any other
type of application) is introduced by a notice of application that contains, in
particular, a complete and concise statement of the grounds intended to be
argued and the relief sought. This is not a case in which the failure to
produce material in possession of a tribunal (certified record)—optional under
rule 317—makes it impossible to review the decision issued on July 22, 2016. In
this case, the two parties submitted detailed affidavits and numerous relevant
documents to the Court to make an informed decision regarding their respective
arguments, including the reasonableness of the Deputy Minister’s decision to
dismiss the applicant’s grievances. The respondent did not show how
non-compliance with the Rules caused it any harm. The respondent did not present
any evidence or convincing arguments that it was taken by surprise or that it
hindered the preparation of its case or its observations regarding these
applications for judicial review. Finally, it would go against the best
interests of justice to not rule today on the merits of the alternative
arguments by the parties regarding the reasonableness of the decision issued in
July 2016 by the Deputy Minister on the grounds that the applicant should have
challenged it in a separate judicial proceeding.
[61]
Having considered all the arguments raised on
merits by the parties, the Court finds that the applicant is not entitled to a
writ of mandamus or the declarations sought in this case. The
alternative arguments by the applicant are also unfounded. The final decision issued
on July 22, 2016 by the Deputy Minister is reasonable. There is no need to
order a new investigation or set aside the final decision by the Deputy
Minister dismissing the applicant’s grievances.
[62]
On the one hand, the applicant’s mandamus recourse
does not meet all the conditions set out in Apotex. Indeed, on August 9,
2005, the employer effectively followed up on the applicant’s request for an
investigation (grievances 500357 and 500360). The investigator submitted his
final report in March 2007. He questioned 22 witnesses, as well as the
applicant and the respondents. It would be abusive and impractical today to
hold a new investigation.
[63]
On the other hand, several remedies sought at
the time by the applicant in grievances 500357 (T-1151-16), 500358, and 500359
on April 29, 2005, grievance 500360 on July 28, 2005 (T‑1150-16),
grievance 500450 on January 18, 2006, and finally grievance 501048 on May 2,
2007 (T‑1153-16), no longer have any true or practical purpose today.
[64]
In particular, the request to separate the
applicant and the respondents during the investigation (grievance 500358)
became moot after May 9, 2005, as the applicant did not return to her position
with the Department. The retirement of the delegated manager, Ms. Mousseau, on
May 31, 2005, means that the disciplinary measures sought by the applicant in
her complaint on June 28, 2005, cannot be granted by the employer (grievance
500360), while it can legitimately be asked, after 12 years, whether the two
respondents, Ms. Encarnacion and Ms. Somma, are still working at the Department
(grievance 501048).
[65]
As well, the applicant was not supervised by the
respondents since May 9, 2005, and has not been employed at the Department
since May 10, 2010. Consequently, any declaration that the provisions of the
Harassment Policy aimed at offering a harassment-free workplace are still not
being respected, following the complaint in March 2005 and the investigator’s
report in March 2007, serves no purpose today (grievance 501048).
[66]
Moreover, the applicant did not challenge the
impartiality of the investigator before the Court, or the decision by the
employer to appointing him, meaning that any grievance challenging his
appointment is moot today (grievance 500450).
[67]
That leaves the monetary issues that were raised
in the individual grievances following the complaints on March 30 and June 28,
2005. In this case, if the employer did not respect the Harassment Policy, the
applicant may have had a claim to argue for any harm (material or non-pecuniary)
directly related to the harassment that she claims to have suffered and the
resulting delay by management in taking immediate action.
[68]
In fact, the harassment complaint was filed on
March 31, 2005. Prior to that date, the employer had no obligation to
investigate under the Harassment Policy. As well, the applicant had to provide
sufficient clarification in her complaint for the investigation process to be
triggered. In April 2005, however, the applicant refused to provide the
clarifications required by the delegated manager and was put off work on May 9,
2005, and then accepted a temporary assignment with another department in July
2005.
[69]
The claim for the three hours of overtime that
was not paid when the applicant was working under the respondents’ supervision
was allowed at the second grievance level on July 3, 2008, when grievance
500359 was allowed. The claim—not quantified by the applicant before the Court—for
financial and non-pecuniary harm that she says she suffered because there was
no expeditious investigation regarding the complaints on March 31 and June 28,
2005 (grievances 500357, 500360, and 501048), was categorically dismissed at
the third level on July 22, 2016.
[70]
Indeed, the Deputy Minister determined that [translation] “[t]he
delegated manager, Ms. Mousseau, never refused to process [the] complaint
[dated March 30, 2005]; quite the contrary, in its letter dated April 15, 2005,
management tried to obtain additional information to determine the best
approach in the matter.” (grievance 500357). The Deputy Minister also
determined that [translation] “management did not refuse to deal with the complaint [dated
June 28, 2005]”, while “[t]he delegated manager
was under the impression that the informal process was proceeding”
(grief 500360). With respect to what may have happened after the complaints
were filed on March 31 and June 28, 2005, the Deputy Minister noted that the
applicant was [translation] “not been supervised by the respondents since May 2005”,
making it hard “to see how management has not respected
the policies and the collective agreement and did not offer you a
harassment-free workplace.” (grievance 501048).
[71]
The applicant now wants the Court to allow
grievances 500357, 500360, and 501048. In short, the applicant is asking the
Court to not consider the fact that a final decision was issued by the Deputy
Minister on July 22, 2016, on the merits of the grievances in question. I agree
with the respondent that no quasi-constitutional right has been infringed upon
here, and there is no possible comparison to complaint review processes or
investigations regarding whistle-blowing and reprisals against whistle-blowers.
The Court does not have the authority to allow the grievances, whether through
a judicial declaration or otherwise. It is not for this Court to override the
public service grievance system that has been established by Parliament (Vaughan
at para 39). However, the appropriate mechanism for examining the legality of a
decision issued at the third level of the grievance process is an application
for judicial review. This Court can certainly require that a decision-maker review
a case again, but it cannot dictate the result of such a process, except in
exceptional cases in which bad faith, a closed mind or bias by the
decision-maker justified a directed verdict (Canada (Department of Human
Resources Development) v Rafuse, 2002 FCA 31, [2002] FCJ No. 91, at para
14; Freeman v Canada (Citizenship and Immigration), 2013 FC 1065, [2013]
FCJ No. 1148, at para 78; Lebon v Canada (Public Safety and Emergency
Preparedness), 2012 FC 1500, [2012] FCJ No. 1600, confirmed
in 2013 FCA 55, [2013] FCJ No. 196; Canada (Citizenship and Immigration) v
Yansane, 2017 FCA 48, [2017] FCJ No. 264, at paras 16–17). Based on the
evidence on record, this is not the case in this case.
[72]
There was in fact a serious and full
investigation of the harassment allegations by an independent and impartial
investigator. At the risk of repeating myself, in March 2007, the investigator
produced his final 56-page report. The investigator concluded that all the
applicant’s allegations were unfounded. Aside from the fact that the
investigator questioned the existence of a formal harassment complaint in 2004
(email dated April 1, 2004), several events that occurred in 2004 and 2005 were
carefully examined in the final report. The investigator found that the
relationship between the applicant and the respondents became tense to the
point of being dysfunctional. The investigator noted that it was not a new
situation. In fact, everyone questioned mentioned that they had serious
relationship difficulties with the respondent. The applicant had an opportunity
to argue her point of view and the quality of the investigation is not in
question. At most, the applicant draws different conclusions from the same facts
reported by the investigator.
[73]
The applicant also did not attack the legality
of the decision issued by the new manager on March 26, 2007, under the
authority of the Harassment Policy. As noted above, the new manager concluded
that [translation] “after reviewing the report, [he was] satisfied that all the
information available was considered” and concluded that he “agreed with the investigation’s conclusions”.
However, rather than file an application for judicial review (see Thomas v
Canada (Attorney General), 2013 FC 292, [2013] FCJ No. 319), the applicant
chose to challenge the new manager’s decision in a grievance filed on May 2,
2007 (grievance 501048), asking that it be referred to the second level of
the grievance process.
[74]
The applicant did not convince me that there is
a need to intervene in this case. On July 3, 2008, at the second level, the new
manager dismissed all the applicant’s grievances following the processing of
her harassment complaint dated March 31, 2005, including grievances 500357, 500360,
501048, and 500450. On July 22, 2016, the Deputy Minister in turn ruled on the
issue of the delays in processing the harassment complaint dated March 31,
2005. She stated that she was satisfied that the Harassment Policy was
respected. Indeed, the excerpts from the investigation report produced before
the Court by the applicant generally support the conclusions by the new manager
(second level) and the Deputy Minister (third level) that the harassment
complaints were unfounded.
[75]
It must be remembered that the investigator met
with the applicant. She had an opportunity to provide her version of the facts
and to comment on the investigation report before its final release. It was
therefore reasonable, at the third level, for the Deputy Minister to dismiss
the applicant’s grievances regarding the conduct of the respondents, even
considering the fact that, according to the investigator, the [translation] “management
style of the two respondents was strict, to say the least”.
[76]
The applicant claimed alternatively that [translation] “any
objective reading of the investigator’s conclusions of fact and the testimonies
produced during that investigation clearly shows that [the] respondent’s
conclusion is clearly unreasonable”, citing as an example the fact that
the investigator noted the following in his report:
[translation]
Two people involved in this case also stated
that Ms. Somma and Ms. Encarnacion may have sometimes lacked discretion and tac
when discussing problems with Ms. Gagnon. The former cited as examples
conversations between the latter while their office doors were open.
[77]
The applicant is engaging in selective reading
of the investigator’s observations. His report must be read in its entirety. In
the final analysis, the investigator was of the opinion that the harassment
allegations were unfounded, following an extensive investigation of each of the
33 allegations mentioned in his report. Although some of the respondent’s
actions, when considered in isolation, could be interpreted by the applicant as
harassment, that was not enough in this case for the Court to substitute its
opinion for that of the investigator or employer.
[78]
For these reasons, the applications for judicial
review in dockets T-1150-16, T‑1151-16, and T-1153-16 are dismissed.
Given the final result, the respondent is entitled to costs. However, in
exercising its discretion, the Court is of the opinion that granting the
respondent a total amount of $1,500 is reasonable, given the nature of the
proceedings and the issues debated, the conduct and situation of the parties,
the delays in question and the specific circumstances of the case.
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