Date:
20061017
Docket:
T-282-06
Citation: 2006 FC 1239
[ENGLISH TRANSLATION]
Ottawa,
Ontario,
October 17, 2006
PRESENT:
The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
HENRI
BÉDIRIAN
Applicant
and
ATTORNEY
GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an application for judicial review
regarding a decision by Ms. Sylvie Matteau, adjudicator and member of the
Public Service Labour Relations Board of Canada (Adjudicator Matteau), on
January 19, 2006, which disposed of the applicant’s claim in the grievance
referred for adjudication under section 92 of the Public Service Staff
Relations Act, R.S.C. 1985, c. P-35 (the Act).
[2]
The applicant, Mr. Henri Bédirian, is a lawyer
with the Department of Justice (LA-3A level and group) and manager of the
Quebec Regional Office (QRO). He has been the Director of Tax Litigation since
1996.
[3]
The applicant’s grievance dealt with
disciplinary measures that were imposed on July 28, 2000, which resulted
from an investigation that was launched following a sexual harassment complaint
that was made against him by two subordinate lawyers. The first adjudicator, Ms. Anne Bertrand, found that those
allegations were baseless and had set aside the disciplinary measures. However,
she failed to maintain jurisdiction in order to dispose of the issue of damages
claimed in the grievance.
BACKGROUND
[4]
In
my judgment Bédirian v. Canada (Attorney General), 2004 FC 566, [2004] FCJ no. 683 (FC)(QL), I allowed the
applicant’s application for judicial review an I ordered that the case be
referred to the adjudicator so that she can exhaust her jurisdiction regarding
the awarding of damages.
[5]
During the hearing that followed before Adjudicator
Matteau, it was agreed to pool all the evidence that was submitted before Adjudicator
Bertrand in the record of Adjudicator Matteau. In her decision, she also
recognized that her role was not to review the assessment of the evidence that
was done before Adjudicator Bertrand or the findings of fact that were made of
it.
[6]
Adjudicator Matteau rejected the applicant’s
claim for damages and found that the employer did not commit any wrong that
would give rise to damages. She
believed that the employer had acted in good faith and
that he had the obligation to act because the sexual harassment complaint was
sufficiently serious to justify an in-depth investigation. She acknowledged
that the applicant’s physical and mental health had been affected, but the
employer’s actions were not its civil responsibility. She also highlighted that
following the decision by Adjudicator Bertrand, the employer had immediately
relieved the applicant of his management duties.
ISSUE
[7]
Did
Adjudicator Matteau refuse to exercise her authority and dispose of the
evidence that was presented before her by erroneously applying the rules of law
regarding the awarding of damages? In so doing, did she consider the findings
of fact that were made by Adjudicator Bertrand in her decision dated October 31,
2002?
ANALYSIS
1. The
applicable standard of review
[8]
There is ample authority in that the standard of
review that applies to decisions by grievance adjudicators is generally that of
patent unreasonableness (see: Barry v. Canada (Treasury Board), [1997]
FCJ no. 1404 (FCA)(QL); Connors v. Canada (Revenue – Tax), [2000] FCJ
No. 477 (FCA)(QL); Canada (Solicitor General) v. King, 2003 FCT
593, [2003] 4 FTR 543 (FCTD); White v. Canada (Solicitor General), 2004
FC 1017, [2004] FCJ No. 1231 (FC)(QL)). However, given the numerous
instructions from the Supreme Court of Canada, the Court must begin its review
with a pragmatic and functional approach in order to determine the applicable
standard of review for every decision that is under judicial review (see: Dr.
Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19,
[2003] 1 S.C.R. 226).
[9]
I must weigh each of the following contextual
factors: (1) the presence or absence in the Act of a privative clause or right
to appeal; (2) the expertise of the administrative tribunal as compared to that
of the reviewing court in the issue at hand; (3) the object of the Act and its
particular provisions; and (4) the nature of the issue (Pushpanathan
v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982).
[10]
With respect to the first factor, the Act has no
privative clause, which argues in favour of less deference.
[11]
As for the second factor, in Pushpanathan, above,
Bastarache J. indicated that the Court must consider its own expertise
relative to that of the tribunal. To do this, it must identify the nature of
the specific issue before the decision-maker. The grievance adjudicator who was
appointed under the Act has expertise in labour law in the federal public
service. That is her exclusive jurisdiction. However, when an adjudicator
applies the rules of civil responsibility, she leaves her exclusive
jurisdiction and exercises her general jurisdiction. Thus, that factor will
call for less deference vis-à-vis the adjudicator’s decision.
[12]
Regarding the third factor, the analysis of the
Act shows that its purpose is essentially to regulate and legislate the
relations between the employer and staff in the public service of Canada. An
act for which the purpose requires a tribunal to choose from among various
administrative remedies or measures that affect the protection of the public
requires greater deference. However, a provision, such as in this case, that
essentially seeks to resolve disputes or determine rights between two parties
will demand less deference (Dr. Q, above, at para 32).
[13]
Lastly, the fourth factor is that of the nature
of the issue. In this case, that is knowing whether Adjudicator Matteau
correctly interpreted and applied the rules of law regarding the awarding of
damages, given the findings of fact by Adjudicator Bertrand and all the
evidence that was presented to her. That issue rests on findings of fact that
had already been established, and to which Adjudicator Matteau could not
return. The concepts of wrong, causal links, and prejudice suffered, which are
central to an action for damages, call for more rigorous review. In addition,
it deals with a new question of law of general importance, which may have value
as a precedent.
[14]
Following
that analysis, I find that the applicable standard of review in this case is
reasonableness simpliciter. I recall that the decision is only
unreasonable if no method of analysis, in the reasons put forward, cannot
reasonably lead the tribunal, in light of the evidence, to find as it did. If
any reason whatsoever that may support the decision is able to stand up to a
somewhat probing examination, then the decision is reasonable, and the
reviewing court must not intervene (Canada (Director of Investigations and
Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748).
2. Rules of
law that are applicable in awarding of damages in the context of labour law
[15]
First,
it is important to determine the principles of law that apply to awarding
general and punitive damages respectively.
[16]
In
a labour law context, and more specifically regarding dismissal, both types of
damages share the same conditions that are essential to openness to remedy,
which is the requirement that there is evidence of a separate actionable wrong either
in tort or in contract, and that there is a causal link between the wrong and
the prejudice suffered. In Vorvis
v. Insurance Corporation of British Columbia, [1989] 1 S.C.R. 1085, McIntyre J.
approvingly cited the remarks of Weatherston J.A. in Brown v. Waterloo
Regional Board of Commissioners of Police, (1982), 37 O.R. (2d) 277 (H.C.),
at page 1104:
[…] Damages,
to be recoverable, must flow from an actionable wrong. It is not sufficient
that a course of conduct, not in itself actionable, be somehow related to an
actionable course of conduct.
[17]
Wallace v. United
Grain Growers Ltd., [1997]
3 SCR 701 reiterated that principle at paragraph 73, stating that any
awarding of damages “must be founded on a separately actionable course of
conduct.”
[18]
Thus, the law is clear
as to the necessity of a wrong that leads to an independent action. That
principle also applies to general and punitive damages (Vorvis, at pp.
1104, 1106; Wallace, at paras 73, 79).
[19]
In addition, it is
important to remember that the character of punitive damages is separate from
that of general damages. On the one hand, the purpose of the first is to punish
the wrongdoer, while the second is to compensate the plaintiff (Vorvis
at pp. 1098–1099, Wallace at para 79).
[20]
Similarly, punitive
damages distinguish themselves from general damages in terms of “burden”, or
more specifically, the threshold of behaviour, that is necessary to invoke the
employer’s civil responsibility. The awarding of punitive damages requires that
the perpetrator’s behaviour be “harsh, vindictive, reprehensible and malicious”
(Vorvis, at pp. 1107–1108; Wallace at para 79). In Vorvis,
McIntyre J. stated on page 1108 that this listing was not exhaustive, and
also included behaviour that is “extreme in its nature and such that by any
reasonable standard it is deserving of full condemnation and punishment.”
[21]
In my view, it is clear
and obvious that the threshold of behaviour that is necessary for punitive
damages will be higher than that of general damages.
[22]
It
is also essential to note that the case law that guides us in this area deals
with situations of dismissal for which a particular legal remedy exists, which
is the granting of a reasonable notice period (also referred to as “Wallace
damages”). In fact, Wallace provides that when an employer shows bad
faith or acts unfairly through a dismissal, that behaviour deserves to be
compensated through an extension of the notice period. That compensation does
not result from the dismissal itself, but from aggravating factors that
themselves caused prejudice to the employee. At paragraph 74 of McKinley
v. BC Tel, [2001] 2 S.C.R. 161, Iacobucci J., dealing with a dismissal
situation, summarized as follows the principles that resulted from Wallace:
Where a dismissal is accompanied by bad faith or
unfair dealing on the part of the employer, Wallace establishes that
such conduct merits compensation by way of an extension to the notice period.
This remedy is not triggered by the dismissal itself, but by the exacerbating
factors that, in and of themselves, inflict injury upon the employee.
[23]
The
current situation arises from a context of disciplinary measures imposed on an
employee and not dismissal. As a result, the notice period extension remedy is
not available to compensate the applicant, even though the prejudice suffered
is related to unfair treatment on the employer’s part, as we will discuss later
on. A strict interpretation of case law would result in excluding the applicant
from appropriate compensation for the prejudice suffered. In my view, this
cannot be.
[24]
In
my view, The Supreme Court of Canada wanted to indicate in Wallace and McKinley,
above, that behaviour in bad
faith or unfair treatment on the employer’s part opens the door to the
possibility of compensating the employee. In the context of a dismissal, this
compensation takes the form of an extension of the reasonable notice period. In
the context of disciplinary measures, a wrong by the employer should, in my
view, give rise to the same compensation. It would be illogical and
inconsistent to put forward that the employer would have such a responsibility
at the time of dismissal, but not when imposing disciplinary measures.
[25]
As
a result, it seems appropriate to me that granting compensation in a
disciplinary situation would follow the same analytical grid as in cases of
dismissal. Thus, I believe that the appropriate test for allowing
compensation in such a case is what was articulated in Wallace, in the
context of a reasonable notice regarding a dismissal, at paragraphs 98 and
103 respectively:
[…] employers ought to be candid, reasonable, honest
and forthright with their employees and should refrain from engaging in conduct
that is unfair or is in bad faith by being, for example, untruthful, misleading
or unduly insensitive.
[…] where an employee can
establish that an employer engaged in bad faith conduct or unfair dealing in
the course of dismissal, injuries such as humiliation, embarrassment and damage
to one’s sense of self-worth and self-esteem might all be worthy of
compensation depending upon the circumstances of the case.
[26]
First, I note that it was right for Adjudicator
Matteau to define the concept of wrong when she stated at paragraph 144 of
her decision:
[translation]
[144] In Vorvis (above)
and Wallace (above), the Supreme Court of Canada developed a four-point
analysis to determine the employer’s civil responsibility. Thus, the questions before
me are:
1) As stated by the
Federal Court (2004 FC 566, ¶ 24), did the public employee show within the
balance of probabilities that the employer committed a wrong or acted with
negligence or in bad faith?
2) If so, was this a separate
actionable wrong by the employer in either tort or contract (Vorvis
(above) and Wallace (above))? In other words, was this the
employer’s civil responsibility?
3) If so, does the
public employee have evidence of damages?
4) If so, did the
public employee establish a probable causal link between those damages and the
alleged and proven acts?
[27]
However, she has no remarks as to the behaviour
or actions by the employer that would constitute a wrong that may be its civil
responsibility. Was the employer serious and honest with his or her employee?
Was there behaviour in bad faith or were they treated unfairly?
[28]
This would then be determined if she applied
that test or a more stringent one that is imposed for punitive damages, that
is, the employer’s “harsh, vindictive, reprehensible and malicious” acts (Vorvis,
above).
3. Application of those
principles in this case
[29]
Given
the findings of fact by Adjudicator Bertrand, in support of his claim, the
applicant had raised several wrongs before Adjudicator Matteau that were committed
by the employer.
[30]
Before
reviewing the alleged wrongs, it is important to mention that blame is not
being laid on the employer for triggering the investigation process. The
evidence before the two adjudicators established that the sexual harassment
complaint that was made against the public employee was sufficiently serious to
justify such an investigation.
[31]
However,
given the dramatic consequences of the result of such an investigation for the
employee, it is crucial that the investigation process not be tarnished by any
serious procedural errors that may cast doubt on the merits of the resulting
decision. On that matter, I fully adopt the comments by authors Geoffrey
England, Roderick Wood and Innis Christie, Employment Law in Canada, loose
leaf, Markham ON, Butterworths, 2005, reference to § 11.97:
[…] The seriousness of the consequences to an
employee of being found liable for sexual harassment … has occasioned courts to
impose various procedural
safeguards before dismissal is warranted. Thus, an employer must conduct an
effective and fair investigation of an allegation of sexual harassment against
an employee before invoking dismissal. … This includes … ensuring that all
relevant witnesses are interviewed; maintaining accurate and comprehensive records
of the course of the investigation; probing the credibility of the victim
rather than pre-judging his or her account to be accurate; and not
pre-determining the outcome of the investigation until all of the relevant
evidence has been carefully sifted and weighted.
[32]
I
mainly accept the following wrongs by the employer because they refer to the
assessment of the evidence and findings made by Adjudicator Bertrand and to
which Adjudicator Matteau could not return:
1. The use of
a workplace evaluation report dating from 1998 as evidence against Mr. Bédirian
when he was not affected.
2. The failure
to inform the investigators of the apologies offered by Mr. Bédirian.
3. The failure
to send the investigators the various initial statements and documents on file
before starting the investigation process.
4. A burden of
proof used by the investigators that does not comply with existing law in
Canada.
5. The failure
by the senior advisor to inform the deputy minister of Mr. Bédirian’s
apologies.
6. The deputy
minister’s decision was based on deficient findings.
[33]
With
respect to the use of the evaluation report, Adjudicator Matteau admitted that
the advisor’s use of the report’s contents was inappropriate, but that wrong was
not the employer’s civil responsibility. On that matter, she stated:
[translation]
[161] […] the senior
advisor’s use of the contents and details of the evaluation report from June 1998
in the investigation of the sexual harassment complaint against the public
employee was in part inappropriate. […] The objective nature of his role should
have prevented him.
[162] However,
this wrong is not the employer’s civil responsibility. There is no evidence
that the senior advisor acted in bad faith […] This is not a separate
actionable wrong. […] In addition, the public employee did not demonstrate that
the employer’s actions were scandalously harsh, vengeful, reprehensible or
malicious (Vorvis (above)).
[34]
On
that same issue, Adjudicator Bertrand found more strongly that:
[translation]
[341] A significant
amount of evidence was submitted regarding the evaluation that had been carried
out at the QRO in 1998 (E-1) in order to show the problems that existed,
including the perception of a sexual harassment problem, with such a problem
even reaching the men of the QRO or “senior management”. The employer tried
to pin on the complainant that this perception may come from his behaviour as a
man of the QRO or even as a member of “senior management”. I believe that
after having heard all the evidence and reading all the documentation that was
submitted in this dispute, the references to behavioural problems of a sexual
harassment nature at the QRO and in particular the passages mentioned on pages
37 and 42 of evaluation E-1, which are repeated in the Executive summary,
do not refer to Mr. Bédirian and therefore should not have been used as
evidence against him. (Emphasis added)
[35]
In
summary, Adjudicator Bertrand was of the view that the employer had used the
workplace evaluation, carried out in 1998, as evidence against the public
employee. However, he was not the target of the problems raised during that
investigation. Thus, the employer based its arguments on elements that were
never proven and that, by the deputy minister’s admission, were considered in
his decision. Adjudicator Matteau was questioned as to whether such behaviour
from the employer is its civil responsibility. She replied in the negative. She
stated that the public employee did not succeed in showing the harsh, vengeful,
reprehensible or malicious character of the employer’s actions, which he did
not, however, have to demonstrate to establish the wrong of the employer, giving
rise to compensation. In my view, she would have had to ask herself whether
such behaviour from the employer was candid, reasonable and fair for the
employee.
[36]
As for the offering of apologies, this is an
important element in a sexual harassment investigation because it shows the
employee’s behaviour after the alleged complaints. Adjudicator Matteau
acknowledged that the evidence revealed that the senior advisor had herself
heard the offer of apologies from the mouth of the public employee, that in her
executive summary, she did not inform the deputy minister of it and that
she had falsely indicated that no apology had been made. However, Adjudicator
Matteau found that there was no evidence such that this action by the senior
advisor was malicious or marked by gross negligence or indifference. Once
again, I am of the view that she would have had to ask herself whether such
behaviour was fair to the employee.
[37]
With respect to the initial statements and
sending documents on file, the senior advisor testified that the Office’s
policy specified that those documents could not be sent to the investigators in
order to ensure that they were not influenced during their investigation.
[38]
However,
she accepted that Adjudicator Bertrand had found that the investigators had not
received all the information that was disclosed by both lawyers:
[translation]
[166] Adjudicator Bertrand found that the investigators
had not received all the information disclosed by both lawyers and the public
employee in December 1999 and January 2000, this being the notes from
various intervenors (2002 PSSRB 89, ¶ 372-373). She
found that the deputy minister had based his decision on deficient findings,
since the evidence did not undergo a rigorous examination, including the
significant initial statements and the reaction to them. […] (Emphasis
added)
[39]
Despite
this finding from Adjudicator Bertrand, Adjudicator Matteau was of the view
that there was no separate actionable wrong that was the employer’s civil
responsibility. Matteau determined that this was an error in the investigation
procedure, which was corrected by the hearing before Adjudicator Bertrand, by
applying Tipple v. Canada (Treasury Board), [1985] FCJ No. 818
(FCA)(QL). However, in that case, the injustice in the procedure had
effectively been corrected by the hearing de novo before the
adjudicator, since the applicant had been informed of the allegations and had
replied.
[40]
Such
is not the situation for Mr. Bédirian because the deputy minister’s decision to
impose disciplinary measures was made following an investigation and deficient
findings. It is not the hearing before Adjudicator Bertrand, which took place more
than two years after the deputy minister’s decision, that may correct the
injustice against the public employee and the resulting repercussions.
[41]
Adjudicator
Matteau found that there was no separate actionable wrong that was the employer’s
civil responsibility. She reiterated that the public employee failed to show
that the employer’s actions were harsh, vengeful, reprehensible or malicious.
[42]
Once
again, it appears to me that the failure to report the initial statements to
the investigators is a significant wrong it caused the deputy minster’s
decision to be tarnished, since the evidence did not undergo a rigorous review.
As I emphasized above, it is essential that in an investigation process that
will have serious consequences for the life and career of an employee, this
process must be fair and equitable to the employee.
[43]
As
emphasized by Adjudicator Bertrand, in matters of sexual harassment allegations
in paragraph 368:
[translation]
[368] […] Case law maintains that such a type of
allegation draws a stigma that will very likely persist for the so-called harasser
for years and sometimes forever. That is why these cases demand such great
delicacy in their handling, procedure, and resolution. We must never make a
decision in the case of a person “accused” of sexual harassment without having
evidence that is solid, clear, convincing, and certainly more than probable.
[…]
[44]
There
is no doubt that the deputy minister’s decision was not made using solid,
clear, and convincing evidence that the alleged acts were committed, that the
alleged conduct was persistent or repetitive or that this was a serious act, as
the following case law teaches us on the subject: Janzen v. Platy
Enterprises Ltd., [1989] 1 S.C.R. 1252; Canada (Human Rights Commission) v.
Canada (Armed Force)(re Franke), [1999] FCJ No. 757 (QL); Lippé et Commission
des droits de la personne et des droits de la jeunesse du Québec v. Québec (Attorney
General),
[1998] RJQ 3397.
[45]
In
all, for the employer, the fact that disciplinary measures were imposed that
had such serious consequences for the employee following a tarnished
investigation and process does not meet the threshold of equitable behaviour
for the employee. The serious prejudices that resulted from it for Mr. Bédirian,
such as humiliation, embarrassment, loss of self-esteem, and the loss of
reputation (which is so important for a lawyer), in my view opens the way to
compensation for him.
[46]
I
recognize that in general, in a context of action for wrongful dismissal, a
prejudice to reputation does not open the way to compensation (Peso Silver
Mines Ltd. v. Cropper, [1966] S.C.R. 673; Abouna v. Foothills Provincial
General Hospital (1978), 8 A.R. 94 (Alta. C.A.). However, case law
recognizes that exceptions to that rule exist for certain types of work, such
as “celebrities/personalities” (Abouna, above; Burmeister v. Regina
Multicultural Council (1985), 40 Sask. R 183 (C.A.) at page 190). However,
case law acknowledges that the scope of those exceptions should be expanded to
other job and professional categories (Ribeiro v. Canadian Imperial Bank of
Commerce (1989), 24 C.C.E.L. 225 (Ont. H.C.), varied (1992), 44 C.C.E.L.
165 (Ont. C.A); Perkins v. Brandon University (1985), 12 C.C.E.L. 112
(Man. C.A.). As to the broadening of those exceptions, I adopt the position of
the authors L. Frank Molnar and Kevin S. Feth in James T. Casey, ed., Remedies
in Labour, Employment and Human Rights Law, loose leaf, Toronto,
Carswell, 2006, reference to page 4-60:
In principle, an expansion of the “public
personality” exception to a wider category of employees would seem to be
warranted. Many non-entertainers are as dependent on professional and business
reputations for their livelihood and sense of self-worth as celebrities and
artists. In professions and industries where colleagues and business associates
are generally acquainted, the development of one’s reputation may be an
integral feature of employment…
[47]
In
my view, the exception also extends to other professions when reputation is
inextricably linked to the performance of the related duties. As for myself,
there is no doubt that such is the case for the profession of the lawyer.
[48]
A
lawyer’s reputation is of essential importance and is the cornerstone of his or
her professional life (Hill v. Church of Scientology of Toronto, [1995]
2 SCR 1130). I would add that in my view, the adjudicator can in such a case
consider the evidence of past facts that caused an aggravation of the prejudice
caused to the applicant and for the stigma to be maintained when the sexual
harassment complaint had been dismissed.
[49]
In
conclusion, it was unreasonable for Adjudicator Matteau, in light of all of
those aggravating factors, to find that the employer had not committed any
wrong that was due for compensation.
[50]
For
those reasons, the application for judicial review is allowed. Adjudicator
Matteau’s decision is set aside, and the case is returned to another
adjudicator so that a decision is made as to the awarding of damages, given all
the evidence that has already been submitted and in light of the reasons in
this decision. With costs.
JUDGMENT
The application for judicial
review is allowed.
Adjudicator Matteau’s decision is
set aside, and the case is returned to another adjudicator so that a decision
is made as to the awarding of damages, given all the evidence that has already
been submitted and in light of the reasons in this decision.
With costs.
“Danièle
Tremblay-Lamer”
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