Dubois v. Canada (Treasury Board), 2005 FC 760

                                                                                                   Date: 20050527

 

Docket: T-1523-04

 

Citation: 2005 FC 760

 

 

OTTAWA, ONTARIO, MAY 27, 2005

 

 

Present:          THE HONOURABLE MR. JUSTICE MARTINEAU

 

 

BETWEEN:

 

                                                             SUZANNE DUBOIS

 

 

                                                                                                                                            Applicant

 

 

                                                                           and

 

 

                                                            TREASURY BOARD

                                       (Canadian International Development Agency)

 

                                                                                                                                        Respondent

 

 

 

                                            REASONS FOR ORDER AND ORDER

 

 

[1]               The applicant, Suzanne Dubois, is applying to this Court for judicial review of the July 21, 2004 decision of Board Member Léo-Paul Guindon (the adjudicator) of the Public Service Staff Relations Board (PSSRB).

 

[2]               In her grievance, which is based on Foreign Service Directive (FSD) 47, the applicant alleges that her absence from work between October 20, 1998, and August 3, 1999, was the result of illnesses she contracted in Benin, namely, malaria and tuberculosis.

 

[3]               The directive in question reads as follows:

FSD 47 — Leave for post-attributable injury and illness

 

 

Introduction

 

 

Any absence caused by an injury or illness that, as determined by Health Canada, would not normally occur or is not endemic to Canada, is not chargeable to an employee's leave credits, regardless of the location of the employee at the time the absence occurs. Other absences due to illness or injury not covered by this directive are subject to the provisions of the appropriate collective agreement or applicable regulations.

 

 

Directive 47

 

 

47.01       Where Health Canada determines that an illness is not endemic to Canada, the deputy head may authorize leave for post‑attributable illness.

 

 

47.02       Where Health Canada determines that an injury gives rise to circumstances not normally experienced in Canada, the deputy head may authorize leave for absences due to the injury for a period which is in excess of that which would normally be incurred in Canada.

 

 

47.03       No charge to an employee's accumulated sick leave credits shall be made when an employee is absent from duty because of a post‑attributable illness not endemic to Canada, or circumstances arising from an injury that would not normally occur in Canada, regardless of the location of the employee's place of assignment at the time of absence.

 

 

 

[4]               In this case, the adjudicator identified two consecutive periods of absence: one from October 20, 1998, to June 16, 1999, for adjustment disorder with depressed mood (the first period), and another from June 17 to August 3, 1999, during which time the applicant also experienced side effects from isoniazid treatments (INH) (the second period). The adjudicator ruled that the applicant’s claim was well founded only with respect to the second period. He also concluded that the cause of the applicant’s absence from work for the first period was based exclusively on a diagnosis of adjustment disorder with depressed mood. In the case of the first period, the adjudicator found that Health Canada’s decisions and the employer’s application of them were consistent with FSD 47. Thus, according to the adjudicator, the applicant’s absence from work during the first period was correctly charged to earned leave credits.

 

[5]               With regard to the applicable standard of review in this case, the applicant submits that the adjudicator’s decision consists of two components: the interpretation of the FSDs and the weighing of the evidence. The applicant claims that the standard of review applicable to the first component is correctness, since it concerns a question of law. With regard to the second component, the applicant contends that the applicable standard is patent unreasonableness. Meanwhile, the respondent argues that the adjudicator’s decision is entirely based on a weighing of the evidence; therefore, the applicable standard is patent unreasonableness. 

 

[6]               I agree with the respondent’s submission. 

 

[7]               First of all, even in the case of a question of law, or perhaps one of mixed law and fact, the standard of review is not necessarily correctness, as the applicant contends, since the pragmatic and functional approach can result in the application of the reasonableness simpliciter or the patent unreasonableness standard instead of correctness (Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247).

 

[8]               Second, the decisions of a PSSRB adjudicator respecting the interpretation of collective agreements have traditionally been subject to the patent unreasonableness standard (Ryan v. Canada (Attorney General), 2005 FC 65 ; [2005] F.C.J. No. 110 (T.D.) (QL)). In the case at bar, the FSDs are an integral part of the collective agreement. 

 

[9]               Third, I note that the adjudicator had to determine if the applicant had been absent because of an illness that was (1) attributable to her posting in Benin and (2) not endemic to Canada. This involves determining causation, a task intimately related to the adjudicator’s field of expertise.

 

[10]           Fourth, determining causation, contrary to what the applicant suggests, is a question of fact, not law, as the Supreme Court ruled in St-Jean v. Mercier, [2002] 1 S.C.R. 491. At paragraphs 98, 103 and 104 of this unanimous judgment, Gonthier J. wrote the following: 

Causation here is a question of fact. There seems to be some confusion as to whether this element in the analysis of civil liability is a question of fact or a question of mixed law and fact . . . . 

 

 

The confusion on this issue perhaps stems from an inability to distinguish between cause in the pure physical sense and cause as it is cognizable in law. The latter is a question of law only insofar as we are looking at facts through the lens of the law. However, the inconsequentiality of this observation is made obvious by the truth that everything in judicial decision making is looked at through the lens of the law. This does not make everything a question of law. For example, even questions of pure fact like whether a person was present in a certain place, or whether a person committed a certain act are determined according to the probability of that being so (or according to certainty beyond a reasonable doubt in the criminal domain). This use of the legal rule of evidence of proof on a balance of probabilities to ascertain facts does not transform the question of fact into one of law.

 

 

In the determination of fault one applies norms of behaviour required by law to a set of facts. This obviously makes the question one of mixed law and fact. In contrast, in the determination of causation one is inquiring into whether something happened between the fault and the damage suffered so as to link the two. That link must be legally significant in an evidentiary sense, but it is rendered no less a question of fact.

 

 

[Emphasis added.]

 

 

 

[11]           Consequently, in light of all the relevant factors (the existence of a privative clause or right of appeal, the relative expertise of the tribunal, the purpose of the statute or provision in dispute, and the nature of the question), I am of the view that the applicable standard of review in this case is patent unreasonableness. Hence, the question of whether the applicant took leave because of a post-attributable illness should, in principle, be the exclusive domain of the adjudicator. This Court thus can intervene only if the applicant can show that the adjudicator’s findings are capricious or arbitrary. We should bear in mind that the difference between an “unreasonable” decision and a “patently unreasonable” one lies in the immediacy or obviousness of the defect. Thus, a patently unreasonable decision has been described as clearly irrational or evidently not in accordance with reason (Law Society of New Brunswick, supra at paragraph 52; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 at pages 963–64; Centre communautaire juridique de l’Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84 at paragraphs 9–12). It is thus a very difficult burden to discharge.

 

[12]           In the case at bar, the applicant has not persuaded me that the decision in dispute was patently unreasonable, that the adjudicator ignored evidence, that his findings of fact were arbitrary or capricious, or even that the decision was based on a reviewable error of law. It is also clear upon reading the adjudicator’s decision that he settled the grievance on the basis of the intent of the directive being grieved, as he was required to do under section 14.1.2 of the National Joint Council (NJC) By-Laws. This being said, I would add in passing that even if the reasonableness simpliciter standard applied in this case, after extensively reviewing the reasons given by the adjudicator, I would still be forced to conclude that his conclusion was reasonable in the circumstances. The adjudicator’s decision was based entirely on his assessment of the factual evidence (or lack thereof) adduced at the grievance hearing and can reasonably be supported by the following facts that emerged from the evidence on record.

 

[13]           Let us begin by recalling that the applicant was a project manager for the Canadian International Development Agency (CIDA), who was posted to Cotonou, Benin for a three-year term beginning September 18, 1995. During her posting, she suffered several attacks of malaria, some of which were very severe. In June and July 1998, she also had a violent bout of food poisoning which required emergency treatment. She was also infected with Koch’s bacillus, a species of bacteria that can cause tuberculosis. This being said, the parties agree that tuberculosis and malaria are not endemic to Canada.

 

[14]           At the end of her posting in Benin, the applicant returned to Canada on July 1, 1998. She went back to work at CIDA from August 31 to October 20, 1998. Nearly three months after her return, that is, on October 20, 1998, the applicant went to the clinic of Dr. Ostiguy for her health problems for the first time.

 

[15]           Further to this first consultation, Dr. Ostiguy made a diagnosis of adjustment disorder with depressed mood. In support of her diagnosis, Dr. Ostiguy noted that the applicant was suffering from a number of stressors, including accusations made against her in Benin, a brother with mental health issues, who lived with her in Canada, financial problems, flu-like symptoms, her mother’s death, and the harassment to which she says she was subjected by her boss. Absolutely no mention was made of her problems being related in whole or in part to an illness attributable to her posting in Benin.

 

[16]           Dr. Ostiguy also had the applicant submit to a series of tests and saw her again for subsequent consultations. Although a positive PPD test result indicated that the applicant was carrying Koch’s bacillus, she had no symptoms. Dr. Ostiguy was very clear on this in her letter dated June 13, 2000: [translation] “[H]owever, the patient is asymptomatic”. This being said, the results of all the other tests were normal. Moreover, when Dr. Ostiguy examined the applicant’s chest X-ray on December 4, 1998, she found nothing unusual. Dr. Ostiguy nevertheless prescribed INH as a preventive treatment.

 

[17]           The applicant began her INH treatment on January 25, 1999. On the occasion of a subsequent consultation on February 22, 1999, Dr. Ostiguy made no mention in her report of the applicant experiencing side effects from INH. Later, on April 13, 1999, the applicant told Dr. Ostiguy that she was tolerating her medication well. In fact, the applicant stated that she had more energy and was in better spirits. She even planned to return to work in May. 

 

[18]           While Dr. Ostiguy was on maternity leave, the applicant went to see Dr. Foccroulle on May 28, 1999. Dr. Foccroulle made a diagnosis of adjustment disorder with depressed mood, but without serious depression. The applicant did not indicate that she was experiencing any side effects from her INH treatment until June 17, 1999, when she mentioned it to Dr. Nappert, a doctor in the same practice as Drs. Ostiguy and Foccroulle. The applicant discontinued INH treatment on July 25, 1999. On August 27, 1999, during a visit to the clinic, the applicant said that since stopping the INH treatment, her feelings of malaise had disappeared. 

 

[19]           Given the evidence on record, the adjudicator could reasonably make a distinction between the period from October 20, 1998, to June 16, 1999, and the period from June 17 to August 3, 1999. The first period related to the applicant’s adjustment disorder with depressed mood; the second also related to adjustment disorder with depressed mood, but with the addition of side effects from the INH treatment.  

 

[20]           Even if it is true, as counsel for the applicant pleaded before this Court, that the applicant began experiencing side effects from her INH treatment in May 1999, this material evidence was not before the adjudicator, so he cannot be faulted today for ignoring evidence that was not available at the time. In this regard, the June 13, 2000 report of Dr. Ostiguy to which counsel for the applicant referred does not mention side effects of INH being reported during the May 18, 1999 consultation with Dr. Foccroulle. However, the report does mention that when the applicant was seen by Dr. Nappert on June 17, 1999, the applicant [translation] “mentioned that she had side effects from the INH (side effects not specified)”. Consequently, the adjudicator’s decision to set June 17, 1999, as the date of reference, rather than an unknown date in May 1999, does not seem arbitrary or capricious to me in the circumstances.

 

[21]           The only evidence supporting the applicant’s claim for her entire period of absence (October 1998 to August 1999) is the testimony of Dr. Barnabé. He is essentially of the view that the applicant’s major depression was secondary psychological stress associated with a state of physical exhaustion due to the severe and unusual conditions of her posting in Benin. However, after considering all of the evidence on record, the adjudicator decided not to give any weight to Dr. Barnabé’s opinion. As trier of fact, the adjudicator was not bound by Dr. Barnabé’s opinion. Only the adjudicator was in a position to determine whether there was causation between the applicant’s absence of work and any illness attributable to her posting in Benin and not endemic to Canada, based on the evidence on record.  In this case, the reasons cited by the adjudicator in his decision for discounting Dr. Barnabé’s opinion are neither arbitrary nor capricious and have a reasonable basis in the evidence on record.

 

[22]           It should be noted that the applicant did not see Dr. Barnabé until two years after her return from Benin. Dr. Barnabé therefore did not examine the applicant during the period of absence in dispute (October 1998 to August 1999), since her first visit to his clinic was on July 12, 2000. I note in this regard that Dr. Barnabé was not heard as an expert witness. He disputed not only the diagnoses of the applicant’s attending physicians, but also the INH treatment. According to Dr. Barnabé, the applicant was exhausted and anaemic after she returned from Benin. However, the blood tests to which he referred in his testimony do not coincide with the applicant’s return from Benin and cannot support a diagnosis of anaemia for her period of absence from work. Given that the applicant did not testify before the adjudicator and that Dr. Barnabé did not examine her during the period in question, Dr. Barnabé’s diagnosis of exhaustion is not supported by the evidence. The applicant was, however, fit for work and did in fact work from August 31 to October 20, 1998. The adjudicator could also have relied on the fact that Dr. Barnabé’s medical assessment had failed to take into account the impact of the accusations made against the applicant in Benin, the problems related to her having to take in her mentally ill brother, her financial difficulties, and the death of her mother.

 

[23]           I also reject the applicant’s submission to the effect that the adjudicator made a reviewable error in law in finding that the non-endemic-to-Canada illness contracted by the applicant in Benin had to be the only reason for or the primary cause of her absence in order for her to benefit from FSD 47. A reading of the decision in dispute does not support this argument. Moreover, I am of the view that, if the adjudicator had relied on the argument proposed by the applicant, he would not have found in the applicant’s favour with respect to her claim for the second period, given the numerous diagnoses of adjustment disorder with depressed mood.

 

[24]           In closing, far from being irrational, the adjudicator’s conclusion is reasonable, in that the applicant did in fact go back to work upon returning from Benin and in that the three doctors she saw at Dr. Ostiguy’s clinic explained in unequivocal terms the reasons for her absence from work. This absence, according to the doctors, was not due to an illness contracted in Benin, except in terms of the side effects of the INH treatment, which may have contributed to her absence for a limited period. Consequently, there is nothing to warrant the Court’s intervention in this case. In light of the result, the respondent is entitled to costs. 

 

                                               ORDER

 

THE COURT ORDERS that the application for judicial review be dismissed with costs.

 

                   “Luc Martineau”                 

                                                                                                   Judge                                

 

 

 

Certified true translation

Michael Palles

                                     FEDERAL COURT

 

                              SOLICITORS OF RECORD

 

 

DOCKET:                 T-1523-04

 

 

STYLE OF CAUSE: SUZANNE DUBOIS v. TREASURY BOARD (Canadian International Development Agency)

 

 

PLACE OF HEARING:                          OTTAWA, ONTARIO

 

 

DATE OF HEARING:                            MAY 24, 2005

 

 

REASONS FOR ORDER

AND ORDER BY:   THE HONOURABLE MR. JUSTICE MARTINEAU

 

 

DATED:                    MAY 27, 2005

 

 

APPEARANCES:

 

SEAN McGEE                                          FOR THE APPLICANT

ANNIE BERTHIAUME

 

 

KARL CHEMSI                                        FOR THE RESPONDENT

 

 

SOLICITORS OF RECORD:

 

NELLIGAN, O’BRIEN PAYNE LLP       FOR THE APPLICANT

OTTAWA, ONTARIO

 

 

JOHN H. SIMS, Q.C.                                     FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA