Date: 20011019
Docket: T-1901-00
Neutral citation: 2001 FCT 1140
BETWEEN:
RONALD CARON
Applicant
- and -
HER MAJESTY THE QUEEN IN RIGHT OF CANADA
As represented by the TREASURY BOARD
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the decision of an Adjudicator, Jean Charles Cloutier [the "Adjudicator"], of the Public Service Staff Relations Board[hereinafter "the Board"] dated September 15, 2000, dismissing the grievances presented by the applicant and the other employees who felt aggrieved.
FACTS
[2] The applicant is a correctional officer who occupies a designated position under the Public Service Staff Relations Act ["the Act"] at Donnacona Institution ["Donnacona"] in the city of Donnacona, Quebec.
[3] The acting warden of Donnacona, Claude Lemieux [the "Warden"], sent memoranda to all employees, including all correctional officers, stating the procedure to follow in the event of collective action and specifically a picket line.
[4] The employer also stated that designated employees were forbidden to participate in a strike under section 102 of the Act.
[5] On the morning of March 26, 1999, there was a picket line blocking the entrance to Donnacona.
[6] At 9:48 a.m., the police opened up the picket line and allowed about fifty vehicles to go through.
[7] The line then stayed opened for approximately fifteen minutes, and the applicant did not cross it.
[8] On March 26, 1999, the Warden imposed a financial penalty of $1,000 on the applicant and on other correctional officers who failed to meet their obligations, pursuant to paragraph 102(1)(c) of the Act.
[9] On April 8, 1999, the applicant and other public employees who felt aggrieved by the imposition of the fine presented grievances contesting the financial penalty.
[10] On March 15, 2000, Yvon Tarte, chairman of the Board, heard a motion under s. 21 of the Act seeking an order that the employer immediately cease to impose the sanctions. That motion was dismissed.
[11] Because any public employee on whom a disciplinary measure is imposed may present a grievance, the grievances of the applicant and the other employees who felt aggrieved were referred to adjudication before the Board. The hearing of the grievances took place on July 18
and 19, 2000.
[12] On the merits of the grievances, the Adjudicator found that the applicant and the other employees who felt aggrieved admitted that they had not tried to cross the picket line.
[13] The Adjudicator concluded that the applicant and the other employees who occupied designated positions were guilty of misconduct in not crossing the picket line and therefore had violated paragraph 102(1)(c) of the Act.
[14] In short, the Adjudicator determined that in this case the imposition of a financial penalty of $1,000 was justified in the circumstances.
[15] Consequently, he dismissed the grievances and then, on October 16, 2000, the applicant filed an application for judicial review.
RELEVANT LEGISLATION
Public Service Staff Relations Act
| 92. (1) Where an employee has presented a grievance, up to and including the final level in the grievance process, with respect to
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(b) in the case of an employee in a department or other portion of the public service of Canada specified in Part I of Schedule I or designated pursuant to subsection (4),
(i) disciplinary action resulting in suspension or a financial penalty, or
(ii) termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act,
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92. (1) Après l'avoir porté jusqu'au dernier palier de la procédure applicable sans avoir obtenu satisfaction, un fonctionnaire peut renvoyer à l'arbitrage tout grief portant sur :
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b) dans le cas d'un fonctionnaire d'un ministère ou secteur de l'administration publique fédérale spécifié à la partie I de l'annexe I ou désigné par décret pris au titre du paragraphe (4), soit une mesure disciplinaire entraînant la suspension ou une sanction pécuniaire, soit un licenciement ou une rétrogradation visé aux alinéas 11(2)f) ou g) de la Loi sur la gestion des finances publiques;
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| 102. (1) No employee shall participate in a strike
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(c) who occupies a designated position.
105. (1) Every employee who contravenes section 102 is guilty of an offence and liable on summary conviction to a fine not exceeding one thousand dollars.
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102. (1) Il est interdit au fonctionnaire de participer à une grève :
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c) s'il occupe un poste désigné.
105. (1) Le fonctionnaire qui contrevient à l'article 102 commet une infraction et encourt, sur déclaration de culpabilité par procédure sommaire, une amende maximale de mille dollars.
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| 107. No prosecution arising out of an alleged failure by any person to observe any prohibition contained in section 8, 9 or 10 and no prosecution for an offence under section 105 shall be instituted except with the consent of the Board.
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107. Il ne peut être intenté de poursuite pour transgression d'une interdiction prévue aux articles 8, 9 ou 10 ou pour une infraction visée à l'article 105 sans le consentement de la Commission.
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Financial Administration Act
| 11.(2) Subject to the provisions of any enactment respecting the powers and functions of a separate employer but notwithstanding any other provision contained in any enactment, the Treasury Board may, in the exercise of its responsibilities in relation to personnel management including its responsibilities in relation to employer and employee relations in the public service, and without limiting the generality of sections 7 to 10,
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(f) establish standards of discipline in the public service and prescribe the financial and other penalties, including termination of employment and suspension, that may be applied for breaches of discipline or misconduct, and the circumstances and manner in which and the authority by which or whom those penalties may be applied or may be varied or rescinded in whole or in part;
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11. (2) Sous réserve des seules dispositions de tout texte législatif concernant les pouvoirs et fonctions d'un employeur distinct, le Conseil du Trésor peut, dans l'exercice de ses attributions en matière de gestion du personnel, notamment de relations entre employeur et employés dans la fonction publique :
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(f) établir des normes de discipline dans la fonction publique et prescrire les sanctions pécuniaires et autres y compris le licenciement et la suspension, susceptibles d'être appliquées pour manquement à la discipline ou pour inconduite et indiquer dans quelles circonstances, de quelle manière, par qui et en vertu de quels pouvoirs ces sanctions peuvent être appliquées, modifiées ou annulées, en tout ou en partie;
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ISSUES
[16] Did the employer have the statutory authority to impose this disciplinary measure, and if so, did he exercise it correctly?
ANALYSIS
Standard of Judicial Review
[17] We should first examine the standard of review that applies to decisions of adjudicators. The case law suggests that the Court should not intervene in a decision by an adjudicator appointed under the Act unless the decision is patently unreasonable.
[18] In Desrochers v. Canada (Treasury Board), [2000] F.C.A. No. 505 (F.C.T.D.), I examined the relevant cases dealing with the applicable standard of review that applies in respect of an adjudicator appointed under the Act, at paragraphs 48 to 53:
[para 48] In Barry v. Canada (Treasury Board) (1997), 139 F.T.R. 240, the Federal Court of Appeal laid down the standard of judicial review for decisions of adjudicators. Robertson J.A. wrote:
In our respectful view, the standard of review adopted by the Motions Judge is contrary to the teachings of the Supreme Court. It is true that
prior to the repeal of the privative clause, that Court had held ... that the appropriate standard of review for decisions of an adjudicator acting under the Act was whether the decision was "patently unreasonable". In our view, nothing has changed by virtue of the repeal of the privative clause.
[para 49] In McCormick v.Canada (Attorney General) (1998), 161 F.T.R. 82, Muldoon J. states:
In determining the degree of deference which should be accorded to the adjudicator's decision, reference must be made to four factors: the specialized nature of the tribunal, whether a statutory right of appeal exists, the nature of the issue to be decided by the adjudicator, and the existence of a privative clause.
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Thus, in the instant case, a considerable measure of curial deference should be accorded to the adjudicator's decision. To warrant judicial intervention by the reviewing Court, the adjudicator's decision must be patently unreasonable, or clearly irrational, and not merely wrong in the eyes of this Court.
[para 50] InCanada (Attorney General) v. Cleary (1998), 161 F.T.R. 238, Rothstein J. notes:
The parties agree, as do I, that the standard of review from the decision of an adjudicator under the Public Service Staff Relations Act is patent unreasonableness.
[19] Having regard to all the foregoing cases, this Court must accord deference to the decision of the Board and will intervene only if the decision of the Adjudicator is patently unreasonable.
92(1)(b) of the Act
[20] Section 92 of the Act defines the jurisdiction of the Board relating to grievances. Paragraph 92(1)(b) provides that a "disciplinary action resulting in suspension or financial penalty," may be referred to adjudication.
[21] At the commencement of the hearing before the Board, the applicant raised an objection regarding the jurisdiction of the Adjudicator to hear grievances. The applicant pointed out that the jurisdiction of the Adjudicator was limited to the contents of the collective agreement and therefore the Adjudicator did not have jurisdiction in regard to the Act. That objection was rejected.
[22] To have jurisdiction, the Adjudicator had to find that the financial penalty of $1,000 imposed on the applicant was a "disciplinary action resulting in suspension or a financial penalty," within the meaning of paragraph 92(1)(b) of the Act. The Adjudicator stated in his decision on page 2, at paragraph 7:
The grievors are grieving a financial penalty they received from the employer for not reporting to work on March 26, 1999.__I consider this financial penalty to be disciplinary in nature and that paragraph 92(1)(b) of the Act gives me the jurisdiction to hear the grievances before me.
[23] In addition, the Adjudicator relied on a passage from the decision in Public Service Alliance of Canada and Treasury Board on page 4, at paragraph 6:
Any employee subject to a disciplinary action can file a grievance._In addition, grievances that pertain to disciplinary actions resulting in either a suspension, financial penalty or termination of employment may, under section 92 of the PSSRA, be referred to adjudication before the Board. Therefore, the complainants who feel aggrieved by the disciplinary actions taken by the employer can contest them through the grievance process....
[24] On the question of the applicable standard of review, it is now settled law that the applicable standard of review in matters of jurisdiction is correctness (see Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557; Union des employés de service loc. 298 v. Bibeault, [1988] 2 S.C.R. 1048 and [1984] 2 S.C.R. 412">Syndicat des employés de production du Québec et de l'Acadie v. Canada (Labour Relations Board), [1984] 2 S.C.R. 412.
[25] In this case, the Adjudicator did not err by finding that he could assume jurisdiction based on paragraph 92(1)(b) of the Act and on the passage from the decision in Public Service Alliance of Canada and Treasury Board and thus determine that the financial penalty imposed on the applicant constituted "a disciplinary action resulting in suspension or a financial penalty."
Paragraph 11(2)(f) of the Financial Administration Act
[26] It seems that there was confusion between paragraph 11(2)(f) of the Financial Administration Act and paragraph 105(1)(a) of the Act. Paragraph 11(2)(f) of the Financial Administration Act gives the employer the authority to impose a disciplinary penalty--a financial penalty--when an employee is guilty of misconduct. It allows for an internal disciplinary process. In this case, the penalty that was imposed on the applicant and the aggrieved public employees was a financial penalty under paragraph 11(2)(f) of the Financial Administration Act.
[27] Paragraph 105(1)(a) of the Act provides for the possibility of imposing a fine not exceeding $1,000 on summary conviction for an offence under section 102 of the Act. However, only the courts have jurisdiction to do that since it is a judicial process. To invoke section 105 of the Act, the consent of the Board must first be obtained, under section 107 of the Act.
[28] In this case, I do not hesitate to conclude that paragraph 11(2)(f) of the Financial Administration Act provides the authority for the financial penalty imposed by the employer.
[29] Counsel for the applicant argued that subsection 11(3) of the Financial Administration Act does not allow Treasury Board to exercise its authority in relation to subsection 11(2) in the present case.
[30] I should note, first, that this argument was not made in the applicant's written representations. Second, counsel for the applicant failed to persuade me; I cannot accept that argument, the consequence of which would be that subsection (3) of section 11 would render subsection (2) of that same section inoperative. Parliament did not intend such an interpretation of those statutory provisions.
[31] Counsel for the respondent also pointed out that the applicant began by filing a grievance with the Public Service Relations Staff Board on April 21, 1999 (Exhibit F-4 of the applicant's record), and that it was subsequently withdrawn following the signing of a memorandum of understanding signed by the applicant on April 24, 1999 (Exhibit F-5).
[32] The memorandum of agreement confirmed that the grievance procedure would be followed to challenge the disciplinary measure of March 26, 1999.
[33] It is troubling, to say the least, to see that after agreeing to that procedure, the applicant decided to contest the jurisdiction of the Adjudicator, first before the Adjudicator himself, and then in the Federal Court.
[34] The least that can be said is that this is irresponsible.
[35] I have no hesitation in rejecting the applicant's arguments and to conclude that the Adjudicator had jurisdiction to hear the grievance.
[36] With regard to the Adjudicator's decision and reasons, I reread the written submissions of the applicant carefully and he failed to provide the Court with any evidence on which the Court could find that the decision is vitiated by an error in law or was based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before the Adjudicator.
[37] No evidence having been presented to the Court, the application for judicial review is dismissed.
Pierre Blais
Judge
OTTAWA, ONTARIO
October 19, 2001
Certified true translation
Sophie Debbané, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-1901-00
STYLE OF CAUSE: Ronald Caron v. Her Majesty the Queen in Right of Canada
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: October 11, 2001
REASONS FOR ORDER AND ORDER OF THE HONOURABLE MR. JUSTICE BLAIS
DATED: October 19, 2001
APPEARANCES:
Ginette Bettey FOR THE APPLICANT
Carole Bidal FOR THE RESPONDENT
SOLICITORS OF RECORD:
Ginette Bettey
Québec, Quebec FOR THE APPLICANT
Treasury Board
Ottawa, Ontario FOR THE RESPONDENT
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