Adams v. Canada (Attorney General), 2002 FCT 80

Date: 20020124

Docket: T-1825-00

Neutral citation: 2002 FCT 80

BETWEEN:

                                                         CAPTAIN HARVEY ADAMS

                                                                                                                                                       Applicant

                                                                              - and -

                                            THE ATTORNEY GENERAL OF CANADA

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

MacKAY J.

[1]                 This is an application for judicial review of a decision of an investigations officer of the Public Service Commission ("the PSC officer"), dated September 1, 2000, who dismissed the applicant's complaint regarding a departmental investigation concerning his earlier complaint of harassment against the Director of Operations of the Canadian Coast Guard ("CCG") at Halifax, concluding that the complaint was not founded or established.

Facts

[2]                 At all relevant times, the applicant was the senior Commanding Officer of vessels with the CCG, Maritime Region. He was employed with CCG since 1969. His immediate supervisor was Mark Cusack, Director of Operational Services, who reported in turn to J. Larry Wilson, Regional Director of CCG, Maritime Region.

[3]                 On March 23, 1999, the applicant, through his solicitor, sent a letter of complaint to Mr. Wilson. Further particulars, detailing 17 specific complaints, were provided in a letter dated May 4, 1999. Many of these instances concerned the alleged failures of Mr. Cusack to respond to or acknowledge memos submitted to him by the applicant in the period May 1997 to December 1998. One incident complained of allegedly occurred on December 18, 1998, when Mr. Cusack is alleged to have ordered the applicant to proceed immediately on annual leave, because of the unusually large bank of time credited to the applicant.

[4]                 The letter of complaint was treated by Mr. Wilson as a formal complaint of harassment under Treasury Board guidelines. The applicant declined to participate in an early conflict resolution process, preferring that the complaint be formally dealt with by the PSC. That Commission refused to consider the complaint at that stage and referred the matter back to the CCG to seek resolution of the matter. The department retained an independent third party, Facts-Probe Incorporated ("Facts-Probe"), to investigate the complaint, and an investigator completed a preliminary report and provided an opportunity for the parties to comment.

[5]                 Shortly before receiving the investigator's preliminary report, the applicant received a letter from Mr. Wilson, stating that Mr. Wilson's Executive Secretary, Barbara Morrissey, had commenced an investigation into an allegation regarding harassment and abuse of authority by the applicant in relation to a fellow employee, Elizabeth Campbell. Ultimately, Ms. Morrissey's report concluded that the applicant had harassed Ms. Campbell.

[6]                 The applicant, believing that he was continuing to be harassed by actions taken by Mr. Wilson, and concerned about the latter's possible conflict of interest in light of the investigation of Ms. Campbell's complaint by Mr. Wilson's Executive Secretary, sought intervention by the Director General (Maritime Region) of the CCG, to have someone other than Mr. Wilson assess the report on the investigation of the applicant's complaints against Mr. Cusack. The applicant's request was not accepted.

[7]                 On October 25, 1999, the independent third-party investigator "Facts-Probe" released a final report, concluding that the incidents in question constituted lack of communication, but did not constitute harassment as defined in the Treasury Board Policy on Harassment in the Workplace. Mr. Wilson considered the final report of the Facts-Probe investigator and advised the parties that, for the department, he accepted the finding of the investigator that the complaints of the applicant did not constitute harassment within the meaning of the Treasury Board policy but they did indicate a need for better communications between the Director of Operations and the masters of vessels. Mr. Wilson also initiated steps to address this shortcoming.

[8]                 On February 2, 2000, the applicant pursued the complaint, and others, with the PSC. In a decision dated April 18, 2000, the PSC determined to allow a review of the department's consideration of the applicant's complaints against Mr. Cusack, but specifically limited this to the allegation that Mr. Wilson may have been in a conflict situation, or biased, when he considered the results of the investigation, and thus when he made a final determination.

[9]                 On July 5, 2000, the PSC officer released his Preliminary Case Report, which concluded that there was no evidence that Mr. Wilson interfered with due process, i.e. with the investigation process and its results, and that he was not in a conflict position when he considered the earlier report. On September 1, 2000, after providing opportunity for comment by the parties, the PSC officer released his Final Investigation Case Report, concluding that the applicant's complaint concerning Mr. Wilson's involvement was unfounded.

[10]            Among other comments for the applicant, made prior to September 1, it was urged that Ms. Morrissey's report on allegations of harassment by the applicant of Ms. Campbell supported the applicant's concerns about conflict of interest on the part of Mr. Wilson. The PSC officer refused to consider these representations in reaching his conclusion that the applicant's complaint was not founded and there was no basis for the PSC to intervene in regard to CCG's investigation of the applicant's complaint of harassment against Mr. Cusack.

Issues

Standard of review

[11]            The applicant argues that the standard of review to be applied in this case is correctness, while the respondent urges that the applicable standard is patent unreasonableness. Both parties base their submissions on a "pragmatic and functional analysis", as set out in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982.

[12]            The applicant notes that the Public Service Employment Act, R.S.C. 1985, c. P-33 ("theAct") does not contain a privative clause, and submits that s. 21.1 of the Act anticipates appeals to the Federal Court. The respondent submits that s. 21.1 does not set out a right of appeal, but merely addresses the transfer of jurisdiction from the Federal Court, Trial Division to the Federal Court of Appeal in specified circumstances. Furthermore, the respondent notes that s. 21.1 applies only to appeals of appointments or proposed appointments in staffing competitions, and does not apply to the complaints of personal harassment raised in this case. With those submissions of the respondent, I agree.

[13]            On the matter of expertise, the applicant submits that s. 7.3(1) of the Act, which allows the functions of reporting, investigating, and auditing to be undertaken "by a commissioner or any other person", contemplates that officers of the Commission may have little expertise. Thus, in accord with Canada (Director of Investigation and Research, Competition Act) v. Southam, [1997] 1 S.C.R. 748, the applicant submits that little deference should be shown to the determinations of the PSC or its officers.

[14]            Further, the applicant notes that the Federal Court of Appeal recently applied a standard of correctness to review of decisions of the PSC Appeal Board, because the Court found that the Board lacked expertise. In Boucher v. Canada (AG), (2000) 252 NR 186, Strayer J., writing for the Court, commented, at para. 7:

We are not persuaded that the PSCAB is a tribunal which should be considered to have such expertise in the interpretation of the Public Service Employment Act that a high degree of deference is owed to it on this issue. The Board is appointed ad hoc. We conclude in this respect that the standard of review which the Trial Division should have applied is that of correctness.

That decision, as it states, concerns the standard of review to be applied to the Board's, or the Commission's, interpretation of the Act, a different matter than that here subject to review which involves factual issues or issues of mixed fact and law.

[15]            The respondent urges that the Commission is a specialized tribunal with much experience in conducting investigations of fact situations in employment-related matters, and that the Act grants the Commission much discretion in its choice of corrective action. In the respondent's submission, these considerations indicate that Parliament intended the Commission to have considerable discretion in resolving employment disputes, discretion which warrants considerable deference by a reviewing court, despite the fact that the Act does not

contain a privative clause. As the Supreme Court of Canada stated in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at para. 66:

...(E)ven when there is no privative clause and where there is a statutory right of appeal, the concept of specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal's expertise.

[16]            In my opinion, the PSC officer's decision here in issue is one made by a person with expertise in reviewing factual issues in employment-related complaints. In light of the broad purposes of the Act, in the exercise of his judgment in assessing the facts and implications underlying a complaint, the expertise of the officer, acting on behalf of the Commission, warrants substantial deference.

[17]            In Scheuneman v. Canada (Attorney General), [2000] 2 F.C. 365 at para. 43 (T.D.), aff'd [2000] F.C.J. No. 1997 (C.A.) (QL), concerning the standard of review applicable to a decision by a Public Service Staff Relations Board adjudicator, Mr. Justice Cullen wrote:

On balancing all factors this Court finds that the appropriate standard of review is that of patent unreasonableness. It is true that there is no privative clause in the PSSRA [Public Service Staff Relations Act], however...the fact that the decision of the Adjudicator was within his area of expertise constitutes the critical factor in the present case.

In my opinion, that standard, patent unreasonableness, is appropriate in this case. Subject to consideration of alleged failures to properly consider the evidence before him, that standard is not here established in relation to the PSC officer's determination.

Alleged failure to consider evidence which should have been considered

[18]            The applicant submits that the PSC officer erred in law by failing to consider evidence of Mr. Wilson's involvement in the investigation of the complaint of Ms. Campbell. In support of this submission, the applicant relies on Southam, supra, where Iacobucci J., writing for the Court, commented, at para. 41:

If the Tribunal did ignore items of evidence that the law requires it to consider, then the Tribunal erred in law.

The applicant also relies on Kershaw v. Canada, (1992)140 N.R. 382, where the Federal Court of Appeal found that a Tax Court Judge had reached his decision without regard for the material before him.

[19]            The respondent urges that there is no evidence to substantiate the applicant's claim that Mr. Wilson was involved in the complaint of Ms. Campbell, and that taken at its highest that claim is mere speculation, based apparently on the professional relationship of Mr. Wilson and Ms. Morrissey, nothing more. Accordingly, the respondent submits that the PSC officer did not err by failing to consider relevant evidence. The respondent relies on Scheuneman, supra, at para. 18, for the proposition that mere allegations should not be treated as evidence. I agree there is no evidence that Mr. Wilson was involved in the investigation of the complaint brought by Ms. Campbell.

[20]            In my view, the applicant's argument is not supported by the decision in Kershaw. There, the Tax Court judge erred by stating that there was no evidence before him when in fact there was. In the case at bar, the PSC officer commented that he had received from the applicant submissions about the investigation of the complaint of Ms. Campbell, but the evidence was not relevant to the issue before him. Thus the officer here openly acknowledged the submission before him, but declined to consider the complaint of Ms. Campbell in the following terms:

As to Larry Wilson's involvement in the Beth Campbell/ Captain Adams complaint, this PSC's investigation is not mandated to review the circumstances pertaining to this complaint and the PSC investigator has again noted that there is a separate departmental investigation underway.

Though the applicant may take issue with the rejection of the allegation of Mr. Wilson's involvement in the investigation of the complaint by Ms. Campbell on grounds it was irrelevant to the PSC officer's proceeding, Captain Adams cannot complain that the officer reached his decision without referring to the material before him. Moreover, in my view, the lack of evidence of any involvement of Mr. Wilson in the investigation of Ms. Campbell's complaint, clearly supports the assessment that this concern of Captain Adams was not relevant to the PSC officer's task.

Alleged consideration of irrelevant evidence

[21]            The applicant submits that the PSC officer erred by taking into account irrelevant considerations. Mr. Wilson completed his investigation on November 30, 1999. On that date, he wrote to the applicant as follows:

I would like to assure you that I consider you to be an important member of the Coast Guard management team, that your service is valued, and that your contribution and recommendations to improve the overall work environment are welcomed.

[22]            The PSC officer, it is said by the applicant, appeared to be favourably impressed by this letter. In his decision, the officer stated:

...(S)uch statement made by Larry Wilson in this letter to describe Captain Adams as a dedicated and loyal employee...does not fit the description of someone who may have resented the complainant or who may have been biased in his analysis of the findings of the investigation.

[23]            The applicant submits that the comments, made by Mr. Wilson at the end of the department's investigation, are not relevant to assessing Mr. Wilson's conduct during the investigation. The respondent submits that Mr. Wilson's comments, while not conclusive proof of an absence of bias, are nevertheless relevant and it was not inappropriate for the PSC officer to consider them.

[24]            It is not for me to assess the officer's interpretation of the letter. Rather, the question before me is whether the officer erred by referring to the letter, and considering it as relevant to the complaint of bias, or conflict of interest on the part of Mr. Wilson during the investigation. In my view, it was not unreasonable of the officer to consider the letter relevant to the issue before him, and he did not err by referring to it in his consideration and his conclusions.   

Conclusion

[25]            In my opinion, in his decision the PSC officer did not err in law by failing to consider the evidence before him or by considering matters that ought to have been ignored. His conclusion on the facts of the case, that the complaint of Captain Adams of bias or of conflict of interest on the part of Mr. Wilson was not established, cannot be characterized as patently unreasonable. Thus there is no basis on which the Court should intervene.

[26]            The application for judicial review is therefore dismissed.

W. Andrew MacKay

                                                                                                        _____________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

January 24, 2002