Date: 20100408
Docket: T-1165-08
Citation: 2010 FC 372
Ottawa, Ontario, April 8,
2010
PRESENT: The Honourable Mr. Justice Harrington
BETWEEN:
KATIE BARTAKOVIC AND
PUBLIC SERVICE ALLIANCE OF CANADA
Applicants
and
ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
[1]
As
a rule, this Court is not inclined to judicially review interlocutory decisions
of federal tribunals. There are, of course, exceptions. Until a few days before
the scheduled judicial review of a decision by the Occupational Health and
Safety Tribunal Canada that it was institutionally independent, both
parties intended to proceed on the merits. However, in light of the very recent
decision of the Federal Court of Appeal in Canada (Border
Services Agency) v. C.B. Powell Ltd., 2010 FCA 61, the
Attorney General queried whether it was appropriate to proceed. I have decided
to dismiss the judicial review on the grounds that it is premature. Justice
will be better served by a judicial review, if necessary, of the final decision
of the Tribunal. As stated by Mr. Justice Stratas in C.B. Powell, at
para. 32, judicial non-interference with ongoing administrative processes:
[…] [P]revents fragmentation
of the administrative process and piecemeal court proceedings, eliminates the
large costs and delays associated with premature forays to court and avoids the
waste associated with hearing an interlocutory judicial review when the
applicant for judicial review may succeed at the end of the administrative
process anyway […] Further, only at the end of the administrative process will
the reviewing court have all of the administrative decision-maker’s findings;
these findings may be suffuse with expertise, legitimate policy judgments and
valuable regulatory experience […]
[2]
On
August 31, 2005, almost five years ago now, Ms. Bartakovic, a customs inspector
at the Rainbow Bridge, Niagara Falls, refused to work after receiving notice
that two armed and dangerous individuals might attempt to cross the border at her
workplace. She invoked Section 128 of the Canada Labour Code which entitles
her to refuse to work if she had reasonable cause to believe that she would be
in danger.
[3]
The
following day, a health and safety officer investigated and issued a “no
danger” decision. She was directed back to work, and complied.
[4]
However,
with the assistance of her bargaining agent, the Public Service Alliance of
Canada (PSAC), she appealed to the Canada Appeals Office on Occupational Health
and Safety, now known as the Occupational Health and Safety Tribunal Canada. I will
refer to the Tribunal as the “Appeals Office”. The appeal is de novo.
[5]
Appointments
to the Appeals Office are made by the Minister pursuant to Section 145.1 of the
Code. A preliminary objection was raised concerning the institutional
independence of the Office. The concern was that the Office was created and
operated in such a way that a fair minded person, looking at the matter
objectively, would be concerned that Ms. Bartakovic might not get a fair
hearing. The objection raised matters of security of tenure, security of
remuneration, administrative independence and Charter rights. Evidence
was led as to actual practice before the Appeals Office and as to the history
of Part II of the Code.
[6]
This
preliminary objection took on a life of its own. The first appeals officer had
to recuse himself on grounds which had nothing to do with the merits of the
preliminary objection. Then at the outset of the proceedings before the new
appeals officer, Pierre Guenette, the Director of the Appeals Office sought and
was granted intervener status, but then resiled therefrom. Thereafter, a great
deal of evidence was led, and the hearing was reopened to admit additional
evidence which had been obtained under the Access to Information Act.
[7]
Mr.
Guenette reserved his decision for 14 months. In June 2008, he decided that the
Appeals Office was sufficiently independent. Ms. Bartakovic and the PSAC filed
an application for judicial review in July 2008. The hearing thereof, based on
a record in excess of 4,000 pages, was scheduled to be heard on March 30, 2010.
[8]
A
few days before the scheduled hearing, counsel for the Attorney General wrote
to the Registry, with copy to counsel for the Applicants, to bring to the
Court’s attention the decision of the Federal Court of Appeal in C.B. Powell,
above. Until that decision was rendered, the Attorney General was more than
content to have this Court review the interlocutory decision that the Appeals
Office was institutionally independent. Although the facts in C.B. Powell are very much
different, both parties in that case were also content to have the Federal
Court rule on an issue by way of declaration, rather than to pursue the
administrative process set out in the Customs Act.
[9]
I
deemed that the Attorney General was moving for an order to either stay or
dismiss the application for judicial review on the grounds that it is
premature. Since it was agreed that that motion and the judicial review could
not both be heard in the one day set aside, the application for judicial review
was adjourned to a later date or until it was ordered dismissed, as the case might
be.
[10]
As
well, the Court also expressed concern that the application for judicial review
lacked sufficient factual context. If Ms. Bartakovic wrote down why she
considered she was in danger if she worked that August day, it was not to be
found in the record. If the health and safety officer, who decided the next day
that there was no danger, wrote down his reasons why he had come to that
conclusion, they were not to be found in the record as well. I was advised that
the practice is that the appeals officer would call the complainant, in this
case Ms. Bartakovic, and the health and safety officers as witnesses, that is
to say if there are still alive and available.
IS THE APPLICATION
PREMATURE?
[11]
The
Attorney General primarily rested his case on two decisions, the recent
decision of the Federal Court of Appeal in C.B. Powell, above, and the
decision of Mr. Justice Martineau in Sanofi Pasteur Ltd. v. Attorney General
of Canada, 2008 FC 286, 327 F.T.R. 291. These cases, and many others,
emphasize the normal rule that parties should only go to Court after exhausting
all the remedial recourses available in the administrative process.
Nevertheless the Court, in its discretion, may entertain an application for
judicial review of an interlocutory decision if “exceptional circumstances” exist.
One such circumstance would be an allegation of systemic bias, as indeed in
this case the applicants take the position that natural justice cannot be seen
to be done because the structure of the Appeals Office does not give it
institutional independence.
[12]
However,
even if exceptional circumstances exist, the Court, in its discretion
judicially exercised, must take into account a number of other factors in
deciding whether or not to dismiss or stay on the grounds that the application
for judicial review is premature.
[13]
C.B.
Powell
was a somewhat unusual case which dealt with the assessment of duties under the
Customs Act and the recourses available to an importer faced with an
unfavourable decision. One step was to ask the President of the Canada Border
Services Agency to rule on the matter. He declined on the grounds that he
lacked jurisdiction as there had been no previous decision on the point in
dispute to appeal. The next step was to appeal a decision of the President to
the Canadian International Trade Tribunal (CITT), and from there on a point of
law to the Federal Court of Appeal. However, basing itself on past history in
these matters, C.B. Powell sought a declaration from the Federal Court as to
whether the president had rendered a “decision” which could be appealed to the
CITT. This Court, indeed myself, declared that there was a right of appeal to
the CITT as the president’s “non-decision” was a “decision”.
[14]
In
appeal, Mr. Justice Stratas, speaking for the Court, stated at para. 4 that:
Absent extraordinary circumstances, which are not present here,
parties must exhaust their rights and remedies under this administrative
process before pursuing any recourse to the courts, even on so-called
“jurisdictional” issues.
[15]
He
added at para. 33, with citations, that:
Concerns about procedural fairness or bias, the presence of an
important legal or constitutional issue, or the fact that all parties have
consented to early recourse to the courts are not exceptional circumstances
allowing parties to bypass an administrative process, as long as that process
allows the issues to be raised and an effective remedy to be granted […]
[16]
In
Sanofi Pasteur, above, Mr. Justice Martineau was faced with the judicial
review of an interlocutory decision which dismissed a motion that the Patented
Medicine Prices Review Board’s counsel be removed as that firm also acted for
Sanofi-Pasteur’s competitor.
[17]
Mr.
Justice Martineau dismissed the application as being premature. More
particularly, he did not find that the allegation of conflict of interest led
to special circumstances which warranted a judicial review of the interlocutory
decision.
[18]
He
relied on a number of cases including the decision of Mr. Justice Evans, as he
then was, in Air Canada v. Lorenz, [2000] 1 F.C. 494, for the
proposition that an allegation of perceived bias does not in and of itself
justify judicial review before the tribunal has rendered its final decision. In
Sanofi Pasteur, the applicant had preserved its position by raising its
bias concern early and so its right to raise that point on judicial review,
should an unfavourable decision be rendered by the tribunal, was preserved. The
same holds true in this case.
[19]
Counsel
for Ms. Bartakovic and the PSAC pointed out that at para. 49 of Sanofi Pasteur,
Mr. Justice Martineau said that the case before him was not one of systemic
bias going to the jurisdiction of the board, while indeed is the case before me.
[20]
Counsel
for Ms. Bartakovic emphasises that the issues raised in this judicial review go
to the very structure of the Appeals Office and so, unlike the situation in Sanofi
Pasteur, are systemic in nature. Similar allegations of institutional
independence were raised with respect to the Canadian Human Rights Tribunal and
the Canadian Human Rights Commission and worked themselves all the way up to
the Supreme Court on judicial review of interlocutory orders (Bell Canada v.
Canadian Telephone Employees Association, 2003 SCC 36, [2003] 1 S.C.R.
884). However that was the only case of a similar nature which came to
counsel’s mind. Other cases which deal with institutional independence such as Ocean
Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and
Licensing Branch), [2001] 2 S.C.R. 781, were heard as part and parcel of
the entire case on its merits.
[21]
Indeed
the Bell case proves
the point. The Supreme Court pointed out that it was considering an appeal from
a decision of the Federal Court of Appeal, 13 years after the filing of the
original complaints, which had not yet been heard on the merits. The Supreme
Court held that the tribunal was sufficiently and institutionally independent
and impartial. When all is said and done, the judicial review of the
interlocutory decisions was a colossal waste of time.
[22]
The
parties seem to have lost sight of the fact that the issue is whether a fair-minded
person, having thought the matter through, would be concerned that the Appeals
Office was unable to give Ms. Bartakovic a fair hearing de novo. While
the parties agree that Ms. Bartakovic’s concern was that she did not have
adequate protection, a codeword for the right to bear arms, the Court, as well
as the Appeals Office, has absolutely no information as to why the health and
safety officer decided she was not in danger. We are left to speculate. Was it
because the information she had that two armed and dangerous individuals might
attempt to cross the border at her work station was too flimsy to be relied
upon, or was he of the view that sufficient protection was already in place?
[23]
Another
case which illustrates my point is Martin v. Canada (Attorney General),
2005 FCA 156, [2005] 4 F.C.R. 637, a review by the Federal Court of Appeal of a
decision of an Appeals Officer under the Canada Labour Code who concluded
that there was no evidence that a situation of “danger” existed which would
justify supplying wardens in National Parks with side arms. No allegations of
institutional insufficiency were alleged in that case. However the Court found
that the Appeals Officer’s decision, based on the evidence before him, was
patently unreasonable. The decision was set aside and the matter was remitted
to the Appeals Office for redetermination, thus giving rise to further delays.
[24]
For
these reasons, I shall dismiss the application for judicial review of the
interlocutory decision of Appeals Officer Guenette on the grounds that it is
premature. In the circumstances, there shall be no order as to costs.
ORDER
THIS COURT
ORDERS that:
1.
The
application for judicial review of the interlocutory decision of Appeals Officer
Guenette is dismissed on the grounds that it is premature.
2.
There
shall be no order as to costs.
“Sean Harrington”
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