Date: 20090902
Docket: T-1086-08
Citation: 2009 FC 869
Ottawa, Ontario, September 2, 2009
PRESENT: The Honourable Madam Justice Heneghan
BETWEEN:
KEN
INSCH
Applicant
and
CANADA
REVENUE AGENCY
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
Introduction
[1]
Mr.
Ken Insch (the “Applicant”) seeks judicial review pursuant to Section 18.1 of
the Federal Courts Act, R.S.C. 1985, c. F-7, of the decision of Ms.
Lysanne M. Gauvin, Assistant Commissioner, (the “AC”), Human Resources Branch
of the Canada Revenue Agency (the “CRA”). In that decision made on June 13,
2008, the AC dismissed the Applicant’s grievance which challenged the decision
of the CRA to refuse the Applicant’s harassment complaint.
Background
[2]
On
March 10, 2003, the Applicant, formerly employed with the Tax Avoidance section
of the Calgary Tax Services Office of the CRA, filed a harassment complaint
pursuant to the Agency’s policy on Preventing and Resolving Harassment
Policy (the “CRA policy” or “CRA Harassment Policy”). Among other things,
the Applicant alleged the following:
a. that on
November 9, 2000, his manager, Mr. Hillen, yelled at him before a group of
fellow employees;
b. that on May
2, 2001, his April 11, 2001 request for five weeks leave with income averaging
was denied by another manager;
c. that on
November 2, 2001, Mr. Hillen provided a performance evaluation with which the
Applicant disagreed and informed the Applicant that he was on a work plan; and
d. that on
November 30, 2001, following the performance review, the Applicant stated that
he no longer trusted Messrs. Hillen and Lawrence and requested a transfer out
of the Tax Avoidance section. On March 13, 2002, the Applicant was advised of
his transfer to the Small and Medium Sized Enterprises (“SME”) section.
[3]
The
Applicant, in his complaint, also summarized those allegations as they related
to Messrs. Hillen and Lawrence respectively, together with a timeline of
events. Among the complaints related to Mr. Lawrence, in addition to those
named above, the Applicant alleged that on May 9, 2002, he learned that an
individual at the Winnipeg Tax Services Office had been informed that the
Applicant was on a work plan.
[4]
The
Applicant’s complaint is dated March 10, 2003. His complaint was held in
abeyance pending his receipt of certain information that he had requested
pursuant to the Access to Information Act, R.S.C. 1985, c. A-1.
[5]
On
March 29, 2004, the Applicant provided an amended set of allegations and
formally submitted them to his employer. The revised allegations purported to
clarify his allegation that his transfer to SME was designed to undermine his
career, since he had no training or experience in that field. The Applicant
also included an additional complaint, alleging that on July 23, 2002, Mr.
Hillen had provided a poor employment reference to a potential employer.
[6]
The
initial review of the complaint was assigned to Ms. Kathryn Turner, an
Assistant Commissioner at the Agency’s Prairie Regional Operations section. By
letter dated March 16, 2005, Ms. Turner noted that the Applicant’s complaint
listed specific incidents between November 9, 2000 to December 5, 2001, with “vague
references to additional incidents in the spring of 2002”.
[7]
Ms.
Turner concluded that the allegations described in the original complaint fell
outside the one year time limit prescribed by the Harassment Policy. As well,
while finding that the allegation concerning the performance review had been
filed in a timely manner, she concluded that there was no evidence to support
it. On this basis, she refused to accept the complaint.
[8]
The
Applicant filed a grievance on April 2, 2005, relative to the March 16, 2005
decision of Ms. Turner. The grievance was sent directly to the final level. The
AC observed that it had been previously decided that the complaint did not meet
the criteria for acceptance and she could find no reason to intervene.
Issues
[9]
Two
issues arise in this application for judicial review:
a. What is the
applicable standard of review,
b. Does the
decision meet that standard.
Discussion and
Disposition
[10]
The
Applicant’s grievance proceeded pursuant to the provisions of the Public
Service Labour Relations Act (“PSLRA” or the “Act”) which is Part 1 of the Public
Service Modernization Act, S.C. 2003, c. 22.
[11]
The
Applicant’s complaint did not fall within those complaints described in section
209 of the PSLRA which can proceed to adjudication following the final level
grievance. Rather, this grievance was filed pursuant to section 208 of the Act.
Subsection 208(1) is relevant and provides as follows:
|
Right
of employee
208.
(1) Subject to subsections (2) to (7), an employee is entitled to present an
individual grievance if he or she feels aggrieved
(a)
by the interpretation or application, in respect of the employee, of
(i)
a provision of a statute or regulation, or of a direction or other instrument
made or issued by the employer, that deals with terms and conditions of
employment, or
(ii)
a provision of a collective agreement or an arbitral award; or
(b)
as a result of any occurrence or matter affecting his or her terms and
conditions of employment.
|
Droit
du fonctionnaire
208.
(1) Sous réserve des paragraphes (2) à (7), le fonctionnaire a le droit de
présenter un grief individuel lorsqu’il s’estime lésé :
a)
par l’interprétation ou l’application à son égard :
(i)
soit de toute disposition d’une loi ou d’un règlement, ou de toute directive
ou de tout autre document de l’employeur concernant les conditions d’emploi,
(ii)
soit de toute disposition d’une convention collective ou d’une décision
arbitrale;
b)
par suite de tout fait portant atteinte à ses conditions d’emploi.
|
[12]
Pursuant
to section 214, the decision of the AC was final and binding, for the purposes
of the Act. Section 214 provides as follows:
|
Binding
effect
214.
If an individual grievance has been presented up to and including the final
level in the grievance process and it is not one that under section 209 may
be referred to adjudication, the decision on the grievance taken at the final
level in the grievance process is final and binding for all purposes of this
Act and no further action under this Act may be taken on it.
|
Décision
définitive et obligatoire
214.
Sauf dans le cas du grief individuel qui peut être renvoyé à l’arbitrage au
titre de l’article 209, la décision rendue au dernier palier de la procédure
applicable en la matière est définitive et obligatoire et aucune autre mesure
ne peut être prise sous le régime de la présente loi à l’égard du grief en
cause.
|
[13]
In
its decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190,
the Supreme Court of Canada said that decisions of administrative
decision-makers are reviewable on one of two standards, that is correctness or
reasonableness. Questions of law and of jurisdiction will generally attract
review on the standard of correctness. Questions of fact, discretion or policy
will usually attract deference, that is review on the standard of
reasonableness. The Supreme Court in Dunsmuir also said that where prior
jurisprudence has addressed the applicable standard of review that standard can
be adopted in subsequent decisions.
[14]
In
Hagel et al. v. Canada (Attorney General), 2009 FC 329, Justice Zinn
dealt with an application for judicial review of decisions made pursuant to the
Act in respect of a number of individual grievances presented under section
208. He conducted a standard of review analysis, noting that under the regime
of the repealed Public Service Staff Relations Act, R.S. 1985, c. P-35
the previous standard of review for non-adjudicable grievances was that of
patent unreasonableness, a standard that no longer applies since the decision
in Dunsmuir. Justice Zinn concluded that having regard to the presence
of the privative clause in section 214 of the Act, the expertise of the
decision-maker, the statutory scheme and the nature of the question, that is
the interpretation of a policy, that the appropriate standard of review is that
of reasonableness.
[15]
The
same standard will apply in this case where the Applicant has presented a
grievance referring to the interpretation and application of an administrative
policy, that is the Harassment Policy.
[16]
This
means that the AC was required to consider the May 16, 2005 decision of Ms.
Turner in light of the policy which governed the decision-making process.
[17]
Ms.
Turner said in her decision that the allegations as to the events in the spring
of 2002 were vague; however, the sole basis she actually gave for refusing to
accept the Applicant’s complaint was that it fell outside the time period for
filing.
[18]
Step
1 of Appendix “E” of the Harassment Policy requires that a complaint be filed
within one year of the last incident, absent special circumstances; describe
the nature of the allegations; and identify the respondent’s incidents, date
and witnesses. According to Step 3 of the same appendix, acceptance of the
complaint requires that the complaint fall within the definition of harassment,
meet the conditions in Step 1 and “have prima facie substantiation”, e.g.
description of incidents, dates and any witnesses”.
[19]
The
complaint must be read as a whole, that is including the allegations contained
within the March 2004 amendment. In my opinion, the complaint clearly discloses
the allegations concerning the events of March 16 and May 9, 2002. The
complaint was filed within one year from these dates and accordingly, was
within the time period required under the CRA policy.
[20]
Since
the complaint was filed within one year of the March 16 and May 9, 2002 events,
it was within the time period required under the CRA policy. Ms. Turner did
not make any conclusions that the complaint failed to meet the additional
criteria for acceptance. It is reasonable to expect that if this was the case,
she would have said so.
[21]
No
ground other than timeliness was given by Ms. Turner for rejecting the
complaint. It follows that if the AC relied solely upon Ms. Turner’s finding,
that is that the complaint could not be accepted for untimeliness, then the
basis for the AC’s decision was flawed.
[22]
The
AC reviewed Ms. Turner’s decision and concluded that the Applicant’s claim had
been fairly considered. In my opinion, this conclusion is unreasonable since it
is based upon an erroneous decision by Ms. Turner. Ms. Turner was in error when
she concluded that the complaint was untimely. While it was open for Ms. Turner
to consider and address the other factors for accepting the complaint, she did
not do so.
[23]
In
the result, the application for judicial review is allowed, the decision of the
AC is set aside and the matter is remitted for re-determination by a different
decision-maker, in accordance with these Reasons. The Applicant shall have his
costs.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review is allowed, the decision of the AC is set aside
and the matter is remitted to a different decision-maker for re-determination
in accordance with these Reasons. The Applicant shall have his costs.
“E.
Heneghan”
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