Date: 20090916
Docket: T-1385-08
Citation: 2009 FC 922
BETWEEN:
THE
ATTORNEY GENERAL OF CANADA
Applicant
and
JOHN
KING
Respondent
REASONS FOR
JUDGMENT
HUGHES J.
[1]
The
Applicant, the Attorney General of Canada seeks to set aside a decision of the
Public Service Labour Relations Board file numbers 166-02-36572 and 36573,
dated August 8, 2008 and either restore a 30 day suspension imposed upon the
Respondent King by his employer, the Canada Border Services Agency (CBSA) or
require a re-determination by the Board of the Respondent’s grievance. For the
reasons that follow I have dismissed this application with costs to the
Respondent fixed at the quantum agreed upon by Counsel for the parties of
$4,000.00.
[2]
The
Respondent King was at all material times an employee of the CBSA however
during the relevant period he was on leave with pay as he was serving as First National
Vice-President of the Customs Excise Union Douanes Accise (CEUDA). During the
relevant period, which was following the time of events commonly known as 9/11
(destruction of the World Trade Centre, the “Twin Towers” in New York, and
damage to the Pentagon among other events of September 11, 2001) there were
ongoing discussions between the CBSA and CEUDA. On May 25, 2004 the Respondent
King wrote a letter addressed to Tom Ridge, Secretary of the
U.S. Department of Homeland Security, with a copy to the Honourable Anne
McLellan, then Deputy Prime Minister and Minister of Public Safety and
Emergency Preparedness which letter began by stating:
The intent of this letter is to provide
you with information, which may prove useful when assessing risk to public
safety and security and which will hopefully attribute the further enhancement
of border protection. At this time, I will focus on matters pertaining to the
recruitment and staffing of front line officers protecting Canada’s borders.
The letter was written on CEUDA letterhead
and is signed by the Respondent only in his capacity of National Vice-President
of CEUDA. The letter addresses issues including the hiring by CBSA of persons
other than Canadian citizens, to the employment of students and, the lack of
provision of what is described as first response capability (firearms). The
Applicant’s Counsel conceded in argument that nothing that was set out in that
letter was false and that all that was set out was in the public domain.
[3]
There
is no evidence as to whether Tom Ridge actually saw the letter, there is
evidence that some officials in the relevant United States agency saw
the letter and informed an official of the Canadian government that the letter
had been received. There is no evidence as to what effect, if any, the letter
had on any United
States
agency or official.
[4]
There
is evidence that a copy of the letter was received by someone in Ms. McLellan’s
department and that she was briefed as to the letter. A copy of the letter
found its way into the hands of Ms. Hébert, Vice-President Operations of CBSA
who wrote to Mr. King on July 26, 2004 saying in opening:
This is with respect to your letter of
May 25, 2004, to Tom Ridge, Secretary of the United States Department of Homeland
Security.
Mr. King, the content of your letter
causes me significant concern. I am profoundly disturbed by both the message
you convey to the Department of Homeland Security with respect to non-Canadian
citizens and your references to our operations that are intended to, or could
be construed as, pointing to weaknesses in Canada’s border management
practices.
[5]
This
letter concludes by informing Mr. King that he was suspended without pay for a
period of 30 working days. Mr. King commenced a grievance which resulted
ultimately in the decision under review in which the adjudicator, Dan Butler
allowed the grievance and set aside the suspension with consequential relief.
[6]
The
Applicant Attorney General raises three issues on the judicial review:
1. What is the
appropriate standard of review of this decision?
2. Was the
adjudicator’s conclusion that the Respondent was acting within the scope of his
union duties unreasonable?
3. Was the
adjudicator’s decision that the Respondent’s actions were not malicious
unreasonable?
Issue #1: Standard of
Review
[7]
Although
the position of the Applicant’s Counsel was slightly nuanced, the Applicant
accepts that the standard of review of this decision is to be determined in
accordance with the decision of the Supreme Court of Canada in Dunsmuir v. New
Brunswick,
2008 SCC 9 including that which is set out at paragraphs 45 to 47 and 60:
45 We therefore conclude that the two
variants of reasonableness review should be collapsed into a single form of
"reasonableness" review. The result is a system of judicial review
comprising two standards correctness and reasonableness. But the revised system
cannot be expected to be simpler and more workable unless the concepts it
employs are clearly defined.
46 What does this revised reasonableness
standard mean? Reasonableness is one of the most widely used and yet most
complex legal concepts. In any area of the law we turn our attention to, we
find ourselves dealing with the reasonable, reasonableness or rationality. But
what is a reasonable decision? How are reviewing courts to identify an
unreasonable decision in the context of administrative law and, especially, of
judicial review?
47 Reasonableness is a deferential standard
animated by the principle that underlies the development of the two previous
standards of reasonableness: certain questions that come before administrative
tribunals do not lend themselves to one specific, particular result. Instead,
they may give rise to a number of possible, reasonable conclusions. Tribunals
have a margin of appreciation within the range of acceptable and rational
solutions. A court conducting a review for reasonableness inquires into the
qualities that make a decision reasonable, referring both to the process of
articulating the reasons and to outcomes. In judicial review, reasonableness is
concerned mostly with the existence of justification, transparency and
intelligibility within the decision-making process. But it is also concerned
with whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
…
60 As mentioned earlier, courts must also
continue to substitute their own view of the correct answer where the question
at issue is one of general law "that is both of central importance to the
legal system as a whole and outside the adjudicator's specialized area of
expertise" (Toronto (City) v. C.U.P.E., at para. 62, per LeBel J.).
Because of their impact on the administration of justice as a whole, such
questions require uniform and consistent answers. Such was the case in Toronto (City) v. C.U.P.E., which dealt with complex common law
rules and conflicting jurisprudence on the doctrines of res judicata and abuse
of process issues that are at the heart of the administration of justice (see
para. 15, per Arbour J.).
[8]
In
the present case Counsel for the parties are agreed that the adjudicator considered
the correct legal principles in arriving at his decision including those as set
out in Shaw v. Deputy Head (Department of Human Resources and Skills
Development), 2006 PSLRB 125 and Fraser v. Canada (Public Service Staff
Relations Board), [1985] 2 S.C.R. 455.
[9]
It
is clear that the adjudicator was dealing with matters within the scope of his
mandate and expertise thus, with respect to Applicant’s Counsel’s argument that
the adjudicator failed to give sufficient weight to the Fraser line of
decisions, I cannot accept that the adjudicator’s decision must be reviewed on
the standard of correctness. Even if I were to conduct a review on that
standard I would concur findings of the adjudicator as set out in his reasons
at paragraphs 224 to 229 including:
225 The employer argues that I should also
consider the case law led by Fraser in view of the alleged extreme nature of
the grievor's criticism of his employer and of his consequent violation of the
duty of loyalty that he owed the CBSA.
226 I
do not agree. The grievor's status as a full-time elected union official is
central to the circumstances of this case. The Fraser line of decisions does
not address whether, or the extent to which, that status alters the legal
principles at play. To that extent, Fraser and other decisions in that line can
be distinguished.
227
As to Fraser itself, I wish also to note that the Court based its finding
that the public statements of the appellant in that case impaired his ability
to perform his public service job on evidence of a "pattern of
behaviour." The Court found that a public servant "... must not
engage ... in sustained and highly visible attacks on major government
policies." If he or she does so, there is a violation of the duty of
loyalty.
228 There
is no evidence in the case before me of a pattern of writing to foreign
government officials on the grievor's part or that he engaged in
"sustained" or "highly visible" attacks on government
policy. The subject of this case is a single act. The parties stipulated that
the grievor's disciplinary record is clear for purposes of this decision. His
letter was visible only to a very small group of people and not to the public.
It is even unproven that the intended recipient ever received it.
[10]
These
findings of the adjudicator are based on the evidence, both opinion and factual
and afford appropriate weight to the evidence. They are to be reviewed on the
standard of reasonableness, affording appropriate scope to the adjudicator who
is experienced in matters of this kind and conducted an extensive hearing into
the matter and provided copious, clear and cogent reasons. These findings are
reasonable.
Issue #2: Findings on
the Scope of Union Duties
[11]
Applicant’s
Counsel focuses, in respect of this issue, on two matters, the first being the
treatment of certain evidence, particularly that of Ms. Hébert, as opinion
evidence and second on the consideration of a “plausible” theory as to the activities
of a union member as set out in paragraph 186 of the adjudicator’s reasons.
[12]
First,
as to the treatment of Ms. Hébert’s evidence, the adjudicator said at paragraph
163 to 165 of his reasons:
163 Part of the dilemma in this case may well
be the emotive nature of the post-9/11 context to which the employer refers.
Few observers would disagree that many things changed in the wake of the
terrorist attacks of September 11, 2001, or that issues regarding border
security appropriately acquired heightened visibility and sensitivity. Some
people hold very strong views about the nature of the security threat that they
believe has since existed. The evidence certainly indicates that Ms. Hébert,
for one, felt strongly from the beginning that sending a letter of the type
written by the grievor was absolutely inappropriate in the context. Her
testimony at the hearing, almost three years after the fact, expressed views
that were still notable in their intensity. She stated that she was "incensed"
by the letter when she learned about it. In her view, the letter was a
"betrayal." She continues to describe the letter today as
"completely inappropriate" in the circumstances and as a "reprehensible"
act.
164 I am convinced that Ms. Hébert, as author
of the discipline imposed on the grievor, held those views with confidence and
sincerity in 2004 and continues to do so today. I am persuaded that she was
personally satisfied from the outset that the grievor's letter went beyond the
pale in the context of her understanding of the "extreme sensitivity"
of Canadian-American border relations. Her convictions about the seriousness of
sending a letter in that context, however, comprise opinion evidence, as do the
similar convictions expressed by other employer witnesses. Someone else might
legitimately have a different view. In general, adjudicators must treat opinion
evidence with caution.
165 The employer did not present any other
substantial evidence on which I might depend to find either that a critical
letter of the type authored by the grievor as a union official has caused harm
to the employer in the past within a comparably sensitive context or that, in
this case, the letter actually did cause harm to the employer. In any event, it
remains problematic in my view whether such evidence could prove on its own
that the grievor's letter necessarily fell outside the legitimate scope of what
he could undertake as an elected union official. I do not read the case law as
prohibiting full-time union officials from choosing activities or expressing
criticisms that have the potential to affect an employer in a sensitive
political or security context as long as their actions are not malicious or
they do not make statements that are knowingly or recklessly false (the second
part of the Shaw test). To the contrary, it may sometimes be that the intent of
a union official's actions or words is to take advantage of a sensitive
political or security situation to leverage a desired outcome from the
employer. If the employer is to prove that the grievor acted outside the proper
scope of his role in that context, I believe that something more is
required than just the conviction that the context was sensitive, however
well-founded that conviction.
[13]
Counsel
are agreed that the adjudicator was correct in stating as he did in paragraph
165 that there was no substantial evidence that harm was caused to the
employer. Ms. Hébert’s feeling that she was “insensed” and “betrayed” while
expressing strong emotion does not in itself, give rise to justifiable
disciplinary action. Her convictions as to what the effect of the letter might
have on Mr. Ridge or his colleagues was correctly characterized as opinion. I
find that the adjudicator’s treatment of this evidence, the weight given to it
and his determinations in this regard were reasonable.
[14]
Second,
as to the use of the words “plausible theory” by the adjudicator, these
words are set out in paragraph 186 of his reasons:
186 As reported above, the grievor testified
that the result he sought in writing Secretary Ridge was a discussion of issues
for the purpose of achieving change, for example, the arming of officers. He
stated his view that his letter would link to ongoing discussions between the
two countries about standardizing border policies and programs. For purposes of
this section, it is not necessary that I accept or reject the grievor's
evidence of why he sent his letter. I also need not agree that the tactic that
he chose of writing a letter to Secretary Ridge was either good, prudent or one
that held a reasonable promise of success. The point, I believe, is that there
is at least a plausible theory, based on the evidence, as to why it might make
sense for a union representative cognizant of the issues of his membership in
the CBSA to select a powerful American official who was strategically involved
in border management questions as the target of his representations.
[15]
I
note that the adjudicator uses the word “plausible” again in paragraphs
205 and 206 of his reasons when describing arguments advanced by CBSA. I find
that his use of “plausible” is not indicative of conclusions that he has
reached rather it is indicative that he has heard and considered arguments
raised by a party as having some weight.
[16]
Following
paragraph 186 the adjudicator states his conclusions as to the propriety of an
employee/union representative in writing the letter in question, at paragraph
189. That conclusion is based on the “balance of the evidence and arguments”:
189 That said, I understand the employer's
concern about the propriety of any employee writing to an official of a foreign
government about issues of direct importance and sensitivity to the employer. I
suspect that most readers of this decision would intuitively react that there
is something worrisome, if not wrong about that scenario. The issue to be
determined in this section, however, is whether the employer has proven its
argument that the grievor was acting outside the proper scope of his union
duties when he sent his letter to Secretary Ridge. My assessment, on the
balance of the evidence and arguments placed before me, viewed in the light of
the case law offered by the parties, is that the employer has not met its
burden. It has not proven that a prohibition exists against union
representatives contacting foreign government officials. It has not convinced
me that I would be justified in this case to place a limitation on the
grievor's union expression or activities that would necessarily confine his
legitimate union role to activities that occur within our national borders and
that involve only a domestic public audience. Absent that proof or
justification or other compelling reasons, I cannot make a finding that the
grievor was acting outside the proper scope of his union role when he sent his
letter to Secretary Ridge.
[17]
These
findings and conclusions of the adjudicator in this regard are reasonable.
Issue #3: Malice
[18]
It
must be recognized that it was, as already stated, conceded by Applicant’s
Counsel that the statements were not false or misleading.
[19]
The
adjudicator did consider malice. Applicant’s Counsel invited this Court to
step back and simply view the letter and the context in which it was written in
a post 9/11 era and conclude that there must have been malice. That is not
what a judicial review is about. This is not an appeal, nor a fresh hearing of
the matter.
[20]
The
adjudicator gave careful consideration to the matter of malice and concluded,
on balance, that malice had not been established. He concluded at paragraph
203, 204 and 206:
203 The evidence indicated on balance that
all or most of the information contained in the letter was already in the
public domain. This is not, then, a case about betraying secrets or disclosing
confidential or proprietary information. How does information already in the
public domain inflame bilateral relations or incite fear? Did the same
information have that effect when previously placed into the public domain?
204 In the circumstances, and given the
available evidence, I doubt that a reasonable person would accept as probable
the more severe impacts that the employer argues could be associated with the
grievor's letter. Nor, in my view, is this is a situation where the manner of
expression in the letter is itself so egregious or vitriolic that the malicious
intent of the author cannot be mistaken.
…
206 Having
conceded that it is plausible to impute what might be viewed as a degree of ill
will to the grievor's motives, I find that I am unable to take the further step
of ruling that the employer has proven maliciousness on a balance of
probabilities. I believe that the letter can alternatively be read as motivated
by an intent to try to place pressure on the employer in a situation where the
parties were "on opposite ends of the spectrum" regarding difficult
and contentious issues in the labour-management relationship. The case law has
recognized that appeals to external audiences can be used as legitimate
pressure tactics in the context of an interest dispute. Judged through the
contents of the letter, as the employer urges, I believe that it is as possible
to view the grievor's action as a pressure tactic as it is to depict it as
having malicious intent. As stated earlier, I might agree that it was neither a
particularly prudent nor effective pressure tactic, but that is not the issue.
To sustain the employer's position, I must be convinced that it is more likely
than not that the grievor acted with the conscious intent to injure or to harm
or was motivated principally by an element of ill will. On balance, I am not
convinced that the employer has made the case to that effect.
[21]
These
findings and conclusions were reasonable; there is no basis for setting them
aside.
Conclusion and Costs
[22]
In
conclusion, I find no basis for setting aside the decision of the adjudicator.
Counsel for the parties are agreed that costs should be fixed at the sum of
$4,000.00.
“Roger
T. Hughes”
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