Date: 20080219
Docket: T-294-07
Citation: 2008 FC 212
Ottawa, Ontario, February 19,
2008
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant(s)
and
DANIEL
O’LEARY
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by the Attorney General of Canada from an
Adjudicator's decision
made under section 92 of the Public Service Staff Relations Act, R.S.C.
1985 c. P-35 (PSSRA). That adjudication concerned a grievance brought by the Respondent,
Daniel O'Leary, from a decision by his employer, the Department of Indian
Affairs and Northern Development (Department) to demote Mr. O'Leary. The
Adjudicator ruled in favour of Mr. O'Leary, ordering him reinstated to his
former position. That reinstatement order was subject to the additional
requirement that Mr. O’Leary be compensated for all lost earnings and benefits
with such compensation to be continued until the Department made a new offer of
employment at an equivalent level in a location other than an isolated post.
[2]
The
Applicant does not challenge the Adjudicator’s decision that Mr. O’Leary’s
demotion was not justified or that he be reinstated to his former position in
Iqaluit. Rather the Applicant challenges the Adjudicator’s authority to impose
an indefinite order of compensation upon the Department which could be
satisfied, in lieu, by an offer of a new appointment in a different location.
The Applicant says that this order has the unlawful effect of ordering the
appointment of Mr. O’Leary to a new position.
I.
Background
[3]
On
August 11, 2003, Mr. O'Leary commenced his employment with the
Department as a Human Resources Advisor in Iqaluit. In part because of medical
issues associated with his pre-existing visual impairment, Mr. O'Leary
experienced difficulties in meeting the expectations of the Department. On
June 1, 2004, he applied for leave without pay so that he could return to the
south to deal with his deteriorating medical situation. This request was
denied for supposedly "operational" reasons.
[4]
On
June 10, 2004, Mr. O'Leary was demoted, ostensibly on performance
grounds. Mr. O'Leary submitted a grievance from this decision on June 28,
2004. Thereafter his medical situation continued to worsen and, in December
2004, Health Canada confirmed
that he was medically unfit for work in Iqaluit or any other isolated post. By
this time Mr. O'Leary had returned south for medical treatment.
Although he was medically fit for southern employment, nothing was offered to
him by the Department. Mr. O'Leary did find some part-time warehouse and
security work but, for the most part, he was unemployed from June 2004 to the
time of the adjudication of his grievance in March 2006.
[5]
The
Adjudicator found that the demotion decision was unwarranted and he was sharply
critical of the way in which the Department had treated Mr. O'Leary. The
Adjudicator's concluding reasons for allowing the grievance were as follows:
[316] As I indicated at the beginning
of the reasons for my decision, there is a sequence of events necessary in
order for the employer to establish that the performance of an individual is
unsatisfactory to the point of warranting a demotion. It is my view that the
employer has failed to demonstrate that its assessment of Mr. O’Leary was
reasonable. While the employer, through its evidence, has established grounds
to show that the grievor had serious difficulties in meeting the level of
performance that Ms. Hodder expected of him, this level of performance was
somewhat excessive given the experience of the grievor. The employer can only
blame itself for having hired the grievor. I am also of the view that the
employer failed to provide sufficient training to assist the grievor in
overcoming his difficulties. The training and assistance provided were
deficient in more than one way. The action plan did not propose any real means
to remedy the problems, additional training was refused until files and backlog
were cleaned up, and, other than two days with Mr. Millican, no on-the-job
training was offered. Furthermore, the employer failed to show, in any explicit
way, that the grievor continued to have the same problems. The documentary
evidence of problems submitted by the employer in support of its decision to
demote related to problems that occurred very early on in the grievor’s tenure.
At one point counsel for the employer argued that Mrs Hodder should not have
been expected to bring the 50 files the grievor worked on. That may be correct
in a general sense but it is nonetheless incumbent on the employer to bring
forward the files that support their case. If anything, the fact that the
employer allowed the grievor to work on so many files demonstrates that he was
doing something right.
[317] Consequently, I find that the
demotion was unreasonable in the circumstances and that Mr. O’Leary should be
reinstated in his position at the PE-02 group and level.
[318] Mr. O’Leary became so ill that he
left Iqaluit on sick leave prior to his demotion taking effect. The following
December he was found unfit to work in an isolated post. The employer has not
offered any position to the grievor other than an AS-01 position in Iqaluit. As
a result, other than two weeks of employment as a security guard, the grievor
has remained unemployed ever since his grievance was lodged. It appears that
the responsibility within the DIAND to find alternate employment resides with
the Iqaluit region of the DIAND, which has little else to offer than positions
in isolated posts. I find this appalling; the obligation to accommodate an
employee who is incapacitated because of a medical condition is employer-wide
and not limited to a region of a department.
[319] In these circumstances, I believe
it necessary, in order to make Mr. O’Leary whole, that the employer pay for his
lost earnings as a PE-02, up until such time as he is reappointed to a PE-02
position in the Public Service.
[320] For all of the above reasons, I
make the following order:
Order
[321] That the grievor be reinstated in
the PE-02 position he occupied prior to his demotion.
[322] That he be compensated for all
lost earnings and benefits since he left Iqaluit on sick leave minus what was
earned during the same period and that such compensation be continued until
such time as the employer provides him with an offer of employment at his
substantive group and level of PE-02, in a location other than an isolated
post.
II. Issue
[6]
Did
the Adjudicator err in law or exceed his jurisdiction by ordering the
Department to compensate Mr. O’Leary until such time as he was given an offer
of employment at a PE-02 level in a location other than an isolated post?
III. Analysis
[7]
For
the sake of argument, I am prepared to accept the Applicant’s submission that
the standard of review pertaining to the scope of the remedial jurisdiction of
the Adjudicator is correctness. However, in assessing whether the
Adjudicator’s order was rationally connected to the Department’s breach, the
standard of review is at least that of reasonableness simpliciter: see Via
Rail Canada Inc. v. Cairns et al. 2004 FCA 194, 241 D.L.R. (4th) 700. In
light of my findings below, it is, however, unnecessary to carry out a
functional and pragmatic analysis because I can identify no reviewable error in
the Adjudicator’s decision.
[8]
The
broad parameters of an adjudicator's remedial jurisdiction under section 92 of
the PSSRA are well defined in the jurisprudence. What is in issue here is the
extent to which the Adjudicator could fashion a remedy which, according to the
Applicant, amounted to an effective order of appointment. The Applicant says
that this order accomplished indirectly what the Adjudicator could not do
directly, that is, to make an appointment contrary to the stipulation in
section 29 of the Public Service Employment Act, S.C. 2003 c. 22, that
public service appointments be made exclusively by the Public Service
Commission.
[9]
The
remedial jurisdiction of an adjudicator is very broadly defined by subsection
97(4) of the PSSRA which states:
|
97.
(4) Where a decision on any grievance referred to adjudication requires any
action by or on the part of the employer, the employer shall take that
action.
|
97.
(4) L'employeur prend toute mesure que lui impose une décision rendue à
l'arbitrage sur un grief.
|
[10]
By
virtue of section 96(1) of the PSSRA, an adjudicator is also granted all of the
powers of the Board. Under section 21 of the PSSRA, the Board is required to
exercise such powers as are expressly conferred or incidental to the attainment
of the objects of the legislation, including the making of orders requiring
compliance with that Act.
[11]
This
generous grant of remedial authority is a clear reflection of Parliament's
intention to permit adjudicators to construct effective and case specific
remedies. This point was made by Justice Brian Dickson (as he then was) in Heustis
v. New
Brunswick (Electric Power Commission), [1979] 2 S.C.R. 768, 98
D.L.R. (3d) 622 in the following passage:
There is a very good policy reason for
judicial restraint in fettering adjudicators in the exercise of remedial
powers. The whole purpose in establishing a system of grievance adjudication
under the Act is to secure prompt, final, and binding settlement of disputes
arising out of interpretation or application of the collective agreement, or
disciplinary action taken by the employer, all to the end that industrial peace
may be maintained.
Take the present case. The appellant
misconducted himself. The external tribunal to which the matter was referred
considered that he should be disciplined, but only to the extent of a
suspension. If the exercise of adjudicative authority does not permit
remedial action by making the punishment fit the offence, then the decision of
the adjudicator becomes largely a hollow pronouncement, signifying nothing.
Either the grievance is allowed, in which case the appellant goes unpunished, a
result which would seem wrong in the circumstances; or the appellant is discharged
from employment, a result which, in the opinion of the adjudicator, for the
mitigating reasons given by him, would result in injustice to the employee. In
either case, the purpose of the adjudicative process in the administration of
the collective agreement would be defeated. Relations between employer and
union would become further exacerbated. If the process is to make any sense, a
right to modify the severity of the discipline by imposing a lesser penalty
must surely inhere in the exercise of adjudicative authority: see Re Polymer
Corporation and Oil, Chemical, and Atomic Workers International Union, Local
16-14 [(1959), 10 L.A.C. 51; (1961), 26 D.L.R. (2d) 609 (Ont. H.C.);
(1961), 28 D.L.R. (2d) 81 (Ont. C.A.); [1962] S.C.R. 338 (Sub nom Imbleau v.
Laskin).
In a similar vein, in the recent case of Newfoundland
Association of Public Employees v. Attorney General for Newfoundland
[[1978] 1 S.C.R. 524], Chief Justice Laskin, with whom Ritchie J. concurred,
had occasion to discuss the remedial powers of arbitrators. Two passages would
appear particularly apposite in this case, at pp. 529 and 530:
Counsel for the respondent at first took
the position that a board of arbitration, and the particular board here, could
not interfere with the penalty of discharge once cause for some discipline
existed, but he receded from it on realizing that this could work to the
serious disadvantage of an employer if a board was required to say either yes
or no to discharge and, if it said no, the discharged employees would have to
be reinstated with consequent entitlement to lost pay (perhaps for a long
period) and any fault on their part would have gone unpunished. Equally, he
conceded that it could not be that an employer, having some basis for
disciplining an employee for a minor infraction, say, lateness in reporting
work on one or two occasions, could impose discharge and defend the penalty
against interference by an arbitration board empowered to adjudicate on whether
the dismissal was for just cause.
Cause and penalty are intertwined
especially in discharge cases. I hold the view that arbitration boards, as
domestic tribunals of the parties, should be given latitude, no less than that
given by Court decisions to statutory government tribunals, to exercise their
powers so as best to effectuate their raison d'être. For a Court to say
that a penalty substituted by a board is beyond its powers is no different from
interfering with a finding that either upholds or sets aside an assigned
penalty without more.
As I have sought to demonstrate, the
collective agreement in this case and, more importantly, the applicable
statutory provisions respecting adjudication, can be readily distinguished from
those operating in the Port Arthur Shipbuilding case. There being nothing in
either the agreement, or the Act, which expressly precludes the adjudicator's
exercise of remedial authority, I am of the opinion that an adjudicator under
the Public Service Labour Relations Act of New Brunswick has the power to
substitute some lesser penalty for discharge where he had found just and
sufficient cause for some disciplinary action, but not for discharge.
[Emphasis added]
[12]
The
recognition that labour boards and adjudicators should not be unduly fettered
in the crafting of appropriate remedies was similarly expressed by the Supreme
Court of Canada in Royal Oak Mines Inc. v. Canada (Labour Relations Board),
[1996] 1 S.C.R. 369, 133 D.L.R. (4th) 129:
58 In my view remedies are a matter
which fall directly within the specialized competence of labour boards. It is
this aspect perhaps more than any other function which requires the board to
call upon its expert knowledge and wide experience to fashion an appropriate
remedy. No other body will have the requisite skill and experience in labour
relations to construct a fair and workable solution which will enable the
parties to arrive at a final resolution of their dispute. Imposing remedies
comprises a significant portion of the Board's duties. Section 99(2) of the
Canada Labour Code recognizes the importance of this role and accordingly,
gives the Board wide latitude and discretion to fashion "equitable" remedies
which it feels will best address the problem and resolve the dispute. By
providing that the Board may fashion equitable remedies Parliament has given a
clear indication that the Board has been entrusted with wide remedial powers.
Furthermore, a broad privative clause in s. 22(1) provides that, not only are
the Board's decisions final, but so too are its orders. This provision lends
support to the position that the court should defer to the remedial orders of
the Board which are made within its jurisdiction. That is to say there should
be no judicial interference with remedial orders of the Board unless they are
patently unreasonable.
[13]
I
accept the Applicant's submission that the Adjudicator did not have
the jurisdiction to make a new appointment to Mr. O’Leary. That is the clear
holding in Marinos v. Canada (Treasury Board), (1998) 157
F.T.R. 70, 85 A.C.W.S. (3d) 582 and it is a jurisdictional limitation that the
Adjudicator appears to have identified. On the other hand, the Federal Court
of Appeal has held, in at least one other case, that a PSSRA adjudicator can,
in deciding a grievance, give directions to the employer under subsection 97(4)
of the PSSRA. In Canada (Attorney General) v.
Tourigny, (1989) 97 F.T.R. 147, 15 A.C.W.S (3d) 335 (F.C.A.),
the Court upheld an adjudicator's order that reinstated an employee to his
former position but with a caveat that the order could be fulfilled by a new
and different appointment. This decision was subsequently applied by the
Canadian Public Service Staff Relations Board in Fontaine-Ellis and Treasury
Board (Health Canada), [1998]
C.P.S.S.R.B. No. 3, where the employer was given a similar option of either
reinstatement or a new appointment.
[14]
The
only aspect of the award to Mr. O'Leary that differs from the awards made in
the above-noted authorities is the requirement that the Department continue to
pay Mr. O'Leary notwithstanding his inability to return to his former
position. This, though, is a purely financial obligation which indisputably
fell within the Adjudicator's jurisdiction. In the absence of a
statutory limitation I do not accept that this combination of a financial award
tied to an optional direction to the Department to find Mr. O'Leary a new
position exceeded the Adjudicator's jurisdiction.
[15]
The
Adjudicator was, after all, faced with somewhat of a dilemma. The usual remedy
of reinstatement was of no real value in this case because Mr. O'Leary could
not work in an isolated post. The only place where Mr. O'Leary could
work was in the south but the Adjudicator had no jurisdiction to order the
Department to appoint him to a new position. The Adjudicator did, however,
have the authority to provide a deployment or appointment option to the
Department and he exercised that authority coupled with an obligation to
provide ongoing salary and benefits.
[16]
The
Applicant complains that the Adjudicator's order was onerous and certainly it
was. The Adjudicator used the ongoing financial obligation as a means of
motivating the Department to find Mr. O'Leary a new
position. In the absence of such leverage, it was apparent to the Adjudicator
that the Department was likely to continue to do nothing and Mr. O'Leary would
remain unemployed. The Adjudicator was appropriately troubled by the
Department's poor
treatment of Mr. O'Leary and by the fact that the Department's misconduct
contributed to the medical problems which precluded his reinstatement in
Iqaluit. In such circumstances, an order limited to the payment of past salary
and benefits would not achieve the desired result of ensuring Mr. O'Leary's return to
gainful public service employment.
[17]
While
the Adjudicator's order was burdensome, it was still a measured response to
what he had found to be the "appalling" conduct of the Department.
The Department was not ordered to appoint Mr. O'Leary to a
new position albeit that the Adjudicator's order provided a strong incentive to
do so. The Adjudicator fashioned a creative remedy that was appropriate and
well suited to the unique circumstances of Mr. O'Leary's
situation - an order that was, after all, only as financially exacting as the
Department chose to make it.
[18]
I
find that the Adjudicator did not exceed his jurisdiction by making the order
that he did. Both aspects of his order were, as framed, jurisdictionally
permissible and, in these circumstances, the order was reasonable and fair. This
was a remedy that was rationally connected to the desired outcome of returning
Mr. O’Leary to employment in the face of an intransigent employer. The only
other available option would represent the kind of “hollow pronouncement” that
was of concern of the Court in Heustis, above.
[19]
The
Applicant also complains about the Adjudicator's reference to the Department's
obligation to accommodate Mr. O'Leary. It argues that the Adjudicator strayed
beyond his jurisdiction into the realm of human rights law and, in so doing,
failed to carry out the necessary legal analysis.
[20]
It
seems to me, however, that the Adjudicator's reference to accommodation was a
simple observation of the obvious and it formed no part of the order that he
made. The Adjudicator was only saying that, despite the common medical
understanding that Mr. O'Leary could not work in an isolated setting, the
Department had done nothing to find him a position in the south at a level even
commensurate with his demotion. The Adjudicator quite properly found the
Department's explanation for not looking for a southern posting to be
unacceptable and it was precisely for that reason that he fashioned a labour
remedy that would motivate the Department to meet its legal obligation to Mr.
O'Leary.
[21]
The
Applicant also contends that the Adjudicator erred by ordering that the
Department find Mr. O'Leary new public service employment either within or
outside of the Department. I do not need to determine whether or not such
direction is permissible because I do not agree that the Adjudicator's order
went that far. When read in its complete context, the order does not oblige
the Department to seek out a position for Mr. O'Leary anywhere in the public
service. Rather the order directs the Department to conduct an internal search
but not limited to the administrative confines of its Iqaluit office.
[22]
In
the result, this application for judicial review is dismissed with costs
payable to the Respondent under Column III.
JUDGMENT
THIS COURT ADJUDGES that this application for judicial review is dismissed with costs
payable to the Respondent under Column III.
“ R. L. Barnes ”
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