Date: 20080716
Docket: T‑1461‑07
Citation: 2008 FC 874
Ottawa, Ontario, July 16,
2008
PRESENT:
The Honourable Mr. Justice Louis S. Tannenbaum
BETWEEN:
ATTORNEY
GENERAL OF CANADA
Applicant
and
THU‑CUC
LÂM
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This is an
application for judicial review of the adjudicator’s decision dated July 9,
2007. The adjudicator’s order reads as follows:
. . .
1.
The
grievance is allowed in part.
2.
The
employer must reconsider its decision of October 3, 2004. It would be preferable
for the employer to let the grievor know that it is sorry for the March 18,
2003 incident and that it hopes that such incidents will not occur again in the
future.
Facts
[2]
The
respondent, Thu‑Cuc Lâm, has been working for Health Canada, represented
in this case by the Attorney General of Canada (hereinafter “the applicant”),
since 1998. In 2000, she began working as a consultant for the Population
and Public Health Branch (PPHB), Quebec Region.
[3]
In 2003,
the respondent reported a harassment situation. On March 18, 2003, the
respondent and her union representative met with her manager and the Director
General. Everyone was seated around a table. The manager pointed his finger
close to the respondent’s face and said to her, [translation] “I no longer trust you.” According to the union
representative, the respondent recoiled.
[4]
The
respondent, intimidated by the gesture, was so distraught that she returned
home and then saw her doctor.
[6]
On August
25, 2003, the Director General wrote to the respondent and stated that,
following an investigation, her complaint was found to be without merit. During
the investigation, the Director General did not meet with the respondent or the
manager.
[7]
It was not
until October 3, 2003, that the Director General of the Quebec region set up a
meeting with the respondent and the manager. At that meeting, the manager
stated that he was deeply sorry for his gesture but refused to apologize
because he often made gestures with his hands when he talked.
[8]
Dissatisfied
with the result and the process, the respondent filed the following grievance:
[translation]
I contest the decision by Health Canada (Appendix 3) regarding the
handling of my harassment complaint.
Whether in the November 26, 2003 decision or the manner in which the
investigation was handled, the employer's representatives failed to respect the
spirit and letter of the Health Canada and Treasury Board policies on
harassment.
[9]
The
respondent relied on articles 1 and 19 of the collective agreement and asked
for the following corrective measures: that the investigation be handled in
accordance with the Health Canada policy on harassment, that she be given a
copy of the investigation report and the investigators’ findings and that her
manager apologize to her.
[10]
The
grievance was referred to adjudication and heard together with three other grievances
contesting disciplinary measures that had been imposed in 2003 and 2004. The
three grievances involving the disciplinary measures were dismissed. The
grievance dealing with eliminating the discrimination and the harassment was
allowed in part.
[11]
The
adjudicator stated that he did not share the employer’s conclusion regarding
the respondent’s complaint and the way in which the employer handled it:
Although the respondent
manager's gesture was involuntary, I believe that the employer should take into
consideration the fact that the grievor felt intimidated.
In my opinion, the employer
should have told the grievor that it was sorry that she had felt intimidated.
The employer should have
indicated that it did not want such a situation to occur again. I do not
believe that we can tolerate having employees and managers pointing their
fingers at one another in meetings, particularly as in this case, where the
parties were seated next to one another.
For the reasons listed above,
I do not believe that there was any breach of article 19 of the collective
agreement concerning discrimination.
However, I believe that the
employer did not comply with the letter and spirit of article 1 of the
collective agreement and improperly applied the Treasury Board Policy on the
Prevention and Resolution of Harassment in the Workplace. The hearing
remedied the process, but the employer should reconsider its decision on the
validity of the complaint. Article 19 does not apply to the grievor's case.
[12]
The
adjudicator ordered the employer to reconsider its decision about the
harassment complaint. He wrote: “It would be preferable for the
employer to let the grievor know that it is sorry for the March 18, 2003
incident and that it hopes that such incidents will not occur again in the
future.”
[13]
The
respondent testified that all she wanted was an apology.
[14]
The
standard of review in a case like this is correctness, and, in my view, the
adjudicator’s decision should be set aside for the following reasons.
Grievance
[15]
The
grievance is reproduced below:
[translation]
STATEMENT OF GRIEVANCE
I contest the decision by Health Canada (Appendix 3) regarding the
handling of my harassment complaint.
Whether in the November 26,
2003 decision or the manner in which the investigation was handled, the employer's
representatives failed to respect the spirit and letter of the Health Canada
and Treasury Board policies on harassment.
Due to these facts and those expressed in the harassment complaint
(Appendix 4) the employer has contravened the:
Health Canada policy on harassment,
Treasury Board policy on harassment,
collective agreement article 1,
collective agreement article 19, and
all other articles in the collective agreement and pertinent
policies.
CORRECTIVE MEASURES
1.
That
the investigation be handled in accordance with the Health Canada policy on
harassment;
2. That I be given a
copy of the investigation report along with the investigators' findings;
3. That Mr. Guassiran
apologize to me in writing for his inappropriate gesture; and
4. To be represented
by the PSAC and to be present at every step of this grievance, at the
employer's expense.
(Emphasis added.)
[16]
Thus, we
see that the grievor asked for the following corrective measures:
1- That the investigation be handled in
accordance with the Health Canada policy on harassment;
2- That I be given a copy of the
investigation report along with the investigators’ findings;
3- That Mr. Guassiran apologize to me in
writing for his inappropriate gesture; and
4- To be represented by the PSAC and be
present at every step of this grievance, at the employer’s expense.
In my opinion, the grievor already received an apology from
Mr. Guassiran at the meeting on October 3, 2003 (paragraph 255 of the
decision), when he stated that he was deeply sorry for his gesture.
[17]
At paragraph
278 of his decision, the adjudicator said:
In my opinion, the employer should have
told the grievor that it was sorry that she had felt intimidated.
[18]
We point
out, however, that, in the corrective measures, the respondent asked that
Mr. Guassiran apologize, not the employer.
[19]
In my
view, saying [translation] “I am
sorry” is the same as an apology. The dictionary Le Petit Robert gives
the following definition: [translation]
“sad” to be sorry, to regret.
[20]
In the Dictionnaire
des synonymes (Hector Dupuis, Romain, Légaré), we find [translation] “to regret”. . . synonym
“to be sorry”.
[21]
Furthermore,
the order (paragraph 284 of the decision) is not an order at all. I quote from
the so‑called order:
The employer must reconsider its decision
of October 3, 2004. It would be preferable for the employer to let the grievor
know that it is sorry for the March 18, 2003 incident and that it hopes that
such incidents will not occur again in the future.
[22]
The
adjudicator is a decision-maker and, as such, he should decide, not express a
wish.
[23]
The
applicant submits that the adjudicator exceeded his jurisdiction by deciding
that article 1 of the collective agreement applied and that the employer did
not comply with the letter and spirit of that article.
[24]
Paragraphs
281 and 282 of the adjudicator’s decision read as follows:
[281] However, I believe that the
employer did not comply with the letter and spirit of article 1 of the
collective agreement and improperly applied the Treasury Board Policy on the
Prevention and Resolution of Harassment in the Workplace. The hearing
remedied the process, but the employer should reconsider its decision on the
validity of the complaint. Article 19 does not apply to the grievor's case.
[282] In light of the spirit and
letter of article 1 of the collective agreement and based on the Treasury Board
Secretariat's policy on harassment, the employer must reconsider its decision
of October 3, 2004. It would be preferable for the employer to let the grievor
know that it is sorry for the March 18, 2003 incident and that it hopes that
such incidents will not occur again in the future.
[25]
Article 1
of the collective agreement provides:
1.01 The purpose of this Agreement is to
maintain harmonious and mutually beneficial relationships between the Employer,
the Alliance and the employees and to set forth herein certain terms and
conditions of employment for all employees described in the certificate issued
by the Public Service Staff Relations Board on June 7, 1999 covering employees
in the Program and Administrative Services Group.
1.02 The parties to this Agreement share
a desire to improve the quality of the Public Service of Canada and to promote
the well‑being and increased efficiency of its employees to the end that
the people of Canada will be well and efficiently served. Accordingly, they are
determined to establish, within the framework provided by law, an effective
working relationship at all levels of the Public Service in which members of
the bargaining units are employed.
[26]
The
adjudicator wrote the following in paragraphs 266 and 267 of his decision:
[266] That article indicates that
the purpose of the collective agreement is to maintain harmonious relationships
between the employer and employees. In clause 1.02, the text reads: “. . . a
desire to . . . promote the well‑being . . . of its employees . . .
Accordingly, they are determined to establish, within the framework provided by
law, an effective working relationship. . . . ”
[267] In my view, the Treasury
Board policy on harassment in the workplace (Exhibit F‑57) is consistent
with the objectives of article 1 of the collective agreement.
[27]
The
adjudicator properly found that article 19 of the collective agreement does not
apply in this case because it does not mention personal harassment. However, by
deciding that the Treasury Board harassment in the workplace policy is
consistent with the objectives of article 1 of the collective agreement, he
misinterpreted the article and exceeded his jurisdiction. Furthermore, his
decision is unreasonable.
[28]
Article 1
of the collective agreement is a general clause, an introduction or a preface
that does not grant any substantive right to employees. There is nothing in the
collective agreement that could support the finding that it was meant to include
the Treasury Board policy.
JUDGMENT
FOR THE FOREGOING REASONS, THE COURT
ORDERS AND ADJUDGES that:
(1)
The
application for judicial review is allowed with costs;
(2) The adjudicator’s decision
regarding the harassment grievance (file #166‑02‑36590) is set
aside; and
(3) The harassment grievance is
remitted to the Public Service Labour Relations Board so that it is dismissed
based on the reasons for this decision.
“Louis S. Tannenbaum”
Certified
true translation
Mary
Jo Egan, LLB
Legislation, authors and jurisprudence
consulted
1.
Public
Service Labour Relations Act, R.S.C. 1985, c. P‑35, section 92
2.
Palmer and
Palmer, Collective Agreement Arbitration in Canada, 3rd ed.,
Butterworths, 1991, pp. 100‑105; 117‑121; 128
3.
Public
Service Alliance of Canada v. Canada (Canadian Food Inspection Agency), [2005] F.C.J. No.1849
4.
Bratrud
v. Office of the Superintendent of Financial Institutions, [2006] C.P.S.L.R.B. No. 65
5.
Chénier
v. Treasury Board (Solicitor General of Canada – Correctional Service), [2003] C.P.S.L.R.B. No. 24
6.
Croisetière-McGurran
and Social Sciences and Humanities Research Council of Canada [1986] C.P.S.S.R.B. No. 185
7.
Dr. Q
v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226
8.
Kolski
v. Treasury Board (Agriculture Canada), [1994] C.P.S.S.R.B. No. 149
9.
Shneidman
v. Canada (Attorney General), [2007] F.C.J. No. 707
10.
UCCO-SACC-CSN
v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 120
11.
Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247
12.
Parry
Sound (Social Services) v. O.P.S.E.U., [2003] 2 S.C.R. 157
13.
Sketchley
v. Canada
(Attorney General), [2005] F.C.J. No. 2056
14.
Toronto
Transit Commission and A.T.U. (Stina) (Re), (2004) 132 L.A.C. (4th) 225
15.
Voice
Construction Ltd. v. Construction & General workers’ Union, Local 92, [2004] 1 S.C.R. 609
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