Date:
20131023
Docket: T-2286-12
Citation:
2013 FC 1072
Ottawa, Ontario,
October 23, 2013
PRESENT: The
Honourable Mr. Justice Manson
BETWEEN:
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ANIS HAYMOUR
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Applicant
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and
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CANADA REVENUE AGENCY
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1] This is an application
for judicial review of the decision of Suzanne Gorley, the Acting Director of
the National Conflict Resolution Office of the Canada Revenue Agency [the
Acting Director] pursuant to section 18.1 of the Federal Courts Act, RSC
1985, c F-7. The Acting Director denied the Applicant’s request for an
Independent Third Party Review [ITPR] of his non-disciplinary termination on
the basis that he had not filed his request on a timely basis.
I. Issue
[1]
The
issue raised in the present application is as follows:
A.
Was
the Acting Director’s decision unreasonable?
[2]
For
the reasons that follow, I find that the Acting Director’s decision was
unreasonable.
II. Background
[3]
The
Applicant was employed with the Canada Revenue Agency [CRA] since 1994. From
1997 to 2002, he was employed as an AU-01 Auditor. In 2002, the Applicant was
promoted to the position of MG-03 as a Team Leader. As a result of poor
performance appraisals in 2003, 2004 and 2005, the Applicant was demoted back
to an AU-01 position on April 26, 2006. The Applicant filed grievances
regarding the poor performance appraisals and the demotion. These grievances
were referred to an ITPR on April 24, 2008, and a hearing was held in March,
2011.
[4]
On
September 12, 2008, the Applicant went on leave for medical reasons. Subsequent
to his going on leave, the CRA made multiple requests for updated medical
information. The Applicant complied with various requests until 2011, when he
failed to provide updated medical information after a request was made. As a
result of not responding to this request, the Applicant was terminated for
abandonment of his position on November 18, 2011.
[5]
The
Applicant filed a grievance regarding his termination on January 6, 2012. After
pursuing the grievance process through 2012, the Applicant’s grievance was
denied at the final level on October 2, 2012. On October 15, 2012, a copy of
the October 2, 2012, grievance response was mailed to the Applicant. According
to the Applicant’s affidavit, on October 16, 2012, the Applicant’s union
representative, Kent McDonald, provided the Applicant with a copy of the
October 2, 2012, grievance response and advised him that there was a deadline
of seven days from the date on which the Applicant received it to request a
referral to the ITPR, running from the date on which the Applicant received notice
from his employer. The Applicant filed a request for referral to ITPR using
form RC-117- Request for an Independent Third Party Review. This form was
received by the CRA on October 29, 2012.
[6]
In
an affidavit provided in support of this application for judicial review, the
Applicant states that he did not receive notice of the grievance response until
November 1, 2012. The admissibility of the affidavit is challenged by the Respondent.
[7]
On
December 4, 2012, the Acting Director contacted the Applicant by letter and
informed him that his request for referral to an ITPR was denied due to
untimeliness.
[8]
The
Acting Director noted that form RC-117 states that it “is to be completed by
the requestor and received by the National Conflict Resolution Office within 7
calendar days following the date of notice or event leading to the requestor’s
right to access the ITPR recourse mechanism.”
[9]
Based
on the fact that the grievance response was sent on October 15, 2012, and
Canada Post’s delivery standards meant the letter would have been received no
later than October 19, 2012, the Acting Director found that the Applicant’s request
for referral, received October 29, 2012, was untimely, as it was received after
the seven day period prescribed to request an ITPR - after the due date of
October 26, 2012.
III. Standard of review
[10]
The
standard of review is reasonableness (Dunsmuir v New Brunswick, 2008 SCC
9 at paras 62 and 47; Girard v Canada (Attorney General), 2007 FC 1333;
et al).
IV. Analysis
[11]
At
the hearing, it was agreed by counsel for both parties that in light of the
relevant jurisprudence in this Court and the Federal Court of Appeal, the
affidavit of Anis Haymour dated January 23, 2013, should not be considered. It
was not before the decision maker, and does not meet the exceptions to the rule
that evidence not before the administrative decision maker should not be
considered by the Court on substantive review (Assn of Universities and Colleges
of Canada v Canadian Copyright Licensing Agency, 2012 FCA 22, at para 20).
[12]
It
was also acknowledged by the Applicant’s counsel that the application before me
is based solely on paragraphs 18.1(4)(c) and 18.1(4)(d) of the Federal
Courts Act, RSC, 1985, c F-7, and not on paragraph 18.1(4)(b), which deals with
procedural fairness. As such the reasonableness standard of review applies and
I will not consider procedural fairness arguments.
[13]
There
are three conditions that must be met prior to a court intervening on judicial
review pursuant to 18(4)(d): (i) an erroneous finding of fact, (ii) made in a
perverse or capricious manner or without regard to the material before the
tribunal, and (iii) the decision must be attacked based on the erroneous finding
(Rohm & Haas Canada Ltd v Canada (Anti-Dumping Tribunal), [1978] FCJ
No 522 (FCA) at para 5). Even if the first and third points were conceded, the
Respondent argues that the Applicant still would not have succeeded in having
the Court find that the decision unreasonable, as he has not demonstrated that
the Acting Director’s findings were made without regard to the evidence.
[14]
The
Acting Director considered the following three pieces of information in her
decision: the date on which the final grievance reply was sent to the
Applicant, the Canada Post delivery standard for delivery of four days from the
date the response was sent by the Applicant, and the date on which the response
was received by the Acting Director.
[15]
The
Acting Director decided to adopt the Canada Post four-day delivery standard for
delivery of the grievance reply in the absence of an explicit or deemed
delivery date provided for under the CRA’s National Conflict Resolution Office
[NCRO] rules concerning referrals of termination grievances to an ITPR.
[16]
As
stated above, the NCRO mailed the Grievance Response to the Applicant on
October 15, 2012. The Acting Director asserts that, according to the Canada
Post delivery standard, the Grievance Response would have been received no
later than October 19, 2012, and that therefore the Applicant’s Response should
have been received by Friday, October 26, 2012. It was not received until
Monday, October 29, 2012.
[17]
The
Respondent’s position is that given the facts as above, the Acting Director’s
refusal to refer the grievance to ITPR was reasonable and a possible,
acceptable outcome. While the application of a seven day limitation period to
comply with the NCRP procedure for Independent Third Party Review seems harsh,
the finality of that period should not obscure its value (Novak v Bond,
[1999] 1 S.C.R. 808, at para 8).
[18]
I
must disagree. In order to give colour to the question of reasonableness, the
Court should look at the decision in the context in which it was made (Canada (Attorney General) v Abraham, 2012 FCA 266, at paras 42-45). Firstly, the
Acting Director adopted the delivery standard of Canada Post, which
necessitates delivery of the referral response by October 19, 2012. The
allegation of the Applicant is that he did not receive the grievance response
by that date, but there was no evidence before me as to exactly when he received
it. However, time limit provisions should be interpreted in a manner that gives
effect to their purposes. Here, if I am to accept as reasonable the NCRO’s
unilateral reliance on a Canada Post delivery standard, which may or may not
actually be met, the consequence is that an individual may be required to
submit their referral request before they actually receive notice that a
referral is necessary or even available. In effect, the Canada Post delivery
standard, according to the Respondent, would be determinative in any event. Such
a result is simply not reasonable.
[19]
Further,
as argued by the Applicant’s counsel, the Acting Director could have confirmed
receipt by the Applicant by sending the Grievance Response by registered mail,
which would have avoided the whole question as to effective date of receipt,
but did not do so. Alternatively, the Acting Director could have requested confirmation
of receipt by the Applicant, but again, chose not to do so. If she had applied
the ten-day standard of delivery under section 141(1) of the Federal Court Rules, SOR/98-106, a
requirement that was suggested by the Applicant’s counsel as being reasonable,
the Applicant’s response would have certainly been received in the prescribed
time period. This standard was not applied.
[20]
The
result of the deadline established is that the Applicant is denied his
opportunity to engage in the ITPR process because his request for a referral to
an ITPR was late by one business day. Bearing in mind the length of these
proceedings, the prejudice to the Applicant, lack of prejudice to the
Respondent, and the other factors set out above, such a result is unreasonable.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1.
The
Applicant is allowed and the NCRO’s decision is set aside and the matter is
referred back to the NCRO for a redetermination, in accordance with this
judgment.
2.
Costs
to the Applicant.
"Michael D.
Manson"
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