Docket: T-380-14
Citation:
2014 FC 1206
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, December 12, 2014
PRESENT: The Honourable Mr. Justice Locke
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BETWEEN:
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MOHAMED BALIKWISHA PATANGULI
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Applicant
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and
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DEPUTY HEAD
(DEPARTMENT OF CITIZENSHIP
AND IMMIGRATION)
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Respondent
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JUDGMENT AND REASONS
I.
Nature of the matter
[1]
This is an application pursuant to section 18.1
of the Federal Courts Act, RSC 1985, c F‑7, for judicial
review of a decision dated January 20, 2014, made under the Public Service
Labour Relations Act, SC 2003, c 22, s 2 (Act) by Adjudicator Linda Gobeil (adjudicator)
dismissing the grievance of the applicant.
II.
Facts
[2]
The applicant was a pre-removal risk assessment
officer classified at the PM‑04 level with the Department of Citizenship
and Immigration in Calgary until his dismissal in April 2010. Knowledge of
the English language is essential for this position. The applicant is more proficient
in French than in English, even though he is bilingual.
[3]
The applicant’s performance was excellent and he
always had a cordial relationship with his colleagues.
[4]
The applicant and some of his colleagues
registered for a selection process to be promoted to a position at the PM-05
level. As part of that process, the participants took an open‑book
written exam, the questions of which were to remain confidential. Following the
exam, the participants were given the answers to the questions. Those answers were
not to be disclosed by the participants.
[5]
While the applicant’s colleagues Ms. Lewis and
Ms. Lasonde wrote the exam on July 8, 2009, as scheduled, an injury
to the applicant’s right wrist or hand forced him to postpone the writing of his
exam until August 13, 2009.
[6]
On July 8, 2009, after the applicant’s colleagues
finished their exam, the applicant emailed Ms. Lewis to congratulate her.
However, the applicant also stated the following in his email: “I also wanted to verify your questions, could you forward
them to me?” That suggests that the applicant wanted to obtain the
questions in advance, but the applicant maintains that that request was meant
as a joke.
[7]
On August 7, 2009, at 12:09 p.m., the applicant
received an email containing the questions and answers from the PM-05 level
exam. That email originated from Ms. Lasonde’s computer. Thirty minutes after
receiving that email, the applicant forwarded it to his personal email account.
[8]
The identity of the person who sent that email
from Ms. Lasonde’s computer is at the heart of this application for judicial
review.
[9]
The applicant argues that he did not use Ms. Lasonde’s
computer to send the exam questions and answers to his email account. He states
that he took his lunch break at the time the email was sent like he usually
did, and therefore maintains that he could not have sent that email at 12:09
p.m. The applicant contends that he forwarded that email to his personal email account
not knowing that it contained the answers for the PM-05 exam. The applicant
alleges that he had a brief conversation with Ms. Lasonde on August 7, 2009, but
that he did not have the chance to mention the email because he had to leave
for a physiotherapy appointment.
[10]
Ms. Lasonde categorically denies sending that
email to the applicant because she spent her lunch break with a friend, Ms. Grixti,
at the time it was sent. Ms. Lasonde alleges that she and Ms. Grixti had gone to
City Hall to pay a parking ticket during that lunch break. Ms. Grixti corroborated
Ms. Lasonde’s testimony.
[11]
Ms. Lasonde submits that she discovered the email
that sent the exam questions and answers to the applicant while she was doing a
routine cleaning of her email account. Shocked by the discovery, she alerted
her supervisor, Mr. Fergusson, to it. Ms. Lasonde then tried to avoid the
applicant.
[12]
The applicant maintains that he tried to discuss
the email dated August 11, 2009, with Ms. Lasonde, but that he did not because
his colleague said that she was busy. The applicant also argues that he did not
try to discuss the email with his supervisor in order to maintain good working
relationships with his colleagues and so as to not cause problems for Ms.
Lasonde.
[13]
On August 12, 2009, the evening before the exam,
the applicant reviewed the email to prepare his own answers to the exam
questions.
[14]
On August 13, 2009, while writing the exam, the
applicant realized that the exam questions were the same as those he had
received, and he used his prepared answers in the test.
[15]
On August 13, 2009, shortly after finishing his
exam, the applicant was called into the office of Mr. Fergusson, his supervisor.
Mr. Fergusson showed the applicant two emails. The first one was the email sent
from Ms. Lasonde’s email account to the applicant’s email account containing
the exam questions and answers. The second one was the email forwarding the
first email from the applicant’s work email account to the applicant’s personal
email account. When confronted by his supervisor, the applicant first refused
to admit his error and stated that he had no knowledge of those emails. However,
that evening, the applicant emailed his supervisor to say that he deeply
regretted writing the exam having known the questions in advance.
[16]
On August 27, 2009, Mr. Fergusson informed the
applicant that an internal administrative investigation had been launched to
shed light on the events surrounding his use of the exam questions and answers.
[17]
On August 31, 2009, the applicant was
interviewed in respect of those events to allow him the opportunity to provide
additional information to the investigation. During that interview, the applicant
expressed concern about the fairness of the investigation process and stated
that he was found guilty even before all of the facts were known. Furthermore,
on two occasions, once before the interview and once during the interview, the
applicant asked to be questioned in French. That request was refused because his
position was designated English essential. However, the investigation committee
informed the applicant that it would focus on making sure that the questions
asked were clear and encouraged him to ask for clarification if he did not
understand a question. The applicant was interviewed twice during that
investigation.
[18]
The applicant was informed of his dismissal in a
letter dated April 19, 2010. On May 11, 2010, according to section
208 of the Act, the applicant presented an individual grievance before an
adjudicator. Through the grievance, the applicant contested his dismissal,
asked to be reinstated, requested that any mention of discipline be stricken from
his personnel file and requested that he be reimbursed for the pay and benefits
he was deprived of by the dismissal.
III.
Decision of the adjudicator
[19]
In her reasons, the adjudicator specified that
she had “no hesitation” denying the applicant’s
grievance; the evidence against him was overwhelming. The adjudicator pointed
out that the allegations made and proven, on a balance of probabilities, were
serious and that they damaged the relationship of trust between the employee
and the employer.
[20]
The adjudicator found, on a balance of
probabilities, that the applicant took advantage of Ms. Lasonde’s absence to enter
her office and send the questions and answers to his email address. The
adjudicator also inferred from the evidence submitted that the applicant knew
Ms. Lasonde’s routine and knew that it took about 10 minutes for her
computer to automatically lock. The adjudicator based her finding on the fact
that the evidence shows that the applicant entered the work area, where his and
Ms. Lasonde’s offices are, at 11:58 a.m. on August 7, 2009, and that he was
therefore present when the email was sent from Ms. Lasonde’s computer. The
adjudicator also noted the undisputed fact that the applicant sent the exam
questions and answers to his personal email account.
[21]
While evaluating Ms. Lasonde’s testimony during
the hearing, the adjudicator stated that Ms. Lasonde impressed as being
credible and a principled individual. The adjudicator noted that her testimony
was unequivocal and that she hurried into her supervisor’s office when she discovered
the email to the applicant. The adjudicator noted that Ms. Lasonde had no
reason or motivation to share the questions and answers from the email with the
public servant.
[22]
Furthermore, the adjudicator pointed out that
the applicant first told his supervisor, Mr. Fergusson, that he had never
seen the email dated August 7, 2009, sent from Ms. Lasonde’s computer or the
email he sent from his computer. Even though the applicant finally admitted to his
wrongdoing, the adjudicator contended that the applicant’s first denial shows
that he intended to admit to his wrongdoing only when no other avenue was open
to him. The adjudicator also found that the applicant would never have admitted
his wrongdoing had Mr. Fergusson not confronted him.
[23]
After reviewing the facts, the adjudicator found
without hesitation that the applicant sent the first email from Ms. Lasonde’s
computer and that he has not fully realized the seriousness of his acts. Moreover,
the adjudicator stated that she is perplexed as to the public servant’s
attitude and the sincerity of his remorse. The adjudicator also found that “given the nature of the duties of pre-removal risk
assessment officers and the impacts of their decisions on claimants’ lives, the
employer must be able to fully trust its employees”.
[24]
Before concluding, the adjudicator dismissed the
argument that Mr. Fergusson should have prevented the applicant from writing
the exam because the evidence shows that Mr. Fergusson was not aware that
the public servant wrote the exam on August 13, 2009.
[25]
Finally, the adjudicator argued that the
interview and investigation should have been conducted in French. The
adjudicator stated that she hopes that the employer will reconsider doing so in
the future. However, the adjudicator maintained that the adjudication process remedied
the procedural error because it was a proceeding de novo and that the
applicant was able to express himself in French.
IV.
Issues
[26]
Four issues arise:
1.
Was the adjudicator’s decision reasonable? More
specifically:
a.
Did the adjudicator provide sufficient reasons and
adequately consider the evidence in support of her decision?
b. Did the adjudicator reasonably conclude that dismissal was an
appropriate penalty?
2.
Did the adjudicator err by finding that the
adjudication process remedied the violation of the applicant’s language rights?
3.
Did the adjudicator exhibit bias?
4.
Did the adjudicator provide a fair hearing?
V.
Submissions of the parties
[27]
The applicant is not represented by counsel. His
arguments are summarized below to reflect, as faithfully as possible, the 52
pages of written arguments submitted and his oral submissions (in addition to
the 23 pages of additional written submissions in support of his oral submissions).
Essentially, the applicant opposes all of the adjudicator’s findings. In my opinion,
it is unnecessary to address all of the applicant’s arguments in this decision to
ensure that justice is done. Even though I have considered all of the
applicant’s arguments, my analysis focuses on the arguments that, in my view,
merit being discussed in light of the facts in this case. For example, the
applicant raised the argument of the violation of the principle of the
presumption of innocence. That presumption applies to criminal law, so this
decision will not address that argument.
A.
Applicant’s submissions
[28]
The applicant argues that questions of mixed
fact and law must be analyzed on a reasonableness standard. He maintains that issues
with respect to an adjudicator’s lack of impartiality, errors in law, issues
with respect to an adjudicator’s jurisdiction, as well as a breach of the
principles of natural justice are issues that must be reviewed on a correctness
standard.
[29]
The applicant contends that the number of errors
and omissions by the adjudicator vitiate her decision so as to make it
unreasonable. The applicant argues, in particular, that the adjudicator selectively
used the evidence and testimony in a way that breaches the principles of
natural justice. He also argues that the adjudicator: (i) refused to deal with
the applicable case law; (ii) refused to rule on the bias of the investigation
committee; (iii) provided inadequate reasons for her findings; (iv) gave rise
to a reasonable apprehension of bias; and (v) erred by finding that the
dismissal was justified.
[30]
The applicant alleges that there is no [translation] “high
quality” strong and convincing proof that he entered Ms. Lasonde’s
office. The applicant also contends that the analysis on a balance of
probabilities is not appropriate in this case because his dismissal was a
serious penalty.
[31]
The applicant argues that the adjudicator’s bias
and conduct compelled him to testify against himself. That statement by the
applicant is based namely on the fact that the adjudicator apparently [translation] “compelled
the applicant to testify against himself” by questioning him on his
potential presence in Ms. Lasonde’s office on August 7, 2009, at 12:09 p.m.
[32]
The applicant also contends that the adjudicator
did not adequately justify the fact that she found his testimony not credible.
[33]
The applicant maintains that the adjudicator submitted
inadequate reasons in support of her findings; the reasons were not clear,
precise, transparent and intelligible (Sidhu v Canada (Citizenship and Immigration),
2014 FC 176 at para 20).
[34]
Furthermore, the applicant argues that the
adjudicator breached her duty of neutrality and independence by stating, in
particular, the following at paragraph 88 of her decision: “I would add that given the nature of the duties of
pre-removal risk assessment officers and the impacts of their decisions on
claimants’ lives, the employer must be able to fully trust its employees”.
The applicant contends that his apprehension of bias is namely caused by the
fact that the adjudicator asked him to shorten his testimony to be able to go
to her mother-in-law’s funeral.
[35]
The applicant argues that the deference owed to
the adjudicator does not justify a breach of the principles of procedural
fairness (Mooney v Canadian Society for Immigration Consultants, 2011 FC
496 at para 122).
[36]
Furthermore, the applicant maintains that the
adjudicator erred by objecting to continuing the arguments in Ottawa to ensure
that he could provide all of his testimony.
[37]
Finally, the applicant argues that the employer was
obligated to question him in French because it is his preferred language. The
applicant also argues that the adjudicator erred by failing to adequately
address his right to be heard and to express himself in the language of his
choice.
B.
Respondent’s submissions
[38]
The respondent maintains that the applicable
standard of review in this case is reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9 at para 68 (Dunsmuir); Canada (Attorney General) v Pepper,
2010 FC 226 at para 35). The respondent argues that the reasonableness standard
applies to an adjudicator’s decision on the merits of a dismissal for
misconduct (Morissette v Canada (Attorney General), 2002 FCA 314 (Morissette)).
[39]
The respondent admits that a breach of the
principles of procedural fairness and natural justice must be reviewed on a
correctness standard. However, he argues that since in this case the
adjudicator provided reasons for her decision, the result behind the decision
must be challenged within the reasonableness analysis (Newfoundland and
Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC
62 at para 22 (Newfoundland Nurses)), that is, primarily its intelligibility
and the transparency of the decision-making process (Newfoundland Nurses,
at para 11).
[40]
The respondent argues that contrary to the
principles in Communications, Energy and Paperworkers Union of Canada, Local
30 v Irving Pulp & Paper, Ltd., 2013 SCC 34 (Communications Union of
Canada) at para 54, the applicant conducted a clause-by-clause analysis of
the adjudicator’s findings instead of considering the decision as a whole.
[41]
The respondent maintains that the applicant’s
claims that the fact that the investigation and examination were not conducted
in French is sufficient to conclude that the adjudicator’s decision is
unreasonable cannot be accepted because the application for judicial review concerns
the adjudicator’s decision and not the investigation conducted by the applicant’s
employer. He specifies that adjudication is a process de novo that makes
it possible to rectify injustices caused by decisions of employers (Pagé v
Canada (Attorney General), 2009 FC 1299 (Pagé) at para 21; Tipple
v Canada (Treasury Board), [1985] FCJ No 818 (FCA) (QL) and the adjudicator
based her decision on the facts presented at the hearing.
[42]
Regarding the allegations of bias made by the
applicant, the respondent argues that they cannot be accepted because a reasonable,
right-minded and “informed person, viewing the matter
realistically and practically—and having thought the matter through”, could
not conclude that the adjudicator exhibited bias against the applicant (Committee
for Justice and Liberty v National Energy Board, [1978] 1 S.C.R. 369, at page
394). The respondent points out that even though it is possible and
understandable that the applicant is disappointed that the adjudicator did not
find him to be credible on certain aspects, the adjudicator drew her
conclusions from the applicant’s answers and not because of a tendency,
inclination or predisposition to favour one of the two parties.
[43]
The respondent also argues that it is possible
that the applicant perceived the fact that the adjudicator asked him questions as
bias because he is not familiar with the adjudication process, but points out
that counsel for the applicant did not object to that aspect of the proceeding
during the adjudication process.
[44]
Finally, the respondent maintains that the
adjudicator’s decision was not unreasonable on its face because there is authority
for the proposition that cheating on an exam to be considered for promotion is
serious enough to break the confidence between an employer and an employee (R
v S (RD), [1997] 3 S.C.R. 484 at paras 106-108 (R v S (RD)); Thomas v
House of Commons, [1991] PSSRB No 75).
VI.
Analysis
[45]
The applicant provided a number of arguments in
support of his application for judicial review. Each of those arguments was considered.
This analysis focuses on, however, the applicant’s arguments that, in my
opinion, are the most important.
A.
Preliminary issue
[46]
At the beginning of the hearing and after
hearing the representations of the parties on the issues, I rejected the applicant’s
request to admit in evidence certain documents that were included in the record
but not submitted in evidence before the adjudicator.
[47]
I am of the opinion that those documents are not
of much use to me in rendering a decision in this case. Furthermore, the
applicant has not convinced me that those documents were not available during
the adjudication process or that the applicant could not have known that they
were relevant. According to Rosenstein v Atlantic Engraving Ltd, 2002 FCA
503 at paras 8-9 and Tint King of California Inc. v Canada (Registrar of
Trade-Marks), 2006 FC 1440 at paras 18-19, I will not exercise my
discretion to admit those documents.
B.
Standard of review
[48]
In Dunsmuir, at paras 57 and 63, the
Supreme Court of Canada stated that a standard of review analysis is not
necessary when “the jurisprudence has already
determined in a satisfactory manner the degree of deference to be accorded to a
decision maker with regard to a particular category of question”.
[49]
In Newfoundland Nurses, at paras 14 and
22, the Supreme Court of Canada established that any challenge to the reasoning
of the decision should therefore be made within the reasonableness analysis.
[50]
Furthermore, great deference must be shown in evaluating
the reasonableness of an adjudicator’s decision (Smith v Canada (Attorney
General), 2009 FC 162 at paras 13-14).
[51]
An analysis on the reasonableness standard must
be undertaken to determine whether the adjudicator erred by finding that the
dismissal was an adequate penalty (Deschênes v Imperial Bank of Commerce,
2011 FCA 216 at paras 40, 45 (Deschênes), Morissette at para 2).
[52]
An analysis on the correctness standard must be undertaken
to determine whether the applicant’s right to a fair hearing was compromised (McBride
v Canada (National Defence), 2012 FCA 181 at para 32 (McBride); Chapagain
v Canada (Citizenship and Immigration), 2010 FC 887 at para 14). The same
standard will apply in determining whether the adjudicator exhibited bias (Zhu
v Canada (Citizenship and Immigration), 2013 FC 1139 at para 38).
C.
Was the adjudicator’s decision reasonable?
(1)
The adequacy of the reasons and consideration of
the evidence
[53]
The applicant essentially opposes almost all of
the reasons underlying the adjudicator’s findings. The applicant argues, in
particular, (i) that the number of errors and omissions by the adjudicator
vitiates her decision; (ii) that the adjudicator selectively used the evidence;
and (iii) that the reasons underlying the adjudicator’s decision are
incomplete, namely because they do not address the bias of the investigation
committee and do not completely convey why Ms. Lasonde was deemed more
credible than the applicant.
[54]
The Supreme Court of Canada clarified the
principles concerning the adequacy of the reasons behind a decision in Newfoundland
Nurses at paragraph 16:
Reasons may not include all the
arguments, statutory provisions, jurisprudence or other details the reviewing
judge would have preferred, but that does not impugn the validity of either
the reasons or the result under a reasonableness analysis. A decision‑maker
is not required to make an explicit finding on each constituent element,
however subordinate, leading to its final conclusion (Service Employees’
International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973
CanLII 191 (SCC), [1975] 1 S.C.R. 382, at p. 391). In other words, if the
reasons allow the reviewing court to understand why the tribunal made its
decision and permit it to determine whether the conclusion is within the range
of acceptable outcomes, the Dunsmuir criteria are met.
[Emphasis added.]
[55]
Reasons for a decision allow litigants to ascertain
that the key elements of the evidence submitted are considered and that their
claims have been taken into account (Via Rail Canada Inc. v National
Transportation Agency, [2001] 2 FC 25 (CA) at paras 17-18). That said, as
pointed out by the respondent, it has been established that an arbitral award
must be approached as “an organic whole, not as a
line-by-line treasure hunt for error” (Communications Union of Canada
at para 54). Moreover, to the extent that the evidence submitted supports
the findings of fact made by the adjudicator, the case law recognizes that
reasons for a decision need not be perfect. They may include minor errors and fail
to refer to every piece of the evidence without being deemed unreasonable (Colistro
v BMO Bank of Montreal, 2008 FCA 154 at para 8; 6245820 Canada Inc. v
Perrella, 2011 FC 728 at para 55).
[56]
I note that the applicant maintains that the
adjudicator erred by finding that Ms. Lasonde was credible without assessing
the credibility of the applicant. The adjudicator stated in her reasons that
she found that Ms. Lasonde impressed as being a credible witness during the
hearing and that she had no reason or motivation to share her exam questions. I
cannot agree with the applicant’s arguments. First, the adjudicator was in a
privileged position to draw conclusions with respect to the credibility of the witnesses.
Second, the adjudicator’s reasons allow the litigant to understand why Ms. Lasonde’s
testimony was preferred over his. The adjudicator provided adequate reasons for
her decision on this point. While Ms. Lasonde had no reason to send the email
to the applicant, he was evasive when confronted by his employer. Furthermore,
it is clear that the applicant could have benefitted from obtaining the
questions and answers if the cheating had not been discovered.
[57]
The applicant also maintains that the reasons
for decision show that the adjudicator selectively used the evidence and that
the number of errors and omissions by the adjudicator vitiates her decision. For
example, the applicant makes the following arguments:
1. The adjudicator stated that, on August 10, 2009, Ms. Lasonde did not
speak to the applicant, but to the contrary, Ms. Lasonde had said the following
two words to him: [translation] “WHAT” and [translation]
“YES” to let him know that she was busy;
2. The adjudicator should have considered the fact that Mr. Fergusson received
the emails used by the applicant on August 12, 2009. The adjudicator erred by
finding that the employer was not aware of the date and time of the applicant’s
exam. According to the applicant, the fact that Mr. Fergusson received and
printed the emails before the exam without preventing the applicant from
completing it demonstrates that the employer was acting in bad faith;
3. The adjudicator erred by finding that the applicant entered Ms. Lasonde’s
office to send the exam questions and answers to his work email address and
then forwarded them to his personal email address;
4. The adjudicator found at paragraph 82 that the applicant entered Ms.
Lasonde’s office and sent an email to his personal email address, while the
email was initially sent to his work email address.
[58]
These errors and omissions are minor and do not
undermine the reasonableness of the reasons for the adjudicator’s decision.
[59]
The applicant seems to forget that the key
factual element of this whole story is that he cheated to be considered for a higher
level position within the public service, thus demonstrating a severe lack of
integrity and honesty. When questioned on this issue, he first refused to admit
his wrongdoing before admitting part of the truth to his employer.
[60]
In my opinion, the adjudicator’s decision is consistent
and intelligible. The applicant’s arguments demonstrate that he conducted a
microscopic analysis of each of the adjudicator’s sentences, identifying every imperfection
in a decision that should be considered as a whole. The applicant merely individually
reinterpreted each fact by implying that once intertwined, they would make it
possible to conclude that the adjudicator’s decision was unreasonable, but he
did not identify a more convincing factual theory than that which supported the
adjudicator’s findings. I am of the view that the adjudicator’s reasons
adequately show the essential elements justifying her decision. Furthermore, the
adjudicator did not, as the applicant seems to claim, have to copy every scintilla
of evidence.
(2)
Dismissal as an appropriate penalty for the
applicant’s misconduct
[61]
For the following reasons, I am of the opinion
that the applicant failed to demonstrate that the adjudicator’s decision
regarding his dismissal was unreasonable.
[62]
In my view, the adjudicator was right to make
the following finding at para 82 of her decision:
. . . on a balance of probabilities,
finding that on August 7, 2009, [the applicant] took advantage of Ms. Lasonde’s
anticipated absence, entered her office, and sent the questions and answers
from her PM-05 selection process exam to his personal home email address.
[63]
I agree with the adjudicator’s comments, despite
no direct evidence that the applicant entered Ms. Lasonde’s office and the fact
that he denied entering Ms. Lasonde’s office. The adjudicator’s findings in
that respect are completely reasonable.
[64]
Furthermore, regardless of whether the applicant
entered Ms. Lasonde’s office, there is no doubt that he cheated by using the
questions and answers from a previous exam. Also, he first refused to admit his
misconduct when confronted by his supervisor. I also do not believe that it was
unreasonable to find that the applicant tried to mislead his colleague Ms. Lewis
when he asked her the following: “I also wanted to
verify your questions, could you forward them to me?”
[65]
As pointed out by the respondent, similar
decisions were rendered by the Public Service Labour Relations Board according
to which cheating on an exam to be considered for promotion can result in
termination (Rivard v Treasury Board (Solicitor General of Canada – Correctional
Service), 2002 PSSRB 75; Thomas v House of Commons, [1991] PSSRB No
75). The applicant argues that the adjudicator should have followed Hampton
v Treasury Board, PSSRB, File No 166-2-28445 (1998) (Hampton),
a decision where, in circumstances similar to this case, it was held that
dismissal was too severe a penalty. In Hampton, the public servant in
question was under considerable personal stress at the time of his misconduct
because of his wife’s pregnancy and the loss of a significant portion of his
savings. The respondent has failed to demonstrate a similar personal situation.
His quality of life declined following his dismissal and not at the time of his
misconduct. Moreover, the applicable standard in this case is reasonableness
and the dismissal does not seem to be excessive based on the above-mentioned
precedent.
[66]
Furthermore, an employer’s termination letter is
a relevant element to take into account when assessing the loss of confidence
between an employer and an employee (Deschênes at para 54). At
paragraph 88 of her decision, the adjudicator stated the following: [translation] “I
agree with Ms. Deschênes’ comments that [the applicant’s] actions were serious
and that they broke the relationship of trust between the employer and its
employee”. In her letter, Ms. Deschênes stated the following:
In rendering my decision, I have taken
into consideration various mitigating circumstances including your years of
service, your previous disciplinary record, and your previous performance
appraisal.
That said, I consider your misconduct to be
very serious. You have failed to take full responsibility for your actions.
. . .
In considering the above, your actions have
caused irreparable damage to the mutual relationship of trust required to
maintain the employment relationship. As such, in accordance with the authority
vested in me pursuant to section 12 (1) c) of the Financial Administration
Act, your employment with the Department of Citizenship & Immigration
is terminated . . . .
[Emphasis added.]
In light of the record as a whole, that
letter illustrates that the applicant’s misconduct caused irreparable damage to
his relationship of trust with his employer and demonstrates that the
applicant’s employer considered the mitigating circumstances of the applicant’s
case.
[67]
The applicant cheated on his exam and thus
betrayed the trust of his employer. The public service is a work environment
where the integrity and honesty of public servants play a necessary role in retaining
public confidence. The disciplinary action imposed upon the applicant was harsh,
but it was not unreasonable given the workplace in which he was employed.
D.
Issues analyzed on a correctness standard
(1)
Reasonable apprehension of bias
[68]
The applicant maintains that the adjudicator exhibited
bias. As the respondents accurately explained and according to the Supreme
Court in R v S (RD) at para 106, the notion of bias can be defined as
follows:
In common usage bias describes a leaning,
inclination, bent or predisposition towards one side or another or a particular
result. In its application to legal proceedings, it represents a predisposition
to decide an issue or cause in a certain way which does not leave the judicial
mind perfectly open to conviction. Bias is a condition or state of mind which
sways judgment and renders a judicial officer unable to exercise his or her
functions impartially in a particular case.
[69]
In Bank of Montreal v Payne, 2012 FC 431
at paras 51-52, Justice Rennie summarizes the applicable standard for this
issue:
The test for establishing a reasonable apprehension
of bias of the decision-maker was restated by the SCC in R v S (RD),
[1997] 3 S.C.R. 484 at para 111: a reasonable apprehension of bias exists where a
reasonable and informed person, with knowledge of all the relevant
circumstances, viewing the matter realistically and practically, would conclude
that the decision maker’s conduct gives rise to a reasonable apprehension of
bias. The decision‑maker does not need to have actually been biased;
rather a reasonable apprehension of bias is sufficient for there to have been a
violation of procedural fairness.
In determining if there is a reasonable
apprehension of bias the Court is to consider whether an informed person would
think that it is more likely than not that the decision-maker, whether
consciously or unconsciously, would not decide fairly: Committee for Justice
& Liberty v Canada (National Energy Board) (1976), [1978] 1 S.C.R. 369;
and R v S (RD), above. Adjudicators are presumed to be impartial and
thus a high standard of proof is required to establish a reasonable
apprehension of bias: R v S (RD), above at para 158.
[70]
A party who alleges bias on the part of a
decision-maker has the onus of proving it and the threshold of proof is a high
one (Rafizadeh v Toronto Dominion Bank, 2013 FC 781 at para 16; Farah
v Sauvageau Holdings Inc., 2011 ONSC 1819 at paras 89-90).
[71]
In this case, the applicant argues that the
adjudicator breached her duty of neutrality and independence. That statement by
the applicant is based on, in particular, the fact that the adjudicator
apparently demonstrated a lack of neutrality by stating the following: [translation] “I
would add that given the nature of the duties of pre-removal risk assessment
officers and the impacts of their decisions on claimants’ lives, the employer
must be able to fully trust its employees”. In my opinion, the adjudicator
simply exercised her powers by drawing conclusions from the facts before her.
[72]
The applicant also argues that the adjudicator
exhibited bias by asking him to shorten his testimony to be able to go to a
funeral. However, the applicant submitted no evidence demonstrating that the
adjudicator actually shortened his testimony simply to go to a funeral.
Furthermore, the applicant maintains that the adjudicator erred by objecting to
continuing the arguments in Ottawa to allow him to complete his testimony. First,
the adjudicator’s decision and the record as a whole reflect that she had ample
information to render a complete and intelligible decision. Second, the
applicant does not state which evidence he would have presented in Ottawa to
influence the adjudicator’s findings. Finally, the respondent argues that the
applicant’s lawyer at the time of the adjudication process did not object to
any aspect of the proceedings, and the applicant does not dispute this. In my
opinion, the adjudicator was merely exercising her case management authorities.
[73]
Moreover, the evidence submitted by the
applicant is not sufficient to give rise to a reasonable apprehension of bias
in a right-minded, informed individual. I am of the view that the applicant failed
to meet the evidentiary burden required. With respect, the applicant seems to
confuse the adjudicator’s case management authorities and discretion with the
notion of bias.
(2)
A fair hearing
[74]
The applicant maintains that the adjudicator violated
his right to a fair hearing by asking him her own questions. The applicant
states that the adjudicator [translation]
“compelled the applicant to testify against himself”
by questioning him on his potential presence in Ms. Lasonde’s office at 12:09
p.m. on August 7, 2009. With respect for the applicant’s position, the
adjudicator was simply exercising her powers according to subsection 226(1) of
the Act. In addition and as stated above, the lawyer who was representing the
applicant at the time of the adjudication process did not object to any aspect
of the proceedings. In light of the whole of the record and of the arguments of
the applicant, I am of the view that the applicant was provided a fair hearing.
(3)
Violation of language rights
[75]
In my opinion, there is no doubt that the
applicant’s allegation regarding the violation of his language rights merits
being taken seriously. I agree with the adjudicator that the applicant should
have been able to express himself in French during the investigation. However,
the applicant is seeking judicial review of the adjudicator’s decision. As
pointed out by the respondent, the grievance process before an adjudicator is not
a form of quasi-judicial review because the adjudicator hears the matter de
novo (subsection 226 (1) of the Act; McBride at paras 43-45;
MacDonald v City of Montréal, [1986] 1 S.C.R. 460 at para 122; Pagé
at para 21). Thus, the applicant had the opportunity to be heard de novo
in the language of his choice, that is, French.
[76]
Furthermore, the applicant does not specify how
the fact that the investigation was conducted in English could have impacted
the adjudicator’s findings. In light of the record considered as a whole, I
agree with the respondent’s argument that the adjudicator based her decision on
all of the facts presented at the hearing and not on the employer’s opinions.
VII.
Conclusion
[77]
The application for judicial review must be
dismissed.
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