Docket: T-1467-13
Citation:
2014 FC 540
Ottawa, Ontario, June 5,
2014
PRESENT: The
Honourable Mr. Justice Beaudry
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BETWEEN:
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JAMES MUTART
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review
pursuant to section 18.1 of the Federal Courts Act, RSC 1985, c F-7, of
a decision of an adjudicator made under the Public Service Labour Relations
Act, SC 2003, c22 (PSLRA) dated August 1, 2013 dismissing the
applicant’s grievance because of a lack of jurisdiction and finding in the
alternative, that had the adjudicator had jurisdiction, the respondent had
accommodated the applicant to the point of undue hardship.
[2]
The application shall be dismissed for the
reasons below.
I.
FACTS
[3]
The parties submitted to the adjudicator an
agreed statement of facts. The Court will restate here only the facts essential
to the present application.
[4]
The applicant worked as a Property Facilities
Officer for Public Works and Government Services Canada (PWGSC) from 1981 until
2009.
[5]
He suffers from chronic kidney disease. He
received a kidney transplant in 1989, though his kidneys failed again and in
September 1999, the applicant became disabled and was unable to continue
working. He was placed on a transplant list in Ottawa and went on leave without
pay due to disability. He also began receiving disability benefits and
maintained his critical medical coverage.
[6]
On December 19, 2003, the applicant received a
letter from PWGSC informing him of a realignment of the department’s
organizational structure.
[7]
On October 27, 2005, PWGSC contacted the
applicant to inquire about his absence from work and advised him of the
voluntary options available to him: return to work (subject to medical
certification), resignation, or retirement on medical grounds. The applicant
was given a deadline of December 16, 2005 to respond, which was later extended
until January 31, 2006.
[8]
After several exchanges between PWGSC and the
applicant regarding leave and benefits, on April 26, 2006, he was informed that
he was to provide medical documentation if he wished to return to work or
undergo an assessment by Health Canada. During this period of time the
applicant’s doctor also requested that the applicant be transferred to the
Hamilton area in order to better facilitate a transplant and to allow him to
benefit from family support there.
[9]
After a series of correspondences where the
applicant provided medical documentation and PWGSC asked for clarification or
precision, the applicant indicated in January 2007 that he was willing to
undergo Health Canada assessment.
[10]
On February 25, 2008, PWGSC wrote to the
applicant confirming that work in the Hamilton region was not an option.
[11]
The applicant’s condition deteriorated and on
March 26, 2008 he provided a medical note indicating that he could not return
to work and that this could be reassessed in September 2008.
[12]
On September 19, 2008, the applicant wrote to
PWGSC to request that he be maintained on leave without pay.
[13]
On October 14, 2008, PWGSC informed the applicant
that he should provide an answer on whether he wants to return to work or to
resign or medically retire, failing which they would recommend termination.
[14]
On October 23, 2008, the applicant provided
another medical note which specified that he could only return to work
full-time if he were to receive a kidney transplant; however the timing of a
transplant was unpredictable.
[15]
On March 6, 2009, PWGSC wrote to the applicant
indicating that it would be recommending termination of employment.
[16]
On April 16, 2009, PWGSC requested that the
applicant write a letter of resignation stating that his last day of employment
would be April 5, 2009.
[17]
On May 20, 2009, on the advice of his union
representative, the applicant wrote a letter resigning as of May 29, 2009. In his
letter he noted that he felt he had been forced to medically resign and that he
would be filing a grievance.
[18]
The applicant filed his grievance on June 26,
2009.
II.
IMPUGNED DECISION
[19]
The adjudicator found that she was without
jurisdiction to hear the matter under section 209 of the PSLRA since it related to a voluntary termination, as
defined by section 63 of the Public Service Employment Act, SC 2003, c22
(PSEA), and section 211 of the PSLRA specifically denies an
arbitrator jurisdiction over any termination of employment under the PSEA.
The adjudicator concluded that the grievance was not a request for
accommodation but rather was in pith and substance about the applicant’s
termination of employment.
[20]
In coming to this conclusion, the adjudicator
noted that reinstatement was the only remedy sought by the applicant. It was
too late for the applicant to argue at the hearing that the true nature of the
grievance was not the forced resignation but rather the way the applicant was
treated in the years leading up to his medical retirement. The arbitrator also
noted that the applicant was assisted in drafting his grievance by his union a
representative, an experienced labour relations advisor. She found that the
decision in Burchill v Canada (Attorney General), [1981] 1 FC 109 (FCA)
[Burchill] required that she hold the grievor to the grievances that
were put to the employer at the final level of the grievance process. The
applicant had also offered no argument or evidence that his employer had
perpetrated a fraud, a sham or camouflage or that it acted in bad faith.
[21]
The adjudicator further found that even if she
had jurisdiction over the matter, the employer had accommodated the applicant
to the point of undue hardship.
III.
ISSUES
[22]
The two issues to be decided here are:
1)
Did the adjudicator err in concluding that she
lacked jurisdiction to hear the grievance?
2)
Did the adjudicator err in finding that the
respondent had accommodated to the point of undue hardship?
IV.
STANDARD OF REVIEW
[23]
As stated by both parties, the standard of review
applicable to an adjudicator’s interpretation of section 209 of the PSLRA
is reasonableness (Canada (Attorney General) v Amos, 2011 FCA 38 at
paras 27-33).
V.
RELEVANT LEGISLATION
[24]
The relevant legislation is found in Annex A at
the end of this judgment.
Applicant’s Arguments
[25]
The applicant submits that adjudicators must not
take an overly mechanical and restrictive interpretation of grievance wording
but must instead look to the context and determine the grievor’s objective in
raising the grievance, regardless of whether it is explicitly or implicitly
stated (McMullen v Canada Revenue Agency, 2013 PSLRB 64 at para 103).
The applicant underscores that when read as a whole, it is clear that the
grievance presented alleges violations of the Canadian Human Rights Act
and the non-discrimination provision of the collective agreement. The
applicant’s explicit and overarching concern was his employer’s failure to
accommodate his disability both prior to and during the process which
culminated in his forced resignation.
[26]
The applicant alleges that it was unreasonable
for the adjudicator to base her jurisdiction decision on an impermissibly
restrictive interpretation of section 209 of the PSLRA. The
adjudicator’s reasoning that the applicant asking only for reinstatement
demonstrated that he was contesting only his resignation is baseless, as the
absence of a claim for damages does not affect the subject matter of a
grievance. Further, the evidence presented by the applicant throughout the
grievance process detailing his requests for accommodation further demonstrated
the applicant’s concern with his employer’s failure to accommodate. The
applicant relies on Sketchley v Canada (Attorney General), 2004 FC 1151,
upheld on appeal 2005 FCA 404, which recognized that forced resignations can
amount to discrimination where the process was implemented without regard to
the individual employee’s circumstances of the duty to accommodate.
[27]
The applicant further submits that the
adjudicator misapplied the rule found in Burchill at para 5 which
specifies that it is not open to an individual to change their grievance or
submit a new one when the process moves to arbitration. This is not the
situation here, argues the applicant, since the respondent was aware of the
applicant’s claims of discrimination throughout the grievance process. The
applicant is not trying to change the subject matter of his grievance or
effectively present a new grievance for the first time at adjudication.
[28]
The applicant also adds that the adjudicator’s
alternative conclusion on the merits of the grievance that the respondent had
satisfied its duty to accommodate to the point of undue hardship failed to give
consideration to the relevant evidence before her. The adjudicator looked
exclusively at the length of the applicant’s medical leave from work and
ignored clear evidence of the respondent’s consistent failure to accommodate,
namely in not determining whether positions were available in the
Hamilton/Niagara or Toronto regions and failing to accommodate a return to
part-time work.
Respondent’s Arguments
[29]
The respondent submits that it was open to the
adjudicator to find on the clear wording of the grievance that the applicant’s
resignation was the primary thrust of his grievance from which the human rights
element could not be severed. The respondent argues that the applicant is
incorrectly attempting to alter his original grievance from one on resignation
to a standalone grievance on the duty to accommodate. The applicant’s grievance
did not use the term “duty to accommodate”, did not challenge the accommodation
during the period between 2005-2008 in a timely way, cited only the date of
resignation as the date giving rise to the circumstances leading to the
grievance, squarely focused on the issue of resignation, and did not cite the
article of the collective agreement dealing with discrimination. It was
reasonable for the adjudicator to have concluded that the grievance was
primarily focused on the issue of resignation and that any reference to the Canadian
Human Rights Act was inextricably linked to the issue of resignation and,
therefore, that she was without jurisdiction pursuant to section 211 of the PSLRA.
[30]
The respondent also argues that it was open to
the adjudicator to render a decision in the alternative, finding that based on
the evidence the employer had satisfied its duty to accommodate to the point of
undue hardship. The evidence indicated that there was no likelihood of the applicant
returning to work in a reasonably foreseeable future and at the point of resignation
he had been off work for over ten years. The respondent notes that in order to
succeed in his application for judicial review, the applicant must establish
that the adjudicator’s decision on both jurisdiction and undue hardship were
unreasonable.
Analysis
[31]
Section 211 of the PSLRA ousts an
adjudicator’s jurisdiction to hear a grievance with respect to a termination of
employment under the PSEA. When considered on its face, the applicant’s
grievance is centered on his allegations that he was forced to take medical
retirement. He states, “I grieve that I was forced by PWGSC to take medical
retirement in order to maintain an income while I await a kidney transplant”.
The applicant does make a reference to his disability, undue hardship, and
discrimination, though they are always tied to his loss of employment. He
states in his grievance, “My temporary disability is the reason for my forced
resignation and it would not have been an undue hardship to PWGSC to let
matters stand until my transplant. My loss of employment is directly
attributable to my disability and, as such, I have suffered discrimination in
violation of my collective agreement and the Canadian Human Rights Act.”
Moreover, the applicant indicates May 30, 2009 as the date on which the act, omission
or other matter giving rise to the grievance occurred. The applicant requests
that he be reinstated on leave without pay until he has received his transplant
and can return to work. If the grievance had related to the respondent’s
failure to accommodate the applicant in the years leading up to the
resignation, one would expect that this would be reflected in the language of
the grievance. Given all of these indications, it was open to the arbitrator to
find that on its face the pith and substance of the applicant’s grievance
related to a resignation under section 63 of the PSEA.
[32]
While it is true that the wording of a grievance
should not be the only thing that ought to be considered by an adjudicator when
characterizing a grievance, the Court disagrees with the applicant’s contention
that the adjudicator took an overly mechanical or narrow approach in the
present case. The adjudicator made reference to contextual factors other than
the language of the grievance that supported her finding. She noted that even
though the grievor had an experienced union representative assisting him, he
chose to only file a grievance one month after his resignation, rather than in
a timely manner to contest the respondent’s alleged failure to accommodate in
the years leading up to this event. The adjudicator also found that while the
applicant had submitted evidence detailing the events leading up to the
resignation, this was not enough to alter the nature of his grievance as these
events were inextricably tied to his resignation. Based on both the wording of
the grievance as well as other contextual indicators, the arbitrator came to a
reasonable conclusion that the “crux” of the applicant’s grievance was him
allegedly being forced into medical retirement.
[33]
The adjudicator recognized that according to Burchill,
it was not open to the applicant to recharacterize his grievance so that it
would be open to adjudication. This Court affirmed the importance of holding an
applicant to their original grievance in Boudreau v Canada (Attorney
General), 2011 FC 868 at para 20 where Justice Martineau stated that “given the different treatment awarded to
adjudicable and non-adjudicable matters under section 209 of the Act, an
essential element of this system is that employees are not permitted to alter
the nature of their grievances during the grievance process or upon referral to
adjudication.” The adjudicator was rightly concerned with ensuring that the
nature of the grievance remained the same throughout the process.
[34]
The Court fails to see any reviewable
error in the adjudicator’s reasoning. She addressed the arguments
of both parties and thoroughly explained why she decided that she did not have
jurisdiction to adjudicate the grievance under the PSLRA since she had
found that the grievance was properly characterized as relating to the
applicant’s resignation. The arbitrator’s decision was grounded on the evidence
before her and falls within a range of possible outcomes in accordance with the
facts and law (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47).
[35]
In the event the Court is wrong on the first issue,
it will decide on the second one. The adjudicator found that even if she had
jurisdiction in the present case, the employer had accommodated the applicant
to the point of undue hardship. She conducted an analysis of the specific facts
in this case when making an evaluation of the accommodation provided by
the employer. She noted that the applicant had been on leave without pay for 10
years and had been awaiting a kidney transplant for 14 years at the date of the
hearing. She added that there had also been several attempts made to
accommodate the applicant and evidence showed that some seemed to come
quite close to fruition, though each time it was the applicant who needed to
postpone these possibilities. The adjudicator found that it was not
unreasonable for the employer to require the applicant to choose one of
the options considering that at the time of the hearing there was still no
possibility that he could return to work or any indication of when he
might be able.
[36]
In Hydro-Québec v Syndicat des employé-e-s de
techniques professionnelles et de bureau d’Hydro-Québec, section locale 2000
(SCFP-FTQ), 2008 SCC 43 at paras 17-18, the Supreme Court of Canada
clarified the duty of an employer to accommodate an employee with a chronic
illness preventing him or her to report to work, stating that:
If a business can,
without undue hardship, offer the employee a variable work schedule or lighten
his or her duties — or even authorize staff transfers — to ensure that the
employee can do his or her work, it must do so to accommodate the employee. …However,
in a case involving chronic absenteeism, if the employer shows that, despite
measures taken to accommodate the employee, the employee will be unable to
resume his or her work in the reasonably foreseeable future, the employer will
have discharged its burden of proof and established undue hardship.
Thus, the test for undue hardship is not
total unfitness for work in the foreseeable future. If the characteristics
of an illness are such that the proper operation of the business is hampered
excessively or if an employee with such an illness remains unable to work for
the reasonably foreseeable future even though the employer has tried to
accommodate him or her, the employer will have satisfied the test.
[37]
In the present instance, at the time of the
hearing, the applicant remained unable to return to work. Although there was
evidence that he would be able to return to work quite soon after he received a
kidney transplant, the timing of the transplant remained entirely speculative.
It was reasonable then for the adjudicator to find that the applicant was
unable to work for the foreseeable future and to base her assessment of
accommodation on this fact. Considering the length of time that the applicant
had been on leave without pay and the evidence that the employer had
attempted to accommodate on several instances, it was reasonable for the
adjudicator to find that the employer had accommodated the applicant to the
point of undue hardship. The intervention of this Court is therefore
unwarranted.
[38]
The parties agreed at the hearing that there
was no issue as to costs.
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