Docket: T-1717-13
Citation:
2015 FC 271
Vancouver, British Columbia, March 3, 2015
PRESENT: The
Honourable Madam Justice Heneghan
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Docket: T-1717-13
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BETWEEN:
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NICK MARSZOWSKI
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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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REASONS FOR JUDGMENT AND JUDGMENT
[1]
Mr. Nick Marszowski (the “Applicant”) seeks
judicial review of a decision made by Mr. Ron Hallman, President of the
Canadian Environmental Assessment Agency (the “CEAA”). In that decision, dated
September 16, 2013, Mr. Hallman dismissed, in part, a grievance filed by the
Applicant pursuant to the Public Service Labour Relations Act, S.C.
2003, c.22 s. 2 (the “Act”), which is Part I of the Public Service
Modernization Act, S.C. 2003 c. 22.
[2]
The Attorney General of Canada (the “Respondent”)
represented the decision-maker pursuant to subsection 303(2) of the Federal
Courts Rules, SOR/98-106 (the “Rules”).
I.
BACKGROUND
[3]
The details below are taken from the Tribunal Record
and the affidavits filed by the Applicant, and Johanne Gagnon, a paralegal with
the Treasury Board Secretariat, Legal Services, for the Respondent.
[4]
The Applicant is employed with the CEAA. On May
7, 2012 he filed a harassment complaint against Mr. Dean Stinson O’Gorman. The
complaint raised allegations of harassment by Mr. Stinson O’Gorman towards the
Applicant from August 2010 to May 2012.
[5]
The Applicant is an EC-04 Policy Analyst who
began working with the CEAA in May 2008, in the Economic and Social Science
Service Group.
[6]
Mr. Stinson O’Gorman joined the CEAA in August
2010 as Acting Director of Policy Analysis. He was appointed Director of Review
Panels in April 2011.
[7]
Between August 2010 and May 2012 the Applicant
worked under the supervision of Mr. Stinson O’Gorman in various roles across
several divisions, including Cabinet Affairs, Aboriginal Affairs and Review
Panels.
[8]
The Applicant alleges that during this time, Mr.
Stinson O’Gorman engaged in a pattern of conduct towards him that rises to the
level of harassment.
[9]
The alleged harassment began in August 2010,
while the Applicant was working on a temporary assignment in Cabinet Affairs. The
Applicant alleges that when he advised Mr. Stinson O’Gorman that he was only
working in Cabinet Affairs until September, Mr. Stinson O’Gorman asked the
Applicant if he was “trying to pull a fast one on
[him]?” According to the Applicant, this incident marked the beginning
of Mr. Stinson O’Gorman’s negative attitude towards him.
[10]
The Applicant also claims that while he was
working in Cabinet Affairs, Mr. Stinson O’Gorman made requests of him that
implied he was not competent. In November 2010, Mr. Stinson O’Gorman expressed
reservations about a new assignment for the Applicant because he believed that
the Applicant did not have the right attitude at work.
[11]
In November 2011, while working on an assignment
with the Review Panels division at the Department of Aboriginal Affairs, the
Applicant became aware that he was not being invited to weekly team meetings
held by Mr. Stinson O’Gorman.
[12]
On December 14, 2011, Mr. Stinson O’Gorman met
with the Applicant and advised him that his assignment in Review Panels would
not be extended. When the Applicant asked Mr. Stinson O’Gorman why his
assignment was being terminated early, Mr. Stinson O’Gorman allegedly replied
that he was not going to waste resources on him.
[13]
On January 5, 2012 the Applicant made an access
to information and privacy request (“ATIP request”) pursuant to the Privacy
Act, R.S.C. 1985 c. P-21. Prior to making this request, the ATIP
coordinator, Karuna Gomes, advised the Applicant that Mr. Stinson O’Gorman had
asked her to ask the Applicant if he understood the implications of making such
a request.
[14]
Included in the results of the ATIP request was an
email dated October 18, 2011 between Mr. Stinson O’Gorman and a colleague, Kurt
Saunders. In that email Mr. Stinson O’Gorman asked, in relation to the
Applicant’s request for vacation leave, whether they should “suspend [their] liberal elitist sensibilities to accommodate
rednecks?”
[15]
The Applicant initiated a formal harassment
complaint in May 2012 pursuant to the Treasury Board Secretariat’s Policy on
the Prevention and Resolution of Harassment, (the “TBS Policy”). Quintet
Consulting Corporation (the “Investigator”) was retained to investigate the
complaint.
[16]
The Investigator’s report (the “Report”) dated May
31, 2013, identified six grounds for the complaint as follows:
- Mr. Stinson O’Gorman
demeaned the Applicant;
- Mr. Stinson
obstructed the Applicant’s opportunity to work in Aboriginal Affairs;
- Mr. Stinson
O’Gorman set the Applicant up for failure;
- Mr. Stinson
O’Gorman insulted the Applicant in an email;
- Mr. Stinson
O’Gorman threatened the Applicant in relation to his ATIP request; and
- Mr. Stinson
O’Gorman made false accusations about the Applicant so that he could hire
a friend.
[17]
The Report concluded that grounds 1, 2, 3 and 6
were unfounded, but that there was merit to grounds 4 and 5 of the Applicant’s
complaint.
[18]
On July 10, 2013, the Applicant received a copy
of the Report and the decision of Mr. Yves Leboeuf, Vice President, Operations
Sector of CEAA. In his decision, Mr. Leboeuf accepted the conclusion that
grounds 1, 2, 3 and 6 were unfounded, but rejected the conclusion that grounds
4 and 5 constitute harassment. He found that the incidents were not part of a
pattern of conduct rising to the level of harassment. He also found that the
Applicant had not established that the conduct had any lasting impact on him.
[19]
On July 10, 2013, the Applicant grieved Mr.
Leboeuf’s decision on the basis that the employer did not assess allegations
made in his harassment complaint based on the six factors identified in the TBS
Policy and that the decision had overruled the Investigator’s conclusions. For
corrective action, he asked that the allegations be reassessed, that his sick
leave be restored, and “to be made whole.”
[20]
Pursuant to section 40.17 of the Economics and
Sciences Services (EC) Collective Agreement, the grievance proceeded to a final
grievance hearing held by CEAA President Ron Hallman on August 22, 2013. The
Applicant was represented by his counsel, Mr. Paul Champs. Mr. Sylvan Campeau,
Manager, Human Resources, also attended. The Applicant presented a “Summary of
Points,” disputing Mr. Leboeuf’s conclusions.
II.
DECISION UNDER REVIEW
[21]
Mr. Hallman’s decision, dated September 16,
2013, states that he reviewed the Report, Mr. Leboeuf’s July 10, 2013 decision,
as well as several policy documents, including the TBS Policy, the Policy on
Harassment and Prevention and Resolution, the Directive on the Harassment
Complaint Process, and the Investigation Guide for the Policy on Harassment
Prevention and Resolution Directive on the Harassment Complaint Process (“TBS
Investigation Guide”). He also considered the information submitted by Mr. Champs
at the grievance hearing.
[22]
Mr. Hallman noted that neither party challenged
the facts gathered in the Report; as such, he accepted that the Report provided
an accurate description of events.
[23]
Mr. Hallman said that according to TBS Policy,
the delegated complaints manager has discretion to decide whether to accept the
Investigator’s conclusions or not. If the complaints manager does not accept
the Investigator’s conclusions, then written rationale should be provided to
the parties. Mr. Hallman was satisfied that Mr. Leboeuf had provided a satisfactory
written rationale justifying his decision.
[24]
Mr. Hallman was also satisfied that Mr.
Leboeuf’s decision was made in good faith, in accordance with the applicable
policy documents, including the six factors from the TBS Policy referenced by
Mr. Marszowski in his grievance complaint.
[25]
Notwithstanding his findings regarding Mr.
Leboeuf’s decision, Mr. Hallman accepted Mr. Marszowski’s claim that the incidents
impacted his sick days. He directed the Agency to credit 150 hours (20 days) of
sick leave to Mr. Marszowski’s leave balance. He directed Human Resources to
schedule a harassment awareness and prevention presentation for CEAA’s
Executive Committee. He confirmed that there would be no reprisal against Mr.
Marszowski as a result of the grievance process.
[26]
Mr. Hallman could not consider Mr. Marszowski’s
request to “be made whole” via a promotion,
because such an appointment would be inconsistent with the Public Service
Employment Act, S.C. 2003, c. 22, ss. 12, 13, which is Part III of the Public
Service Modernization Act, supra, the Public Service Commission’s
Appointment Framework and principles of merit, fairness, transparency and
representativeness.
III.
SUBMISSIONS
The Applicant’s Submissions
[27]
The Applicant argues that he suffered a breach
of procedural fairness because he was deprived of the opportunity to make
submissions about the Report before Mr. Hallman. Mr. Hallman was the final
decision-maker who accorded deference to Mr. Leboeuf and the Applicant submits
that he should have been given the opportunity to present arguments about the
Report to Mr. Leboeuf.
[28]
The Applicant further argues that the decision
of Mr. Hallman was unreasonable. He specifically challenges the finding that
there was no harassment and alleges that the decision-maker failed to consider
the pattern of conduct.
[29]
The Applicant further argues that the
decision-maker unreasonably found that there was no lasting impact or the
behaviour upon the Applicant and that this finding was essential to finding
harassment.
[30]
Finally, the Applicant submits that Mr. Hallman
unreasonably deferred to the Report and the conclusions of Mr. Leboeuf.
The Respondent’s Submissions
[31]
The Respondent argues that in alleging a breach
of procedural fairness, the Applicant is confusing the determination made by Mr.
Leboeuf, the delegated complaints manager, and the decision made by Mr.
Hallman, as the final decision-maker in the grievance process.
[32]
The Respondent argues that the Applicant’s
complaint was initiated and pursued according to the TBS Policy. Following the
presentation of the complaint, an investigation ensued. The parties were
provided with a preliminary version of the Report and given the opportunity to
provide written comments before the final version of the Report was sent to the
delegated manager, Mr. Leboeuf. The TBS Policy does not provide complainants
with a right to make further submissions directly to the delegated manager.
[33]
The Respondent argues that the Applicant was
dealt with fairly at all stages of the process, including at the final
grievance hearing where he had the opportunity to make oral and written
submissions and where he was represented by counsel.
[34]
The Respondent submits with respect to the
merits of the decision, that the final decision-maker reasonably concluded that
there was no harassment. Mr. Hallman reasonably accepted the conclusion of Mr.
Leboeuf and did not blindly accept those findings since he allowed the
Applicant’s grievance in part.
IV.
DISCUSSION AND DISPOSITION
[35]
The first matter to be addressed is the
applicable standard of review.
[36]
Questions of procedural fairness are reviewable
on the standard of correctness; see the decision in Sketchley v. Canada (Attorney General), [2006] 3 F.C.R 392 at paragraph 47 (F.C.A.).
[37]
The decision on the grievance is reviewable on
the standard of reasonableness since it involves the interpretation and
application of the TBS Policy; see the decision in Tibilla v. Canada
(Attorney General), 2011 FC 163 at paragraphs 17-18.
(1)
Was there a breach of
procedural fairness?
[38]
In my opinion, the Applicant has not shown any breach
of procedural fairness. In his written submissions, he mistakenly identified
the final decision-maker as Mr. Leboeuf, when in fact Mr. Hallman made the
decision that is the subject of judicial review.
[39]
The Applicant participated in an oral hearing
before Mr. Hallman, with the assistance of Counsel. In this hearing, the
Applicant presented a written “Summary of Points”,
which was considered by that decision-maker.
[40]
The content of the duty of fairness varies according
to the circumstances; see the decision in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraphs 21
to 27.
[41]
One factor that is relevant in assessing the
duty of fairness is the legitimate expectations of the parties. In this case,
those legitimate expectations were set by the TBS Policy which provides that
the parties can “expect to review their statement
as recorded by the investigator, to confirm its accuracy, prior to the final
report being submitted.”
[42]
The Applicant submitted a written complaint and
responded to the preliminary report. He had an opportunity to present his case.
There was no legitimate expectation that he would be allowed to make further
submissions to Mr. Leboeuf after the final Report was filed.
[43]
The Applicant argued that the importance of the interest
at stake, that is harassment affecting his employment, favours a higher degree
of procedural fairness as discussed in Potvin v. Canada (Attorney General)
(2005), 280 F.T.R. 93 at paragraphs 18 and 19 and Kane v. Bd. of Governors
of U.B.C., [1980] 1 S.C.R. 1105 at page 1113.
[44]
However, in this case, the impact on the
Applicant’s career is not of the same degree as in Kane, supra. In the
present case, the Applicant’s right to continue his employment was not
affected.
[45]
The Applicant’s right to comment on the Report before
it was forwarded to Mr. Leboeuf was in accordance with the TBS Policy and the
required degree of procedural fairness was met.
[46]
Turning now to the Applicant’s argument that Mr.
Leboeuf erred in imputing a requirement of “lasting
impact” into the definition of harassment, I note that Mr. Leboeuf did
not address the evidence that the alleged harassment affected the Applicant, causing
him to take time off on sick leave.
[47]
However, Mr. Leboeuf’s decision is not under
review. Mr. Hallman accepted the grievance, in part, and he credited some sick
leave to the Applicant. His decision was reasonable in this regard.
(2)
Did Mr. Hallman err in
deferring to the conclusions of Mr. Leboeuf?
[48]
Although his Notice of Application raises this
issue of deference as a ground for review, the Applicant did not explicitly
raise arguments on this point in his written submissions.
[49]
However, Mr. Hallman was in the position to
review all the evidence, including the Report, and to entertain the submissions
of the Applicant. Investigation reports are considered an extension of the
agency for which they are prepared; see the decision in Sketchley, supra.
Investigation reports can be considered part of the final decision where the
decision references the report; see the decision in Westbrook v. Canada
Revenue Agency, 2013 FC 951 at paragraph 13.
[50]
In discerning the reasons of a decision-maker, a
court may look at the record to assess the reasonableness of the outcome; see
the decision in Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708 at paragraph 15. Based
on the record before him, Mr. Hallman’s final decision was reasonable.
[51]
There is no basis to grant any relief to make
the Applicant “whole”, he has received a credit of sick time and otherwise, he
remains employed.
[52]
In the result, the Application for Judicial
Review is dismissed.
[53]
Although the Respondent seeks costs, in the
exercise of my discretion respecting costs, pursuant to Rule 400 (1) of the
Rules, I make no order as to costs.
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