Docket: T-1646-14
Citation:
2015 FC 1058
Ottawa, Ontario, September 11, 2015
PRESENT: The
Honourable Mr. Justice Beaudry
|
BETWEEN:
|
|
JARRETT DERKSEN
|
|
Applicant
|
|
and
|
|
ATTORNEY
GENERAL OF CANADA
|
|
Respondent
|
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 rendered June 18, 2014 by an adjudicator of the Public Service
Labour Relations Board [PSLRB] (now the Public Service Labour Relations and
Employment Board) [PSLREB] [the adjudicator]. In her decision, she dismissed
the Applicant’s grievances regarding his suspension without pay and the
subsequent termination of his employment.
[2]
The application for judicial review shall be
dismissed for the reasons below.
I.
Background
[3]
The Applicant was a correctional officer [CX] at
Kent Institution, a maximum security penitentiary in British Columbia, from
March 18, 2009 until August 24, 2012, when Correctional Service Canada [CSC]
suspended him without pay then subsequently dismissed him.
[4]
In the summer of 2012, the Applicant was
investigated for his role in two separate alleged incidents of excesses use of force on inmate “Z” (incidents on July 20 and 21, 2012).
[5]
On August 11, 2012, the Applicant witnessed
another incident of alleged use of excessive force by CX, Mark Legere, on
inmate “B”.
[6]
He was also investigated for facilitating two
assaults on inmate “N” by another inmate on August 12, 2012.
[7]
The Applicant allegedly covered up these
incidents in collusion with other officers by hiding the incidents in omitting
key details in the required Officer Statement/Observation Reports [OSORs]. He
specifically met other officers outside Kent Institution on two occasions to
discuss how they subsequently would report the events.
[8]
CSC suspended the Applicant without pay on
August 24, 2012 after hearing about the August events. CSC accused the
Applicant of facilitating the assaults against inmate “N”. CSC later learned of
the July events.
[9]
Three investigations were launched. Mary Danel
headed the investigation into the events of July 20, Brian Podesta those of
July 21 and Laura Contini those of August 11 and 12, 2012.
[10]
On September 11, 2012, the Applicant filed two
unsuccessful grievances regarding his suspension without pay.
[11]
CSC terminated the Applicant’s employment on
March 13, 2013, effective retroactively to August 24, 2012. On March 20, 2013,
the Applicant filed a grievance challenging his employment termination. The
grievance was denied by CSC then referred to adjudication.
II.
Decision under review
[12]
The adjudicator heard the grievances of both the
Applicant and CX, Mark Legere, whose employment was also terminated in relation
to the August 2012 events.
[13]
In her decision, she stated that she agreed with
the grievors’ statement that the Contini report was biased. The Danel and
Podesta reports were deemed thorough and in line with the video footage of the
events that were seen and analysed by the adjudicator.
[14]
She heard many witnesses, including the
Applicant himself. She notably refused that John McKay, an expert witness for
the Applicant; give his opinion on the use of force displayed by the Applicant
on July 20 and 21, 2012. Mr. McKay instead was accepted to “testified as an expert on the use of force in policing, on
use of force investigations and on the use of force within the context of the
Canadian Criminal Code” [Adjudicator’s decision at para 123].
[15]
The adjudicator allowed CX Legere’s grievances
in part and ordered that he be reinstated, as the decision to terminate his
employment was “clearly unreasonable” [Adjudicator’s
decision, para 248].
[16]
She concluded that the decision to terminate the
Applicant’s employment was reasonable, finding that he violated Commissioner’s
Directive 568-1 and the Code of Professional Conduct “by failing to report an incident, by trying to disguise
information related to a use of force in which he was involved and by
mistreating an inmate in his custody” [Adjudicator’s decision, para
250].
[17]
The adjudicator further concluded that the
employer had authority to retroactively set the termination date to the date of
suspension without pay, that the investigations were administrative (and not
disciplinary) and that the Applicant’s grievance concerning his suspension
without pay was moot [Adjudicator’s decision, para 254].
III.
Issues
[18]
The Court is of the view that the relevant
issues in this case are as follow:
(1)
What is the appropriate standard of review
applicable to the adjudicator’s decision?
(2)
Was there a breach of procedural fairness by the
adjudicator?
(3)
Did the adjudicator err in dismissing the
Applicant’s Termination Grievance?
IV.
Standard of Review
[19]
The Applicant submits that the appropriate
standard of review for procedural fairness is correctness. The Respondent
argues that reasonableness is applicable.
V.
Analysis
(1)
What is the
appropriate standard of review applicable to the adjudicator’s decision?
[20]
The Applicant maintains that the adjudicator’s
decisions on admissibility of evidence and on the lack of a written record
should be quashed because these are grounds that attracts procedural fairness
which warrants a correctness standard of review, as stated in Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43 [Khosa].
[21]
The Respondent on the other hand, notes that
reviewing Courts have already established reasonableness as the applicable
standard with regards to admissibility of evidence, and that both the Federal
Court and the Federal Court of Appeal have consistently ruled accordingly. He
cites Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] for the
same proposition. The Respondent underscores that Section 233 of the Public
Service Labour Relations Act, SC 2003, c 22, s 233 [PSLRA] is a
strong privative clause that highlights the recognition of the adjudicator’s
expertise in matters such as the ones involved here.
[22]
The Respondent further argues that the question
of admissibility of expert evidence is reviewable on reasonableness Rhéaume
v Canada (Attorney General), 2003 FCA 188.
[23]
The Applicant submits that the adjudicator
violated his right to be heard. Procedural fairness violations are generally
regarded as jurisdictional issues and reviewed on the standard of correctness.
[24]
In Canada (Attorney General) v Amos, 2011
FCA 38, the Federal Court of Appeal found s 233 PSLRA to be a strong
privative clause, requiring deference when reviewing decisions made by an
adjudicator. The PSLRA is a specialized Tribunal, and its adjudicators
are experts in dealing with federal labour disputes. Moreover, the termination
of a federal public servant clearly falls within the jurisdiction of the PSLRA.
[25]
In this case, the adjudicator had to assess and
analyse the evidence before drawing her conclusions. High deference is owed and
it is in the province of the adjudicator to determine such issues. Therefore,
the Court is of the opinion that the standard of
reasonableness should be applied to review the adjudicator’s decision as a
whole.
(2)
Was there a breach of
procedural fairness by the adjudicator?
[26]
The Applicant contends that the adjudicator
committed a breach of procedural fairness in refusing John McKay’s expert
testimony on the Applicant’s use of force on the July 20 and 21 incidents;
violated his right to be heard in not recording the proceedings, depriving him
of his ability to review the decision and by not discussing the Applicant’s
credibility for the July use of force incidents.
[27]
Mr. McKay was permitted to testify as to the
general theory of use of force, but not to the Applicant’s specific use of
force for the incidents of July 20 and 21, 2012, whereas several witnesses for
the Respondent gave their opinion on the matter. Thus, the adjudicator only
heard the Respondent’s version of the events and excluded the Applicant’s
relevant evidence (Université du Québec à Trois-Rivières v Larocque,
[1993] 1 S.C.R. 471 [UQTR]).
[28]
The Applicant adds that by not recording her
decision about the admissibility of Mr. McKay’s report, the adjudicator
prevented this Court from properly reviewing her decision (Applicant’s
memorandum of fact and law, para 43).
[29]
The Applicant admits that the Supreme Court has
held that there is no general requirement for administrative tribunals to
provide a transcript or record of their proceedings but submits that, in this
case, the Court has an inadequate record upon which to base its decision for
review (Canadian Union of Public Employees, Local 301 v Montreal (City),
[1997] 1 S.C.R. 793 [CUPE]). Both parties submitted contradictory
affidavits for the adjudicator’s oral reasons in refusing Mr. McKay’s testimony
in part, further confirming lack of reviewability.
[30]
The adjudicator found the Applicant credible in
relation to the events of August 11 and 12, 2012, but failed to make a similar
finding for the events of July 20 and 21, 2012. The Applicant argues that his
credibility on these two incidents was central and determinative. That failure
constitutes a breach of natural justice (Yu v Canada (Attorney General),
2011 FC 38). He adds that the adjudicator was bound to state in clear and
unmistakable terms why she preferred the Respondent’s evidence over the
Applicant’s regarding the July events (Fuentes v Canada (Minister of
Citizenship and Immigration), [2003] 4 FCR 249).
[31]
The Respondent does not agree. He states that
the exclusion of part of Mr. McKay’s expert testimony was well decided because
it offended the rule of necessity R v Mohan, [1994] 2 S.C.R. 9. Moreover,
Mr. McKay was not properly qualified to give evidence for the use of force in
correctional institutions.
[32]
The Respondent argues that arbitrators are
regularly asked to determine whether a grievor has used excessive force, and generally
do so without the need of expert testimony. Similarly, arbitrators routinely
review video evidence without other assistance.
[33]
As for the absence of written reasons for the
interlocutory decision, the Respondent notes that such decisions are normally
issued orally, and are not subject to review (Agnaou v Canada (Attorney
General), 2014 FC 850). The record is sufficiently complete to allow the
Court to review the decision. As long as the decision viewed as a whole is
reasonable it is not necessary for the decision maker to comment or make
observations on every elements submitted by the parties (Newfoundland and
Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board), 2011
SCC 62 [Newfoundland Nurses]).
VI.
Analysis
(a) Refusing to accept John McKay as an expert
for the July incidents.
[34]
The Applicant relied heavily on UQTR, in which
Lamer CJ wrote:
For my part, I am
not prepared to say that the rejection of relevant evidence is automatically a
breach of natural justice. A grievance arbitrator is in a privileged position
to assess the relevance of evidence presented to him and I do not think it is
desirable for the courts, in the guise of protecting the right of parties to be
heard, to substitute their own assessment of the evidence for that of the grievance
arbitrator. It may happen, however, that the rejection of relevant evidence has
such an impact on the fairness of the proceeding, leading unavoidably to the
conclusion that there has been a breach of natural justice. [emphasis added]
[35]
The part of Mr. McKay’s testimony excluded by
the adjudicator was not crucial to resolving the issue of whether or not the
applicant had acted inappropriately. The adjudicator was free to determine if
the use of force by the Applicant on July 20 and 21 was excessive. She was not
bound by the opinions given by the witnesses for the Respondent. In fact, she
expressly made findings of fact based on her own independent appreciation of
the video footage of the July events.
[36]
No expert opinion was required to determine
whether or not the conduct of the Applicant was consistent with CSC guidelines
or whether it was appropriate within a maximum security penitentiary’s
segregation unit. It was in the adjudicator’s purview to make such findings.
[37]
The Applicant cites Camaso Estate v Egan,
2013 BCCA 6, para 71, for the proposition that expert evidence was needed to
properly assess the July incidents. In that case, expert evidence was crucial
because the facts (involving a police officer’s use of his firearm and attempt
to arrest a person who was a threat to public safety) went beyond ordinary
experience. The facts in the case at bar are completely different. The knee
strikes by the Applicant to the head of the inmate seen through the video footage
are significantly evident to justify the adjudicator’s conclusions that the Applicant
applied excessive use of force. She describes in great details what she has
seen on the videotapes of July 20 and 21, 2012 incidents, (Adjudicator’s
decision, paras 246 and 249).
[38]
Therefore, the adjudicator cannot be faulted for
not accepting Mr. McKay’s testimony as an expert for the July incidents.
(b) Decision reviewable despite a lack of
recordings
[39]
The proceedings were not recorded, as was usual
for the then PSLRB and is still usual for the PSLREB. Nonetheless, the Court is
satisfied that the record is sufficiently complete to understand the
adjudicator’s decision.
[40]
The following part of the adjudicator’s reasons
references her determination on Mr. McKay’s testimony:
[123] John McKay
testified as an expert on the use of force in policing, on use-of-force
investigations and on the use of force within the context of the Canadian
Criminal Code […] on behalf of the grievors. Following examination by both
parties, and submission of his resume, Mr. McKay was qualified by me as an
expert in this area.
[41]
The affidavits submitted by the parties are not
contradictory as the Applicant suggests. Patricia Demers (for the Respondent)
states that Mr. McKay’s testimony was excluded in part because he was not
specialized in correctional facilities, because his opinion evidence was not
necessary under the Mohan test and because assessing use of force was within
the ambit of the adjudicator’s common experience. Corinne Blanchette’s (for the
Applicant)
in reviewing her notes, indicates that the
adjudicator stated that it was her job to make conclusion of fact, and that was
a determination for her to make whether or not the use of force deployed by the
Applicant on July 20 and 21, was excessive or not (Applicant’s Record, Volume 2,
paras 59 and 60).
[42]
Both shed light on a key point of the
adjudicator’s rationale: that she did not deem Mr. McKay’s opinion evidence to
be necessary for making her findings of fact on the July incidents.
[43]
Therefore, the Court cannot accept the Applicant’s
argument concerning a lack of recording.
(c) The adjudicator did not have to explicitly
make a finding of credibility
[44]
The cases referred to by the Applicant to
suggest that the adjudicator needed to make an explicit finding of credibility
are all immigration cases. They are fact driven and of little use in this
matter.
[45]
The adjudicator in the case at bar weighed the
evidence. It is relevant to note the last sentence at para 246 of the
adjudicator’s decision “Mr. Derken’s application of
force, as evidenced on the videos, posed a threat to his safety and that of
others by further agitating the inmate, causing him to struggle against the
officers’ attempt to control him”. This conclusion is justified and
based on the evidence.
[46]
The adjudicator’s description of the Applicant’s
knee strikes (Adjudicator’s decision, para 249, last two sentences “…The knee strikes he used were not taps, as described by the
grievor’s representative. It is evident from the videotape that Mr. Derksen
brought his leg back, fully extended it and lifted it off the floor in order to
bring it forcefully into the inmate’s side” can easily be seen on the
video. The adjudicator was right to conclude that “…
Mr. Derksen has not demonstrated a true understanding of the potential
consequences of his actions and would no doubt resort to these tactics if faced
with similar circumstances in the future, which would put the institution, the
inmates and his fellow coworkers at risk…” (Adjudicator’s decision, para
250).
[47]
In such circumstances, the adjudicator was not
obliged to further discuss the Applicant’s credibility for the July incidents.
(3)
Did the adjudicator
err in dismissing the Termination Grievance?
[48]
The adjudicator correctly instructed herself regarding
her jurisdiction in the present instance.
[49]
The Court agrees with the Respondent that she
provided detailed reasons as to why she believed that the Applicant’s conduct
gave rise to disciplinary measures, and why these measures were not unfounded.
[50]
Her decision falls within the range of possible
acceptable outcomes that are defensible on both facts and law (Dunsmuir
at para 47).
[51]
Here, the adjudicator dismissed the Applicant’s
Termination Grievance. She found that the Applicant had been involved in
several incidents that adversely affected his relationship with his employer in
a manner that gave his employer just cause to terminate him. That conclusion is
reasonable.
[52]
The evidence presented to the adjudicator was
extensive. Among other things, she reviewed the minutes of the Applicant’s
disciplinary hearing, his OSOR on the incidents, the standards of professional
conduct for CSC, the Commissioner’s Directives on use of force, mandatory
training documents, the investigation reports and the investigation handbook,
reports on the inmate involved in the incidents, and videos of the incidents.
She heard the Applicant’s testimony. Moreover, she visited the correctional
facility herself and heard an expert on the theory of use of force.
[53]
The adjudicator particularly relied on the
videotapes evidence also available to the Court. The videotapes clearly
document the Applicant’s excessive use of force on an inmate on July 20 and 21,
2012.
[54]
Regarding the August 11 and 12, 2012 events, the
adjudicator observed that several CXs failed to report the incidents and that
not all of them were disciplined equally. The Applicant admitted to being
involved in collusion and to planning not to report the incidents with his
fellow officers.
[55]
She concluded that the sum of all the incidents
constituted misconduct that warranted discipline.
[56]
The reasons given for the adjudicator’s decision
are lengthy. She begins by a thorough review of the evidence before her. The
precision in which the adjudicator relates the events demonstrate a full
command of the case. Parties’ submissions were heard, and weighed. She takes
care to distinguish the circumstances which led to sanctioning the different
CXs involved in the many incidents reported. She duly addresses the bias in the
Contini report and states clearly how this affects her final decision.
[57]
Finally, the adjudicator’s decision to dismiss
for mootness the Applicant’s grievance for suspension without pay is not
unreasonable considering the facts of this case.
[58]
The parties agreed that no costs would be
awarded.
Email this Content