Date: 20120625
Docket:
A-238-11
Citation:
2012 FCA 193
CORAM: DAWSON J.A.
GAUTHIER
J.A.
STRATAS
J.A.
BETWEEN:
GEORGE EDWARD BOULOS
Applicant
and
PUBLIC
SERVICE ALLIANCE OF CANADA
Respondent
REASONS FOR JUDGMENT
GAUTHIER J.A.
[1]
Mr.
George Edward Boulos worked as an Income/Excise Tax auditor at the Canada
Revenue Agency (the employer) between November 2001 and September 24, 2008.
Starting in 2005, a series of events led to the filing of six grievances
against the employer. Having lost confidence in his exclusive bargaining agent,
Public Service Alliance of Canada (PSAC), Mr. Boulos currently pursues
these grievances alone.
[2]
The
application before us does not relate to the merits of any of these grievances.
Rather, it relates to Mr. Boulos’ complaint against PSAC under paragraph
190(1)(g) of the Public Service Labour Relations Act, S.C. 2003, c. 22
(the Act), alleging an unfair labour practice within the meaning of
section 185 of the Act, more particularly that the PSAC, including its
component Union of Taxation Employees (UTE) that Mr. Boulos initially dealt
with, was seriously negligent and exhibited bad faith in the way it
investigated and analysed his grievance files and later represented him until
he decided to simply go on his own.
[3]
The
said complaint was dismissed by a member of the Public Service Labour Relations
Board (the Board) and Mr. Boulos now seeks judicial review of that 27-page
decision. Mr. Boulos submits that:
·
the
Board failed to properly consider all the evidence in respect of his allegation
that the PSAC’s serious negligence had an impact on the jurisdictional
challenge raised by the employer in the grievance 008 -1241-70043979. As a
result, it failed to issue a remedial order that would prevent any negative
decision on such objection.
·
the
Board was biased;
·
the
Board failed to ensure that certain sensitive information contained in PSAC’s
submissions would continue to be kept confidential until all his grievances
were litigated.
[4]
It is trite law
that the standard of review applicable to the Board’s decision on a bargaining
agent’s duty of fair representation is reasonableness [Grain Services Union
(ILWU-Canada) v. Friesen, 2010 FCA 339, 414 N.R.171 at paragraph
31,
McAuley
v. Chalk River Technicians and Technologists Union, 2011 FCA 156, 420 N.R. 358, paragraph 13].
[5]
During
the hearing, Mr. Boulos submitted that the Court should first focus on the
various deficiencies and flaws in the reasons. In his view, those deficiencies
and flaws established that there was a breach of procedural fairness (bias) or
that the decision was unreasonable.
[6]
The
Court also understood him to say that in addition to this, the Court should
only review the reasonableness of the Board’s conclusion in respect of PSAC’s
conduct which could have an impact on the jurisdictional challenge in his
grievance number 008 -1241-70043979 (this issue has yet to be decided).
[7]
In
Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court of
Canada confirmed that in reviewing a decision on the standard of
reasonableness, the reviewing court should examine, among other things, the
“justification, transparency and intelligibility” of the decision.
[8]
To
meet the criteria of the reasonable decision, the reasons must allow the
reviewing court to understand why the decision maker made its decision and
permit it to determine whether the conclusion is within the range of acceptable
outcomes which are defensible in respect of the facts and the law. Nothing more,
in so far as reasons are concerned, is required to meet the reasonableness standard
of review. Reasons need not be comprehensive. They are to be read in the
context of the record as a whole. Indeed, reasons may be complemented by the
record.
[9]
Adopting
the approach mandated by the Supreme Court of Canada, and having carefully
reviewed the reasons in the context of the submissions and the evidence before
the Board, I understand well why the Board rejected the applicant’s allegation
that the respondent made a serious and negligent error by failing to present
the argument exactly as he wanted them to do in order to deal with the
jurisdictional issue. In the Board’s view, the decision to put emphasis on
certain issues or facts to the exclusion of others fell within the respondent’s
right to make substantive and technical judgments about grievances as long as
it did not act arbitrarily, discriminatorily or in bad faith.
[10]
Having
weighed the evidence, the Board was not convinced that the respondent had
behaved improperly. Thus, it found that there was no breach of the duty of fair
representation. The Board was also of the view that it should not comment
further on the validity of the position taken by PSAC in that grievance file
because this was to be decided by another adjudicator.
[11]
I
cannot agree that the Board ignored evidence in reaching this conclusion.
First, the decision maker is assumed to have weighed and considered all the
evidence presented to it unless the contrary is shown [Florea v. Canada (Minister of
Employment and Immigration), [1993] F.C.J. No. 598 (C.A.) (Q.L.) at
paragraph 1]. Second, a proper reading of the Board’s reasons at paragraphs 52
to 55(c), seen in the context of the submissions and the evidence, convinces me
that the Board was alert and alive to the issue raised in respect of the
jurisdictional objection in grievance number 008 -1241-70043979. This is
especially so when one considers the Board’s comments at paragraphs 3 and 4 of
the decision to explain why, in its reasons, the Board had generalized the
evidence that discusses merits and tactics so as not to prejudice any further
discussion and adjudication of the grievances.
[12]
I
do not accept Mr. Boulos’s view that this is an unconvincing excuse for not
addressing the evidence. In fact, given the representations he had made in
respect of the need to keep the details of his tactics and his communication
with the respondent confidential (see particularly the letter dated August 18,
2010 at page 47 of the applicant’s record) and the fact that the decision of
the Board is necessarily a public document, it was indeed reasonable for the
Board to adopt this approach.
[13]
All
this to say that Mr. Boulos has not persuaded me that the Board’s conclusion in
respect of his specific allegation that the PSAC had been seriously negligent
with respect to the grievance number 008 -1241-70043979 was not open to it on
the basis of the evidentiary record and the applicable law properly set out in
the decision and codified in section 187 of the Act. In fact, having
considered the decision as a whole, I can find no reviewable error that would
justify our intervention. The Board applied the correct legal principles, its
findings including its ultimate conclusion fall within the range of acceptable
outcomes.
[14]
Turning
now to the allegation of bias, it has to be measured by the test articulated by
the Supreme Court in Committee for Justice and Liberty v National Energy
Board, [1978] 1 S.C.R. 369, at page 394. It is as follows:
[...] the apprehension of bias must be a reasonable
one, held by reasonable and right-minded persons, applying themselves to the
question and obtaining thereon the required information... [T]hat test is “what
would an informed person, viewing the matter realistically and practically -
and having thought the matter through - conclude. Would he think that it is
more likely than not that [the decision-maker], whether consciously or
unconsciously, would not decide fairly.”
[15]
The
case law is clear that a reasonable person would require some clear evidence to
support such an allegation [R. v. S (R.D.), [1997] 3 S.C.R. 484, 151
D.L.R. (4th) 193, at paragraphs 48-49].
[16]
To
meet his burden, Mr. Boulos made a paragraph-by-paragraph analysis of the
Board’s decision noting numerous elements that could fall under one or more of
the following categories: (1) indicators of bias, (2) neglect or distortion of
evidence, (3) areas where the complaint was analyzed out of context, (4)
factual errors, all of which taken together established clearly in his view a
reasonable apprehension of bias.
[17]
Here
again, one must keep in mind as a legal matter, that the Board did not have to
write the type of detailed and comprehensive reasons that Mr Boulos appears to
be insisting upon. Furthermore as noted, the decision contains no reviewable
errors per se.
[18]
It
is true that language can hide biased assumptions and there are indeed
instances where the Courts have found that certain strong language such as
blatantly racist comments, unacceptable comments about the abilities of an
employee’s non-lawyer representative or unacceptable sarcasm, was indicative of
bias. However, after a close analysis of the submissions and the Board’s
reasons, I am not satisfied that Mr. Boulos met his burden.
[19]
In
fact, in my view, there is no evidence on which one could find a reasonable
apprehension of bias. There is simply no negative connotation whatsoever in
those portions of the Board’s reasons highlighted by Mr. Boulos. There is
nothing defaming or insulting in the decision as suggested in his affidavit. This
not to say that Mr. Boulos was not truly affected by the decision and that the
matter has not taken a heavy toll on him. Despite my sympathy for his
situation, I cannot conclude that his complaint was not considered and decided
fairly.
[20]
In
order to dispose of the confidentiality issue, it is necessary to put it in
context.
[21]
After
indicating that he would like to invoke a litigation privilege in respect of
certain information relating to the conduct of his grievances, the applicant
requested that the Board put in place “certain controls” to avoid disclosure or
dissemination of the information to the employer. The respondent opposed this
request on the basis that it was too vague and insisted that this should not
prejudice its ability to defend or delay the process before the Board.
[22]
Given
that the respondent did not oppose a direction that its submissions not be sent
to the employer, the Board instructed PSAC “not to copy the employer at this
time.” On September 14, 2010 a confirmation was issued that the PSAC response
dated July 28, 2010 would not be disclosed to the employer “at this time.” On
February 28, 2011, Mr. Boulos himself filed comprehensive submissions which
included most of the communications that one would reasonably expect to contain
at least some of the allegedly privileged information. At that time, he made no
request to the Board for a direction or order prohibiting their disclosure to
the employer.
[23]
At
the hearing, the parties could not shed light on the matter of whether the
information filed with the Board prior to May 11, 2011, (the date of the
decision) was accessed by the public.
[24]
In
its decision, the Board does not make any further order or direction in respect
of the information referred to in Mr. Boulos’ correspondence.
[25]
After
he received the Board’s decision, Mr. Boulos made no request to the Board for
an order protecting any of the alleged privileged information including the
PSAC submissions during the judicial review of the Board’s decision.
[26]
In
August 2011, Mr. Boulos filed his affidavit in the present proceedings which
includes as exhibits not only the PSAC submissions dated July 28, 2010 but also
all of the information which, as mentioned above, could reasonably be assumed
to include at least some of the information allegedly covered by litigation
privilege. He sought no order for the protection of the confidentiality of that
material before this Court. This documentation and information have been
available to the public since then in any event.
[27]
There
is no evidence as to whether or not the employer or anybody on his behalf has
already reviewed the documentation and information.
[28]
Still,
Mr. Boulos requests this Court to declare that the Board erred by failing to
protect “the information” against disclosure to the employer after its decision
was issued. He also seeks an order directing the Board to protect “the
information” from improper disclosure to the employer.
[29]
In
my view, assuming without deciding that a litigation privilege did protect the
confidentiality of any information currently on this Court’s public record, Mr.
Boulos waived that confidentiality by failing to take any steps to assert and
protect it, such as by a motion to seal the Court’s file.
[30]
Now
that the information has been placed in a public file, his submission that the
Board should have kept it confidential is moot. I am not satisfied that Mr.
Boulos has met the criteria established in Borowski v. Canada (Attorney
general),
[1989] 1 S.C.R. 342 governing this Court’s exercise of its residual discretion
to hear and determine a matter that is moot.
[31]
There
is no reviewable error justifying this Court’s intervention and so I would
dismiss the application with costs.
“Johanne Gauthier”
“I
agree.
Eleanor R. Dawson, J.A.”
“I
agree.
David Stratas, J.A.”
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