Date: 20120413
Docket: A-383-11
Citation: 2012 FCA 113
CORAM: EVANS
J.A.
SHARLOW
J.A.
DAWSON J.A.
BETWEEN:
MOHAMMAD ASLAM
CHAUDHRY
Appellant
and
THE ATTORNEY GENERAL
OF CANADA
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
Introduction
[1]
This
is an appeal by Mohammad Aslam Chaudhry from a decision of the Federal Court,
dated September 19, 2011, in which Justice Hughes (Motions Judge) granted a
motion by the Crown, the Respondent, to strike out Mr Chaudhry’s statement of
claim and to dismiss his action in its entirety without leave to amend.
[2]
The
Motions Judge provided two bases for his decision. First, the statement of
claim is an “abuse of powers” – by which I assume he meant “abuse of process”− because it seeks to re-litigate
matters already determined in other proceedings brought by Mr Chaudhry in the
Federal Court and in this Court. Second, it requests the Court to advise Mr
Chaudhry of the venues where he can litigate what he says is now his principal
concern: whether the official who terminated his employment in the federal
public service had the delegated authority to make this decision.
[3]
The
short reasons in the Motions Judge’s speaking order may not be entirely
accurate in the description of Mr Chaudhry’s claim. Nonetheless, I am satisfied
that he reached the correct conclusion when he granted the Crown’s motion,
struck Mr Chaudhry’s statement of claim, and dismissed his action. It is clear
that the action cannot possibly succeed.
[4]
The
statutory provisions relating to this appeal that were in force at the relevant
time are set out in the Appendix to these reasons.
Background
[5]
Mr
Chaudhry has been litigating the termination of his employment in the federal
public service for the last seven years. The issues raised in this appeal have
a substantial history, some of which forms the immediate background to the
present proceeding.
[6]
Mr
Chaudhry started his federal public service employment with the Correctional
Service of Canada on February 17, 2003 as an Administrative Services Assistant
at the Bath Institution. Like all employees from outside the public service, he
was appointed for a probationary period of twelve months, which, in Mr
Chaudhry’s case, ended on February 16, 2004.
[7]
On
June 16, 2003, he was appointed to an indeterminate position in the central
registry at Millhaven Institution, conditional on the completion of his
probationary period. At Millhaven he worked first as a transfer clerk and, from
October 2003, as an input and releases clerk.
[8]
However,
on February 6, 2004, the Warden of Millhaven issued a memorandum to Mr Chaudhry
informing him that, pursuant to subsection 28(2) of the Public Service
Employment Act, R.S.C. 1985, c. P-33, as rep. by the Public Service
Modernization Act, S.C. 2003, c. 22, s. 284 (PSEA), he would be rejected on
probation effective February 6, 2004 for unacceptable job performance and poor
relations with office colleagues. He was also told that, following one month’s
paid leave, he would cease to be an employee of the Correctional Service of
Canada after March 7, 2004.
(i) Adjudicator’s
decision
[9]
Mr
Chaudhry unsuccessfully grieved his termination to the final level of the
employer’s internal grievance process under section 91 of the Public Service
Staff Relations Act, R.S.C. 1985, c. P-35, as rep. by the Public
Service Modernization Act, S.C. 2003, c. 22, s. 285 (PSSRA). The PSSRA is
the predecessor of the current Public Service Labour Relations Act, S.C.
2003, c. 22, s. 2; there are no material differences between these statutes for
the purpose of the issues to be decided in this appeal.
[10]
He
then pursued his grievance to an Adjudicator under section 92 of the PSSRA. Mr
Chaudhry also made an unfair labour practice complaint to the Public Service
Labour Relations Board (Board) under section 23 of the PSSRA, alleging, among
other things, that the employer had breached subparagraph 8(2)(c)(ii) of
the PSSRA by threatening him with reprisals for filing a grievance concerning
his workload.
[11]
Both
matters were decided by Ian R. Mackenzie: the grievance, in his capacity as an
Adjudicator, and the complaint as a member and Vice-Chairperson of the Board.
The complaint is not relevant to this appeal. Suffice it to say that the Board
dismissed it on the merits.
[12]
In
response to Mr Chaudhry’s grievance under section 92(1) of the PSSRA, the
Respondent argued that the Adjudicator had no jurisdiction to determine it.
Subsection 92(3) provides that the right to grieve under subsection 92(1) does
not apply to terminations under the PSEA, and Mr Chaudhry’s employment was
terminated following a rejection on probation under subsection 28(2) of the
PSEA.
[13]
On
the basis of Board jurisprudence, Mr Chaudhry submitted that subsection 92(3)
did not apply to his grievance because his rejection on probation was a
nullity. It had been in bad faith, was procedurally unfair, and constituted
disguised discipline. Accordingly, he was entitled to bring a grievance under
subsection 92(1).
[14]
The
Adjudicator found that the Respondent had demonstrated employment-related
reasons for terminating Mr Chaudhry’s employment. While describing the rejection
memorandum that the Warden sent to Mr Chaudhry, the Adjudicator stated at
paragraph 5 of his reasons that the Warden had the delegated authority to
reject him on probation.
[15]
Having
concluded that Mr Chaudhry’s probationary employment had been terminated under
subsection 28(2) of the PSEA, the Adjudicator held that he had jurisdiction
over the grievance only if Mr Chaudhry established that his termination was in
bad faith or was disciplinary in nature.
[16]
As
evidence of the employer’s bad faith, Mr Chaudhry stated that he had not been
given sufficient notice before he was terminated to enable him to respond, and
to correct deficiencies in his work performance. He argued that the employer
had failed to follow the pre-termination procedural provisions prescribed in
Treasury Board of Canada Secretariat, Treasury Board Guidelines for
Non-Disciplinary Demotion or Termination of Employment (Ottawa: Labour
Relations and Compensation Operations Division, July 2002) (Guidelines).
[17]
The
Adjudicator rejected this particular submission because a Note in the
Guidelines states that they do not apply to rejections on probation, which
continue to be governed by the PSEA. After reviewing the evidence as a whole,
he concluded that Mr Chaudhry had not discharged his burden of proving that the
rejection on probation was in bad faith or was disguised discipline. Hence, Mr
Chaudhry had been given a notice of rejection under subsection 28(2) of the
PSEA, and the Adjudicator therefore had no jurisdiction to determine the grievance
because of subsection 92(3) of the PSSRA.
[18]
An
official of his bargaining agent, the Public Service Alliance of Canada,
represented Mr Chaudhry throughout these proceedings. The decisions of the
Adjudicator and the Board are reported as Chaudhry v. Treasury Board
(Correctional Service of Canada), 2005 PSLRB 72.
(ii) Federal Court’s decision
[19]
Mr
Chaudhry applied to the Federal Court for judicial review of the dismissal of both
his grievance and his complaint. The hearing was held before Justice Simpson on
February 26, 2007. The Court denied the application for judicial review with
respect to both the grievance and the complaint in a reasoned judgment dated
April 13, 2007, and reported at 2007 FC 389.
[20]
The
Court held that the Adjudicator had committed no reviewable error in dismissing
Mr Chaudhry’s termination grievance as outside his jurisdiction under subsection
92(1) of the PSSRA. The Court rejected his argument that the employer’s failure
to give him adequate notice before terminating his employment violated his
rights under the Canadian Charter of Rights and Freedoms and the Canadian
Bill of Rights. The Court agreed with the Board that the Guidelines did not
apply to Mr Chaudhry’s termination because he had been rejected on probation.
[21]
The
Court also held that it had no jurisdiction over the dismissal of Mr Chaudhry’s
section 23 complaint because this was a decision of the Board. As such, it was
reviewable only in the Federal Court of Appeal by virtue of paragraph 28(1)(i)
of the Federal Courts Act, R.S.C. 1985, c. F-7. He did not make an
application for judicial review to this Court of the Board’s dismissal of his
complaint under section 23 of the PSSRA.
(iii) Federal Court
of Appeal’s decision
[22]
Mr
Chaudhry appealed to this Court from the Federal Court’s decision on his
termination grievance, not the complaint. In his appeal, he argued that the
termination of his employment was invalid because subsection 28(2) of the PSEA
confers this power on the deputy head, as defined in section 2 of the PSEA, and
there was no evidence that the Warden of Millhaven Institution had authority to
issue the notice of an intention to reject on probation.
[23]
The
Court declined to decide this issue. Mr Chaudhry had not included it in his
notice of application for judicial review or in his memorandum of fact and law
filed with the Federal Court. Opposing Mr Chaudhry’s request that this Court
consider the issue of the Warden’s authority to terminate his employment,
counsel for the Respondent said that he would have led evidence if he had been
made aware of the issue earlier.
[24]
The
Court dismissed the appeal for essentially the reasons given by the Federal
Court. The decision is reported at 2008 FCA 61. The Supreme Court of Canada
refused Mr Chaudhry’s application for leave to appeal: [2008] SCCA No. 349.
[25]
I
would only add that Mr Chaudhry was self-represented in the judicial review
proceedings in the Federal Court and, on appeal, in this Court. As a lay
litigant, he no doubt found it frustrating to be met with jurisdictional barriers
that prevented both the Adjudicator from determining his grievance, and the
Federal Court from reviewing the Board’s dismissal of his complaint. He must
also have been disappointed to be told by the Federal Court and this Court that
they would not decide whether the deputy head’s power to reject an employee on
probation had been subdelegated to the Warden, because he had not raised the
issue in either his notice of application or his memorandum of fact and law in
the Federal Court.
(iv) re-consideration by the
Adjudicator
[26]
In
January 2009, Mr Chaudhry made an application to the Board under section 43 of
the PSSRA to reconsider its dismissal of his complaint. The Board dismissed the
application for both delay and lack of merit; the decision is reported at 2009
PSLRB 39. Mr Chaudhry based his application in part at least on the absence of
any evidence that the Warden had the power to reject employees on probation.
[27]
Vice-Chairperson
Mackenzie noted that Mr Chaudhry seems to have started focussing on the
delegation issue in January 2007, just before the hearing of his application
for judicial review in the Federal Court. However, he held, it was not relevant
to Mr Chaudhry’s unfair labour practice complaint under section 23 of the
PSSRA. The re-consideration application applies only to the complaint.
Adjudicators’ decisions on grievances are not subject to statutory
reconsideration.
Issues and analysis
[28]
Re-litigation:
Mr
Chaudhry says that the Motions Judge erred in dismissing his action on the ground
that he was seeking to re-litigate matters that had already been decided by the
Federal Court and the Federal Court of Appeal. He submits that neither the
Board nor the Federal Courts have adjudicated the issue that he now believes to
be of fundamental importance to the legality of his termination, namely the
authority of the Warden to reject him on probation. Accordingly, he argues, the
present action cannot be characterized as an attempt to re-litigate an issue
when that issue has never been decided.
[29]
I
do not agree. The general prohibition on re-litigation applies both to issues
that have been determined by a tribunal and those that the litigant
could have raised in the proceeding before the tribunal, but did not. Mr
Chaudhry could have raised the authority of the Warden when he grieved the
termination of his employment under section 91 of the PSSRA through the
internal grievance process.
[30]
If
the decision-makers did not accept this argument and dismissed the grievance,
Mr Chaudhry could have made an application for judicial review to the Federal
Court for a determination of the legal question of whether the Warden had the
authority to reject on probation.
[31]
In
addition, Mr Chaudhry might have been able to raise the lack of authority issue
when he grieved his termination before the Board under section 92 of the PSSRA.
Whether the Warden had the legal authority to reject him on probation might
have constituted evidence that the termination of his employment was in bad
faith, and might have enabled the Adjudicator to decide the grievance. The
issue was not considered by the Federal Court or this Court in the application
for judicial review of the Adjudicator’s decision because Mr Chaudhry had not
raised it in his notice of application and memorandum of fact and law.
[32]
It
is thus clear that Mr Chaudhry had opportunities to litigate the legal
authority of the Warden in the context of his section 91 grievance proceeding
and, possibly, before the Board in his section 92 grievance.
[33]
The
only remaining question is whether there was any basis on which the Judge
should have exercised his discretion and allowed the action to proceed, despite
Mr Chaudhry’s failure to argue previously that the power to reject him on
probation had not been subdelegated to the Warden. In my view there was not.
[34]
On
his own admission during the hearing of the present appeal, Mr Chaudhry did not
become aware of the issue of whether the Warden had the necessary subdelegated
authority until January 2007 when preparing for the upcoming hearing of his application
for judicial review. He stated that he had previously assumed that the
Guidelines applied to the termination of his employment. Section 1 of the
Guidelines, headed “Authority”, states that subsection 12(3) of the Financial
Administration Act provides that a deputy head may subdelegate the
authority to terminate other than for breaches of discipline or misconduct.
When he realized that the Guidelines do not apply to rejections on probation,
but the PSEA does, he then questioned whether there had been a subdelgation to
the Warden of the deputy head’s power to reject on probation under subsection
28(2) of the PSEA.
[35]
While
expressing no opinion on the merits of whether Mr Chaudhry’s contention, I
would make the following points.
[36]
First,
the Warden’s letter dated February 6, 2004, advising him that he would be
rejected on probation stated that he was being terminated under subsection
28(2) of the PSEA.
[37]
Second,
in his decision dated July 13, 2005, dismissing Mr Chaudhry’s grievance as outside
his jurisdiction under section 92 of the PSSRA, the Adjudicator stated that the
Guidelines do not apply to probationary employees: 2005 PSLRB 72, para. 115.
However, the Adjudicator also expressed the view (at para. 5) that the Warden
“had the delegated authority to reject on probation (Exhibit E-17).” The
document labelled Exhibit E-17 is the Guidelines: see 2007 FC 389 at para. 433.
[38]
Third,
the fact that the Guidelines do not apply to the rejection of employees on
probation is not determinative of the Warden’s authority to terminate Mr
Chaudhry’s employment under subsection 28(2) of the PSEA. Subsection 6(5) of
the PSEA permits a deputy head to subdelegate the exercise of powers conferred
by the Act.
[39]
Fourth,
Justice Simpson’s reasons for dismissing Mr Chaudhry’s application for judicial
review of the Adjudicator’s decision do not specifically mention the issue of
the Warden’s subdelegated authority. However, it appears to have been included
in the nine points raised by Mr Chaudhry under the heading “Errors and
Omissions”, which Justice Simpson (at para. 41) declined to consider because
they were not contained in his memorandum of fact and law.
[40]
In
all the circumstances of this case, there is no basis for permitting Mr
Chaudhry to raise the issue in the present action or in any subsequent
proceedings. The public interest in the finality of litigation must prevail.
[41]
Refusal
to provide information: Mr
Chaudhry’s statement of claim says that the Crown is under a duty to provide
him access to an independent and impartial tribunal to determine his legal
rights, and to inform him which tribunal has the jurisdiction to determine
whether the Warden of Millhaven had the delegated legal authority to terminate
his employment.
[42]
Mr
Chaudhry argues that the Motions Judge misunderstood the statement of claim by
thinking that he was seeking advice from the Court on where he should litigate
whether the Warden had the subdelegated power to terminate his employment under
subsection 28(2) of the PSEA. Rather, the statement of claim requests the Court
to order the Respondent to give him this information.
[43]
Even
if the Motions Judge did err as Mr Chaudhry alleges, the error is not material.
As discussed above, Parliament had provided an opportunity for Mr Chaudhry to
challenge the Warden’s legal authority. He could have raised this issue when he
grieved his rejection on probation in his grievance proceedings under section
91 of the PSSRA. If the argument had not succeeded, he could have made an
application for judicial review of the dismissal of his grievance in the
Federal Court and, if necessary, appealed from there to this Court.
[44]
In
addition, he could probably have raised the issue of the Warden’s authority
before the Adjudicator. If the Adjudicator had nonetheless dismissed his
grievance under section 92 of the PSSRA, he could have included it in his
notice of application for judicial review and in his memorandum of fact and
law. His failure to do so led the Federal Court and this Court to refuse to
determine the issue.
[45]
Thus,
in my view, the law provided Mr Chaudhry with adequate opportunities to
litigate the Warden’s legal authority to terminate his employment.
Unfortunately, he failed to avail himself of them. His statement of claim is
therefore unfounded in so far as it assumes he has been denied an opportunity
to litigate this issue. Further, the Crown owes no legal duty to give legal
advice or information to those litigating against it. In an adversarial
litigation system, parties must obtain their own legal advice; they cannot look
to their opponents, including the Crown, to provide it.
[46]
To
be clear, I repeat that I express no view on whether there is any merit to Mr
Chaudhry’s contention that the Warden had no power to issue him a rejection on
probation notice under subsection 28(2) of the PSEA. Mr Chaudhry should have
requested evidence that the deputy head had subdelegated this power to the
Warden under subsection 6(5) of the PSEA when he was grieving his termination
under sections 91 and 92 of the PSSRA.
[47]
For
all the above reasons, I would dismiss the appeal with costs.
“John M. Evans”
“I
agree
K.
Sharlow J.A.”
“I
agree
Eleanor
R. Dawson J.A.”
APPENDIX A
Public Service
Employment Act,
R.S.C. 1985, c. P-33.
|
6.
(5) Subject to subsection (6), a deputy head may authorize one or more
persons under the jurisdiction of the deputy head or any other person to
exercise and perform any of the powers, functions or duties of the deputy
head under this Act including, subject to the approval of the Commission and
in accordance with the authority granted by it under this section, any of the
powers, functions and duties that the Commission has authorized the deputy
head to exercise and perform.
28. (2) The deputy head may, at
any time during the probationary period of an employee, give notice to the
employee that the deputy head intends to reject the employee for cause at the
end of such notice period as the Commission may establish for that employee
or any class of employees of which that employee is a member, and the
employee ceases to be an employee at the end of that period.
|
6. (5) Sous réserve du
paragraphe (6), un administrateur général peut autoriser des subordonnés ou
toute autre personne à exercer l’un des pouvoirs et fonctions que lui confère
la présente loi, y compris, mais avec l’approbation de la Commission et
conformément à la délégation de pouvoirs accordée par celle-ci en vertu du
présent article, l’un de ceux que la Commission l’a autorisé à exercer.
28. (2) À tout moment au cours
du stage, l’administrateur général peut aviser le fonctionnaire de son
intention de le renvoyer, pour un motif déterminé, au terme du délai de
préavis fixé par la Commission pour lui ou la catégorie de fonctionnaires
dont il fait partie. Le fonctionnaire perd sa qualité de fonctionnaire au
terme de cette période.
|
Public Service Staff
Relations Act,
R.S.C. 1985, c. P-35.
|
8. (2) Subject to subsection
(3), no person shall
…
(c) seek by intimidation, threat
of dismissal or any other kind of threat, by the imposition of a pecuniary or
any other penalty or by any other means to compel an employee
…
(ii) to
refrain from exercising any other right under this Act.
23. (1) The Board shall examine
and inquire into any complaint made to it that the employer or an employee
organization, or any person acting on behalf of the employer or employee
organization, has failed
(a) to observe any prohibition
contained in section 8, 9 or 10;
…
91. (1) Where any employee
feels aggrieved
…
(b) as a result of any occurrence
or matter affecting the terms and conditions of employment of the employee, …
in respect of which no
administrative procedure for redress is provided in or under an Act of
Parliament, the employee is entitled, subject to subsection (2), to present
the grievance at each of the levels, up to and including the final level, in
the grievance process provided for by this Act.
92. (1) Where an employee has
presented a grievance, up to and including the final level in the grievance
process, with respect to
…
(c) in the case of an employee not
described in paragraph (b), disciplinary action resulting in termination of
employment, suspension or a financial penalty,
and the grievance has not been
dealt with to the satisfaction of the employee, the employee may, subject to
subsection (2), refer the grievance to adjudication.
…
(3) Nothing in subsection (1)
shall be construed or applied as permitting the referral to adjudication of a
grievance with respect to any termination of employment under the Public
Service Employment Act.
…
|
8. (2) Sous réserve du
paragraphe (3), il est interdit :
[…]
c) de chercher, notamment par
intimidation, par menace de destitution ou par l’imposition de sanctions
pécuniaires ou autres, à obliger un fonctionnaire :
[…]
(ii)
à
s’abstenir d’exercer tout autre droit que lui accorde la présente loi.
23. (1) La Commission instruit
toute plainte dont elle est saisie et selon laquelle l’employeur ou une
organisation syndicale ou une personne agissant pour le compte de celui-là ou
de celle-ci n’a pas, selon le cas :
a) observé les interdictions
énoncées aux articles 8, 9 ou 10;
[…]
91. (1) Sous réserve du
paragraphe (2) et si aucun autre recours administratif de réparation ne lui
est ouvert sous le régime d’une loi fédérale, le fonctionnaire a le droit de
présenter un grief à tous les paliers de la procédure prévue à cette fin par
la présente loi, lorsqu’il s’estime lésé :
[…]
b) par suite de tout fait autre
que ceux mentionnés aux sous-alinéas a)(i) ou (ii) et portant atteinte à ses
conditions d’emploi.
92. (1) Après l’avoir porté
jusqu’au dernier palier de la procédure applicable sans avoir obtenu
satisfaction, un fonctionnaire peut renvoyer à l’arbitrage tout grief portant
sur :
[…]
c) dans les autres cas, une
mesure disciplinaire entraînant le licenciement, la suspension ou une
sanction pécuniaire.
[…]
(3) Le paragraphe (1) n’a pas
pour effet de permettre le renvoi à l’arbitrage d’un grief portant sur le
licenciement prévu sous le régime de la Loi sur l’emploi dans la fonction
publique.
[…]
|
Federal Courts Act, R.S.C. 1985, c. F-7.
|
28. (1) The Federal Court of
Appeal has jurisdiction to hear and determine applications for judicial
review made in respect of any of the following federal boards, commissions or
other tribunals:
…
(i) the Public Service Labour
Relations Board established by the Public Service Labour Relations Act;
|
28. (1) La Cour d’appel
fédérale a compétence pour connaître des demandes de contrôle judiciaire
visant les offices fédéraux suivants :
[…]
i) la Commission des relations
de travail dans la fonction publique constituée par la Loi sur les relations
de travail dans la fonction publique;
|
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