Date: 20100226
Docket: A-595-08
Citation: 2010 FCA 66
CORAM: SEXTON
J.A.
DAWSON J.A.
LAYDEN-STEVENSON
J.A.
BETWEEN:
NICO VAN DUYVENBODE
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1] This is an application for judicial review of a
decision of the Public Service Labour Relations Board (Board) refusing to grant
the applicant an extension of time to file a grievance. The issue on this
appeal is whether the Board's refusal was reasonable.
Facts and Procedural
History
[2] The
applicant was an employee in the federal public service. He alleges that he
began to suffer harassment and discrimination at the hands of his supervisors
in 1997. Rather than file a grievance in respect of that conduct, in 2003 the
applicant commenced a civil suit in the Ontario Superior Court of Justice
claiming damages arising from the alleged harassing and discriminatory
conduct. The decision to pursue a civil claim reflected the applicant's
opinion that his concerns would not be dealt with adequately through the
dispute resolution system provided under the applicable federal legislation.
[3] In
April, 2006, the applicant moved in his civil suit for an injunction to prevent
the termination of his employment. The motion was dismissed because the
applicant failed to establish the existence of irreparable harm. In dismissing
the motion, the Court noted that if the applicant’s employment was terminated
he could grieve the termination and upon adjudication he could be granted a
range of remedies as provided for in the Public Service Labour Relations Act,
S.C. 2003, c. 22, s. 2 (Act). The Court expressed doubt that the plaintiff
could maintain his civil suit.
[4] On
May 3, 2006, the applicant's employment was terminated. No grievance was
filed. Instead, the applicant amended his pending civil suit to put in issue
the alleged unlawful termination of his employment.
[5] On
June 25, 2007, the applicant’s statement of claim was struck out on the basis
of the decision of the Supreme Court of Canada in Vaughan v. Canada,
[2005] 1 S.C.R. 146 and section 236 of the Act which, as of its enactment
in 2005, barred any court action with respect to any dispute relating to an
employee's termination or conditions of employment. The applicant received
notice of the decision striking his claim on July 7, 2007.
[6] On
August 24, 2007, the applicant contacted the Board concerning his complaints.
He was advised that he required an extension of time in order to pursue
grievances and that he should apply for an extension without delay. An
application for an extension was received on November 30, 2007 by the
Board.
[7] The
request for extension was refused by the Board on October 29, 2008. That
refusal is the decision now before the Court.
The Decision of the
Board
[8] The
Board commenced its consideration of the issue by enumerating the criteria that
it was to consider when adjudicating a request for an extension. No complaint
is raised with respect to the Board's articulation of the relevant criteria.
[9] The
Board then found that the applicant had failed to provide any cogent or
compelling reasons for his delay in filing a grievance. This was viewed by the
Board as being dispositive of the request for extension. The Board went on to
note that "the length of the delay is extensive, the respondent did not exercise
due diligence and the prejudice to the employer outweighs any injustice to the
respondent."
The Errors Alleged by
the Applicant
[10] The
applicant asserts that the Board's conclusion that he had not provided any
cogent or compelling explanation for the delay was unreasonable in two
respects. First, he says that the Board misunderstood the effect of the
decision of the Supreme Court of Canada in Vaughan. Second,
the applicant says the Board ignored evidence.
Standard of Review
[11] The
parties agree that this was a discretionary decision of the Board that warrants
the highest level of deference. I agree. The decision should therefore be
reviewed on the standard of reasonableness.
Application of the
Standard of Review
[12] The
applicant asserts that his decision to pursue a civil suit provided a clear,
cogent and compelling explanation for not launching one or more grievances on a
timely basis and that the Board erred by stating that after the Vaughan
decision was issued in 2005 it "became clear […] that the grievance
process was the proper forum."
[13] I
see no error in the Board's reasons on this point. In Vaughan, the Supreme
Court held that workplace disputes should be dealt with within the statutory
redress mechanisms enacted by Parliament. At the same time, a small residual
jurisdiction was acknowledged to remain in the courts. The Board, at paragraph
42 of its reasons, acknowledged this residual jurisdiction. Contrary to the
applicant’s submission, the Board did not find that Vaughan prohibits all
access by public servants to the superior courts in respect of workplace
disputes.
[14] Similarly,
I do not agree that the Board ignored evidence. The applicant argues that the
Board ignored his evidence that he first contacted it in August, 2007, and
instead found that he did not request an extension of time until November,
2007. At paragraph 24 of its reasons, the Board referred to the applicant's
first contact with it in August, 2007. Therefore, the Board did not ignore
that evidence. It was not unreasonable for the Board to rely upon the
November, 2007 date because it was not until then that the applicant filed his
formal request for an extension of time.
[15] At
all material times the applicant knew of the existence of the grievance
mechanism. He ignored this mode of redress because he did not believe his
concerns would be adequately addressed in that forum. At the time his claim
for injunctive relief was dismissed in April, 2006, the Supreme Court of Canada
had delivered its reasons in Vaughan, and that decision was
referenced in the reasons of the Court dismissing the request for injunctive
relief. In response to the motion to strike his claim, the applicant attempted
to argue that he was a "whistleblower" so as to fall within the Court's
residual jurisdiction articulated in Vaughan. The Court
rejected this argument stating that there was "no air of reality" to
that claim. Only after his action was struck out by the Court did the
applicant take steps to pursue an extension of time in order to pursue one or
more grievances. In his application for an extension of time his complaints
were said to date from 1997.
[16] This
is not a case where an innocent error was made with respect to the choice of
forum. The applicant made a deliberate choice not to grieve because of his
view that his concerns would not be adequately dealt with. On those facts it
was open to the Board to find that no compelling reason had been provided for
failing to file a grievance on a timely basis.
[17] The
Board gave intelligible reasons that justified its conclusion. That decision
fell within the range of possible outcomes that could be defended on the basis
of the applicable facts and law. The Board's decision was, therefore,
reasonable.
[18] For
these reasons, I would dismiss the application with costs.
“Eleanor
R. Dawson”
“I agree
J.
Edgar Sexton J.A.”
“I
agree
Carolyn
Layden-Stevenson J.A.”
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