Date: 20081210
Docket: A-115-08
Citation: 2008 FCA
386
CORAM: DÉCARY J.A.
LÉTOURNEAU
J.A.
NOËL J.A.
BETWEEN:
MICHEL
AUBERT
Appellant
and
ATTORNEY GNERAL OF CANADA
for and on behalf of TRANSPORT CANADA
Respondent
Hearing held at Montréal, Quebec,
on December 3, 2008.
Judgment delivered at Ottawa, Ontario,
on December 10, 2008.
REASONS FOR JUDGMENT BY: DÉCARY
J.A.
CONCURRED
IN BY: LÉTOURNEAU
J.A.
NOËL
J.A.
Date:
20081210
Docket: A-115-08
Citation: 2008 FCA 386
CORAM: DÉCARY
J.A.
LÉTOURNEAU
J.A.
NOËL J.A.
BETWEEN:
MICHEL AUBERT
Appellant
and
ATTORNEY GENERAL OF CANADA
for and on behalf of TRANSPORT CANADA
Respondent
REASONS FOR JUDGMENT
DÉCARY J.A.
[1]
The
appellant is Superintendent of Safety Oversight Operations in the Civil
Aviation group of Transport Canada. He is subject to a
collective agreement that provides that he may present a grievance no later
than the twenty-fifth day after the employer’s action giving rise to the
grievance.
[2]
In August
2004, he requested authorization to work as a pilot for
a foreign company outside his regular working hours. On September 20, 2004, the Regional Director General, Quebec, notified
him in writing that authorization was refused because such activity could lead
to an appearance of a conflict of interest within the meaning of the Values and Ethics Code for the Public Service.
[3]
For more
than two years, the appellant took various subsequent measures to convince his
employer to change its decision. Those measures were unsuccessful.
[4]
On October 27, 2006, the appellant filed his
grievance.
[5]
The
grievance was ruled invalid at all three levels on the basis that it had been
filed more than 25 days after the Minister’s decision. At each level, the
decision‑maker informed the appellant that the grievance would have been
denied on its merits in any event.
[6]
The
appellant then brought an application for judicial review. The application was
dismissed by Justice Martineau (2008 FC 216), who concluded that the grievance
was invalid and that, in any event, it was without merit. The judge applied the
standard of patent unreasonableness in the first part of his decision and that
of reasonableness in the second.
[7]
In light
of my conclusion, I will address the first part only.
[8]
The judge
found that “[t]he predominant evidence in the record
indicates that the applicant filed his grievance more than two years after
having been informed of the [Minister’s] position with respect to his request
to hold more than one job simultaneously” (paragraph 4).
[9]
Dismissing
the appellant’s claim that the grievance involved a recurrent or repetitive
situation (the use of the expression [translation] “ongoing grievance”, often found in doctrine and
case law, is incorrect), the judge also found that “[t]he main object of the applicant’s grievance is the legality of a firm
decision at a fixed point in time . . .” (paragraph 7).
[10]
The
appellant now comes to this Court. He argues that, regarding the issue of
invalidity, the judge should have applied the standard of review of correctness
since, according to the him, it is a question of law.
[11]
It is true
that issues regarding the applicable rule
of prescription generally relate to questions of law, but that is not the issue in this case.
Essentially, this is a matter of
weighing the evidence
to determine who decided what and when. The appellant submits that he filed
separate applications, which led to separate decisions, the last of which was
rendered fewer than 25 days before he filed the grievance.
[12]
The
appellant also argues that, since the privative clause is “relatively weak” in
this case (see Assh v. Canada (Attorney General) (F.C.A.), 2006 FCA 358,
paragraph 35) and since the decision-maker is not an independent adjudicator but rather the employer
itself, which has a vested interest in ensuring that the grievance be
time-barred, the standard of review should be that of correctness. I disagree.
Certainly, those are factors that urge the Court to be particularly vigilant,
but, in these circumstances, the issue of the timeliness of a grievance remains
nonetheless a question of fact. It is the standard of reasonableness that
applies.
[13]
Since the
judge had applied the then-recognized standard of patent unreasonableness, this
Court reviewed the Minister’s decision in light of the standard of
reasonableness.
[14]
Based on the
sequence of events and the appellant’s choice of words in his applications and
pleadings, it can be reasonably concluded that, in reality and for all intents
and purposes, the appellant merely resubmitted his original application several
times. Case law is clear: in such circumstances, the starting date of the
limitation period is not postponed simply because a party continues to question
a decision and receives answers that merely reaffirm the original decision or
because he or she objects to the original decision (see Taylor v. Public
Service Commission of Canada, 2003 FCT 566; Camoplast Inc. – Division
Mode et Syndicat des travailleurs du vêtement de Richmond, [1998] R.J.D.T.
476).
[15]
I would
dismiss the appeal with costs.
“Robert
Décary”
“I agree.
Gilles Létourneau J.A.”
“I agree.
Marc Noël J.A.”
Certified true
translation
Tu-Quynh Trinh
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-115-08
(APPEAL OF AN ORDER OF JUSTICE MARTINEAU,
FEDERAL COURT, DATED FEBRUARY 19, 2008, DOCKET NUMBER T-1279-07)
STYLE OF CAUSE: Michel
Aubert v. Attorney General of Canada for and on behalf of Transport Canada
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 3, 2008
REASONS FOR JUDGMENT BY: DÉCARY J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
NOËL J.A.
DATED: December 10, 2008
APPEARANCES:
|
Loic Bernikoff
Raymond
Doray
|
FOR THE APPELLANT
|
|
Vincent Veilleux
Neil
McGraw
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Lavery, de Billy
Montréal,
Quebec
|
FOR THE APPELLANT
|
|
John H. Sims, Q.C.
Deputy
Attorney General of Canada
|
FOR THE RESPONDENT
|
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