Docket:
A-131-13
Citation: 2014 FCA 11
CORAM:
DAWSON J.A.
TRUDEL J.A.
NEAR J.A.
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BETWEEN:
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IRENE BREMSAK
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Applicant
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and
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THE PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
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KATHLEEN KERR
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GEOFF KENDELL
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STEPHEN Y. LEE
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SIDDIQ ANSARI
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TERRY PETERS
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QUINTON JANSEN
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GARY CORBETT
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DON BURNS
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DAVID GRAY
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DAN JONES
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EVAN HEIDINGER
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AL RAVJIANI
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HELENE ROGERS
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MARILYN BEST
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ROBERT BOWIE-REED
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YVON BODEUR
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RICHARD DEPUIS
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ROBERT HUNTER
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PASCAL JOSEPH
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SEAN O’REILLY
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JOE PODREBARAC
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NITA SAVILLE
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GEOFFREY GRENVILLE-WOOD
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ISABELLE ROY
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PAUL GODIN
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Respondents
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REASONS
FOR JUDGMENT
TRUDEL J.A.
[1]
This is an application for judicial review from a
decision of the Public Service Labour Relations Board (the Board) dismissing
complaints filed by Ms. Bremsak (the applicant) against her bargaining agent,
the Professional Institute of Public Service of Canada (the Institute), and its
named employees and members (collectively the respondents), as well as her
applications for the Board’s consent to prosecute the respondents under
sections 200 and 202 of the Public Service Labour Relations Act, S.C.
2003, c. 22, s. 2, (the Act) (2013 PSLRB 22) [Bremsak 15].
[2]
This is one of many visits by the parties to this
Court, in a judicial saga that has been ongoing since 2007 when Ms. Bremsak, an
elected official of the Institute, filed her first complaint with the Board
alleging that the Institute had subjected her to a discriminatory disciplinary
penalty when its Board of Directors apologized on her behalf for comments she
had made regarding another member.
[3]
Soon after, the Institute adopted the Policy Related
to Members and Complaints to Outside Bodies (PRMCOB) whereby the referral
of a matter, which ought to have been referred to the Institute’s internal
procedure, to an outside process brought an automatic temporary suspension from
elected or appointed office. Pursuant to the PRMCOB, Ms. Bremsak was
temporarily suspended from her elected and appointed positions because of her
first complaint to the Board. She successfully challenged that disciplinary
action and secured an order forcing her reinstatement.
[4]
Despite the order, Ms. Bremsak was never reinstated.
Moreover, while she was attempting to enforce that order, the Institute’s
Executive Committee, on October 20, 2009, suspended her from membership for
five years following an investigation of harassment complaints made against Ms.
Bremsak by other Institute members. An independent investigator hired by the
Institute conducted the investigation. As a result of the suspension, the
applicant was disqualified from holding office in the Institute for the term of
the suspension.
[5]
The Board’s decision under review, Bremsak 15,
deals more specifically with three applications made by the applicant to the
Board in which she alleges that the Institute committed unfair labour practices
under section 188 of the Act in that:
a) she has
not been reinstated in her elected positions;
b) she has been the subject of a retaliatory act committed
by the individual members of the Institute who have chosen to personally file
harassment complaints against her;
and
c) she has
been suspended from membership in the Institute for five years;
[6]
The Board, in a comprehensive set of reasons, dismissed
Ms. Bremsak’s complaints and, as a result, refused to consent to prosecute the
respondents. It found that the reinstatement and retaliation complaints were an
abuse of process (Bremsak 15 at paragraph 500). As for the five-year
suspension, it found that there was “a rational reason” for it and that the
suspension “was connected to Ms. Bremsak’s misconduct” in that “[s]he behaved
in a harassing manner towards other …members over a period of more than a year”
(Bremsak 15 at paragraph 497).
The applicant’s position
[7]
In her Notice of Application, Ms. Bremsak alleges that
the Board committed several errors of law and of fact that would justify our
Court in referring the matter back to the Board for determination by a
different member. Of importance is her allegation that the Board erred in law
in not finding that the Institute breached her right to procedural fairness and
natural justice. This finding, she argues, demonstrates the Board Member Love's
“bias against the protection of individual members from unfair labour practices
of the union” (Notice of Application at paragraph 25). This accusation toward
Board Member Love is very serious and goes to the heart of his jurisdiction. I
shall put it to rest immediately by saying that there is not an iota of
evidence permitting me to question the impartiality of Board Member Love, who
wrote the Board’s impugned decision.
[8]
Additionally, Ms. Bremsak alleges that the Board
committed multiple factual and legal errors in its assessment of the evidence;
its treatment of the investigator’s findings; and its understanding of the
impact of a previous decision made by the Board in Veillette v. Professional
Institute of the Public Service of Canada and Rogers, 2009 PSLRB 64. In Veillette,
the Board found that the provisions of the Institute’s PRMCOB, upon
which it had relied to justify Ms. Bremsak’s first suspension, violated the
Act. All this, she argues, renders the decision unreasonable.
Standard of review
[9]
Matters of procedural fairness are to be reviewed on a
standard of correctness (Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at paragraph 43) while other questions raised
by Ms. Bremsak, at best mixed questions of fact and law, are to be determined
on a standard of reasonableness. As stated by the Supreme Court of Canada in Dunsmuir
v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir] at
paragraph 47:
In judicial
review, reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But
it is also concerned with whether the decision falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law.
[10]
After a careful review of the record and the parties’
written and oral submissions, I have not been persuaded that the Board
committed any errors justifying appellate intervention. Neither the Board nor
the Institute has deprived Ms. Bremsak of her right to procedural fairness.
Moreover, the Board’s decision is reasonable and falls within a range of
possible, acceptable outcomes which are defensible in respect of the facts and
law. I will now address each of Ms. Bremsak’s allegations, starting with the
issue of procedural fairness.
Analysis
a) Procedural
fairness
[11]
Counsel for the applicant specifically advanced four
reasons supporting his client’s view that she was denied procedural fairness.
Three of these reasons concern the Institute’s Executive Committee and its
members:
i) the
applicant was not afforded an opportunity to make
representations before the Executive Committee imposed the five-year
suspension;
ii) the
reasons given for the suspension were inadequate;
iii) the members of the Executive Committee were in conflict
of interest because, amongst other reasons, they had acted in contempt of the
reinstatement order. As a result, the Federal Court had imposed a fine of
$400,000 on the Institute. Also, they had had the benefit of the legal services
of counsel for the Institute when defending themselves against Ms. Bremsak’s
retaliation complaint commenced on June 29, 2009, well before the Executive
Committee's decision of October 15, 2009 to suspend her for 5 years (see
paragraphs 122ff. of the applicant’s memorandum of fact and law);
[12]
The fourth reason concerns the Board. Apart from the
general allegation made against Board Member Love that I have previously
discussed at paragraph [7] of these reasons, the applicant alleges
that the Board should have entertained her argument under section 2b of the Canadian
Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 (the Charter).
She explains at paragraph 160 of her Memorandum of fact and law that
Board Member Love erred in law when he concluded that the Applicant has
committed harassment by giving legitimate legal notice to protect her rights
according to the Act. Ms. Bremsak’s interpretation that the suspension violated
the Act (upheld in Bremsak 2) and statement regarding Section 200
of the Act [dealing with offences and punishment of every person who
contravenes section 188 of the Act] is protected under the freedom of
expression.
[13]
In my view, the Board adequately turned its mind to Ms.
Bremsak’s concerns about procedural fairness (See Bremsak 15 at
paragraphs 463ff). In Dunsmuir, at paragraph 79, the Supreme
Court of Canada defines procedural fairness as follows:
Procedural fairness is a cornerstone of modern Canadian administrative law.
Public decision makers are required to act fairly in coming to decisions that
affect the rights, privileges or interests of an individual. Thus stated the
principle is easy to grasp. It is not, however, always easy to apply. As has
been noted many times, “the concept of procedural fairness is eminently
variable and its content is to be decided in the specific context of each case”
(references omitted) [my emphasis].
[14]
Here, the Board paid attention to the labour relations
context of the ongoing litigation. Having examined the Institute's Harassment
Policy (respondent’s application record, volume 3, tab 56, at page 590) and
2009 Dispute Resolution Policy (respondent’s application record, volume
1, tab 17 at page 112) (together the policies), the Board first held
that the policies represented ''a modern approach to resolving
harassment disputes and to bargaining agent discipline'' and that they did not
offend the Act (Bremsak 15 at paragraph 463). It added that “the model
adopted by the Institute for dealing with discipline in this case had
sufficient procedural fairness to provide for a determination of the dispute on
its merits” (ibidem at paragraph 464): Ms. Bremsak had been provided
with the appropriate procedure; she knew ''the case against her and was given
full opportunity to participate in the investigations” (ibidem)… “but
chose not to participate fully” (ibidem at paragraph 467).
[15]
As a result, the Board was satisfied that the
Institute's dispute resolution process was neither discriminatory nor arbitrary
or otherwise unreasonable. I conclude that the Board committed no error in
finding so. I now turn to the specific grounds of complaint raised by the
applicant.
i) No representations on the remedy
[16]
At the hearing of this application, the applicant put
emphasis on the fact that she was not given the opportunity to be heard on the
remedy. The Board gives a full answer to this ground of complaint. It states
that the 2009 Dispute Resolution Policy provides for an appeal to the
Institute's Board of Directors against the decision of the Institute’s Executive
Committee but that the applicant did not avail herself of that right which
included the right to make written submissions in support of the appeal. The
Board concluded that ''her failure to exercise her right of appeal completely
disposes of any alleged lack of natural justice in the process followed by the
Institute in this case'' (Bremsak 15 at paragraph 470). I agree.
ii) Adequacy
of reasons
[17]
The Board also commented on the adequacy of reasons for
the applicant’s suspension. It found that the Institute advanced ''cogent
reasons'' for suspending the applicant. The suspension letter stated:
The behaviour you have demonstrated
represents a pattern of threats and intimidation of members that has no place
in our organization. Your actions have created a toxic environment and have led
otherwise committed members to question their involvement with the Institute.
This behaviour will not be condoned or tolerated by the Institute (Bremsak
15 at paragraph 487).
[18]
The Board’s finding is reasonable having regard to the
factual background, the investigator’s conclusions and the ultimate outcome.
iii) Conflict
of interest
[19]
There remains the applicant's allegation of bias on the
part of the members of the Executive Committee (see paragraphs 122 and 123 of
her memorandum of fact and law) because of their alleged conflict of interest.
The Board's finding on this issue can be found at paragraph 473 of Bremsak
15. Relying on the cases of Beaven v. Telecommunications Workers Union,
(1996), 100 di 96, [1996] 32 C.L.R.B.R.
(2d) 230 [Beaven] and Tomko v. Nova Scotia
(Labour Relations Board), [1974] N.S.J. No. 20 (C.A.); aff'd on other
grounds [1975] S.C.J. No. 111, the Board found that the applicant had not
shown, on a balance of probabilities, that members of the Executive Committee
''... lacked the will to reach an honest conclusion about the facts in her case
...''. At the hearing of the application, Counsel for the applicant took issue
with the formulation of the test for a finding of bias.
[20]
This bias test applied by the Board had been relied
upon in the labour relations context before (Association des employeurs
maritimes et syndicat Canadien de la fonction publique, section locale 375, [1997]
D.A.T.C. no 314; Sheet Metal Workers International Association, Local 437 v.
048545 N.B. Ltd., [1994] N.B.I.R.D. No. 23). In Beaven, the Canada
Labour Relations Board set out the test for bias of a union panel at paragraph
60:
In reaching
to this conclusion, the Board in Val Udvarhely, [(1979), 35 di 87;
[1979] 2 Can L.R.B.R. 569)] cited and approved the following test, developed by
the Privy Council, for bias of a union tribunal; see White et al. v. Kuzych, [1951] 3 D.L.R. 641 [White].
Whatever
the correct details may be, their Lordships are bound to conclude that there
was, before and after the trial, strong and widespread resentment felt against
the respondent by many in the Union and that Clark, amongst others, formed and
expressed adverse views about him. If the so-called 'trial' and the general
meeting which followed had to be conducted by persons previously free from all
bias and prejudice, this condition was certainly not fulfilled. It would,
indeed, be an error to demand from those who took part the strict impartiality
of mind with which a Judge should approach and decide an issue between two
litigants - that 'icy impartiality of a Rhadamanthus' which Bowen L.J. in Jackson
v. Barry R. Co., [1893] 1 Ch. 238 at p. 248, thought could not be expected
of the engineer-arbitrator - or to regard as disqualified from acting any
member who had held and expressed the view that the 'closed shop' principle was
essential to the policy and purpose of the Union. What those who considered
the charges against the respondent and decided whether he was guilty ought to
bring to their task was a will to reach an honest conclusion after hearing what
was urged on either side, and a resolve not to make up their minds beforehand
on his personal guilt, however firmly they held their conviction as to Union
policy and however strongly they had shared in previous adverse criticism of
the respondent's conduct. [My emphasis.]
[21]
Undoubtedly, the language used by the Board, i.e.
the lack of will to reach an honest conclusion, differs from the language used
by the Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker]
where, at paragraph 46, it endorses once again de Granpré J.’s expression of
the test, written in dissent, in Committee for Justice and Liberty v.
National Energy Board, [1978] 1 S.C.R. 369, at page 394:
… 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.”
[22]
The context of an internal union disciplinary matter is
a specific one. The Board has been reluctant to interfere stating that its
mandate is not to sit on appeal from internal union disciplinary decisions but
to ensure that they are free from discriminatory practices (Horsley v. Canadian
Union of Postal Workers (1991), 84 di 201, 15 C.L.R.B.R. (2d) 141 citing Ronald
Wheadon et al. (1983), 54 di 134, 5 C.L.R.B.R. (NS) 192 at pages 150, 209
and 14,036-14,037).
[23]
Regardless which test for bias is applied, the Board’s
reasons and the record support the finding that the applicant has not met the
required burden (Bremsak 15 at paragraph 473). The hostile relationship
between the parties, the prior litigation and the naming the members of the
Executive Committee, as respondents, are insufficient facts, per se, to
satisfy the burden placed on the applicant. Either test must be applied keeping
in mind the relevant factual and contextual background. Here, the Institute
retained a third party to investigate both the April 2009 and June 2009 harassment
complaints. The investigator submitted four final reports, which included
factual findings that remained uncontested. The Institute relied on those
reports and the conclusions therein and came to a decision regarding the
appropriate sanction.
[24]
I am unable to conclude that a reasonable person, in
those circumstances, would conclude that it is more likely than not that the
Institute through its Executive Committee, did not decide the matter fairly,
whether consciously or unconsciously.
[25]
As for the alleged financial interest of the members
named in the retaliation complaint, this is a new argument. Counsel for the
applicant admits that, in front of the Board, this point was raised in a ''more
general way'', subsumed under a much wider allegation that the harassment
complaints were supervised by the Institute. Moreover, counsel for the
applicant was unable at the hearing to point to evidence relevant to this new
argument. This said, I note paragraph 453 of Bremsak 15 where the Board
specifically mentions that "[e]ach named respondent to the retaliation
complaint testified. Their testimonies were unshaken despite extensive
cross-examination by Mr. Bremsak’s representative, in that each made a personal
decision to raise allegations of harassment and to file a complaint of
harassment without the involvement of the Institute’s Board of Directors
". I also note that the Harassment Policy states that “the
Institute acknowledges its responsibility to do everything within its power to
prevent harassment, and to support and assist the employee(s) and/or member(s)
subjected to such harassment ". This undertaking by the Institute does not
rule out the possibility that counsel for the Institute would defend employees
or members against a retaliation complaint like the one lodged by Ms. Bremsak
against the named respondents. I take from this that the respondents were not
treated differently than any other employee or member would have been under
that policy.
iv) Section
2 of the Charter
[26]
I now move on to the applicant's allegations that the
Board also violated her right to procedural fairness in refusing to entertain
her argument under section 2 of the Charter. As mentioned above, the
gist of Ms. Bremsak's argument is that her various communications with the
Institute and its members are protected under the freedom of expression. She
was defending her legal and membership rights. As a result, the dismissal of
her retaliation complaint and the findings of harassment of the investigator
violate her constitutional right of freedom of expression guaranteed under
section 2b of the Charter. Board member Love should have examined the
applicant’s position in light of section 2.
[27]
On the facts of this case, this argument cannot
succeed. First, counsel for the applicant admits that this Charter
argument came very late in the proceeding in front of the Board who sat
approximately 15 days between August 2011 and June 2012 to hear this file.
Under those circumstances, it is hard to imagine that the Board committed an
error in dismissing the applicant's suggestion to adjourn the hearing to give
the Institute time to react to this new argument. Moreover, I agree with the
Institute that the freedom of expression guarantee in the Charter cannot
be used as defense against otherwise harassing conduct. As stated by the Board,
"Ms. Bremsak had a duty to behave with a minimum degree of civility toward
other Institute members. She was obliged to not engage in harassing
conduct" (Bremsak 15 at paragraph 433).
b) Other
alleged legal and factual errors committed by the Board
[28]
The applicant has failed to demonstrate that the
Board's decision is unreasonable. More specifically, I do not accept the
applicant's contention that there are serious issues with the investigator's
findings regarding the harassment complaints and that the Board was wrong in
adopting the investigator's conclusions. The investigator’s mandate was to
conduct an investigation pursuant to the Policy on Dispute Resolution
and having regard to the Harassment Policy. Therefore, he analyzed the
facts brought to his attention in light of the definition of harassment as
found in the Harassment Policy. The Board rejected Ms. Bremsak's narrow
interpretation of the word "harassment'' finding that the applicant ''does
not get to choose which harassment definition applies to the ... harassment
complaints'' (Bremsak 15 at paragraph 477). The applicant takes issue
with the Board’s view that the focus of an investigation into harassment
conduct ''is on the likely impact on the recipient and not on Ms. Bremsak's
intentions'' (ibidem at paragraph 481). This finding is reasonable. Any
attempt by Ms. Bremsak to defend her behavior on her desire to communicate with
the Institute or its members for a ''law-abiding purpose'' is overshadowed by
the Board's finding that ''(t)he evidence clearly shows that, on a balance of
probabilities, Ms. Bremsak engaged in a pattern of harassing conduct ...'' (ibidem
at paragraph 482).
[29]
As for the Veillette case argument, it lacks
merit. At paragraph 433 of its reasons, the Board found that “the illegality of
Ms. Bremsak’s suspension from elected offices … has no bearing on the
assessment of whether Ms. Bremsak’s conduct, committed between April 2008 and
June 3, 2009, was harassment”. The Board found that the matters before it were
about what Ms. Bremsak “said and did to other Institute members and not the
filing of her complaints with the [Board]” (ibidem). Ms. Bremsak’s
personal circumstances had to be weighed, as each case is unique. Once again,
the applicant has not persuaded me that the Board erred in finding that the
Institute had legitimate reasons to continue to respond to the original
complaints that were proceeding before the Board rather than automatically
reinstate Ms. Bremsak on the basis of Veillette, a decision rendered by
another panel of the Board in a matter which did not involve the applicant
directly (Bremsak 15 at paragraph 441).
Conclusion
[30]
Consequently, I propose to dismiss this
application for judicial review with costs. The costs are set at the amount of
$4,500 inclusive of disbursements and tax.
"Johanne Trudel"
“I agree
Eleanor R. Dawson J.A.”
“I agree
D.G. Near J.A.”
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