Docket: A-402-15
Citation:
2016 FCA 27
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CORAM:
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TRUDEL J.A.
STRATAS J.A.
RYER J.A.
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BETWEEN:
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SEAN CAVANAGH
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Applicant
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and
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CANADA REVENUE
AGENCY
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on
January 27, 2016).
TRUDEL J.A.
[1]
In a January 19, 2015 decision, an adjudicator
for the Public Service Labour Relations and Employment Board (the Board) rejected
Mr. Cavanagh’s grievances against his employer, the Canada Revenue Agency
(CRA), with respect to three disciplinary actions against him for conflict of
interest and for insubordination. The disciplinary actions included two
suspensions and culminated in termination of his employment. The Board’s
decision is cited as 2015 PSLREB 07.
[2]
Mr. Cavanagh applies to this Court for judicial
review of the Board’s decision. He alleges that the adjudicator misinterpreted
the CRA’s Conflict of Interest Code and Guidelines and failed to
consider his collective agreement, leading to an incorrect conclusion. He also
alleges the adjudicator exceeded jurisdiction by affirming the CRA’s
disciplinary actions.
[3]
It has previously been determined that the
standard of review of a decision of the Board with respect to dismissal or
disciplinary action is reasonableness (Payne v. Bank of Montreal, 2013
FCA 33, [2013] F.C.J. No. 123; King v. Canada (Attorney General), 2013
FCA 131, [2013] F.C.J. No. 551). There is no reason in this case to disturb
this settled law or to accept Mr. Cavanagh’s invitation to afford less
deference to the Board’s decision because of the impact of its decision on Mr.
Cavanagh’s life or because the Board lacks expertise in business valuation.
[4]
It would therefore only be appropriate to
disturb the decision if it failed to meet the well-established standard of
transparency, intelligibility and justification, or fell outside the range of
reasonable outcomes (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1
S.C.R. 190, at paragraph 47). To the extent that Mr. Cavanagh raises a true
question of jurisdiction, this is to be addressed on a standard of correctness
(Ibidem at paragraph 50).
[5]
We have not been persuaded that the
adjudicator’s decision was unreasonable or otherwise subject to reversal. The
adjudicator’s reasons are thorough and demonstrate a complete understanding of
the facts and of Mr. Cavanagh’s arguments. His conclusions that Mr. Cavanagh
was in a conflict of interest position due to outside activities, that Mr.
Cavanagh’s resistance of the CRA’s instructions to cease these activities
constituted insubordination, and that the disciplinary actions against him were
warranted were all justified by the evidence before the Board.
[6]
We see no merit to the distinction Mr. Cavanagh
seeks to raise between the existence of a potential conflict and his
characterization of his outside activities as a situation where a conflict
could exist and the ensuing argument that management could not act upon an
apparent conflict of interest, as it had found (applicant’s memorandum of fact
and law at paragraphs 61 and 75). Neither do we accept his allegation that the
adjudicator “created evidence outside that put forward
by the parties.” According to Mr. Cavanagh, the record shows that his
involvement in the specific activities for which he was allegedly sanctioned by
his employer had ceased well before or while he was under the cease and desist
order from his employer so there was no evidence upon which a cease and desist
order could be based on.
[7]
In our view, having carefully examined the
record, the adjudicator’s interpretation of the Conflict of Interest Code
and Guidelines and application to the evidence before him were entirely
reasonable.
[8]
Finally, the adjudicator clearly acted within
his jurisdiction to hear Mr. Cavanagh’s grievances and determine whether they
ought to be allowed (Public Service Labour Relations Act, S.C. 2003, c.
22, s. 2, at ss. 209, 223, 226).
[9]
For these reasons the application for judicial
review will be dismissed, with costs.
"Johanne Trudel"
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