Docket:
A-438-12
Citation:
2014 FCA 43
CORAM:
NOËL J.A.
MAINVILLE J.A.
WEBB J.A.
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BETWEEN:
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CHRIS HUGHES
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Applicant
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and
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ATTORNEY GENERAL OF CANADA
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Respondent
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REASONS
FOR JUDGMENT
MAINVILLE J.A.
[1]
This concerns an application for judicial review
challenging a decision of the Public Service Labour Relations Board (Board)
dated January 5, 2012 and bearing neutral citation number 2012 PSLRB 2
(Decision). In its Decision, the Board dismissed the applicant’s complaints
alleging that the Department of Human Resources and Skills Development (HRSD)
had violated paragraph 190(1)(g) of the Public Services Labour
Relations Act, S.C. 2003, c. 22, s. 2 in that it committed an unfair labour
practice within the meaning of section 185 of that Act.
[2]
In his complaints, the applicant alleged that HRSD had
failed to transfer or deploy him to another work site as he had requested and
that it also failed to continue to offer him employment after his term
appointment expired on June 27, 2008, because he expressed aspirations to
become a member of his union’s executive or because it wished to retaliate
against him for filing another earlier unfair labour practice complaint.
[3]
The Board held hearings in Victoria, British Columbia,
on October 13 and 14, 2010, from May 2 to 5, 2011, and on August 17, 2011. The
Board received into evidence numerous documents and heard many witnesses called
by both the applicant and HRSD. In its Decision comprising 475 paragraphs and
running for 58 pages in its printed version, the Board carried out a detailed
review of the evidence and of the applicant’s submissions.
[4]
Based on its analysis, the Board found that HRSD’s
decisions not to transfer or to redeploy the applicant were not motivated by
any anti-union animus. It further found that HRSD had submitted credible and
persuasive evidence regarding the reasons for not extending the applicant’s
term appointment a third time, and that the applicant had failed to establish
that this decision was made in retaliation for his expressed desire to become a
union executive member or because he had filed a prior unfair labour practices
complaint.
[5]
The applicant raises a multitude of issues in his
application seeking to overturn the Decision. Some on these issues are set out
as challenges to the analysis of the evidence carried out by the Board or to
the weight it gave to some evidence. The applicant also asserts that a witness
perjured herself, but on close analysis, this assertion rather concerns a
challenge to the credibility of the concerned witness and to the weight the
Board gave to that testimony. Other issues raised by the applicant concern
alleged violations to procedural fairness by the Board, notably for refusing to
reopen the hearing to consider new evidence and failing to accommodate the
applicant during the hearing by sitting long hours on certain hearing days.
[6]
I will first address the allegations relating to
procedural fairness and then consider the allegations with respect to the
Board’s failure to properly assess the evidence.
[7]
At paragraphs 320 to 328 of its Decision, the Board
dealt with the applicant’s numerous requests to adduce new evidence after the
evidence stage of the hearing had been completed. It found that some of the
evidence sought to be adduced was not new or directly relevant to the
complaints, and that the issues which the applicant wished to address had
already been discussed at the hearing.
[8]
The applicant has failed to show to this Court that the
Board erred in reaching these conclusions or that it breached the principles of
procedural fairness in so doing. On the contrary, the record before us shows
that the applicant was afforded ample opportunity to present evidence and to
put forward arguments to the Board.
[9]
The applicant also submits that the Board breached
procedural fairness when it refused to reopen the hearing after the Decision
had been issued so as to consider additional email communications which the
applicant alleges had been recently disclosed to him by his former employer.
Based on the record before this Court, the applicant has failed to show that
this evidence was pertinent to the issues before the Board or that it could
have possibly resulted in a different decision being issued by the Board.
[10]
The applicant adds that the Board refused to take into
account his history of stress, anxiety and depression during the proceedings
when it extended the hours during which some of the hearings were conducted.
However, the record does not disclose that the applicant sought an
accommodation from the Board on the concerned hearing days. In these circumstances,
I fail to see how the Board could have breached the principles of procedural
fairness.
[11]
With respect to the thrust of the applicant’s
submissions, which essentially challenge the assessment of the evidence by the
Board and the conclusions reached in its Decision derived from that evidence,
the role of this Court in judicial review is not to reassess the evidence or to
substitute our own opinion for that of the Board.
[12]
Rather, with respect to the findings of fact made by
the Board, our role is limited to determining whether the Board’s assessment of
the evidence and its conclusions derived from that evidence were reasonable. In
this context, the Supreme Court of Canada has explained “reasonableness” as
follows in Dunsmuir v. New-Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para. 47:
Reasonableness is a
deferential standard animated by the principle that underlies the development
of the two previous standards of reasonableness: certain questions that
come before
administrative tribunals do not lend themselves to one specific, particular
result. Instead, they may give rise to a number of possible, reasonable
conclusions. Tribunals have a margin of appreciation within the range of
acceptable and rational solutions. A court conducting a review for
reasonableness inquires into the qualities that make a decision reasonable,
referring both to the process of articulating the reasons and to
outcomes. 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.
[13]
Though the applicant is clearly unsatisfied with
the conclusions reached by the Board, he has failed to demonstrate that these
conclusions were unreasonable in light of the record considered as a whole. The
Board’s Decision is clearly intelligible and it is well articulated. Moreover,
based on the record placed before us, the Board’s conclusions in its Decision
all fall within a range of possible acceptable outcomes which are defensible in
respect of the facts and law.
[14]
The applicant placed some reliance on a decision
of the Canadian Human Rights Tribunal (Hughes v. Canada (Human Resources and
Skills Development), 2012 CHRT 22) which concluded that HRSD had not
accommodated his disability by not renewing his term contract. This decision is
currently the object of judicial review proceedings in the Federal Court, and I
will consequently express no opinion on its merits. However, I note that in
that decision, the Canadian Human Rights Tribunal also found that HRSD did not
subject the applicant to retaliation or threats of retaliation for filing his
human rights complaint. In light of this conclusion, I fail to see how this
decision can be of assistance to the applicant for the purpose of challenging
the Decision of the Board with respect to its dismissal of his unfair labour
practices complaints.
[15]
I would consequently dismiss the application.
Taking into account the applicant’s circumstances, this is not a case for
costs.
"Robert M. Mainville"
“I agree
Marc Noël J.A.”
“I agree
Wyman W. Webb
J.A.”
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