Docket: A-4-15
Citation: 2015 FCA 291
|
PRESENT:
|
GAUTHIER J.A.
BOIVIN J.A.
RENNIE J.A.
|
|
BETWEEN:
|
|
MOHAMED
BALIKWISHA PATANGULI
|
|
Appellant
|
|
and
|
|
DEPUTY HEAD (DEPARTMENT
OF CITIZENSHIP AND IMMIGRATION)
|
|
Respondent
|
REASONS FOR JUDGMENT
GAUTHIER J.A.
I.
Background
[1]
Mohamed Balikwisha Patanguli (the appellant) is appealing
from the judgment of Justice George R. Locke of the Federal Court (the judge) (2014
FC 1206), which dismissed the application for judicial review of an adjudication
decision confirming the appellant’s dismissal (2014 PSLRB 6).
[2]
In his decision, the judge applied the standard
of reasonableness to the adjudicator’s ruling that the dismissal was an
appropriate disciplinary action in the case at bar and applied the standard of
correctness to the issues of procedural fairness. Except with regard to whether
or not the adequacy of reasons raises an issue of procedural fairness, the appellant
is not calling into question the choice of the standards of review. Rather, he
submits that the judge applied them incorrectly.
[3]
The role of this Court in an appeal from a decision
rendered on an application for judicial review is to verify whether the judge
has chosen the correct standard of review and applied it properly (Agraira v.
Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R.
559, para. 47 [Agraira]). In my opinion, the judge did indeed choose standards
of review appropriate for the issues before him. To determine whether he
applied them properly, this Court puts itself in the place of the judge and
focuses on administrative decisions (Agraira, para. 46). It is therefore
not necessary to review the errors that the trial judge has (allegedly)
committed and that are raised by the appellant.
II.
The employer’s decision
[4]
At the time of his layoff, the appellant held
the position of pre-removal risk assessment officer (PM-04 group and level), in
the Department of Citizenship and Immigration (the employer or CIC) in Calgary.
[5]
In a letter dated April 19, 2010 (Appeal Book, Vol.
I, Tab. 13, p. 98), Claudette Deschênes, then Assistant Deputy Minister of
Operations, informed the appellant of his dismissal. This disciplinary measure followed
an internal investigation report concluding that the appellant improperly obtained
the questions and answers to a selection examination to obtain a promotion and
used them to prepare and respond to said examination.
[6]
In her letter, Ms. Deschênes stated that the alleged
facts violated the Values and Ethics Code for the Public Service, the
employer’s code of conduct and the employer’s Policy on the Usage of Electronic
Networks. Ms. Deschênes found that the impugned conduct was very serious and that
it caused irreparable harm to the relationship of mutual trust that must be
maintained between an employer and an employee. Ms. Deschênes described the
process which led to the issuance of the final report and the meeting of March
31, 2010, in which the appellant had an opportunity to comment on this final
report. She also stated that she had taken into account mitigating factors, such
as the appellant’s number of years of service, his disciplinary record and
performance appraisals, as well as the appellant’s excuses and comments. She added
that the seriousness of the appellant’s actions was compounded by the fact that
he did not take full responsibility for the alleged facts and that he downplayed
the significance of his behaviour.
III.
Adjudicator’s decision
[7]
In his grievance filed on May 11, 2010, the appellant
contested his layoff by stating that it was an [Translation]
“extremely/overly severe disciplinary measure.”
[8]
In her 14-page decision, the adjudicator first
summarized the evidence before her and the parties’ submissions. The adjudicator
confirmed that the appellant had not disputed the fact that he had received and
used the selection examination answers.
[9]
The documentary evidence clearly established
that on July 8, 2009, the appellant had asked one of his two colleagues who had
taken the exam that day if she could send him the exam questions. She did not
answer him.
[10]
On August 7, 2009, the appellant received an
email including an attachment containing the questions and answers for the exam
he intended to write on August 13. This email originated from Ms. Lasonde’s
computer. The email was allegedly sent while she was out for lunch. The adjudicator
accepted Ms. Lasonde’s testimony as credible, and it was corroborated by someone
who was with her at the time that the email was sent. The adjudicator therefore
rejected the appellant’s explanation that it was Ms. Lasonde herself who had
sent him the email.
[11]
The evidence also indicated the times when the appellant
had used his employee pass to enter and exit the premises where he and his colleague
were working. Moreover, Ms. Lasonde’s computer had not been turned off when she
left her office and her password did not have to be re-entered for a period of
10 minutes after using the computer for the last time.
[12]
On August 7, 2009, the appellant transferred the
email received from his colleague’s computer to his personal mailbox. On August
12, the day before the exam, the appellant sent the exam questions and his pre-prepared
answers from his personal email address to his office email address. He
admitted that he had prepared his answers using the information received, but stated
that they had not really helped him because he already had all the necessary
knowledge to answer the questions that were not difficult in themselves.
[13]
The adjudicator was satisfied that the employer
had established, on a balance of probabilities, that it was the appellant who
had sent the email containing his colleague’s questions and answers from her computer
when she left her office at lunchtime. The adjudicator therefore rejected the
testimony of the appellant, who denied doing this and alleged, as I said
earlier, that it was indeed sent by his colleague.
[14]
The adjudicator stated that she did not hesitate
to deny the grievance because, not only was the evidence overwhelming, but there
was no doubt in her mind that [Translation]
“the allegations made and proven on a balance of
probabilities [were] serious and [had] irretrievably damaged the relationship of
trust that must exist between an employee and his or her employer” (Adjudicator’s
Decision, para. 81).
[15]
In doing so, the adjudicator rejected the
arguments of the appellant’s union representative to the effect that a more
lenient disciplinary measure was appropriate in this case given the appellant’s
exemplary record and the fact that there was no direct evidence that he had
sent the first email himself on August 7, 2009 (Adjudicator’s Decision, para.
87). In addition to stating that she was satisfied that it was more than likely
that the appellant had sent the email, the adjudicator pointed out that the
appellant still did not fully understand the seriousness of his actions, and his
testimony [Translation] “le[ft her] quite perplexed as to the public servant’s
attitude in this case and the sincerity of his remorse” (Adjudicator’s
Decision, para. 87).
[16]
The adjudicator also pointed out that, given the
very nature of the duties of pre-removal risk assessment officers and the
impacts of their decisions, this type of position required a strong bond of
trust between the employer and the employee.
[17]
Finally, the adjudicator dismissed the other
arguments raised by the appellant, including the fact that his employer should
have prevented him from writing the exam on the morning of August 13, 2009, and
the fact that the employer’s decision was tainted with many errors, including the
violation of the appellant’s language rights. In this regard, the adjudicator concluded
that the de novo process, which was held in French before her, had remedied
this alleged violation and allowed the appellant to make full answer and
defence. According to her, the appellant did not show that his dismissal had to
be set aside on that basis.
IV.
Analysis
[18]
Although he was not represented by legal counsel,
the appellant submitted very detailed arguments and supported his case with a
long list of case law. Given the serious consequences of the adjudicator’s
decision for his career and family, he obviously has difficulty accepting the
fact that the decision was well founded. For someone who is not a lawyer, a
number of issues related to questions of law or the assessment of evidence that
are obvious to a reviewing court or a court of appeal may appear to have more
significance than they actually do in a legal context. Like the Federal Court judge,
I do not consider it necessary to address every allegation made by the
appellant or every case cited which he has supported his argument. I will only
comment on the main ones because the appellant is convinced that the other issues
justify an intervention by our Court.
[19]
At the outset, I do not agree with the appellant
that the inadequacy of the reasons should be analyzed as a breach of procedural
fairness. The appellant is complaining that the adjudicator has not expressly
addressed all the arguments raised by him and all of the case law he cited,
such as Parisé v. Canada, 1997 CanLII 16521 (FC), which the adjudicator
failed to include in paragraph 80 of her decision. In light of Newfoundland
and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011
SCC 62, [2011] 3 S.C.R. 708, at para. 22 [Newfoundland Nurses], I
conclude that the adequacy of the adjudicator’s reasons, or rather the
reasoning underlying her decision, cannot be called into question here except in
the analysis of the reasonableness of the decision.
A.
Reasonableness of the adjudicator’s decision
[20]
The appellant maintains that the adjudicator’s
decision is unreasonable for many reasons, including the following:
a) The
adjudicator’s reasons are insufficient with regard to the key issues such as
the proportionality of the sanction imposed, the analysis of case law cited, the
bias of the investigation committee and the violation of his linguistic rights;
b) The
adjudicator poorly analyzed the evidence, particularly (i) Robert Ferguson’s
testimony and, (ii) the credibility of the witnesses present before her
including the appellant and his colleague Ms. Lasonde;
c) The
adjudicator could not conclude that the appellant had sent the first email on
August 7, 2009, from his colleague’s computer in the absence of direct evidence
in this regard.
[21]
The appellant is challenging the adjudicator’s assessment
of the proportionality of the disciplinary measure imposed. In fact, according
to him, the adjudicator did not satisfactorily take into account the principle
of the proportionality of sanctions. I would like to point out that a plain
reading of the adjudicator’s reasons shows that she addressed this issue, which
was the main issue raised in the appellant’s grievance (Adjudicator’s decision,
paras. 64, 65, 71 and 87). Moreover, the assessment of the proportionality of
the sanction imposed is at the very heart of the adjudicator’s competency and
expertise. Contrary to what the appellant is suggesting, the adjudicator did
not need to examine case law which simply reiterates the general principles
applicable to the case. The Supreme Court of Canada made the following comments
in Newfoundland Nurses:
Reasons may not include all the arguments,
statutory provisions, jurisprudence or other details the reviewing judge would
have preferred, but that does not impugn the validity of either the reasons or
the result under a reasonableness analysis. A decision-maker is not required to
make an explicit finding on each constituent element, however subordinate,
leading to its final conclusion (Service Employees’
International Union Local No. 333 v. Nipawin District Staff Nurses Assn., [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons
allow the reviewing court to understand why the tribunal made its decision and
permit it to determine whether the conclusion is within the range of acceptable
outcomes, the Dunsmuir
criteria are met.
(Newfoundland Nurses, para. 16)
[22]
The adjudicator is deemed to know the
well-established general principles of the proportionality of disciplinary
measures and the appellant has not rebutted that presumption.
[23]
When the adjudicator’s reasons are examined in the
light of the evidence before her and the nature of her statutory task, I can only
conclude that the reasons adequately explain the basis of her decision.
[24]
Moreover, the appellant seems to have
incorrectly interpreted the standard of review that applies to the merits of
the adjudicator’s decision, namely the reasonableness of the decision. The
Supreme Court of Canada stated in Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190 that:
[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.
[25]
Consequently, the fact that, in a similar case
to ours, another decision-maker reached a different conclusion than the one
reached by the adjudicator in the case at bar (Parisé v. Canada, 1997
CanLII 16521 (FC); Hampton v. Treasury Board, PSSRB, File No 166-2-28445 (1998) PSLRB 166‑02-28445
(19981123); Hickling v. Canadian Food Inspection Agency, 2007 PSLRB 67) does
not necessarily mean that the decision before us is unreasonable.
[26]
As I clearly explained in the hearing, this Court
cannot simply substitute its own assessment of the evidence for that of the adjudicator,
especially with regard to the credibility of testimonies and the weight to be
given to them.
[27]
The appellant has not convinced me that the evidence
of record did not support the adjudicator’s conclusion that the employer had
established on the balance of probabilities that the appellant had sent the email
from his colleague’s computer. Direct evidence is not always required; it was
entirely appropriate for the adjudicator to draw an inference from the
circumstantial evidence before her. Moreover, the simple fact that the adjudicator
made an error in paragraph 82 of her decision by indicating that the appellant had
sent the answers directly to his home from his colleague’s computer is not
sufficient to justify our intervention in this regard.
[28]
After a careful review of the appeal book, the adjudicator’s
decision and the appellant’s arguments, I am of the opinion that the adjudicator’s
conclusion is within the range of possible, acceptable outcomes which are
defensible in respect to fact and law.
B.
Procedural fairness
[29]
On the one hand, the appellant maintains that breaches
of procedural fairness leading to his dismissal could not be corrected by a de
novo investigation and assessment before the adjudicator. On the other hand,
he maintains that the adjudicator had erred by not ruling on the issue of the investigation
committee’s bias. The appellant also submits that the adjudicator herself was biased
and that she had not allowed him to make a full answer and defence.
(1)
Procedural fairness and de novo process
[30]
The appellant submits that his right to procedural
fairness was impaired by the disciplinary investigation committee and by Ms.
Deschênes.
[31]
First, the appellant submitted that he had a
legitimate expectation that Bram Strain, the person who met with him on March 31,
2010, to discuss the final investigation report, would make a decision about
the appropriate disciplinary sanction. According to the appellant, [translation] “it
should be the one who hears the matter who makes the decision.” At a
minimum, the appellant believes he had a legitimate expectation that the submissions
he made to Mr. Strain, and the apology email that he sent to him on March 31, 2010
after their meeting, would be considered by Ms. Deschênes in her decision.
[32]
Second, the appellant contends that the employer’s
refusal to conduct disciplinary hearings in French as he had requested twice
(August 27 and 31, 2009), had violated his right to freedom of expression as guaranteed
by subsection 2(b) of the Canadian Charter of Rights and Freedoms and
language rights protected under section 16 of the Charter and by the Official
Languages Act (the Act). Even though the appellant insists that this issue
should not be treated as simply a breach of procedural fairness, his grievance
did not raise the violation of his language rights as a separate issue to be
settled by the adjudicator. Therefore I will address them.
[33]
With regard to the submissions made to Mr.
Strain, I note that, contrary to the appellant’s contention, the letter of
April 19, 2010 states the following:
On March 31, 2010, you and your bargaining
agent representative attended a pre-disciplinary hearing to discuss the results
of the final Investigation Report.
At the hearing, you stated that you are very
sorry for your actions due to the impact the investigation has had on you
personally and on your family. You also stated that you regret having received
and used the assessment questions because you could have given the same
responses without having the questions ahead of time. You stated emphatically
that such behaviour would not occur again.
(Letter of April 19, 2010, Appeal Book, Vol.
I, Tab 13, p. 99)
[34]
In his email of March 31, 2010, the appellant suggested
that he was reiterating the apology previously forwarded to his employer.
[35]
Contrary to the appellant’s allegations, procedural
fairness does not require administrative decision-makers to meet with the appellants
themselves. The letter of April 19, 2010, indicates that most of the appellant’s
submissions had indeed been forwarded to Ms. Deschênes, whether or not she had seen
the email of March 31, 2010. Moreover, the allegations contained in paragraphs 69
to 71 of the appellant’s affidavit are directly contradicted by the clear and
unequivocal content of the letter of April 19, 2010.
[36]
I would like to add that it is far from clear that
the appellant’s union representative, who made legal submissions before the adjudicator,
had addressed this breach of procedural fairness. The adjudicator did not discuss
it in her decision, and the appellant only indicated in paragraph 74 of his
affidavit that he himself had raised this breach during his testimony of September
12, 2013. It is obvious that the arguments and presentation of factual evidence
through testimony are separate processes.
[37]
In any event, even if I agreed that Ms.
Deschênes had not been informed of the email of March 31, 2010, or that she had
not benefitted from a detailed summary of the submissions made on March 31, 2010,
in my opinion, this breach, if any, has been corrected by the de novo
process before the adjudicator.
[38]
The Public Service Labour Relations Board case
law is clear: a hearing held before an adjudicator of a grievance constitutes a
de novo hearing (For example, see “B” v. Canadian Security
Intelligence Service, 2013 PSLRB 75, para. 30).
[39]
In Danyluk v. Ainsworth Technologies Inc.,
2001 SCC 44, [2001] 2 S.C.R. 460, the appellant submitted that she did not have
an opportunity to rebut her employer’s allegations in an investigation related
to her claim for unpaid commissions and wages. Justice Binnie commented, in an obiter,
as follows:
[32] If an internal review were ordered, an adjudicator
would then have looked at the appellant’s claim de
novo and would undoubtedly have shared the employer
documents with the appellant and given her every opportunity to respond and
comment. I agree that under the scheme of the Act procedural defects at the
ESA officer level, including a failure to provide proper notice and an
opportunity to be heard in response to the opposing case, can be rectified on
review.
[Emphasis added.]
[40]
Our Court’s doctrine has applied this same principle
for at least 30 years. As Justice Urie held in Tipple v. Canada (Treasury
Board), [1985] FCJ No. 818 (FCA):
Assuming that there was procedural unfairness
in obtaining the statements taken from the Applicant by his superior (an
assumption upon which we have considerable doubt) that unfairness was wholly
cured by the hearing de novo before the Adjudicator at which the Applicant had
full notice of the allegations against him and full opportunity to respond to
them.
[41]
In Bonamy v. Canada (Attorney General),
2009 FCA 156, Justice Létourneau ruled that the de novo proceeding before
the Federal Court justice in an appeal of a prothonotary’s decision had
remedied a breach in procedural fairness before the prothonotary. In that case,
the prothonotary had not taken into account the applicant’s response to the
motion to dismiss that was before him.
[42]
In McBride v. Canada (National Defence),
2012 FCA 181 [McBride], Justice Pelletier also concluded that the breach
of Mr. McBride’s right to procedural fairness (specifically the failure to
disclose the medical records on which the first administrative decision-maker
had relied) had been remedied by the de novo hearings held before the Grievance
Board and the Chief of Defence Staff (McBride, para. 45). In that decision,
Justice Pelletier clarified the question to be considered when a breach of procedural
fairness is followed by a de novo procedure. He stated at paragraph 44
that it is more useful to frame the question in terms of “whether, given the circumstances as a whole, the
procedure was fair” (Emphasis added).
[43]
At the hearing, the appellant emphasized the importance
of a Quebec Superior Court case, Doré c. Commission des relations du travail,
2007 QCCS 4760 (CanLII), paras. 83-91 [Doré]. In his written submissions
after the hearing, he also referred to Neary v. Portugal Cove-St. Philip’s,
2013 NLCA 47 (CanLII) [Neary], in which Justice Rowe of the Newfoundland
and Labrador Court of Appeal concluded that Mr. Neary had the right to a fair hearing
both before his employer and before the court reviewing the employer’s
decision. In Neary, a de novo hearing before the reviewing court
had not been sufficient to remedy the employer’s breach of fairness. Although
these cases support indeed the appellant’s position, the two courts did not discuss
the doctrine of our Court or that of the Board. Sound judicial administration requires
that this Court follow prior cases (Miller v. Canada (Attorney General),
2002 FCA 370, paras. 9-10). Nothing in either Doré or Neary leads
me to conclude that our Court obviously erred by making the decisions it did in
the cases described in paragraphs 40 to 42 above or by asking the question
asked by Justice Pelletier in McBride. It is therefore the latter case
law that I will apply here.
[44]
Given the circumstances as a whole of this case,
I am satisfied that the appellant was treated fairly. The content of the letter
of April 19, 2010, shows that Ms. Deschênes knew of the meeting between Mr.
Strain and the appellant. The fact that Ms. Deschênes did not see the email of March
31, 2010, is not sufficient to conclude that it was a breach that justifies setting
aside the decision before us, especially when we consider that this email was before
the adjudicator and that the appellant had an opportunity to present all of his
arguments in this regard.
[45]
With regard to an infringement of the appellant’s
language rights, the final investigation report dated January 26, 2010, signed
by Mr. Ferguson and Pirt Horodyski, states that:
At the beginning of Mr. Balikwisha-Patanguli’s
first interview with the investigating committee on August 31, 2009, Mr.
Balikwisha-Patanguli expressed two concerns to the committee.
…
Secondly, Mr. Balikwisha-Patanguli requested
that the interview be conducted in French as this is his first official
language. The committee explained that due to the fact that Mr.
Balikwisha-Patanguli’s work location, CIC Calgary, is not designated a
bilingual region for language of work and that he has been deemed to meet the
English Essential language requirements of his current position, the interview
would be conducted in English. Mr. Balikwisha-Patanguli was, however, advised
that the committee would take extra care to ensure clarity of the questions
being posed and understanding of Mr. Balikwisha-Patanguli’s responses. Mr.
Balikwisha-Patanguli was encouraged to seek additional clarification if and
when he did not understand a question being asked or if and when he felt that a
response was not totally understood by the committee. The committee also
offered that should Mr. Balikwisha-Patanguli feel the need to provide
additional follow-up to the interview, he could do so in writing. Mr. Balikwisha-Patanguli
was in agreement to proceed with the interview on this basis. Mr.
Balikwisha-Patanguli did not indicate any concerns related to his ability to
express himself or understand the questions posed during the interview and at
the conclusion of the interview, he declined the offer to provide a written
follow-up to the interview. Neither Mr. Balikwisha-Patanguli nor his union
representative raised any further concerns regarding the use of the English
language at the second interview with the investigating committee [September 1,
2009] or at any other time during the investigation process.
[46]
It is far from clear to me that the appellant actually
had the language rights he alleges to have had under the Charter and the Act,
which enforces sections 16 to 20 of the Charter (Lavigne v. Canada (Office
of the Commissioner of Official Languages), 2002 SCC 53, [2002] 2 S.C.R.
773). The appellant cites section 16 of the Charter and the purpose of the Act (section
2), without demonstrating that these provisions imposed an obligation on his employer
to ensure that the interviews on August 31 and September 1, 2009, took place in
French. If there was such an obligation, it would likely result from Part V of
the Act entitled “Language of Work.” That part
of the Act distinguishes between different regions of the country. As Calgary is
not a “prescribed region” under Part V, an employer’s
linguistic obligations respecting employees are more limited in that region.
[47]
Mr. Patanguli did not file a grievance regarding
this so-called violation of his language rights and nothing indicates that he filed
a complaint about it under the Act. In the absence of arguments demonstrating that
the purpose of the Act may be the source of the obligation that the appellant says
he benefits from, I cannot conclude that his language rights were violated in
this case. Therefore, it is not useful to examine the impact that the de
novo process before the adjudicator could have had in this regard.
(2)
Bias and other breaches of procedural fairness
[48]
The appellant contends that the investigation
committee and the adjudicator showed bias. According to him, the investigation
committee was unfavourably biased against him and had already decided that he
was guilty. Moreover, the appellant submits that the adjudicator showed bias by
asking him to keep his testimony brief, allegedly because she had to go to a
funeral, and by refusing to call an adjournment so that the pleadings could be
held in Ottawa at a later date, which would have given the appellant more time
to complete his testimony. According to the appellant, the adjudicator was also
biased, which influenced her decision.
[49]
The Supreme Court of Canada propounded the
relevant test to assess the existence of an apprehension of bias in Committee
for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at
para. 19; it consists in this question: “what would an informed
person, viewing the matter realistically and practically—conclude?” about
an apprehension that a decision made is biased.
[50]
Since decision-makers are presumed impartial, the
above-described standard must be rigorously applied. I note that neither the appellant
nor his representative raised any objection about the adjudicator’s neutrality
before she rendered her decision. The points that the appellant is complaining
about and all the elements he raised in his memorandum have not convinced me of
the existence of an apprehension of bias in the case at bar, both in terms of
the investigation committee and the adjudicator.
[51]
Moreover, the appellant has not convinced me
that there was another breach owing to the fact that the requested adjournment was
refused.
[52]
Considering the above, I conclude that the
decision before us should not be quashed on the basis of a breach of procedural
fairness.
V.
Conclusion
[53]
The standards of review have been correctly
applied. The adjudication decision does not contain any errors that justify our
intervention. I therefore propose to dismiss the appeal.
“Johanne Gauthier”
“I agree
Richard Boivin J.A.”
“I agree
Donald J. Rennie J.A.”
Certified true translation
François Brunet,
Revisor
Email this Content