Docket: T-299-16
Citation:
2017 FC 1169
[ENGLISH
TRANSLATION]
Montréal, Quebec, December 19, 2017
PRESENT: The
Honourable Mr. Justice Shore
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BETWEEN:
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CAROLE
PRONOVOST
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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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JUDGMENT AND REASONS
(delivered from the bench on December 12, 2017)
I.
Nature of the case
[1]
This is a judicial review of a decision by the
Deputy Commissioner of the Human Resources Branch [the HR Deputy Commissioner]
of the Canada Revenue Agency [CRA], under section 18.1 of the Federal Courts
Act, RSC (1985), c. F-7. In that decision, which was delivered on January
19, 2016, the HR Deputy Commissioner dismissed the grievance filed by the
applicant at the final level of the grievance procedure.
II.
Facts
[2]
The applicant has been working at the CRA since
August 30, 1993.
[3]
On June 2, 2015, the applicant filed a
psychological harassment complaint under the CRA Preventing and Resolving
Harassment Policy [Policy] against 11 managers at the CRA’s tax services
offices in Montréal and Laval.
[4]
In her complaint, the applicant alleges events
that took place from 2009 to 2015.
[5]
In a letter dated July 20, 2015, a Deputy
Commissioner of the Quebec Region [the Deputy Commissioner] of the CRA
dismissed part of the allegations in the complaint with respect to 9 of the 11
respondents, given that [translation]
“these allegations were filed more than a year after
the last incident and/or they do not meet the definition of harassment”.
[6]
In that same letter, the Deputy Commissioner
agrees with some allegations regarding the other two respondents under the
Policy, and informs the applicant that, for it to be handled, a mandate to
investigate will be given to an external investigator.
[7]
On August 3, 2015, the applicant filed a
grievance against the decision by the Deputy Commissioner of the Quebec Region.
In her grievance, the applicant argues that all the allegations in her
complaint are admissible under the Policy, as they were not filed more that a
year after the date of the last incident, that not more than a year had passed
between each of the incidents, that it is constant harassment, and that each
allegation falls within the definition of harassment. This grievance was sent
to the final level.
[8]
At the final level, the applicant also submitted
a new argument, i.e. that a competent person must be appointed in accordance
with Part XX of the Canada Occupational Health and Safety Regulations,
SOR/86-304.
III.
Decision
[9]
On January 19, 2016, the HR Deputy Commissioner
dismissed the grievance filed by the applicant at the final level of the
grievance procedure, justifying her decision as follows:
[translation]
I carefully examined the circumstances
surrounding your grievance and I considered all the elements available in your
file.
Following my review, I am satisfied that the
allegations regarding each respondent have been examined and assessed by the
delegated authority based on the criteria set out in the Guidelines that arise
from the [Policy]. The allegations deemed inadmissible were out of time and/or
did not meet the definition of harassment.
As a result, your grievance is dismissed.
[10]
It is that decision that is subject to this
application for judicial review
IV.
Issues
[11]
In the Court’s view, the only two issues are
whether the HR Deputy Commissioner’s decision to dismiss the applicant’s
grievance is reasonable, and whether the HR Deputy Commissioner failed in her
duty of procedural fairness in making her decision.
[12]
Both parties agree that the applicable standard
of review for individual grievances submitted under the Public Service Labour
Relations Act, SC 2003, c. 22 is reasonableness (Hagel v Canada
(Attorney General), 2009 FC 329 at para 27).
[13]
As for the issue of procedural fairness, the
applicable standard of review is correctness (Canada (Attorney General) v
Sketchley, 2005 FCA 404 at para 47).
V.
Relevant provisions
[14]
The Policy defines workplace harassment as
follows:
Harassment is a form of misconduct /
improper behaviour by an employee that is directed at, and is offensive to,
another employee, and which that person knew or ought reasonably to have known,
would be unwelcome and cause offence or harm. It comprises objectionable
conduct, comment, or display that demeans, belittles, or causes personal
humiliation or embarrassment, and any acts of intimidation or threats, which
detrimentally affects individual well-being or the work environment.
[15]
An excerpt from the CRA Preventing and
Resolving Harassment Guidelines is also relevant:
4. Reviewing and assessing a complaint
(acceptance criteria)
…
The delegated manager will accept the
complaint if:
- it is filed no later than one year after
the date of the last incident, unless it has been determined that the
complainant could not do so because of a special circumstance (to be noted in
the complaint);
- it describes or outlines the allegation(s)
by:
- identifying the
respondent(s);
- providing the
names of any witnesses;
- describing what
the respondent(s) said or did that led to the harassment complaint and
providing date(s) of incident(s); and
- the description of the allegation(s) falls
within the definition of harassment and, at first appearance, justifies the
complaint.
VI.
Parties’ submissions
A.
Applicant’s arguments
[16]
The applicant essentially argues that the HR
Deputy Commissioner’s decision to dismiss her grievance is unreasonable. The HR
Deputy Commissioner allegedly violated the Policy and the Guidelines in making
her decision.
[17]
The applicant argues that the HR Deputy
Commissioner failed in her duty of procedural fairness. The HR Deputy
Commissioner allegedly did not justify her decision dated January 19, 2016, to
support the dismissal of certain allegations in the harassment complaint. The
applicant reportedly wanted to receive clarifications about the dismissal of
some of her allegations, given that the HR Deputy Commissioner allegedly did not
enclose a detailed analysis with her decision.
B.
Respondent’s arguments
[18]
The respondent argues that the HR Deputy
Commissioner’s decision is reasonable. In fact, the HR Deputy Commissioner
considered both the Policy and the Guidelines to make her decision.
[19]
At the final level of the grievance process, the
HR Deputy Commissioner had all the necessary information at her disposal to
assess the allegations in the complaint. She also had access to a table
entitled [translation] “Admissibility of the allegations”, prepared by the
Deputy Commissioner during the third-level grievance. This table indicates the
allegations against each of the respondents, along with the date of the alleged
incidents.
[20]
According to the respondent, an application for
judicial review of the HR Deputy Commissioner’s decision is not the appropriate
vehicle for asking the Court to reassess the facts and evidence on record in a
way that is more favourable to her position (Osborne v Canada (Attorney
General), 2005 FCA 412 at para 13).
[21]
Unlike the applicant’s allegation regarding the
issue of procedural fairness, the respondent points out that the HR Deputy
Commissioner does not have to justify her decision by referring to all the
arguments and the factual details argued by the applicant. Thus, decision-makers
do not necessarily have to provide an explanation at each stage of their
reasoning that led them to the final outcomes (Newfoundland and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
para 16 [Newfoundland Nurses]). The HR Deputy Commissioner justified her
decision and, as a result, her reasons must be within the reasonableness
assessment (Newfoundland Nurses, above, at para 22).
VII.
Analysis
[22]
For the following reasons, this application for
judicial review is allowed.
A.
Did the HR Deputy Commissioner make a reasonable
decision?
[23]
The Court considers that the HR Deputy
Commissioner’s decision is unreasonable.
[24]
It should be noted that since the applicant
submitted a new argument in her grievance at the final level, the record did
not support her allegation (Girard v Canada (Human Resources and Skills
Development), 2013 FC 489 at para 26). Thus, the HR Deputy Commissioner was
right in not considering this new argument, since her task consisted to
analyzing the impugned decision of the Deputy Commissioner of the Quebec Region
regarding the dismissal of certain allegations in the applicant’s complaint.
Furthermore, the HR Deputy Commissioner provided an explanation on that matter
in her decision dated January 19, 2016.
[25]
There is no need to rule on the arguments raised
by the applicant with respect to the decision dated July 20, 2015, since it is
not subject to this application for judicial review.
[26]
The HR Deputy Commissioner had to review the
decision dated July 20, 2015, in light of the Policy governing the
decision-making process. To arrive at this conclusion, the HR Deputy
Commissioner failed to review the entirety of the applicant’s record with the
necessary care, in accordance with the requirements of the Supreme Court of
Canada in Dunsmuir v New Brunswick, 2008 SCC 19 [Dunsmuir]; Newfoundland
Nurses, above; and Alberta Union (Alberta Union of Provincial Employees
v Lethbridge Community College), 2004 SCC 28. The HR Deputy Commissioner
did not assess the allegations against the respondents that were in the
applicant’s complaint for psychological harassment. The requirements of a
properly drafted decision, even brief, nevertheless require a reasoned overview
that shows the justification, transparency, and intelligibility to sufficiently
fulfill the duties of a decision-maker (Dunsmuir, above, at para 47; Newfoundland
Nurses, above, at para 9; Alberta (Information and Privacy Commissioner)
v Alberta Teachers’ Association, [2011] 3 S.C.R. 654, 2011 SCC 61 at para 52).
[27]
For these reasons, the HR Deputy Commissioner’s
decision does not fall within the range of possible, acceptable outcomes which
are defensible in respect of the facts and law (Dunsmuir, above, at para
47).
B.
Did the HR Deputy Commissioner fail in her duty
of procedural fairness?
[28]
In the Court’s view, the duty of procedural
fairness was not met in this case.
[29]
According to the Policy and the Guidelines, the
HR Deputy Commissioner’s reasons are not intelligible and do not provide the
applicant with the reasons—even brief—that her complaint was dismissed.
[30]
For these reasons, the Court finds that the HR
Deputy Commissioner made an error in law and that she did not provide
sufficient reasons to the applicant for the purposes of an adequate decision
with respect to allegations of psychological harassment. There are grounds for
our Court to intervene in this application for judicial review.
VIII.
Conclusion
[31]
This application for judicial review is allowed,
and the whole case is referred to another decision-maker to reassess the full
matter.
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