Nosistel v. Canada (Attorney General), 2017 FC 122

Date: 20170131

Dockets: T-1419-16

Citation: 2017 FC 122

[ENGLISH TRANSLATION]

Ottawa (Ontario), January 31, 2017

PRESENT: Roy, J.

BETWEEN:

EVEDA NOSISTEL

Applicant

and

THE ATTORNEY GENERAL OF CANADA

Respondent

ORDER AND REASONS

[1]               An application for judicial review pursuant to section 18.1 of the Federal Courts Act (LRC (1985), ch F 7) was initiated by Ms. Nosistel, the applicant, on August 25, 2016. The application is ostensibly related to a "decision" that was reportedly made by one of the respondents, Mr. Don Head. He is the Commissioner of Correctional Service Canada.

[2]               It is not clear following a plain reading of the applicant's notice which decision made by Mr. Head is being referred to. Ms. Nosistel, who is representing herself, is seeking a series of conclusions ranging from obtaining the acknowledgement of inconsistencies regarding the management of requests for access to information and a harassment complaint to full re-establishment of integrity, dignity, and reputation, and the assurance of fair restitution for the applicant. Furthermore, the applicants claim that many of the remedies sought are not available for judicial review.

[3]               For a reason that remains unclear, the applicants have decided to make a request under Rule 369 of the Federal Courts Rules (SOR/98-106) to obtain a dismissal of the application for judicial review rather than debate its merits. This application is the only issue at hand.

[4]               Three allegations are made in this application:

a)      The decision for which a judicial review is requested was reportedly not made by a federal office;

b)      The application for judicial review was apparently made after the deadline, which is set out at paragraph 18.1(2) of the Federal Courts Act;

c)      If the application is dismissed, the style of cause for the application for judicial review has been requested to be changed to substitute the respondents named with the Attorney General of Canada. 

[5]               I must admit that I do not fully understand the process undertaken by the applicants. It seems to me that it would have been easier to have the case decided on its merits. Instead, it is being claimed that the letter written by the Commissioner of Correctional Service Canada received on July 27, 2016, does not represent a decision that may undergo judicial review. 

[6]               The respondents argue that these are merely "courteous" and "polite" letters, which do not represent a decision that leaves the door open for a judicial review. There lies the crux of the matter. What was actually said during the exchange between Ms. Nosistel and the Commissioner?

[7]               I want to avoid becoming entangled in the details, but it is necessary to share some of them to minimally understand this case:

a)      On July 19, 2013, the applicant filed a complaint for harassment directed at her by the employees of Correctional Service Canada [CSC];

b)      This complaint was declared admissible on August 19, 2013;

c)      An investigation was ordered to take place. It was headed by an external consultant, who does not work for CSC, and was launched in October 2013; 

d)      Since this investigation concerns four persons, including the applicant who filed the complaint, four reports were prepared. They were completed on August 6, 2015, but they had to be redacted. This redaction was carried out on September 30, 2015;

e)      The decision to accept the conclusions of the investigation reports, which all concluded that the applicant's complaints were unfounded, was made on September 2, 2015, but it was not forwarded to Ms. Nosistel until October 2015;

f)        On November 18, 2016, the applicant filed a grievance regarding these final reports. She contested the conclusion that the complaints were unfounded. The grievance contained not only a series of allegations regarding the investigation, but also some allegations that seemed to be solely due to the framework of the reports;

g)      The Assistant Commissioner, human resource management issued a response to the applicant's grievance on January 28, 2016. The letter is unclear. It is explained in this letter that pursuant to the Public Service Labour Relations Act, a grievance cannot be filed by a former civil servant (the applicant allegedly resigned in June 2015) unless this person was suspended or fired under the Financial Administration Act. Investigation reports do not address these issues. However, the Commissioner adds the following:

[TRANSLATION]

"In light of the above, and even if I am wrong, I would like to remind you that the objectives of the Treasury Board Secretariat's Harassment Prevention and Resolution Policy are to promote conditions that are conducive to a safe and respectful work environment and to re-establish harmonious labour relations… This policy does not apply to a former civil servant."

(My emphasis)

Not only do I not understand the bearing of the Treasury Board Secretariat's policy on a grievance concerning final investigation reports, but the Assistant Commissioner does not seem to evince confidence in the reasons she put forward to—it seems to me—dismiss a grievance. 

h)      Thus, it comes as no surprise that the applicant wrote to CSC's Commissioner on March 3, 2016, presenting him with three copies of the grievances:

                              i.            One, dated February 15, 2015, dealt with the way the applicant claims she was treated during the investigation, but long before the final reports were submitted. The status of this grievance is not clear. It could be encompassed by the one dated November 18, 2015. What seems to be clear is that it was not processed.

                            ii.            Another grievance dated March 4, 2016, regarding what the applicant says is her "resignation in disguise";

                           iii.            The grievance dated November 18, 2015, which was allegedly the subject of the decision made by the Assistant Commissioner on January 28, 2016.

[8]               The Commissioner's response to the letter dated March 3 is ineloquent. On March 29, 2016, he acknowledged receiving the letter, without ever referring to its contents. Seemingly in a timely fashion, he indicated he had been made aware of an investigation led by the Canadian Human Rights Commission, with which he guaranteed CSC would cooperate.

[9]               The applicant once again wrote to the Commissioner on June 14, 2016. She reiterated that her understanding was that the grievances were not [TRANSLATION] "addressed by management" and wished to [TRANSLATION] "enquire about your position and your intentions regarding the next steps, if applicable." Once again, the Commissioner's response was laconic. He acknowledged receiving the letter on July 16, adding that [TRANSLATION] "the procedures followed to respond to your grievances complied with policies." The letter was allegedly received on July 27, the date on which the 30-day deadline for an application for judicial review began to be calculated, if one was made.

[10]           The applicant filed her application for judicial review with a Federal Court. The date borne by the Court's stamp is August 25, while the process itself is dated August 19. 

[11]           As indicated above, in their motion for dismissal dated November 10, 2016, the applicants claimed that no decisions had been made by the Commissioner on March 29 and July 16, 2016. From my point of view, this is far from clear upon a plain reading of the file before the Court. The applicants would like the Assistant Commissioner's letter dated January 28, 2016, to be the final decision on the grievance dated November 18, 2015. However, what about the two other grievances? In reality, the applicant seems to be putting three grievances forward: the one that was put forward in February 2015, before she resigned from her job; the one dated November 18, 2015; and a new grievance dated March 4, 2016, which regarded what she claims to be a resignation in disguise. Whether or not these grievances are valid, which I will not address, they should receive a response. The letter from the Assistant Commissioner dated January 28, 2016, was intended to respond to the grievance dated November 18, 2015, but it cannot address the grievance dated March 4, 2016. As for the grievance dated February 2015, it seems to have been met with dead silence.

[12]           Therefore, it is clear that—at best—the letter dated January 28, 2016, could be a response to the grievance dated November 18, 2015. Reportedly, the other grievances were not processed. The letters exchanged between the Commissioner and the applicant could be a refusal to deal with grievances or a dismissal of them.

[13]           Thus, two questions are raised by this. First, were the grievances filed in February 2015 and March 2016 processed? The grievances dated February 2015 and March 2016 do not seem to have been the subject of a decision, including the Commissioner's due to the responses that were not made to the applicant's letters. Second, was the Commissioner right to deal with the grievance dated November 2015 by ignoring it, which could—in itself—represent a decision?

[14]           I can easily concede that the application for judicial review is messy, and determining its scope is no easy task. Two of these grievances were submitted after the applicant resigned, and it seems to me that she included elements in her argument that are not relevant, too general, or subject to caution. Thus, in her voluminous motion record regarding the applicant's motion (November 28, 2016), she claims at paragraph 196 of her factum that she did not have "the opportunity to exercise her right to be heard, a fair chance to present her case, and enough time and details to respond." Other than this general assertion, we are searching for the facts that underpin everything, especially since the same motion record by Ms. Nosistel includes a letter dated November 27, 2014, from the Assistant Commissioner (another person than the signatory for the letter dated January 28, 2016), in which is found a long list of summaries of interviews sent to the applicant over the preceding months and about which comments required from her were not made. It is noted in the letter that the motion requested by the applicant had been initiated in October 2013.

[15]           At paragraphs 157 and 158 of her factum, the applicant comments on the first letter from the Commissioner, dated March 29, 2016, in which she indicated that the Commissioner concluded his response to her letter by saying that [TRANSLATION] "I can assure you that we will cooperate…" The applicant claims that [TRANSLATION] "this letter indicated that the applicant's concerns (i.e. her grievances) would be addressed, and it led to the legitimate expectation that it would receive a response." Such a comment is surprising because, on the face of it, the Commissioner's letter does not unequivocally deal with the grievances, but rather another application that Ms. Nosistel allegedly launched. Had the applicant cited the entire sentence instead of reducing it to the word "collaborate", its actual meaning would have quickly been understood: [TRANSLATION] "I can assure you that we will cooperate and provide the Commission (the Canadian Human Rights Commission) with all the information and documents necessary for their investigation."

[16]           The issue at hand is not to determine whether the applicant was right; It is rather to determine whether the application for judicial review is flawed as claimed by the respondents, namely whether the Commission made a decision on July 16, 2016. It has not been proven that no decision was made. The submitted file leaves the reader in the dark as to why the document dated July 16 does not represent a decision. The respondents submit that Ms. Nosistel "is actually asking this Court to look into the process by means of which her harassment complaints were handled and which, in turn, led to the decision made on September 2, 2015, that determined the complaints were unfounded and the decision on the grievance made on January 28, 2016" (Respondent's factum, para 26). This sentence is unclear, and I do not believe that it is the actual objective of the application for judicial review. The decision made on September 2, 2015 is not the one that is subjected to the judicial review, and it is important to fully understand the difference. Regarding the factum dated December 2, in which it is indicated that the Assistant Commissioner is responsible for the process by means of which harassment complaints are handled, a point should be clarified. In this document, it is argued that the applicant was merely seeking to have the Commissioner intervene in order to have the decisions made by the Assistant Commissioner changed. 

[17]           I fear genders were confused. The applicant is complaining that her grievances were not handled by the Commissioner. Two of them bear on the investigation that was conducted at her request. The applicant wants to use the grievance process to—seemingly—attack the final investigation reports and the way she was reportedly treated during the investigation (the grievance dated February 2015). The responses issued—if indeed they were—by CSC are not unclear, and the motion to have the application for judicial review dismissed is hardly more so.    No response concerning the grievances was made. In addition, we are led to understand that the applicant is claiming the Commissioner represents a stage in the grievance process. If that were the case, which has not been established, it would apply only to one of the three grievances anyway: The one filed on November 2015.

[18]           It would have been much more efficient to handle the case transparently. If the respondents have a position they would like to put forward on the subject of the grievance handling process, they should do so clearly. This could be a part of their representations on the merits. The same goes for the suggestion made that the remedies sought, or some of them, go beyond what is allowed by a judicial review. At issue here are the three grievances that the Commissioner, rightly or wrongly, did not handle. There lies, in my opinion, the subject of this application for judicial review.

[19]           Without ever saying it straightforwardly, we can read between the lines that the respondents would like to claim that the Assistant Commissioner acts during the last stage of the grievance process. If that is the case, it must be said openly and proven. I have not found anything that indicates where the stages of the resolution process for preceding grievances are located. I have not discovered the specifics concerning the decisions made either. Rather, it seems as if no decisions were made concerning two of the three grievances. In fact, if the Assistant Commissioner made a decision on the grievance dated November 18 as a last resort though this grievance is related to the final investigation reports, then she is also the person who—on September 2, 2015—accepted the conclusions of the four investigation reports that gave rise to the grievance that was made.

[20]           What adds to the confusion is that Ms. Nosistel applied for an extension of time, if indeed a judicial review should have been requested for the decision made by the Assistant Commissioner on January 28, 2016, as the respondents claim (factum dated November 10, 2016). At best, the letter dated January 28 addresses the grievance dated November 18, 2015. I would not hesitate to grant a time extension to contest the decision made on January 28, 2016, if it were necessary. The test to be applied is set out in Canada (Attorney General) v Hennelly, (1999) 244 NR 399 (FCA), and it includes four items:

1.      Is there still a continued intention to present the application?

2.      Does the application have some merit?

3.      Would the respondents be prejudiced?

4.      Is there a reasonable explanation for the time extension?

[21]           As for the two other grievances, the letter written on July 16 and received on July 27, 2016, apparently dealt with them. The application for judicial review dated August 25 was not submitted past the deadline.

[22]           This case is immersed in confusion. There lies the explanation for the time extension. The way the grievances were handled is confused, the grievances themselves are confused, and the decisions on the grievances—if any were made—are also confused. If the applicant was wrong to contest the Commissioner's decision because he allegedly did not make one—despite the unequivocal letter written by the applicant on June 14, 2016, in which the application to have it dealt with is present—this error is the result of all this confusion.

[23]           The applicant is not a person of great diligence. Despite this, she demonstrated diligence to a certain extent through the pursuits of her appeals, as attested by to the various documents written in 2016. I do not see any prejudice toward the respondents, considering that they are responsible for much of the confusion.

[24]           As for the chances of success, the application merely has to have some merit. It seems to me that it is not completely unfounded to the point that the applicant must be prevented from addressing the Court. In fact, the way the grievances were handled remains cloudy: Transparency is lacking. Given the confusion, it is preferable that a decision on the merits be made once the parties have presented their arguments and have clarified the imbroglio concerning the three grievances and the decisions that were—or were not—made.

[25]           The Commissioner had been alerted to the existence of the 3 grievances. The one dated November 18, 2015, could have been the subject of a decision in January 2016. But could it have been decided during the last stage? As for the two other grievances, the file does not reveal how they were handled. These are the issues in the application for judicial review.

[26]           In this respect, the parties would have benefitted from clarifying their positions. The applicant must precisely explain what her appeal concerns. As for the respondents, they would have benefitted from explaining the way the grievances were handled in this case. The lack of transparency allegedly adversely affected the review of their motion under Rule 369: Clarity of expression is sought. Clarifying the evidence more fully is also preferable. The case should be put back on track.

[27]           Finally, I will grant the application made by the respondents, who should not be designated as respondents. CSC is not a judicial entity and should not be designated as a party. As for the two other respondents, since they could represent a federal office, whose decisions are contested, they cannot be designated as respondents pursuant to paragraph 303(1) of the Federal Courts Rules:

[28]           I will add—with reason—that Liette Dumas-Sluyter could be disqualified because she is not concerned by the order sought.

[29]           Costs will not be awarded in this case. Granting costs is the exercise of a discretionary power. In my opinion, the applicant was responsible to a great extent for the confusion, to the point that the result of the proceeding cannot be attributed to her. This case is not as complex as it is confused. It seems to me that using Rule 400(6) would be appropriate in this case.

ORDER

THE COURT ORDERS that

1.               The motion to dismiss the application for judicial review is dismissed.

2.               The application for judicial review in question was not made past the deadline, and if it was made past the deadline, the deadlines in question are extended.

3.               Respondents Correctional Service Canada, Don Head and Liette Dumas-Sluyter are replaced with Attorney General of Canada, and this applies to the style of cause of this order and reasons.

4.               No costs are awarded;

5.               Deadlines pursuant to the Federal Courts Rules will be calculated starting from the date this order is issued.

"Judge Roy"