Date: 20051118
Docket: T-2249-04
Citation: 2005 FC 1562
BETWEEN:
CARL JAMES BURGESS
Applicant
and
ATTORNEY GENERAL OF CANADA
Respondent
Introduction
[1] These reasons follow the hearing on the 8th of November, 2005, of an application for judicial review of a decision of an Adjudicator appointed under section 92 of the Public Service Staff Relations Act[1] wherein the Applicant's grievance from the denial of his application for leave for personal needs was dismissed. The decision under review is dated the 19th of November, 2004.
Background
[2] The Applicant was employed at all material times with the Forest Resources Division of the Department of Indian Affairs and Northern Development of the Government of Canada (the "Employer"). He began work in the Yukon Territory as a Forest Ecologist in the autumn of 1998. In September of 2000, he began a one-year rotational assignment as a Forest Planner. At that time, he attests that there was low morale among the Employer's staff in the Yukon, especially among those employed in the Forest Resources Division. There had been a recent reorganization. There had been recent resignations among the staff.
[3] The Applicant found his new duties stressful. In the result, he attests, within a few months, he felt he needed a change.
[4] The Applicant sought a secondment from his Employer to an available position in the same line of work with the Yukon Government. At that time, there were discussions regarding the devolution to the Yukon Government of forest resources management for the Yukon.
[5] In March of 2001, the Applicant learned informally that his request for a secondment was to be denied.
[6] The Applicant met with the relevant Human Resources Director. He explained that he "needed a break because his stress levels were very high" and he asked for leave for personal needs pursuant to Article 17.10 of the relevant Collective Agreement. That Article reads in part as follows:
17.10 Leave without pay will be granted for personal needs, in the following manner,
...
(b) subject to operational requirements, leave without pay of more than three (3) months but not exceeding one (1) year to an employee for personal needs. [emphasis added]
The issue before the Adjudicator revolved to a significant extent around the concept "operational requirements".
[7] The Director of Human Resources denied his request due to "operational requirements" without specifying what the relevant "operational requirements" were.
[8] The Applicant filed a grievance concerning the denial. He assumed, in the absence of any specification of the "operational requirements", that those requirements concerned "getting the work out and supplying clients" in the existing circumstances of low morale, a recent reorganization, recent resignations of staff and the uncertainty regarding possible devolution of responsibility to the Yukon Government. In an effort to respond to the Employer's concern regarding unspecified "operational requirements", the Applicant submitted to the Employer a short-term plan to deal with the "perceived conflict between operational constraints and [his] professional development so that his requested secondment or requested leave for personal needs might be granted. His "plan" was rejected out of hand. The Employer continued to reject his request for secondment or personal needs leave. The continued rejection was said to be related to the Employer's reliance on his knowledge and experience to provide "client services". The Applicant's grievance was denied.
[9] On the 17th of April, 2001, the Applicant resigned his employment with the Government of Canada. He apparently felt that the stress associated with his rotational assignment to forest planning was simply too great to allow him to continue. He accepted employment with the Yukon Government.
[10] The Applicant's grievance was referred to adjudication, leading to the decision here under review.
The Evidence Before the Adjudicator
[11] Before the Adjudicator, the Applicant was the only witness called. All evidence, both oral and documentary, was submitted to the Adjudicator through the Applicant via his testimony, both on direct and cross-examination, and through a number of documents that were admitted before the Adjudicator on the consent of the parties. Among the documentary evidence put before the Adjudicator, there was included the Applicant's proposed work plan. The Applicant testified as to the recent reorganization and staff resignations earlier referred to. He testified that he assumed, without knowing, that these were the "operational constraints", relied upon by the Employer in rejecting his request for personal needs leave. He noted that, despite the Employer's allegation of "operational needs" necessitating the rejection of his request for personal needs leave, the position from which he resigned was not filled for some two (2) years after his resignation and until the time of the devolution of the relevant functions to the Yukon Government.
The Decision Under Review
[12] The Adjudicator wrote at paragraph [25] of his reasons for decision:
Whether the situation [in the workplace] is genuinely critical is a question of fact which requires a careful review. [emphasis added]
The foregoing statement was highlighted on behalf of the Applicant and not disputed on behalf of the Respondent.
[13] The Adjudicator concluded his reasons for decision in the following terms:
In summary, on the evidence I cannot find that the operational requirements raised by the employer in response to the grievor's [the Applicant's] application for leave did not exist or were unreasonable. It was entitled to make a determination about the priority and amount of work that was required to operate the workplace for the time of the leave. There were immediate operational requirements that required the grievor to be available. These were the reorganization and the resignations and the grievor knew about them at the material times. There were problems with the management of the operation but the operational requirements that are relevant to the application for leave can be considered separately from those problems.
In the result, the grievance was denied by the Adjudicator.
The Issues
[14] Counsel for the Applicant phrased the sole issue before the Court in the following terms:
Did the adjudicator make patently unreasonable findings of fact, without regard to the evidence before him, warranting this Court's intervention?
This issue statement, including the acknowledgement that the appropriate standard of review of the Adjudicator's findings of fact is "patent unreasonableness", was not disputed by the Respondent.
Analysis
[15] Counsel for the Applicant urged that, against the foregoing issues statement, the Adjudicator erred in relying only on evidence adduced before him by and on behalf of the Applicant, in the complete absence of evidence from the Respondent regarding the "operational requirements" on which the Respondent relied. The Applicant further submitted that the Adjudicator erred in a reviewable manner in failing to acknowledge the Applicant's evidence that was before him that, following his resignation, the position that he occupied was allowed to remain vacant for a period of some two (2) years, thus raising an inference that there were no pressing "operational requirements" that could not have been coped with by the Employer if it had granted personal needs leave as requested by the Applicant or had granted him the secondment which he requested.
[16] By contrast, counsel for the Respondent urged that the onus before the Adjudicator was on the Applicant, that the acceptance by the Adjudicator of the Applicant's assumptions as to what the Employer's "operational requirements" were was open to him and that, in the circumstances, there was no onus on the Employer to adduce evidence. Thus, it was urged the decision of the Adjudicator was open to him, on a standard of review of patent unreasonableness, and on the totality of the evidence that was before him. Counsel urged that the issue of "operational requirements" was fixed at the moment when the Employer rejected the Applicant's request for personal needs leave or a secondment and that the fact that the Applicant's vacated position remained unfilled for a significant period of time following his resignation was irrelevant to the issue of "operational requirements" at the moment of rejection. Thus, it was urged, the Adjudicator made no reviewable error in failing to comment on that evidence.
[17] Counsel for the Applicant urged that there were no facts before the Adjudicator that would allow him to reach a conclusion regarding the "operational requirements" relied on by the Employer. Rather, he urged, there was only the Applicant's own conjecture as to what those operational requirements were. He referred the Court to Minister of Employment and Immigration v. Satiacum[2] where Justice MacGuigan, for the Court, at paragraph 36, wrote:
There are no facts I have remarked in the record, and certainly none cited by the Board, which would found their inference. On that side there is only conjecture.
[18] Counsel for the Applicant urged that the foregoing was supported by my colleague Justice Harrington in Muliri v. Canada (Minister of Citizenship and Immigration)[3] where he wrote at paragraph 22:
That said, there is no doubt that this judicial deference does not amount to a blind acceptance of the findings of fact drawn by the panel, without any critical analysis by the Court. In fact, the judicial review process exists to ensure that administrative tribunals do not venture into the absurd thinking that they can make findings of fact which simply do not stand up and which are, to use the legal term, patently unreasonable.
[19] Counsel for the Respondent urged that the foregoing authorities simply are not applicable here, since the Applicant testified as to his "conjecture" regarding the Employer's "operational requirements" and, since that "conjecture" was not challenged on behalf of the Respondent when the Applicant was cross-examined, the Adjudicator was entitled to treat the "conjecture" as adopted as fact on behalf of the Respondent.
[20] Once again in Satiacum, supra, Justice MacGuigan wrote at paragraphs [34] and [35]:
The common law has long recognized the difference between reasonable inference and pure conjecture. Lord Macmillan put the distinction this way in Jones v. Great Western Railway Co. ...:
The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.
In R. v. Fuller..., Hall J.A., held for the Manitoba Court of Appeal that "[t]he tribunal of fact cannot resort to speculative and conjectural conclusions." Subsequently a unanimous Supreme Court of Canada expressed itself as in complete agreement with his reasons: ... . [citations omitted]
On the facts of this matter, and based upon the urgings of counsel for the Respondent, I am satisfied that the conclusions of the Arbitrator regarding the nature of the "operational requirements" here in issue amounted to reasonable inference and not to conjecture.
[21] With regard to the Adjudicator's failure to mention and to specifically analyse the impact of the evidence that was before him regarding the failure of the Employer to fill the vacancy that arose when the Applicant resigned, and that for an extensive period of time, counsel for the Applicant referred the Court to the oft-cited passage in Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration)[4] where Justice Evans, then of this Court, wrote at paragraphs [15] to [17]:
The Court may infer that the administrative agency under review made the erroneous finding of fact "without regard to the evidence" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result.
On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court..., nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it... . That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources. A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the Agency directed itself to the totality of the evidence when making its findings of fact.
However, the more important the evidence that is not mentioned specifically and analysed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": ... . In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. [citations omitted]
[22] The Adjudicator clearly made no mention in his reasons for decision of the evidence that was before him to the effect that the Applicant's position left vacant by his resignation was allowed to remain vacant for a substantial period of time, thus, it was urged, indicating that there were no imperative operational requirements that would have prevented the Employer from acceding to the Applicant's request for a secondment or personal needs leave.
[23] As earlier indicated in these reasons, counsel for the Respondent urged that such evidence was either irrelevant or not of substantial importance since the issue of operational requirements justifying the Employer's decision was to be determined at the time the decision was made and not in the light of subsequent circumstances. I adopt the position urged by counsel for the Respondent in this regard and thus conclude that the evidence that the Applicant's position was allowed to remain vacant for a considerable period of time after his resignation was of relatively little importance. Further, in the penultimate paragraph of his reasons, the Adjudicator states:
In summary, on the evidence I cannot find that the operational requirements raised by the employer in response to the grievor's application for leave did not exist or were unreasonable. ....
I am satisfied that the Adjudicator's reference to "on the evidence" was tantamount to a reference to all of the evidence that was before him and thus the reasoning reflected in the second above-quoted paragraph from the reasons of Justice Evans in Cepeda-Gutierrez, supra, is directly applicable. In the result, I reject the Applicant's position that the Adjudicator erred in a reviewable manner in failing to specifically mention the vacancy that was allowed to exist in the Applicant's position for a considerable period of time following his resignation.
Conclusion
[24] The Adjudicator's reasons for decision are, I conclude, thorough and rational and open to him on the evidence, such as it was, that was before him. I accept without reservation the position taken on behalf of the Applicant that the Employer was less than forthcoming with the Applicant, as well as with the Adjudicator, in justifying its failure to grant the Applicant personal needs leave. That being said, I am satisfied that there was sufficient evidence before the Adjudicator to allow him to arrive at the decision under review and that, against the totality of that evidence, on a standard of review of patent unreasonableness, the decision under review was open to him. Put another way, I am satisfied that the Adjudicator did not base his decision on an erroneous finding of fact that he made in a perverse or capricious manner or without regard to the material that was before him.
[25] In the result, I find further that the Adjudicator made no reviewable error in determining not to examine the issue of the remedy or remedies that would have been appropriate if the Applicant had been successful before him. In the result, this application for judicial review will
be dismissed with costs, on the ordinary scale, payable by the Applicant to the Respondent.
"Frederick E. Gibson"
J.F.C.
Ottawa, Ontario
November 18, 2005.
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2249-04
STYLE OF CAUSE: CARL JAMES BURGESS
Applicant
-and -
ATTORNEY GENERAL OF CANADA
Respondent
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: November 8, 2005
REASONS FOR JUDGMENT: GIBSON J.
DATED: November 18, 2005
APPEARANCES:
Steven Welchner FOR THE APPLICANT
Neil McGraw FOR THE RESPONDENT
SOLICITORS OF RECORD:
Steven Welchner, FOR THE APPLICANT
Welchner Law Office,
Barristers and Solicitors,
Ottawa, Ontario.
John H. Sims, Q.C., FOR THE RESPONDENT
Deputy Attorney General of Canada,
Ottawa, Ontario.
[1]R.S., 1985, c. P-35.
[2](1989), 99 N.R. 171 (F.C.A.).
[3][2004] F.C.J. No. 1376 (QL).
[4](1998) 157 F.T.R. 35.