Date: 19981229
Docket: T-371-96
BETWEEN:
MICHAEL JOSEPH McCORMICK,
Applicant,
- and -
THE ATTORNEY GENERAL OF CANADA,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] The applicant seeks, pursuant to sections 18 and 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, as amended, judicial review of the decision (PSSRB file no. 166-2-26274) of the Public Service Staff Relations Board adjudicator, Yvon Tarte, dated 18 September 1995, which upheld Transport Canada"s decision to terminate his employment.
Background
[2] The applicant, Michael Joseph McCormick, was formerly employed by Transport Canada at the London, Ontario Airport. He began his career with the public service in May 1971 as a labourer and eventually worked his way up to the position of Manager, Resource Management, which he held from 1 August 1988 until the effective date of termination, 24 June 1994.
[3] The applicant"s career with Transport Canada was rather uneventful until the spring of 1992. On 14 May 1992, he presented to his employer a medical certificate signed by his physician indicating that he would be unable to work until 16 November 1992. He complained of fatigue and absentmindedness, and commenced his sick leave on 8 June 1992.
[4] Health and Welfare Canada assessed the applicant"s health in October 1992 in anticipation of his return to work. Dr. Parliament, a medical officer with Health and Welfare Canada, arranged for the applicant to see Dr. Bendheim on 26 November 1992. Depression was diagnosed as the probable cause of the applicant"s difficulties. Dr. Parliament"s report stated that the applicant had recovered from his illness and was ready to return to work; however, the doctor also deemed the applicant to be "class C"unfit for work" (respondent"s record ["RR"], tab C-24, p. 127). Neither the applicant nor his supervisor, Steve Baker, were made aware of this latter portion of the assessment before June 1993.
[5] The applicant returned to work at the airport on 16 November 1992, and worked on a special project of a non-supervisory nature in order to ease his return to the workplace. This lasted until end of December. For the period of January 1993 until 5 April 1993, when the applicant went off on a second sick leave, there is some dispute as to the nature of the applicant"s duties. He contends that he resumed his duties fully, while Mr. Baker testified before the adjudicator that it was a return based on incremental stages. In support of his position, the applicant points to an assessment of him done by Mr. Baker on 19 April 1993 (RR, tab B-9, p. 72), which makes no mention of the special project and appears to have assessed him on his regular duties, albeit in a negative fashion. Indeed, the assessment recommends re-deployment to another position commensurate with his "current capabilities."
[6] After the applicant went on sick leave, he and Mr. Baker canvassed the possibility of demotion to a position of lesser responsibility in order to accommodate the applicant. While the applicant accepted this offer, he claims he did so under threat of release, and indeed shortly thereafter he advised Mr. Baker that he felt confident he could return to his old position and thus was no longer in need of a demotion.
[7] Dr. Bendheim conducted another assessment of the applicant and completed a report on 19 August 1993, which concluded that the applicant was focussing his difficulties around Mr. Baker, and that his depression continued. Dr. Parliament summarized this report, concluding that the applicant remained unfit for work, and suggesting possible mediation to resolve the perceived interpersonal conflict.
[8] The applicant"s sick leave continued, as did attempts by his doctors to make a diagnosis. On April 24, 1994 Drs. Parliament and Bendheim concluded that the applicant was unlikely to return to work in the near future. On 24 May 1994, Dr. Parliament advised the respondent that the applicant was making little progress toward recovery, and that his doctors had been unable to make a diagnosis. He concluded, saying that the applicant remained unfit for work and it did not seem that he would be able to return to work in the foreseeable future (RR, tab B-15, p. 90).
[9] The applicant was advised on 14 June 1994 that his employment was being terminated effective 24 June 1994 due to medical incapacity for an extended period (RR, tab B-10, p. 81). The applicant submitted a grievance on 24 June 1994.
The adjudicator"s decision
[10] The applicant"s grievance was referred to adjudication, and a hearing was held on July 6 and 7, and August 8 and 9, 1995 before Yvon Tarte of the Public Service Staff Relations Board. In denying the applicant"s grievance, the adjudicator held:
| In order to terminate an employee for incapacity pursuant to paragraph 11(2)(g) of the Financial Administration Act, the employer must show that, at the time of termination, the employee was unfit to work and would not be in a position to work in the foreseeable future. |
| All concerned agree that in June, 1994, Mr. McCormick was not fit to work. At issue then is the employer"s determination that the grievor would not be able to return to work in the foreseeable future. The question must generally be determined by assessing the situation at the time of termination. In other words, the propriety of the employer"s decision will usually be determined on the basis of the facts available or reasonably available to the employer at the time of the termination. |
| * * * |
| Illness can in some situations frustrate the employment contract. Although an employee is entitled to leave benefits to cover temporary and even lengthy absences, there comes a time, after such earned leave has been liquidated, when an employee"s inability to perform the duties of his or her position and the fact that he or she will not be able to do so in the foreseeable future will lead inexorably to termination. |
| The "foreseeable future" must be defined in keeping with the circumstances of each case and may vary depending on the area of law concerned. The definition may very well be different in an income tax setting than in the world of labour relations. I am of the opinion that, after close to two years of absence, a six-month period could reasonably constitute the foreseeable future. In June, 1994, Mr. McCormick could not perform the duties of his position, and it could not be anticipated that he would be able to do so in the foreseeable future. |
| The question is not whether I or some other person might have been inclined to wait a bit longer, but whether the employer"s decision to terminate the grievor"s employment in June 1994, was reasonable. With regret, I must conclude that it was. |
| (RR, tab A, pp. 24-28) |
Issues
What is the appropriate standard of review?
Did the adjudicator commit any errors such that judicial intervention is warranted?
Analysis
Standard of Review
[11] The adjudicator was appointed pursuant to s.93 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (hereinafter: the "PSSR Act"). Section 92 provides for referring matters to adjudication, thus establishing the adjudicator"s jurisdiction. Section 92(b )(ii) allows an adjudicator to hear matters arising out of termination of employment or demotion pursuant to s. 11(2)(f) or (g) of the Financial Administration Act, R.S. 1985, c. F-10. The PSSR Act"s privative clause, formerly found in s. 101, was repealed by the Public Service Reform Act , S.C. 1992, c. 54, s. 73, effective 1 June 1993.
[12] In determining the degree of deference which should be accorded to the adjudicator"s decision, reference must be made to four factors: the specialized nature of the tribunal, whether a statutory right of appeal exists, the nature of the issue to be decided by the adjudicator, and the existence of a privative clause: Canada (Attorney General) v. Wiseman (1995), 95 F.T.R. 200 (F.C.T.D.), which held that the decision of the adjudicator, who was appointed pursuant to the PSSR Act, should be given "considerable or significant curial deference, particularly since it concerns a matter squarely within the scope of the arbitrator"s jurisdiction and special expertise." Only decisions not supported by the evidence are subject to judicial intervention.
[13] In Barry Green v. Treasury Board (Transport Canada), (1997) 134 F.T.R. 108, Mr. Justice Cullen concluded, in line with Wiseman, that considerable curial deference should be granted to the adjudicator"s decision. The appropriate standard of review for decisions of an adjudicator acting under the PSSR Act was whether the decision was patently unreasonable.
[14] The Supreme Court of Canada defined what constitutes a patently unreasonable decision in Attorney General of Canada v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941. At page 964, Mr. Justice Cory held that the board"s decision must not just be wrong in the eyes of the reviewing court; rather, to be patently unreasonable, the decision must be clearly irrational.
[15] Thus, in the instant case, a considerable measure of curial deference should be accorded to the adjudicator"s decision. To warrant judicial intervention by the reviewing Court, the adjudicator"s decision must be patently unreasonable, or clearly irrational, and not merely wrong in the eyes of this Court.
The adjudicator"s decision
[16] Issues relating to the termination of an employee"s employment fall within the very heartland of the adjudicator"s jurisdiction. Thus, considerable curial deference applies. Adjudicators, in coming to their decisions, must observe witnesses" demeanour, hear and weigh evidence, make findings of fact, and draw the necessary conclusions. In the case at bar, that is precisely what the adjudicator did.
[17] The issues before the adjudicator were: whether the applicant was incapacitated for an extended period of time; whether he was unfit for work at the time his employment was terminated; and, whether he would remain unfit for the foreseeable future.
[18] In making his decision, the adjudicator considered whether an arbitrator may examine subsequent-event evidence, and referred to the Supreme Court of Canada decision in Cie Minière Cartier v. Québec (Grievances Arbitrator) (23960, 20 July 1995). Madam Justice L"Heureux-Dubé, for the majority, held that such evidence will only be admissible if it sheds light on the reasonableness and appropriateness of the dismissal under review at the time that it occurred. The adjudicator in the instant case thus restricted himself to examining the evidence which was available to the employer at the time the applicant"s employment was terminated.
[19] The test which the adjudicator applied was whether the employer established that at the time of the termination of the applicant"s employment, he was unfit to work and would not be able to do so in the foreseeable future. In his decision, the adjudicator held that it had been determined that the applicant was not fit for work at the time his employment was terminated; this was not in dispute. In determining the second part, the foreseeable future, the adjudicator considered the reasonableness of the employer"s decision with regard to the facts available to the employer at the time of termination. In finding for the employer, the adjudicator held that after close to two years" absence, a period of six months would constitute the foreseeable future. In late May 1994, Dr. Parliament"s report to the employer concluded that the applicant was making little progress toward recovery, no diagnosis was forthcoming, he remained unfit for work, and it was impossible to anticipate when he would be able to return to work. Thus, based on this medical report, the employer satisfied the foreseeable future test.
[20] The applicant contends that the adjudicator erred in finding his absence was close to two years, and thus the decision should be set aside. The respondent argues that even if this finding is erroneous, it was not made in a perverse or capricious manner without regard to the material.
[21] The adjudicator"s decision is a rather lengthy one, and it appears that he took some pains to set out the course of events which led to the termination of the applicant"s employment. He quotes extensively from numerous letters and reports. It is clear that the adjudicator understood that the applicant was off for two sick leaves. The first ran from 8 June 1992 until 16 November 1992, and the second commenced on 5 April 1993 and lasted until 24 June 1994, when the termination became effective. In between these periods of sick leave was an approximately 17 week period when the applicant returned to work, initially on a special project, and then to his former position. Characterizing this second sick leave as being close to two years may be an error, but it cannot be said that it is perverse or capricious so as to warrant intervention by this Court.
[22] The applicant also contended that the adjudicator failed to consider the effect on him of what he characterized as an abusive workplace. He argued that his supervisor, Mr. Baker, was the cause of this abusive workplace. Under the PSSR Act, however, the adjudicator is not empowered to rule on harassment. Moreover, beyond notifying Mr. Baker"s supervisor, Lew Rogers, and participating in an informal meeting on 9 September 1993 in which the three men sat down to discuss the complaint, the applicant did not request a formal investigation take place.
[23] The applicant also took issue with Mr. Baker"s testimony before the adjudicator, charging the adjudicator erred in failing to place no weight on the testimony. However, Mr. Baker has not been tried or convicted of perjury, and thus where his evidence differs from that of the applicant, it is really a matter of a difference of opinion. Thus, the adjudicator was acting within his jurisdiction when he assigned weight to that evidence.
[24] In conclusion, it does not appear that the adjudicator"s decision is patently unreasonable, or clearly irrational, so as to trigger judicial intervention by this Court. While the adjudicator"s decision could be improved in terms of clarity with regard to setting out the parties" positions, there is no indication that he misunderstood the issue or the test to be applied. Accordingly, the application must be dismissed, with one-half party and party costs awarded to the respondent.
Judge
Ottawa, Ontario
December 29, 1998