Federal Court Decisions

Date: 19971112

Docket: T-1365-95

IN THE MATTER OF an application to review

and set aside, pursuant to s. 18 and 18.1 of the

Federal Court Act, R.S.C. 1985, c. F-7, as amended

AND IN THE MATTER OF a decision of the

Public Service Staff Relations Board, Board Member

Rosemary Vondette Simpson, rendered May 19, 1995,

respecting a grievance referred to adjudication pursuant to the

Public Service Staff Relations Act, R.S.C. 1985, c. P-35

(PSSRB File Nos. 166-2-25992, 166-2-25993, 161-2-743)

BETWEEN:

     RUSSELL DEIGAN

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA (INDUSTRY CANADA)

     Respondent

     REASONS FOR ORDER

TREMBLAY-LAMER J.:

[1]      The Applicant seeks to judicially review and set aside a decision of an Adjudicator rendered pursuant to section 92 of the Public Service Staff Relations Act¹ (the "Act"), wherein it was held that the Respondent had just cause to suspend the Applicant indefinitely but that his discharge was too severe a penalty under the circumstances.

BACKGROUND

[2]      A lawyer by training, the Applicant was employed as a Commerce Officer (CO-2) within the Bureau of Competition Policy. In the Spring of 1994, the Applicant learned that a certain "Ms. A" was being considered for two senior managerial positions, one of which was in the Mergers Branch of the Competition Bureau. The Applicant proceeded to write a series of anonymous letters to senior government officials which contained numerous allegations casting doubt on Ms. A's competence and integrity. Specifically, the Applicant made the following allegations:

"      Ms. A has a history of harassing staff. Complaints have been filed against her with the Public Service Commission;

"      Ms. A has falsified documents in the past. Complaints to this effect have been filed with the Minister of Justice;

"      Complaints have been filed against Ms. A with the Barreau du Québec involving issues of integrity;

"      Ms. A tried to stop the publication of a textbook written by a government employee after a dispute arose over the similarities between the textbook's manuscript and the draft of the article she was writing for publication. Ms. A had allegedly been reading the manuscript;

"      Ms. A was in charge of the Ginn Publishing/Paramount file. Her mishandling of the case caused the government embarrassment.

[3]      The Respondent Employer suspected that the Applicant was the author of the letters. Ms. A had once been the Applicant's direct supervisor when they both worked for Investment Canada. Their working relationship had been very difficult. The Applicant had submitted a number of grievances and complaints against Ms. A with respect to a dispute over the publication of a book he had written, an incident which was alluded to in the said letters.

[4]      The Employer made his suspicions known to the Applicant at a meeting held on June 21, 1994. Despite having been urged to be truthful, the Applicant denied having penned the letters. The Applicant was informed that his office would be searched. He was then escorted from the building.

[5]      In the Applicant's office and computer files, the Employer uncovered copies of documents which matched the contents of the letters being investigated. As a result, the Applicant was indefinitely suspended from his job pending the outcome of the investigation.

[6]      The Respondent confronted the Applicant with the results of its search at a second meeting held on July 6, 1994. Once again, the Applicant denied authorship.

[7]      A third meeting was then called by the Applicant. It was then that the Applicant acknowledged that he had written the letters, except for the one that was sent to Mr. Giroux, Chairperson of the Public Service Commission. The Applicant apologized for his actions.

[8]      On July 29, 1994, the Applicant was officially discharged from his duties. The letter of discharged identified three grounds for dismissal:

1.      The Applicant was responsible for having written and disseminated anonymous letters which contained statements and allegations that aimed to discredit Ms. A and question her suitability for promotional opportunities;

2.      The Applicant denied his authorship of the letters on June 21 and July 6, and continues to deny his involvement with respect to the letter sent to the Chairman of the Public Service Commission;

3.      The Applicant failed to honour the agreement which was meant to resolve his differences with Ms. A and other parties.

[9]      The Applicant filed grievances against his suspension and discharge. The grievances were referred to adjudication under the Public Service Staff Relations Act.²

THE ADJUDICATOR'S DECISION

[10]      Before the Adjudicator, the Applicant testified that he had written the letters in the interest of the public. He claimed to have written to people whom he thought were involved in the selection process. He wanted to draw their attention to Ms. A's candidacy in order for them to conduct an investigation. This is why some of the letters identified impartial individuals whom the recipients could contact for further information. The Applicant also described the letters as "Upward Feedback" letters, referring to the departmental program which encourages employees to assess their superior officers anonymously.

[11]      The Adjudicator, however, dismissed the grievance against the Applicant's suspension, and allowed the grievance against his discharge. Specifically, she found that the Applicant had engaged in "very serious misconduct":³

... Mr. Deigan, in writing and disseminating these anonymous letters containing false and misleading information about a fellow public servant, engaged in very serious misconduct. In lying and continuing to lie for some time to his employer about his involvement, he aggravated the seriousness of his misconduct. Although he did not give out names, he suggested to his employer that other employees might be authors of the letters in question thereby potentially involving them in the investigation. Mr. Deigan showed no remorse at the hearing. Although he admitted in cross-examination some of the misleading aspects of his letters, he continued to justify his right to send them as being in the public interest.

[12]      In reaching her decision, the Adjudicator considered the fact that the allegations contained in the letters were false based on the evidence.

[13]      However, having considered the Applicant's until now spotless disciplinary record and long time employment with the Public Service, the Adjudicator concluded that a disciplinary discharge was too severe a penalty in the circumstances and awarded him six months pay in compensation. Reinstatement was denied:⁴

In mitigation I must consider that Mr. Deigan is a long service employee with an unblemished disciplinary record until the matter of these letters arose. Notwithstanding the seriousness of his acts of misconduct, I believe that discharge is too severe a penalty under the circumstances.

However, I am of the opinion that it would be inappropriate for me to order the return of Mr. Deigan to his former position, the bond of trust between employer and employee being irretrievably broken by the grievor's actions.

Accordingly, I award Mr. Deigan compensation in lieu of reinstatement equal to six months' pay at the rate he was receiving at the time of his discharge. In awarding this amount, I have taken into account the following factors: the seriousness of the grievor's misconduct; his previously unblemished record; the fact that he is a long service employee; his age and the fact that it may be difficult for him to re-establish himself in employment.

THE APPLICANT'S POSITION

[14]      The Applicant challenges the Adjudicator's decision on the grounds that she failed to observe the rules of procedural fairness. Two breaches of natural justice are identified by the Applicant.

[15]      First, the Applicant submits that the Adjudicator's decision is based in part on the fact that the Applicant had made false accusations that he was unable to support. The Adjudicator concluded that in writing and disseminating anonymous letters containing "false and misleading information", the Applicant had engaged in serious misconduct. According to the Applicant, this constitutes a breach of the rules of natural justice.

[16]      The Applicant maintains that a person is entitled to know the accusations brought against him and have the opportunity to respond to those accusations. Accordingly, a failure to inform a person of the accusations of dismissal constitutes a denial of natural justice. In the case at bar, the letter of dismissal did not identify the untruthfulness of the Applicant's allegations against Ms. A as a ground for dismissal. As a result, the Applicant never addressed the issue in presenting his case and thus, was prevented from mounting a proper defence.

[17]      Second, the Applicant submits that the Adjudicator failed to observe the rules of procedural fairness by rejecting the Applicant's entire written submissions rather than simply ignoring those parts which referred to the matters not in evidence.

[18]      In her reasons for decision, the Adjudicator noted that she did not consider the Applicant's written submissions because they contained assertions which were not in evidence.

[19]      The Applicant submits that the Adjudicator's refusal to consider his written submissions violated his right to be heard. As a result of the exclusion of the document, the only submissions which the Adjudicator considered on behalf of the Applicant were the very brief oral submissions made by his representative. The Applicant submits that had the Applicant's representative known that the Adjudicator would disregard in their entirety the Applicant's written submissions, he would have presented his case very differently. Instead of restricting himself to general submissions with respect to the principles to be applied in discharge cases, he would have presented arguments and applied the relevant law to the evidence adduced at the hearing.

---

THE RESPONDENT'S POSITION

[20]      The Respondent submits that the Adjudicator conducted the hearing in accordance with the rules of procedural fairness.

[21]      With respect to the content of the letters, the Respondent submits that the Employer did not alter the grounds on which the discipline against the Applicant was based. The Respondent argues that the content of the letters was specifically addressed in the letter of dismissal which stated that the letters were intended to prejudice and derail Ms. A's career:⁵

The letters in question call attention to situations involving Ms. A, the Acting General Counsel, Legal Services, Industry Canada (ex-Consumer and Corporate Affairs Unit). They are clearly intended to question her suitability for promotional opportunities, including a position within the Bureau of Competition Policy for which she was being considered, and to prejudice her chances for promotion in general.

[22]      Thus, the Respondent argues that the Applicant's motives in writing the letters were very much at issue during the adjudication proceedings. The Respondent also notes that the Applicant himself provided evidence concerning the content of the letters and his motivation in writing and disseminating them during the course of his examination by counsel. The Respondent was thereby entitled to raise issues concerning the Applicant's credibility in respect to the content of the letters. The Adjudicator was also entitled to make findings of fact that the Applicant was not well-intentioned and lacked credibility if the letters contained false statements.

[23]      Finally, the Respondent submits that the Applicant was never denied the opportunity to be heard. It is only after having read and considered the Respondent's objections that the Adjudicator found that the written submissions could not be relied upon because they contained many factual assertions which were not in evidence. The Respondent argues that it was open to the Adjudicator, in exercising her discretion, to conclude as she did. There was no breach of natural justice.

ANALYSIS

     Standard of Review

[24]      Before dealing with the issues at hand, I find it necessary to consider the appropriate standard of review of an adjudicator's decision. While there seems to be general agreement in the case law that labour adjudicator's decisions should be accorded great curial deference, there also appears to be disagreement on what phrase best captures the appropriate standard.

[25]      In Canada (Attorney General) v. PSAC⁶, the Supreme Court of Canada held that the applicable standard was that of the "patently unreasonable" decision. However, this Court felt it necessary to reexamine the question in Canada (Attorney General) v. Wiseman⁷ in light of the repeal of the privative clause contained in the Act in June 1993. Cullen J. agreed that the adjudicator's decision should be accorded considerable deference. After all, the Supreme Court did hold in Pezim v. British Columbia Securities Commission et al.⁸ that the existence of a privative clause was no longer determinative of the issue and, furthermore, the adjudicator is a highly specialized decision-maker and no statutory appeals are provided from his decisions. Accordingly, Cullen J. concluded that the proper standard of review was whether the adjudicator's decision was "supportable by the evidence".

[26]      However, the Court of Appeal recently reconsidered the issue of the applicable standard of review in Barry v. Treasury Board (Transport Canada)⁹. The Court confirmed that the appropriate standard of review for decisions of an adjudicator is whether the decision was "patently unreasonable". According to Robertson J.A., this is consistent with the teachings of the Supreme Court of Canada in United Brotherhood of Carpenters and Joiners of America Local 579 v. Bradco Construction Ltd.¹⁰ which held that even where there is no privative clause the standard of review for arbitral decisions is that of the "patently unreasonable" decision.

     Contents of the Letters

[27]      With respect to the Applicant's first argument, I am not persuaded that any unfairness occurred. In the letter of dismissal, the letters were described as having been "intended to question "Ms. A's > suitability for promotional opportunities" and "to prejudice her chances for promotion in general". Hence, in my view, the Applicant's motivations in writing and disseminating these letters were clearly an issue in his dismissal and at the adjudication hearing.

[28]      Further, the Applicant had himself testified at trial that he had written the letters in the interest of the public. In doing so, he was attempting to justify the allegations made in the letters. In order to attack his credibility, and more specifically the legitimacy of his motives, the Respondent cross-examined him on the truthfulness and the accuracy of the content of the letters. The Respondent was entitled to do so. How else could the Respondent verify the allegation that these letters were made in the public interest? If the Applicant knew that the statements were false, he could not pretend that he had a valid reason in writing the letters. The Respondent did not raise a new issue.

[29]      Similarly, the Adjudicator was also entitled to rely on this evidence to assess the Applicant's credibility with respect to his motives and to conclude that in writing letters containing false and misleading information, the Applicant was not well-intentioned. The Adjudicator could also reasonably infer that the Employer had established on a balance of probabilities that the Applicant's intention was to prejudice Ms. A's chances for promotion.

[30]      In sum, the Applicant did raise himself the question of his intentions in writing and disseminating the letter and as such, he should bare the consequences when this evidence is challenged and found to be untrue.

     Written Submissions

[31]      With respect to the allegation that the Applicant was denied a fair hearing because the Adjudicator refused to consider his written submissions, I believe that the Adjudicator did act unfairly. She discounted the written submissions in their entirety. This was uncalled for. She should simply have ignored the portions which dealt with evidence not adduced at the hearing, while considering the remainder, or if she found that it was too difficult to separate the relevant portions, she should have given the Applicant's counsel a full opportunity to present a complete oral argument.

[32]      I do not want to speculate as to whether or not the Adjudicator's decision would have been the same after hearing a full oral argument. As stated by Lamer C.J. in Université du Québec v. Larocque¹¹ :

Secondly, and more fundamentally, the rules of natural justice have enshrined certain guarantees regarding procedure, and it is the denial of those procedural guarantees which justifies the courts in intervening. The application of these rules should thus not depend on speculation as to what the decision on the merits would have been had the rights of the parties not been denied.

[33]      Accordingly, I would refer the matter back to the same Adjudicator for her to either consider the relevant portions of the written arguments or to hear full oral arguments.

    

                                         JUDGE

OTTAWA, ONTARIO

November 12, 1997

__________________

     ¹      R.S.C. 1985, c. P-35.

     ²      Ibid.

     ³      Applicant's Application Record, Volume 5 at p. 921.

     ⁴      Applicant's Application Record, Volume 5 at pp. 921-22.

     ⁵      Applicant's Application Record, Volume 5 at p. 898.

     ⁶      [1993] 1 S.C.R. 941.

     ⁷      (1995), 95 F.T.R. 200.

     ⁸      [1994] 2 S.C.R. 557.

     ⁹      (October 22, 1997), A-580-96 (F.C.A.).

     ¹⁰      [1993] 2 S.C.R. 316.

     ¹¹      [1993] 1 S.C.R. at p. 493.