Date: 20000413
Docket: T-1567-98
BETWEEN:
LOUIS DESROCHERS
Applicant
AND
THE ATTORNEY GENERAL OF CANADA
Respondent
ORDER AND REASONS FOR ORDER
BLAIS J.
[1] This is an application for judicial review of a decision by the adjudicator Marguerite-Marie Galipeau, rendered on January 16, 1998, pursuant to which the applicant's grievance in respect of his reinstatement in employment was dismissed.
FACTS
[2] For the period from August 1987, which corresponds to the commencement of his employment with the Correctional Service of Canada, to the end of April 1994, the facts are reported and analyzed by the adjudicator and I will not repeat them.
[3] I will, however, go back over a portion of the facts, those subsequent to April 30, 1994.
[4] On May 4, 1994, following a disciplinary interview with the applicant owing to his work attendance problem and his disciplinary record, the unit manager Noël St-Armand recommended his dismissal.
[5] On May 17, 1994, the warden, Paul-André Beaudry, repeated in writing that the corrective measures contemplated in 1993 would be maintained for one year.
[6] On May 30, 1994, the interim warden, Richard Lamontagne, summoned the applicant to his office. The applicant replied that he had some family obligations. On May 31, 1994, Mr. Lamontagne summoned the applicant for a meeting on June 3, 1994. The applicant did not report.
[7] On June 2, 1994, he said he was sick, but did not contact his correctional supervisor. He simply called the post official.
[8] On June 3, 1994, Mr. Lamontagne summoned him a third time, this time for June 6, 1994. The applicant did not report to the meeting.
[9] On June 7, 1994, Mr. Lamontagne summoned him a fourth time, for June 10, 1994. Purolator Courier attempted three times without success to deliver the letter of June 7, 1994 to the applicant.
[10] A fifth summons, for June 13, 1994 at 9:30 a.m., was served by a process server for June 13, 1994 at 10:55 a.m. The warden explained that the plan was to impose a fine of $2,000 and that he was now subject to dismissal.
[11] On that same day, June 13, 1994, he was summoned to the warden's office for a meeting on June 17, 1994. He did not report, claiming to be ill. In his letter, he explained that on April 14, 1994 he had supplied the form pertaining to his absence for work on April 12 and 13, 1994. He explained that he had not contacted his supervisor because he thought the corrective measure was no longer in effect. Regarding the summons for May 31, 1994, he had an appointment, and he was ill on June 3, 1994.
[12] On May 17, 1994, the warden, Mr. Beaudry, dismissed him. He pointed out to him that he had been absent without leave since June 5, 1994 and that on June 2, 1994 he had told an employee he was ill when he should have notified his supervisor. Furthermore, he failed to provide a doctor's certificate within seventy-two hours following the commencement of his absence.
ADJUDICATOR'S DECISION
[13] The adjudicator held that the employer had discharged the onus of proof by establishing the alleged facts on a preponderance of evidence. She rejected the applicant's testimony, doubting his credibility, and adopted the testimony of his supervisors.
[14] The adjudicator examined the possibility that the applicant had not received the memorandum of May 17, 1994 in his pigeonhole, although he received a pay cheque on May 19, 1994 in the same pigeonhole. She found, however, that his supervisors had personally restated the restrictions contained in the memoranda and that consequently the applicant was notified.
[15] She noted that the applicant had still not provided a doctor's certificate to explain his absences. She concluded that his conduct both before and after his dismissal was incompatible with his claims that he was ill commencing June 2, 1994.
[16] She rejected the applicant's belated explanations concerning his lack of availability to meet with his employer. She concluded that the applicant's failures constituted misconduct and warranted disciplinary measures. She was of the opinion that the relationship between the employer and the applicant was irremediably disrupted and that any possibility of rehabilitation was illusory.
[17] The adjudicator noted that the applicant acknowledged his negative attitude, his problem of absenteeism, his serious disciplinary record and the failure of the employer's interventions. She stated that these admissions were evidence against the applicant and did not improve his chances for reinstatement. It was only in the final hour of the fifteen days of hearings that the applicant had made these admissions, she noted.
[18] The adjudicator dismissed the grievance.
APPLICANT'S SUBMISSIONS
[19] The applicant submits that for the adjudicator's decision to be valid, there must be proof of the validity of the employer's decision. But the employer's decision is not valid because there is no admissible or probative evidence that the applicant received the employer's instructions in case of illness or the summons of June 17 at such time that he could have responded to it.
[20] The applicant submits that the documents submitted to prove the attendance problem were altered on the day of the hearing and did not conform to the originals. There was no evidence at the time of dismissal of a problem of absenteeism and the employer could not justify its acts by creating documents after the fact.
[21] The applicant argues that the adjudicator, by letting the employer adduce as evidence documents that were inadmissible, and by basing her decision on those documents, had reached a conclusion on the facts which, absent admissible or probative evidence, was unreasonable and contrary to the rules of natural justice.
[22] The applicant argues that if the adjudicator had reason to believe that the applicant was at fault following the admissions concerning certain facts, some punishment other than dismissal was in order.
[23] The applicant further argues that since the adjudicator's decision rests on a culminating incident the evidence of which is dependent upon the credibility of the witnesses Francoeur and St-Armand, the evidence that the applicant was harassed by these witnesses was relevant; by objecting to its presentation, the adjudicator violated the applicant's right to a full and complete hearing and in doing so rendered a decision that had to be reviewed as she had contravened the rules of natural justice.
[24] The applicant argues that in refusing to adjourn the hearing to allow him to examine the two hundred and seventy-five and six hundred and eighty-seven pages that had just been given to him, the adjudicator rendered a decision that contravenes the rules of natural justice by not allowing the reasonable exercise of the right to examine witnesses and produce documents in a disciplinary proceeding.
RESPONDENT'S SUBMISSIONS
[25] The respondent observes that the section of the applicant's record entitled "[Translation] Concise statement of the facts" constitutes for the most part opinions expressed by the applicant and not facts. The respondent asks that the Court disregard these and rely on the documentary evidence that was filed with the adjudicator and on the account of the facts that the adjudicator gave in her decision.
[26] Furthermore, the respondent argues, the documents appearing in Volume I of the applicant's record were never filed with the adjudicator and should accordingly be disregarded. More particularly, exhibits 1 (page 242), 2 (pages 303 to 326), 3 (pages 327 to 344), 4 (pages 345 to 356), 5 (pages 357 to 370), 6 (pages 371 to 376), 7 (pages 377, 379 to 385), 8 (pages 386 to 390, except 388), 9 (pages 391 to 393, 395 to 397 et 399), 10 (pages 400 to 406), 11 (pages 407 to 410), 12 (pages 411, 415, 418 and 419, 424 to 430, 431, 432, 434 to 444), 13 (pages 445 to 447), and 14 (pages 448 to 471).
[27] The respondent submits that the applicant, on cross-examination, was unable to identify any document that had been fabricated or falsified by the employer's counsel or anyone else. Consequently, the applicant had failed to prove that the adjudicator's decision was reached by reason of fraud or perjured evidence, contrary to paragraph 18.1(4)(e) of the Federal Court Act.
[28] As to the alteration of certain documents, the respondent explains that amended document E-51A was prepared for the benefit of the adjudicator, as a means of cross-referencing the applicant's days off with his absences. The original of document E-51 was a document reporting the leaves taken by the applicant during the 1991-92 fiscal year. It indicated the days on which the applicant had not worked or had worked overtime. However, the document did not specifically indicate the applicant's days off.
[29] The respondent notes that the employer had the burden of demonstrating the problem of absenteeism, which it did. The applicant never contradicted that evidence. It is because he was unable to deny that he had very often been absent immediately before or after a day off that he cited the argument that his employer did not know this, since document E-51A did not exist.
[30] The same arguments apply to documents E-75 and E-76, which are similar documents but concern different periods: the 1992-93 and 1993-94 fiscal years.
[31] As to document E-44, the applicant had not provided any evidence that this document was altered for the benefit of the adjudicator.
[32] In so far as the approval of leaves is concerned (documents A-13 and A-8), the witnesses Beaudry and Lévesque erred in the assessment of the facts when they stated that the requests for leave were not approved. This was not an attempt to mislead the adjudicator by submitting two fake documents to her. The adjudicator assessed the facts and held that the witnesses were bona fide and that it was an understandable error given the size of the record.
[33] Concerning the applicant's argument that a lesser sanction was more appropriate, the respondent submits that in view of his serious disciplinary record, the failure of the previous interventions of his employer and the bad will the applicant displayed at the time of the summonses in June 1994, she thought it was inappropriate to impose a lesser disciplinary sanction.
[34] The respondent claims that the applicant was in bad faith when he testified about his knowledge of the instructions. The applicant was aware that his employer had consistently been concerned about his repeated absences. Clearly, the applicant did not wish to understand and was disdainful of his employer's requests.
[35] The respondent submits that the adjudicator heard the applicant and drew some conclusions concerning his credibility based on his testimony and his conduct during the hearing. The respondent argues that this finding concerning the applicant's credibility is a finding of fact that the adjudicator was entitled to make on the basis of the evidence put before her.
[36] The respondent maintains that the adjudicator committed no patently unreasonable error of law in not believing the applicant, who was claiming he was unaware of his employer's instructions.
[37] In regard to the application of the principles of progressive discipline, the respondent draws the Court's attention to the fact that the adjudicator was aware of this issue and examined it. However, she concluded that a further sanction would be a waste of time. The respondent submits that this conclusion was by no means unreasonable.
[38] The respondent submits that the adjudicator's conclusion is especially reasonable in that this was not the first time that this adjudicator had heard grievances by the applicant. The adjudicator was therefore aware of the applicant's serious disciplinary record.
[39] The applicant was a repeat offender. He is in a poor position now to complain that the adjudicator, who had advised him to alter his conduct, advice that he had elected not to follow, decided it would not be worth the effort to give him another chance.
[40] As to harassment, the respondent recalls that the adjudicator has no jurisdiction in matters of occupational harassment and that the applicant could not invite her to find that he had been harassed by certain witnesses. The question goes to credibility. The adjudicator did not believe the applicant. The applicant was consistently unable to attack the credibility of the witnesses and to demonstrate that they were hostile to him. If he failed in this, it was certainly not the fault of the adjudicator, but due to the fact that he had no evidence that would seriously cast doubt on the credibility of the employer's witnesses.
[41] The respondent argues that the applicant did not identify any document that he was unable to use at the hearing that might, if put in evidence, have significantly altered her decision.
[42] The respondent suggests that it is not enough for the applicant to claim that he was unable to examine some documents; he must also persuade the Court that he was prevented from putting in evidence documents that were relevant.
[43] The respondent notes that in view of the defamatory remarks in regard to the employer's counsel, Mr. Richard Turgeon, the respondent thought it was appropriate to assign another lawyer in the present judicial review proceeding. This increased the costs of the defence. Consequently, the respondent asks that the applicant be ordered to pay costs on a solicitor-and-client basis, in accordance with Rule 400(6)(c) of the Federal Court Rules, 1998, to reflect the fact that this case necessitated the presence of two solicitors of record.
ISSUES
| 1. Did the adjudicator err in fact and in law in rejecting the applicant's grievance, and more particularly did she have sufficient evidence before her to conclude that the dismissal was justified? |
| 2. Was the adjudicator justified in upholding the applicant's disciplinary sanction, in view of the admissions? |
| 3. Did the adjudicator violate the applicant's right to a full and complete hearing in refusing to hear the evidence of harassment that the applicant sought to present? |
| 4. Did the adjudicator violate the applicant's right to a full and complete hearing in refusing to adjourn the hearing to allow the applicant to consult some documents filed by the respondent? |
OBJECTION
[44] Pursuant to an objection raised by the respondent, the Court upheld the objection and the following exhibits will be removed from the record, since they were never put before the adjudicator and must therefore be excluded.
[45] These are the exhibits in question:
exhibits 1 (page 242), 2 (pages 303 to 326), 3 (pages 327 to 344), 4 (pages 345 to 356), 5 (pages 357 to 370), 6 (pages 371 to 376), 7 (pages 377, 379 to 385), 8 (pages 386 to 390, except 388), 9 (pages 391 to 393, 395 to 397 and 399), 10 (pages 400 to 406), 11 (pages 407 to 410), 12 (pages 411, 415, 418 and 419, 424 to 430, 431, 432, 434 to 444), 13 (pages 445 to 447), 14 (pages 448 to 471) and 15 (the five pages it contains).
[46] Furthermore, Volume IV of the applicant's affidavit will also be withdrawn from the record since it purports to be an account of the seventeen days of hearing before the adjudicator, written by the applicant at the end of each day, and can in no way replace the transcript, and is inadmissible as evidence.
ANALYSIS
[47] First, it is worth reviewing the standard of judicial review applicable to the decisions of adjudicators.
[48] In Barry v. Canada (Treasury Board) (1997), 139 F.T.R. 240, the Federal Court of Appeal set down the standard of judicial review of adjudicators' decisions. Robertson J.A. wrote:
| In our respectful view, the standard of review adopted by the Motions Judge is contrary to the teachings of the Supreme Court. It is true that prior to the repeal of the privative clause, that Court had held in Canada (Attorney General) v. PSAC, [1993] 1 S.CR. 941 ("PSAC No. 2") that the appropriate standard of review for decisions of an adjudicator acting under the Act was whether the decision was "patently unreasonable". In our view, nothing has changed by virtue of the repeal of the privative clause. |
[49] In McCormick v. Canada (Attorney General) (1998), 161 F.T.R. 82, Muldoon J. states:
| 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.... |
| 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. |
[50] In Canada (Attorney General) v. Cleary (1998), 161 F.T.R. 238, Rothstein J. notes:
| The parties agree, as do I, that the standard of review from the decision of an adjudicator under the Public Service Staff Relations Act is patent unreasonableness. |
[51] In Teeluck v. Canada (Treasury Board) (October 6, 1999), T-1825-98 (F.C.T.D.), MacKay J. states:
| As the decision of Rothstein J. finds, relying upon the Court of Appeal, this Court has clearly recognized the high standard of deference to be accorded to the Board's decisions on matters within its special expertise, as concerned the adjudicator in this case. The Court will not intervene unless it finds the decision patently unreasonable. |
[52] In Scheuneman v. Canada (Treasury Board) (November 15, 1999), T-2107-98 (F.C.T.D.), Cullen J. declined to apply the Barry decision, supra, since it was not a case involving the interpretation of collective agreements. He concluded, nevertheless:
| This Court finds that the appropriate standard of review is that of patent unreasonableness. It is true that there is no privative clause in the PSSRA, however, the fact that the decision of the adjudicator was within his area of expertise constitutes the critical factor in the present case. |
[53] Given the adjudicator's expertise, the Federal Court holds that the applicable standard of review is indeed that of deference, notwithstanding the different ways in which the test is formulated. The Federal Court will not intervene unless the decision rendered by the adjudicator is patently unreasonable.
| 1. Did the adjudicator err in fact and in law in rejecting the applicant's grievance, and more particularly did she have sufficient evidence before her to conclude that the dismissal was justified? |
[54] The applicant is critical of the adjudicator for adopting the employer's testimony as to his knowledge of the instructions and concluding that his refusals to report for discussions with the employer were in bad faith. He also criticizes her for accepting altered documents.
CREDIBILITY
[55] The adjudicator, as the trier of fact, was the person in the best position to judge the credibility of the parties. She found that the applicant did have knowledge of the restrictions the employer had imposed on him. She stated, at page 37 of the decision:
| [Translation] Thus, even if Louis Desrochers did not receive the memorandum (exhibit E-32) renewing the restrictions in case of absence (of which I am not convinced, since this memo was filed in his pigeon-hole and he picked up a cheque there (exhibit E-136) at about the same time), it remains that his superiors (Gérald Francoeur and Noël St-Armand) had personally reiterated the restrictions contained in the memoranda (exhibits E-19, E-22) and, accordingly, Louis Desrochers had been forewarned. |
[19] In regard to the missed meetings, it should be pointed out, as the adjudicator did, that the employer summoned the applicant to six meetings to discuss with him. The applicant did not show up for any of them. The adjudicator concluded, at page 38 of the decision:
| [Translation] I am of the opinion that it was in full knowledge that he ignored the employer's letters (exhibits E-28, E-31, E-34, E-35, E-36 and E-39) asking him to report to the warden's office, and I think the employer was right, on June 17, 1994, to conclude that Louis Desrochers' omissions since June 2, 1994 constituted misconduct and deserved to be sanctioned. |
[57] The adjudicator conducted a careful and detailed analysis of the evidence presented to her during seventeen days of hearings, and she chose to believe the employer.
[58] The strength of the supervisors' testimony to the effect that the applicant was forewarned persuaded the adjudicator of this fact. The applicant did not manage to convince her otherwise. In view of the testimony of the psychologist Grenier and of the applicant, who admitted having affixed the dates of return on the doctor's certificates, the applicant's credibility was undermined.
[59] Since she was the trier of fact and had jurisdiction to rule on the credibility of the testimony, and since the adjudicator's findings were based on evidence presented and were not patently unreasonable, this Court will not intervene.
ALTERED DOCUMENTS
[60] The applicant disputes the admission in evidence of the altered documents (E-51A, E-75 and E-76) and maintains that the employer was unaware that there was a problem of absenteeism. This argument, in my opinion, is unfounded since from the initial evaluation report the employer noted a problem of absenteeism.
[61] The employer supplied the annual report for fiscal year 91-92 (E-51) and tabled this report indicating above the days off in order to show the adjudicator the problem of the applicant's absenteeism (E-51A). For fiscal year 92-93, the employer simply tabled the amended annual report (E-75). For fiscal year 93-94, it filed the annual report (E-19A) and an amended report (E-76) indicating the days off as well as the non-working days.
[62] The employer attempted to show that the applicant's absences for illness were often bracketed with weekends or days off. Moreover, the employer tabled the original report as well as the amended report, other than for the fiscal year 92-93. This was one way to meet its burden of proof.
[63] The documents filed with the adjudicator were neither falsified nor erroneous. The employer was not trying to mislead the adjudicator by pointing to the applicant's days off. The adjudicator was aware that the report was amended, since the applicant had pointed this out.
[64] I am not persuaded that the decision to allow as evidence the documents in question was unreasonable.
| 2. Was the adjudicator justified in upholding the applicant's disciplinary sanction, in view of the admissions? |
[65] The two cases cited by the applicant (Lodba v. Treasury Board, PSSRB 166-2-21819; Marette v. Treasury Board, PSSRB 166-2-19893) have fact situations that are quite different from this case.
[66] Lodba was a customs officer who failed to declare some goods purchased in the United States. He was consequently dismissed. The adjudicator held that the disciplinary measure taken was excessive and ordered reinstatement, bearing in mind as well the officer's previously perfect disciplinary record.
[67] Marette had made some offensive remarks to his immediate chief. He reported shortly afterward at his chief's office to apologize. He was given a one-day suspension, which was overturned by the adjudicator and replaced by a written reprimand.
[68] In the case at bar, the adjudicator had examined the issue of lack of progressive discipline, but found that it was inappropriate to impose a lesser sanction in the circumstances, given the applicant's serious disciplinary record.
[69] The adjudicator could not overlook the applicant's disciplinary record, especially when she had previously sat on another grievance of the applicant. Furthermore, it was not until the final hours of a lengthy hearing that the applicant made his admissions. Given the facts in this case, I do not think it was unreasonable to make the finding the adjudicator did.
| 3. Did the adjudicator violate the applicant's right to a full and complete hearing in refusing to hear the evidence of harassment that the applicant sought to present? |
[70] In McCormick, supra, Muldoon J. clearly noted:
| 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. |
[71] The adjudicator did not violate the applicant's right in refusing to hear the evidence of harassment. She was not authorized to hear such evidence. The applicant could, however, impugn the credibility of the employer and thereby sustain his case. He was unable to do so, and at the end of the day it was in fact his own credibility that was shaken.
| 4. Did the adjudicator violate the applicant's right to a full and complete hearing in refusing to adjourn the hearing to allow the applicant to consult some documents filed by the respondent? |
[72] This matter was heard on June 26, 27 and 28, 1996, January 14, 15, 16 and 17, 1997, April 8, 9, 10 and 11, 1997, June 9, 10, 11, 12 and 13, 1997 and November 4 and 5, 1997.
[73] The applicant states that two hundred and seventy-five pages were delivered to him on January 14, 1997, the day of the hearing, and six hundred and eighty-seven pages on April 2, 1997. Given that the hearing lasted seventeen days over a period of more than one year, I have some difficulty in accepting the applicant's argument suggesting that his rights were violated because the hearing was not adjourned. All the more so in that the applicant has never demonstrated that any of these documents contained evidence that might influence the adjudicator.
[74] Furthermore, the adjudicator notes, at page 30 of her decision:
| [Translation] He is of the opinion that the employer did not convey to him all of the information requested by way of a motion under the Access to Information Act and that this could, in his opinion, have destabilized him in the preparation of this case. Notwithstanding that, he acknowledges that even if he had been in possession of all the "records" (the nature of which he does not specify), this would not have altered the nature of his admissions in the course of this adjudication. |
[75] The adjudicator's decision to refuse an adjournment was not unreasonable.
[76] For all of these reasons, the application for judicial review shall be dismissed.
COSTS
[77] The respondent seeks costs on a solicitor-and-client basis.
Rule 400(6) of the Federal Court Rules, 1998 states:
| (6) Notwithstanding any other provision of these Rules, the Court may (c) award all or part of costs on a solicitor-and-client basis; ... |
(6) Malgré toute autre disposition des présentes règles, la Cour peut : (c) adjuger tout ou partie des dépens sur une base avocat-client; |
[78] In Amway Corp. v. The Queen, [1986] 2 C.T.C. 339, at pages 340 and 341 (F.C.A.), Mahoney J.A. stated:
| An award of costs on a solicitor and client basis is exceptional and is generally made on the ground of misconduct connected with the litigation. |
[79] The Supreme Court held, in Young v. Young, [1993] 4 S.C.R. 3:
| Solicitor-client costs are generally awarded only where there has been reprehensible, scandalous or outrageous conduct on the part of one of the parties. |
[80] The applicant, who was not represented by counsel when he introduced his motion, used somewhat excessive language, particularly in relation to the counsel for the respondent, Mr. Turgeon.
[81] I think it is worth noting that the applicant's counsel who represented him at the hearing performed very professionally and that he in no instance raised anew the veiled accusations against the solicitor that were already part of the written record.
[82] The applicant was a duly sworn law enforcement officer and should have been aware of the seriousness of his accusations, which he even brought to the attention of the Prime Minister of Canada and two members of the federal Cabinet.
[83] This constitutes fault on the part of the applicant, in the circumstances, that had no justification.
[84] The suggestion by respondent's counsel that costs be awarded on a solicitor-and-client basis will be dismissed, but the applicant will have to pay the costs on the basis of Tariff B, column V.
| Pierre Blais |
| J. |
OTTAWA, ONTARIO
April 13, 2000
Certified true translation
Martine Brunet, LL.B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: T-1567-98 |
| STYLE: Louis Desrochers v. Attorney General of Canada |
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: March 20, 2000 |
REASONS FOR ORDER OF BLAIS J.
DATED: April 13, 2000
APPEARANCES:
Alain Tremblay for the Applicant
Raymond Piché
Richard Turgeon for the Respondent
SOLICITORS OF RECORD:
David & David
Montréal, Quebec for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
Montréal, Quebec for the Respondent
T-1567-98
Between:
LOUIS DESROCHERS,
Applicant,
AND
THE ATTORNEY GENERAL OF CANADA,
Respondent.
I CERTIFY that the Court (Blais J.), on the 13th day of April, 2000, ordered at the end of its Reasons for Order, as follows:
"For all of these reasons, the application for judicial review shall be dismissed."
CERTIFIED in Ottawa, Ontario, the 14th day of April, 2000.
| Geneviève Payer |
| Registry officer |