Federal Court Decisions

     T-2567-96

BETWEEN:

     JOHN QUIGLEY

     Applicant

     - and -

     HER MAJESTY THE QUEEN IN RIGHT OF CANADA

     AS REPRESENTED BY TREASURY BOARD

     Respondent

     REASONS FOR ORDER

     TEITELBAUM, J:

     The present motion by John Quigley (the applicant) is for a judicial review of the October 1, 1996, decision of P. Chodos, Deputy Chairperson and Adjudicator of the Public Service Staff Relations Board (P.S.S.R.B.) (the Adjudicator). Essentially, the applicant claims that: 1) the Adjudicator erred in law by dismissing the grievance for want of jurisdiction on the ground that it was not timely; 2) the Adjudicator based his decision on erroneous findings of fact made in a perverse or capricious manner or without regard for the material before him.

FACTS

     The applicant claimed relief under several heads of damages arising out of his dismissal in 1982. On February 22, 1983, the Federal Court quashed the employer's decision to terminate the applicant's employment. The employer reinstated the applicant and reimbursed the applicant for all lost wages.

     In 1983, the applicant submitted two grievances seeking reimbursement of his legal costs and lost overtime opportunities. These grievances were denied by the employer throughout the grievance procedure and the applicant did not refer them to adjudication.

     In 1985, the applicant filed a Statement of Claim in the Federal Court requesting largely the same damages as those sought in 1983. This action was dismissed on October 19, 1994 by Tremblay-Lamer J. for want of jurisdiction. Tremblay-Lamer J. found that the applicant's cause of action was only within the jurisdiction of the P.S.S.R.B.

     After the applicant's employer refused to concur in the applicant's request to reactivate his claim and dispose of it by adjudication, the applicant submitted a new grievance on April 2, 1996, seeking the damages claimed in 1983. The employer denied the grievance on the grounds that there was no merit and that it was untimely. The applicant referred the grievance to adjudication.

     The Adjudicator refused to exercise his discretion to extend the time limits under section 63 of the P.S.S.R.B.'s Regulations. The grounds for this holding were that the applicant had abandoned his grievances in 1983, that the applicant provided no explanation for the delay in filing the Statement of Claim until 1985 and to satisfy the interests of labour relations that there be "finality in respect of the exercise to grieve under the collective agreement and under the Act".

     The applicant now seeks judicial review of the Adjudicator's decision on the grounds that the Adjudicator made several errors of law and fact.

THE APPLICABLE LAW

A.      Applicable Statutory Provisions

     The statutory basis for the adjudication is contained in section 92(1)(b) of the Public Service Staff Relations Act, R.S.C., c. P-35 (the PSSRA) which provides that, where a grievance has not been dealt with to the satisfaction of the employee, the employee may refer to adjudication a grievance with respect to:

(i)      disciplinary action resulting in suspension or a financial penalty, or

(ii)      termination of employment or demotion pursuant to paragraph 11(2)(f) or (g) of the Financial Administration Act, ...

     Section 63 of the P.S.S.R.B. Regulations and Rules of Procedure, 1993, SOR/93-348, concerns time extensions for presenting grievances or notices. Specifically, the section provides that:

Notwithstanding anything in this Part, the times prescribed by this Part or provided for in a grievance contained in a collective agreement or in an arbitral award for the doing of any act, the presentation of a grievance at any level or the providing or filing of any notice, reply or document may be extended, either before or after the expiration of those times

(a)      by agreement between the parties; or

(b)      by the Board, on the application of an employer, an employee or a bargaining agent, on such terms and conditions as the Board considers advisable.

     Section 18.1(4) of the Federal Court Act states that the Trial Division may grant relief it if is satisfied that the federal board, commission or other tribunal:

(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;

(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;

(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;

(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;

(e) acted, or failed to act, by reason of fraud or perjured evidence; or

(f) acted in any other way that was contrary to law.

B. The Standard Of Review

     As s. 18.1(4)(d) of the Federal Court Act states, the Trial Division may grant relief if the court is satisfied that the Adjudicator "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it." This shows that the court should show a high degree of deference to the Adjudicator's findings of fact.

     The respondent cites Re Rohm & Haas Canada Ltd. and Anti-Dumping Tribunal (1978), 91 D.L.R. (3d) 212 at 214 (F.C.A.) (hereinafter Rohm), where the Federal Court of Appeal stated that the following three conditions must be met before a court may interfere with a finding of fact:

1) the findings of fact must be truly erroneous;

2) the finding must be made capriciously or without regard to the evidence; and

3) the decision must be based on the erroneous finding.

     Although Rohm was based on s. 28 of the Federal Court Act, the stated conditions are merely an alternative way of stating the relevant considerations under s. 18.1(4)(d).

     With regard to errors of law, the applicant specifically pleaded      sections 18.1(4)(c) and s. 18.1(4)(f) of the Federal Court Act which provide for relief if the Adjudicator either erred in law in making a decision or an order, whether or not the error appears on the face of the record, or acted in any other way that was contrary to law.

     The Supreme Court of Canada considered the appropriate standard of review for the Public Service Staff Relations Board in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 (hereinafter PSAC). Although the Supreme Court was considering deference to the P.S.S.R.B. at a time when the P.S.S.R.A. contained a privative clause, this decision is still relevant even though the P.S.S.R.A. now lacks such a clause. The Supreme Court believed that there should be deferential treatment to the P.S.S.R.B. because, in addition to the privative clause, it is an expert tribunal. Particularly if the P.S.S.R.B. considers matters which fall squarely within its expertise, there is a strong case for deferential treatment (see Bell Canada v. Canada (CRTC), [1989] 1 S.C.R. 1722 and Pezim v. B.C. (Superintendent of Brokers), [1994] 2 S.C.R. 557).

     However, the Supreme Court in PSAC noted at page 962:

None of this is to say that some form of review is not salutary and necessary. Certainly, the courts are eminently well suited for determining whether the Board has exceeded the jurisdiction which is granted to it by its enabling statute. Further, the courts are in the best position to determine whether there has been such an error in the procedure followed by it that there has been a denial of natural justice which would result in a loss of jurisdiction by the tribunal. As well, all parties have the right to be protected from a decision that is patently unreasonable. Beyond that the courts need not and should not go.

SUBMISSIONS

1.      Applicant's Submissions

     The applicant claims that the adjudicator based his decision on the following erroneous findings of fact:

(a)      the Adjudicator erroneously found that the statement by counsel for the Department of Justice that "...those consequences can still be dealt with through the adjudication process, ..." was not a waiver of the applicant's delay;

(b)      the Adjudicator erroneously found that the applicant chose to pursue redress in the Federal Court rather than refer his grievances to adjudication. The applicant claims that he told the Federal Court that he had sought relief in the Federal Court because he believed that was his only option.

(c)      the Adjudicator failed to give sufficient weight to the applicant's letter of June 21, 1996 to the P.S.S.R.B. The applicant claims that this letter raises the issue of delay on the part of the employer.

     The applicant also claims that the adjudicator made the following errors of law:

(a)      the Adjudicator erred in law by failing to recognize the importance of the Supreme Court of Canada decision in Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 (hereinafter Weber). The Adjudicator should not have supported the argument for delay or timeliness on the fact that the applicant pursued the action in the Federal Court. The Adjudicator also erred when he questioned the length of time the Federal Court action took to come to trial.

(b)      the Adjudicator erred in law when he failed to understand the principle in St. Anne Nackawic Pulp & Paper Co v. C.P.U., Local 219, [1986] 1 S.C.R. 704 at 723 (hereinafter St. Anne) (cited in Weber). The court in Weber cited Estey J.'s statement in St. Anne that what must be avoided is a "real deprivation of ultimate remedy". The applicant claims that the Adjudicator violated that principle by refusing to hear arguments on the issues.

2.      Respondent's Submissions

     The respondent submits that the Adjudicator made no reviewable errors and had the right to conclude that the applicant did not provide sufficient grounds to explain his delay.

     Specifically, the respondent replies to the applicant's submissions concerning the Adjudicator's errors in fact as follows:

(a)      the respondent submits that a reading of the entire submission by counsel for the Department of Justice at the Federal Court hearing before Madame Justice Tremblay-Lamer was not a waiver for delay or an offer by the employer to submit the matters to the P.S.S.R.B. Rather, the submission concerned the applicant's past choice of redress and did not refer to the applicant's future options.

(b)      the respondent submits that the Adjudicator correctly concluded on the evidence that the applicant chose to pursue relief in the Federal Court. The respondent submits that the applicant had admitted that he had chosen to pursue relief in the Federal Court because it was more advantageous and not because it was the applicant's only option.

(c)      the respondent claims that the Adjudicator did consider the applicant's letter of June 21, 1996 as having raised the issue of delay. The respondent believes that the Adjudicator's finding that the applicant "made no attempt to make an application to the Board for an extension of time" is evidence that the Adjudicator rejected the applicant's characterization of that letter as a request for time extension.

     The respondent submits that the Adjudicator did not make any erroneous findings of fact, nor act in a perverse or capricious manner or without regard for the evidence.

     With respect to the applicant's submissions that the Adjudicator had made errors of law, the respondent submits that it was open to the Federal Court to have found that it was deprived of jurisdiction before 1995. The respondent cites the Supreme Court of Canada decision in Weber which based its ruling on earlier cases which held that where a person is provided with a statutory remedy, the statutory remedy must prevail and the Court cannot take jurisdiction.

DISCUSSION

A. Did The Adjudicator Make Any Reviewable Errors of Fact?

     As was noted above, the reviewing court will provide a significant degree of deference to the Adjudicator on findings of fact. The applicant has a very high hurdle to pass and he has not met it on any of the three grounds.

1. The Alleged Waiver of Delay

     The Adjudicator's finding that counsel for the Department of Justice had not waived his delay is a reasonable interpretation of the whole transcript. Starting at the bottom of page 9 of the transcript of the hearing before Tremblay-Lamer J., counsel for the Department of Justice began to tell the story of what happened since Mr. Quigley was discharged in 1982. The paragraphs on pp. 10-11 indicate that the counsel for Justice was describing past events and did not waive any delay:

Instead, (the applicant) chose his remedy in Federal Court to quash that decision. So if we cut off the decision that has caused those consequences, the decision is not there, but the consequences are still there, and that seems to be the way his action is framed, but the cause of action is still the discharge, the unlawful termination of his employment.

It would be our position that those consequences can still be dealt with through the adjudication process, and I think that the wording of the statute, the Public Service Staff Relations Act, section 91, is broad enough to encompass any claim that he would have to deal with those different issues.

The loss of overtime, certainly, I mean is a direct consequence of his discharge and he could have taken that to grievance and to adjudication.

     In the context of the full statement of counsel for Justice, I am not only certain that the Adjudicator made a finding that was open to him, I am also certain that the Adjudicator made the correct finding.

2. The Applicant's Pursuit Of Redress In The Federal Court

     The Adjudicator found that the applicant chose to pursue redress in the Federal Court rather than by adjudication. The applicant's Affidavit of October 28, 1996 states "[d]uring the Federal Court I informed the Court that I had pursued the only forum that I believed was available to me at that time." The applicant does not point to any evidence to show that this statement was made. I see nothing wrong in the Adjudicator's finding.

3. The Applicant's June 21, 1996 Letter

     The applicant claimed that the Adjudicator failed to give any weight to the applicant's June 21, 1996 letter to the P.S.S.R.B. This letter is not specifically referred to in the Adjudicator's decision but that does not mean that the letter was not considered. It was open to the Adjudicator to find that the letter did not raise the issue of delay. I accept the respondent's explanation that the Adjudicator's finding that the applicant "made no attempt to make an application to the Board for an extension of time" means that the Adjudicator did not believe that the June 21, 1996 letter raised the issue of delay. That interpretation was open to the Adjudicator to make.

     Furthermore, on page 6 of the Adjudicator's decision, the Adjudicator states that the first time the applicant asked for an extension of time was at the hearing. Surely, he gave consideration to the letter of June 21, 1996 and concluded it was not a request for an extension of time.

B. Did The Adjudicator Err In Law?

     The applicant claims that the Weber decision is support for the proposition that the applicant should not be denied any redress and should have access to adjudication. The applicant claims that the Adjudicator failed to recognize the importance of the Weber decision and the failure to do so was an error of law. However, I fail to see how the applicant is helped by the Weber decision.

     In Weber, the Supreme Court of Canada considered whether the appropriate forum for hearing a dispute arising out of an employment matter should be the court or arbitration proceedings. The Court concluded that the proper forum is arbitration as set out in the collective agreement. I cannot find any support in Weber for the plaintiffs contention. As the Adjudicator stated: "[i]t does not give licence to a grievor to revive a grievance which he chose not to pursue to adjudication some 13 years ago."

     Nor do I find that the citation in Weber of Estey J.'s statement in St. Anne affords the applicant any support. In the paragraph from which the citation was taken, the court discusses the situation where a remedy is required which the arbitrator is not empowered to grant. The court states that the courts of inherent jurisdiction can take jurisdiction in that situation because what must be avoided is a "real deprivation of ultimate remedy." The court in Weber is discussing a completely different set of circumstances than those in the case at bar. The Adjudicator did not fail to see the importance of either Weber or St. Anne, rather, those cases do not support the applicant.

CONCLUSION

     For the reasons stated above, the application for judicial review is denied.

                             "Max M. Teitelbaum"

                        

                                 J U D G E

OTTAWA

September 25, 1997