Federal Court of Appeal Decisions

Federal Court of Appeal

Cour d'appel fédérale

Date: 20120522

Docket: A-69-12

Citation: 2012 FCA 147

 

CORAM:       SHARLOW J.A.

                        PELLETIER J.A.                  

                        MAINVILLE J.A.

 

BETWEEN:

THE PROFESSIONAL INSTITUTE

 OF THE PUBLIC SERVICE OF CANADA

Appellant

and

IRENE J. BREMSAK

Respondent

 

 

 

Heard at Vancouver, British Columbia, on May 14, 2012.

Judgment delivered at Ottawa, Ontario, on May 22, 2012.

 

REASONS FOR JUDGMENT BY:                                                                          SHARLOW J.A.

CONCURRED IN BY:                                                                                            PELLETIER, J.A.

                                                                                                                               MAINVILLE, J.A.                       

 

Federal Court of Appeal

Cour d'appel fédérale

Date: 20120522

 

Docket: A-69-12

 

Citation: 2012 FCA 147

 

CORAM:       SHARLOW J.A.

                        PELLETIER J.A.                  

                        MAINVILLE J.A.

 

BETWEEN:

 

THE PROFESSIONAL INSTITUTE

 OF THE PUBLIC SERVICE OF CANADA

Appellant

and

 

IRENE J. BREMSAK

Respondent

 

REASONS FOR JUDGMENT

 

SHARLOW J.A.

 

[1]               In a judgment dated February 16, 2012 (2012 FC 213), Justice Lemieux found the Professional Institute of the Public Service of Canada guilty of contempt of an order (the “Reinstatement Order”) made by the Public Service Labour Relations Board on August 26, 2009 (2009 PSLRB 103) which, among other things, ordered the reinstatement of the respondent Irene Bremsak to elected and appointed positions from which she had been wrongfully removed. For the reasons that follow, I would dismiss the appeal.

 

Proceedings before the Public Service Labour Relations Board

[2]               This matter originally involved two unfair labour practice complaints Ms. Bremsak filed with the Board pursuant to the Public Service Labour Relations Act, S.C. 2003, c. 22. The first complaint was made on November 16, 2007. In that complaint Ms. Bremsak alleged that the Institute had breached paragraph 188(c) of the Act when it apologized on Ms. Bremsak’s behalf for certain comments she had made following a local election.

 

[3]               The second complaint was filed on July 8, 2008. It related to the Institute’s response to Ms. Bremsak’s first complaint. The Institute had adopted a policy that any member who referred to an “outside body” (including the Board) a matter that has been or ought to be referred to the Institute’s internal procedure would automatically be subject to temporary suspension from elected or appointed office. When Ms. Bremsak filed her first complaint to the Board, the Institute applied that policy and suspended Ms. Bremsak from the positions she then held (shop steward, member-at-large of the SP Vancouver Sub-Group, president of the Vancouver Branch, member-at-large of the B.C./Yukon Regional Executive, and sub-group coordinator of the SP Group Executive). In Ms. Bremsak’s second complaint to the Board, she alleged that the Institute had breached subparagraph 118(e)(ii) of the Act when it adopted the policy.

 

[4]               In the Reinstatement Order, the Board dismissed the first complaint, allowed the second complaint, and made a number of orders as a remedy in respect of the second complaint, including the following (at paragraphs 143 to 145 of the Board’s reasons):

 

 

 

[5]               The reference in paragraph 145 of the Reinstatement Order to paragraph 131 of the decision is somewhat unclear. It seems to have been intended as a reference to paragraph 132, which sets out the text of the notice to be given to the Institute’s members and officials. This is implicitly acknowledged by the parties in a statement of agreed facts filed in the Federal Court. Paragraphs 131 and 132 of the Board’s decision read as follows:

 

 

 

The Institute’s challenge to the Reinstatement Order

[6]               On September 2, 2009, the Institute applied to this Court for judicial review of the Reinstatement Order, and subsequently filed two motions to stay the Board’s order. Both stay motions were dismissed on October 28, 2009 (2009 FCA 312). On April 28, 2010, the Institute discontinued its judicial review application.

 

The Institute’s failure to comply with the Reinstatement Order

[7]               The Institute did not comply with the Reinstatement Order when it was made on August 26, 2009, or soon afterward. For reasons that will become apparent, there is no evidence in the record explaining why the Institute did not comply with the Reinstatement Order soon after it was made although, as explained below, the Institute claims to have a lawful excuse for its non-compliance on and after October 20, 2009.

 

[8]               The Institute has also asserted that it would be unreasonable to hold it in contempt of the Reinstatement Order before October 28, 2009, the date on which its two stay applications were determined by this Court. It is convenient to deal with that submission at the outset because it is so obviously devoid of merit. As a matter of law, merely taking proceedings to stay an order cannot excuse non-compliance with the order, although in certain circumstances non-compliance with an order while a stay application is pending may be a mitigating factor in determining the consequences of non-compliance.

 

Enforcement proceedings

[9]               On September 1, 2009, Ms. Bremsak submitted a request to the Board that the Reinstatement Order be filed with the Federal Court pursuant to section 52 of the Act so that it could be enforced as an order of the Federal Court. Section 52 reads as follows:

 

 

 

[10]           The Institute opposed the request for the filing of the Reinstatement Order in the Federal Court. By order dated December 4, 2009 (2009 PSLRB 159), the Board determined that the Institute had not complied with paragraph 143 and 145 of the Reinstatement Order, and rejected the submission of the Institute that no useful purpose would be served by filing it in the Federal Court. The Board made an order accordingly, and the Reinstatement Order was filed on December 8, 2009. Ms. Bremsak immediately commenced contempt proceedings.

 

Other proceedings by the Institute against Ms. Bremsak

[11]           As these events were unfolding, the Institute was taking further steps against Ms. Bremsak in connection with harassment complaints made against her by five members of the Executive Branch of the Institute in April and June of 2009. On October 20, 2009, the Institute informed Ms. Bremsak that following an investigation, her membership in the Institute had been suspended for a period of five years effective immediately. The Institute informed Ms. Bremsak that she could not be a candidate for office, or vote for officers, or otherwise participate in the affairs of the Institute.

 

[12]           The October 20, 2009 decision of the Institute is the subject of a further unfair labour practice complaint filed with the Board by Ms. Bremsak. The Institute disputes the complaint. That matter is still pending before the Board.

 

The show cause proceedings in the Federal Court

[13]           In show cause proceedings before a prothonotary on March 26, 2010, the Institute admitted in a statement of agreed facts that by December 8, 2009 when the Reinstatement Order was filed in the Federal Court, it had not rescinded any of Ms. Bremsak’s suspensions, it had not restored her to any of her elected or appointed positions, and it had not advised the members and officials of the Institute in the form described in paragraphs 131 and 132 of the Reinstatement Order that Ms. Bremsak had been reinstated to all of her elected and appointed positions.

 

[14]           A show cause order was made by a prothonotary on June 17, 2010 (2010 FC 661) on the basis that Ms. Bremsak had made out a prima facie case of contempt by the Institute. The allegation of contempt as set out in the prothonotary’s order reads as follows:

 

 

 

[15]           In the show cause order, the recitation of the offices held by Ms. Bremsak excludes two of the positions from which Ms. Bremsak had been suspended, namely her positions with the National SP Group Executive and the Greater Vancouver Branch Executive. That is because Ms. Bremsak’s terms on those two positions expired before December 8, 2009.

 

[16]           The prothonotary had concluded (at paragraph 33 of his reasons) that “a prima facie case of contempt has not been made out with respect to reinstatement of Ms. Bremsak to the two positions whose terms had expired at the time the Board decision was filed with this Court.” That conclusion was based on the premise, stated at paragraph 30 of his reasons, that the requirement to comply with the Reinstatement Order crystallized on December 8, 2009, when it was filed with the Federal Court and became a court order.

 

Warman v. Tremaine

[17]           The show cause order was made without the benefit of the decision of this Court in Warman v. Tremaine, 2011 FCA 297 (leave to appeal to the Supreme Court of Canada denied: Tremaine v. Canada (Canadian Human Rights Commission), [2011] S.C.C.A. No. 510). The narrow issue determined in Warman is that an order of a tribunal that is filed in the Federal Court pursuant to a provision similar to section 52 of the Act may be the subject of contempt proceedings in the Federal

Court if the alleged contemnor has knowledge of the tribunal’s order whether or not it has knowledge that the order is filed in the Federal Court.

 

[18]           More broadly, Warman stands for the proposition that in enforcement proceedings following the filing of a tribunal order in the Federal Court, what is being enforced is the tribunal order. This is well explained in the following excerpt from the reasons of Justice Noël, writing for the majority:

 

 

 

 

 

[19]           In my view, the same reasoning necessarily leads to the conclusion that the contempt proceedings in this case must focus on the alleged breach of the Reinstatement Order from the date on which it was made, August 26, 2009, and not from the date on which it was filed in the Federal Court. It follows that the prothonotary erred in concluding that the Institute could not, as a matter of law, be found to be in contempt of the Reinstatement Order in respect of the period between August 26, 2009 and December 8, 2009.

 

[20]           Justice Lemieux concluded, as have I, that the Warman case demonstrated that the prothonotary’s order was based on an incorrect legal principle, and he proceeded to determine the merits of the contempt charge on the basis of the Institute’s failure to comply with the Reinstatement Order at any time after it was made.

 

[21]           In this appeal, the Institute makes two submissions on the effect of Warman. First, the Institute argues that regardless of what contempt it could have been charged with under the principle in Warman, the actual charge set out in the show cause order relates only to events after December 8, 2009 and therefore, the determination of whether it had a lawful excuse for failing to comply with the Reinstatement Order must be determined on the basis of the state of affairs on and after December 8, 2009. Second, the Institute argues that to find it in contempt in relation to events that occurred before December 8, 2009 is a breach of procedural fairness because it was not given an opportunity to defend itself from a contempt charge based on earlier events.

 

[22]           In the unusual circumstances of this case, I see no merit to either of these arguments. The Warman decision of this Court was rendered on October 26, 2011, after the trial of the contempt charge in relation to the Reinstatement Order (October 20 and 21, 2010), and while the matter was under reserve. Justice Lemieux provided the parties with a copy of Warman and invited their submissions. Both parties filed written submissions within the deadline stipulated by Justice Lemieux. In making those submissions, the parties knew that because of Warman it would be open to Justice Lemieux to conclude that events prior to December 8, 2009 could be the subject of contempt proceedings in relation to the Reinstatement Order, and that Justice Lemieux was proposing to consider whether those prior events should be taken into account.

 

[23]           In its submissions to Justice Lemieux, the Institute argued that despite Warman, the events prior to December 8, 2009 were not legally relevant given the language of the charge. The Institute also argued in the alternative that even if the relevant date was August 26, 2009, its failure to comply was justified by the fact that its stay applications in this Court were not determined until October 28, 2009 (an argument that I have already rejected).

 

[24]           And yet the Institute made no request to reopen the trial to adduce evidence relating to the period from August 26, 2009 to December 8, 2009, a course of action that clearly was open to it. Nor did the Institute suggest to Justice Lemieux that there is evidence it could have adduced to establish a lawful excuse for failing to comply with the Reinstatement Order before December 8,

 

2009 (apart from the evidence it had already submitted in support of its argument that it had a lawful excuse after December 8, 2009).

 

[25]           It would have been preferable as a matter of procedure if Justice Lemieux had formally amended the show cause order to reflect the principle in Warman, effectively restarting the contempt proceedings. However, the record discloses no basis upon which this Court can reasonably conclude that the failure to formally amend the charge caused prejudice to the Institute.

 

The merits of the contempt charges

[26]           The Institute does not challenge the conclusion of Justice Lemieux that the Institute did not restore Ms. Bremsak to her elected and appointed positions or give the required notification of her reinstatement to its members and officials. The issue on appeal is whether Justice Lemieux erred in concluding that the Institute had no lawful justification for failing to restore Ms. Bremsak to her elected and appointed positions.

 

[27]           It is convenient to consider the question of justification in two stages. I will discuss first the period from August 26, 2009 (the date of the Reinstatement Order) to October 20, 2009 (the date on which the Institute suspended Ms. Bremsak’s membership for five years). I will then discuss the period after October 20, 2009 when the suspension was in place.

 

August 26 to October 20, 2009

[28]           As indicated above, by December 8, 2009 when the Reinstatement Order was filed in the Federal Court, the Institute had not restored Ms. Bremsak to any of her elected or appointed positions. Nor had it done so by the time of the hearing before Justice Lemieux. The Institute submitted to Justice Lemieux that it had a lawful excuse for failing to reinstate Ms. Bremsak to her elected and appointed positions before December 8, 2009 because on October 20, 2009, the Institute had suspended Ms. Bremsak as a member for a five year period and so she could not hold office during that period.

 

[29]           Justice Lemieux concluded that the suspension of Ms. Bremsak on October 20, 2009 did not excuse the Institute from its obligation to reinstate her prior to that date. He interpreted the Reinstatement Order to require her reinstatement “immediately in order that her term of office not expire and the real harm she suffered not be repaired” (paragraph 78 of his reasons). That interpretation of the Reinstatement Order was based on a careful consideration of the Board’s reasons, and in my view it is the correct interpretation. I conclude that Justice Lemieux made no error in finding the Institute in contempt of the Reinstatement Order when it failed to reinstate Ms. Bremsak after August 26, 2009 and before October 20, 2009.

 

After October 20, 2009

[30]           Justice Lemieux also concluded that even after the October 20, 2009 suspension, the defence of justification was not made out. In reaching that conclusion, he acknowledged that Ms. Bremsak’s complaints about the suspension would be decided by the Board and not by him. However, he also noted that he had been directed by this Court that he was not obliged to assume that the suspension was valid.

 

[31]           The direction of this Court to which Justice Lemieux referred arose this way. On March 31, 2011, after the hearing on October 20 and 21, 2010, and while the matter was under reserve, Justice Lemieux convened the parties by telephone to discuss his concern about determining the contempt proceedings without the benefit of a decision by the Board as to the merits of Ms. Bremsak’s unfair labour practice complaint in relation to the five year suspension imposed on October 20, 2009. On April 1, 2011, Justice Lemieux ordered a stay of the contempt proceedings pending the outcome of the Board proceedings. His reason for ordering the stay is summarized in paragraph 10 of his reasons (2011 FC 406):

 

 

 

[32]           Ms. Bremsak appealed the stay order to this Court. Both parties submitted to this Court that the stay order should be set aside and that Justice Lemieux should be required to determine the contempt matter. The appeal was allowed on September 19, 2011 (2011 FCA 258) on the basis that the Institute was entitled to a prompt resolution of the allegations based on the evidence the parties had chosen to submit to the Federal Court.

 

[33]           The Institute argues that Justice Lemieux erred in relying on Ms. Bremsak’s challenges to the October 20, 2009 suspensions because he had ruled in the course of the hearing that the parties would not be permitted to adduce evidence going to the merits of the suspensions, which was a question before the Board. I do not accept that argument. By virtue of the September 19, 2011 judgment of this Court allowing the appeal from Justice Lemieux’s stay order, he was obliged to determine the contempt charge based on the evidence then before him. At that time, the record included properly admitted documentary evidence of the allegations made by Ms. Bremsak in support of her complaint about the October 20, 2009 suspensions, and the grounds upon which the Institute alleged that her complaint was unfounded. The only excluded evidence was the oral testimony of the witnesses at the contempt hearing to explain why the suspensions were imposed.

 

[34]           In my view, Justice Lemieux made no error in considering the documentary evidence of Ms. Bremsak’s allegations (although disputed and unproven), against the documentary evidence of the Institute’s responses (also unproven) in order to determine whether the suspension decision should justify the failure to comply with the Reinstatement Order. The factual conclusions he reached upon considering that evidence were reasonably open to him.

 

[35]           Justice Lemieux noted particularly that the suspensions were ordered to take place immediately and that the Executive Committee received no submissions from Ms. Bremsak in determining that a five year suspension was an appropriate remedy for the alleged harassment. The Institute had submitted to the Board that Ms. Bremsak had an opportunity to respond to the report of the person who investigated the harassment allegations. However, the investigator’s report, which is in the record, makes no recommendations as to remedy. There is no evidence that Ms. Bremsak was afforded an opportunity to make submissions to the Executive Committee as to what an appropriate remedy might be.

 

[36]           I conclude that Justice Lemieux made no error in law or fact when he found that the October 20, 2009 suspensions did not excuse the Institute from complying with the Reinstatement Order, or when he found the Institute to be in contempt of the Reinstatement Order after October 20, 2009.

 

Conclusion

[37]           I would dismiss the appeal.

 

[38]           Ms. Bremsak has asked for special costs to cover the costs of this appeal, the contempt trial, the show cause hearing, and the cost of the proceedings before the Board to have the Reinstatement Order filed in the Federal Court. This Court has no authority to grant costs in respect of proceedings before the Board. As to the request for costs in the Federal Court, I note that the matter of costs has not yet been considered by Justice Lemieux. In my view, it would not be appropriate in the context of this appeal for the Court to award costs in the Federal Court. However, I would award Ms. Bremsak her costs of this appeal. I am satisfied that Ms. Bremsak should receive costs on a higher

than normal scale. I would award her costs in this Court in the amount of $7,000 inclusive of disbursements and tax.

 

 

 

“K. Sharlow”

“I agree

         J.D. Denis Pelletier J.A.”

 

“I agree

         Robert M. Mainville J.A.”

 

FEDERAL COURT OF APPEAL

 

NAMES OF COUNSEL AND SOLICITORS OF RECORD

 

 

 

DOCKET:                                                                 A-69-12

 

APPEAL FROM THE JUDGMENT OF JUSTICE LEMIEUX OF THE FEDERAL COURT DATED FEBRUARY 16, 2012, DOCKET NO. (T-2049-09)

 

STYLE OF CAUSE:                                                 The Professional Institute of the Public Service of Canada v. Irene J. Bremsak

 

PLACE OF HEARING:                                           Vancouver

 

DATE OF HEARING:                                             May 14, 2012

 

REASONS FOR JUDGMENT BY:                        Sharlow J.A.

 

CONCURRED IN BY:                                            Pelletier, Mainville JJ.A.

                                                                                                           

DATED:                                                                    May 22, 2012

 

 

APPEARANCES:

 

Steven Welchner	FOR THE APPELLANT
David Donohoe	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Welchner Law Office Ottawa, Ontario	FOR THE APPELLANT
Donohoe & Company Vancouver, British Columbia	FOR THE RESPONDENT